**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Amendment of Section 73.202(b), ) MM Docket No. 00-101

Table of Allotments, ) RM-9885

FM Broadcast Stations. )

(Sparta and Buckhead, Georgia) )

**[NOTICE OF PROPOSED RULE MAKING]{.underline}**

**Adopted: May 24, 2000 Released: June 2, 2000**

Comment Date: July 24, 2000

Reply Comment Date: August 8, 2000

By the Chief, Allocations Branch:

1\. The Commission has before it the petition for rule making filed by
Barinowski Investment Company (\"petitioner\") requesting the
substitution of Channel 274C3 for Channel 274A, its reallotment from
Sparta to Buckhead, Georgia, as the community\'s first local aural
service, and the modification of Station WPMA(FM)\'s license
accordingly. Petitioner states that it will promptly file an application
for Channel 274C3, if allotted to Buckhead.

2\. Petitioner states that the reallotment of Channel 274C3 to Buckhead
and concomitant relicensing of Station WPMA(FM) would result in a
preferential arrangement of allotments since it would provide the
community with its first local aural service without depriving Sparta of
its sole local aural service.[^1] Petitioner notes that Buckhead was
incorporated in 1887, with its first United States post office
established in 1823 and its first church established in 1824. It states
that at the present time Buckhead is considered to be Morgan County\'s
point of access to living on Lake Oconee, a growing recreational area.
In addition, petitioner states that Station WPMA(FM), as a Class C3
Buckhead facility, could serve a \"considerably\" larger area.

3\. Section 307(b) of the Communications Act of 1934, as amended,
requires that the Commission allot channels \"among the several states
and communities.\" The Commission has defined a community as a
geographically identifiable population grouping. Generally, if a
community is incorporated or listed in the U.S. Census, that is
sufficient to satisfy its status. Absent such recognizable community
factors, the petitioner must present the Commission with sufficient
information to demonstrate that such a place has social, economic, or
cultural indicia to qualify it as a community for allotment purposes.
[See]{.underline}, [Pleasant Dale, Nebraska]{.underline}, 14 FCC Rcd
18893 (1999), [Avon, North Carolina]{.underline}, 14 FCC Rcd 3939 (1999)
and [Thermal, California]{.underline}, 15 FCC Rcd 2100 (2000). We
recognize that Buckhead is incorporated and listed in the 1990 U.S.
Census as a town, with a population of 176. However, we may find that a
grouping of 176 people does not constitute a community for allotment
purposes where the community may be devoid of the customary factors
associated with determining community status, such as a local
government, library, schools, shopping centers, churches, a newspaper
and social or civic organizations. [See­, Searles Valley,
California]{.underline}, 3 FCC Rcd 5221 (1988) and [Naples,
Florida]{.underline}, 41 RR 2d 1549 (1971). In addition, in past cases,
we have rejected claims of community status where a nexus has not been
shown between the political, social, economic and governmental indicia
to qualify it as a \"community\" for allotment purposes.
[See]{.underline}, [Gretna, Marianna, Quincy and Tallahassee,
Florida]{.underline}, 6 FCC Rcd 633 (1991) and cases cited therein.
Buckhead has a post office and two zip codes, 30625, which the U.S.
Census states serves 1222 people, and 30650, which the U.S. Census
attributes to Madison, GA, and serving 8855 people. However, we have
been unable to determine that Buckhead has any other indicia of
community status beyond four churches and two restaurants. Therefore,
petitioner should provide information concerning any local governmental
entities, community organizations, civic groups, etc., which exist and
show that they have a nexus with Buckhead.

4\. In addition, our review of petitioner\'s proposal finds that Sparta,
with a 1990 U.S. population of 1,710 people, would be deprived of its
sole local aural service if Station WPMA were reallotted to Buckhead.
While petitioner states that the community would continue to receive
local aural service from noncommercial educational Station WJDS,
Commission records show that the station is not yet licensed and on the
air. In [Modification of FM and TV Authorizations to Specify a New
Community of License]{.underline} (\"[Change of Community
R&O]{.underline}\"), 4 FCC Rcd 4870 (1989), [recon. granted in
part]{.underline} (\"[Change of Community MO&O]{.underline}\"), 5 FCC
Rcd 7094 (1990), the Commission stated that either a vacant allotment or
a construction permit was not a substitute for an operating station.
However, the Commission went on to state that under very limited
circumstances, the removal of a community\'s sole local service could be
justified if there are compelling public interest factors to offset the
expectation of continued service. Therefore, petitioner should provide
further information demonstrating how the public interest would be
served by providing the smaller community of Buckhead with its first
local aural service at the expense of Sparta losing its sole existing
local aural service. Petitioner is also requested to provide information
concerning the population and reception services within the loss and
gain areas which will occur if Channel 274C3 is reallotted to Buckhead.

5\. We believe petitioner\'s proposal warrants consideration since the
substitution of Channel 274C3 for Channel 274A and its reallotment from
Sparta to Buckhead could provide it with its first local aural service,
if it is ultimately found to be a community for allotment purposes and
to provide a public interest benefit sufficient to warrant the removal
of Sparta\'s sole local aural service. Channel 274C3 can be allotted to
Buckhead in compliance with the Commission\'s minimum distance
separation requirements with a site restriction of 6.4 kilometers (4.0
miles) southeast to avoid a short-spacing to Stations WGMG, Channel
271C3, Crawford, Georgia, and WVEE, Channel 277C, Atlanta, Georgia.[^2]
We have also determined that Channel 274C3, if allotted to Buckhead,
would not provide 70 dBu service to any Urbanized Areas.

6\. Accordingly, we seek comments on the proposed amendment of the FM
Table of Allotments, Section 73.202(b) of the Commission\'s Rules, for
the community listed below, to read as follows:

[Channel No.]{.underline}

[City]{.underline} [Present]{.underline} [Proposed]{.underline}

Buckhead, Georgia \-- 274C3

Sparta, Georgia 274A \--

7\. The Commission\'s authority to institute rule making proceedings,
showings required, cut-off procedures, and filing requirements are
contained in the attached Appendix and are incorporated by reference
herein. In particular, we note that a showing of continuing interest is
required by paragraph 2 of the Appendix before a channel will be
allotted.

8\. Interested parties may file comments on or before July 24, 2000, and
reply comments on or before August 8, 2000, and are advised to read the
Appendix for the proper procedures. Comments should be filed with the
Secretary, Federal Communications Commission, Washington, D.C. 20554.
Additionally, a copy of such comments should be served on the
petitioner, or its counsel or consultant, as follows:

Jeffrey Southmayd

Southmayd & Miller

1220 19th Street, N.W.

Suite 400

Washington, D.C. 20036

(Counsel to petitioner)

9\. The Commission has determined that the relevant provisions of the
Regulatory Flexibility Act of 1980 do not apply to rule making
proceedings to amend the FM Table of Allotments, Section 73.202(b) of
the Commission\'s Rules. [See]{.underline} [Certification That Sections
603 and 604 of the Regulatory]{.underline} [Flexibility Act Do Not Apply
to Rule Making to Amend Sections 73.202(b), 73.504]{.underline} [and
73.606(b) of the Commission\'s Rules]{.underline}, 46 FR 11549, February
9, 1981.

10\. For further information concerning this proceeding, contact
Leslie K. Shapiro, Mass Media Bureau, (202) 418-2180. For purposes of
this restricted notice and comment rule making proceeding, members of
the public are advised that no [ex parte]{.underline} presentations are
permitted from the time the Commission adopts a Notice of Proposed Rule
Making until the proceeding has been decided and such decision is no
longer subject to reconsideration by the Commission or review by any
court. An [ex parte]{.underline} presentation is not prohibited if
specifically requested by the Commission or staff for the clarification
or adduction of evidence or resolution of issues in the proceeding.
However, any new written information elicited from such a request or a
summary of any new oral information shall be served by the person making
the presentation upon the other parties to the proceeding unless the
Commission specifically waives this service requirement. Any comment
which has not been served on the petitioner constitutes an [ex
parte]{.underline} presentation and shall not be considered in the
proceeding. Any reply comment which has not been served on the person(s)
who filed the comment, to which the reply is directed, constitutes an
[ex parte]{.underline} presentation and shall not be considered in the
proceeding.

FEDERAL COMMUNICATIONS COMMISSION

John A. Karousos

Chief, Allocations Branch

Policy and Rules Division

Mass Media Bureau

Attachment: Appendix

[APPENDIX]{.underline}

1\. Pursuant to authority found 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
PROPOSED TO AMEND the FM Table of Allotments, Section 73.202(b) of the
Commission\'s Rules and Regulations, as set forth in the [Notice of
Proposed Rule Making]{.underline} to which this Appendix is attached.

2\. [Showings Required]{.underline}. Comments are invited on the
proposal(s) discussed in the [Notice of Proposed Rule
Making]{.underline} to which this Appendix is attached. Proponent(s)
will be expected to answer whatever questions are presented in initial
comments. The proponent of a proposed allotment is also expected to file
comments even if it only resubmits or incorporates by reference its
former pleadings. It should also restate its present intention to apply
for the channel if it is allotted and, if authorized, to build a station
promptly. Failure to file may lead to denial of the request.

3\. [Cut-off protection]{.underline}. The following procedures will
govern the consideration of filings in this proceeding.

\(a\) Counterproposals advanced in this proceeding itself will be
considered, if advanced in initial comments, so that parties may comment
on them in reply comments. They will not be considered if advanced in
reply comments. ([See]{.underline} Section 1.420(d) of the Commission\'s
Rules).

\(b\) With respect to petitions for rule making which conflict with the
proposals in this [Notice]{.underline}, they will be considered as
comments in the proceeding, and Public Notice to this effect will be
given as long as they are filed before the date for filing initial
comments herein. If they are filed later than that, they will not be
considered in connection with the decision in this docket.

\(c\) The filing of a counterproposal may lead the Commission to allot a
different channel than was requested for any of the communities
involved.

4\. [Comments and Reply Comments; Service]{.underline}. Pursuant to
applicable procedures set out in Sections 1.415 and 1.420 of the
Commission\'s Rules and Regulations, interested parties may file
comments and reply comments on or before the dates set forth in the
[Notice of Proposed Rule Making]{.underline} to which this Appendix is
attached. All submissions by parties to this proceeding or by persons
acting on behalf of such parties must be made in written comments, reply
comments, or other appropriate pleadings. Comments shall be served on
the petitioner by the person filing the comments. Reply comments shall
be served on the person(s) who filed comments to which the reply is
directed. Such comments and reply comments shall be accompanied by a
certificate of service. ([See]{.underline} Section 1.420(a), (b) and (c)
of the Commission\'s Rules.) Comments should be filed with the
Secretary, Federal Communications Commission, Washington, D.C. 20554.

5\. [Number of Copies]{.underline}. In accordance with the provisions of
Section 1.420 of the Commission\'s Rules and Regulations, an original
and four copies of all comments, reply comments, pleadings, briefs, or
other documents shall be furnished the Commission.

6\. [Public Inspection of Filings]{.underline}. All filings made in this
proceeding will be available for examination by interested parties
during regular business hours in the Commission\'s Reference Information
Center, at its headquarters, 445 12th Street, S.W., Washington, D.C.

[^1]: Petitioner states that Sparta will retain local aural service from
    noncommercial educational Station WJDS(FM).

[^2]: The coordinates for Channel 274C3 at Buckhead are 33-31-40 North
    Latitude and 83-18-45 West Longitude.