**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Amendment of Section 73.202(b), ) MB Docket No. 03-195

Table of Allotments, ) RM-10745

FM Broadcast Stations. )

(Marble Falls and Dripping Springs, Texas)[^1] )

**REPORT AND ORDER**

**(Proceeding Terminated)**

**Adopted: November 21, 2003 Released: November 26, 2003**

By the Assistant Chief, Audio Division:

1\. In response to a Petition for Rule Making filed by Amigo Radio, Ltd.
("Amigo"), the Commission has before it for consideration the *Notice of
Proposed Rule Making*,[^2] requesting the substitution of Channel 285A
for Channel 285C2 at Marble Falls, Texas, and reallotment of Channel
285A from Marble Falls, Texas, to Dripping Springs, Texas. Amigo also
requests modification of the license for Station KXXS to specify
Dripping Springs as the community of license. Amigo filed comments in
which it restated its intention to file an application for Channel 285A
at Dripping Springs. No other comments were received in response to the
*Notice* in this proceeding.

2\. Based upon the information presented in this proceeding, the public
interest would be served by substituting Channel 285A for Channel 285C2
at Marble Falls and reallotting Channel 285A to Dripping Springs, Texas,
since it would result in a preferential arrangement of allotments
pursuant to the Commission\'s Change of Community procedures.[^3] As
stated in the *Notice*, information was provided demonstrating community
status for Dripping Springs. Dripping Springs would receive its first
local service fulfilling allotment priority (3) of the Commission\'s
allotment priorities.[^4] This action will not deprive Marble Falls of
local service as non-commercial Station KBMD, Channel 203A, will
continue to provide service to the community. Retention of Channel 285C2
in Marble Falls would be considered under priority (4), other public
interest matters.

3\. The reallotment proposal is consistent with the requirements set
forth in *Change of* *Community, supra*. As explained in the *Notice*,
Dripping Springs is not located within an urbanized area.[^5] Therefore
information responsive to a *Tuck* analysis to determine whether
Dripping Springs is sufficiently independent of an urbanized area to
merit a first local service preference is not necessary.[^6] Channel
285A can be allotted to Dripping Springs, Texas, in compliance with the
Commission\'s minimum distance separation requirements at Amigo's
specified site.[^7] From this site, the gain area for Dripping Springs
contains 107,518 people in an area of 459 square kilometers with a net
loss of 226,000 people in an area of 6,049 square kilometers. Although
there is a noticeable loss area, a staff engineering analysis confirms
that the community of Marble Falls will continue to receive at least 16
aural services and that the entire loss area and population will receive
five or more aural services. Further, 98 percent of the population
within the loss area will receive ten or more aural services and no
white or gray areas will be created with the channel reallotment which
provides a first local service at Dripping Springs.[^8] Both the loss
and gain areas are considered to be well served with aural services. In
accordance with Section 1.420(i) of the Commission\'s Rules, we will
modify the license for Station KXXS to specify operation on Channel 285A
at Dripping Springs, Texas, as its new community of license.

4\. 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 January 12, 2004, the FM Table of

Allotments, Section 73.202(b) of the Commission\'s Rules, IS AMENDED for
the communities listed below, as follows:

Community Channel Number

Dripping Springs, Texas 285A

Marble Falls, Texas \-\-\-\-\--

5\. IT IS FURTHER ORDERED, That pursuant to Section 316(a) of the
Communications Act of 1934, as amended, that the license of Amigo Radio,
Ltd. for Station KXXS, Channel 285C2, Marble Falls, Texas, IS MODIFIED
to specify operation on Channel 285A at Dripping Springs, Texas, subject
to the following conditions:

> \(a\) Within 90 days of the effective date of the *Order*, the
> licensee
>
> of Station KXXS 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, unless the proposed facilities are categorically

excluded from environmental processing.

6\. Pursuant to Commission Rule Section 1.1104(1)(k) and (2)(k), any
party seeking a change in community of license of an FM or television
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, Amigo Radio, Ltd., licensee of Station KXXS, Channel
285C2, is required to submit a rule making fee in addition to the fee
required for the application to effectuate the change in community of
license and class change for Station KXXS, from Channel 285C2 to Channel
285A and reallotment of the channel from Marble Falls, Texas, to
Dripping Springs, Texas.

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

8\. For further information concerning this proceeding, contact Kathleen
Scheuerle, Media Bureau, (202) 418-2180.

FEDERAL COMMUNICATIONS COMMISSION

John A. Karousos

Assistant Chief, Audio Division

Media Bureau

[^1]: On August 4, 2003, a CFR correction was published in the *Federal
    Register* correcting the FM Table of Allotments under Texas listing
    the community of Marble Falls and Channel 285C2. *See* 68 FR 45786,
    August, 4, 2003.

[^2]: *Marble Falls and Dripping Springs, Texas,* 18 FCC Rcd 18487 (M.B.
    2003).

[^3]: ^?^ *See Modification of FM and TV Authorizations to Specify a New
    Community of License,* 4 FCC Rcd 4870 (1989), *recon. granted in
    part ("Change of Community MO&O"),* 5 FCC Rcd 7094 (1990).

[^4]: ^?^ The FM allotment priorities are: (1) First full-time aural
    service; (2) Second full-time service; (3) First local service; and
    (4) Other public interest matters. \[Co-equal weight is given to
    priorities (2) and (3).\] *See Revision of FM Assignment Policies
    and Procedures, 90 FCC Rcd 29 88 (1982).*

[^5]: ^?^ *See, Headland, Alabama and Chattahoochee, Florida,* 10 FCC
    Rcd 10352 (1995).

[^6]: ^?^ *See Huntington Broadcasting Co. v. FCC, 192 F. 2d 33 (D.C.
    Cir. 1951), RKO General, Inc., 5 FCC Rcd 3222 (1990), and Faye and
    Richard Tuck ("Tuck"), 3 FCC Rcd 5374 (1988).*

[^7]: ^?^ The coordinates for Channel 285A at Dripping Springs are
    30-11-54 and 98-00-46. The site is located 7.5 kilometers (4.6
    miles) east of the community. Although Mexican concurrence has been
    requested for the allotment of Channel 285A at Dripping Springs,
    notification ha not been received. Therefore, operation with the
    facilities specified for Channel 285A at Dripping Springs is subject
    to modification, suspension, or termination without right to
    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]: ^?^ A white area, for purposes of FM allotments, is a geographical
    area that is not served by any full-time aural service and a gray
    area is one that is served by only one full-time aural service.