Number range CHAPTER **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:** October 22, 1997 **Released:** October 31, 1997

By the Chief, Policy and Rules Division:

1\. The Commission has before it a Petition for Reconsideration filed by
The Cromwell Group, Inc. (\"Cromwell Group\") directed to the [Report
and Order]{.underline} in this proceeding, FCC Rcd 10481 (1997). Mt.
Juliet Broadcasting, Inc.(\"MJB\") filed an Opposition to Petition for
Reconsideration. Cromwell Group filed a Reply to that Opposition. For
the reasons discussed below, we deny the Petition for Reconsideration.

[Background]{.underline}

2\. At the request of MJB, permittee of Station WNPL, Channel 294A, Mt.
Juliet, Tennessee, the [Report and Order]{.underline} 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. That action was premised on the fact that a Channel 294A
allotment could not be implemented at Mt. Juliet due to electromagnetic
interference (EMI) to FAA air navigation facilities. In this regard, MJB
had specifically identified four Nashville area FAA localizers that
would be adversely affected by a Channel 294A operation in the Mt.
Juliet area. In our own engineering review, we 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 the requisite 70 dBu service to Mt. Juliet as required by
Section 73.315(a) of the Rules. As such, we concluded that under these
circumstances, a Channel 294A allotment at Belle Meade would be
preferable to the existing allotment at Mt. Juliet.

3\. In its Petition for Reconsideration, Cromwell Group contends that a
reallotment of a defective Channel 294A allotment at 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).
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 would have accepted 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\'e \[permittee\'s\] transmitter, the 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
MJB\'s proposed modification of its construction permit.

[Discussion]{.underline}

4\. We deny the Petition for Reconsideration. We do not believe that it
would be in the public interest to first undertake a proceeding looking
toward revocation of the Station WNPL construction permit and then
undertake a separate proceeding to delete the underlying allotment.
Instead, under the circumstances of this case, the preferable course of
action is to reallot Channel 294A to Belle Meade which will lead to a
prompt resumption of service by Station WNPL.[^1] We will discuss the
reasons for this action below.

5\. At the outset, our earlier action reallotting Channel 294A to Belle
Meade does not conflict with the actions cited by Cromwell Group in
which defective allotments were deleted. None of those actions involved
an outstanding construction permit. Those actions merely recognized that
a construction permit could not be granted for the allotment and, as
such, service could never be provided. In those proceedings, deletion of
the allotment and the possible institution of service made possible by
that 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.

6\. This action is also consistent with [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 which the Commission
established a procedure for a licensee or permittee to change its
community of license and have its authorization modified accordingly.
Under [Community of License]{.underline}, MJB is entitled to have the
Station WNPL community of license changed if the resulting reallotment
will result in a preferential arrangement of channels. In this
situation, that determination is based upon the FM allotment priories
set forth in [Revision of FM Assignment Policies and
Procedures]{.underline}, 90 FCC 2d 88 (1982).[^2] It continues to be our
view that a Channel 294A allotment at Belle Meade is preferable to a
defective allotment at Mt. Juliet under Priority 4, [infra]{.underline}.

7\. Finally, we reject the argument that the reallotment action in this
proceeding was inconsistent with a proposed 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 proposed 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.\"

8\. Accordingly, IT IS ORDERED, That the aforementioned Petition for
Reconsideration filed by The Cromwell Group, Inc. IS DENIED.

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

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

FEDERAL COMMUNICATIONS COMMISSION

Douglas W.Webbink

\` Chief, Policy and Rules Division

Mass Media Bureau

[^1]: ^?^As a result of a complaint of interference to air navigation,
    Station WNPL voluntarily terminated operation on November 7, 1996.

[^2]: ^?^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.