**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | MB Docket No. 04-409         |
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| Amendment of Section 73.202(b),  | ** | RM-11108                     |
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| Table of Allotments,             | *  | RM-11234                     |
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| FM Broadcast Stations.           | ** |                              |
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| (Port Norris, New Jersey,        | *  |                              |
| Fruitland, and Willards,         | *) |                              |
| Maryland, Chester, Lakeside, and | ** |                              |
| Warsaw, Virginia)[^1]            |    |                              |
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**REPORT AND ORDER**

**(Proceeding Terminated)**

**Adopted: October 11, 2006 Released: October 13, 2006**

By the Assistant Chief, Audio Division, Media Bureau:

1.  The Audio Division has before it a *Notice of Proposed Rule
    Making*[^2] issued at the request of Dana Puopolo ("Petitioner")
    requesting the allotment of Channel 299A at Port Norris, New Jersey,
    as the community's first local aural transmission service.
    Petitioner filed comments in support of the proposal. CXR Holdings,
    Inc. ("CXR"), licensee of Station WDYL(FM), Chester, Virginia, filed
    a counterproposal which it later amended. Port Norris Radio, Popular
    Assembly of New Horizons 3000 and Joseph D'Allesandro all filed
    comments in favor of the allotment at Port Norris and in opposition
    to CXR's counterproposal. CXR filed reply comments.[^3]

2.  In its counterproposal, as amended, CXR requests the substitution of
    Channel 265B1 for Channel 266A, reallotment of Channel 265B1 from
    Chester to Lakeside, Virginia as the community's first local aural
    service, and modification of Station WDYL's license to reflect the
    changes. To accommodate the allotment of Channel 265B1 at Lakeside,
    CXR proposes the substitution of Channel 298A for Channel 265A at
    Warsaw, Virginia, at a new transmitter site and the modification of
    Station WNNT-FM's license to reflect the channel substitution. CXR
    also proposes to substitute Channel 299A for Channel 298B1 at a new
    site at Fruitland, Maryland and modify Station WKHI(FM)'s license
    accordingly. Great Scott Broadcasting, licensee of WKHI(FM),
    Fruitland, Maryland, has consented to this modification. Proposals
    to substitute Channel 299B1 for 298B1 at Fruitland and reallot
    Channel 299B1 from Fruitland to Willards, Maryland, and reallot
    Channel 273B from Princess Anne, Maryland to Fruitland, Maryland,
    which the licensees had agreed to, were deleted in CXR's amended
    counterproposal. CXR has pledged to reimburse all parties for their
    expenses in changing channels and transmitter sites.

3.  In response to CXR's counterproposal, we issued an *Order to Show
    Cause*[^4] directed to Northern Neck and Tidewater Communications,
    Inc. (*"*Northern Neck*"*), licensee of Station WNNT-FM, Warsaw,
    Virginia to show cause why its license should not be modified from
    Channel 265A to Channel 298A. Northern Neck responded to the Order
    to Show Cause, agreeing to the proposed changes to its license.

4.  **Discussion**. We have compared the conflicting proposals under our
    policy set forth in *Revision of FM Assignment Policies and
    Procedures* because no alternative channels are available to
    eliminate the conflict.[^5] The proposal and counterproposal each
    involve an allotment to a community that would receive its first
    local aural transmission service, a Priority 3 factor. Although each
    community is deserving of an allotment, because each would both
    serve the same allotment priority, our rules favor the community
    with the larger population. Port Norris is a Census Designated Place
    with a 2000 U.S. Census population of 1507 persons, and Lakeside is
    a Census Designated Place with a 2000 U.S. Census population of
    11,157 persons. Accordingly, we will grant the Lakeside
    counterproposal as amended.

5.  In reaching this result, we recognize that we have not applied
    *Huntington Broadcasting Co. v. FCC*[^6] and *Faye and Richard
    Tuck.*[^7] Lakeside lies within the Richmond Urbanized Area as does
    Chester. Therefore, in reallotting an FM channel from one community
    to another within this same urbanized area, no issue exists as to
    whether the petitioner is attempting to move into an urbanized area.
    As we stated in *East Los Angeles, California,*[^8] we have applied
    *Huntington* and *Tuck* in cases involving moves from communities
    outside of urbanized areas to communities inside of urbanized area,
    because we were concerned that a first local service preference
    could be used as a mechanism for a station to enter a large market.
    However, those concerns do not exist in cases such as the instant
    one where a station is already licensed to a community in an
    urbanized area and seeks to change its community of license to
    another community in the same urbanized area.

6.  Popular Assembly of New Horizons 3000 and Joseph D'Allesandro argue
    that we should deny the CXR proposal because it fails to protect
    LPFM Stations WLOU-LP, Williamsburg, Virginia, and WRBG-LP,
    Millsboro, Delaware. This argument is without merit. Proposed
    allotments for full power FM stations are not required to protect
    low power stations.

7.  We modify the Station WDYL(FM) license to specify Lakeside as the
    community of license pursuant to Section 1.420(i) of the
    Commission's rules, which permits the modification of a station's
    license to specify a new community of license without affording
    other interested parties an opportunity to file competing
    expressions of interest in the proposed allotment.[^9] In this
    instance, the reallotment of Channel 265B1 at Lakeside, Virginia, is
    mutually exclusive with the licensed site of Station WDYL(FM),
    Channel 265A, Chester, Virginia. Chester will continue to receive
    local operational service from AM Station WGGM.

8.  Channel 265B1 can be allotted at Lakeside, Virginia, at a site 9.6
    kilometers (5.9 miles) east of the community.[^10] Channel 299A can
    be allotted at Fruitland, Maryland at a site 13.2 kilometers (8.2
    miles) northeast of the community.[^11] Channel 298A can be allotted
    at Warsaw, Virginia, at Station WNNT-FM's transmitter site located
    1.7 kilometers (1.1 miles) south of the community.[^12]

9.  The Commission will send a copy of this *Report and Order* in a
    report to be sent to Congress and the Government Accountability
    Office pursuant to the Congressional Review Act, *see* 5 U.S.C. §
    801(a)(1)(A).

10. Accordingly, pursuant to the authority found in 47 U.S.C. Sections
    4(i), 5(c)(1), 303(g) and (r) and 307(b) and 47 C.F.R. Sections
    0.61, 0.204(b) and 0.283, IT IS ORDERED, That effective November 27,
    2006, the FM Table of Allotments, 47 C.F.R. Section 73.202(b), IS
    AMENDED, with respect to the communities listed below, to read as
    follows:

**[Community]{.underline}** **[Channel No.]{.underline}**

Fruitland, Maryland 299A Lakeside, Virginia 265B1

Warsaw, Virginia 298A

11. IT IS FURTHER ORDERED, That pursuant to 47 U.S.C. Section 316(a)
    that the authorization of CXR Holdings, Inc., licensee of Station
    WDYL(FM), Chester, Virginia, Channel 265A, Chester, Virginia, IS
    MODIFIED to specify operation on Channel 265B1at Lakeside, Virginia,
    subject to the following conditions:

> \(a\) Within 90 days of the effective date of the *Order*, CXR
> Holdings, Inc., 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 47 C.F.R. 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 47 C.F.R. Section 1.1307,

> unless the proposed facilities are categorically excluded from
>
> environmental processing.

12. IT IS FURTHER ORDERED, That pursuant to 47 U.S.C. Section 316(a)
    that the authorization of Great Scott Broadcasting, licensee of
    WKHI(FM), Channel 298B1, Fruitland, Maryland IS MODIFIED to specify
    operation on Channel 298A, subject to the following conditions:

> \(a\) Within 90 days of the effective date of the *Order*, Great Scott
>
> Broadcasting 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 47 C.F.R. 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 47 C.F.R. Section 1.1307,

> unless the proposed facilities are categorically excluded from
>
> environmental processing.

13. IT IS FURTHER ORDERED, That pursuant to 47 U.S.C. Section 316(a)
    that the authorization of Northern Neck and Tidewater
    Communications, Inc., licensee of Station WNNT-FM, Channel 265A,
    Warsaw, Maryland, IS MODIFIED to specify operation on Channel 298A,
    subject to the following conditions:

> \(a\) Within 90 days of the effective date of the *Order*, Northern
> Neck and Tidewater Communications, Inc 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 47 C.F.R. 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 47 C.F.R. Section 1.1307,

> unless the proposed facilities are categorically excluded from
>
> environmental processing.

14. Pursuant to 47 C.F.R. Sections 1.1104(1)(k) and (3)(l) of the
    Commission's rules, CXR Holdings, Inc., licensee of Station
    WDYL(FM), Chester, Virginia, is required to submit a rulemaking fee
    in addition to the fee required for the application to effectuate
    the community of license for Station WDYL(FM) to specify operation
    on Channel 265B1 at Lakeside, Virginia, at the time its Form 301
    application is submitted.

15. IT IS FURTHER ORDERED That the petition for rulemaking filed by Dana
    Puopolo IS DENIED.

16. For further information concerning this proceeding, contact Victoria
    McCauley, Media Bureau, (202) 418-2180.

FEDERAL COMMUNICATIONS COMMISSION

John A. Karousos

Assistant Chief

Audio Division

Media Bureau

[^1]: Fruitland, Princess Anne, and Willards, Maryland, Chester,
    Lakeside, Warsaw, Virginia have been added to the caption. *See
    Public Notice*, Report No. 2704, released April 22, 2005.

[^2]: *Port Norris, New Jersey,* Notice of Proposed Rule Making, 19 FCC
    Rcd 22010 (MB 2004)

[^3]: CXR contends in reply comments that its proposal has priority over
    a later filed application for construction permit (File No.
    BPH-20050428ABL) filed by MainQuad Communications, Inc. CXR also
    reiterates its interest in pursuing its Channel 265B1 Lakeside
    proposal at the originally specified reference coordinates.

[^4]: *Port Norris, New Jersey, Fruitland, Maryland, Chester, Lakeside,
    and Warsaw, Virginia*, Order to Show Cause, 10 FCC Rcd 10629 (MB
    2005).

[^5]: *Revision of FM Assignment Policies and Procedures*, Second Report
    and Order, 90 FCC 2d 88, 91 (1988). The FM Allotment priorities are
    (1) First full-time aural service. (2) Second full-time aural
    service. (3) First local service. (4) Other public interest matters.
    \[Co-equal weight is given to priorities (2) and (3)\].

[^6]: *Huntington Broadcasting Co. v. FCC.*, 92 F.2d 33 (D.C. Cir. 1951)
    ("*Huntington*").

[^7]: *Faye and Richard Tuck, Inc*., Memorandum Opinion and Order, 3 FCC
    Rcd 5374 (1988) *("Tuck").*

[^8]: *See East Los Angeles, Long Beach and Frazier Park, California,*
    Report and Order, 10 FCC Rcd 2864 (MMB 1995); *recon. dismissed,* 13
    FCC Rcd 4692 (MMB 1998).

[^9]: *See Modification of FM and TV Authorizations to Specify a New
    Community of License*, Report and Order, 4 FCC Rcd 4870, 4873
    (1989), recon. granted in part, Memorandum Opinion and Order, 5 FCC
    Rcd 7394 (1990).

[^10]: The site coordinates for Channel 265B1 at Lakeside are 37-36-08
    NL and 77-22-09 WL.

[^11]: The site coordinates for Channel 299A at Fruitland are 38-22-55
    NL and 75-29-25 WL

[^12]: The site coordinates for Channel 298A at Warsaw are 37-56-39 NL
    and 76-45-05 WL.