PEPPER & CORAZZINI VINCENT A PEPPER GREGG P.SKALL L. L. P. ROBERT F. CORAlllNI E. THEODORE MALLYCK PETER GUTMANN ATTORNEYS AT LAW OF COUNSEL JOHN F. GARllGLIA 1776 K STREET, NORTHWEST, SUITE 200 FREDERICK W. FORO NEAl. J.FRIEOMAN 1909·1986 ELLEN S. MANDELL WASHINGTON, D. C.20006 HOWARD J. BARR TELECOPIER (202) 296-5572 (202) 296-0600 MICHAEL J. LEHMKUHL)II; INTERN ET [email protected] SUZANNE C.SPINK * WEB SITE HTTP·i../WWW.COMMLAW.COM MICHAEL H. SHACTER KEVIN l.SIEBERT '* ORIGINAl, PATRICIA M·CHUH III NOT ADMITTED IN O. C. JUly 2, 1997 RECEIVED Mr. William F. Caton Acting Secretary JUL - 2 1997 Federal Communications Commission FEDEIW. COMIINCATXlNS COMMISSION Washington, D.C. 20554 OffICE OF THE SECRETARY Re: Amendment of section 73.202(b), FM Table of Allotments (Elkhorn city, Kentucky and Clinchco, virginia) Dear Mr. Caton: Transmitted herewith on behalf of East Kentucky Broadcasting Company is an original and four copies of a Petition for Rule Making seeking the commencement of a proceeding to amend the FM Table of Allotments to SUbstitute Channel 22lA for Channel 276A at Elkhorn City, and modify the license of WPKE-FM, Elkhorn city, Kentucky to specify operation on Channel 221A; and to SUbstitute Channel 276A for Channel 22lA at Clinchco, Virginia, and modify the license of WDIC-FM, Clinchco, Virginia to specify operation on Channel 276A. Should any questions arise concerning this matter, please contact this office directly. Sincerely, &f'~. ~:-F~ Garziglia Enclosure Nc ;'j' t· Li~:' :0 .~---_._-------'_._.__ . Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of Amendment of section 73.202(b) RM- _ Table of Allotments PM Broadcast Stations (Elkhorn City, Kentucky and Clinchco, Virginia) To: Chief, Allocations Branch PETITION FOR RULE MAKING East Kentucky Broadcasting Company, the licensee of WPKE-FM, Elkhorn city, Kentucky, by its attorneys, pursuant to Sections 1.401 and 1.420 of the Commission's rules, hereby seeks the commencement of a rule making proceeding looking toward the SUbstitution of Channel 221A for Channel 276A at Elkhorn City, Kentucky, and the modification of the license of WPKE-FM, Elkhorn City, Kentucky to specify operation on Channel 22lAl/; and the substitution of Channel 276A for Channel 22lA at Clinchco, Virginia, and the modification of the license of WDIC-FM, Clinchco, Virginia to specify operation on Channel 276A~/. In conformance with established Commission policy, East Kentucky Broadcasting Company will reimburse the licensee of WDIC-FM for 1/ As shown in the attached Technical Report, the allot­ ment of Channel 221A to Elkhorn City, Kentucky may be made at the reference coordinates of 37° 16' 05 11 North Latitude, 82° 21' 37" West Longitude, the present transmitter site of WPKE-FM. £I The allotment of Channel 276A to Clinchco, Virginia may be made at the reference coordinates of 37° 08' 42" North Latitude, 82° 23' 22 11 West Longitude, the present transmitter site of WDIC-FM. its reasonable and prudent costs associated with the requested frequency change. See Circleville. Ohio, 8 FCC 2d 159 (1967) .ll A change in the FM Table of Allotments is requested as follows: community Present Proposed Elkhorn city, Kentucky 276A 221A Clinchco, virginia 221A 276A In support of these allotments, the following is submitted: 1. WPKE-FM is presently licensed for operation on Channel 276A. Under the present minimum distance separation requirements of Section 73.207 of the Commission's rules, WPKE-FM is short spaced to WELC-FM, Welch, West virginia. This short spacing arose from the revision of the FM spacing table in MM Docket No. 88-375, which increased minimum spacings for Class A stations. See Second Report and Order, MM Docket No. 88-375, 4 FCC Rcd. 6375 (1989), aff'd Amendment of Part 73, 6 FCC Rcd. 3417 (1991). Because of the short spacing, WPKE-FM cannot now increase its effective radiated power at its present transmitter site. The allotment of Channel 221A and substitution of Channel 276A at Elkhorn City, Kentucky will allow WPKE-FM to increase its power to the maximum for fully spaced Class A facilities at its present transmitter site. 2. The substitution of Channel 221A for Channel 276A for WPKE-FM will result in a population increase of 52.5% within the 1/ Dickenson County Broadcasting Corp., the licensee of WDIC-FM, is being served with a copy of this Petition for Rule Making. -2- 60 dBu contour of WPKE-FM. The operation of WPKE-FM on Channel 221A at an effective radiated power equivalent to six kilowatts will result in a population within the WPKE-FM 60 dBu contour of 75,330 persons, which represents a gain of 25,943 persons over the presently licensed WPKE-FM facility on Channel 276A. See attached Technical Report. 3. The requested substitutions will also bring pUblic interest benefits to WELC-FM, Welch, West Virginia, which is presently short-spaced to WPKE-FM. The substitution of Channel 221A for Channel 276A at Elkhorn City will remove one of two short spacings presently existing to the WELC-FM operation, possibly allowing WELC-FM, through the use of contour protection or through the use of an alternate transmitter site at a future date to increase its power to the equivalent of six kilowatts at an antenna above average terrain of 100 meters. 4. The attached Technical Report notes that there is now on file an application filed by WSMG(FM), Tusculum, Tennessee (FCC File No. BMPH-970304IA), which would be short spaced to the proposed substitution on Channel 276A. An April 16, 1997 Objection was filed to that WSMG(FM) application by East Kentucky Broadcasting Company based upon the failure of the application, which is a one-step upgrade application, to specify reference coordinates for a site that will provide a line-of-sight to the community of license. Accordingly, the Tusculum application should be dismissed shortly if it has not already been dismissed. -3- 5. The pUblic interest would be well served by a substitu- tion of Channel 221A for Channel 276A at Elkhorn City, Ken- tucky.!1 The substitution of Channel 221A for Channel 276A at Elkhorn city would allow WPKE-FM to operate with a facility of an equivalence of six kilowatts effective radiated power at 100 meters height above average terrain. The substitution of Channel 221A for Channel 276A will allow full spacing in the direction of Welch, West Virginia for WELC-FM which is now short spaced to the existing operation of WPKE-FM. It is well settled that the substitution of one Class A channel for another Class A channel in order to allow for an increase in power to full six kilowatt equivalent operation is in the public interest. See e.g. South Hill and Lawrenceville, Virginia, 7 FCC Red. 7843 (1992) (substi- tution of Class A channels to improve FM service); Edmond, Oklahoma, 7 FCC Red. 7533 (1992) (SUbstitution of Class A channels to enable operation at maximum Class A facilities of six kilowatts); Oxford, Mississippi, 6 FCC Red. 3466 (1991) (substi- tution of Class A channels to allow for increase in operation to six kilowatts). ~ On September 23, 1996, East Kentucky Broadcasting Company filed in MM Docket No. 96-161, RM-8842 (Carlisle, Irvine and Morehead, Kentucky) comments and a counterproposal proposing an upgrade for WPKE-FM. For a variety of reasons, it appears that this counterproposal will not be accepted by the Commission and will eventually be dismissed. To the extent that the MM Docket No. 96-161 East Kentucky Broadcasting Company proposal conflicts with this proposal filed by East Kentucky Broadcasting Company, this proposal should be favored by the Commission. -4- 6. East Kentucky Broadcasting Company has a present intention to apply for Channel 221A when allotted, and when authorized, to build the Channel 221A facility promptly. WHEREFORE, for the reasons above, a rule making proceeding should be commenced looking toward the substitutions described above. Respectfully sUbmitted, EAST KENTUCKY BROADCASTING COMPANY By: ~~~. --=--:-;:~=-=<-.:~~~~-------J~Garzgria I s Attorney Pepper & Corazzini, L.L.P. 1776 K street, N.W. suite 200 Washington, D.C. 20006 (202) 296-0600 July 2, 1997 -5- TECHNICAL REPORT This technical report has been developed on behalfofEast Kentucky Broadcasting Company (East KY), licensee ofWPKE-FM at Elkhorn City, KY, in support ofa petition for rulemaking requesting an incompatible swap ofits existing 276A allocation with the 221 A allocation ofWDIC-FM at Clinchco, VA. This class A for class A swap will afford a substantial improvement in WPKE-FM's operation permitting non-directional operation from its licensed site. This will permit WPKE-FM's full realization ofa class A facility and retain the exceptional advantages ofits very high elevation site on Pine Mountain. It is noted that WPKE-FM has attempted to improve its facility through the use ofa directional antenna. However, that avenue resulted in a substantial deterioration ofthe existing service in several directions rather than the anticipated improvement. I. PROPOSAL - 221A INCOMPATIBLE SWAP East Kentucky Broadcasting requests an incompatible swap with WDIC-FM at Clinchco, VA whereby WPKE-FM would move to channel 221 A by swapping its 276A assignment for WDIC's 221A assignment. The proposal qualifies for an incompatible swap because there is no other station whose channel which can be swapped for the WDIC-FM 221A allocation utilizing the WDIC-FM site. And there is no other channel available for substitution at that site. A full preclusion study demonstrating the unavailable ofany channel other than WPKE-FM's for substitution at the WDIC-FM site is included as Exhibit E-5. Exhibit E-I demonstrates that 221 A may be assigned to Elkhorn City at the existing WPKE-FM site in full compliance with the Commission's spacing requirements at coordinates: N 37-16-05 W 82-21-37.