**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Amendment of Section 73.202(b), ) MB Docket No. 04-217

Table of Allotments, ) RM-10863

FM Broadcast Stations. )

(Clayton, Georgia and Sylva, North Carolina) )

**NOTICE OF PROPOSED RULE MAKING**

**Adopted: June 8, 2004 Released: June 10, 2004**

**Comment Date: August 2, 2004**

**Reply Comment Date: August 17, 2004**

By the Assistant Chief, Audio Division:

1\. The Audio Division has before it a petition for rule making filed by
Sutton Radiocasting Corporation, ("Petitioner"), licensee of Station
WRBN(FM) ("WRBN"), Channel 281A, Clayton, Georgia. Petitioner seeks to
amend the FM Table of Allotments by reallotting Channel 281A from
Clayton, Georgia, to Sylva, North Carolina, and modifying Station WRBN's
license accordingly. This reallotment of Channel 281A will provide Sylva
with its second local aural transmission service. Petitioner states that
if the Commission grants its petition for rule making, Petitioner will
file an application to effectuate its proposal.

2\. Petitioner seeks to invoke the provisions of Section 1.420(i) of the
Commission's rules which permits the modification of a station's
authorization to specify a new community of license without affording
other interested parties an opportunity to file competing expressions of
interest.[^1] The proposed use of Channel 281A at Sylva, North Carolina,
is mutually exclusive with Station WRBN's existing authorization at
Clayton, Georgia.

3\. Petitioner asserts that the adoption of its proposal will result in
a preferential arrangement of FM allotments consistent with the FM
allotment priorities set forth in *Revision of FM Assignment Policies
and Procedures*,[^2] by providing the larger community of Sylva, North
Carolina, (2000 U.S. Census population of 2,435), with its second local
aural transmission service. Petition also observes that the allotment of
Channel 281A to Sylva would not deprive the smaller community of
Clayton, Georgia (2000 U.S. Census population of 2,019), of its sole
local transmission outlet, because Clayton will retain local service
from AM Station WGHC.

4\. Since Petitioner's reallotment proposal involves a transmitter site
change, there will be gain and loss areas for Station WRBN. Both the
loss and gain areas cover 2,323 square kilometers. The Petitioner's
proposal will create a net gain of 33,578 people served. Both the gain
and loss areas are already well-served with 5 or more radio broadcast
services. Because Petitioner's proposal is consistent with the
provisions of Section 1.420(i) of the Commission's rules, we shall
propose to modify the authorization of Station WRBN without entertaining
competing expressions of interest in the use of Channel 281A at Sylva,
North Carolina, or requiring Petitioner to demonstrate the availability
of an additional equivalent channel for use by other parties.

5\. Consistent with the technical requirements of the Commission's
Rules, Channel 281A can be allotted to Sylva, North Carolina, utilizing
coordinates of 35-19-40 NL and 83-20-11 WL, with a site restriction of
11.2 kilometers (7.0 miles) southwest of Sylva. We note that the
populations of Clayton, Georgia and Sylva, North Carolina do not differ
greatly and that each community is currently served by an AM
Station.[^3] Since providing a second local aural transmission service
to Clayton or Sylva would fall under priority (4) "other public interest
matters" of the FM allotment priorities, we request Petitioner to
demonstrate what public interest benefits would be provided by moving
Clayton's only fulltime broadcast station, namely Station WRBN, to
Sylva. Such a reallotment would result in Clayton losing its only local
nighttime transmission service, while providing Sylva with two fulltime
stations. It would appear that this reallotment would not result in a
preferential arrangement of allotments.[^4] However, Petitioner is
invited to submit comments on this issue. In this regard, since both the
gain and loss areas that result from reallotting Channel 281A from
Clayton to Sylva are already well-served with five or more fulltime
services, the fact that Petitioners' proposal will create a net gain of
33,578 persons served does not appear to be a significant public
interest factor.

6\. Accordingly, we seek comments on the proposed amendment to the FM
Table of Allotments, Section 73.202(b) of the Commission's Rules, with
respect to the communities listed below, as follows:

[Channel Nos.]{.underline}

[City]{.underline} [Present]{.underline} [Proposed]{.underline}

Clayton, Georgia 281A \-\-\-\-\-\-\--

Sylva, North Carolina \-\-\-\-\-\-\-- 281A

7\. The Commission\'s authority to institute rule making proceedings,
showings required, cut-off procedures, and filing requirements are
contained in the attached Appendix and are incorporated by reference
herein. In particular, we note that a showing of continuing interest is
required by paragraph 2 of the Appendix before a channel will be
allotted.

8\. Pursuant to Sections 1.415 and 1.419 of the Commission's Rules,
interested parties may file comments on or before August 2, 2004, and
reply comments on or before August 17, 2004, and are advised to read the
Appendix for the proper procedures. Comments should be filed with the
Federal Communications Commission, Office of the Secretary, 445 Twelfth
Street, SW, TW-A325, Washington, D.C. 20554. Additionally, a copy of
such comments should be served on Petitioner's counsel, as follows:

John F. Garziglia. Esq.

Womble Carlyle Sandridge & Rice, PLLC

1401 I Street, N.W., 7^th^ Floor

Washington, D.C. 20005

9\. Parties must file an original and four paper copies of each filing.
Filings can be sent by hand or messenger delivery, by commercial
overnight courier, or by first-class or overnight U.S. Postal Service
mail (although we continue to experience delays in receiving U.S. Postal
Service mail). The Commission's contractor, Natek, Inc., will receive
hand-delivered or messenger-delivered paper filings for the Commission's
Secretary at 236 Massachusetts Avenue, N.E., Suite 110, Washington, D.C.
20002. The filing hours at this location are 8:00 a.m. to 7:00 p.m. All
hand deliveries must be held together with rubber bands or fasteners.
Any envelopes must be disposed of before entering the building.
Commercial overnight mail (other than U.S. Postal Service Express Mail
or Priority Mail) must be sent to 9300 East Hampton Drive, Capitol
Heights, MD 20743. U.S. Postal Service first-class mail, Express Mail,
and Priority Mail should be addressed to 445 12^th^ Street, SW,
Washington, D.C. 20554. All filings must be addressed to the
Commission's Secretary, Office of the Secretary, Federal Communications
Commission.

10\. The Commission has determined that the relevant provisions of the
Regulatory Flexibility Act of 1980 do not apply to rule making
proceedings to amend the FM Table of Allotments, Section 73.202(b) of
the Commission\'s Rules.[^5]

11\. For further information concerning this proceeding, contact R.
Barthen Gorman, Media Bureau, (202) 418-2180. For purposes of this
restricted notice and comment rule making proceeding, members of the
public are advised that no *ex parte* presentations are permitted from
the time the Commission adopts a Notice of Proposed Rule Making until
the proceeding has been decided and such decision is no longer subject
to reconsideration by the Commission or review by any court. An *ex
parte* presentation is not prohibited if specifically requested by the
Commission or staff for the clarification or adduction of evidence or
resolution of issues in the proceeding. However, any new written
information elicited from such a request or a summary of any new oral
information shall be served by the person making the presentation upon
the other parties to the proceeding unless the Commission specifically
waives this service requirement.

Any comment, which has not been served on the petitioner, constitutes an
*ex parte* presentation and shall not be considered in the proceeding.
Any reply comment that has not been served on the person(s) who filed
the comment to which the reply is directed, constitutes an *ex parte*
presentation and shall not be considered in the proceeding.

FEDERAL COMMUNICATIONS COMMISSION

John A. Karousos

Assistant Chief, Audio Division Media Bureau

Attachment: Appendix

[APPENDIX]{.underline}

1\. Pursuant to 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
PROPOSED TO AMEND the FM Table of Allotments, Section 73.202(b) of the
Commission\'s Rules and Regulations, as set forth in the *Notice of
Proposed Rule Making* to which this Appendix is attached.

2\. [Showings Required]{.underline}. Comments are invited on the
proposal discussed in the *Notice of Proposed Rule Making* to which this
Appendix is attached. Proponent will be expected to answer whatever
questions are presented in initial comments. The proponent of a proposed
allotment is also expected to file comments even if it only resubmits or
incorporates by reference its former pleadings. It should also restate
its present intention to apply for the channel if it is allotted and, if
authorized, to build a station promptly. Failure to file may lead to
denial of the request.

3\. [Cut-off Procedures]{.underline}. The following procedures will
govern the consideration of filings in this proceeding.

\(a\) Counterproposals advanced in this proceeding itself will be
considered, if advanced in initial comments, so that parties may comment
on them in reply comments. They will not be considered if advanced in
reply comments. (See Section 1.420(d) of the Commission\'s Rules.)

\(b\) With respect to petitions for rule making which conflict with the
proposal in this [Notice]{.underline}, they will be considered as
comments in the proceeding, and Public Notice to this effect will be
given as long as they are filed before the date for filing initial
comments herein. If they are filed later than that, they will not be
considered in connection with the decision in this docket.

\(c\) The filing of a counterproposal may lead the Commission to allot a
different channel than was requested for any of the communities
involved.

4\. [Comments and Reply Comments; Service]{.underline}. Pursuant to
applicable procedures set out in Sections 1.415 and 1.420 of the
Commission\'s Rules and Regulations, interested parties may file
comments and reply comments on or before the dates set forth in the
*Notice of Proposed Rule Making* to which this Appendix is attached. All
submissions by parties to this proceeding or by persons acting on behalf
of such parties must be made in written comments, reply comments, or
other appropriate pleadings. Comments shall be served on the petitioner
by the person filing the comments. Reply comments shall be served on the
person who filed comments to which the reply is directed. Such comments
and reply comments shall be accompanied by a certificate of service.
(See Section 1.420(a), (b) and (c) of the Commission\'s Rules.) Comments
should be filed with the Secretary, Federal Communications Commission,
Washington, D.C. 20554.

5\. [Number of Copies]{.underline}. In accordance with the provisions of
Section 1.420 of the Commission\'s Rules and Regulations, an original
and four copies of all comments, reply comments, pleadings, briefs, or
other documents shall be furnished the Commission.

6\. [Public Inspection of Filings.]{.underline} All filings made in this
proceeding will be available for examination by interested parties
during regular business hours in the Commission\'s Reference Information
Center (Room CY-A257), at its headquarters, 445 Twelfth Street, SW,
Washington, D.C.

[^1]: *See Modification of FM and TV Authorizations to Specify a New
    Community of License*, 4 FCC Rcd 4870 (1989), *recon. granted in
    part*, 5 FCC Rcd 7094 (1990).

[^2]: 90 FCC 2d 88 (1982)*.* 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. Equal
    weight is given to priorities (2) and (3).

[^3]: Sylva is served by fulltime AM Station WRGC, whereas Clayton is
    served by daytime AM station WGHC.

[^4]: ^?^ *See* *Royston and Commerce, Georgia*, 15 FCC Rcd 5676 (MMB
    2000).

[^5]: *See Certification that Sections 603 and 604 of the Regulatory
    Flexibility Act Do Not Apply to Rule Making to Amend Sections
    73.202(b) and 73.606(b) of the Commission's Rules*, 46 FR 11549,
    February 9, 1981.