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 Federal  Communications  Commission  DA  01-  1859 
 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  ,  Flet  cher,  and  Asheville,  ) 
 Nort  h  Carolina;  and  Surgoinsville,  Tennessee;) 
 and  Augusta,  Georgia)  ) 


 NOTICE  OF  PROPOSED  RULE  MAKING 
 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 
 Part  nership,  licensee  of  WKSF(  FM)  Asheville,  Nort  h  Carolina  (  pet  it  ioners),  proposing  t  he 
 reallotment  of  Channel  282A  from  Old  Fort  to  Fletcher,  North  Carolina,  and  the  modification  of 
 Station  WQNQ-  FMs  license  accordingly.  1  To  accommodate  the  reallotment,  petitioners  also  propose 
 (a)  the  reallotment  of  Channel  260C  from  Asheville  to  Old  Fort  ,  Nort  h  Carolina,  and  the  modificat  ion 
 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  modificat  ion  of  the  transmitt  er  sit  e  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  stations  authorization  to  specify  a  new  community  of  license  without 


 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. 
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 affording  other  interested  parties  an  opportunity  to  file  competing  expressions  of  interest.  See 
 Modification  of  FM  and  TV  Authorizations  to  Specify  a  New  Community  of  License,  4  FCC  Rcd 
 4870  (1989),  recon.  granted  in  part,  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  subst  ant  ial  number  of  these  businesses  ident  ify  wit  h  the  communit  y  by  using  Flet  cher  in  t  heir 
 name,  e.  g.,  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.,  Parkridge  and  Pardee 
 Hospitals  maintain  professional  office  buildings,  and  veterinary  services  may  be  obtained  from  Dr. 
 Martins  Veterinary  Hospital.  Fletcher  has  two  main  parks  Fletcher  Community  Park  and  Kates 
 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  t  hat  solicit  ing  comment  s  on  the  proposal  warrant  s  considerat  ion,  since  it  could 
 provide  Flet  cher  wit  h  its  first  local  aural  transmission  service,  wit  hout  depriving  Old  Fort  of  it  s  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  (populat  ion  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  communit  y.  Since  St  at  ion  WQNQ-  FM  seeks  to  relocate  its 
 transmitter  site,  a  gain  and  loss  area  study  is  required  and  has  been  provided.  Moreover,  since  Fletcher  is 
 locat  ed  wit  hin  the  Asheville  Nort  h  Carolina  Urbanized  Area  and  the  70  dBu  signal  will  cover  87%  of  t  hat 
 Urbanized  Area,  petitioners  have  provided  the  required  Tuck  analysis.  2  Even  though  Old  Fort  is  located 
 out  side  the  Asheville  Urbanized  Area,  the  reallot  ment  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  St  at  ion 
 WKSF(  FM)  is  not  relocating  its  transmitter  site,  neither  a  Tuck  analysis  nor  a  gain  and  loss  area  study  is 
 necessary.  The  reallotment  of  Channel  282A  to  Fletcher  will  provide  a  first  local  service  (priorit  y  3),  and 
 is  consistent  with  the  provisions  set  forth  in  the  Revision  of  FM  Assignment  Policies  and  Procedures,  90 
 FCC  2d  88,  91  (1982).  3  However, 


 2  See  Huntington  Broadcasting  Co.  v.  FCC  ,  192  F.  2d  33  (D.  C.  Cir.  1951);  RKO  General,  Inc.,  5  FCC  Rcd  3222 
 (1990);  and  Faye  and  Richard  Tuck,  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).] 
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 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  Commissions  Rules.  See  Newnan  and 
 Peachtree  City,  Georgia,  7  FCC  Rcd  6307  (1992)  (  grandfathered  short-  spacing);  and  Killeen  and 
 Cedar  Park,  Texas,  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  t  o  change  it  s  transmitt  er  sit  e,  the  preexist  ing  short  -spacings  will  not  be 
 exacerbated  the  by  reallotment  of  Channel  260C  at  Old  Fort  as  a  replacement  service.  Moreover, 
 pet  it  ioners  st  at  e  their  willingness  to  reimburse  Trent  Broadcast  ing,  L.  L.  C.,  licensee  of  St  at  ion  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 
 5.  An  engineering  analysis  has  determined  that  Channel  282A  can  be  reallotted  to  Fletcher  in 
 compliance  wit  h  the  Commissions  minimum  dist  ance  separat  ion  requirement  s  wit  hout  the  imposit  ion  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 


 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. 
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 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  Channel  No. 
 Present  Proposed 
 Old  Fort,  North  Carolina  282A  260C 
 Fletcher,  North  Carolina  ---  282A 
 Asheville,  Nort  h  Carolina  260C  --- 
 7.  The  Commission's  authority  to  institute  rule  making  proceedings,  showings  required,  cut-  off 
 procedures,  and  filing  requirement  s  are  cont  ained  in  the  at  t  ached  Appendix  and  are  incorporat  ed  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.  Comment  s  should  be  filed  wit  h  the  Secret  ary,  Federal  Communicat  ions  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  det  ermined  that  the  relevant  provisions  of  the  Regulat  ory  Flexibilit  y 
 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  Certification  That  Sections  603  and  604  of  the  Regulatory 
 Flexibilit  y  Act  Do  Not  Apply  to  Rule  Making  to  Amend  Sect  ions  73.  202(  b), 


 73.504  and  73.606(  b)  of  the  Commission's  Rules,  46  FR  11549,  February  9,  1981. 
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 10.  IT  IS  ORDERED,  That  the  Secretary  Shall  Send,  by  Certified  Mail,  Return  Receipt 
 Requested,  a  copy  of  this  Notice  of  Proposed  Rule  Making  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  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  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  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 
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 6 
 APPENDIX 
 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  to  which  this 
 Appendix  is  attached. 


 2.  Showings  Required.  Comments  are  invited  on  the  proposal(  s)  discussed  in  the  Notice  of 
 Proposed  Rule  Making  to  which  this  Appendix  is  at  t  ached.  Proponent  (s)  will  be  expect  ed  t  o  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  st  at  ion  prompt  ly.  Failure  to  file  may  lead  to  denial  of  the  request  . 


 3.  Cut-  off  protection.  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  init  ial 
 comment  s,  so  that  part  ies  may  comment  on  them  in  reply  comment  s.  They  will  not  be  considered  if 
 advanced  in  reply  comments.  (See  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, 
 t  hey  will  be  considered  as  comment  s  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, 
 t  hey  will  not  be  considered  in  connect  ion  wit  h  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.  Pursuant  to  applicable  procedures  set  out  in 
 Sections  1.415  and  1.420  of  the  Commission's  Rules  and  Regulat  ions,  int  erest  ed  part  ies  may  file 
 comments  and  reply  comments  on  or  before  the  dates  set  forth  in  the  Notice  of  Proposed  Rule  Making 
 to  which  this  Appendix  is  attached.  All  submissions  by  parties  to  this  proceeding  or  by  persons  acting 
 on  behalf  of  such  part  ies  must  be  made  in  writ  t  en  comment  s,  reply  comment  s,  or  ot  her  appropriat  e 
 pleadings.  Comment  s  shall  be  served  on  the  pet  it  ioner  by  the  person  filing  the  comment  s.  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  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. 
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 5.  Number  of  Copies.  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.  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. 
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