**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Amendment of Section 73.202(b), ) MM Docket No. 97-106

Table of Allotments, ) RM-9044

FM Broadcast Stations. ) RM-9741

(Cheyenne, Wyoming and )

Gering, Nebraska) [^1] )

[REPORT AND ORDER]{.underline}

Adopted: April 13, 2000 Released: April 14, 2000

By the Chief, Allocations Branch:

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level71. The Allocations Branch has before it the [Notice of
Proposed Rule Making]{.underline} and an [Order to Show
Cause]{.underline} issued in response to a request filed by TSBII, Inc.
("TSBII"), 12 FCC Rcd 3690 (1997). In response to the
[Notice]{.underline}, Tracy Broadcasting Corporation ("Tracy"), licensee
of Station KOLT-FM, Gering, NE, and permittee of Stations KASX(FM), Pine
Bluffs, NE, and KAWQ(FM), Bridgeport, NE, filed an Answer to Order to
Show Cause and a Counterproposal. TSBII and Montgomery Broadcasting
Limited Liability Company ("Montgomery") filed comments. TSBII, Tracy
and Montgomery filed reply comments.

[Background/Comments]{.underline}

2\. The [Notice]{.underline} proposed the allotment of Channel 280C2 at
Cheyenne, Wyoming, as the community's sixth local commercial FM
transmission service. The [Notice]{.underline} also proposed the
substitution of Channel 239C3 for Channel 280C3 at Gering, Nebraska, and
the modification of Station KOLT-FM's license accordingly to accommodate
the allotment. Tracy filed a counterproposal proposing to: 1) substitute
Channel 267C1 for Channel 280C3 at Gering, Nebraska and to modify
Station KOLT-FM's license; 2) substitute Channel 280C1 for Channel 287C2
at Pine Bluffs, Nebraska and to modify the construction permit for
Station KASX-FM[^2]; and 3) substitute Channel 239C3 for Channel 267C at
Bridgeport, Nebraska, and to modify the construction permit for Station
KAWQ(FM).[^3] Tracy urges the Commission to deny TSBII's proposal
because it claims that the addition of Channel 280C2 to Cheyenne, WY
will add a sixth local commercial FM station which is a lesser priority
than its proposal which would provide both a first and second full-time
reception service under Priorities 1 and 2.[^4] Tracy further contends
that the enormous costs associated with modifying Station KOLT-FM to
operate on Channel 239C3 also warrant rejection of the TSBII proposal.
TSBII has not disputed Tracy's engineering claims. However, while TSBII
agrees to reimburse Tracy, it believes that Tracy's estimate of
\$100,000 is excessive. Although Tracy wants the Commission to require
TSBII to pay for its expenses in advance, TSBII states that it is
confident that the parties can negotiate the reimbursement of the
reasonable expenses. Lastly, Montgomery opposed TSBII's proposal on the
grounds that it could have an adverse impact on programming and
advertising in the Cheyenne, Wyoming market area.

[Discussion]{.underline}

3\. As a threshold matter, there are no alternate channels available to
resolve the conflict between TSBII's and Tracy's rulemaking
proposals.[^5] Consequently, we must compare these proposals using the
FM Allotment priorities. Based on the information before us, we believe
that the public interest would be better served by adopting TSBII's
request to allot Channel 280C2 to Cheyenne, Wyoming for the reasons that
follow.[^6]

4\. To begin with, Tracy argued that its counterproposal should be
preferred because the substitution of Channel 280C1 for Channel 287C2 at
Pine Bluffs will provide a first full-time aural service to 300 people
in a 186 square kilometer area, thus satisfying Priority 1, and that
2,017 people in a 1,555 square kilometer area will receive a second
full-time aural service thus satisfying Priority 2. Tracy claims that
since its counterproposal will create a 40% net service gain for the
Pine Bluffs station, will maintain the existing coverage of the Gering
and Bridgeport stations and will provide a first and second full time
aural service, its counterproposal serves the Commission's most
important priorites.[^7] However, our technical review indicates that
Tracy's engineering analysis is flawed. Our analysis reveals that the
proposed upgrade and change of transmitter site for the Pine Bluffs
station will create a gain area containing 83,763 persons and a loss
area of 930 persons, resulting in a net gain of 82,833 persons. Our
study further shows that there will be no first full-time aural
reception service provided to any of the 83,763 persons within the gain
area. While there is currently no FM service coverage to the area in
which Tracy is claiming a first aural service priority, the .5 mV/m
ground wave contour of clear channel AM Station KOA provides coverage,
thus disputing Tracy's claim that its counterproposal will provide a
first aural service to Pine Bluffs. Similarly, Tracy's Pine Bluff
upgrade will provide a second full time aural service to 638 people
rather then the 2,017 people represented by Tracy under Priority 2. In
addition, our technical review reduces this second full time aural
service to 632 people because six persons within the loss area will lose
a second full-time reception service, thus creating a "gray" area. [^8]
Consequently, the Pine Bluffs upgrade would at best trigger Priority 2
because it could provide a second full-time reception service to 632
people. The Pine Bluffs upgrade would also provide 867 people with a
third aural service, 602 people with a fourth aural service, and 293
people with a fifth aural service, thereby providing 1,762 underserved
people within the gain area with additional service under Priority 4.

5\. However, balanced against these public interest benefits are the
public interest detriments of the Bridgeport station's proposed
downgrade from a Class C to C3. While we recognize that the Bridgeport
station is unbuilt, under its current construction permit, the station
could provide coverage to 24,460 persons within its 60 dBu contour.
Changing from the Bridgeport construction permit site and decreasing the
class from C to C3, the station will provide service to 8,338 persons
within its 60 dBu contour, resulting in a service loss to 17,965 people
and a gain of service to 1,843 persons. The net service loss from this
downgrade is 16,122 people. Most significantly, downgrading the channel
results in 211 people losing a potential first aural service that has
already been authorized, thus creating a "white area" and triggering
Priority 1. We believe that the creation of this "white area" under
Priority 1 outweighs the benefits of the second full-time reception
service that the Pine Bluffs upgrade could provide to 632 people because
it triggers the highest allotment priority -- that is, the retention of
a first full-time reception service. Indeed, we have in the past denied
proposals that would have triggered important allotment priorities such
as a first local transmission service under Priority 3 because retaining
the current arrangement of allotments would eliminate "white" areas and
enable people to retain their only authorized aural reception
service.[^9] In addition, 51 people would lose an authorized but unbuilt
second full-time aural service by the Bridgeport downgrade, thereby
creating a "gray" area. On a cumulative basis, this would further reduce
number of people that the counterproposal would provide a second
full-time reception service from 632 to 581. In addition, the Bridgeport
downgrade would also result in 14,776 other "underserved" people losing
3^rd^ through 5^th^ full-time reception services.[^10] By way of
contrast, all 1,843 people in the gain area for Bridgeport are well
served with five or more aural services.

6\. As for the Gering upgrade, Tracy proposes to upgrade from Channel
280C3 to Channel 267C1 and change the site from which coverage can be
provided to 59,109 people. These changes at Gering result in 19,550
people receiving additional coverage, with no loss areas. However, all
of the people in the gain area are well served with five or more
full-time reception services.

7\. We believe that, on balance, the new Cheyenne allotment should be
preferred over Tracy's counterproposal.[^11] Generally, we prefer a new
allotment over an upgrade to existing service because the new allotment
constitutes a new primary service to a community while the upgrade
provides an expanded or enhanced secondary service. [See]{.underline}
[Andalusia, AL]{.underline}, 49 Fed Reg. 32201 (August 13, 1984).
[See]{.underline} [also]{.underline} [Benton, Arkansas]{.underline}, 7
FCC Rcd 2555 (Policy and Rules Div. 1992). While Tracy has tried to
rebut this presumption and to argue that its counterproposal should be
preferred because it would provide second full-time reception service
under Priority 2, we have found that this benefit is outweighed by the
creation of white area to 211 people.[^12] Under these circumstances,
providing a 12^th^ local transmission service to Cheyenne[^13] is
preferable to granting the counterproposal. Our view is further
buttressed by the fact that the Bridgeport downgrade will also result in
51 people losing a second full-time reception service, thus creating a
gray area and will cause 14,776 other underserved persons to lose 3^rd^
through 5^th^ aural reception services.

8\. Regarding the reimbursement and economic impact issues, we decline
to require TSBII to pay the expenses in advance for the frequency change
because no showing has been made as to TSBII\'s inability to reimburse
Tracy. Absent a factual basis for questioning a party\'s financial
ability to reimburse, we will leave matters such as the time and manner
of reimbursement to the good faith negotiations of the parties.
[See]{.underline} [Columbus, NE]{.underline}, 59 RR 2d 1185 (1989) and
[Dickson, TN]{.underline}, 4 FCC Rcd 8707 (1989). Furthermore, what
constitutes legitimate and prudent expenses for reimbursement is also
left to the good faith negotiation of the parties subject to Commission
review if the parties are unable to reach agreement. [See]{.underline},
e.g., [Mayfield and Wickliffe, KY]{.underline}, 48 RR 2d 1232, 1235.
Montgomery's argument that the proposed channel substitutions would
adversely impact on programming and market area advertisers raises
issues which the Commission has already determined are not relevant in
either a licensing or allotment context. [See]{.underline} [Policies
Regarding Detrimental Effects of Proposed New Broadcast Stations on
Existing Stations]{.underline}, 3 FCC Rcd 638 (1988), [recon.
denied]{.underline}, 4 FCC Rcd 2276 (1989); [Cheyenne,
Wyoming]{.underline}, 8 FCC Rcd 4473 (1993). Consequently, there is no
basis under the current state of Commission precedent for consideration
of those issues.

9\. 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 May 30, 2000, the FM Table of
Allotments, Section 73.202(b) of the Commission's Rules IS AMENDED to
read as follows:

[City]{.underline} [Channel No.]{.underline}

#########  Cheyenne, Wyoming 280C2, 250C1, 260A,, 264C1, 285A, 292C3

Gering, Nebraska 239C3

10\. A filing window for Channel 280C2 at Cheyenne, Wyoming will not be
opened at this time. Instead, the issue of opening a filing window for
this channel will addressed by the Commission in a subsequent order.

11\. IT IS FURTHER ORDERED, That pursuant Section 316(a) of the
Communications Act of 1934, as amended, the license of Tracy
Broadcasting Corporation, for Station KOLT-FM, Channel 280C3, Gering,
Nebraska, IS MODIFIED to specify operation on Channel 239C3 at Gering,
Nebraska, subject to the following conditions:

(a) Nothing contained herein shall be construed as authorizing any
    change in license

BLH-19960807KE except for the community as specified above. Any changes,
except those specified, require prior authorization pursuant to an
application for construction permit. (FCC Form 301).

(b) Program tests may be conducted in accordance with the provisions of
    Section 73.1620 of the Rules, PROVIDED the transmission facilities
    comply in all respects with license BLH-19960807KE except for the
    community as specified above, and a license application (Form 302)
    is filed within 10 days of commencement of program tests.

12\. IT IS FURTHER ORDERED, That the counterproposal filed by Tracy
Broadcasting Corporation for Channel 267C1 at Gering, Channel 280C1 at
Pine Bluffs, and Channel 267C at Bridgeport, Nebraska IS DENIED.

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

14\. For further information concerning this proceeding, contact Arthur
D. Scrutchins or Darrell Baugess at (202) 418-2180 or Andrew J. Rhodes
at (202) 418-2120.

FEDERAL COMMUNICATIONS COMMISSION

John A. Karousos

Chief, Allocations Branch

Policy and Rules Division

Mass Media Bureau

[^1]: Tracy is also the licensee of Stations KMOR-FM and KOLT(AM),
    Scottsbluff, NE, KOAQ(AM), Terrytown, NE, and KBFZ(FM), Kimball, NE,
    which are not involved in this proceeding.

[^2]: According to Tracy, the upgraded channel will allow the Pine
    Bluffs station to use a Tracy owned transmitter site located near
    Albin, Wyoming.

[^3]: [Public]{.underline} [Notice]{.underline} of the counterproposal
    was given on October 14, 1999, Report No. 2364.

[^4]: 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. \[Co-equal weight
    given to priorities (2) and (3).\]

[^5]: These proposals are mutually exclusive because Tracy's proposal to
    substitute Channel 280C1 at Pine Bluffs is short-spaced by
    approximately 150 kilometers to TSBII's proposal to allot Channel
    280C2 at Cheyenne under the Commission's minimum distance separation
    rules. The required spacing between these two channels is 224
    kilometers while the actual spacing is 73.6 kilometers.

[^6]: Currently there are 3 NCEFM, 5 commercial licensed FM stations and
    3 AM stations at Cheyenne, WY.

[^7]: We note that Tracy's Pine Bluffs and Bridgeport stations are
    unbuilt.

[^8]: A "gray area" is an area in which there is only one full-time
    aural reception service; a "white area" is an area in which there
    are no full-time aural reception services.

[^9]: [See]{.underline}, [e.g.]{.underline}, [Littlefield, Wolfforth,
    and Tahoka, TX]{.underline}, 12 FCC Rcd 3215 (Allocations Branch
    1997) (proposed change of community of license that would provide a
    first local transmission service in its current community of license
    the station could eliminate a white area, providing a first
    full-time reception service to 411 people).

[^10]: Specifically, 4,829 people would go from three to two services,
    1,843 people would go from four to three services, and 8,104 persons
    would go from five to four services.

[^11]: The reference coordinates for a Channel 280C2 allotment at
    Cheyenne, Wyoming are 41-08-17 North Latitude and 104-48-22 West
    Longitude with a site restriction of 1.3 kilometers (.64 miles)
    northeast. The reference coordinates for Channel 239C3 at Gering,
    Nebraska are 41-51-50 North Latitude and 103-42-20 West Longitude.

[^12]: We recognize that in [Seabrook and Huntsville, TX]{.underline},
    10 FCC Rcd 9360 (Commission 1995), the Commission held that a second
    aural service to 455 persons was [de]{.underline}
    [minimis]{.underline} and did not trigger priority (2) in view of a
    differential of 144,000 persons between the net gain in population
    of two competing upgrades. However, we believe that
    [Seabrook]{.underline} is distinguishable from the instant case
    because we are dealing with a higher allotment priority, first
    full-time reception service. Further, in [Seabrook]{.underline}, the
    Commission was comparing two mutually exclusive upgrades, one of
    which would provide a second full-time reception service as a
    positive public interest benefit. That case did not involve a
    proposal that would result in an loss of authorized first or second
    full-time reception services to individuals as the instant case
    does.

[^13]: Cheyenne currently has 3 noncommercial educational FM stations, 5
    commercial FM stations, and 3 AM stations. In addition, in MM Docket
    96-242, there is a pending proposal to allot Channel 229A to
    Cheyenne that could result in an additional allotment to that
    community. The sole counterproposal in that proceeding was recently
    withdrawn.