**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Amendment of Section 73.202(b), ) MM Docket No. 01-345

Table of Allotments, ) RM-10344

FM Broadcast Stations. )

(Wickenburg and Salome, Arizona) )

[REPORT AND ORDER]{.underline}

(Proceeding Terminated)

Adopted: April 10, 2002 Released: April 19, 2002

By the Assistant Chief, Audio Division:

1\. Before the Audio Division for consideration is the [Notice of
Proposed Rule Making]{.underline} ("[Notice]{.underline}"), 67 FR 851,
published January 8, 2002, issued in response to a petition filed on
behalf of Circle S Broadcasting Co., Inc. ("Circle S"), licensee of
Station KSWG(FM), Wickenburg, Arizona, proposing the substitution of
Channel 242C for Channel 242C3 at Wickenburg,[^1] and modification of
its authorization accordingly. Additionally, the [Notice]{.underline}
proposed the substitution of Channel 270A for vacant Channel 241A at
Salome, Arizona,[^2] to accommodate the Circle S proposal, as
requested.[^3] Circle S and Wickenburg Associates, LLC ("WAL"), proposed
optionee for Station KSWG(FM), filed joint comments and a
counterproposal, followed by their request to dismiss the
counterproposal and reinstate the original Wickenburg proposal.[^4]
Kevin M. Fitzgerald ("Fitzgerald") filed late comments, accompanied by a
motion to accept.[^5] No additional comments were received.

2\. Fitzgerald advises that he expressed his previous interest in
applying for Channel 241A at Salome, Arizona, during the comment period
for Auction No. 37, and intends to bid thereon once the auction process
resumes. While not objecting to a Class A channel substitution for
Channel 241A at Salome to accommodate the Wickenburg modification
proposal, Fitzgerald requests, however, an alternate channel in lieu of
Channel 270A, as proposed in the [Notice]{.underline}. In support,
Fitzgerald advises that the proposed substitution of Channel 270A for
Channel 241A at Salome would result in a smaller area in which he could
locate his preferred transmitter site. In this regard, Fitzgerald
remarks that operation on Channel 270A from his preferred sites for
Channel 241A would result in short spacing to a Class C allotment in
Sonoyta, Sonora, Mexico, thereby invoking Mexico-U.S. treaty issues.
Therefore, Fitzgerald seeks the substitution of alternate Channel 224A
as a substitute for Channel 241A at Salome, at a restricted site located
8.9 kilometers southeast of the community at coordinates 33-42-19 NL and
113-34-58 WL. Fitzgerald asserts that the replacement of Channel 224A
for existing Channel 241A would provide him with more favorable southern
site locations. Moreover, Fitzgerald claims that a southerly site
location would enable a station operating on Channel 224A to provide
city-grade coverage to Salome, as well as 1 mv/m service to
approximately 60 kilometers (37.2 miles) of Interstate 10. [^6]
Fitzgerald alleges that without coverage of Interstate 10, it would be
economically infeasible to operate a station at Salome.

3\. Initially, we will address Fitzgerald's proposal to substitute
Channel 224A for Channel 241A at Salome instead of Channel 270A, as
proposed in the [Notice]{.underline}. It is the Commission's policy to
consider whichever allotment plan it believes to be more conducive to
serving the public interest. It is not required to allot the preferred
numerical channel of any specific party. See the Appendix to the
[Notice]{.underline}. Moreover, the Commission endeavors to allot
channels at the least theoretical site restriction necessary where an
allotment will be open to applications. [See]{.underline}
[Bordelonville, Louisiana]{.underline}, 16 FCC Rcd 13297 (2001), and
cases cited therein. [See]{.underline} [also]{.underline}, Rangely[,
Silverton and]{.underline} [Ridgway, Colorado]{.underline}, 15 FCC Rcd
18266 (2000), [recon]{.underline}. [denied]{.underline}, 6 FCC Rcd 143
(1991); and [Vacaville, California]{.underline}, 4 FCC Rcd 8315 (1989),
recon. denied, 6 FCC Rcd 143 (1991). In this instance, Fitzgerald
alleges that the location required for Channel 270A at Salome would not
afford the maximum coverage he seeks to provide along Interstate 10.
However, Fitzgerald's proposal for Channel 224A at Salome would require
placement of the transmitter therefor 8.9 kilometers southeast of the
community at coordinates 33-42-19 NL and 113-34-58 WL. Conversely,
Channel 270A can be utilized at Salome at the current reference site for
vacant Channel 241A (i.e, site located 0.1 kilometer north of the
community at coordinates 33-46-54 NL and 113-36-42 WL). While we
recognize that no two channels are exactly the same, the Commission
considers channels to be equivalent provided they are of the same class
distinction, would comply with the minimum spacing criteria, and would
enable a broadcast facility to comply with the requirements of Section
73.315 of the Commission's Rules to provide 70 dBu coverage over the
proposed allotment community. [See Vero Beach, Florida]{.underline}, 3
FCC Rcd 1049 (1988), [rev]{.underline}. [denied]{.underline}, 4 FCC Rcd
2184, 2185 (1989).[^7]

4\. As to Fitzgerald's argument concerning the need to cover Interstate
10 to ensure the economic feasibility of a station to operate at Salome,
the Commission has previously determined that economic issues are not
relevant in the allotment or licensing context. [See]{.underline}
[Policies Regarding Detrimental Effects of Proposed New Broadcast
Stations on Existing Stations]{.underline}, 3 FCC Rcd 638 (1988),
[recon.]{.underline} [denied]{.underline}, 4 FCC Rcd 2276 (1989);
[see]{.underline} [also]{.underline}, [Potts Camp and Saltillo,
Mississippi]{.underline}, 13 FCC Rcd 11909 (1998), [rev]{.underline}.
[denied]{.underline}, 66 FR 56038, November 6, 2001; [Albion,
Nebraska]{.underline}, 10 FCC Rcd 33183 (1995), [rev]{.underline}.
[denied]{.underline}, 10 FCC Rcd 11927 (1995); and [Cheyenne,
Wyoming]{.underline}, 8 FCC Rcd 4473 (1993). Moreover, it is the
licensee's primary obligation to serve the needs and interests of the
community to which it is licensed.[^8] Therefore, based upon the
foregoing, we will not substitute Channel 224A for Channel 241A at
Salome, as requested by Fitzgerald.

5\. In light of the withdrawal of the joint counterproposal filed by
Circle S and WAL,

we consider the merits of the Circle S modification proposal. In light
of the information presented in this proceeding, we believe the public
interest would be served by substituting Channel 242C for Channel 242C3
at Wickenburg and modifying the license for Station KSWG(FM), as
requested. As stated in the [Notice]{.underline}, the modification will
enable Station KSWG(FM) to increase its service area, creating a gain of
service to 78,588 people in an area of 11,618 square kilometers.
Additionally, to accommodate the modification for Station KSWG(FM) at
Wickenburg. we will substitute Channel 270A for vacant Channel 241A at
Salome, Arizona,

6\. Channel 242C can be allotted to Wickenburg in conformity with the
minimum distance separation requirements of Section 73.207(b) of the
Commission's Rules, at the requested site of Circle S, located 24.6
kilometers (15.3 miles) west of the community at coordinates 33-54-15 NL
and 112-59-02 WL. Additionally, Channel 270A can be substituted for
Channel 241A at Salome, Arizona, at the current reference site for the
vacant allotment, located 0.1 kilometer (0.04 mile) north of the
community, at coordinates 33-46-54 NL and 113-36-42 WL.

7\. As Wickenburg and Salome are each located within 320 kilometers (199
miles) of the U.S.-Mexico border, concurrence in the specified
allotments has been requested. However, final notification approval from
the Mexican government has not been received. Rather than delay Circle S
an opportunity to file its modification application, we now substitute
Channel 242C for Channel 242C3 at Wickenburg. We also substitute Channel
270A for vacant Channel 241A at Salome. If a construction permit is
granted on Channel 242C at Wickenburg or Channel 270A at Salome prior to
the receipt of formal concurrence in the allotments by the Mexican
government, the authorizations will include the following condition:
"Operation with the facilities specified herein is subject to
modification, suspension, or termination without right to a hearing if
found by the Commission to be necessary in order to conform to the 1992
USA-Mexico FM Broadcast Agreement, or if specifically objected to by
Mexico."

8\. 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 June 3, 2002, the FM Table of
Allotments, Section 73.202(b) of the Commission\'s Rules, IS AMENDED
with respect to the communities listed below, as follows:

> [City]{.underline} [Channel No.]{.underline}
>
> Salome, Arizona 270A

Wickenburg, Arizona 242C, 287C2

9\. IT IS FURTHER ORDERED, That pursuant to Section 316(a) of the
Communications Act of 1934, as amended, the license of Circle S
Broadcasting, Inc. for Station KSWG(FM), IS MODIFIED to specify
operation on Channel 242C in lieu of Channel 242C3 at Wickenburg,
Arizona, 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), 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.

10\. Pursuant to Commission Rule Section 1.1104(1)(k) and (3)(m), any
party seeking a change in community of license of a television or FM
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, Circle S Broadcasting Co., Inc., licensee of Station
KSWG(FM), is required to submit a rule making fee in addition to the fee
required for the applications to effect the upgrade at Wickenburg,
Arizona.

11\. IT IS FURTHER ORDERED, That the Commission\'s Consumer and
Governmental Affairs Bureau, Reference Information Center, SHALL SEND a
copy of this [Report and Order]{.underline} by Certified Mail, Return
Receipt Requested, to Circle S Broadcasting Co., Inc., 801 West
Wickenburg Way, Wickenburg, Arizona 85390.

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

13\. A filing window for Channel 270A at Salome, Arizona, 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.

14\. For further information concerning the above, contact Nancy Joyner,
Media Bureau, (202) 418-2180.

> FEDERAL COMMUNICATIONS COMMISSION
>
> John A. Karousos, Assistant Chief
>
> Audio Division
>
> Office of Broadcast License Policy
>
> Media Bureau

[^1]: The license for Station KSWG(FM) was modified from Channel 231C3
    to Channel 242C3 effective October 9, 2001. See 16 FCC Rcd 15793
    (2001).

[^2]: ^?^ Channel 241A at Salome was listed among other vacant
    nonreserved band FM allotments, in Broadcast Auction No. 37,
    previously scheduled to commence on December 5, 2001. However, on
    July 3, 2001, the United States Court of Appeals for the District of
    Columbia Circuit in *National Public Radio, Inc., et al. v. FCC,
    Nos. 00-1246, 00-1255* (decided July 3, 2001) ("NPR") vacated the
    portion of the Commission's Noncommercial Report and Order, 65 FR
    36375 (June 8, 2000), that required noncommercial educational
    ("NCE") entities that applied for authorizations in the non-reserved
    spectrum to participate in auctions with mutually exclusive
    commercial applicants. As the vacant nonreserved FM band allotments
    included in Auction No. 37 are potentially impacted by *NPR*, the
    Commission postponed Auction No. 37 pending its response to the
    *NPR* decision. See Public Notice DA 01-2148, released September 14,
    2001, 66 FR 48467, September 20, 2001.

[^3]: ^?^ Wickenburg and Salome are located 59.7 kilometers (37 miles)
    whereas a distance of 165 kilometers (103 miles) is required in this
    instance.

[^4]: ^?^ Circle S and WAL's joint counterproposal involves the
    additional community of Surprise, Arizona. On March 5, 2002, Circle
    S and WAL withdrew their counterproposal in favor of retaining the
    original modification request at Wickenburg. Therefore, the
    counterproposal was not placed on public notice. Additionally,
    Circle S provided a declaration by Harold Shumway, a principal of
    Circle S, stating that he, nor any other principals of Circle S,
    have received or will receive any financial consideration in
    exchange for the withdrawal of the Surprise counterproposal. As
    Circle S has complied with the requirements of Section 1.420(j) of
    the Commission's Rules, we will consider only the Wickenburg
    modification proposal.

[^5]: ^?^ The Commission does not generally contemplate the filing of
    comments beyond the deadline specified in a proceeding. See Section
    1.415 of the Commission's Rules. However, in this instance, we have
    accepted Fitzgerald's comments since they will not affect the
    outcome of this proceeding.

[^6]: ^?^ Fitzgerald advises that Interstate 10 is the main corridor
    between Phoenix, Arizona and southern California.

[^7]: We also indicated in [Vero Beach]{.underline} that we would
    consider other pertinent factors which might preclude a finding of
    channel equivalency, such as aeronautical hazards or environmental
    effects which would prevent a station from constructing on a
    particular channel. However, no showings or testimony from local
    zoning officials or environmental groups was presented herein to
    substantiate that a station could not be constructed on Channel 270A
    within the specified area at Salome.

[^8]: ^?^ See Section 73.1120 of the Commissions' Rules.