Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * |                              |
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| Amendment of Section 73.202(b),  | ) |                              |
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| FM Table of Allotments,          | * |                              |
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| FM Broadcast Stations.           | * |                              |
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| (East Liverpool, Ohio, and       | ) |                              |
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| Moon Township, Pennsylvania)     | * |                              |
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**MEMORANDUM OPINION AND ORDER**

**(Proceeding Terminated)**

**Adopted: June 28, 2006 Released: June 30, 2006**

By the Assistant Chief, Audio Division, Media Bureau:

1\. The Audio Division has before it the petition for reconsideration
submitted on behalf of Keymarket Licenses, LLC ("Keymarket").
Previously, we had returned Keymarket's petition for rule making to
reallot Channel 282B from East Liverpool, Ohio, to Moon Township,
Pennsylvania, and modify the license of Radio Station WOGF(FM)
accordingly.[^1] In its rule making petition, Keymarket proposed both a
change of community and a relocation of the transmitter site of Station
WOGF(FM),[^2] a pre-1964 grandfathered station.[^3]

2\. In our letter returning Keymarket's petition for rule making, we
noted that reallotment of Channel 282B at the proposed site would
increase WOGF(FM)'s short-spacing to WPGB(FM), Channel 284B, Pittsburgh,
Pennsylvania, by approximately 2.8 kilometers. We explained that the
Commission's policy is to grant no waivers of the spacing requirements
of Section 73.207 of the Commission's Rules in considering the allotment
of an FM channel. We further stated that waiver of the rule has been
granted for proposals that would decrease an existing short-spacing, but
we could not consider a proposal that would exacerbate an existing
short-spacing. For that reason, we returned Keymarket's petition for
rule making as unacceptable for filing.

3\. In its petition for reconsideration, Keymarket contends that in
*Grandfathered Short-Spaced FM Stations*,[^4] the Commission revised its
application and allotment policies for grandfathered, short-spaced
stations to eliminate all spacing requirements to second-adjacent and
third-adjacent channel stations. Similarly, Keymarket argues that, under
current Section 73.213(a)(4) of the Commission's Rules, there are no
required second or third adjacent separation requirements for pre-1964
grandfathered stations. Keymarket also cites several decisions
purporting to establish that pre-1964 grandfathered, short-spaced
stations "are commonly permitted to change community of license via a
petition to amend the FM Table of Allotments."[^5]

4\. Keymarket's representation of the Commission's holding in
*Grandfathered Short-Spaced FM Stations* is incorrect. The stated
purpose of that proceeding was to streamline the method of proposing
modifications to existing facilities for pre-1964 grandfathered
short-spaced FM radio broadcast stations.[^6] By focusing upon the
modification of existing facilities, the Commission limited its policy
changes to the standards for FM facility modification applications filed
by pre-1964 grandfathered FM stations.[^7] The Commission did not,
however, amend the spacing requirements applicable to those stations at
the allotment rule making stage.[^8]

5\. Keymarket's reliance upon Section 73.213 of the Commission's Rules
is equally misplaced. We previously have rejected the argument that
Section 73.213(a)(4) relieves pre-1964 grandfathered stations of the
need to comply with Section 73.207 with respect to second- and
third-adjacent channels.[^9] In so doing, we emphasized that the
Commission intended its changes to Section 73.213(a) to "permit second
and third-adjacent channel grandfathered stations to implement maximum
class facilities, and/or change transmitter site with complete
flexibility on second-adjacent and third adjacent channel
short-spacings."[^10] We never have relied upon Section 73.213(a)(4) in
granting a reallotment request, nor is there any language in Section
73.213 supporting its applicability to allotment rule makings.[^11]

6\. Finally, none of the decisions cited by Keymarket for the
proposition that pre-1964 grandfathered stations "are commonly permitted
to change community of license" involved relocation of the station's
transmitter site.[^12] In those cases, our decisions approving
short-spaced reallotments by pre-1964 grandfathered stations were
premised on the fact that the petitioners did not propose to change
their transmitter sites. As we explained in *Berlin and North Conway*,
"\[w\]e believe that a waiver of Section 73.207 is warranted *since
there is no change in \[the station's\] technical facilities* and thus
the short-spacings, and any attendant interference, which already exist
will not worsen \[emphasis added\]."[^13] Those cases thus are
distinguishable from the instant rule-making request, which proposes
both a change of community and a transmitter site relocation for a
pre-1964 grandfathered station.

7\. In one case not cited by Keymarket, *Albemarle and Indian Trail*, we
did, in fact, grant a waiver of Section 73.207 to allow both a change of
community and a transmitter relocation. In that decision, we emphasized
that we were "not making a generic determination that any pre-1964,
grandfathered short-spaced station may change its community of license
and transmitter site;"[^14] rather, we recognized the need to proceed on
a case-by-case basis. Based on the facts of that case, we determined to
waive Section 73.207 because no new short-spacings were created by the
change in transmitter site and the existing grandfathered short-spacings
were eliminated or significantly reduced.

8\. In its petition for reconsideration, Keymarket emphasizes that it
does not request waiver of the spacing requirements of Section 73.207 of
the Commission's Rules,[^15] and indeed, the circumstances of the
proposal do not warrant such waiver. In contrast to the facts presented
in *Albemarle and Indian Trail,* Keymarket's proposed relocation of
Station WGOF(FM)'s facilities would increase an existing short-spacing.
As stated in the letter returning Keymarket's petition for rule making,
we will not consider an allotment proposal that would exacerbate an
existing short-spacing. For all of the reasons discussed herein,
Keymarket's petition for reconsideration must be denied.

9\. Accordingly, IT IS ORDERED, That the Petition for Reconsideration
filed by Keymarket Licenses, L.L.C., IS DENIED.

10\. This document is not subject to the Congressional Review Act. The
Commission, is, therefore, not required to submit a copy of this
Memorandum Opinion and Order to the Government Accountability Office,
pursuant to the Congressional Review Act, *see* 5 U.S.C. 801(a)(1)(A),
because the proposed rule was dismissed.

11\. For further information concerning this proceeding, contact Deborah
Dupont, Media Bureau, (202) 418-7072.

FEDERAL COMMUNICATIONS COMMISSION

John A. Karousos

Assistant Chief

Audio Division

Media Bureau

[^1]: *See* Letter of John A. Karousos, Assistant Chief, Audio Division,
    Media Bureau, to Allen G. Moskowitz, Esq., counsel for Keymarket
    Licenses, L.L.C. (April 22, 2004), returning Keymarket's petition
    for rule making to reallot Channel 282B from East Liverpool, Ohio,
    to Moon Township, Pennsylvania (filed August 20, 2003).

[^2]: Station WOGF(FM)'s reference coordinates at East Liverpool, Ohio,
    are 40-35-14 North Latitude and 80-25-15 West Latitude. The
    reference coordinates of the proposed new transmitter site for
    reallotment of Channel 282B at Moon Township, Pennsylvania, are the
    following: 40-30-56 North Latitude and 80-24-34 West Longitude, at a
    site 15.9 kilometers (9.9 miles) west of Moon Township and 8.0
    kilometers south of the current transmitter site.

[^3]: Pre-1964 grandfathered stations are those FM stations authorized
    prior to November 16, 1964, that do not meet the separation
    distances required by the later-adopted Section 73.207(b) and that
    have remained continuously short-spaced since that time.

[^4]: *Grandfathered Short-Spaced FM Stations*, Report and Order, 12 FCC
    Rcd 11,840 (1997).

[^5]: *See* Petition for Reconsideration, Statement of William J. Getz
    at 4-5. The cases cited are the following: *Newnan and Peachtree
    City, Georgia*, Report and Order, 7 FCC Rcd 6307 (MMB 2002*);
    Oceanside and Encinatas, California*, Report and Order, 14 FCC Rcd
    15,302 (MMB 1999); and *Berlin and North Conway, New Hampshire*,
    Report and Order, 14 FCC Rcd 15,307 (MMB 1999) ("*Berlin and North
    Conway*").

[^6]: *See Grandfathered Short-Spaced FM Stations*, Report and Order,
    *supra*, 12 FCC Rcd at 11841, ¶ 1, and Notice of Proposed Rule
    Making, 11 FCC Rcd 7245, ¶¶ 1 and 2 (MMB 1996).

[^7]: *See* language in *Sturgis, Kentucky*, Report and Order, 13 RCC
    Rcd 17,786, , n.2 (MMB 1998) ("We note that the Commission issued a
    Report and Order giving grandfathered short-spaced stations greater
    flexibility to improve their facilities and relocate their
    transmitter sites").

[^8]: *See Elgin and Lombard, Illinois*, Memorandum Opinion and Order,
    DA 06-1226 (released June 9, 2006) ("*Elgin and Lombard*").

[^9]: *See Murrieta, Arcadia, Falbrook, Yucca Valley, and Desert Hot
    Springs, California*, Report and Order, 17 FCC Rcd 19,458 (MMB 2002)
    ("*Murrieta*") (characterized counterproponent's interpretation of
    Section 73.213(a)(4) as an "overreaching reading of the rule"),
    *app. for rev. pending*; and *Elgin and Lombard, Illinois*, cited
    *supra*.

[^10]: *Murrieta*, 17 FCC Rcd at 19,462, citing *Grandfathered
    Short-Spaced FM Stations*, 12 FCC Rcd at 11,847.

[^11]: The rule mentions only application filings. *See, e.g.,* 47
    C.F.R. § 73.213(a)(2).

[^12]: *See* cases cited in n. 5*, supra.*

[^13]: *Berlin and North Conway*, 14 FCC Rcd at 15,308. Our
    determination to waive Section 73.207 in that Report and Order, a
    decision issued subsequent to adoption of Section 73.213(a)(4) of
    the Commission's Rules, further refutes Keymarket's argument that
    adoption of Section 73.213(a)(4) of the Commission's Rules
    eliminated the Section 73.207 distance separation requirements for
    pre-1964 grandfathered stations with respect to second- and
    third-adjacent channels. *See also Newnan and Peachtree City,
    Georgia*, cited *supra* at n. 5.

[^14]: *Albemarle and Indian Trail, North Carolina*, Report and Order,
    16 FCC Rcd 13,876, 13,878 (MMB 2001).

[^15]: See Petition for Reconsideration at 5, ¶ 7, and Statement of
    William J. Getz at 5.