DA 96-989

Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554

In the Matter of

Amendment of Section 73.202(b) ) MM Docket 91-75 Table of Allotments, ) RM-7230 FM Broadcast Stations. ) (Conway and Myrtle Beach, ) )

REPORT AND ORDER (Proceeding Terminated)

Adopted: June 14, 1996 Released: June 21, 1996

By the Chief, Allocations Branch:

1. At the request of Pinnacle Southeast, Inc. ("petitioner"), licensee of Station WYAV(FM), Channel 281C1, Conway, South Carolina, the Commission has before it the Notice of Proposed Rule Making. 6 FCC Red 1829 (1991), proposing the reallotment of Channel 281C1 from Conway to Myrtle Beach, South Carolina, and the modification of Station WYAV(FM)©s license accordingly.1 Petitioner filed comments in support of the proposal reaffirming its intention to apply for the channel, if reallotted to Myrtle Beach. No other comments were received.

2. In support of its proposal, petitioner states that Myrtle Beach and Conway are located approximately 12 miles apart. It further states that the Census Bureau population estimates as of July 1, 1988, credit Conway with a population of 14,470 persons and Myrtle Beach with a population of 29,730 persons.2 Petitioner characterizes Myrtle Beach as a growing coastal resort community with a thriving tourist industry. According to petitioner, three FM and two AM stations are licensed to Conway, while two FM and two AM stations are licensed to the larger

"The application (File No. BALH-921102HQ) for assignment of Station WYAV(FM)©s license from Pinnacle Southeast, Inc. to Lee W. Shubert, Trustee, was granted on December 22, 1992, and consummated on February 4, 1993. On August 1, 1995, Station WYAV(FM) filed an application (File No. BRH-95801UG) for renewal of its license, which is pending.

2The 1990 U.S. Census population figures for Conway and Myrtle Beach are 9,819 and 24,848, respectively.

22306 community of Myrtle Beach.3 Both communities receive reception services from more than five radio stations. Petitioner contends that the public interest would be served by reallotting Channel 281C1 from Conway to Myrtle Beach because it would provide an additional service to the more populous community of Myrtle Beach, while not depriving Conway of its only local broadcast service. It submits that this proposal comports with the criteria set forth in Revision of FM Assignment Policies and Procedures. 90 FCC 2d 88 (1982), and Modification of FM and TV Authorizations to Specify a New Community of License. ("Change of Community R&O"). 4 FCC Red 4870 (1989), recon. granted in part. 5 FCC Red 7094 (1990) ("Change of Community MO&O"). Finally, petitioner advises that no change in Station WYAV(FM)©s transmitter site or channel class is requested as Myrtle Beach is already entirely within the station©s 70 dBu contour.

3. Based on the information before us, we find that the reallotment of Channel 281C1 from Conway to Myrtle Beach would be in the public interest since it would result hi a preferential arrangement of allotments pursuant to the Commission©s change of community procedures. See Change of Community R&O and MO&O. supra. Under those procedures, we compare the existing arrangement of allotments with the proposed arrangement of allotments using our FM allotment priorities as set forth in Revision of FM Assignment Policies and Procedures, supra.4 Because the proposal would not result in the provision of a first local aural transmission service, or a first or second reception service, it must be considered under priority (4)~other public interest matters.

4. Under this priority, we recognize ^.t the outset that the petitioner©s proposal is for a reallotment and change of community of license from Conway, a smaller community located outside of the Myrtle Beach Urbanized Area, to Myrtle Beach, the central city of the Myrtle Beach Urbanized Area. We also acknowledge that both communities have a comparable number of reception services sixteen (fifteen full-time FM and one AM daytime-only) for Conway and twenty (seventeen full-time FM and three AM daytime-only) for Myrtle Beach and are considered to be "well-served" in terms of reception services. Nevertheless, we believe that the petitioner©s proposal would result in a preferential arrangement of allotments because of the disparity that exists in the number of local transmission services. Under the existing arrangement of allotments, Conway (population 9,819) would retain five local transmission services (three full- time FM and two full-time AM) and Myrtle Beach (population 24,848) would have three local transmission services (two full-time FM and one AM daytime-only).5 By way of contrast, under

3One of Conway©s FM stations, WHMC-FM, is a noncommercial educational station. Noncommercial stations are relevant in determining the number of FM transmission services authorized to a community. See Valley Broadcasters. Inc.. 5 FCC Red 2785 (1990), and Brunswick and Waycross. Georgia. 5 FCC Red 4014 (1990). We note that the license for Station WKEL(AM) at Myrtle Beach was cancelled on January 30, 1996. Thus, Myrtle Beach presently has one AM station and two FM local transmission services.

"The 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)].

-©Stations WJXY(AM), WPJS(AM), WHMC(FM), WJXY(FM), WYAV(FM) are licensed to Conway, and Stations WKZQ(AM), WJYR(FM) and WKZQ-FM are licensed to Myrtle Beach.

22307 the petitioner©s proposal, both communities would have four local transmission services, which we believe is a more equitable distribution of local transmission services given the difference in the populations of the two communities.

5. However, in reaching this result, we would like to point out that we are not embracing a population-ratio basis for analyzing change of community cases. Rather, we are merely recognizing that where a significantly larger community has fewer transmission services than a smaller community, a reallotment of transmission service may be warranted. Consistent with this approach, we recently denied a proposed reallotment and change of community of license from Orangeburg, South Carolina (population 13,739) to Columbia, South Carolina (population 98,052). See Sumter. et al. South Carolina. MM Docket No. 89-590, 11 FCC Red ___ (released June 4, 1996); 61 FR 29492, June 11, 1996. Unlike the Conway-Myrtle Beach situation, the larger community of Columbia already had a greater number of transmission services (thirteen) than the smaller community (seven) and, on balance, there were no public interest reasons for depriving Orangeburg residents of one of their stations.

6. An engineering analysis has determined that Channel 281C1 can be allotted to Myrtle Beach in compliance with the Commission©s minimum distance separation requirements with a site restriction of 20.2 kilometers (12.6 miles) southwest to avoid a short-spacing to Station WLTT(FM), Channel 279C3, Shallotte, North Carolina, at petitioner©s present transmitter site.6 In accordance with Section 1.420(i) of the Commission©s Rule, we shall also modify Station WYAV(FM)©s license to specify operation on Channel 281C1 at Myrtle Beach, South Carolina, as its new community of license.

7. Accordingly, pursuant to the authority found in Section 4(i), 5(c)(l), 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 ORDERED, That effective August 5, 1996, the FM Table of Allotments, Section 73.202(b) of the Commission©s Rules, IS AMENDED, with respect to the communities listed below, to read as follows:

City Channel No.

Conway, South Carolina 230A

Myrtle Beach, South Carolina 221C1, 269C2, 281C1

8. IT IS FURTHER ORDERED, That pursuant to Section 316(a) of the Communications Act of 1934, as amended, the license of Lee W. Shubert, Trustee, for Station WYAV(FM), IS MODIFIED to specify operation on Channel 281C1 at Myrtle Beach, South Carolina, in lieu of Conway, South Carolina, subject to the following conditions:

6The coordinates for Channel 281C1 at Myrtle Beach are North Latitude 33-35-27 and West Longitude 79-02-53.

22308 (a) Nothing contained herein shall be construed as authorizing any change in Station WYAV(FM)©s license, BLH-901119KF, except the channel as specified above. Any other changes, except for those so specified under Section 73.1690 of the Rules, require prior authorization pursuant to an application for construction permit (FCC Form 301), specifying the new facility.

(b) Program tests may be conducted in accordance with the provisions of Section 73.1620 of the Rules, PROVIDED the transmission facilities comply in all respects with license, BLH- 901119KF, except for the channel as specified above and a license application (FCC Form 302) is filed within 10 days of commencement of program tests.

9. IT IS FURTHER ORDERED, That the Secretary shall send a copy of this Report and Order by Certified Mail, Return Receipt Requested, to the licensee, as follows:

Lee W. Shubert, Trustee c/o Ballston Trust Service, L.C. 1571 Trade Street Myrtle Beach, South Carolina 29577 (Licensee of Station WYAV(FM))

10. IT IS FURTHER ORDERED, That this proceeding IS TERMINATED.

11. For further information concerning this proceeding, contact Sharon P. McDonald, Mass Media Bureau, (202) 418-2180.

FEDERAL COMMUNICATIONS COMMISSION

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

22309