**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Amendment of Section 73.202(b), ) MM Docket No. 00-101

Table of Allotments, ) RM-9885

FM Broadcast Stations. )

(Sparta and Buckhead, Georgia) )

**[REPORT AND ORDER]{.underline}**

**(Proceeding Terminated)**

**Adopted: October 25, 2000 Released: November 3, 2000**

By the Chief, Allocations Branch:

1\. At the request of Barinowski Investment Company (\"petitioner\"),
the Commission has before it the [Notice of Proposed Rule
Making]{.underline}, 15 FCC Rcd 9474 (2000), proposing the substitution
of Channel 274C3 for Channel 274A, its reallotment from Sparta to
Buckhead, Georgia, as the community\'s first local aural service, and
the modification of Station WPMA(FM)\'s license accordingly. Comments
were filed by the petitioner. No other comments were received. For the
reasons discussed below, we deny the proposed reallotment and license
modification.

2\. Petitioner\'s request was filed pursuant to Section 1.420(i) of the
Commission\'s Rules which allows 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. [See]{.underline}, [Modification of FM and TV Authorizations
to Specify a New Community of License]{.underline} (\"[Community of
License R&O]{.underline}\"), 4 FCC Rcd 4870 (1989), [recon. granted in
part]{.underline} (\"[Community of License MO&O]{.underline}\"), 5 FCC
Rcd 7094 (1990). In considering a reallotment proposal, we compare the
existing allotment versus the proposed allotment to determine whether
the reallotment will result in a preferential arrangement of allotments.
This determination is based upon the FM allotment priorities set forth
in [Revision of FM Allotment Policies and Procedures]{.underline} (\"[FM
Priorities]{.underline}\"), 90 FCC 2d 88 (1982). In making the
evaluation, we consider the \"totality of factors.\" [LaGrange and
Rollingwood, Texas]{.underline}, 10 FCC Rcd 3337 (1995).

3\. As stated in the [Notice]{.underline}, Buckhead is incorporated and
listed in the 1990 U.S. Census as having a population of 176 people,
with its own post office and zip code. However, petitioner was requested
to furnish additional demographic information in order to determine
whether it qualified as a community for allotment purposes as we were
unable to determine that it had any other indicia of community status
beyond four churches and two restaurants. In response, petitioner states
that Buckhead, with established geographic boundaries, is governed by a
mayor and town council, has a town hall, volunteer fire department, two
recreational parks, four churches, a Rotary Club, the Steffen Thomas
Museum and Archives, a little league baseball team, its own cable
television system and many businesses.[^1] Petitioner also states that
children generally attend the Morgan County Public Schools but that a
private school, The Buckhead Academy, is located in the community.
Petitioner contends that Buckhead is experiencing a substantial increase
in population due to the development of the 19,000 acre Lake Oconee. As
a result of this growth, a new town charter was adopted by the Georgia
House of Representatives and signed into law in 1999 by the Governor,
and in 1998 was added to the list of communities in the National Flood
Insurance Program in 1998. To accommodate the growth in Buckhead and the
Lake Oconee region, we are told that Buckhead is also the proposed site
for a new asphalt plant that will provide building materials. Therefore,
petitioner submits that the 1990 U.S. Census population figure is no
longer accurate. It notes that the Lake Oconee area is served by several
telephone companies and the Pinnacle Telephone Company, Inc., publishes
the telephone book for the region.[^2]

4\. Petitioner was also requested to provide further information to
demonstrate that the public interest would be better served by providing
Buckhead with its first local aural service by removing Sparta\'s sole
local aural service. In response, petitioner states that Channel 274
cannot be upgraded to a Class C3 at Sparta. Further, as a Class A, the
station presently provides 60 dBu service to 9,433 people within a 1,307
square mile area but as a Class C3, licensed to Buckhead, petitioner
states that the station could provide 60 dBu service to 15,203 people
within a 3,904 square mile area. The petitioner was also requested to
provide information concerning the population and reception services
within the loss and gain areas which will occur if Channel 274C3 is
reallotted. Petitioner did not respond with a showing of what areas
would lose or gain service, the population within these areas or the
current reception services available within these areas. It only states
that Sparta and areas north and west of the community will continue to
be within Station WPMA\'s 60 dBu contour and that the small area which
will lose service are already well served by Atlanta AM Stations WSB and
WGST, Milledgeville AM Stations WMVG and WKGQ and FM Stations WLRR, WKZR
and WGUR, Sanderson AM Station WSNT and Warrenton FM Station WRFN.

# Discussion

5\. Based on the record before us, and in accordance with the
Commission\'s allotment priorities and policies, we find that the public
interest would not be served by substituting Channel 274C3 for Channel
274A, reallotting Channel 274C3 from Sparta to Buckhead, and modifying
the license of Station WPMA accordingly. In [Change of Community
MO&O]{.underline}, [supra]{.underline}, at 7097, the Commission stated
that the public has a legitimate expectation that existing service,
regardless of whether it is a transmission or reception service, will
continue and that this expectation is a factor to be weighed
independently against the benefits that may result from the reallotment.
Further, while stating that a prohibition on the removal of a
community\'s sole local aural service is justified as presumptively
disserving the public interest, we went on to say that requests to waive
this prohibition would be considered in the \"rare circumstances\" where
the removal could serve the public interest. Petitioner\'s contention
notwithstanding, we continue to find that the reallotment would deprive
Sparta of its sole local aural service. While a construction permit has
been awarded to noncommercial educational Station WJDS, it has not as
yet begun operations and its permit does not expire until November,
2002. In addition, the Commission has stated that with regard to change
of community requests, neither a vacant allotment nor a construction
permit can be considered as a substitute for an operating station.
Therefore, the situation before us triggers the same allotment priority,
that is the provision of a first local aural service to either Sparta or
Buckhead.[^3]

6\. In analyzing the proposal, a staff engineering study finds that the
removal of Channel 274A from Sparta will create a loss area of 1,365
square kilometers containing 11,246 people and that no white area (no
fulltime aural service) will be created by the removal of Channel 274A
from Sparta. However, the removal of the channel will result in 7,481
people becoming less well served. Specifically, 471 people within a 120
square kilometer area receiving only one fulltime aural service (gray
area), 3,724 people within a 277 square kilometer area receiving only
two fulltime aural services, 2,189 people within a 231 square kilometer
area receiving only three aural services, and 1,097 people within a 267
square kilometer area receiving only four fulltime aural services. If
Channel 274, as a Class C3, is reallotted to Buckhead, the station will
realize a gain area of 3,654 square kilometers containing 48,903 people.
Further, the study shows that as a Buckhead allotment, 43,115 people are
already well-served with five or more fulltime reception services and no
service will be provided to any white area. The allotment will, however,
increase service to 5,788 people who are presently underserved. The
reallotment will eliminate a gray area containing 223 people within a 68
square kilometer area, provide a third fulltime service to 1,159 people
within a 191 square kilometer area, provide a fourth aural service of
2,423 people within a 68 square kilometer area and provide a fifth such
service to 1,983 people within a 90 square kilometer area.

7\. In considering the above information, we would allot Channel 274A to
Sparta rather than Channel 274C3 to Buckhead. In this case, neither
proposal would result in the provision of a first fulltime aural
reception service (priority 1) but both would provide a second fulltime
aural reception service as well as a first local aural transmission
service (priorities 2 and 3). Comparing the two proposals under the
Commission\'s allotment priorities, Channel 274A at Sparta would provide
a second fulltime reception service to a greater number of people (471
vs. 223) and provide the more populous community with its first local
aural transmission service (1,710 vs. 176).[^4] [^5] We recognize that
the allotment of Channel 274C3 could enable Station WPMA to provide
reception service to a greater number of people than it presently can as
a Class A station at Sparta. However, the determining factor in
comparing competing proposals representing first local services is the
size of the community and not the potential population within the
projected 60 dBu contour. [See]{.underline}, [Calico Rock and Leslie,
Arkansas]{.underline}, 12 FCC Rcd 20174 (1997).

8\. Accordingly, IT IS ORDERED, That the petition for rule making filed
by Barinowski Investment Company (RM-9885) to substitute Channel 274C3
for Channel 274A at Sparta, Georgia, reallot Channel 274C3 to Buckhead,
Georgia, and modify the license of Station WPMA accordingly, IS DENIED.

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

10\. For further information concerning this proceeding, contact
Leslie K. Shapiro, Mass Media Bureau, (202) 418-2180.

FEDERAL COMMUNICATIONS COMMISSION

John A. Karousos

Chief, Allocations Branch

Policy and Rules Division

Mass Media Bureau

[^1]: The businesses located in Buckhead include Blue Springs Marina,
    Buckhead Woodcrafters and Stained Glass, Diane\'s Businesses
    Service, Buckhead Brokers Independent, Images by Jennifer Queen,
    HSI/My Business, A Step Ahead, Ltd., Buckhead Cable Co., Bonners
    Triple B, Buckhead Grocery, Saffold Dairy, Jimmy\'s Body Shop, Inc.,
    Goldsmith Bookeeping Services, and Advanced Electrical Contractors.

[^2]: The telephone book includes listings for Buckhead, Eatonton,
    Greensboro, Madison, Rutledge, Union Point and White Plains.

[^3]: The Commission\'s allotment priorities are: (1) first fulltime
    aural service; (2) second fulltime aural service; (3) first local
    aural service; and (4) other public interest matters. Priorities (2)
    and (3) are given co-equal weight. [See]{.underline} [Revision of FM
    Assignment Policies and Procedures]{.underline}, 90 FCC 2d 88
    (1982).

[^4]: Petitioner contends that the 1990 U.S. Census does not accurately
    reflect Buckhead\'s current population because of the significant
    growth which has occurred because of its location near Lake Oconee.
    However, it provides no population figure nor the source for any
    changed population figure. Absent compelling information to the
    contrary, the Commission relies on the most current U.S. Census
    figures for community population statistics. [See]{.underline},
    [Blanchard, Louisiana and Stephens, Arkansas,]{.underline} 8 FCC Rcd
    7083 (1993), [recon. denied]{.underline} 10 FCC Rcd 9828 at fn. 12
    (1995) (absent an alternative authoritative source of population
    data, we will continue to rely on Census figures in the
    implementation of our rules).

[^5]: [See]{.underline}, [Potts Camp and Saltillo,
    Mississippi]{.underline}, 13 FCC Rcd ­­11909 (1998) and [Tuscola and
    Clio, Michigan]{.underline}, 15 FCC Rcd 8958 (2000) (denied proposal
    to reallot sole local aural service from smaller community to larger
    community where it would be a first local aural service).