**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Amendment of Section 73.202(b), ) MM Docket No. 99-343

Table of Allotments, ) RM-9750

FM Broadcast Stations. )

(Elberton and Lavonia, Georgia) )

)

In re Application of )

)

Waves of Mercy Productions, Inc. ) BPED-19990630MB

Pendergrass, Georgia )

)

For Construction Permit for New )

Noncommercial Educational FM Station )

**[REPORT AND ORDER]{.underline}**

**(Proceeding Terminated)**

**Adopted: July 5, 2000 Released: July 14, 2000**

By the Chief, Allocations Branch:

1\. At the request of Radio Elberton, Inc. (\"petitioner\"), the
Commission has before it the [Notice of Proposed Rule
Making]{.underline}, 14 FCC Rcd 21139 (1999), proposing the reallotment
of Channel 221A from Elberton, Georgia, to Lavonia, Georgia, as the
community\'s first local aural service, and the modification of Station
WWRK-FM\'s license accordingly. Comments and reply comments were filed
by the petitioner. No other comments were received.

2\. As stated in the [Notice]{.underline}, petitioner seeks to provide
Lavonia, a community of 1,840 persons, with its first local aural
service. The reallotment of Channel 221A to Lavonia would also enable
Station WWRK-FM to operate as a 6 kilowatts Class A station instead of
being limited to its present power of 3 kilowatts. This increase in
power could enable the station to provide service to 60,810 persons
within a 2,511 square mile area, an increase of 183 percent from its
present 21,488 persons within a 1,732 square mile area. A staff
engineering study also confirmed that Lavonia is not located within any
Urbanized Area and the station\'s 70 dBu contour would not encompass any
portion of an Urbanized Area. Elberton would continue to receive local
aural service from FM Station WEHR, Channel 286A, and AM Station WSGC.
Further, while all of the people within Station WWRK-FM\'s present
reception area will lose service because there will be no overlap of the
present and proposed 60 dBu contours, we recognized that the entire loss
area will continue to be considered well-served with five or more
fulltime aural services. However, we noted that petitioner\'s proposal
is mutually exclusive with the earlier-filed application of Waves of
Mercy Productions, Inc. (\"Waves of Mercy\"), for noncommercial
educational Channel 220A at Pendergrass, Georgia (BPED-19990630MB),
since the two communities are located approximately 46 kilometers apart
while the Commission\'s Rules specify a minimum separation of 72
kilometers for first-adjacent Class A channel. Because the Waves of
Mercy application had not been placed on the cut-off Public Notice at
the time petitioner\'s proposal was filed, the [Notice]{.underline}
requested comments on both the application and petition.[^1] Parties
were advised that their comments should be guided by the Commission\'s
allotment priorities and that the same allotment priorities are
applicable to both commercial and noncommercial channels.[^2]

3\. In response, petitioner states that a comparison of the two
proposals shows that the reallotment of Channel 221A from Elberton to
Lavonia, as its first local aural service, is clearly preferable. Using
the Commission\'s allotment priorities, petitioner states that there are
virtually no populated areas of the country which do not already receive
first and second reception services. Therefore, it contends that the
highest allotment priority remaining is Priority (3), the provision of a
first local aural service. Comparing the two communities, petitioner
contends that the significant difference in population (1,840 vs. 298
persons), in and of itself, warrants the allotment of Channel 221A to
Lavonia. In support, it cites [Powhatan and Goochland,
Virginia]{.underline}, 12 FCC Rcd 3191 (1997) (channel allotted to
community with larger population). Petitioner also submits that its
proposal should be preferred under Priority (4), other public interest
matters, because the allotment of Channel 221A at Lavonia would provide
service to an additional 43,393 persons while the allotment of Channel
221A to Pendergrass would provide service to only 3,620 persons. In
reply comments, petitioner reiterates its intention to apply for Channel
221A, if allotted to Lavonia, and also notes that neither Waves of Mercy
nor any other party submitted comments comparing the two proposals.

4\. We believe the public interest would be served by reallotting
Channel 221A from Elberton to Lavonia, Georgia, as the community\'s
first local aural service, finding that this action will result in a
preferential arrangement of allotments.[^3] Although Waves of Mercy did
not respond to either the [Notice of Proposed Rule Making]{.underline}
or the comments of petitioner, we have compared the two proposals as
there is no alternate channel which can be allotted to either community.
Neither allotment under consideration herein would provide either a
first or second fulltime reception service. Therefore, our decision is
based on Priority (3), the provision of a first local aural service.
Lavonia has a population approximately six times greater than that of
Pendergrass. In addition, we find that although Pendergrass does have
some of the attributes associated with being a community for allotment
purposes, such as a library, several restaurants, and a post office, our
research shows that one of the two zip codes (30575) assigned to
Pendergrass actually reflects a Tolmo post office, while the other zip
code (30567) is attributed with serving 1,956 people, thus reflecting
its use as more than a city post office. Further, according to the 1990
U.S. Census, of the 138 workers over 16 years of age residing in
Pendergrass, only 20 worked in Pendergrass and 118 worked outside of the
community. This same U.S. Census data shows that of the 547 workers over
16 years of age residing in Lavonia, 384 people work within the
community. In addition, Lavonia has its own city government, city hall,
fire department, city maintenance department, elementary school,
numerous restaurants, churches, banks and several retail stores.
Therefore, we find that, consistent with Commission precedent, Lavonia
is to be preferred based on its larger population for a first local
aural service. [See]{.underline}, [Powhatan and Goochland,
Virginia]{.underline}, [supra]{.underline}, [Obion and Tiptonville,
Tennessee]{.underline}, 7 FCC Rcd 2644 (1992), and [West Liberty and
Richwood, Ohio]{.underline}, 6 FCC Rcd 6084 (1991).

5\. Channel 221A can be allotted to Lavonia in compliance with the
Commission\'s minimum distance separation requirements with a site
restriction of 12.5 kilometers (7.8 miles) west to accommodate
petitioner\'s desired transmitter site.[^4]

6\. Accordingly, pursuant to the authority contained in Sections 4(i),
5(c)(1), 303(g) and (r) and 307(b) of the Communications Act of 1934, as
amended, and Sections 0.61, 0.204(b) and 0.283 of the Commission\'s
Rules, IT IS ORDERED, That effective August 28, 2000, the FM Table of
Allotments, Section 73.202(b) of the Commission\'s Rules, IS AMENDED,
with respect to the community listed below, to read as follows:

[City]{.underline} [Channel No.]{.underline}

Elberton, Georgia 286A

Lavonia, Georgia 221A

7\. IT IS FURTHER ORDERED, pursuant to Section 316(a) of the
Communications Act of 1934, as amended, that the license of Radio
Elberton, Inc., for Station WWRK-FM, IS MODIFIED to specify Lavonia,
Georgia, in lieu of Elberton, Georgia, as its community of license,
subject to the following conditions:

\(a\) Within 90 days of the effective date of this [Order]{.underline},
the licensee shall submit to the Commission a minor change application
for a construction permit (Form 301).

\(b\) Upon grant of the construction permit, program tests may be
conducted in accordance with Section 73.1620.

\(c\) Nothing contained herein shall be construed to authorize a change
in transmitter location or to avoid the necessity of filing an
environmental assessment pursuant to Section 1.1307 of the Commission\'s
Rules.

8\. Pursuant to Commission Rule Section 1.1104(1)(k) and (3)(m), any
party seeking a change of community of license of an FM or television
allotment or an upgrade of an existing FM allotment, if the request is
granted, must submit a rule making fee when filing its application to
implement the change in community of license and/or upgrade. As a result
of this proceeding, Radio Elberton, Inc., licensee of Station WWRK-FM,
is required to submit a rule making fee in addition to the fee required
for the applications to effect the change in community of license and/or
upgrade.

9\. IT IS FURTHER ORDERED, That the Secretary SHALL SEND a copy of this
[Report and Order]{.underline}, BY REGISTERED MAIL, RETURN RECEIPT
REQUESTED, to the applicant for Channel 221A at Pendergrass, Georgia, as
follows: Waves of Mercy Productions, Inc., 5319 Amherst Way, Flowery
Branch, GA 30542.

10\. IT IS FURTHER ORDERED, That this proceeding IS TERMINATED.

11\. For further information concerning this proceeding, contact
Leslie K. Shapiro, Mass Media Bureau, (202) 418-2180.

FEDERAL COMMUNICATIONS COMMISSION

John A. Karousos

Chief, Allocations Branch

Policy and Rules Division

Mass Media Bureau

[^1]: [See]{.underline}, 7 FCC Rcd 4917, fn.1 (1992). Applications for
    new stations in the reserved FM band will be protected at the end of
    the 30-day period for filing mutually exclusive applications as
    established in periodically released Commission Public Notices.

[^2]: The allotment priorities are: (1) first fulltime aural service;
    (2) second fulltime aural service; (3) first local aural service;
    and (4) other public interest matters. Priorities (2) and (3) are
    given co-equal weight. [See]{.underline}, [Revision of FM Assignment
    Policies and Procedures]{.underline}, 90 FCC 2d 88 (1982). [See
    also]{.underline}, [Sacred Heart University, Inc., et
    al.]{.underline}, 7 FCC Rcd 3466 at 3470 (1992).

[^3]: [See]{.underline} [Modification of FM and TV Authorizations to
    Specify a New Community of License]{.underline} (\"[Change of
    Community R&O]{.underline}\"), 4 FCC Rcd 4870 (1989), [recon.
    granted in part]{.underline} (\"[Change of Community
    MO&O]{.underline}\"), 5 FCC Rcd 7094 (1990).

[^4]: The coordinates for Channel 221A at Lavonia are 34-27-26 North
    Latitude and 83-14-27 West Longitude.