$// R&O, FM B/C STAS. (Odessa and Los Ybanez, TX), DA 95-395//$
$/ 73.202 FM Table of Allotments /$

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$///DA 95-395,3/7/95///$
                        
                                                  DA 95-395
  
                                 Before the
                       FEDERAL COMMUNICATIONS COMMISSION
                            Washington, D.C. 20554


In the Matter of                       )
                                       )
Amendment of Section 73.202(b),        )   MM Docket No. 94-72 
Table of Allotments,                   )   RM-8479
FM Broadcast Stations.                 )
(Odessa and Los Ybanez, Texas)         )

                                REPORT AND ORDER
                            (Proceeding Terminated)


     Adopted: March 1, 1995          Released: March 13, 1995


By the Chief, Allocations Branch:

      1.  At the request of Ruben Velasquez ("petitioner"), permittee of
Station KADM(FM), Channel 299C2, Odessa, Texas, the Commission has before it
the Notice of Proposed Rule Making, 9 FCC Rcd 3216 (1994), proposing the
substitution of Channel 300C1 for Channel 299C2 at Odessa and modification of
Station KADM(FM)'s construction permit to specify operation on the higher
powered channel.  In order to accommodate the upgrade at Odessa, an Order to
Show Cause was issued to Israel Ybanez ("Ybanez"), licensee of Station
KYMI(FM), Los Ybanez, Texas, proposing the substitution of Channel 253C2 for
Channel 300C2 at Los Ybanez, Texas, and modification of Station KYMI(FM)'s
license to specify operation on the alternate Class C2 channel.  Petitioner
filed comments reiterating its intention to apply for Channel 300C1 and to
reimburse the licensee of Station KYMI(FM) for the reasonable cost associated
with the change in channel at Los Ybanez.  Ybanez filed comments in response
to the Order to Show Cause.  New Frontier Communications, Inc. ("Frontier"),
filed a counterproposal, as well as an errata to its comments and
counterproposal.    Petitioner filed reply comments. 

      2.  Ybanez, in response to the Order to Show Cause, opposes the
substitution of Channel 253C2 for Channel 300C2 at Los Ybanez and modification
of his license for Station KYMI(FM).  Ybanez states that Station KYMI(FM)'s
present dial is uncluttered and by changing its position would create audience
diversion.  Secondly, he submits petitioner is already able to provide 70 dBu
service to 74 percent of the Odessa land area and has been granted a waiver of
the community coverage rule.  Ybanez argues that the Commission by granting
the waiver has concluded that the public interest is served the by operation
of KADM(FM) as authorized despite its slight shortfall in providing at least
80 percent coverage to Odessa.  Furthermore, Ybanez believes that Odessa is a
community which receives an abundance of services, noting that two Class Cl
stations and one Class C are already allotted to the community.  However,
Ybanez states should the Commission ultimately determine that Channel 300C1
should be allotted to Odessa, he urges that petitioner be required to
reimburse him for the costs associated with the change in channel.  In this
regard, Ybanez submits that the required reimbursement should cover the costs
associated with his change in channel, including: legal, engineering,
equipment, printing, promotion for the new frequency and miscellaneous
expenses.   He also states his willingness to cooperate with petitioner to
come to an understanding as to reimbursable costs.    

      4.  In reply comments, petitioner states that none of Ybanez reasons
presented justifies denying petitioner's proposal to upgrade his facilities at
Odessa.  Petitioner argues that it is well settled that no licensee has a
vested right in a particular channel, citing Churchville and Luray, Virginia,
5 FCC Rcd 1106 (1990).  Similarly, petitioner notes that the fact that the
Commission granted KADM(FM) a waiver of the community coverage rule for its
presently authorized facilities or that Odessa is served by other radio
stations, is no basis for denying petitioner's proposal to improve his
facilities.  Finally, petitioner submits that he will reimburse Ybanez for the
reasonable and prudent expenses associated with the change of channel at Los
Ybanez, Texas.  

      5.  After carefully reviewing the pleading before us, we believe the
public interest would be served by substituting Channel 300C1 for Channel
299C2 at Odessa, Texas, and the substitution of Channel 253C2 for Channel
300C2 at Los Abase, Texas, since it could enable Station KADM(FM) to expand
its coverage area.  Further, we find Ybanez's opposition is not on point.  The
fact petitioner is licensed to a community which includes other radio stations
and has received a waiver of the city grade coverage rules while licensed on
Channel 299C2, does not diminish the benefits to be derived by upgrading its
facilities.  Grant of petitioner's proposal will enable Station KADM(FM) to 
improve its service to the public.  As the Commission has held on numerous
occasions, the substitution of an existing station's channel at one community
serves the public interest where the substitution permits the provision of a
new or expanded service at another community.  See, e.g. Marietta, Ohio, and
Ravenswood, West Virginia, 2 FCC Rcd 4681 (1987) and Albany, New York et al.,
2 FCC Rcd 4300 (1987), 3 FCC Rcd 4681 (1987).     

      6.  With respect to the issue of reimbursement, Ybanez is generally
concerned about the reimbursement of all his expenses for changing channels. 
Reimbursement of costs incurred by the affected station, both technical and
promotional, is left to the good faith negotiation of the parties involved.
Reimbursement of costs incurred by the affected station is governed by the
guidelines set forth in Circleville, Ohio, 8 FCC Rcd 2d 159 (1967).  In this
instance, petitioner has acknowledge his responsibility to reimburse Ybanez
for the reasonable costs associated with the change in frequency for Station
KYMI(FM).   

      7.  Channel 300C1 can be allotted to Odessa in compliance with the
Commission's minimum distance requirements without the imposition of a site
restriction.  Channel 253C2 can be allotted to Los Ybanez in compliance with
the Commission's minimum distance separation requirements and can be used at
the transmitter site specified in Station KYMI(FM)'s license.  As requested,
we will also modify Station KADM(FM) and Station KYMI(FM)'s authorizations to
specify operation on Channel 300C1 and Channel 253C2, respectively. 
Additionally, since Odessa and Los Ybanez are located within 320 kilometers
(199 miles) of the Mexican border, concurrence of the Mexican government has
been obtained for these allotments.
 
      8.  Accordingly, pursuant to the 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  April 27, 1995, the FM Table of Allotments,
Section 73.202(b) of the Commission's Rules, IS AMENDED, with respect to the
communities listed below, to read as follows:

                  City                           Channel No.

                  Odessa, Texas                  241C2, 245C1,
                                                 250C1, 256C,
                                                  300C1

                  Los Ybanez, Texas               253C2

      9.  IT IS FURTHER ORDERED, pursuant to Section 316(a) of the
Communications Act of 1934, as amended, that the license of Ruben Velasquez,
for Station KADM(FM), Odessa, Texas, IS MODIFIED to specify operation on
Channel 300C1, in lieu of Channel 299C2, subject to the following
conditions:

      (a) Within 90 days of the effective date of this Order, the permittee
      shall submit to the Commission a minor change application for a
      construction permit (Form 301).

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

      (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.

      10.  IT IS FURTHER ORDERED, That pursuant to Section 316(a) of the
Communications Act of 1934, as amended, the license of Israel Ybanez,        
for Station KYMI(FM), Los Ybanez, IS MODIFIED to specify operation on Channel
253C2 in lieu of Channel 300C2 , subject to the following conditions:

      (a) Nothing contained herein shall be construed as authorizing any
      change in Station KYMI(FM)'s license, BLH-910115KA, except the channel
      as specified above.  Any other changes, except those so specified under
      Section 73.1690 of the Rules, require prior authorization pursuant to
      an application for construction permit (FCC Form 301).

      (b) Program tests may be conducted in accordance with the provisions
      of Section 73.1620 of the Rules, PROVIDED the transmission facilities
      comply in all respects with license BLH-910115KA, except for the channel
      as specified above and a license application (FCC Form 302) is filed
      within 10 days of commencement of program tests.

      11.  IT IS FURTHER ORDERED, That the Secretary shall send a copy of this
Report and Order by Certified Mail, Return Receipt Requested, to the licensee
of Station KYMI(FM), as follows:  Israel Ybanez, No. 15, Los Ybanez, Texas
79331.  

      12.  Pursuant to Commission Rule Section 1.1104(1(k) and (2)(k), any
party seeking a change of community of license of an FM or television
allotment or an upgrade of an existing FM allotment, if the request is
granted, must submit a rule making fee when filing its application to
implement the change in community of license and /or upgrade.  As a result of
this proceeding, Ruben Velasquez, permittee of Station KADM(FM), is required
to submit a rule making fee in addition to the fee required for the
applications to effect the change in community of license and/or upgrade.

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

      14.  For further information concerning this proceeding, contact
Pam Blumenthal, Mass Media Bureau, (202) 418-2180.

                                    FEDERAL COMMUNICATIONS COMMISSION




                                   John A. Karousos 
                                   Chief, Allocations Branch
                                   Policy and Rules Division
                                   Mass Media Bureau