**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Amendment of Section 73.202(b), ) MM Docket No. 98-159

Table of Allotments, ) RM-9290

FM Broadcast Stations. )

(Wallace, Idaho and Bigfork, Montana ) )

**[REPORT AND ORDER]{.underline}**

(Proceeding Terminated)

**Adopted:** May 2, 2001 **Released:** May 11, 2001

> By the Chief, Allocations Branch:

1.  Number range level0Number range level1Number range level2Number
    range level3Number range level4Number range level5Number range
    level6Number range level7The Allocations Branch has before it a
    *Notice of Proposed Rulemaking*, 13 FCC Rcd 16,278 (1998)
    ("*Notice*"), issued at the request of Alpine Broadcasting Limited
    Partnership ("Alpine") as holder of a construction permit for
    Station KSIL(FM) (File No. BPH-960916MD), Channel 264C (100.7 MHz),
    Wallace, Idaho. Alpine proposes amendment of the FM Table of
    Allotments by changing its community of license from Wallace to
    Bigfork, Montana as that community's first local aural service.
    Alpine also proposed that Station KSIL(FM)'s permit be modified to
    specify Bigfork as its new community of license.

2.  Alpine filed comments in response to the *Notice*, reiterating its
    intention to apply for modification of its construction permit for a
    new station on Channel 264C at Bigfork, if allotted, and to promptly
    construct a station there. Opposing comments including a
    counterproposal were filed by Bee Broadcasting, Inc. ("Bee"),
    licensee of Montana Stations KDBR(FM) and KBBZ(FM), both of
    Kalispell, Station KKMT(FM), Columbia Falls, and AM Station KJJR,
    Whitefish.[^1] Bee later withdrew its opposition,[^2] but filed an
    unauthorized pleading to which Alpine responded.[^3]

3.  Alpine proposed to reallot Channel 264C from Wallace to Bigfork
    under the provisions of Section 1.420(i) of the Commission's Rules.
    That section permits modification of a station's license to specify
    a new community of license while not affording other interested
    parties the opportunity to file competing expressions of interest in
    the proposed allotment. *See Modification of FM and TV
    Authorizations to Specify a New Community* *of License*, 4 FCC Rcd
    4870 (1989) (*"Change of Community of License R&O"*), *recon.*
    *granted in part*, 5 FCC Rcd 7094 (1990).

4.  Subsequent to the filing of the rulemaking petition, Wallace Station
    KSIL(FM) was downgraded and licensed to operate on Channel 264C2.
    (File No. BLH-20001215AAZ).[^4] Accordingly, we will evaluate
    Alpine's proposal to change its community of license from Wallace to
    Bigfork on the basis of the Station KSIL(FM)'s present operation as
    a Class C2 station. As indicated in the *Notice*, the proposed
    allotment reference site for Bigfork, Montana is located 147.5
    kilometers (91.7 miles) away from the transmitter site for Station
    KSIL(FM) at Wallace, Idaho, insufficient to meet the Class C2 to
    Class C co-channel interstation separation requirement,[^5] and is,
    therefore, mutually exclusive with Station KSIL. Bigfork has no
    local aural transmission service. The *Notice* also cited a number
    of indicia that purportedly denote Bigfork as a community for
    allotment purposes. In addition, it noted that Wallace would retain
    local transmission service provided by the fulltime AM Station KWAL
    and, potentially, by unbuilt Station KQWK(FM).[^6] The station is
    now fulfilling that potential, having been granted a license (File
    No. BLH-20001205AAB) and operating with a new call sign, KTWD(FM).
    Therefore, reallotment of Station KSIL(FM) to Bigfork would result
    in there being two local transmission services in Wallace to serve
    its 1990 U.S. Census population of 1010.

5.  Alpine states in response to the *Notice* that Bigfork has a
    population of 1461.[^7] Also in response to our inquiry as to
    whether there are indicia of a community that are identified
    specifically with Bigfork, Alpine provides a list of social,
    economic, and cultural organizations, and municipal services that
    incorporate Bigfork in their names. Bigfork is, reports Alpine, an
    artists' community where the Bigfork Festival of Arts is held
    annually. It boasts a number of artists' studios and galleries along
    its main street with the Bigfork Art and Cultural Center as its
    focal point. Bigfork has three performing arts organizations that
    sponsor theater, musicals, and concerts, each of which has "Bigfork"
    in its name. The Bigfork elementary school hosts a renowned annual
    charity and antiques show. Additionally, there are numerous other
    businesses and other organizations that identify themselves by name
    as Bigfork entities. Municipal services include water, sewer, power,
    trash removal, and a volunteer fire department.

[Discussion]{.underline}

6.  We have carefully reviewed Alpine's proposal and find that, on the
    strength of the indicia described above, Bigfork is indeed a
    community for allotment purposes, despite its lack of incorporation
    and reliance on the county for its governance. *See* *Semora, North
    Carolina*, 5 FCC Rcd 934 (1990). We also find, particularly in light
    of Bee's withdrawal of its opposing comments and included
    counterproposal, that Alpine's proposal would result in a
    preferential arrangement of allotments, as explained below. We have
    differences, however, with the methodology Alpine employed in
    evaluating the gain and loss areas resulting from the relocation of
    KSIL(FM) to Bigfork. Also, our analysis of the coverage area of the
    existing station at Wallace differs from that in Alpine's original
    proposal because of KSIL(FM)'s operation on the since-downgraded
    Channel 264C2. The results of that analysis do not, however, disturb
    our finding that the allotment of Channel 264C to Bigfork should be
    granted.

7.  As a threshold matter, we make several observations. As stated in
    the *Notice,* Bigfork is not in or near an urbanized area.
    Therefore, no finding need be made as to whether Bigfork qualifies
    for a first local service preference under the Commission's
    allotment priorities.[^8] Accordingly, in response to the *Notice*,
    Alpine provided only a gain and loss study, the results of which
    were based on then-unbuilt KSIL(FM) as a Class C station. However,
    given the subsequent construction and licensing of KSIL(FM) as a
    Class C2 station, that station's coverage must be analyzed assuming
    maximum C2 facilities, *i.e.* 50 kilowatts effective radiated power
    or ERP and 150 meters antenna height above average terrain or HAAT.
    We also note that Alpine incorrectly evaluated its proposed Bigfork
    coverage area by assuming operation with maximum Class C facilities.
    Such use is contrary to our long-standing policy that requires
    coverage predictions for Class C stations to be determined assuming
    minimum Class C facilities. *See Greenup, Kentucky*, 6 FCC Rcd 1493,
    1497 at note 7 (1991). Therefore, Alpine's study is no longer useful
    for analysis of either Wallace's or Bigfork's gain and loss areas.

8.  To determine whether the public interest would be served by Alpine's
    proposal, we must compare it with the existing arrangement of
    allotments, as required by the *Change of Community R&O, supra*. In
    doing so, we first evaluate the existing coverage area of the
    Wallace allotment assuming maximum Class C2 facilities, which we
    find constitutes the entire loss area for this proposal. Our
    analysis further reveals that relocation of KSIL(FM) would leave no
    white area within the loss area. That is, no persons within its
    Class C2 primary service contour (60 dBu) would be left without
    aural reception service. We estimate the total number of persons
    residing within the Wallace loss area as 19,094, with more than
    three-quarters of that population regarded as well-served, *i.e.*
    receiving five or more services. Moreover, Wallace itself would have
    two remaining transmission services, namely AM Station KWAL and FM
    Station KTWD, which operates on Channel 248C2 and replicates almost
    exactly KSIL(FM)'s coverage. Therefore, a KSIL(FM) relocation would
    not result in significant loss of local transmission services.

9.  The extent of the Bigfork coverage area was determined using minimum
    Class C facilities and would constitute the entirety of the gain
    area. Contrary to Alpine's original proposal in which the service
    contour of the unbuilt Wallace station overlapped that of the
    station as relocated to Bigfork, no overlap exists between the Class
    C2 service contour of KSIL(FM) in Wallace and the Class C contour of
    the station as relocated to Bigfork. Within the gain area, the
    staff's analysis reveals that there do exist some underserved areas,
    although with very small populations according the 1990 U.S. Census.

10. In determining a preferential arrangement of allotments, we use the
    FM allotment priorities. Particularly because the idealized circular
    coverage area of KTWD(FM) is virtually coincident with that of
    KSIL(FM), the Wallace loss area would not include any white areas,
    *i.e.* areas with no aural service, upon relocation of the station
    to Bigfork, and therefore, Priority 1 would not be triggered.
    Likewise, for the Bigfork gain area, Priority 1 would not be
    triggered because relocation of KSIL(FM) to Bigfork would not result
    in coverage of a formerly white area populated by a significant
    number of persons (55). On the other hand, areas would exist in the
    Wallace and Bigfork coverage areas where upon removal of KSIL(FM) to
    Bigfork only one service would be received. In the Bigfork area,
    however, we estimate that the reception area has no inhabitants,
    and, in the Wallace coverage area, a *de minimus* number of
    approximately 150 persons would no longer receive a second aural
    service. In the context of this case the relative sizes of the
    populations is not so disparate as to justify a preference for
    either the existing or proposed arrangement of allotments. Thus,
    Priority 2 would not be triggered for either arrangement. Next, we
    compare the two arrangements of allotments as to whether Priority 3
    would be triggered. With two other transmission services already
    licensed to Wallace, the reallotment of Channel 264C2 to Bigfork as
    part of the existing arrangement of allotments would not trigger
    Priority 3. However, the proposed reallotment to Bigfork would
    provide the opportunity for the community to have its first local
    aural broadcast radio service, trigerring Priority 3. We conclude,
    therefore, that Alpine's proposal to relocate KSIL(FM) as upgraded
    on Channel 264C and operate it at Bigfork would result in a
    preferential arrangement of allotments under allotment Priority 3.

11. Channel 264C can be allotted to Bigfork, consistent with the minimum
    distance separation requirements of Section 73.207(b) and the
    principal community coverage requirements of Rule Section 73.315(a)
    of the Commission's Rules, at Alpine's requested transmitter site
    restricted to 26.8 kilometers (16.7 miles) east of Bigfork.
    Concurrence by the Canadian Government in the allotment at Bigfork,
    Montana has been received because Bigfork is located within 320
    kilometers (199 miles) of the U.S.-Canadian border. The reference
    coordinates for Channel 264C at Bigfork are N 48-02-45 and W
    14-00-33.

12. Accordingly, pursuant to authority contained 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 ORDERED, That effective June 25, 2001, the
    FM Table of Allotments, Section 73.202(b) of the Commission's Rules,
    IS AMENDED, with respect to the communities listed below,

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

Wallace, Idaho 248C2

Bigfork, Montana 264C

13. IT IS FURTHER ORDERED That the Secretary of the Commission shall
    send by Certified Mail, Return Receipt Requested, a copy of the
    *Order* to the following:

Richard A. Helmick

Cohn and Marks

1920 N Street, N.W.

Suite 300

Washington, DC 20036

(Petitioner's Counsel)

14. IT IS FURTHER ORDERED, That pursuant to Section 316(a) of the
    Communications Act of 1934, as amended, the license of Alpine
    Broadcasting Limited Partnership for Station KSIL(FM), Wallace,
    Idaho IS MODIFIED to specify operation on Channel 264C at Bigfork,
    Montana, subject to the following conditions:

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(a) Within 90 days of the effective date of this *Order*, the licensee
    shall submit to the Commission a minor change application for a
    construction permit (Form 301), specifying the new facility;

(b) Upon grant of the construction permit, program tests may be
    conducted in accordance with Section 73.1620; and

(c) Nothing contained herein shall be construed to authorize a change in
    transmitter location or to avoid the necessity of filing an
    environmental assessment pursuant to Section 1.1307 of the
    Commission's Rules.

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15. Pursuant to Commission Rule Section 1.1104(1)(k) and 2(k), any party
    seeking a change in community of license of an FM or television
    allotment or an upgrade of existing FM allotment, if the request is
    granted, must submit a rulemaking fee when filing its application to
    implement the change in community of license and/or upgrade. As a
    result of this proceeding, Alpine Broadcasting Limited Partnership,
    licensee of Station KSIL(FM), is required to submit a rulemaking fee
    in addition to the fee required for the application to effectuate
    the change of community from Wallace to Bigfork.

16. That IT IS FURTHER ORDERED That this proceeding IS TERMINATED.

17. For further information concerning the above, contact J. Bertron
    Withers, Jr., Mass Media Bureau, (202) 418-2180. Questions
    pertaining to application filing process should be addressed to the
    Audio Services Division at (202) 418-2700.

    FEDERAL COMMUNICATIONS COMMISSION

    John A. Karousos

Chief, Allocations Branch

Policy and Rules Division

Mass Media Bureau

[^1]: The two Kalispell stations are located within the area Alpine
    seeks to serve by its proposed allotment, according to Bee, and the
    other two stations are located within the vicinity.

[^2]: Therefore, we will not further address those comments or their
    included counterproposal. Bee's principal, Benny Bee, Sr., filed a
    statement that neither he nor Bee " promised or paid (or received)
    any consideration, directly or indirectly, in connection with the
    withdrawal of \[Bee's\] opposition to the Bigfork rulemaking." This
    statement complies with §1.420(j) of the Rules.

[^3]: Bee filed a pleading entitled "Supplemental Notice of Relevant
    Precedent," and Alpine filed a "Response to Supplemental Notice,"
    both well beyond the comment period in this proceeding. Upon perusal
    of the documents, we find them devoid of relevant information not
    already in the record before us and include unsubstantiated
    allegations not relevant to our disposition of this proceeding.

[^4]: Prior to the downgrade, Alpine assigned its license for KSIL(FM)
    to Battani Communication, Inc. (File No. BAPH-19980501GF). We will
    refer, nevertheless, to petitioner's proposal as Alpine's.

[^5]: The proposed Channel 264C at Bigfork would require a minimum
    co-channel separation distance of 249 km (154.8 mi) from a station
    operating on Channel 264C2. *See* Rule §73.207(b)(1).

[^6]: During the pendency of this proceeding, the Commission denied a
    proposal to change the community of license of KQWK(FM) to Lolo,
    Montana and to downgrade it from Channel 248C2 (97.5 MHz) to Channel
    248C3. *See* 14 FCC Rcd 21,110 (1999).

[^7]: The 1990 Census identified Bigfork as part of the Creston-Bigfork
    Division of Flathead County, MT. Alpine reports that the 1990 census
    information provided by the Census and Economic Information Center,
    MT Department of Commerce subdivides the Division into tracts, of
    which Bigfork is one and is listed with a population of 1461.

[^8]: The FM allotment priorities are: (1) First full-time service; (2)
    Second full-time service; (3) First local service; and (4) Other
    public interest matters. \[co-equal weight given to priorities (2)
    and (3).\] *See* *Revision of FM Assignments and Procedures*, 90 FCC
    2d 88, 92 (1982).