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                            Before the
                Federal Communications Commission
                      Washington, D.C. 20554

                                 
                                 
In the Matter of                )
                                )
Amendment of Section 73.202(b), )  MM Docket No. 97-97
Table of Allotments,            )  RM-9047
FM Broadcast Stations.          )
(Mt. Juliet and Belle Meade,    )
Tennessee)                      )
                                 

                   MEMORANDUM OPINION AND ORDER
                     (Proceeding Terminated)

   Adopted:  April 20, 2000                                       Released:  May 4, 2000

By the Commission:

     1.  The Commission has before it an Application for Review filed by The Cromwell Group, Inc.
("Cromwell Group") directed to the  Memorandum Opinion and Order in this proceeding, 12 FCC Rcd 17616
(MMB 1997).  Mt. Juliet Broadcasting, Inc.("MJB") filed an Opposition to Application for Review and  
Cromwell Group filed a Reply to that Opposition.  For the reasons discussed below, we deny the Application
for Review.

                            Background

     2.  MJB, permittee of Station WNPL, Channel 294A, Mt. Juliet, Tennessee, commenced the
operation of Station WNPL in 1996.  As a result of a complaint of electromagnetic interference (EMI) to air
navigation, MJB voluntarily terminated operation on November 7, 1996.  Specifically, it was later
determined that an operation on Channel 294A in the Mt. Juliet area would cause EMI to four Nashville area
FAA localizers.  Thereafter, on February 11, 1997, MJB filed a Petition for Rule Making proposing the
reallotment of Channel 294A from Mt. Juliet to Belle Meade, Tennessee.  This Petition was filed pursuant
to Section 1.420(i) of the Rules which permits the modification of an authorization to specify a new
community of license without affording other interested parties to file a competing expression of interest
where the new community is mutually exclusive with the existing one. See Modification of FM and TV
Authorizations to Specify a New Community of License ("Community of License"), 4 FCC Rcd 4870
(1989); recon granted in part, 5 FCC Rcd 7094 (1990).  In considering such a reallotment proposal, we
compare the existing allotment versus the proposed allotment to determine whether the reallotment will
result in a preferential arrangement of allotments.  This determination is based upon the FM allotment
priorities set forth in Revision of FM Assignment Policies and Procedures, 90 FCC 2d 88 (1982)  In making
this evaluation, we consider the "totality of factors." LaGrange and Rollingwood, Texas, 10 FCC Rcd 3337
(1995).            

     3.  In the Report and Order in this proceeding, the Bureau reallotted Channel 294A from Mt. Juliet
to Belle Meade, Tennessee, and modified the Station WNPL construction permit to specify Belle Meade as
the community of license. 12 FCC Rcd 10481 (MMB 1997).  That action was premised on the fact that a
Channel 294A allotment could not be implemented at Mt. Juliet due to EMI to FAA air navigation facilities. 
In its engineering review, our staff concurred with the engineering exhibits submitted by MJB stating that
there is no area in which a transmitter for Mt. Juliet could be located which would satisfy the FAA concerns
regarding EMI to air navigation and enable Station WNPL to provide 70 dBu service to Mt. Juliet as required
by Section 73.315(a) of the Rules.  The staff also determined that there were no other FM channels available
to Mt. Juliet.  As such, the staff concluded that under these circumstances, a Channel 294A allotment at Belle
Meade would be preferable to the existing allotment at Mt. Juliet.  In the Memorandum Opinion and Order
in this proceeding, the staff denied the Cromwell Group Petition for Reconsideration directed against that
action.

     4.  In its Application for Review, Cromwell Group does not dispute the staff determination that
Channel 294A cannot be implemented at Mt. Juliet.  Instead, it contends that a reallotment of a defective
Channel 294A allotment to Belle Meade is inconsistent with "controlling and dispositive authority" in which
defective allotments have been deleted.  These actions deleting an existing allotment are San Clemente,
California, 10 FCC Rcd 8291 (1995); Harkers Island, North Carolina, 10 FCC Rcd 13159 (1995); Atlantic
City, New Jersey, 57 RR2d 1436 (1985); and Pinckneyville, Illinois, 41 RR2d 69 (1977).  In regard to these
actions, Cromwell Group disputes the earlier staff determination that these cases are distinguishable because
they did not involve an outstanding construction permit.  Furthermore, Cromwell Group notes that MJB
acquired the Channel 294A construction permit with full knowledge that a Channel 294A  operation at Mt.
Juliet could create a hazard to air navigation.  In this regard, Cromwell Group refers to an April 22, 1991
adverse determination by the FAA and the fact that MJB offered to accept a modification of its construction
permit with the following condition:

     Upon receipt of notification from the Federal Communications Commission that harmful 
          interference is being caused by the operation of the licensee's [permittee's] transmitter,  
          licensee [permittee] shall either immediately reduce the power to the point of no 
          interference, cease operations, or take such immediate corrective action as necessary to 
          eliminate the harmful interference.

As such, Cromwell Group concludes that deletion of this allotment would be both consistent with prior
Commission actions and in accordance with the condition on the modification of the Station WNPL
construction permit actually proposed by MJB.  

     5.  Cromwell Group also claims that it is not in the public interest to permit potential applicants to
propose defective allotments in order that the subsequent construction permit for the allotment may be
modified to a more desirable community of license.  According to Cromwell Group, this will lead to
"connivance and trickery" in the allotment process which is not in the public interest.     
      
                            Discussion

     6.  We deny the Application for Review.  Under Community of License, it is our view that in
addition to the fact that this reallotment will result in a first local service to Belle Meade, a Channel 294A
allotment at Belle Meade is preferable to the existing allotment at Mt. Juliet which cannot provide service
to the public.  It is also our view that the action reallotting Channel 294A to Belle Meade does not conflict
with the actions cited by Cromwell Group in which defective allotments were deleted.  As discussed below,
those actions are distinguishable and following those actions in this proceeding would not be in the public
interest.  Unlike the current proceeding, none of those actions deleting a defective allotment involved an
outstanding construction permit.  In fact, in all but one case, it was specifically determined that a
construction permit could not be granted for the allotment and, as such, service could never be provided. 
In this instance, MJB constructed the authorized Station WNPL facilities and commenced operation.  While
MJB knew there was a risk that its Mt. Juliet facilities might cause unacceptable interference to FAA
stations, this was not a certainty to the point of rendering the allotment defective ab initio.  Rather, MJB
accepted the risk, built the facilities and then determined that its operation was causing interference to FAA
air navigation stations.   Thereafter, MJB terminated operation in the interest of air safety.  We do not see
any public interest benefit in deleting the MJB construction permit in view of the fact that Station WNPL
can now provide a first local service to Belle Meade, Tennessee, consistent with FAA air safety concerns.
Moreover, in the cases cited by Cromwell Group, deletion of the allotment with the possible institution of
other service resulting from the deletion was the only means to provide service to the public.  In this
proceeding, service could be provided on Channel 294A if we modified an outstanding construction permit
to specify a new community of license at a new site.  We continue to believe that this action will best serve
the public interest because it will lead to a predictable and prompt institution of service.  

     7.  We do not agree with any argument that permitting MJB to reallot Channel 294A to Belle Meade
would somehow condone "connivance and trickery" in our allotment process.  First of all, there is nothing
in the record of this proceeding or the earlier proceeding allotting the channel that would support an
allegation that MJB or any other party deliberately proposed a defective allotment for Mt. Juliet.  Similarly,
there is no evidence nor is it reasonable to suggest that MJB knowingly went to the expense of constructing
facilities that it knew would interfere with FAA navigation facilities so that it could subsequently seek
reallotment.  In regard to the underlying technical integrity of our allotment process, we are also of the view
that our own engineering review of an allotment proposal coupled with the fact that each proposal is subject
to public comment minimizes the likelihood of such future allotments regardless of any purported motive
of a rulemaking proponent.

     8.  Finally, we reject the argument that the reallotment action in this proceeding was inconsistent
with any condition on the MJB construction permit.  In addition to the public interest benefits discussed
above, we also believe that a reallotment of Channel 294A was, in fact, consistent with the specific language
of the condition.  Reallotting Channel 294A to a new community and at a new site that would not cause EMI
is within the ambit of taking "such immediate corrective action as necessary to eliminate the harmful
interference."

     9. Accordingly, IT IS ORDERED, That the aforementioned Application for Review filed by The
Cromwell Group, Inc. IS DENIED.
                          
     10.  IT IS FURTHER ORDERED, That this proceeding IS TERMINATED.

     11.  For further information concerning this proceeding, contact Robert Hayne, Mass Media Bureau,
(202) 418-2177.

                              FEDERAL COMMUNICATIONS COMMISSION

                              Magalie Roman Salas
                    `         Secretary