Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  |                              |
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| Amendment of Section 73.202(b),  | ** |                              |
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| Table of Allotments,             | *  |                              |
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| FM Broadcast Stations.           | ** |                              |
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| (Elgin and Lombard, Illinois)    | *  |                              |
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**MEMORANDUM OPINION AND ORDER**

**(Proceeding Terminated)**

**Adopted: June 7, 2006 Released: June 9, 2006**

By the Assistant Chief, Audio Division, Media Bureau:

1\. The Audio Division has before it a Petition for Reconsideration
filed by Elgin Broadcasting Co., Inc. ("Elgin Broadcasting") directed to
the staff letter returning its Petition for Rule Making.[^1] For the
reasons discussed below, we deny the Petition for Reconsideration.

2\. Elgin Broadcasting, licensee of Station WJKL, Channel 232A, Elgin,
Illinois, filed a Petition for Rule Making proposing the reallotment of
Channel 232A from Elgin to Lombard, Illinois, and modification of the
Station WJKL to specify Lombard as the community of license. Station
WJKL is a pre-1964 grandfathered short-spaced station with respect to
second adjacent channel Stations WZZN, Channel 234B, and WLIT, Channel
230B, Chicago, Illinois.[^2] In its Petition for Rule Making, Elgin
Broadcasting proposed increasing the existing short-spacing by
relocating the Station WJKL transmitter from 52 kilometers to 26
kilometers from Stations WZZN and WLIT. In the staff letter, we
determined that the Elgin Broadcasting Petition for Rule Making did not
comply with Section 73.208 of the Rules that requires a proposal in a
petition for rule making to comply with minimum separation requirements
set forth in Section 73.207(b) of the Rules. For this reason, we
returned the Petition for Rule Making.

3\. In its Petition for Reconsideration, Elgin Broadcasting argues that
under Section 73.213(a)(4) of the Rules, there are no required second or
third adjacent separation requirements for pre-1964 grandfathered
stations. In this regard, Elgin Broadcasting specifically refers to
*Grandfathered Short-Spaced FM Stations* in which the Commission stated
that it was not relaxing second and third adjacent channel separation
requirements as allotment and assignment criteria for any group of FM
stations except for pre-1964 grandfathered stations.[^3] As such, there
was no basis to return its Petition for Rule Making involving pre-1964
second adjacent channel stations because of noncompliance with Section
73.208 of the Rules.

4\. We deny the Petition for Reconsideration. It is Commission policy
not to grant waivers of the spacing requirements in considering the
allotment of an FM channel.[^4] However, in *Newnan and Peachtree,
Georgia,* we made a limited exception to this policy.[^5] There, we
reallotted Channel 244A from Newnan to Peachtree, Georgia, and modified
the Station WMKJ license to specify Peachtree as the community of
license. Station WMKJ was a pre-1964 grandfathered facility under
Section 73.213 of the Rules that did not meet the current spacing
requirements set forth in Section 73.207(b) of the Rules with respect to
third-adjacent channel Station WKLS, Channel 241C, Atlanta, Georgia. The
proposal in *Newnan* did not involve any change in the technical
facilities of Station WMKJ. In taking that action, we recognized that we
were creating a new short-spaced allotment in contravention of Section
73.207(b) of the Rules. In *Newnan,* we also stated that we would
consider waiving the strict application of Section 73.207(b) in limited
circumstances, provided that no new short spacings are created, no
existing short spacings are exacerbated, and the potential for
interference between the currently short-spaced stations is not
increased. In this instance, waiver would not be appropriate. This
proposal would significantly exacerbate the existing short spacing and,
due to the proposed significant short spacing, result in interference to
25,377 persons.

5\. Our action in this proceeding does not conflict with the 1997
Commission decision in *Grandfathered Short-Spaced FM Stations.* In
*Grandfathered Short-Spaced FM Stations,* the Commission revised Section
73.213(a) of the Rules to permit pre-1964 grandfathered stations to file
*applications* to implement maximum class facilities and/or change
transmitter site without regard to second-adjacent and third-adjacent
channel stations. The Commission has never used Section 73.213 as an
allotment spacing rule. The *Grandfathered Short-Spaced FM Stations*
Report and Order did not explicitly modify this policy or limit the
applicability of Section 73.207 spacing requirements to FM allotment
rulemaking proceedings involving pre-1964 grandfathered short-spaced
stations. The rule, itself, mentions only application filings.[^6]
Moreover, the transition procedures adopted by the Commission in the
1997 order explicitly reference only pending applications.[^7]

6\. Accordingly, IT IS ORDERED, That the aforementioned Petition for
Reconsideration filed by Elgin Broadcasting Company, Inc., IS DENIED.

7\. For further information concerning this proceeding, contact Robert
Hayne, Mass Media Bureau, (202) 418-2177.

FEDERAL COMMUNICATIONS COMMISSION

John A. Karousos

Assistant Chief,

Audio Division

Media Bureau

[^1]: *Letter to William D. Silva from John A. Karousos, Assistant
    Chief, Audio Division, Media Bureau, (March 11, 2004).*

[^2]: Section 73.207(b)(1) of the Rules requires a separation of 95
    kilometers (59 miles) between a Class A allotment and a second
    adjacent Class C allotment. Station WJKL is separated 52 kilometers
    (33 miles) from Stations WZZN and WLIT. Pre-1964 grandfathered
    stations are those FM stations authorized prior to November 16,
    1964, that do not meet the separation distances required by the
    later adopted Section 73.207(b) and have remained continuously
    short-spaced since that time.

[^3]: *Grandfathered Short-Spaced FM Stations,* Report and Order, 12 FCC
    Rcd 11840 (1997).

[^4]: *See e.g., Chester and Wedgefield, South Carolina,* 5 FCC Rcd 5572
    (1990), *petition for review denied,* No. 90-1496 (D.C. Cir. June 6,
    1991).

[^5]: *Newnan and Peachtree, Georgia,* Report and Order, (MMB 1992).

[^6]: *See e.g.,* 47 C.F.R. § 73.213(a)(2) ("For co-channel and
    first-adjacent channel stations, a showing that the public interest
    would be served by the changes proposed in the *application* must
    include exhibits....") (emphasis added).

[^7]: *See Grandfathered Short-Spaced FM Stations,* 12 FCC Rcd at 11857
    n. 16.