**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | MB Docket No. 05-106         |
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| Amendment of Section 73.202(b),  | ** | RM-11196                     |
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| Table of Allotments,             | *  |                              |
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| FM Broadcast Stations.           | ** |                              |
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| (Milner, Ellaville, and Plains,  | *  |                              |
| Georgia)                         | *) |                              |
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**REPORT AND ORDER**

**(Proceeding Terminated)**

**Adopted: November 8, 2005 Released: November 10, 2005**

By the Assistant Chief, Audio Division, Media Bureau:

1\. The Audio Division considers herein the *Notice of Proposed Rule
Making* ("*Notice*")[^1] issued at the request of Linda A. Davidson
("Petitioner") requesting the allotment of Channel 290A at Milner,
Georgia, and Channel 290A at Plains, Georgia, as each community's first
local service. Petitioner filed comments and a Response to Southern
Broadcasting's 'Motion to Deny or Dismiss Petition for Rulemaking.'
Radio Georgia, Inc., licensee of Station WTGA-FM, Channel 266A,
Thomaston, Georgia and Southern Broadcasting Companies, Inc.
(collectively "Joint Parties") filed jointly a counterproposal. SSR
Communications, Inc., ("SSR Communications"), proponent of Channel 295A
at Americus, Georgia, in MB Docket No. 04-328 filed supporting reply
comments. No other comments or counterproposals were received in this
proceeding.

2\. **Background.** The *Notice* proposed the allotment of Channel 290A
at Milner, Georgia, as the community first local service[^2] and Channel
290A at Plains, Georgia, as its first local service.[^3] To accommodate
the proposed Milner allotment, the *Notice* proposed the substitution of
Channel 232A for vacant Channel 290A at Ellaville, Georgia. Petitioner
filed comments restating its interest in the proposed Milner and Plains
allotments.

3\. Prior to release of the *Notice,* Southern Broadcasting filed a
Motion to Deny or Dismiss Petition for Rulemaking, which stated that the
proposed Ellaville transmitter site was infeasible.[^4] In its Response,
Petitioner argues that the proposed reference coordinates for Channel
290A at Milner is available and technically feasible due to the fact of
the issuance of FAA's 'Determination of No Hazard to Air Navigation.'
Moreover, Petitioner submitted an engineering exhibit demonstrating that
replacement Channel 232A at Ellaville at the proposed reference
coordinates covers the entire community of Ellaville in compliance with
Section 73.315 of the Commission's rules.

4\. In response to the *Notice*, The Joint Parties filed a
counterproposal requesting the reallotment of Channel 266A from
Thomaston to Milner, Georgia, as its first local service and
modification of the Station WTGA-FM license accordingly. Additionally,
the Joint Parties proposed the allotment of Channel 295A at Plains,
Georgia, as its first local service; the allotment of Channel 290A at
Oglethorpe, Georgia, as its first local service; and the substitution of
Channel 232A for vacant Channel 290A at Ellaville, Georgia.

5.  SSR Communications, proponent of Channel 295A at Americus, Georgia
    filed reply comments supporting the proposed allotment of Channel
    295A at Plains, Georgia in lieu of Channel 295A at Americus,
    Georgia, which was allotted in MB Docket No. 04-328.[^5] SSR
    Communications filed comments, supporting the allotment of Channel
    295A at Americus, Georgia on October 18, 2004. However, after
    reviewing the Joint Parties' counterproposal it prefers the
    allotment of Channel 295A at Plains rather than Americus. Therefore,
    if Channel 295A is allotted to Plains it seeks to file an
    application for a construction permit to operate a new FM commercial
    broadcast station in Plains.

6.  **Discussion.** The Joint Parties' counterproposal is defective.
    Specifically, the proposed allotment of Channel 295A at Plains is
    short-spaced to Channel 295A at Americus, which was allotted in MB
    Docket No. 04-328. Under these circumstances, the counterproposal is
    untimely and unacceptable for consideration because the
    counterproposal had to be advanced prior to the October 18, 2004
    comment deadline in MB Docket No. 04-328.[^6] A counterproposal must
    be capable of being effectuated when it is filed.[^7] We note that,
    although, SSR Communications filed reply comments in this proceeding
    stating that it prefers the proposed allotment of Channel 295A at
    Plains over Channel 295A at Americus, the entity never filed
    documentation withdrawing its expression of interest in the
    allotment of Channel 295A at Americus, Georgia pursuant to Section
    1.420(j) of the Commission's rules. As such, we concluded that SSR
    Communication's expression of interest in the proposed Plains
    allotment is without merit because of the existence of the valid
    expression of interest filed for the Americus, Georgia allotment in
    MB Docket No. 04-328

7.  We further find that the public interest would be served by
    allotting Channel 290A at Milner, Georgia, as its first local
    service[^8] and Channel 290A at Plains, Georgia, as its first local
    service.[^9] To accommodate the Milner allotment, we will also
    substitute Channel 232A for vacant Channel 290A at Ellaville,
    Georgia.[^10] We note that vacant Channel 290A at Ellaville, Georgia
    is listed as construction permit number FM030 in Auction 62
    rescheduled for January 12, 2006. Accordingly, the auctioned winner
    must file for a construction permit for Channel 232A in lieu Channel
    290A at Ellaville.

8\. The Commission will send a copy of this *Report and Order* in a
report to be sent to Congress and the Government Accountability Office
pursuant to the Congressional Review Act, *see* 5 U.S.C. 801(a)(1)(A).

9\. 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 December 27, 2005, 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:

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

Ellaville, Georgia 232A

Milner, Georgia 290A

Plains, Georgia 290A

10\. The window period for filing applications for Channel 290A at
Milner, Georgia and Channel 290A at Plains, Georgia will not be opened
at this time. Instead, the issue of opening these allotments for auction
will be addressed by the Commission in a subsequent order.

11. IT IS FURTHER ORDERED, That the aforementioned proceeding IS
    TERMINATED.

12. IT IS FURTHER ORDERED, That the counterproposal filed by the Joint
    Parties, IS DISMISSED.

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

FEDERAL COMMUNICATIONS COMMISSION

John A. Karousos

Assistant Chief

Audio Division

Media Bureau

[^1]: *Milner, Ellaville, and Plains, Georgia*, 20 FCC Rcd 6073 (MB
    2005).

[^2]: Plain is an incorporated town located in Plains County, Georgia
    listed in the 2000 U.S. Census with a population of 637 persons.

[^3]: Milner is an incorporated city located in Lamar County, Georgia
    listed in the 2000 U.S. Census with a population of 522 persons.

[^4]: The *Notice* indicated that Southern Broadcasting withdrew this
    argument because the FAA issued a Determination of No Hazard to Air
    Navigation (Aeronautical Study 2004-ASO-4213-OE for the proposed
    Ellaville site, but reserved the right to raise this argument again
    should FAA change its EMI policy. As such, the *Notice* stated that
    at the allotment stage we only require a petitioner to show that a
    theoretical reference site exists from which a station can be
    operated in compliance with the Commission's rules. The reference
    site is presumed to be available and technically feasible but that
    presumption is rebuttable. *San Clemente California*, 3 FCC Rcd 6728
    (MMB 1988), *appeal dismissed sub. nom.*; *Mount Wilson FM
    Broadcasters, Inc. v FCC*, 884 F.2d 1462 (D.C. Cir. 1989); *See
    also, San Clemente, California*, 10 FCC Rcd 8291 (1995).

[^5]: *See Americus and Oglethorpe, Georgia,* 17 FCC Rcd 6676 (2002).

[^6]: *See* 47 C.F.R. § 1.420(d); *see also Milford, Utah,* 19 FCC Rcd
    10335 (MB 2004) and *Pinewood, South Carolina*, 5 FCC Rcd 7609
    (1990).

[^7]: *See Carlisle, Irvine, and Morehead, Kentucky,* 12 FCC Rcd 13181
    (MMB 1997); and *Cloverdale, Montogomery and Warrior, Alabama,* 12
    FCC Rcd 2090 (MMB 1997).

[^8]: Channel 290A can be allotted to Milner in compliance with the
    Commission's rules provided there is a site restriction of 11.9
    kilometers (7.4 miles) northeast at coordinates 33-09-44 NL and
    84-04-51 WL.

[^9]: Channel 290A can be allotted to Plains in compliance with the
    Commission's rules provided there is a site restriction of 14.7
    kilometers (9.1 miles) northeast at coordinates 32-06-51 NL and
    84-16-10 WL.

[^10]: Channel 232A can be allotted to Ellaville in compliance with the
    Commission's rules provided there is a site restriction of 14.5
    kilometers (9.0 miles) east at coordinates 32-16-53 NL and 84-09-52
    WL.