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 Federal  Communications  Commission  DA  04-  2908 
 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.  (Gunnison,  Crawford,  and  Olathe,  Breckenridge, 
 Eagle,  Fort  Morgan,  Greenwood  Village,  Loveland,  and  Strasburg,  Colorado,  and  Laramie, 
 Wyoming)  1 


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 )  ) 
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 )  ) 
 ) 


 MB  Docket  No.  03-  144  RM-  10733 
 RM-  10788  RM-  10789 


 REPORT  AND  ORDER  (Proceeding  Terminated) 
 Adopted:  September  15,  2004  Released:  September  20,  2004 
 By  the  Chief,  Audio  Division: 
 1.  The  Audio  Division  has  before  it  the  Notice  of  Proposed  Rule  Making  2  issued  at  the  request  of  Dana  J.  Puopolo  (  Petitioner).  Petitioner  filed  comments.  Mayflower-  Crawford  Broadcasters  (  MCB) 
 filed  a  counterproposal.  3  Petitioner  filed  reply  comments  in  response  to  the  counterproposal,  which  MCB  filed  responsive  comments.  Lenora  Alexander,  former  licensee  of  FM  Station  KAGM;  KAGM  Joint 
 Venture,  proposed  licensee  of  Station  KAGM;  4  and  On-  Air  Family,  LLC,  licensee  of  Station  KBRU-  FM,  Channel  268C,  Fort  Morgan,  Colorado  (collectively  Joint  Petitioners)  filed  a  separate  Petition  for  Rule 
 Making  (  Petition),  which  conflicts  with  the  MCB  counterproposal.  KAGM,  LLC  filed  reply  comments  to  the  Public  Notice.  No  other  comments  or  counterproposals  were  received  in  this  proceeding. 


 2.  Background.  The  Notice  proposed  the  allotment  of  Channel  299C3  at  Gunnison,  Colorado,  as  that  communitys  fourth  local  service.  In  response  to  the  Notice,  Petitioner  filed  comments,  reiterating 
 an  intention  to  apply  for  Channel  299C3  at  Gunnison,  if  allotted.  MCB  timely  filed  a  counterproposal  requesting  the  allotment  of  Channel  272C2  to  Crawford,  Colorado,  as  its  first  local  service.  To 
 accommodate  the  allotment  at  Crawford,  MCB  also  requests  the  substitution  of  Channel  299A  for  Channel  272A  at  Station  KVLE-  FM,  Gunnison,  Colorado.  5  This  proposed  substitution  conflicts  with  the  proposed 


 1  Crawford,  Olathe,  Breckenridge,  Eagle,  Fort  Morgan,  Greenwood  Village,  Loveland,  and  Strasburg,  Colorado, 
 and  Laramie,  Wyoming  have  been  added  to  the  caption.  See  Public  Notice,  Report  No.  2629  released  September  16,  2003. 


 2  See  Gunnison,  Colorado,  18  FCC  Rcd  12696  (MB  2003)  (  Notice). 
 3  After  issuance  of  the  Public  Notice,  MCB  filed  a  Request  for  Approval  of  Withdrawal  of  Counterproposal 
 (  Request).  However,  MCB  recently  filed  a  Reinstatement  of  Interest  in  its  counterproposal.  Petitioner  subsequently  filed,  an  Opposition  to  MCB  Reinstatement  of  Interest.  Given  the  fact  that  we  have  not  acted  on  the  withdrawal 


 request,  we  will  continue  to  consider  the  MCB  counterproposal  in  the  context  of  this  proceeding.  4 
 KAGM,  LLC  became  the  licensee  of  Station  KAGM  on  May  19,  2003.  See  BALH-  20030429ABI.  5 
 In  response,  we  issued  an  Order  to  Show  Cause  to  Pilgrim  Communications,  Inc.,  licensee  of  Station  KVLE-  FM,  Channel  272A,  Crawford,  Colorado.  See  Gunnison,  Crawford,  and  Olathe,  Breckenridge,  Eagle,  Fort  Morgan, 


 Greenwood  Village,  Loveland,  and  Strasburg,  Colorado,  and  Laramie,  WY,  18  FCC  Rcd  20070  (MB  2003).  Pilgrim  Communications,  Inc.  filed  no  responsive  comments. 
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 Channel  299C3  allotment  at  Gunnison.  In  addition,  MCB  requests  a  change  in  reference  coordinates  for  vacant  Channel  270C2  at  Olathe,  Colorado.  6 
 3.  In  a  related  context,  the  Joint  Petitioners  filed  a  Petition  prior  to  the  August  22,  2003  comment  date  in  this  proceeding.  The  Joint  Petitioners  proposed  the  reallotment  of  Channel  272A  from  Strasburg  to 
 Greenwood  Village,  Colorado,  as  its  first  local  service,  and  modification  of  the  license  of  FM  Station  KAGM  to  reflect  this  change.  The  proposed  Greenwood  Village  reallotment  requires  the  substitution  of 
 Channel  268C  for  Channel  269A  at  Fort  Morgan,  Colorado,  reallotment  of  Channel  268C  from  Fort  Morgan  to  Strasburg,  Colorado,  and  modification  of  the  license  for  Station  KBRU-  FM  to  prevent  removal  of 
 Strasburgs  sole  local  existing  service;  7  and  the  relocation  of  the  transmitter  sites  for  Station  KSMT-  FM,  Channel  272A,  Breckenridge,  Colorado  and  Station  KTRR-  FM,  Channel  273C2,  Loveland,  Colorado.  8  To 
 facilitate  Station  KSMT-  FM  relocation,  the  Joint  Petitioners  requested  to  relocate  the  transmitter  site  of  FM  Station  KTUN,  Channel  269C1,  Eagle  Colorado,  and  modify  its  license  to  reflect  this  change.  9  Moreover, 
 the  relocation  of  Station  KTRR-  FM  requires  the  relocation  of  transmitter  site  for  Station  KARS-  FM,  Channel  275C1,  Laramie,  Wyoming,  and  modification  of  its  license  accordingly.  10  Station  KSMT-  FM 
 relocation  conflicts  with  the  proposed  allotment  of  Channel  272C2  at  Crawford.  As  such,  we  will  consider  this  Petition  as  a  counterproposal  in  this  proceeding  because  of  its  mutual  exclusivity. 


 4.  Discussion.  Joint  Petitioners  proposal  involves  short-  spacings  to  four  authorized  stations.  To  eliminate  the  Section  73.207  violations,  the  four  stations  have  agreed  to  the  relocation  of  their 
 respective  transmitter  site  reference  points  and  pledged  to  file  applications  to  implement  the  proposed  relocations  in  the  event  the  Joint  Petitioners  proposal  is  adopted. 


 5.  The  rules  do  not  permit  the  acceptance  of  proffers  of  hypothetical  transmitter  site  relocations  to  change  reference  points  for  licensed  stations.  Section  73.207  of  the  Commissions  rules  establishes 
 minimum  distance  separations  between  and  among  allotments  and  assignments  in  the  non-  reserved  FM  band.  11  Section  73.208(  a)  sets  forth  a  hierarchy  of  reference  points  that  must  be  used  12  in  FM  allotment 


 6  The  proposed  reference  coordinates  for  Channel  270C2  at  Olathe,  CO  are  38-  26-  25  NL  and  108-  09-  47  WL.  This 
 site  requires  a  site  restriction  15.  8  kilometers  (9.  8  miles)  west  of  the  community.  7 
 Station  KBRU-  FM  was  granted  a  construction  permit  to  specify  operation  on  Channel  268C  in  lieu  of  Channel  269A  at  Fort  Morgan,  Colorado.  See  BPH-  20020813ABJ.  The  FM  Table  of  Allotments  reflects  this  change.  See 


 Various  Locations,  18  FCC  Rcd  19203  (MB  2003).  Additionally,  the  reallotment  of  Channel  268C  to  Strasburg,  Colorado  requires  the  reclassification  of  Station  KOLT-  FM,  Bridgeport,  Nebraska  to  C0  facilities.  This  occurred  on 
 August  29,  2003.  See  BLH-  20010827AAD.  8 
 In  this  regard,  Rocky  Mountain  Broadcasting  I,  LLC,  licensee  of  Station  KSMT-  FM  and  Regent  Broadcasting  of  Ft.  Collins,  Inc.,  licensee  of  FM  Station  KTRR  have  consented  to  the  relocation  of  their  respective  transmitter  sites. 


 9  Salisbury  Broadcasting  Colorado,  LLP,  licensee  of  FM  Station  KTUN  has  consented  to  these  proposed  changes.  The 
 Channel  269C1  substitution  at  Eagle  was  originally  proposed  in  the  petition,  however  Station  KTUN-  FM  was  later  granted  a  construction  permit  to  specify  operation  on  Channel  269C1  instead  of  Channel  268C  at  Eagle,  Colorado. 


 See  BPH-  20020813ABK.  The  FM  Table  of  Allotments  reflects  this  change.  See  Various  Locations,  18  FCC  Rcd  19203  (MB  2003). 
 10  AGM-  Nevada,  LLC,  licensee  of  Station  KARS-  FM  has  consented  to  these  changes.  The  Channel  275C1  at  Laramie 
 was  also  originally  proposed  in  the  petition,  but  Station  KARS-  FM  was  also  later  granted  a  construction  permit  to  specify  operation  on  Channel  275C1  in  lieu  of  Channel  275C  at  Laramie,  Wyoming.  See  BMPH-  20020926ABK. 


 11  47  C.  F.  R.    73.207. 
 12  Id.    73.  208(  a)(  1)  (emphasis  added). 
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 proceedings  to  determine  compliance  with  Section  73.207  protection  standards.  The  first  13  of  these,  applicable  here,  is  authorized  transmitter  sites.  As  a  result,  these  stations  cannot  avail  themselves  of  the 
 reference  point  relocation  provisions  of  Section  73.208(  a)(  2).  That  subsection  is  explicitly  limited  to  calculations  based  on  community  reference  points  of  proposed  and  vacant  allotments  rather  than 
 transmitter  sites  of  authorized  stations.  We  recognize  that  the  staff  has  accepted  these  fictional  reference  points  in  prior  decisions,  essentially  permitting  licensed  stations  to  selectively  exempt 
 themselves  from  the  foundational  requirement  of  full  Section  73.  207  spacing  in  FM  allotment  proceedings.  14  This  practice  however,  is  contrary  to  the  plain  language  of  the  rule  and  those  cases  are 
 overruled.  Accordingly,  the  reference  point  relocation  proffer  is  without  effect  and  the  Joint  Petitioners  proposal  is  hereby  dismissed  for  failure  to  comply  with  the  minimum  spacing  requirements  of  Section 
 73.207. 
 6.  The  MCB  counterproposal  is  mutually  exclusive  with  the  Notices  proposal  to  allot  Channel  299C3  at  Gunnison.  Since  there  are  no  alternative  channels  available,  it  is  necessary  to  evaluate  the 
 Notices  proposal  for  Channel  299C3  at  Gunnison,  as  its  fourth  local  service  against  the  MCB  counterproposal  for  Channel  272C2  at  Crawford,  as  its  first  local  service.  This  evaluation  is  based  upon 
 the  FM  allotment  priorities  set  forth  in  Revision  of  FM  Assignment  Policies  and  Procedures.  15  In  this  instance,  a  first  local  service  at  Crawford  (priority  3)  is  preferred  over  a  fourth  local  service  at  Gunnison 
 (priority  4). 
 7.  Accordingly,  we  are  allotting  Channel  272C2  at  Crawford,  as  its  first  local  service.  16  Moreover,  we  are  substituting  Channel  299A  for  Channel  272A  at  Station  KVLE-  FM,  Gunnison, 
 Colorado  since  no  responsive  comments  relating  to  the  show  cause  order  was  filed  by  Pilgrim  Communications,  Inc.  17  MCB  has  agreed  to  reimburse  Pilgrim  Communications,  Inc.  for  the  reasonable 
 costs  incurred  in  connection  with  the  change  of  Station  KVLE-  FM  channel.  In  addition,  we  are  changing  the  reference  coordinates  for  vacant  Channel  270C2  at  Olathe,  Colorado.  18  Channel  272C2  can  be 
 allotted  to  Crawford,  consistent  with  the  minimum  distance  separation  requirements  of  the  Commissions  rules  provided  there  is  a  site  restriction  of  20.9  kilometers  (13.0  miles)  southeast  of  the  community.  19  The 


 13  Id.    73.  208(  a)(  1)(  i).  See,  e.  g.,  Sibley,  Iowa,  and  Brandon,  South  Dakota,  13  FCC  Rcd  22209,  22210  (M.  M.  Bur. 
 1998)  (rejecting  short-  spacing  argument  predicated  on  allotment  reference  coordinates;  rulemaking  petition  is  fully  spaced  to  construction  permit  site,  the  first  applicable  reference  point  under  Section  73.  208.) 


 14  See  e.  g.,  Auburn,  Alabama  et.  al,  18  FCC  Rcd  10333  (MB  2003),  Old  Fort,  Fletcher,  and  Asheville,  North 
 Carolina;  Surgoinsville,  Tennessee,  and  Augusta,  Georgia,  18  FCC  Rcd  12181  (MB  2003)  and  Ft.  Myers  Villas,  Indiantown,  Jupiter,  Key  Colony  Beach,  Naples  and  Tice,  Florida,  13  FCC  Rcd  15542  (MMB  1998). 


 15  The  FM  Allotment  priorities  are  (1)  First  full-  time  aural  service.  (2)  Second  full-  time  aural  service.  (3)  First  local 
 service.  (4)  Other  public  interest  matters.  [Co-  equal  weight  is  given  to  priorities  (2)  and  (3)],  See  Revision  of  FM  Assignment  Policies  and  Procedures,  90  FCC  2d  88,  91  (1988). 


 16  Crawford  was  incorporated  in  1910  and  is  listed  as  a  town  in  the  2000  U.  S.  Census  with  a  population  of  366  persons. 
 Crawford  has  its  own  airport,  library,  fire  department,  chamber  of  commerce,  post  office  and  zip  code  (81415).  Crawford  also  has  several  churches  and  businesses. 


 17  Station  KVLE-  FM  license  at  Gunnison,  Colorado  can  be  modified  to  specify  operation  on  Channel  299A  at  its 
 current  authorized  transmitter  site  (BLH-  19800425AB).  The  coordinates  for  Channel  299A  at  Gunnison,  Colorado  are  38-  33-  53  NL  and  106-  55-  38  WL. 


 18  The  reference  coordinates  for  Channel  270C2  at  Olathe,  CO  are  38-  26-  25  NL  and  108-  09-  47  WL.  This  site 
 requires  a  site  restriction  15.  8  kilometers  (9.  8  miles)  west  of  the  community.  19 
 The  reference  coordinates  for  Channel  272C2  at  Crawford  are  38-  32-  05  North  Latitude  and  107-  30-  27  West  Longitude. 
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 Commission  will  send  a  copy  of  this  Report  and  Order  in  a  report  to  be  sent  to  Congress  and  the  General  Accounting  Office  pursuant  to  the  Congressional  Review  Act,  see  5  U.  S.  C.  801(  a)(  1)(  A). 
 8.  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 
 November  5,  2004,  the  FM  Table  of  Allotments,  47  C.  F.  R.  Section  73.202(  b),  IS  AMENDED,  with  respect  to  the  communities  listed  below,  to  read  as  follows: 


 Communities  Channel  No. 
 Crawford,  Colorado  272C2 
 Gunnison,  Colorado  252C3,  299A 
 9.  IT  IS  FURTHER  ORDERED,  That  pursuant  to  47  U.  S.  C.  Section  316(  a)  the  authorization  of  Pilgrim  Communications,  Inc.  for  Station  KVLE-  FM,  Channel  272A,  Gunnison,  Colorado,  IS  MODIFIED 
 to  specify  operation  on  Channel  299A  at  Gunnison,  Colorado,  subject  to  the  following  conditions: 
 (a)  Within  90  days  of  the  effective  date  of  the  Order,  the  licensee  of  Station  KVLE-  FM  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  Commissions  Rules,  unless  the  proposed  facilities  are 
 categorically  excluded  from  environmental  processing. 
 10.  The  window  period  for  filing  applications  for  Channel  272C2  at  Crawford,  Colorado  will  not  be  opened  at  this  time.  Instead,  the  issue  of  opening  this  allotment  for  auction  will  be  addressed  by  the 
 Commission  in  a  subsequent  order. 
 11.  IT  IS  ORDERED,  That  the  Petition  for  Rulemaking  filed  by  Dana  J.  Puopolo  IS  DENIED. 
 12.  IT  IS  ORDERED,  That  the  Petition  for  Rulemaking  jointly  filed  by  Lenora  Alexander,  KAGM  Joint  Venture,  and  On-  Air  Family,  LLC  IS  DISMISSED. 


 13.  IT  IS  FURTHER  ORDERED,  That  the  aforementioned  proceeding  IS  TERMINATED 
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 14.  For  further  information  concerning  this  proceeding,  contact  Rolanda  F.  Smith,  Media  Bureau,  (202)  418-  2180. 
 FEDERAL  COMMUNICATIONS  COMMISSION 


 Peter  H.  Doyle  Chief,  Audio  Division 
 Media  Bureau 
5