**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Amendment of Section 73.202(b), ) MM Docket No. 01-175

Table of Allotments, ) RM-10197

FM Broadcast Stations. )

(Old Fort, Fletcher, and Asheville, )

North Carolina; and Surgoinsville, Tennessee;)

and Augusta, Georgia) )

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

**Adopted: July 25, 2001 ; Released: August 3, 2001**

**Comment Date: September 24, 2001**

**Reply Comment Date: October 9, 2001**

By the Chief, Allocations Branch:

1\. The Commission has before it a petition for rule making filed
jointly by Dolphin Communications, licensee of Station WQNQ-FM, Old
Fort, North Carolina, Clear Channel Broadcasting Licenses, Inc. licensee
of WBBQ-FM, Augusta, Georgia, and Capstar TX Limited Partnership,
licensee of WKSF(FM) Asheville, North Carolina ("petitioners"),
proposing the reallotment of Channel 282A from Old Fort to Fletcher,
North Carolina, and the modification of Station WQNQ-FM's license
accordingly.[^1] To accommodate the reallotment, petitioners also
propose (a) the reallotment of Channel 260C from Asheville to Old Fort,
North Carolina, and the modification of Station WKSF(FM)'s license
accordingly; (b) the modification of the transmitter site of Station
WEYE-FM, Channel 282A, Surgoinsville, Tennessee; and (c) the
modification of the transmitter site of Station WBBQ-FM, Channel 282C,
Augusta, Georgia. Petitioners state their intention to apply for the
respective channels, if reallotted.

2\. The proposal is filed pursuant to Section 1.420(i) of the
Commission\'s Rules which permits the modification of a station's
authorization to specify a new community of license without

affording other interested parties an opportunity to file competing
expressions of interest. [See]{.underline} [Modification of FM and TV
Authorizations to Specify a New Community of License]{.underline}, 4 FCC
Rcd 4870 (1989), [recon. granted in part]{.underline}, 5 FCC Rcd 7094
(1990). In support of its proposal, petitioners state that Fletcher is
an incorporated town in located in Henderson County and has a 2000 U.S.
Census population of 4,185 persons. Fletcher has a mayor/town council
form of government run by an elected mayor and a four-member elected
town council. It also has a number of town departments, boards,
commissions and committees comprised of town residents, such as
Administration Department, Parks and Recreation Commission, Planning
Board and Zoning Board of Adjustment. Fletcher has its own zip code
(28732), and a post office. There are over 140 businesses located within
the town of Fletcher. A substantial number of these businesses identify
with the community by using "Fletcher" in their name,
[e.g.]{.underline}, Fletcher A-1 tire, Inc., Fletcher Feeding Services,
Inc., Fletcher Motor Company, Inc., Fletcher Plaza Barber Shop, Fletcher
Cleaners, Fletcher Hair Design, Fletcher Lamp Post and Fletcher
Insurance. There are several health care providers located in Fletcher,
[e.g.,]{.underline} Parkridge and Pardee Hospitals maintain professional
office buildings, and veterinary services may be obtained from Dr.
Martin's Veterinary Hospital. Fletcher has two main parks---Fletcher
Community Park and Kate's Park. The town has many churches and religious
organizations, such as Fletcher First Baptist Church, Fletcher First
Methodist Church, Fletcher Russian Orthodox Church, Fletcher United
Methodist Church, and Calvary Episcopal Church. There are some civic and
service organizations in Fletcher, including Kiwanis Club of Fletcher,
the Book Lovers Club, Rotary Club and Boys and Girls Scouts.

3\. We believe that soliciting comments on the proposal warrants
consideration, since it could provide Fletcher with its first local
aural transmission service, without depriving Old Fort of its sole local
service, since Channel 260C is proposed herein as a replacement service.
Likewise, the reallotment of Channel 260C to Old Fort will not deprive
Asheville (population 68,889) of its sole local service, whereas
Stations WCQS (NCE-FM), WLFA (NCE-FM), WSKY(AM), WISE(AM), WWNC(AM), and
WKJV(AM) will remain licensed to the community. Since Station WQNQ-FM
seeks to relocate its transmitter site, a gain and loss area study is
required and has been provided. Moreover, since Fletcher is located
within the Asheville North Carolina Urbanized Area and the 70 dBu signal
will cover 87% of that Urbanized Area, petitioners have provided the
required [Tuck]{.underline} analysis.[^2] Even though Old Fort is
located outside the Asheville Urbanized Area, the reallotment of Channel
260C from Asheville to Old Fort will continue to place a 70 dBu signal
over 100% of the Asheville Urbanized Area. However, since Station
WKSF(FM) is not relocating its transmitter site, neither a
[Tuck]{.underline} analysis nor a gain and loss area study is necessary.
The reallotment of Channel 282A to Fletcher will provide a first local
service (priority 3), and is consistent with the provisions set forth in
the [Revision of FM Assignment Policies and Procedures]{.underline}, 90
FCC 2d 88, 91 (1982).[^3] However,

petitioners should demonstrate the overall public interest benefits that
would be derived by the reallotments.

4\. We note that the reallotment of Channel 282A to Fletcher, North
Carolina and the reallotment of Channel 260C to Old Fort, North
Carolina, require that Station WEYE-FM at Surgoinville, Tennessee and
Station WBBQ-FM at Augusta, Georgia, change their transmitter sites.
Both Stations WEYE-FM and WBBQ-FM (licensee is a party herein) have
consented to change their transmitter sites. The Commission allows a
station to change its community of license despite the presence of
"grandfathered" short-spacings and those permitted under Section 73.215
of the Commission's Rules. [See]{.underline} [Newnan and Peachtree City,
Georgia,]{.underline} 7 FCC Rcd 6307 (1992) ("grandfathered"
short-spacing); and [Killeen and Cedar Park, Texas]{.underline}, 13 FCC
Rcd 18790 (1998) (Section 73.215 short-spacing). Consistent with that
policy, petitioners advise that Station WKSF(FM) is a currently
short-spaced to Station WNNX(FM) in Atlanta, Georgia and Station
WRFX(FM) in Kannapolis, North Carolina. However, since Station WKSF(FM)
does not seek to change its transmitter site, the preexisting
short-spacings will not be exacerbated the by reallotment of Channel
260C at Old Fort as a replacement service. Moreover, petitioners state
their willingness to reimburse Trent Broadcasting, L.L.C., licensee of
Station WEYE-FM, for expenses incurred in connection with changing its
transmitter site, and have advised that they have entered into a
reimbursement agreement with Station WEYE-FM to do so.

[Technical Summary]{.underline}

5\. An engineering analysis has determined that Channel 282A can be
reallotted to Fletcher in compliance with the Commission's minimum
distance separation requirements without the imposition of a site
restriction at petitioners' requested site.[^4] To accommodate the
reallotment, the reference coordinates for Channel 282A at Surgoinsville
can be modified at petitioners' requested site; and the reference
coordinates for Channel 282C at Augusta, Georgia, can be modified at
petitioners' requested site.[^5] Additionally, Channel 260C can be
reallotted to Old Fort at Station WKSF(FM)'s presently licensed
site.[^6] In accordance with the provisions of Section 1.420(i) of the

Commission\'s Rules, we shall not accept competing expressions of
interest in the use of Channel 282A at Fletcher, North Carolina, or
Channel 260C at Old Fort, North Carolina.

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 communities listed below, to read as follows:

[City]{.underline} [Channel No.]{.underline}

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

#  Old Fort, North Carolina 282A 260C 

Fletcher, North Carolina \-\-- 282A

Asheville, North Carolina 260C \-\--

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 September 24,
2001, and reply comments on or before October 9, 2001, 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
petitioners, or their counsel or consultants, as follows:

Mark N Lipp, Esq. . J. Thomas Nolin, Esq.

Shook, Hardy & Bacon

600 14^th^ Street, N.W., Suite 800

Washington, D.C. 20005-2004

(Counsel for 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 Flexibility Act Do Not Apply to Rule
Making to Amend Sections 73.202(b),]{.underline}

[73.504]{.underline} [and 73.606(b) of the Commission\'s
Rules]{.underline}, 46 FR 11549, February 9, 1981.

10\. IT IS ORDERED, That the Secretary Shall Send, by Certified Mail,
Return Receipt

Requested, a copy of this [Notice of Proposed Rule Making]{.underline}
to the following:

Trent Broadcasting, LLC

126 Main Street

Church Hill, Tennessee 37642

(Licensee of Station WEYE-FM)

11\. For further information concerning this proceeding, contact Sharon
P. McDonald, 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 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 Office of
the Secretary, Federal Communications Commission, 445 12^th^ Street,
S.W., Room TW-A325, 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 (Room CY-A257), at its headquarters, 445 12^th^ Street, S.W.,
Washington, D.C.

[^1]: Clear Channel Broadcasting Licenses, Inc. and Capstar TX Limited
    Partnership are affiliated companies. The present corporation holds
    an option to purchase WQNQ-FM and therefore will implement the
    changes proposed herein.

[^2]: [See]{.underline} [Huntington Broadcasting Co.]{.underline} v.
    [FCC]{.underline} , 192 F.2d 33 (D.C. Cir. 1951); [RKO General,
    Inc.]{.underline}, 5 FCC Rcd 3222 (1990); and [Faye and Richard
    Tuck]{.underline}, 3 FCC Rcd 5374 (1988).

[^3]: The FM allotment priorities are: (1) First full-time aural
    service; (2) Second full-time aural service; (3) First local
    service; and (4) Other public interest matters. \[Co-equal weight
    given to priorities (2) and (3).\]

[^4]: The reference coordinates for Channel 282A at Fletcher are
    35-32-28 North Latitude and 82-32-32 West Longitude.

[^5]: The modified reference coordinates for Channel 282A at
    Surgoinsville are 36-33-11 North Latitude and 82-51-23 West
    Longitude.

    The modified reference coordinates for Channel 282C at Augusta are
    33-34-24 North Latitude and 81-54-17 West Longitude.

[^6]: The reference coordinates for Channel 260C at Old Fort are
    35-25-32 North Latitude and 82-45-25 West Longitude.