> **DA 08-1340**

*In Reply Refer to*:

1800B3-TSN

> Released: June 6, 2008

Mr. Richard Dean Hodson,

d/b/a Hodson Broadcasting

P.O. Box 66

Tecopa, CA 92389-0066

Shamrock Communications, Inc.

c/o Kenneth E. Satten, Esq.

Wilkinson Barker Knauer, LLP

2300 N Street, N.W.

Suite 700

Washington, DC 20037

In re: **FM Auction No. 68**

**Shamrock Communications, Inc.**

New(FM), Amargosa Valley, NV

Facility ID No. 170180

File No. BNPH-20070226AER

**Application for New FM**

> **Construction Permit**

Dear Objector and Counsel:

We have before us a "Petition to Deny" ("Petition") filed by Richard
Dean Hodson, d/b/a Hodson Broadcasting ("Hodson") on May 7, 2007. Hodson
requests we deny Shamrock Communications, Inc.'s ("Shamrock") FM Auction
No. 68 ("Auction 68") application for a new FM broadcast station at
Amargosa Valley, Nevada.[^1] Shamrock was the winning bidder, in Auction
68, for the Channel 291A allotment at Tecopa, California; in its
post-auction Form 301 application, Shamrock seeks a minor change in the
facilities, class, and community of license of the allotment. Shamrock
has concurrently filed a Petition for Rule Making ("PRM") to replace the
Tecopa allotment with a new allotment on Channel 288A at Tecopa.[^2] For
the reasons set forth below, we deny the Petition and grant the
Application.

**Background.** Shamrock filed a short-form (FCC Form 175) application
on November 9, 2006, during the Auction 68 filing window.[^3] After the
auction, Shamrock was the provisionally winning bidder with a net bid of
\$728,000.[^4] Having timely made all required auction payments,
Shamrock timely filed the Application, proposing a "one-step" upgrade
from Channel 291A to Channel 290C1, and change of community from Tecopa
to Amargosa Valley, Nevada. It concurrently filed the PRM, along with
the required Form 301 application specifying the proposed facilities. In
response to Hodson's May 7, 2007, filing of the Petition, Shamrock filed
an "Opposition to Objection" ("Opposition") on May 24, 2007.

**Discussion.** *Status of Petition*. Shamrock contends that Hodson's
Petition cannot be considered a petition to deny, because it does not
comply with the requirements of Section 309(d) of the Communications Act
of 1934, as amended (the "Act").[^5] Specifically, Shamrock points out
that the Petition is not supported by an affidavit or declaration under
penalty of perjury, as is required by the Act and the Commission's
Rules.[^6] We agree that Hodson should have submitted an affidavit to
support his many factual assertions regarding population, community
attributes, and technical matters. In any event, Hodson's unsworn
signature alone does not provide sufficient indicia of reliability of
the assertions in the Petition. We therefore consider the Petition to be
an informal objection.

*Substantive Allegations*. In his Petition, Hodson makes numerous
assertions and accusations against Shamrock and its motives. As noted
above, however, Hodson's statements constitute bare unsworn allegations
only, unsupported by technical showings, declarations of other Tecopa
residents, or other evidence. Essentially, Hodson argues that Shamrock
has engaged in wrongful behavior by changing the community from Tecopa
to Amargosa Valley in its post-auction long-form application, and
simultaneously seeking to allot a new channel at Tecopa, which Hodson
characterizes as an illegal "backfill" allotment. Hodson's primary
criticism seems to be that Shamrock is abandoning the community on which
it bid, thus delaying the introduction of FM service at Tecopa.

While earnestly argued, Hodson's Petition does not point to any wrongful
conduct on Shamrock's part. It is uncontested that Shamrock was the
winning bidder for the Channel 291A Tecopa allotment. In *Revision of
Procedures Governing Amendments to FM Table of Allotments and Changes of
Community of License in the Radio Broadcast Services*,[^7] the
Commission specifically allowed applicants to file minor modification
community of license change applications, as long as the proposed new
facility was mutually exclusive with either the applicant's built and
operating facilities or its original allotment.[^8] Moreover, the Media
Bureau subsequently affirmed that a winning auction applicant could
propose a community of license change in its post-auction Form 301
application.[^9] We further note that not only is the community of
license change a minor change, but Shamrock's proposed upgrade from
Channel 291A to Channel 290C1 and transmitter site location are likewise
minor changes, and thus allowed in its post-auction long-form
application.[^10]

Part of the change of community application procedure involves
submitting "a detailed exhibit demonstrating that the proposed change
constitutes a preferential arrangement of allotments under the Section
307(b) \[of the Communications Act of 1934, as amended\] priorities and
policies we have used since 1982."[^11] It appears that, in order to
justify such a preferential arrangement of allotments when proposing to
move the sole allotment at Tecopa to a community that already has local
transmission service, Shamrock has proposed a replacement allotment.
However, Hodson is in error when he accuses Shamrock of proposing a
prohibited "backfill" allotment. The case Hodson cites, *Pacific
Broadcasting of Missouri LLC*,[^12] only prohibits so-called backfill
allotments when used to preserve the existing sole local transmission
service of a community being vacated. However, the Tecopa allotment is
not a sole local transmission service, as it has never been constructed
and has never broadcast, thus the community has not come to rely on it
for service.[^13] Shamrock's request for a new FM allotment at Tecopa,
as noted above, has been proposed in order to comply with Section 307(b)
requirements, not as a replacement for non-existent sole local
transmission service. While it is at least premature for Shamrock to
claim that its modification application plus rulemaking proceeding will
create two FM facilities, it is true that if granted, Shamrock's
proposals will result in a construction permit serving a greater
population, along with a replacement allotment of the same class at
Tecopa. The proposals thus satisfy Section 307(b), and are fully
compliant with our rules and procedures as modified by the *2006
Community of License Order*.[^14]

**Conclusion.** For the foregoing reasons, we find that Hodson has
failed to raise a substantial and material question of fact regarding
Shamrock's long-form application and associated PRM. We further find
that Shamrock is fully qualified to be a Commission licensee, and that
grant of its Form 301 application is in the public interest,
convenience, and necessity. Therefore, Hodson's Petition, which we treat
as an informal objection, IS DENIED, and Shamrock's Application IS
GRANTED.

Sincerely,

Peter H. Doyle

Chief, Audio Division

Media Bureau

[^1]: File No. BNPH-20070226AER (the "Application").

[^2]: As is now required with Petitions for Rule Making proposing new
    allotments, Shamrock also filed a Form 301 application, File No.
    BNPH-20070226AET.

[^3]: File No. BSFH-20061109AET.

[^4]: *See Auction of FM Construction Permits Closes; Winning Bidders
    Announced for Auction No. 68*, Public Notice, 22 FCC Rcd 518 (MB/WTB
    2007).

[^5]: 47 U.S.C. § 309(d).

[^6]: *See id*.; 47 C.F.R. § 73.5006(c).

[^7]: Report and Order, 21 FCC Rcd 14212 (2006) ("*2006* *Community of
    License Order*").

[^8]: *Id*. at 14219.

[^9]: *See Media Bureau Offers Examples to Clarify the Treatment of
    Applications and Rulemaking Petitions Proposing Community of License
    Changes, Channel Substitutions, and New FM Allotments*, Public
    Notice, 22 FCC Rcd 6852, 6855-56 (MB 2007).

[^10]: 47 C.F.R. § 73.3573(a)(1).

[^11]: *Id*. at 14218. See 47 U.S.C. § 307(b) ("Section 307(b)");
    *Revision of FM Assignment Policies and Procedures*, Second Report
    and Order, 90 FCC 2d 88 (1982).

[^12]: Memorandum Opinion and Order, 18 FCC Rcd 2291, 2296 (2003),
    recon. denied, 19 FCC Rcd 10950 (2004).

[^13]: *See*, *e.g*., *Vernon Center and Eagle Lake, Minnesota*, Report
    and Order, 21 FCC Rcd 14714, 14715 (MB 2007) (reallotment of unbuilt
    station does not constitute removal of community's sole local
    service).

[^14]: *See supra* note 7.