Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the matter of                 | *  | MM Docket No. 00-87          |
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| Amendment of Section 73.202(b),  | ** | RM-9870                      |
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| Table of Allotments,             | *  | RM-9961                      |
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| FM Broadcast Stations.           | ** |                              |
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| (Brightwood, Madras, Prineville  | *  |                              |
| and Bend, Oregon) [^1]           | *) |                              |
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**Report and Order**

**(Proceeding Terminated)**

**Adopted: October 17, 2001 Released: October 26, 2001**

By the Chief, Allocations Branch:

1.  The Allocations Branch has before it a *Notice of Proposed Rule
    Making* ("*Notice*")[^2] issued at the request of Muddy Broadcasting
    Company ("Muddy"), proposing the allotment of Channel 251C3 at
    Brightwood, Oregon, as the community's first local aural
    transmission service. In response to the *Notice,* Muddy filed
    comments reiterating its intention to file for the channel, if
    allotted.

2.  Also in response to the *Notice*, Madras Broadcasting ("Madras
    Broadcasting") filed comments and a counterproposal proposing the
    allotment of Channel 251C1 at Madras, Oregon as the community's
    first local aural transmission service.[^3] Muddy, Larry D.
    Eckhardt, Chief, Hoodland Fire District, No. 74 ("Eckhardt"),
    Kylie B. Milne, President, Mt. Hood Area Chamber of Commerce
    ("Milne") and Combined Communications, Inc. ("Combined
    Communications")[^4] filed reply comments. In response to the Public
    Notice of Madras Broadcasting's counterproposal, Muddy filed timely
    comments in opposition, and Madras Broadcasting filed a response.
    Muddy also filed a motion to strike Madras Broadcasting's reply
    comments and Madras Broadcasting opposed the motion to strike. We
    issued an *Order to Show Cause*[^5] to Combined Communications, Inc.
    ("Combined"), licensee of Station KTWS(FM), Bend, Oregon, who filed
    a response.[^6]

3.  In support of its petition for rulemaking, Muddy states that
    Brightwood is a community for allotment purposes, and that it is
    deserving of an allotment. It is part of a "synergistic group" of
    several communities which are widely referred to as "Hoodland" or
    the "Mt. Hood Corridor," which have actually considered
    consolidating into one city. It states that Brightwood was chosen as
    the community for purposes of this proceeding because it is one of
    the largest communities in this cluster and is near the center of
    the anticipated primary service area. In addition, Brightwood was
    the first town in the area and established the first post office in
    the area. Muddy states that many municipal services are provided by
    Brightwood itself, such as post office, fire department branch. It
    has its own zip code and telephone listing and has a local newspaper
    and numerous businesses. It admits, however, that many of the
    attributes of a community are provided outside of Brightwood but
    within the "Hoodland" corridor. It states that the community has a
    1999 permanent resident population of 998 persons, but submits that
    the population of the entire area, 4,500 persons as a relevant
    factor herein. Muddy filed comments in which it reiterated its
    intention to apply for the channel, bid at auction, and if
    successful, promptly construct the station.

4.  In its counterproposal, Madras Broadcasting proposes the allotment
    of Channel 251C1 at Madras, Oregon, as the community's first local
    aural transmission service. To accommodate the Madras allotment, it
    also requests the substitution of Channel 253C3 for Channel 252C3 at
    Bend, Oregon, and the modification of the license of Station
    KTWS(FM) to specify the alternate Class C3 channel, and the
    substitution of Channel 255C3 for unoccupied and unapplied-for
    Channel 254C3 at Prineville, Oregon. Madras Broadcasting states that
    the substitute channels can be allotted in compliance with the
    Commission's minimum distance separation requirements and used at
    Station KTWS(FM)'s licensed transmitter site and Prineville's
    reference coordinates. Madras Broadcasting states that Madras, an
    incorporated community with a 1990 U.S. Census population of 3,443
    persons, is governed by a mayor and six city council members, and
    has local taxing authority. The community has its own water and
    wastewater treatment system, airport, health clinic, police
    department, newspaper, *The Madras Pioneer*, and Madras Industrial
    Park. Madras Broadcasting states that a Madras station will provide
    service to 56,614 people within an area of 16,422 square kilometers.
    Finally, Madras Broadcasting states that it will reimburse the
    licensee of Station KTWS(FM) for the reasonable costs of changing
    channels.

5.  Muddy states that both Brightwood and Madras are deserving of a
    local transmission service. However, it states that Brightwood
    should receive the allotment because it has no transmission service,
    while Madras has transmission service from FM and TV translators. It
    also states that both proposals can be accommodated because,
    although there are no alternate channels available for allotment at
    Brightwood, there are at least six alternate channels that can be
    allotted at Madras. In addition, Muddy contends, these alternate
    channels are preferable to Channel 251C1 because they would not
    require channel substitutions elsewhere, would provide better
    service to Madras, and/or would provide primary service to a larger
    population. Given these facts, Muddy argues that allotting a channel
    to Madras which requires two channel substitutions is neither
    "prudent nor necessary." Further, it argues that one of the channel
    changes involves an on-air station and such changes often result in
    listener confusion and loss of listenership. Finally, Muddy submits
    that in light of these facts, Madras Broadcasting's proposal would
    not serve the public interest. It proposes that both Channel 251C3
    be allotted at Brightwood, and one of the following alternate
    channels be allotted at Madras: Channels 291C1, 291C2, 227C3, 299C3,
    293A, 227A.

6.  Muddy further claims that on a comparative basis, the proposal to
    Brightwood would better serve the public interest than the Madras
    proposal because it would provide service to the "Hoodland" area
    which has a combined permanent population of 4,777 persons and a
    seasonal population of 11,000 persons. It also claims that at full
    power and tower height, its proposal would theoretically provide
    60dBu service to 135,372 persons, compared to 56,614 persons served
    within the 60dBu of the Madras proposal. In addition, it argues that
    unlike Brightwood, Madras receives 60 dBu service from at least six
    radio stations and by FM and TV translators.

7.  Muddy also questions whether Channel 251C1 can be allotted to Madras
    in compliance with the Commission's technical requirements, arguing
    that there is "massive" terrain blockage between the proposed
    allotment site and the community. It submits that a Longley-Rice
    point to point propagation study, using a 60 meter (200 foot) tower,
    shows that the Madras center-city reference coordinates would
    receive a signal of 57.13 dBu. To overcome this blockage and provide
    line of sight service to Madras, Muddy states that a tower of 800
    meters (2,625 feet) would be required, which would constitute a
    hazard to air navigation according to FAA standards, citing 14 CFR
    §77.17 (c).

8.  Combined Communications objects to Madras Broadcasting's
    counterproposal. It argues that the counterproposal is an
    inefficient allocation of spectrum and imposes an undue burden on
    Combined Communications in light of the fact that there are other
    channels available for allotment at Madras. It argues that the
    channel substitution for Station KTWS(FM) as proposed by Madras
    Broadcasting should not be made because it will require the station
    to change channels and reestablish its identity at a new dial
    location. Combined Communications points to the experience of its
    Station KLRR which was ordered to change channels, which resulted in
    prolonged out-of-pocket reimbursement negotiations, and challenge
    and uncertainty. The station lost audience because of the new dial
    position and has not recovered from that loss. Combined
    Communications questions whether it will be reimbursed for its
    expenses in this case because it is dealing with a future licensee
    who will prevail at auction and is totally unknown at this time.
    Therefore, it submits that the resolution which best serves the
    public interest is the allotment of a channel at Madras that will
    not require Station KTWS(FM) to change channels and also allows
    Brightwood to receive its first local aural transmission service. It
    suggests Channel 227C1, which would work if Channel 230A is
    substituted for Channel 228A at Condon, Oregon.

9.  *Discussion*. We will make the allotment to Madras. We find that
    both Brightwood and Madras are communities for allotment purposes
    and deserving of an allotment, although the evidence in support of
    the community status of Madras is far more substantial than that of
    Brightwood. There are no alternate channels available for allotment
    at Brightwood. There are alternate channels available for allotment
    at Madras, but none are feasible or equivalent to the requested
    Channel 251C1, and the proponent has stated that it has no interest
    in a lower class channel. While two equivalent channels were
    suggested, Channels 291C1 and 227C1, neither can be used. Channel
    291C1 would not work because of massive terrain blocking, and
    Channel 227C1 would require the introduction of a new community,
    which is prohibited after the expiration of the comment period.[^7]
    With respect to Muddy's assertion that Channel 251C1 at petitioner's
    site would require an excessively tall tower to overcome a massive
    terrain obstruction, our staff engineering analysis does not bear
    this out. Our staff did confirm, however, that Channel 291C1 would
    be blocked by a terrain obstruction. In addition, as Madras
    Broadcasting showed in its comments, there are many fully-spaced
    possible transmitter sites from which a station could provide
    service to the community on Channel 251C1 without any terrain
    issues.

10. Since there are no alternate channels available for allotment to
    either community, we have compared the two communities to determine
    which would be more deserving of the allotment in the public
    interest. Each would receive its first local aural transmission
    service and would trigger priority (3) of the FM allotment
    priorities.[^8] In regard to the FM and TV translators alluded to by
    Muddy, we note that these are secondary services with the primary
    station being licensed to a different community. As such, we do not
    consider these to be local services for Madras under the FM
    allotment priorities.

11. On a comparative basis of these two *de novo* allotments, Madras,
    the larger community with 3,443 persons, prevails. While Muddy
    attempts to make a showing that an allotment to Brightwood would
    provide the "Hoodland" area a much deserved allotment, and the
    comments of both Eckhardt and Milne also support the allotment of
    Channel 251C3 to Hoodland/Brightwood area,[^9] their comments do not
    address the specific attributes of Brightwood as a community, and we
    are constrained to consider the attributes of Brightwood itself, not
    the surrounding area. Madras Broadcasting correctly argues that in
    this analysis we consider only the population of the proposed
    community of license, Brightwood, whose 1990 U.S. Census population
    is 788 persons, rather than the 4,777 population proffered by Muddy
    which apparently includes Brightwood as well as census population
    data attributed to the zip codes for the communities of Welches and
    Rhododendron. The Commission has generally found that the public
    interest would be better served by the provision of a first local
    aural transmission service to the larger community. [^10] In
    addition, we note that Muddy's assertion that Channel 251C3 at
    Brightwood might provide reception service to a larger population is
    irrelevant to our discussion since there is no showing that any of
    the reception service area would be receiving a first or second
    fulltime aural service and thus qualify for a higher allotment
    priority.

12. With respect to Combined Communication's argument that the allotment
    of Channel 251C1 at Madras is an inefficient use of the spectrum,
    that argument was based on the incorrect premise that other
    equivalent channels are available for allotment at Madras. With
    respect to the argument that the proposed Madras allotment imposes
    an undue burden on Station KTWS(FM) by requiring it to change
    channel, we note that we are not convinced that the one-channel
    shift required here will cause enough detriment to the station as to
    outweigh the public benefit in the new station at Madras. Finally,
    as to Combined Communications's concern about reimbursement, Madras
    Broadcasting has committed to such reimbursement, but it is well
    settled that reimbursement will come from the party who benefits
    from the changes; *i.e.,* whoever becomes the permittee on the new
    channel.[^11] Negotiation for reimbursement is to be done privately
    between the parties, and only in the event of a dispute will the
    Commission be involved.[^12]

13. In view of the above, we will allot Channel 251C1 at Madras, Oregon.
    Channel 251C1 can be allotted at Madras consistent with the minimum
    distance separation requirements of Section 73.207 of the
    Commission's Rules at a site 36.6 kilometers (22.7 miles) northeast
    of the community.[^13] To accommodate the allotment at Madras, we
    will substitute Channel 253C3 for Channel 252C3 at Bend, Oregon and
    modify the license for Station KTWS(FM) to reflect the channel
    change. Channel 253C3can be substituted for Channel 252C3 at Bend
    consistent with the Commission's Rules at Station KTWS(FM)'s
    licensed site.[^14] Channel 255C3 can be substituted for Channel
    254C3 at Prineville consistent with the Commission's Rules at the
    vacant allotment site.[^15]

14. 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), and0.283 of the
    Commission's Rules, IT IS ORDERED That effective December 10, 2001,
    the FM Table of Allotments Section 73.202(b) of the Commission's
    Rules, IS AMENDED for the community listed below, as follows:

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

    Madras, Oregon 251C1

    Bend, Oregon 253C3

    Prineville, Oregon 255C3

15. IT IS FURTHER ORDERED That the Secretary of the Commission shall
    send by Certified Mail, Return Receipt Requested, a copy of this
    *Order* to the following:

    Combined Communications

    Station KTWS(FM)

    711 N.E. Butler Market Rd.

    Bend, OR 97701

16. IT IS FURTHER ORDERED That pursuant to Section 316(a) of the
    Communications Act of 1934, as amended, the license of Station
    KTWS(FM) IS MODIFIED to specify operation on Channel 253C3 in lieu
    of Channel 252C3, subject to the following conditions:

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a.  Nothing contained herein shall be construed as authorizing any
    change in license BLH-19950629KC, except for the channel as
    specified above. Any changes, except for those specified, require
    prior authorization pursuant to an application for construction
    permit. (FCC Form 301)

b.  Program tests may be conducted in accordance with the provisions of
    Section 73.1620 of the Rules, PROVIDED the transmission facilities
    comply in all respects with License BLH- 19950629KC, except for the
    channel as specified above, and a license application (Form 302) is
    filed within 10 days of commencement of program tests.

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```
17. A filing window for Channel 251C1 at Madras, Oregon will not be
    opened at this time. Instead, the issue of opening this allotment
    for auction will be addressed by the Commission in a subsequent
    *Order*.

18. The petition for rulemaking filed by Muddy Broadcasting Company
    proposing the allotment of Channel 251C3 at Brightwood, Oregon, IS
    DENIED.

19. IT IS FURTHER ORDERED That this proceeding IS TERMINATED.

20. For further information concerning this proceeding, contact
    Victoria M. McCauley, Mass Media Bureau (202) 418-2180. Questions
    related to the application filing process for Channel 251C1 at
    Madras, Oregon should be addressed to the Audio Services Division,
    Mass Media Bureau (202) 418-2700.

    FEDERAL COMMUNICATIONS COMMISSION

    John A Karousos

    Chief, Allocations Branch

    Policy and Rules Division

    Mass Media Bureau

[^1]: The communities of Madras, Prineville and Bend have been added to
    the caption.

[^2]: 15 FCC Rcd 8964 (2000).

[^3]: Public Notice of the filing of the counterproposal was given on
    September 20, 2000, Report No. 2440.

[^4]: We will accept the comments filed by Combined Communications,
    which were filed one day after the comment deadline. Combined
    Communications states that on the comment deadline it attempted to
    file its comments electronically using the Commission's Electronic
    Comment Filing System ("ECFS") but was informed by the Commission
    that comments could not be filed electronically in this proceeding.
    It therefore sent the comments by overnight courier. Acceptance of
    these comments will allow for a complete record and has not delayed
    resolution of this proceeding.

[^5]: 15 FCC Rcd 22,443 (2000).

[^6]: We note that Muddy filed a motion to strike as untimely Madras
    Broadcasting's responsive comments to Muddy's opposition to its
    counterproposal and Madras Broadcasting opposed the motion to
    strike. Muddy argues that all comments were required to be filed
    within the 15 day time limit set in the Public Notice. We deny the
    motion to strike and accept Madras Broadcasting's comments.
    Consideration of these comments allows us to resolve this proceeding
    on the basis of a complete record and has not delayed resolution of
    this proceeding.

[^7]: *See* *Memorandum Opinion and Order* in MM Docket No. 93-13
    (Blanchard, Louisiana, and Stephens, Arkansa*s*), 10 FCC Rcd 9828
    (FCC, 1995).

[^8]: The FM allotment priorities are: (1) first full-time aural
    service; (2) second full-time aural service; (3) first local
    service; and (4) other public interest matters. \[Co-equal weight is
    given to priorities (2) and (3).\] *See Revision of FM Assignment
    Policies and Procedures*, 90 FCC 2d 88 (FCC 1982).

[^9]: Both Eckhardt and Milne support the allotment of Channel 251C3 to
    Hoodland/Brightwood area, pointing out the benefits to the public
    that a local station would bring. Eckhardt states that he has lived
    in the area and been fire chief for more than nine years. He states
    that the fire district serves approximately 6,000 year-round and
    11,000 seasonal residents and responds to approximately 700 calls a
    year from three stations, including one in Brightwood. According to
    Eckhardt, the area attracts millions of visitors and 4.5 million
    vehicles annually. Milne, an area resident for 23 years, states that
    the area provides the only year-round skiing and snowboarding in
    North America and on a busy weekend can expect as many as 100,000
    people staying in the area. In addition, she states that the Visitor
    Information Center, which is located in Brightwood, is the busiest
    in the state, with over 113,000 visitors last year.

[^10]: *See* *Memorandum Opinion and Order* in MM Docket No. 93-13
    (Blanchard, Louisiana, and Stephens, Arkansa*s*), 10 FCC Rcd 9828
    (FCC, 1995); *Report and Order* in MM Docket No. 95-88 (Rose Hill,
    Trenton, Aurora and Okracoke, North Carolina*)*, 11 FCC Rcd 21223
    (1996), *recon. denied,* 15 FCC Rcd 10739 (2000) *app. for review
    pending.*

[^11]: *Second Report and Order* in Docket 16662 (Circleville, Ohio*)*,
    8 FCC 2d 159 (1967).

[^12]: *Id.*

[^13]: The reference coordinates for Channel 251C1 at Madras, Oregon are
    44-50-02 NL and 120-45-55 WL.

[^14]: The coordinates for Channel 252C3 at Bend, Oregon are 44-04-41 NL
    and 121-19-57 WL.

[^15]: The coordinates for Channel 255C3 at Prineville, Oregon are
    44-13-30 NL and 120-46-30 WL.