**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | MB Docket No. 05-295         |
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| Amendment of Section 73.202(b),  | ** | RM-11280                     |
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| Table of Allotments,             | *  |                              |
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| FM Broadcast Stations.           | ** |                              |
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| (Cumberland, Kentucky, Weber     | *  |                              |
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| Glade Spring, and Marion,        |    |                              |
| Virginia)                        | *  |                              |
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> **REPORT AND ORDER**

**(Proceeding Terminated)**

**Adopted: June 7, 2006 Released: June 9, 2006**

By the Assistant Chief, Audio Division, Media Bureau:

1.  The Audio Division has before it: (1) a *Notice of Proposed Rule
    Making and Order to Show Cause*[^1] issued in response to a
    rulemaking petition filed by JBL Broadcasting, Inc. ("Petitioner"),
    licensee of Station WVEK-FM, Cumberland, Kentucky; and (2)
    supporting comments filed by the Petitioner. For the reasons
    discussed below, we deny the Petitioner's rulemaking petition.

    **BACKGROUND**

2.  At the request of the Petitioner, the *NPRM/OSC* proposed the
    reallotment, upgrade, and change of community of license for Station
    WVEK-FM from Channel 274A at Cumberland, Kentucky (pop. 2,611) to
    Channel 274C3 at Weber City, Virginia (pop. 1,333) as a first local
    service, pursuant to Sections 1.420(g)(3) and (i) of the
    Commission's rules.[^2] To accommodate this reallotment, the
    *NPRM/OSC* also proposed: (1) the substitution of Channel 263A for
    vacant Channel 274A at Glade Spring, Virginia;[^3] and (2) the
    substitution of Channel 273A for Channel 263A at Marion, Virginia,
    and the modification of Station WOLD(FM)'s license accordingly.[^4]

3.  The *NPRM/OSC* also requested that the Petitioner submit a *Tuck*
    showing to demonstrate that Weber City is sufficiently independent
    of the Kingsport, Tennessee-Virginia Urbanized Area to warrant a
    first local service preference because Station WVEK-FM's proposed 70
    dBu contour would cover 100 percent of this Urbanized Area. The
    Petitioner filed comments, submitted a *Tuck*[^5] showing, and
    reiterated its expression of interest in the reallotment of Station
    WVEK-FM to Weber City.

    **DISCUSSION**

4.  Although the *NPRM/OSC* solicited comment on the Petitioner's
    proposal, we now recognize that there is a short-spacing with one of
    the related channel changes. Accordingly, the proposal must be
    denied because it fails to comply with Section 73.207(a) of the
    Commission's rules. Specifically, the proposed substitution of
    Channel 273A for Channel 263A at Marion, Virginia, and the
    modification of the license for Station WOLD-FM, accordingly, is 6.6
    and 0.6 kilometers short-spaced to two mutually exclusive
    applications for a new FM station on Channel 273A at Shawsville,
    Virginia.[^6] These applications were filed in 1997 under the
    contour protection provisions of Section 73.215 of the Commission's
    rules and protected Station WOLD-FM, then a licensed Channel 273A
    station, from interference. However, in MM Docket 99-244, Station
    WOLD-FM's license was subsequently modified to specify Channel 263A
    at a different transmitter site, with the licensee's consent, to
    accommodate the new allotment of Channel 274A at Glade Spring. This
    action is now final. As a result of that action, WOLD-FM is fully
    protected at the modified site for maximum class facilities on
    Channel 263A. It continues to operate lawfully under an implied
    Special Temporary Authority on Channel 273A at its formerly licensed
    transmitter site. Contrary to Petitioner's claim,[^7] WOLD-FM is
    neither a licensed Channel 273A station nor entitled to any
    protection based on its formerly licensed facilities. As the
    Commission explained in the similar context involving a one-step FM
    station application, "\[s\]uch a grant amends the table of
    allotments and modifies that station license to operate on the new
    channel and/or class. During the construction period, the licensee
    may continue to operate the previously authorized facilities on an
    interim or 'implied Special Temporary Authority' basis." [^8] Under
    Section 73.208(a), a petitioner must provide Section 73.207 spacing
    to all pending applications. Because the Petitioner's proposal fails
    to specify a fully-spaced transmitter site with regard to the
    Shawsville applications, it must be denied. [^9]

5.  Finally, contrary to the Petitioner's assertion, *Beloit
    Broadcasters, Inc. v. FCC,*[^10] is distinguishable. Therein, the
    Court held that the grant of an interim authorization to operate on
    1380 kHz in St. Louis, without a hearing, did not act as a
    modification of the license for Station WBEL(AM), 1380 kHz, Beloit,
    Illinois, under Section 316(a) of the Communications Act of 1934, as
    amended, because the scope of WBEL(AM)'s authority to operate was
    subject to the pre-existing signal of the St. Louis station. The
    substitution of an interim operator pending selection of a new
    licensee on 1380 kHz at St. Louis did not change the technical
    relationship between the stations. In contrast, MM Docket 99-244
    modified the WOLD-FM license. The reallotment of Channel 273A at
    Marion must meet all Section 73.207 spacing requirements with regard
    to all prior filed applications and outstanding authorizations.

6.  This document is not subject to the Congressional Review Act. The
    Commission is, therefore, not required to submit a copy of this
    Report and Order to the Government Accountability Office, pursuant
    to the Congressional Review Act, *see* 5 U.S.C. § 801(a)(1)(A),
    because the proposed rule was denied.

7.  IT IS FURTHER ORDERED, That the petition for rule making filed by
    JBL Broadcasting, Inc. IS DENIED.

8.  IT IS FURTHER ORDERED, That the Commission's Consumer and
    Governmental Affairs Bureau, Reference Information Center, SHALL
    send a copy of this *Report and Order* by Certified Mail, Return
    Receipt Requested, to the following licensee and permittee and their
    principal/contact representative:

    Emerald Sound, Inc. ASRadio, LLC

    P.O. Box 1047 5835 Lawrence Drive

    Marion, VA 24354 Indianapolis, IN 46226

    (Licensee of Station WOLD-FM, (Permittee of Channel 274A,

    Marion, Virginia) Glade Spring, Virginia)

    John Logan, Esq. Dennis J. Kelly, Esq.

    Dow, Lohnes & Albertson, PLLC P. O. Box 41177

    1200 New Hampshire Ave., N.W. Washington, D.C. 20018-0577

    Suite 800 (Counsel for JBL Broadcasting,

    Washington, D.C. 20036 Inc.)

    (Counsel to ASRadio, LLC)

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

10. For further information concerning this proceeding, contact
    Andrew J. Rhodes, Media Bureau, (202) 418-2180.

    FEDERAL COMMUNICATIONS COMMISSION

    John A. Karousos

    Assistant Chief

    Audio Division

    Media Bureau

[^1]: *Cumberland, KY, Weber City, Glade Spring, and Marion, VA,* Notice
    of Proposed Rule Making and Order to Show Cause*,* 20 FCC Rcd 18039
    (MB 2005) ("*NPRM/OSC")*.

[^2]: These rules permit the modification of a station's authorization
    to specify a new community of license and the upgrade of the class
    of FM station on a mutually exclusive co-channel or adjacent channel
    without affording other interested parties an opportunity to file
    competing expressions of interest.

[^3]: The *NPRM/OSC* noted that Channel 274A at Glade Spring was listed
    among other vacant non-reserved band FM allotments in Broadcast
    Auction No. 62, which subsequently occurred on January 12, 2006.
    ASRadio, LLC became the successful auction bidder for Channel 274A
    at Glade Spring, and its application for construction permit (File
    No. BNPH-20060308ALW) was granted on May 26, 2006.

[^4]: Previously, in MM Docket No. 99-244, the license for Station
    WOLD-FM was modified from Channel 273A to Channel 263A to
    accommodate the allotment of Channel 274A at Glade Spring, Virginia,
    as a first local service. *See Cumberland, KY, Weber City, Glade
    Spring, Marion, Richlands, and Grundy, VA,* Report and Order, 17 FCC
    Rcd 5024 (MMB 2002). However, Station WOLD-FM has not commenced
    operations on Channel 263A. We note that two other stations,
    WRIC-FM, Richlands, Virginia, and WMJD(FM), Grundy, Virginia, were
    also required in MM Docket 99-244 to change channels to accommodate
    the allotment of Channel 274A at Glade Spring and have already
    implemented their respective channel changes.

[^5]: *See Faye and Richard Tuck, Inc.,* 3 FCC Rcd 5374 (1988).

[^6]: *See* File Nos. BPH-19971022MC and BPH-19971023ME. The actual
    spacing between the transmitter site specified in BPH-19971022MC for
    Channel 273A at Shawsville and Channel 273A at Marion is 108.4
    kilometers, and the actual spacing between the transmitter site
    specified in BPH-19971022ME is 114.4 kilometers. The required
    spacing between Channel 273A at Marion and Channel 273A at
    Shawsville is 115 kilometers. There are two other mutually exclusive
    applications pending for Channel 273A at Shawsville, File Nos.
    BPED-19971021MF and BPH-19971023MC, which are fully spaced to
    Channel 273A at Marion.

[^7]: *See* Petitioner's rulemaking petition at 5 n.3.

[^8]: *1998 Biennial Regulatory Review -- Streamlining of Radio
    Technical Rules in Parts 73 and 74 of the Commission's Rules,*
    Notice of Proposed Rule Making, 13 FCC Rcd 14849, 14855 n.22 (1998).

[^9]: *See, e.g., Chester and Wedgefield, SC,* Memorandum Opinion and
    Order, 5 FCC Rcd 5572 (1990), *petition for review denied,* No.
    90-1496 (D.C. Cir. June 6, 1991) (denial of waiver of the minimum
    distance separation requirements affirmed because Commission has a
    strong policy in preserving the integrity of the FM Table of
    allotments and compelling need for waiver not shown).

[^10]: 365 F.2d 962 (D.C. Cir. 1966).