**Before the**

**FEDERAL COMMUNICATIONS COMMISSION**

**Washington, D.C. 20554**

In re Applications of )

)

GREEN VALLEY BROADCASTERS, INC. ) File No. BNP-20000201ADK

) Facility ID No. 122407

For a New AM Broadcast Station )

at Sahuarita, Arizona )

)

and )

)

NELSON MULTIMEDIA, INC. ) File No. BNP-20000201AGY

) Facility ID No. 122544

For a New AM Broadcast Station )

at Las Vegas, Nevada )

)

and )

)

KEMP COMMUNICATIONS, INC. ) File No. BNP-20000201AFX

) Facility ID No. 122525

For a New AM Broadcast Station )

at Las Vegas, Nevada )

# MEMORANDUM OPINION AND ORDER

**Adopted: May 25, 2004** **Released: July 16, 2004**

By the Commission: Commissioners Copps and Adelstein concurring and
issuing a joint statement.

1\. The Commission has before it the July 26, 2002, Applications for
Review filed by Green Valley Broadcasters, Inc. ("Green Valley"),
applicant for a new AM broadcast station at Sahuarita, Arizona,[^1] and
by Nelson Multimedia, Inc. ("Nelson"), applicant for a new AM broadcast
station at Las Vegas, Nevada.[^2] Green Valley's and Nelson's
applications were determined to be mutually exclusive ("MX") with the
application of Kemp Communications, Inc. ("Kemp") for a new AM broadcast
station at Las Vegas, Nevada.[^3] The three applications were filed
during the window for AM Broadcast Auction No. 32, and were designated
MX Group AM 4.[^4] Green Valley and Nelson request review of the Media
Bureau's ("Bureau") June 26, 2002, staff decision ("Staff Decision")[^5]
in which the Bureau dismissed Nelson's application, and awarded Kemp's
application a dispositive preference under Section 307(b) of the
Communications Act of 1934, as amended.[^6] For the reasons discussed
below, we deny the Applications for Review.

2\. **Background.** In the *Mutually Exclusive* *Public Notice* released
October 27, 2000,[^7] the Bureau requested, *inter alia*, amendments to
the parties' applications, containing supplemental information relating
to the fair, efficient, and equitable distribution of radio service
under Section 307(b). Kemp and Green Valley filed amendments pursuant to
the *Mutually Exclusive Public Notice*, but the Bureau did not receive
an amendment from Nelson.[^8] By letter dated October 22, 2001, the
Bureau sent a second request for Section 307(b) amendments to the
parties' applications.[^9] In the October Section 307(b) Request, the
Bureau offered all three applicants in MX Group AM 4 the opportunity to
submit either a new Section 307(b) amendment or, at their option, a
letter stating their desire to rely on a previously filed Section 307(b)
amendment.[^10] The October Section 307(b) Request also contained the
following statement:

> The staff will dismiss, without further processing, the short-form
> application submitted during the AM Auction No. 32 filing window of
> any applicant that fails to file, by November 26, 2001, either an
> amendment addressing the Section 307(b) criteria, or a letter request
> to consider its previous submission. *See* 47 C.F.R.
> § 73.3568(a)(1).[^11]

3\. In response to the October Section 307(b) Request, Kemp timely
submitted a revised Section 307(b) showing, while Green Valley timely
requested we consider its earlier amendment as its Section 307(b)
submission. Nelson submitted a letter indicating that it wished to rely
on its earlier Section 307(b) submission; however, as noted above,
Nelson had not previously filed a Section 307(b) amendment.[^12] Nelson
did not file such an amendment until March 14, 2002, over three months
after the deadline set forth in the (second) October Section 307(b)
Request.[^13] The cover letter was submitted by Nelson's counsel,
Jerrold Miller, Esq., and the attached amendment was signed by John
Neely, Esq., Nelson's and Green Valley's vice president and Green
Valley's counsel.[^14] In its March 14, 2002, submission, Nelson stated
it was "unable to verify" whether it had previously submitted a Section
307(b) showing, also requesting a waiver of the filing deadline if
necessary.[^15]

4\. In the Staff Decision, the Bureau dismissed Nelson's application for
failure to respond to the October Section 307(b) Request. Additionally,
to the extent Nelson sought waiver of the November 26, 2001, submission
deadline, the Bureau found no special circumstances warranting
waiver.[^16] The Bureau then performed a Section 307(b) analysis of the
competing Kemp and Green Valley applications, finding that neither
proposed first or second aural service or first local service, and
therefore evaluating the applications under Priority (4) of our
assignment priorities.[^17] The Bureau concluded that, due to the
substantially larger number of persons served, Kemp's proposal should be
awarded a dispositive Section 307(b) preference over Green
Valley's.[^18] The Bureau instructed Kemp to file a complete Form 301
application, indicating that Green Valley's application would be
dismissed upon grant of a construction permit to Kemp.[^19]

5\. **Discussion.** *Mutual exclusivity of applications*: Both Green
Valley and Nelson argue that Green Valley's application is not mutually
exclusive with either Nelson's or Kemp's, and therefore none of the
parties should have been required to submit Section 307(b) information.
Nelson and Green Valley argue that the Bureau erroneously relied on
Section 73.182 of our rules,[^20] which requires applicants to protect
existing stations but does not, in their view, apply to applicants for
new stations.[^21] However, we have already rejected this same argument
made by both parties, and find no reason to revisit our decision in this
regard.[^22] The three applications are mutually exclusive, and the
Bureau properly sought Section 307(b) information.

6\. *Dismissal of Nelson application*: Nelson argues that its
application was improperly dismissed. It claims that it "believes it did
provide the information requested by the Commission in response to the
Bureau's request, but the Commission is unable to locate its submission,
and Nelson has not been able to provide proof thereof."[^23] Nelson
further contends that the October Section 307(b) Request gave no
indication that the Bureau had not received the information Nelson
believed it submitted, and that "\[f\]airness and equity required the
Bureau" to have advised Nelson that it had not received any prior
Section 307(b) information.[^24] Finally, Nelson claims that "at worst
there was one instance of missing a deadline," and that therefore there
is insufficient reason to dismiss its application for failure to
prosecute.[^25]

7\. We reject Nelson's contentions. First, Nelson's subjective belief as
to whether it submitted 307(b) information in response to the Bureau's
*Mutually Exclusive* *Public Notice* is immaterial. The Commission's
Office of the Secretary routinely provides parties with date-stamped
copies of filed documents upon request at the time of filing. Despite
this, however, at no point has Nelson produced a date-stamped copy of a
filed 307(b) submission to demonstrate that its belief is accurate. The
Commission generally requires such evidence before it will reinstate an
application dismissed for failure to respond to a request for
information.[^26] Second, Nelson cites no authority for its proposition
that "fairness and equity" imposed on the Bureau an obligation to inform
Nelson of Nelson's failure to submit Section 307(b) information. Upon
receipt of the October Section 307(b) Request, it was incumbent upon
Nelson to determine whether it needed or desired to submit information.
Moreover, Nelson had not one but two opportunities to submit such
information, in February 2001 pursuant to the *Mutually Exclusive Public
Notice*, and again in November 2001 pursuant to the October Section
307(b) Request. In fact, the October Section 307(b) Request gave Nelson
the opportunity to correct its failure originally to submit Section
307(b) information in February 2001. Given Nelson's apparent uncertainty
over whether it had submitted such information in February 2001, it bore
the burden of re-submitting its Section 307(b) information in November
2001.[^27] Thus, it is incorrect to assert, as Nelson has, that there
was "at worst one instance of missing a deadline" -- it missed two
deadlines.[^28] Further, because both Nelson and Green Valley are
commonly owned, and are represented by the same law firm, and because
Green Valley timely submitted Section 307(b) information, Nelson
presents no valid reason for its failure to do so.[^29] Lastly, the
Commission has determined that the effective and expeditious dispatch of
the Commission's business is, in itself, an integral part of the public
interest.[^30] We therefore find no error in the Bureau's dismissal of
Nelson's application for failure to meet a clearly articulated deadline.

8\. We also reject Nelson's contention that the court's decision in
*Comuni-Centre* suggests that the Bureau erred in dismissing Nelson\'s
application. In *Comuni-Centre*, the court upheld the Commission's
dismissal of Comuni-Centre's application for failure to prosecute, after
it failed timely to file proposed findings of fact and conclusions of
law in a comparative hearing. Nelson urges that we may only dismiss its
application based on "a pattern of casual and dilatory conduct."[^31]
However, while the *Comuni-Centre* court found such a pattern of
misconduct in that case, it did not state that such a pattern was
necessary before dismissing an application for failure to prosecute.
Indeed, the court cited with approval Commission rules stating that
untimely submission of requested information can be a ground for
dismissal.[^32] Additionally, the court noted that the Administrative
Law Judge had specifically advised Comuni-Centre of the consequences of
its failure to file proposed findings.[^33]

9\. Likewise, in this case, the Bureau clearly advised applicants of the
consequences of failure to submit Section 307(b) information. In both
the *Mutually Exclusive Public Notice* and the October Section 307(b)
Request, the Bureau stated that it would dismiss without further
processing the application of any applicant that failed to file a
response thereto. Although Nelson filed a letter requesting that we
consider his (non-existent) prior submission, the fact is that as of the
November 26, 2001, deadline, Nelson had failed to provide any
information with which the Bureau could perform the required Section
307(b) analysis.[^34] Under Section 73.3568(a)(1) of our rules (cited in
the *Mutually Exclusive Public Notice* and the October Section 307(b)
Request), failure to respond to a request for additional information
will be cause for dismissal.[^35] The Bureau thus acted properly in
dismissing Nelson's application.

10\. *Section 307(b) determination*: Green Valley, in its Application
for Review, argues that the Bureau erred in finding a dispositive
Section 307(b) preference for Kemp's Las Vegas proposal. Specifically,
Green Valley contends that the Bureau failed to evaluate correctly the
respective needs of Sahuarita and Las Vegas for an additional local
service. Green Valley asserts that Commission precedent dictates that a
second local/first competitive service at Sahuarita is to be preferred
over a twentieth local service at Las Vegas.

11\. In this case, we agree with the Bureau that the significant
difference in respective populations receiving service warrants a
dispositive Section 307(b) preference for the Kemp Las Vegas proposal.
Specifically, Green Valley proposes to serve 439,500 persons in the
daytime and 20,122 at night, compared to Kemp's Las Vegas proposal,
which would serve 836,318 persons in the daytime and 520,241 at
night.[^36] We recognize that Green Valley proposes a second local
transmission service at Sahuarita, a community of 3,242 persons
according to the 2000 U.S. Census. However, the *FM Assignment Policies*
do not set forth a specific Section 307(b) priority for a second local
service.[^37] Instead, a second local transmission service would be
considered under Priority (4), other public interest matters. In view of
Sahuarita's proximity to the Tucson Urbanized Area and the fact there
are in excess of five aural services available to Sahuarita and Green
Valley's proposed service area,[^38] there is no reason to favor a
second local transmission service at Sahuarita under Priority (4) over
additional service to a substantially larger number of persons.

12\. Green Valley cites *Women's Broadcasting Coalition, Inc.*[^39] and
*Beacon Broadcasting*[^40] in support of its argument that Section
307(b) favors grant of its application over Kemp's. However, those cases
do not support Green Valley's contention that a second local service to
Sahaurita is entitled to a Section 307(b) preference, because both
decisions hinged upon the presence of relatively small "quiet villages"
with only marginal need for local transmission services. The Commission
determined in *Beacon Broadcasting* that Fairforest, South Carolina, as
a "minimally" qualified "licensable" community, was not entitled to
consideration as a first local service under Priority (3). In fact, the
Commission specifically stated that its decision "was limited to the
particular circumstance where an applicant proposes to serve a community
aptly described as a 'quiet village' and it has no applicability to
other cases where service is proposed for a clearly established,
separate and distinct community with palpable political, economic,
social and other needs."[^41] Thus, in the particular circumstances
before it, the Commission found only that proposed second local service
could be favored over first local service at a community with "tenuous
characteristics."[^42] There is no contention in this case that Las
Vegas, Nevada, is a "quiet village," thus *Beacon Broadcasting* is
inapposite. Similarly, *Women's Broadcasting Coalition* stands only for
the proposition that the Commission may rebut the Section 307(b)
presumption that every community of appreciable size is entitled to a
local transmission service, when the population of that community is
very small.[^43] The Commission thus determined that proposed first
local service at Bluffton, South Carolina, with a population of 541
persons, did not merit a dispositive Section 307(b) preference over
proposed second local service at the larger community of Hilton Head,
South Carolina. *Women's Broadcasting Coalition* is thus also
distinguishable from the case before us.

13\. In a footnote Green Valley states that what it claims was "the
policy enunciated in *Beacon* \[*Broadcasting*\]" was also applied in
*Elijah Broadcasting Corp.*[^44] That case is also distinguishable from
the present case. *Elijah Broadcasting* also involved competing
proposals for first local services -- at Reston, Virginia, and
Walkersville, Maryland. Consistent with prior decisions,[^45] the Review
Board determined that the larger community of Reston (with a population
of 40,093 persons, compared to Walkersville's population of 3,200) had a
greater need for a first local service. The fact that the Walkersville
proposal would have served more persons (472,800 vs. 409,208) did not
override the Section 307(b) benefit of a first local service to the
larger community.[^46] This determination was reinforced by the fact the
populations receiving additional service already received in excess of
five aural services; however, contrary to Green Valley's assertion,
*Elijah Broadcasting* does not stand for the proposition that "overall
population within the coverage area is ignored when such population is
presently well served."[^47] When comparing two or more proposals for
first local transmission service (which is not the case here), size of
the community is almost always the deciding factor.[^48]

14\. Green Valley also contends that the Bureau's action was
inconsistent with *Greenfield and Del Rey Oaks, California.*[^49] This
case, too, is distinguishable and does not support Green Valley's
contention of staff error. In *Greenfield,* the staff denied a proposal
by Troposphere Broadcasting L.P. ("Troposphere"), the permittee of
KSEA(FM), Greenfield, California, to substitute FM Channel 300A for
Channel 300B at Greenfield, reallot Channel 300A to Del Rey Oaks,
California, and modify the unbuilt KSEA(FM) permit to specify operation
on Channel 300A at Del Rey Oaks.[^50] Troposphere first contended that
the move to Del Rey Oaks would provide first local service to that
community, compared to second local service at Greenfield. The staff
disagreed, finding that Del Rey Oaks was not sufficiently independent of
the Seaside-Monterey Urbanized Area to warrant a first local service
preference under Priority (3).[^51] The staff further concluded that
granting Troposphere's request to move KSEA(FM) to the Seaside-Monterey
Urbanized Area would not result in a preferential arrangement of
allotments. Although the reallotment proposal would have resulted in
additional service to a number of persons, it would have required
KSEA(FM) to downgrade, and the gain in service would be to areas already
abundantly served.[^52] Also, the original KSEA(FM) allotment at
Greenfield proposed a fourth reception service to over 3,000 persons and
fifth reception service to over 8,000. Because the staff in *Greenfield*
was determining whether to allow an existing permittee to move its
facility to a different community, that case involved a different
analysis than the instant case. In contrast, at issue here is an
evaluation of two separate proposals for new facilities to serve two
different communities. As noted above, our *FM Assignment Policies* do
not provide a priority for a new second local transmission service.[^53]
*Greenfield* thus does not support Green Valley's contention. We find no
error in the Bureau's award of a dispositive preference to Kemp under
Priority (4) of the *FM Assignment Policies*.[^54]

15\. **Conclusion.** For the foregoing reasons, the Application for
Review filed by Nelson Multimedia, Inc. IS DENIED, and the Application
for Review filed by Green Valley Broadcasters, Inc. IS DENIED.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

JOINT STATEMENT OF

COMMISSIONERS MICHAEL J. COPPS AND JONATHAN S. ADELSTEIN

CONCURRING

*Re:* *Green Valley Broadcasters, Inc., For a New AM Broadcast Station
at Sahuarita, Arizona et al., Memorandum Opinion and Order; Nelson
Enterprises, Inc., For a New AM Broadcast Station at Plano, Illinois et
al., Memorandum Opinion and Order; and Robert E. Combs, For a
Construction Permit for a New AM Station at Boise, Idaho, Memorandum
Opinion and Order*

Section 307(b) directs the Commission to distribute licenses across the
nation to ensure the "fair, efficient, and equitable distribution of
radio service." In circumstances of mutually exclusive AM or FM
applications, the Commission uses assignment priorities established in
1982 to effectuate Section 307(b)'s objectives. While the first three
priorities are more straightforward, the fourth priority embodies a
catch-all "other public interest matters."

We are concerned that in practice this priority has devolved into a raw
population comparison where the applicant seeking to serve the larger,
more urban area nearly always wins irrespective of the number of
stations already serving each community. While service to a greater
population is an important criterion under our public interest
examination, we have concerns when it becomes the sole criterion. As a
general public interest priority, an applicant should have a chance to
convince us that there are other compelling reasons -- beyond mere
population -- to award its proposal a dispositive preference. In a
handful of cases the Commission has entertained other showings to
discount the raw population totals, yet that process requires applicants
to undertake complicated and costly engineering calculations, straining
the resources of both applicants and the Commission.

We believe there are ways to simplify the process and ensure rural
applicants an opportunity to compete on a more even footing. We urge
that in the near future the Commission will give some thought to
reevaluating its allocation policies, and in particular its treatment of
the public interest assignment priority. It is vital that the Commission
provide all applicants -- whether seeking to serve rural or urban
America -- an effective process to achieve the distribution goals set
forth by Congress.

[^1]: File No. BNP-20000201ADK.

[^2]: File No. BNP-20000201AGY. Nelson and Green Valley are commonly
    owned entities. Larry and Pamela Nelson hold 97.5% of Green Valley's
    voting stock as joint tenants, as well as 78% of Nelson's voting
    stock. The two entities also share common officers, and are
    represented by the same law firm.

[^3]: File No. BNP-20000201AFX.

[^4]: *Public Notice*, "AM Auction No. 32 Mutually Exclusive Applicants
    Subject to Auction," 15 FCC Rcd 20449 (MMB 2000) ("*Mutually
    Exclusive Public Notice*"), extended by *Public Notice*, "AM Auction
    No. 32 Mutually Exclusive Applicants -- Settlement Period and
    Section 307(b) Filing Period Extended to February 28, 2001," 15 FCC
    Rcd 24644 (MMB 2000).

[^5]: *Letter to Green Valley Broadcasters, Inc, et al.*, Ref. No.
    1800B3-TSN (MB June 26, 2002).

[^6]: 47 U.S.C. § 307(b) ("Section 307(b)").

[^7]: *See supra* note 4.

[^8]: Nelson states it "believes" it filed such an amendment. *See*,
    *e.g*., Nelson Application for Review at 2.

[^9]: *Letter to Green Valley Broadcasters, Inc., Kemp Communications,
    Inc., and Nelson Multimedia, Inc., from Peter H. Doyle, Chief, Audio
    Services Division, Mass Media Bureau*, Ref. No. 1800B3-TSN (MMB Oct.
    22, 2001) ("October Section 307(b) Request"). The October Section
    307(b) Request bore OMB Control No. 3060-0996.

[^10]: October Section 307(b) Request at 2-3.

[^11]: *Id*. at 3.

[^12]: Nelson submitted a letter dated November 23, 2001, and signed by
    Mr. Larry Nelson, Nelson's president, requesting that we consider
    its "already filed" Section 307(b) submission, presumably filed in
    response to the *Mutually Exclusive Public Notice*. *See supra* note
    4. The Bureau has no record of ever having received the "already
    filed" submission from Nelson. Mr. Nelson filed an identical letter,
    also dated November 23, 2001, as president of Green Valley,
    requesting that we consider Green Valley's original February 28,
    2001, Section 307(b) submission.

[^13]: October Section 307(b) Request at 3.

[^14]: Mr. Neely also signed Green Valley's original February 28, 2001,
    Section 307(b) submission as vice president of that corporation.

[^15]: *Letter to William F. Caton, Acting Secretary, from Jerrold
    Miller, Esq.* (Mar. 14, 2002), at 2.

[^16]: Staff Decision at 3.

[^17]: *See Revision of FM Assignment Policies and Procedures*, 90
    F.C.C.2d 88 (1982) ("*FM Assignment Policies*"). The FM allotment
    priorities are as follows: (1) First fulltime aural service, (2)
    Second fulltime aural service, (3) First local service, and (4)
    Other public interest matters. Co-equal weight is given to
    Priorities (2) and (3). The priorities set forth in *FM Assignment
    Policies* are also used in evaluating applicants for new AM
    stations. *Alessandro Broadcasting Co.*, 99 FCC 2d 1 (1984). The
    Bureau specifically stated that the priorities set forth in *FM
    Assignment Policies* would be applied in AM Auction No. 32.
    *Mutually Exclusive Public Notice*, 15 FCC Rcd at 20451.

[^18]: *Id*. at 4-5.

[^19]: *Id*. at 5. Kemp timely filed its complete Form 301 application
    July 26, 2002 (File No. BNP-20020726ACT). In the Staff Decision the
    Bureau also denied Kemp's Petition to Dismiss the Nelson and Green
    Valley applications. Kemp argued that, because Nelson and Green
    Valley have common owners and officers and are represented by the
    same law firm, they should be considered the same applicant and
    thus, under 47 C.F.R. § 73.3518, should have been prohibited from
    filing inconsistent, mutually exclusive applications. Kemp does not
    seek review of the Bureau's denial of its Petition to Dismiss.

[^20]: 47 C.F.R. § 73.182.

[^21]: *See* Nelson Application for Review at 4-5; Green Valley
    Application for Review at 3-4.

[^22]: *Nelson Enterprises, Inc.*, 18 FCC Rcd 3414 (2003). Neither Green
    Valley nor Nelson sought reconsideration or court review of *Nelson
    Enterprises, Inc.*

[^23]: Nelson Application for Review at 2.

[^24]: *Id*. at 7.

[^25]: *Id*. at 6-7, citing *Comuni-Centre Broadcasting, Inc. v.
    F.C.C.*, 856 F.2d 1551 (D.C. Cir. 1988) ("*Comuni-Centre*").

[^26]: *See*, *e.g.*, *Mableton Broadcasting Co., Inc.*, 8 FCC Rcd 7020
    (Rev. Bd. 1993) (dismissal of application overturned when petitioner
    filed affidavits indicating all documents had been filed, attaching
    stamped copies of filed documents).

[^27]: It should be noted that the Bureau, in the October Section 307(b)
    Request, set forth the option of relying upon earlier submissions as
    a convenience to applicants who had, in some cases, already
    submitted lengthy Section 307(b) amendments. Thus, an applicant that
    was confident it had already submitted Section 307(b) information,
    and which did not want to re-file, need not have done so. However,
    this in no way prevented any applicant from re-submitting or
    amending its Section 307(b) showing and, as noted in the text,
    afforded a second chance to any applicant that either failed to
    submit such information originally or was uncertain as to whether it
    had submitted such information.

[^28]: Nelson Application for Review at 6-7.

[^29]: This fact likewise precludes a finding of "special circumstances"
    necessary to justify a waiver of the submission deadline. *See*,
    *e.g*., *Northeast Cellular Telephone Co. v. F.C.C.,* 897 F.2d 1164,
    1166 (D.C. Cir. 1990) ("\[A\] waiver is appropriate only if special
    circumstances warrant a deviation from the general rule and such
    deviation will serve the public interest," citing *WAIT Radio v.
    F.C.C.*, 418 F.2d 1153, 1157-59 (D.C. Cir. 1969). *See also Melody
    Music, Inc. v. F.C.C.*, 345 F.2d 730, 732 (D.C. Cir. 1965)
    (Commission must explain reasons for treating similarly situated
    applicants differently).

[^30]: *Hillebrand Broadcasting, Inc.*, 1 FCC Rcd 419 (1986)
    ("*Hillebrand*").

[^31]: 856 F.2d at 1555; Nelson Application for Review at 6-7.

[^32]: 856 F.2d at 1554 n.21, 1556 and n.39. *See also* 47 C.F.R. §
    73.3568(a)(1) ("Failure to prosecute an application, or failure to
    respond to official correspondence or request for additional
    information, will be cause for dismissal.").

[^33]: 856 F.2d at 1556 and n.37.

[^34]: *Implementation of Section 309(j) of the Communications
    Act-Competitive Bidding for Commercial Broadcast and Instructional
    Television Fixed Services Licenses* ("*Broadcast First Report and
    Order*"), 13 FCC Rcd 15920, 15964-65 (1998); *recon denied*, 14 FCC
    Rcd 8724 (1999); *modified*, 14 FCC Rcd 12541 (1999).

[^35]: 47 C.F.R. § 73.3568(a)(1).

[^36]: The daytime populations listed are those encompassed within each
    proposal's 0.5 mV/m contour.

[^37]: *See supra* note 17.

[^38]: We consider five or more services to be "abundant." *Family
    Broadcasting Group,* 53 RR2d 662 (Rev. Bd. 1983), *rev. denied* FCC
    83-559 (Nov. 29, 1983), *see also LaGrange and Rollingwood, Texas,*
    10 FCC Rcd 3337 (1995).

[^39]: 59 RR2d 730 (1986), *aff'd without opinion sub nom*. *Plantation
    Broadcasting Corp. v. F.C.C*., 812 F.2d 1443 (D.C. Cir. 1987).

[^40]: 2 FCC Rcd 7562 (1987), *aff'd sub nom*. *New South Broadcasting
    Corp. v. F.C.C*., 879 F.2d 867 (D.C. Cir. 1989).

[^41]: 2 FCC Rcd at 7563.

[^42]: *Id*.

[^43]: *Santee Cooper Broadcasting Company of Hilton Head, Inc.*, 99
    F.C.C.2d 781, 786-91 (Rev. Bd. 1984), *aff'd, Women's Broadcasting
    Coalition*, *supra* note 39.

[^44]: 3 FCC Rcd 5148 (Rev. Bd. 1988), *remanded*, 5 FCC Rcd 5350
    (1990). Green Valley Application for Review at 8 n.7.

[^45]: *See*, *e.g.*, *West Liberty and Richwood, Ohio,* 6 FCC Rcd 6084
    (MMB 1991); *Three Oaks and Bridgman, Michigan,* 5 FCC Rcd 1004 (MMB
    1990).

[^46]: *See* *also* *Blanchard, Louisiana and Stephens, Arkansas*, 10
    FCC Rcd 9828, 9829 (1995) (when comparing first local service
    proposals for two well-served communities, the Commission bases its
    decision on a straight population comparison between the
    communities, even when the population differential is as small as 38
    persons).

[^47]: Green Valley Application for Review at 13.

[^48]: *See supra* note 45.

[^49]: 11 FCC Rcd 12681 (MMB 1996) ("*Greenfield*").

[^50]: Significantly, this request was filed and decided pursuant to
    *Modification of FM and TV Authorizations to Specify a New Community
    of License ("Community of License"),* 4 FCC Rcd 4870 (1989), *recon.
    granted in part* 5 FCC Rcd 7094 (1990). *Community of License*
    permits the modification of a station authorization to specify a new
    community of license if the proposed reallotment will result in a
    preferential arrangement of allotments.

[^51]: *Greenfield*, *supra* note 49, 11 FCC Rcd at 12683-84.

[^52]: *Id*. at 12685.

[^53]: *See supra* note 17.

[^54]: We need not discuss at length Green Valley's contention that the
    Bureau's action is contrary to the policies enunciated by the court
    of appeals in *Pasadena Broadcasting Co. v. F.C.C.*, 555 F.2d 1046
    (D.C. Cir. 1977) ("*Pasadena Broadcasting*"), as that case is
    clearly distinguishable. In *Pasadena Broadcasting* the Commission
    originally awarded a Section 307(b) preference to Los Angeles over a
    mutually exclusive proposal for first local service at Newport
    Beach, California, citing the larger populations to be served by the
    Los Angeles proposals. In reversing this determination, the court
    favored the first local service proposal. The subsequently adopted
    Priority (3) of *FM Assignment Priorities* echoes *Pasadena
    Broadcasting's* holding that first local service proposals should be
    preferred over proposals merely complementing "preexisting local
    operations." *Id*. at 1050. Again, however, Green Valley does not
    propose first local service at Sahuarita, and *Pasadena
    Broadcasting* does not stand for the proposition that an applicant
    merely proposing the community with fewer local transmission
    services is to be favored.