**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | MB Docket No. 03-144         |
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| Amendment of Section 73.202(b),  | ** | RM-10733                     |
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| Table of Allotments,             | *  | RM-10788                     |
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| FM Broadcast Stations.           | ** | RM-10789                     |
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| (Gunnison, Crawford, and Olathe, | *  |                              |
| Breckenridge, Eagle, Fort        | *) |                              |
| Morgan, Greenwood Village,       | ** |                              |
| Loveland, and Strasburg,         |    |                              |
| Colorado, and Laramie,           | *  |                              |
| Wyoming)[^1]                     | *) |                              |
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**REPORT AND ORDER**

**(Proceeding Terminated)**

**Adopted: September 15, 2004 Released: September 20, 2004**

By the Chief, Audio Division:

1\. The Audio Division has before it the *Notice of Proposed Rule
Making* [^2] issued at the request of Dana J. Puopolo ("Petitioner").
Petitioner filed comments. Mayflower-Crawford Broadcasters ("MCB") filed
a counterproposal.[^3] Petitioner filed reply comments in response to
the counterproposal, which MCB filed responsive comments. Lenora
Alexander, former licensee of FM Station KAGM; KAGM Joint Venture,
proposed licensee of Station KAGM;[^4] and On-Air Family, LLC, licensee
of Station KBRU-FM, Channel 268C, Fort Morgan, Colorado (collectively
"Joint Petitioners") filed a separate Petition for Rule Making
("Petition"), which conflicts with the MCB counterproposal. KAGM, LLC
filed reply comments to the *Public Notice.* No other comments or
counterproposals were received in this proceeding.

2.  **Background.** The *Notice* proposed the allotment of Channel 299C3
    at Gunnison, Colorado, as that community's fourth local service. In
    response to the *Notice,* Petitioner filed comments, reiterating an
    intention to apply for Channel 299C3 at Gunnison, if allotted. MCB
    timely filed a counterproposal requesting the allotment of Channel
    272C2 to Crawford, Colorado, as its first local service. To
    accommodate the allotment at Crawford, MCB also requests the
    substitution of Channel 299A for Channel 272A at Station KVLE-FM,
    Gunnison, Colorado.[^5] This proposed substitution conflicts with
    the proposed Channel 299C3 allotment at Gunnison. In addition, MCB
    requests a change in reference coordinates for vacant Channel 270C2
    at Olathe, Colorado.[^6]

3.  In a related context, the Joint Petitioners filed a Petition prior
    to the August 22, 2003 comment date in this proceeding. The Joint
    Petitioners proposed the reallotment of Channel 272A from Strasburg
    to Greenwood Village, Colorado, as its first local service, and
    modification of the license of FM Station KAGM to reflect this
    change. The proposed Greenwood Village reallotment requires the
    substitution of Channel 268C for Channel 269A at Fort Morgan,
    Colorado, reallotment of Channel 268C from Fort Morgan to Strasburg,
    Colorado, and modification of the license for Station KBRU-FM to
    prevent removal of Strasburg's sole local existing service;[^7] and
    the relocation of the transmitter sites for Station KSMT-FM, Channel
    272A, Breckenridge, Colorado and Station KTRR-FM, Channel 273C2,
    Loveland, Colorado.[^8] To facilitate Station KSMT-FM relocation,
    the Joint Petitioners requested to relocate the transmitter site of
    FM Station KTUN, Channel 269C1, Eagle Colorado, and modify its
    license to reflect this change.[^9] Moreover, the relocation of
    Station KTRR-FM requires the relocation of transmitter site for
    Station KARS-FM, Channel 275C1, Laramie, Wyoming, and modification
    of its license accordingly.[^10] Station KSMT-FM relocation
    conflicts with the proposed allotment of Channel 272C2 at Crawford.
    As such, we will consider this Petition as a counterproposal in this
    proceeding because of its mutual exclusivity.

4\. **Discussion.** Joint Petitioners' proposal involves short-spacings
to four authorized stations. To eliminate the Section 73.207 violations,
the four stations have agreed to the "relocation" of their respective
"transmitter site reference points" and pledged to file applications to
implement the proposed relocations in the event the Joint Petitioners'
proposal is adopted.

5\. The rules do not permit the acceptance of proffers of hypothetical
transmitter site relocations to change reference points for licensed
stations. Section 73.207 of the Commission's rules establishes minimum
distance separations between and among allotments and assignments in the
non-reserved FM band.[^11] Section 73.208(a) sets forth a hierarchy of
reference points that "*must* be used"[^12] in FM allotment proceedings
to determine compliance with Section 73.207 protection standards. The
"first"[^13] of these, applicable here, is authorized transmitter sites.
As a result, these stations cannot avail themselves of the reference
point relocation provisions of Section 73.208(a)(2). That subsection is
explicitly limited to calculations based on "community reference points"
of proposed and vacant allotments rather than "transmitter sites" of
authorized stations. We recognize that the staff has accepted these
fictional reference points in prior decisions, essentially permitting
licensed stations to selectively exempt themselves from the foundational
requirement of full Section 73.207 spacing in FM allotment proceedings.
[^14] This practice however, is contrary to the plain language of the
rule and those cases are overruled. Accordingly, the reference point
relocation proffer is without effect and the Joint Petitioners' proposal
is hereby dismissed for failure to comply with the minimum spacing
requirements of Section 73.207.

6\. The MCB counterproposal is mutually exclusive with the *Notice's*
proposal to allot Channel 299C3 at Gunnison. Since there are no
alternative channels available, it is necessary to evaluate the
*Notice's* proposal for Channel 299C3 at Gunnison, as its fourth local
service against the MCB counterproposal for Channel 272C2 at Crawford,
as its first local service. This evaluation is based upon the FM
allotment priorities set forth in *Revision of FM Assignment Policies
and Procedures.*[^15] In this instance, a first local service at
Crawford (priority 3) is preferred over a fourth local service at
Gunnison (priority 4).

7\. Accordingly, we are allotting Channel 272C2 at Crawford, as its
first local service.[^16] Moreover, we are substituting Channel 299A for
Channel 272A at Station KVLE-FM, Gunnison, Colorado since no responsive
comments relating to the show cause order was filed by Pilgrim
Communications, Inc.[^17] MCB has agreed to reimburse Pilgrim
Communications, Inc. for the reasonable costs incurred in connection
with the change of Station KVLE-FM channel. In addition, we are changing
the reference coordinates for vacant Channel 270C2 at Olathe,
Colorado.[^18] Channel 272C2 can be allotted to Crawford, consistent
with the minimum distance separation requirements of the Commission's
rules provided there is a site restriction of 20.9 kilometers (13.0
miles) southeast of the community.[^19] The Commission will send a copy
of this *Report and Order* in a report to be sent to Congress and the
General Accounting Office pursuant to the Congressional Review Act,
*see* 5 U.S.C. 801(a)(1)(A).

8\. Accordingly, pursuant to the authority found in 47 U.S.C. Sections
4(i), 5(c)(1), 303(g) and (r) and 307(b) and 47 C.F.R. Sections 0.61,
0.204(b) and 0.283, IT IS ORDERED, That effective November 5, 2004, the
FM Table of Allotments, 47 C.F.R. Section 73.202(b), IS AMENDED, with
respect to the communities listed below, to read as follows:

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

Crawford, Colorado 272C2

Gunnison, Colorado 252C3, 299A

9\. IT IS FURTHER ORDERED, That pursuant to 47 U.S.C. Section 316(a) the
authorization of Pilgrim Communications, Inc. for Station KVLE-FM,
Channel 272A, Gunnison, Colorado, IS MODIFIED to specify operation on
Channel 299A at Gunnison, Colorado, subject to the following conditions:

> \(a\) Within 90 days of the effective date of the *Order*, the
> licensee
>
> of Station KVLE-FM shall submit to the Commission a minor change
>
> application for a construction permit (Form 301), specifying the
>
> new facility;
>
> \(b\) Upon grant of the construction permit, program tests may be
>
> conducted in accordance with Section 73.1620; and
>
> \(c\) 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, unless the proposed facilities are
>
> categorically excluded from environmental processing.

10\. The window period for filing applications for Channel 272C2 at
Crawford, Colorado 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.

11\. IT IS ORDERED, That the Petition for Rulemaking filed by Dana J.
Puopolo IS DENIED.

12\. IT IS ORDERED, That the Petition for Rulemaking jointly filed by
Lenora Alexander, KAGM Joint Venture, and On-Air Family, LLC IS
DISMISSED.

13\. IT IS FURTHER ORDERED, That the aforementioned proceeding IS
TERMINATED

14\. For further information concerning this proceeding, contact Rolanda
F. Smith, Media Bureau, (202) 418-2180.

FEDERAL COMMUNICATIONS COMMISSION

Peter H. Doyle

Chief, Audio Division

Media Bureau

[^1]: Crawford, Olathe, Breckenridge, Eagle, Fort Morgan, Greenwood
    Village, Loveland, and Strasburg, Colorado, and Laramie, Wyoming
    have been added to the caption. *See Public Notice*, Report No. 2629
    released September 16, 2003.

[^2]: *See* *Gunnison, Colorado,* 18 FCC Rcd 12696 (MB 2003)
    ("*Notice")*.

[^3]: After issuance of the *Public Notice,* MCB filed a Request for
    Approval of Withdrawal of Counterproposal ("Request"). However, MCB
    recently filed a Reinstatement of Interest in its counterproposal.
    Petitioner subsequently filed, an Opposition to MCB Reinstatement of
    Interest. Given the fact that we have not acted on the withdrawal
    request, we will continue to consider the MCB counterproposal in the
    context of this proceeding.

[^4]: KAGM, LLC became the licensee of Station KAGM on May 19, 2003.
    [See]{.underline} BALH-20030429ABI.

[^5]: In response, we issued an *Order to Show Cause* to Pilgrim
    Communications, Inc., licensee of Station KVLE-FM, Channel 272A,
    Crawford, Colorado. *See* *Gunnison, Crawford, and Olathe,
    Breckenridge, Eagle, Fort Morgan, Greenwood Village, Loveland, and
    Strasburg, Colorado, and Laramie, WY,* 18 FCC Rcd 20070 (MB 2003).
    Pilgrim Communications, Inc. filed no responsive comments.

[^6]: The proposed reference coordinates for Channel 270C2 at Olathe, CO
    are 38-26-25 NL and 108-09-47 WL. This site requires a site
    restriction 15.8 kilometers (9.8 miles) west of the community.

[^7]: Station KBRU-FM was granted a construction permit to specify
    operation on Channel 268C in lieu of Channel 269A at Fort Morgan,
    Colorado. *See* BPH-20020813ABJ. The FM Table of Allotments reflects
    this change. *See Various Locations*, 18 FCC Rcd 19203 (MB 2003).
    Additionally, the reallotment of Channel 268C to Strasburg, Colorado
    requires the reclassification of Station KOLT-FM, Bridgeport,
    Nebraska to C0 facilities. This occurred on August 29, 2003. *See*
    BLH-20010827AAD.

[^8]: In this regard, Rocky Mountain Broadcasting I, LLC, licensee of
    Station KSMT-FM and Regent Broadcasting of Ft. Collins, Inc.,
    licensee of FM Station KTRR have consented to the relocation of
    their respective transmitter sites.

[^9]: Salisbury Broadcasting Colorado, LLP, licensee of FM Station KTUN
    has consented to these proposed changes. The Channel 269C1
    substitution at Eagle was originally proposed in the petition,
    however Station KTUN-FM was later granted a construction permit to
    specify operation on Channel 269C1 instead of Channel 268C at Eagle,
    Colorado. *See* BPH-20020813ABK. The FM Table of Allotments reflects
    this change. *See Various Locations*, 18 FCC Rcd 19203 (MB 2003).

[^10]: AGM-Nevada, LLC, licensee of Station KARS-FM has consented to
    these changes. The Channel 275C1 at Laramie was also originally
    proposed in the petition, but Station KARS-FM was also later granted
    a construction permit to specify operation on Channel 275C1 in lieu
    of Channel 275C at Laramie, Wyoming. *See* BMPH-20020926ABK.

[^11]: 47 C.F.R. § 73.207.

[^12]: *Id.* § 73.208(a)(1) (emphasis added).

[^13]: *Id*. § 73.208(a)(1)(i). *See, e.g., Sibley, Iowa, and Brandon,
    South Dakota,* 13 FCC Rcd 22209, 22210 (M.M.Bur. 1998) (rejecting
    short-spacing argument predicated on allotment reference
    coordinates; rulemaking petition is fully spaced to construction
    permit site, "the first applicable reference point" under Section
    73.208.)

[^14]: *See e.g., Auburn, Alabama et.al,* 18 FCC Rcd 10333 (MB 2003),
    *Old Fort, Fletcher, and Asheville, North Carolina; Surgoinsville,
    Tennessee, and Augusta, Georgia*, 18 FCC Rcd 12181 (MB 2003) and
    *Ft. Myers Villas, Indiantown, Jupiter, Key Colony Beach, Naples and
    Tice, Florida,* 13 FCC Rcd 15542 (MMB 1998).

[^15]: The FM Allotment priorities are (1) First full-time aural
    service. (2) Second full-time aural service. (3) First local
    service. (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, 91 (1988).

[^16]: Crawford was incorporated in 1910 and is listed as a town in the
    2000 U.S. Census with a population of 366 persons. Crawford has its
    own airport, library, fire department, chamber of commerce, post
    office and zip code (81415). Crawford also has several churches and
    businesses.

[^17]: Station KVLE-FM license at Gunnison, Colorado can be modified to
    specify operation on Channel 299A at its current authorized
    transmitter site (BLH-19800425AB). The coordinates for Channel 299A
    at Gunnison, Colorado are 38-33-53 NL and 106-55-38 WL.

[^18]: The reference coordinates for Channel 270C2 at Olathe, CO are
    38-26-25 NL and 108-09-47 WL. This site requires a site restriction
    15.8 kilometers (9.8 miles) west of the community.

[^19]: The reference coordinates for Channel 272C2 at Crawford are
    38-32-05 North Latitude and 107-30-27 West Longitude.