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 Federal  Communications  Commission  DA  06-  1762 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of 
 Amendment  of  Section  73.  202(  b)  Table  of  Allotments, 
 FM  Broadcast  Stations.  (Oak  Harbor  and  Sedro-  Woolley,  Washington) 


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 MB  Docket  No.  04-  305  RM-  10980 
 RM-  11328  RM-  11329 


 REPORT  AND  ORDER  (Proceeding  Terminated) 
 Adopted:  August  31,  2006  Released:  September  5,  2006 
 By  the  Assistant  Chief,  Audio  Division,  Media  Bureau: 
 1.  The  Audio  Division  has  before  it  a  Notice  of  Proposed  Rule  Making  1  issued  in  response  to  a  petition  for  rule  making  (RM-  10980)  filed  by  Dana  J.  Puopolo  (Petitioner),  requesting  the  allotment  of 
 Channel  289A  at  Oak  Harbor,  Washington  as  a  second  local  service.  2  Petitioner  filed  comments  stating  his  continuing  interest  in  pursuing  Channel  289A  at  Oak  Harbor,  and  his  intention  to  apply  for  a  construction 
 permit  if  allotted.  Bible  Broadcasting  Network,  Inc.  (  Bible)  timely  filed  a  counterproposal  (RM-  11328)  proposing  to  allot  Channel  *289A  3  at  Oak  Harbor  but  requesting  that  the  channel  be  reserved  for 
 noncommercial  educational  (  NCE)  FM  use.  4  Jodesha  Broadcasting,  Inc.  (  Jodesha)  also  timely  filed  a  counterproposal  (RM-  11329)  proposing  to  allot  Channel  289A  at  Sedro-  Woolley,  Washington.  5  Dr.  Sandra 
 Woodruff  filed  comments  opposing  the  proposed  allotments.  6 
 2.  Conflicting  proposals  are  considered  on  a  comparative  basis  consistent  with  the  FM  allotment  priorities  set  forth  in  Revision  of  FM  Assignment  Policies  and  Procedures  7  where  no  alternate 
 channels  are  available.  However,  we  have  determined  that  there  are  alternate  channels  to  satisfy  the  competing  proposals  for  Channel  289A  at  Oak  Harbor  for  commercial  and  NCE  use.  Accordingly,  we 
 can  remove  the  mutual  exclusivity  between  Channel  289A  at  Oak  Harbor  and  Channel  289A  at  Sedro- 
 1  See  Fruita,  Colorado,  et  al.,  Notice  of  Proposed  Rule  Making,  19  FCC  Rcd  15303  (MB  2004)  (  Notice)  (The 
 instant  Report  and  Order  disposes  of  one  docket  in  this  multiple  docket  Notice  of  Proposed  Rule  Making.).  2 
 The  Notice  inadvertently  stated  that  the  proposed  Channel  289A  allotment  would  provide  a  first  local  aural  transmission  service  to  Oak  Harbor  when  in  fact  AM  daytime  only  Station  KWDB  already  provides  first  local 


 service  to  the  community.  3 
 The  FM  Table  of  Allotments  denotes  NCE  FM  channels  with  an  asterisk  preceding  the  channel  listing.  See  47  C.  F.  R.    73.  202. 


 4  Bibles  counterproposal  was  placed  on  Public  Notice  on  August  3,  2006,  Report  No.  2769-  CORRECTION. 
 5  Jodeshas  counterproposal  was  placed  on  Public  Notice  on  August  3,  2006,  Report  No.  2770-  CORRECTION. 
 6  Petitioner  filed  Supporting  Comments  and  Reply  Comments.  Bible  filed  Comments  on  Notice  of  Proposed 
 Rulemaking  and  Counterproposal,  Reply  Comments,  Statement  Regarding  Counterproposals,  and  Reply  Comments  and  Supplement  to  Statement  Regarding  Counterproposals.  Jodesha  filed  Counterproposal  and  Reply 


 Comments.  Woodruff  filed  Objection  to  Petition  for  Rulemaking  and  Reply  to  Comments.  7 
 Second  Report  and  Order,  90  FCC  2d  88,  92  n.  8  (1982). 
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 Federal  Communications  Commission  DA  06-  1762 
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 Woolley,  without  undertaking  such  a  comparative  analysis.  With  regard  to  Petitioners  proposal  to  allot  Channel  289A  at  Oak  Harbor,  our  staff  engineering  analysis  has  determined  that  Channel  277A  is 
 available  as  an  alternate  channel  at  city  reference  coordinates  48-  17-  36  North  Latitude  (  NL)  and  122-  38-  31  West  Longitude  (  WL).  8  Canadian  concurrence  has  been  obtained.  We  find  that  the  public 
 interest  would  be  served  by  allotting  Channel  277A  at  Oak  Harbor  as  a  second  local  service. 
 3.  With  regard  to  Bibles  counterproposal  for  Channel  *289A  at  Oak  Harbor,  it  satisfied  the  revised  criteria  established  in  the  Reexamination  of  the  Comparative  Standards  for  Noncommercial 
 Educational  Applicants  9  by  which  a  rulemaking  proponent  may  reserve  an  FM  allotment  for  NCE  use.  Under  the  expanded  criteria,  a  proponent  must  demonstrate  that  it  is  technically  precluded  from  using  a 
 reserved  channel  (Channels  200  through  220)  and  the  proposal  would  provide  a  first  and/  or  second  NCE  radio  service  to  at  least  10  percent  of  the  population  within  the  1  mV/  m  contour  of  the  proposed  station, 
 and  that  such  population  is  at  least  2000  persons.  However,  to  remove  the  conflict  with  Jodeshas  counterproposal,  we  propose  alternate  Channel  *233A  at  city  reference  coordinates  48-  17-  36  NL  and 
 122-  38-  31  WL.  Canadian  concurrence  has  been  obtained.  We  find  that  there  are  no  reserved  channels  available  for  NCE  use  and  that  the  reservation  of  Channel  *233A  at  Oak  Harbor  for  NCE  use  would 
 proved  a  first  NCE  service  to  at  least  10%  of  the  total  population  of  19,795  persons. 
 4.  These  channel  changes  eliminate  all  technical  conflicts  with  Jodeshas  counterproposal  to  allot  Channel  289A  at  Sedro-  Woolley.  10  Sedro-  Woolley  is  an  incorporated  city  with  a  2000  U.  S.  Census 
 population  of  8,658  persons  with  a  mayor  and  seven-  member  city  council  that  provides  municipal  services.  We  find  that  the  public  interest  would  be  served  by  allotting  Channel  289A  as  a  first  local 
 service  to  the  community  of  Sedro-  Woolley.  Channel  289A  can  be  allotted  at  city  reference  coordinates  48-  30-  14  NL  and  122-  14-  10  WL.  Although  Canadian  concurrence  has  been  requested,  notification  has 
 not  been  received.  If  a  construction  permit  for  Channel  289A  at  Sedro-  Woolley,  Washington  is  granted  prior  to  receipt  of  formal  concurrence  by  the  Canadian  government,  the  authorization  will  include  the 
 following  condition;  Operation  with  the  facilities  specified  herein  for  Sedro-  Woolley,  Washington,  is  subject  to  modification,  suspension,  or  termination  without  right  to  hearing,  if  found  by  the  Commission 
 to  be  necessary  in  order  to  conform  to  the  Canada-  Untied  States  FM  Broadcast  Agreement,  or  if  specifically  objected  to  by  Industry  Canada. 


 5.  Lastly,  we  reject  Woodruffs  assertion  that  Canadian  Station  CBU-  FM  would  cause  objectionable  interference  to  Channel  289A  at  Sedro-  Woolley  and  Channel  289A  at  Oak  Harbor.  As 
 discussed  supra,  interference  between  U.  S.  and  Canadian  stations  are  specially-  negotiated  short-  spaced  allotment,  and  alternate  channels  have  been  found  at  Oak  Harbor. 


 6.  The  Commission  will  send  a  copy  of  this  Report  and  Order  in  a  report  to  be  sent  to  Congress  and  the  Government  Accountability  Office  pursuant  to  the  Congressional  Review  Act,  see  5  U.  S.  C.  Section 
 801(  a)(  1)(  A). 
 8  As  stated  in  the  Notice,  Jodeshas  minor  change  application  (File  No.  BPH-  20031021ADK)  to  upgrade  Station 
 KJET(  FM)  from  Channel  289C2  to  Channel  289C1  at  Raymond,  Washington  would  be  treated  as  a  counterproposal  because  it  was  filed  after  Petitioners  filing  and  conflicts  with  Petitioners  proposed  allotment  of  Channel  289A  at 


 Oak  Harbor.  However,  alternate  Channel  277A  at  Oak  Harbor  removes  the  conflict.  The  application  will  be  reviewed  separately  from  this  proceeding. 


 9  Report  and  Order,  15  FCC  Rcd  7386  (2000).  Previously,  the  Commission  would  only  reserve  a  channel  in  the 
 nonreserved  FM  band  (Channels  221  through  300)  if  the  petitioner  demonstrated  that  no  reserved  channel  could  be  used  without  causing  prohibited  interference  to  a  Channel  6  TV  station  or  a  foreign  broadcast  station. 


 10  We  note  that  contrary  to  Bibles  assertion,  Jodeshas  proposal  to  allot  Channel  289A  at  Sedro-  Woolley  as  a  first 
 local  service  does  not  require  a  showing  pursuant  to  Faye  and  Richard  Tuck,  Inc.,  Memorandum  Opinion  and  Order,  3  FCC  Rcd  5374  (1988)  (  Tuck).  The  Tuck  showing  is  only  applicable  to  change  of  community  proposals. 
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 Federal  Communications  Commission  DA  06-  1762 
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 7.  Accordingly,  pursuant  to  the  authority  found  in  47  U.  S.  C.  Sections  4(  i),  5(  c)(  1),  303(  g)  and  (r)  and  307(  b)  and  47  C.  F.  R.  Sections  0.61,  0.204(  b)  and  0.283,  IT  IS  ORDERED,  That  effective, 
 October  20,  2006,  the  FM  Table  of  Allotments,  47  C.  F.  R.  Section  73.  202(  b),  IS  AMENDED  for  the  community  listed  below,  as  follows: 


 Community  Channel  No. 
 Oak  Harbor,  Washington  277A,  *233A 
 Sedro-  Woolley,  Washington  289A 
 8.  The  window  period  for  filing  applications  for  Channel  277A  and  Channel  *233A  at  Oak  Harbor,  Washington,  and  Channel  289A  at  Sedro-  Woolley,  Washington  will  not  be  opened  at  this  time. 
 Instead,  the  issue  of  opening  these  allotments  for  auction  will  be  addressed  by  the  Commission  in  a  subsequent  order. 


 9.  IT  IS  FURTHER  ORDERED,  That  the  aforementioned  proceeding  IS  TERMINATED. 
 10.  For  further  information  concerning  this  proceeding,  contact  Helen  McLean,  Media  Bureau,  (202)  418-  2738. 


 FEDERAL  COMMUNICATIONS  COMMISSION 


 John  A.  Karousos  Assistant  Chief 
 Audio  Division  Media  Bureau 
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