**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

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

Table of Allotments, ) RM-9047

FM Broadcast Stations. )

(Mt. Juliet and Belle Meade, )

Tennessee) )

[MEMORANDUM OPINION AND ORDER]{.underline}

(Proceeding Terminated)

**Adopted:** April 20, 2000 **Released:** May 4, 2000

By the Commission:

1\. The Commission has before it an Application for Review filed by The
Cromwell Group, Inc. (\"Cromwell Group\") directed to the [Memorandum
Opinion and Order]{.underline} in this proceeding, 12 FCC Rcd 17616 (MMB
1997). Mt. Juliet Broadcasting, Inc.(\"MJB\") filed an Opposition to
Application for Review and Cromwell Group filed a Reply to that
Opposition. For the reasons discussed below, we deny the Application for
Review.

[Background]{.underline}

2\. MJB, permittee of Station WNPL, Channel 294A, Mt. Juliet, Tennessee,
commenced the operation of Station WNPL in 1996. As a result of a
complaint of electromagnetic interference (EMI) to air navigation, MJB
voluntarily terminated operation on November 7, 1996. Specifically, it
was later determined that an operation on Channel 294A in the Mt. Juliet
area would cause EMI to four Nashville area FAA localizers. Thereafter,
on February 11, 1997, MJB filed a Petition for Rule Making proposing the
reallotment of Channel 294A from Mt. Juliet to Belle Meade, Tennessee.
This Petition was filed pursuant to Section 1.420(i) of the Rules which
permits the modification of an authorization to specify a new community
of license without affording other interested parties to file a
competing expression of interest where the new community is mutually
exclusive with the existing one. [See]{.underline} [Modification of FM
and TV Authorizations to Specify a New Community of License]{.underline}
("[Community of License]{.underline}"), 4 FCC Rcd 4870 (1989);
[recon]{.underline} [granted]{.underline} [in]{.underline}
[part]{.underline}, 5 FCC Rcd 7094 (1990). In considering such a
reallotment proposal, we compare the existing allotment versus the
proposed allotment to determine whether the reallotment will result in a
preferential arrangement of allotments. This determination is based upon
the FM allotment priorities set forth in [Revision of FM Assignment
Policies and Procedures]{.underline}, 90 FCC 2d 88 (1982)[^1] In making
this evaluation, we consider the "totality of factors." [LaGrange and
Rollingwood, Texas]{.underline}, 10 FCC Rcd 3337 (1995).

3\. In the [Report and Order]{.underline} in this proceeding, the Bureau
reallotted Channel 294A from Mt. Juliet to Belle Meade, Tennessee, and
modified the Station WNPL construction permit to specify Belle Meade as
the community of license. 12 FCC Rcd 10481 (MMB 1997). That action was
premised on the fact that a Channel 294A allotment could not be
implemented at Mt. Juliet due to EMI to FAA air navigation facilities.
In its engineering review, our staff concurred with the engineering
exhibits submitted by MJB stating that there is no area in which a
transmitter for Mt. Juliet could be located which would satisfy the FAA
concerns regarding EMI to air navigation and enable Station WNPL to
provide 70 dBu service to Mt. Juliet as required by Section 73.315(a) of
the Rules. The staff also determined that there were no other FM
channels available to Mt. Juliet. As such, the staff concluded that
under these circumstances, a Channel 294A allotment at Belle Meade would
be preferable to the existing allotment at Mt. Juliet. In the
[Memorandum Opinion and Order]{.underline} in this proceeding, the staff
denied the Cromwell Group Petition for Reconsideration directed against
that action.

4\. In its Application for Review, Cromwell Group does not dispute the
staff determination that Channel 294A cannot be implemented at Mt.
Juliet. Instead, it contends that a reallotment of a defective Channel
294A allotment to Belle Meade is inconsistent with \"controlling and
dispositive authority\" in which defective allotments have been deleted.
These actions deleting an existing allotment are [San Clemente,
California]{.underline}, 10 FCC Rcd 8291 (1995); [Harkers Island, North
Carolina]{.underline}, 10 FCC Rcd 13159 (1995); [Atlantic City, New
Jersey]{.underline}, 57 RR2d 1436 (1985); and [Pinckneyville,
Illinois]{.underline}, 41 RR2d 69 (1977). In regard to these actions,
Cromwell Group disputes the earlier staff determination that these cases
are distinguishable because they did not involve an outstanding
construction permit. Furthermore, Cromwell Group notes that MJB acquired
the Channel 294A construction permit with full knowledge that a Channel
294A operation at Mt. Juliet could create a hazard to air navigation. In
this regard, Cromwell Group refers to an April 22, 1991 adverse
determination by the FAA and the fact that MJB offered to accept a
modification of its construction permit with the following condition:

Upon receipt of notification from the Federal Communications Commission
that harmful interference is being caused by the operation of the
licensee\'s \[permittee\'s\] transmitter, licensee \[permittee\] shall
either immediately reduce the power to the point of no interference,
cease operations, or take such immediate corrective action as necessary
to eliminate the harmful interference.

As such, Cromwell Group concludes that deletion of this allotment would
be both consistent with prior Commission actions and in accordance with
the condition on the modification of the Station WNPL construction
permit actually proposed by MJB.

5\. Cromwell Group also claims that it is not in the public interest to
permit potential applicants to propose defective allotments in order
that the subsequent construction permit for the allotment may be
modified to a more desirable community of license. According to Cromwell
Group, this will lead to \"connivance and trickery\" in the allotment
process which is not in the public interest.

[Discussion]{.underline}

6\. We deny the Application for Review. Under [Community of
License]{.underline}, it is our view that in addition to the fact that
this reallotment will result in a first local service to Belle Meade, a
Channel 294A allotment at Belle Meade is preferable to the existing
allotment at Mt. Juliet which cannot provide service to the public. It
is also our view that the action reallotting Channel 294A to Belle Meade
does not conflict with the actions cited by Cromwell Group in which
defective allotments were deleted. As discussed below, those actions are
distinguishable and following those actions in this proceeding would not
be in the public interest. Unlike the current proceeding, none of those
actions deleting a defective allotment involved an outstanding
construction permit. In fact, in all but one case, it was specifically
determined that a construction permit could not be granted for the
allotment and, as such, service could never be provided. In this
instance, MJB constructed the authorized Station WNPL facilities and
commenced operation. While MJB knew there was a risk that its Mt. Juliet
facilities might cause unacceptable interference to FAA stations, this
was not a certainty to the point of rendering the allotment defective
[ab]{.underline} [initio]{.underline}. Rather, MJB accepted the risk,
built the facilities and then determined that its operation was causing
interference to FAA air navigation stations. Thereafter, MJB terminated
operation in the interest of air safety. We do not see any public
interest benefit in deleting the MJB construction permit in view of the
fact that Station WNPL can now provide a first local service to Belle
Meade, Tennessee, consistent with FAA air safety concerns. Moreover, in
the cases cited by Cromwell Group, deletion of the allotment with the
possible institution of other service resulting from the deletion was
the only means to provide service to the public. In this proceeding,
service could be provided on Channel 294A if we modified an outstanding
construction permit to specify a new community of license at a new site.
We continue to believe that this action will best serve the public
interest because it will lead to a predictable and prompt institution of
service.

7\. We do not agree with any argument that permitting MJB to reallot
Channel 294A to Belle Meade would somehow condone \"connivance and
trickery\" in our allotment process. First of all, there is nothing in
the record of this proceeding or the earlier proceeding allotting the
channel that would support an allegation that MJB or any other party
deliberately proposed a defective allotment for Mt. Juliet. Similarly,
there is no evidence nor is it reasonable to suggest that MJB knowingly
went to the expense of constructing facilities that it knew would
interfere with FAA navigation facilities so that it could subsequently
seek reallotment. In regard to the underlying technical integrity of our
allotment process, we are also of the view that our own engineering
review of an allotment proposal coupled with the fact that each proposal
is subject to public comment minimizes the likelihood of such future
allotments regardless of any purported motive of a rulemaking proponent.

8\. Finally, we reject the argument that the reallotment action in this
proceeding was inconsistent with any condition on the MJB construction
permit. In addition to the public interest benefits discussed above, we
also believe that a reallotment of Channel 294A was, in fact, consistent
with the specific language of the condition. Reallotting Channel 294A to
a new community and at a new site that would not cause EMI is within the
ambit of taking \"such immediate corrective action as necessary to
eliminate the harmful interference.\"

9\. Accordingly, IT IS ORDERED, That the aforementioned Application for
Review filed by The Cromwell Group, Inc. IS DENIED.

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

11\. For further information concerning this proceeding, contact Robert
Hayne, Mass Media Bureau, (202) 418-2177.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

\` Secretary

[^1]: The FM allotment priorities are as follows: 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 is
    given to Priorities (2) and (3).