> **DA 07-1942**

*In Reply Refer to:*

1800B3-TSN

> Released: April 30, 2007

Ms. Teresa Prieto

239 Ezzard Street

Lawrenceville, GA 30045

In re: **AM Broadcast Auction No. 84**

**Teresa Prieto**

> WPLO(AM), Grayson, Georgia

Facility ID No. 8066 File No. BMJP-20041029AEY

**Application for Major Modification to**

**AM Broadcast Station**

Dear Ms. Prieto:

This letter refers to the above-noted application, filed October 29,
2004, by Teresa Prieto ("Prieto"), for major modification to the
facilities of station WPLO(AM), Grayson, Georgia, seeking to change the
community of license from Grayson to Lawrenceville, Georgia. For the
reasons set forth below, we dismiss the application.

**Background**. Prieto timely filed her FCC Form 175 application to
change the WPLO(AM) community of license during the filing window for AM
Auction No. 84 ("Auction 84").[^1] The application was determined not to
be mutually exclusive with any other proposal filed in the Auction 84
filing window, and Prieto was invited to file her complete FCC Form 301
application by October 29, 2004.[^2] Prieto timely filed her complete
FCC Form 301 application on October 29, 2004. Prieto proposes only a
change in community of license, with no change to the WPLO(AM) technical
facilities. Prieto was thereafter instructed to submit an amendment
addressing the implications of the proposed community change under
Section 307(b) of the Communications Act of 1934, as amended, which
directs the Commission to make a "fair, efficient, and equitable"
distribution of radio service among communities in the United
States.[^3] Prieto timely filed her Section 307(b) amendment on July 13,
2005.

WPLO(AM) is the sole local transmission service licensed at Grayson,
Georgia (2000 Census population 765). Prieto proposes to change
WPLO(AM)'s community of license to Lawrenceville, Georgia (2000 Census
population 22,397) as that community's first local radio transmission
service. Prieto's Section 307(b) analysis indicates that Grayson will
continue to receive protected service[^4] from at least five
stations.[^5]

**Discussion**. Our policies on allowing broadcast stations to change
their communities of license are based on Section 307(b) and the goals
of fair, efficient, and equitable distribution of radio service that
underlie it. Our *FM Assignment Policies* delineate three core
priorities: provision of first aural reception service to a community,
provision of second aural reception service to a community, and
provision of first local transmission service at a community.[^6] The
fourth priority is "other public interest matters," which encompasses
any other factors that the Commission may take into consideration.[^7]
Retention of the first local service at Grayson, and the institution of
first local service at Lawrenceville, implicate Priority (3) -- first
local transmission service. However, notwithstanding that the existing
and proposed arrangements of stations both trigger the same allotment
priority, the Commission prohibits the removal of an existing station
representing a community's sole local transmission service.[^8] This
policy is subject, as are all Commission policies, to waiver under
appropriate circumstances.[^9] However, the Commission has emphasized
that "the fact that a proposal would create a new local service (at the
expense of an existing service) is not sufficient, by itself, to warrant
a waiver."[^10] Rather, such a proposal "is presumptively contrary to
the public interest."[^11] In this regard, the Commission has stated
that:

> The public has a legitimate expectation that existing service will
> continue, and this expectation is a factor we must weigh independently
> against the service benefits that may result from reallotting of a
> channel from one community to another, regardless of whether the
> service removed constitutes a transmission service, a reception
> service, or both. Removal of service is warranted only if there are
> sufficient public interest factors to offset the expectation of
> continued service.[^12]

Prieto does not request waiver of this policy, stating only that
"Lawrenceville is a much larger community than Grayson, but . . . is
lacking any audio transmission facility," and that "the much larger
community of Lawrenceville plainly is more deserving of an audio
transmission service than the smaller community of Grayson."[^13] While
Lawrenceville is unquestionably the larger community, and would be
preferred if this were a comparison between proposals for new service,
this in and of itself does not justify a change of community of license
that would deprive the community of Grayson of a radio service on which
it has come to rely for programming serving its needs. The Commission
has held that the fact that a licensee proposes to remove a station to a
larger community does not by itself justify the removal of a smaller
community's sole local broadcast service.[^14] However, this is the only
public interest justification proffered by Prieto in support of her
application.

Therefore, we cannot find, on the existing record in this case, that
there are sufficient public interest factors to offset the expectation
of continued local service at Grayson, Georgia. Accordingly, we cannot
find that the public interest, convenience, and necessity will be served
by Prieto's proposal. Therefore, the application of Teresa Prieto, File
No. BMJP-20041029AEY, for major modification to change the community of
license of station WPLO(AM), Grayson, Georgia, IS DISMISSED.

Sincerely,

Peter H. Doyle

Chief, Audio Division

Media Bureau

cc: George L. Lyon, Jr., Esq., Counsel for Ms. Teresa Prieto

[^1]: *See AM New Station and Major Modification Auction Filing Window;
    Minor Modification Application Freeze*, Public Notice, 18 FCC Rcd
    23016 (MB/WTB 2003).

[^2]: *See AM Auction No. 84 Singleton Applications*, Public Notice, 19
    FCC Rcd 16655 (MB 2004).

[^3]: 47 U.S.C. § 307(b). *See Section 307(b) Amendment Deadline
    Established for Certain AM Auction No. 84 Singleton Applications*,
    Public Notice, 20 FCC Rcd 10710 (MB 2005).

[^4]: 5mV/m for AM stations and 3.16 mV/m (70 dBµ) for FM stations.

[^5]: Prieto lists two AM and six FM stations other than WPLO(AM)
    currently providing protected service to Grayson, Georgia: WSB(AM)
    and WABE(FM), both licensed at Atlanta, Georgia; WBTS(FM) and
    WFOX(FM), both licensed at Gainesville, Georgia; WCNN(AM), North
    Atlanta, Georgia; WFSH-FM, Athens, Georgia; WBTS(FM), Doraville,
    Georgia; and WLKQ-FM, Buford, Georgia. The Commission has determined
    that a community receiving service from at least five stations is
    abundantly served. *See* *Family Broadcasting Group*, Decision, 93
    FCC2d 771 (Rev. Bd. 1983), *review denied*, FCC 83-559 (Nov. 29,
    1983); *see also LaGrange and Rollingwood, Texas*, Memorandum
    Opinion and Order, 10 FCC Rcd 3337 (MMB 1995).

[^6]: *Revision of FM Assignment Policies and Procedures*, Second Report
    and Order, 90 FCC2d 88, 91-93 (1982). Priorities (2) and (3) are
    co-equal. The FM allotment priorities are applied to Section 307(b)
    determinations for community change proposals for AM stations.
    *Allesandro Broadcasting Co.*, Decision, 99 FCC2d 1 (Rev. Bd. 1984).

[^7]: *Revision of FM Assignment Policies and Procedures*, 90 FCC2d at
    93.

[^8]: *Amendment of the Commission's Rules Regarding Modification of FM
    and TV Authorizations to Specify a New Community of License,* Report
    and Order, 4 FCC Rcd 4870 (1989) ("*New Community R & O*"), *recon.
    granted in part*, Memorandum Opinion and Order, 5 FCC Rcd 7094, 7097
    (1990) ("*New Community MO&O*"). The Commission re-affirmed this
    policy in *Revision of Procedures Governing Amendments to FM Table
    of Allotments and Changes of Community of License in the Radio
    Broadcast Services*, Report and Order, 21 FCC Rcd 14212, 14227-30
    (2006).

[^9]: *Id*. On waiver standards generally, *see* *Northeast Cellular
    Telephone Co. v. F.C.C.,* 897 F.2d 1164, 1166 (D.C. Cir. 1990)
    ("*Northeast Cellular*") ("\[A\] 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) ("*WAIT
    Radio*").

[^10]: *New Community MO&O*, 5 FCC Rcd at 7097.

[^11]: *Id*.

[^12]: *Id*.

[^13]: Exhibit 1 to Prieto Application, Section 307(b) Showing.

[^14]: *See*, *e.g.*, *Potts Camp and Saltillo, Mississippi*, Memorandum
    Opinion and Order, 16 FCC Rcd 16116 (2001) (denying relocation of
    sole local service at a town of 483 to a town of 1,782).