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 Federal  Communications  Commission  DA  00-  2481 
 Before  the 
 Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of  ) 
 ) 
 Amendment  of  Section  73.202(  b),  )  MM  Docket  No.  00-  101 
 Table  of  Allotments,  )  RM-  9885 
 FM  Broadcast  Stations.  ) 
 (Sparta  and  Buckhead,  Georgia)  ) 


 REPORT  AND  ORDER 
 (Proceeding  Terminated) 


 Adopted:  October  25,  2000  Released:  November  3,  2000 
 By  the  Chief,  Allocations  Branch: 
 1.  At  the  request  of  Barinowski  Investment  Company  ("  petitioner"),  the  Commission  has 
 before  it  the  Notice  of  Proposed  Rule  Making,  15  FCC  Rcd  9474  (2000),  proposing  the  substitution  of 
 Channel  274C3  for  Channel  274A,  its  reallotment  from  Sparta  to  Buckhead,  Georgia,  as  the 
 community's  first  local  aural  service,  and  the  modification  of  Station  WPMA(  FM)  's  license  accordingly. 
 Comments  were  filed  by  the  petitioner.  No  other  comments  were  received.  For  the  reasons  discussed 
 below,  we  deny  the  proposed  reallotment  and  license  modification. 


 2.  Petitioner's  request  was  filed  pursuant  to  Section  1.420(  i)  of  the  Commission's  Rules  which 
 allows  the  modification  of  a  station's  authorization  to  specify  a  new  community  of  license  without 
 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  ("  Community  of 
 License  R&  O"),  4  FCC  Rcd  4870  (1989),  recon.  granted  in  part  ("  Community  of  License  MO&  O"),  5 
 FCC  Rcd  7094  (1990).  In  considering  a  reallotment  proposal,  we  compare  the  existing  allotment 
 versus  the  proposed  allot  ment  to  det  ermine  whet  her  the  reallot  ment  will  result  in  a  preferent  ial 
 arrangement  of  allot  ment  s.  This  det  erminat  ion  is  based  upon  the  FM  allot  ment  priorit  ies  set  fort  h  in 
 Revision  of  FM  Allot  ment  Policies  and  Procedures  ("  FM  Priorit  ies"),  90  FCC  2d  88  (1982).  In 
 making  t  he  evaluat  ion,  we  consider  the  "t  ot  alit  y  of  fact  ors."  LaGrange  and  Rollingwood,  Texas,  10 
 FCC  Rcd  3337  (1995). 


 3.  As  stated  in  the  Notice,  Buckhead  is  incorporated  and  listed  in  the  1990  U.  S.  Census  as 
 having  a  population  of  176  people,  with  its  own  post  office  and  zip  code.  However,  petitioner  was 
 requested  to  furnish  additional  demographic  information  in  order  to  determine  whether  it  qualified  as  a 
 community  for  allotment  purposes  as  we  were  unable  to  determine  that  it  had  any  other  indicia  of 
 community  status  beyond  four  churches  and  two  restaurants.  In  response,  petitioner  states  that 
 Buckhead,  with  established  geographic  boundaries,  is  governed  by  a  mayor  and  town  council,  has  a 
 town  hall,  volunteer  fire  department,  two  recreational  parks,  four  churches,  a  Rotary  Club,  the  Steffen 
 Thomas  Museum  and  Archives,  a  little  league  baseball  team,  its  own  cable  television  system  and  many 
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 businesses.  1  Petitioner  also  states  that  children  generally  attend  the  Morgan  County  Public  Schools  but 
 that  a  private  school,  The  Buckhead  Academy,  is  located  in  the  community.  Petitioner  contends  that 
 Buckhead  is  experiencing  a  substantial  increase  in  population  due  to  the  development  of  the  19,000 
 acre  Lake  Oconee.  As  a  result  of  this  growth,  a  new  town  charter  was  adopted  by  the  Georgia  House 
 of  Representatives  and  signed  into  law  in  1999  by  the  Governor,  and  in  1998  was  added  to  the  list  of 
 communities  in  the  National  Flood  Insurance  Program  in  1998.  To  accommodate  the  growth  in 
 Buckhead  and  the  Lake  Oconee  region,  we  are  told  that  Buckhead  is  also  the  proposed  site  for  a  new 
 asphalt  plant  that  will  provide  building  mat  erials.  Therefore,  pet  it  ioner  submits  t  hat  t  he  1990  U.  S. 
 Census  population  figure  is  no  longer  accurate.  It  notes  that  the  Lake  Oconee  area  is  served  by  several 
 telephone  companies  and  the  Pinnacle  Telephone  Company,  Inc.,  publishes  the  telephone  book  for  the 
 region.  2 


 4.  Petitioner  was  also  requested  to  provide  further  information  to  demonstrate  that  the  public 
 interest  would  be  better  served  by  providing  Buckhead  with  its  first  local  aural  service  by  removing 
 Sparta's  sole  local  aural  service.  In  response,  petitioner  states  that  Channel  274  cannot  be  upgraded  to 
 a  Class  C3  at  Sparta.  Further,  as  a  Class  A,  the  station  presently  provides  60  dBu  service  to  9,433 
 people  within  a  1,307  square  mile  area  but  as  a  Class  C3,  licensed  to  Buckhead,  pet  it  ioner  st  at  es  t  hat 
 the  station  could  provide  60  dBu  service  to  15,203  people  within  a  3,904  square  mile  area.  The 
 petitioner  was  also  requested  to  provide  information  concerning  the  population  and  reception  services 
 wit  hin  the  loss  and  gain  areas  which  will  occur  if  Channel  274C3  is  reallotted.  Petitioner  did  not 
 respond  with  a  showing  of  what  areas  would  lose  or  gain  service,  the  population  within  these  areas  or 
 the  current  reception  services  available  within  these  areas.  It  only  states  that  Sparta  and  areas  north 
 and  west  of  the  communit  y  will  cont  inue  to  be  wit  hin  St  at  ion  WPMA's  60  dBu  cont  our  and  that  the 
 small  area  which  will  lose  service  are  already  well  served  by  At  lant  a  AM  St  at  ions  WSB  and  WGST, 
 Milledgeville  AM  St  at  ions  WMVG  and  WKGQ  and  FM  St  at  ions  WLRR,  WKZR  and  WGUR, 
 Sanderson  AM  Station  WSNT  and  Warrenton  FM  Station  WRFN. 


 Discussion 
 5.  Based  on  the  record  before  us,  and  in  accordance  with  the  Commission's  allot  ment  priorit  ies 
 and  policies,  we  find  that  the  public  interest  would  not  be  served  by  substituting  Channel  274C3  for 
 Channel  274A,  reallotting  Channel  274C3  from  Sparta  to  Buckhead,  and  modifying  the  license  of 
 Station  WPMA  accordingly.  In  Change  of  Community  MO&  O,  supra,  at  7097,  the  Commission 
 stated  that  the  public  has  a  legitimate  expectation  that  existing  service,  regardless  of  whether  it  is  a 
 transmission  or  reception  service,  will  cont  inue  and  that  this  expect  at  ion  is  a  fact  or  to  be  weighed 
 independently  against  the  benefits  that  may  result  from  the  reallotment.  Further,  while  stating  that  a 


 1  The  businesses  located  in  Buckhead  include  Blue  Springs  Marina,  Buckhead  Woodcrafters  and  Stained  Glass,  Diane's 
 Businesses  Service,  Buckhead  Brokers  Independent,  Images  by  Jennifer  Queen,  HSI/  My  Business,  A  Step  Ahead,  Ltd., 
 Buckhead  Cable  Co.,  Bonners  Triple  B,  Buckhead  Grocery,  Saffold  Dairy,  Jimmy's  Body  Shop,  Inc.,  Goldsmith 
 Bookeeping  Services,  and  Advanced  Electrical  Contractors. 


 2  The  telephone  book  includes  listings  for  Buckhead,  Eatonton,  Greensboro,  Madison,  Rutledge,  Union  Point  and  White 


 Plains. 
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 Federal  Communications  Commission  DA  00-  2481 
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 prohibit  ion  on  t  he  removal  of  a  communit  y's  sole  local  aural  service  is  just  ified  as  presumpt  ively 
 disserving  t  he  public  int  erest  ,  we  went  on  t  o  say  that  request  s  to  waive  this  prohibit  ion  would  be 
 considered  in  the  "rare  circumstances"  where  the  removal  could  serve  the  public  interest.  Petitioner's 
 contention  notwithstanding,  we  continue  to  find  that  the  reallotment  would  deprive  Sparta  of  its  sole 
 local  aural  service.  While  a  construction  permit  has  been  awarded  to  noncommercial  educational 
 Station  WJDS,  it  has  not  as  yet  begun  operations  and  its  permit  does  not  expire  until  November,  2002. 
 In  addition,  the  Commission  has  stated  that  with  regard  to  change  of  community  requests,  neither  a 
 vacant  allotment  nor  a  construction  permit  can  be  considered  as  a  substitute  for  an  operating  station. 
 Therefore,  the  situation  before  us  triggers  the  same  allotment  priority,  that  is  the  provision  of  a  first 
 local  aural  service  to  either  Sparta  or  Buckhead.  3 


 6.  In  analyzing  the  proposal,  a  staff  engineering  study  finds  that  the  removal  of  Channel  274A 
 from  Sparta  will  create  a  loss  area  of  1,  365  square  kilometers  containing  11,246  people  and  that  no 
 whit  e  area  (no  fullt  ime  aural  service)  will  be  creat  ed  by  the  removal  of  Channel  274A  from  Sparta. 
 However,  the  removal  of  the  channel  will  result  in  7,  481  people  becoming  less  well  served. 
 Specifically,  471  people  within  a  120  square  kilometer  area  receiving  only  one  fulltime  aural  service 
 (gray  area),  3,724  people  within  a  277  square  kilometer  area  receiving  only  two  fulltime  aural  services, 
 2,189  people  within  a  231  square  kilometer  area  receiving  only  three  aural  services,  and  1,097  people 
 within  a  267  square  kilometer  area  receiving  only  four  fulltime  aural  services.  If  Channel  274,  as  a 
 Class  C3,  is  reallot  t  ed  to  Buckhead,  the  st  at  ion  will  realize  a  gain  area  of  3,  654  square  kilometers 
 containing  48,903  people.  Further,  the  study  shows  that  as  a  Buckhead  allotment,  43,115  people  are 
 already  well-  served  with  five  or  more  fulltime  reception  services  and  no  service  will  be  provided  to  any 
 whit  e  area.  The  allot  ment  will,  however,  increase  service  to  5,  788  people  who  are  presently 
 underserved.  The  reallot  ment  will  eliminat  e  a  gray  area  cont  aining  223  people  within  a  68  square 
 kilometer  area,  provide  a  third  fulltime  service  to  1,159  people  within  a  191  square  kilometer  area, 
 provide  a  fourth  aural  service  of  2,423  people  within  a  68  square  kilometer  area  and  provide  a  fifth 
 such  service  to  1,983  people  within  a  90  square  kilometer  area. 


 7.  In  considering  the  above  information,  we  would  allot  Channel  274A  to  Sparta  rather  than 
 Channel  274C3  to  Buckhead.  In  this  case,  neither  proposal  would  result  in  the  provision  of  a  first 
 fulltime  aural  reception  service  (priority  1)  but  both  would  provide  a  second  fulltime  aural  reception 
 service  as  well  as  a  first  local  aural  transmission  service  (priorities  2  and  3).  Comparing  the  two 
 proposals  under  the  Commission's  allotment  priorities,  Channel  274A  at  Sparta  would  provide  a 
 second  fulltime  reception  service  to  a  greater  number  of  people  (471  vs.  223)  and  provide  the  more 
 populous  community  with  its  first  local  aural  transmission  service  (1,  710  vs.  176).  4  5  We  recognize 


 3  The  Commission's  allotment  priorities  are:  (1)  first  fulltime  aural  service;  (2)  second  fulltime  aural  service;  (3)  first  local 
 aural  service;  and  (4)  other  public  interest  matters.  Priorities  (2)  and  (3)  are  given  co-  equal  weight.  See  Revision  of  FM 
 Assignment  Policies  and  Procedures,  90  FCC  2d  88  (1982). 


 4  Petitioner  contends  that  the  1990  U.  S.  Census  does  not  accurately  reflect  Buckhead's  current  population  because  of  the 


 significant  growth  which  has  occurred  because  of  its  location  near  Lake  Oconee.  However,  it  provides  no  population 
 figure  nor  the  source  for  any  changed  population  figure.  Absent  compelling  information  to  the  contrary,  the  Commission 
 relies  on  the  most  current  U.  S.  Census  figures  for  community  population  statistics.  See,  Blanchard,  Louisiana  and 
 Stephens,  Arkansas,  8  FCC  Rcd  7083  (1993),  recon.  denied  10  FCC  Rcd  9828  at  fn.  12  (1995)  (absent  an  alternative 
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 that  the  allotment  of  Channel  274C3  could  enable  Station  WPMA  to  provide  reception  service  to  a 
 greater  number  of  people  than  it  presently  can  as  a  Class  A  station  at  Sparta.  However,  the 
 determining  factor  in  comparing  competing  proposals  representing  first  local  services  is  the  size  of  the 
 community  and  not  the  potential  population  within  the  projected  60  dBu  contour.  See,  Calico  Rock 
 and  Leslie,  Arkansas,  12  FCC  Rcd  20174  (1997). 


 8.  Accordingly,  IT  IS  ORDERED,  That  the  petition  for  rule  making  filed  by  Barinowski 
 Investment  Company  (RM-  9885)  to  substitute  Channel  274C3  for  Channel  274A  at  Sparta,  Georgia, 
 reallot  Channel  274C3  to  Buckhead,  Georgia,  and  modify  the  license  of  Station  WPMA  accordingly, 
 IS  DENIED. 


 9.  IT  IS  FURTHER  ORDERED,  That  this  proceeding  IS  TERMINATED. 
 10.  For  further  information  concerning  this  proceeding,  contact  Leslie  K.  Shapiro,  Mass 
 Media  Bureau,  (202)  418-  2180. 


 FEDERAL  COMMUNICATIONS  COMMISSION 


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


 authoritative  source  of  population  data,  we  will  continue  to  rely  on  Census  figures  in  the  implementation  of  our  rules). 
 5  See,  Potts  Camp  and  Saltillo,  Mississippi,  13  FCC  Rcd  11909  (1998)  and  Tuscola  and  Clio,  Michigan,  15  FCC  Rcd 
 8958  (2000)  (denied  proposal  to  reallot  sole  local  aural  service  from  smaller  community  to  larger  community  where  it 
 would  be  a  first  local  aural  service). 
4