DA 94-699 Federal Communications Commission Record 9 FCC Red No. 14

of its license accordingly. Butler Broadcasting and Cotton Before the Valley jointly filed the above petition (RM-6707). The sec Federal Communications Commission ond petitioner, G. Dean Pearce ("Pearce"), requested the , D.C. 20554 allotment of Channel 232C2 to Ellisville, Mississippi, as that community's second local broadcast service (RM- 6799). The third petitioner, Faulkner-Phillips Media, Inc. ("Faulkner-Phillips"), licensee of Station WMML-FM, Bay MM Docket No. 91-303 Minette, , requested the substitution of Channel 288C3 for Channel 288A, Bay Minette, and modification of In the Matter of its license accordingly (RM-7813). In order to accommo date this change, Faulkner-Phillips requested the substitu Amendment of Section 73.202(b), RM-6707 tion of Channel 299A for Channel 228A at Butler, Alabama, and modification of the license for Station Table of Allotments, RM-6799 WQGL and substitution of Channel 227A for Channel FM Broadcast Stations. RM-7754 288A at Waynesboro, Mississippi, and modification of the (Bay Minette, Butler, RM-7813 license for Station WABO.2 The fourth petitioner, Wolff Evergreen and Jackson, Alabama, RM-7996 Broadcasting Corporation ("Wolff Broadcasting"), licensee and Bay Springs, Ellisville & RM-7997 of Station WPGG, Evergreen, Alabama, requested the sub stitution of Channel 227C1 for Channel 227C2 and modi Waynesboro, Mississippi) 1 RM-7998 fication of its license for Station WPGG to specify RM-7999 operation on the higher class channel (RM-7754).3 Faulk ner-Phillips, Cotton Valley, Wolff Broadcasting and Butler Broadcasting filed comments supporting their respective REPORT AND ORDER proposals. Pearce withdrew his proposal to add Channel (Proceeding Terminated) 232C2 at Ellisville, Mississippi, on December 13, 1991. Since no comments were received in support of an addi Adopted: June 23, 1994; Released: July 6, 1994 tional channel at Ellisville, no further consideration will be given to the allotment of an FM channel in the commu By the Acting Chief, Allocations Branch: nity. Mississippi College ("MC") filed comments support ing Option I of the Notice. Martin Broadcasting Company 1. The Commission has before it for consideration the ("Martin"), licensee of Station WABO-FM, Waynesboro, Notice of Proposed Rule Making and Order to Show Cause, Mississippi, submitted comments in response to the Order 6 FCC Red 6012 (1991), issued in response to four sepa to Show Cause. James Ducker ("Ducker") (RM-7998) rately filed conflicting petitions for rule making. The first counterproposed the allotment of Channel 232C3 at petitioner, Butler Broadcasting Corporation ("Butler Sandersville. Mississippi, but withdrew his counterproposal Broadcasting"), licensee of Station WQGL, Butler, Ala on July 28, 1993.4 Radio Station WHOD, Inc. ("WHOD, bama, requested the substitution of Channel 228C2 for Inc.") filed a counterproposal for Jackson, Alabama (RM- Channel 228A and modification of its license to specify 7997).5 Counterproposals were also filed by Thomas Wil operation on the higher class channel. Cotton Valley liam Hickman, III ("Hickman"), licensee of Station Broadcasting Co. ("Cotton Valley"), licensee of Station WMFM(FM), Petal, Mississippi, and Newton Broadcasting WIZK-FM, Bay Springs, Mississippi, proposed the substitu Company, Inc. ("NBCI"), licensee of Station WMYQ(FM), tion of Channel 232A for Channel 228A and modification Newton, Mississippi (RM-7999) and by G. Dean Pearce ("Pearce") (RM-7996).6 Butler, Wolff Broadcasting,

1 The community of Jackson, Alabama, has been added to the tion of Channel 288C3 for Channel 288A at Bay Minette, Ala caption. bama, substitution of Channel 227C1 for Channel 227C2 at 2 The Butler Broadcasting/Cotton Valley and Faulkner-Phillips Evergreen, Alabama, allotment of Channel 232C3 at proposals may be examined pursuant to the rules governing Sandersville, Mississippi, substitution of Channel 292C2 for minimum distance separation requirements in effect prior to Channel 292A at Petal, Mississippi, and substitution of Channel October 2, 1989, since the petitions were filed before that date. 288A or Channel 288C2 for Channel 292A at Newton, Mis 3 On October 26, 1992, the Commission modified the call of sissippi. Option II included the same communities as listed in sign of Station WUK-FM, Evergreen, Alabama, to "WPGG." Option I with slightly different channel substitutions: the sub 4 Ducker proposed the allotment of Channel 232C3 at stitution of Channel 227A for Channel 288A at Waynesboro, Sandersville as a first local service in lieu of a second service at Mississippi, no change at Evergreen, Alabama, and substitution Ellisville and the substitution of Channel 232A for Channel of Channel 299A for Channel 228A at Butler, Alabama. It 228A at Bay Springs. The counterproposal was put on public should be noted that Channel 292A was upgraded to Channel notice on May 22, 1992, but on July 28, 1993, Ducker withdrew 292C2 at Petal, Mississippi, and Channel 250A was substituted his counterproposal for Sandersville, in compliance with Sec for Channel 292A at Newton, Mississippi, in MM Docket 90-566. tion 1.420(j) of the Commission's Rules. No supporting com See 1 FCC Red 4998 (1992); recoil, dismissed November 18, 1993. ments were received for the allotment of a channel at Pearce counterproposed the allotment of Channel 232C2 to Pet Sandersville. al, Mississippi, as that community's second local FM channel. 5 The counterproposal for Jackson, Alabama, was placed on The above counterproposals were placed on Public Notice on public notice on May 22, 1992, Report No. 1892. May 22, 1992, Report No. 1892. Upon further analysis, we have ' The counterproposal filed jointly by Hickman, licensee of determined that the counterproposals failed to include affidavits Station WMFM(FM), Petal, Mississippi, and NBCI, licensee of verifying that the statements contained in each were accurate to Station WMYQ(FM), Newton, Mississippi, gave two options. the best of the counterproponents' knowledge. Section 1.52 of Option I proposes the substitution of Channel 269A, 269C3 or the Commission's Rules requires that the original of any docu 269C2 for Channel 288A at Waynesboro, Mississippi, substitu ment filed with the Commission by a party not represented by

3154 9 FCC Red No. 14 Federal Communications Commission Record DA 94-699

Hickman, MC and Martin filed reply comments. Capitol Alabama. Also, the upgrade at Jackson is consistent with Broadcasting Corporation ("Capitol"), licensee of Station Option I of the Notice which would allow the Commission WKSJ-FM, Mobile, Alabama, WHOD, Inc., NBCI and to approve station upgrades at Butler, Jackson and Ever Beach Broadcasting Limited Partnership ("Beach Broad green instead of merely providing a second local service at casting") filed comments in response to the four counter Ellisville. proposals. On April 13, 1994, Faulkner-Phillips withdrew 4. In comments, Butler Broadcasting continues to sup its petition for rule making (RM-7813) in compliance with port the substitution of Channel 228C2 for Channel 228A Section 1.420(j) of the Commission's Rules. Therefore, no at Butler, Alabama, and substitution of Channel 232A for further consideration will be given to Faulkner-Phillips' Channel 228A at Bay Springs, Mississippi. Butler Broad proposal or to responsive comments. Late-filed comments casting also supports the substitution of Channel 227C1 for were received from Pearce and Wolff.7 Channel 227C2 at Evergreen, Alabama. According to But 2. In response to the petitions, the Notice solicited com ler Broadcasting, adoption of Option I will result in signifi ments on the following options: cant new service to underserved areas. Butler Broadcasting states that Channel 228C2 at Butler will provide a second full-time aural service to 135 people in a 27 square OPTION I kilometer area while none of the proposals in Options II and III provide any service under the Commission's top Channel No. three allotment criteria. Furthermore, Channel 228C2 will Community Present Proposed provide new service to a significant underserved area (less than five existing services) of approximately 1,152 square Butler, Alabama 228A 228C2 kilometers with an estimated population of 8,480 people Bay Springs, and the upgrade at Evergreen, which is part of Option I, Mississippi 228A 232A would also result in service to an underserved area of 163 Evergreen. Alabama 227C2 227C1 square kilometers with an estimated population of 4,054 people. Butler Broadcasting requests that the Commission adopt Option I as it best serves the public interest. Butler OPTION II Broadcasting has an agreement with Cotton Valley to reim burse Cotton Valley for its expenses in connection with the Ellisville, frequency change at Bay Springs. Mississippi 272A 232C2,272A 5. Cotton Valley, licensee of Station WIZK-FM, Bay Springs, Mississippi, supports Option I and modification of Bay Minette, its license to specify operation on Channel 232A to accom Alabama 288A,293A 288C3,293A modate the upgrade proposal at Butler. MC, licensee of Butler, Alabama 228A 299A Station WHJT, Clinton, Mississippi, also supports adoption Waynesboro, of Option I. MC states that it currently operates at three Mississippi 288A 227A kilowatts on Channel 228A and is foreclosed from seeking additional power due to the nearby location of Station WIZK-FM, Bay Springs, Mississippi, which is also licensed OPTION III on Channel 228A. The substitution of Channel 232A for Channel 228A at Bay Springs by Cotton Valley would allow MC to seek additional power for Station WHJT. MC Ellisville, contends that grant of Option I will permit four southeast Mississippi 272A 232C2,272A ern communities to receive enhanced service. Evergreen, Alabama 227C2 227C1 6. Wolff Broadcasting, licensee of Station WPGG, Ever green, Alabama, urges the Commission to substitute 3. WHOD, Inc. counterproposed the substitution of Channel 227C1 for Channel 227C2 at Evergreen. Wolff Channel 233C2 for Channel 233C3 at Jackson, Alabama, Broadcasting states that upgrading Station WPGG will in and modification of its construction permit for Station crease its coverage by 8,988.3 square kilometers and serve WHOD to specify operation on Channel 233C2. According an additional 129,207 people. Virtually all of this gain will to WHOD, Inc., the upgrade at Jackson should be favored be in rural areas of south Alabama and northwest Florida. over a second local service at Ellisville, as Channel 233C2 In addition, Wolff Broadcasting points out that Station would provide a second full-time aural service to 4,099 persons in a 673.3 square mile area in rural southwestern

counsel shall be signed and verified by the party and his/her Mississippi, 1 FCC Red 7602 (1992). See also Report and Order, address stated. In the absence of such verification, the petition Broken Arrow and Bixby, and Coffeeville, Kansas, 3 may be dismissed. Section 1.402(b) of the Commission's Rules FCC Red 6507 (1988), recon. denied, 4 FCC Red 6981 (1989). concerning rule making proceedings places petitioners on notice Therefore, we will dismiss the counterproposals filed by that their proposals must conform with the requirements of Hickman/NBCI and Pearce. Section 1.52 regarding subscription and verification. See also 7 Commission Rule 1.405(e) states that no additional pleadings Amendment of Sections 1.420 and 73.3584 of the Commission©s may be filed unless specifically requested or authorized. We do Rules Concerning Abuses of the Commission©s Processes ("Abuse not believe the public interest would be served by the accep of Process"), 5 FCC Red 3911, 3919 n.41 (1990) ("Therefore, we tance of the additional comments filed by Pearce and Wolff. believe these rules should be strictly enforced in allocations proceedings"). Counterproposals must be technically and proce- durally correct at the time of their filing. See Hattiesburg,

3155 DA 94-699 Federal Communications Commission Record 9 FCC Red No. 14

WPGG is a primary affiliate of the Alabama EBS network Channel 228C2 for Channel 228A at Butler, Alabama, and and that a power increase would enable the Alabama EBS modify the license for Station WQGL accordingly, in com Network Plan to operate more efficiently. pliance with the Commission's spacing requirements.9 To 7. In its reply comments, Wolff Broadcasting states that it accommodate Channel 228C2 at Butler, we shall substitute has considered all comments filed and supports Option I of Channel 232A for Channel 228A at Bay Springs, Mis the Notice. Wolff further states that where the Commission sissippi. Channel 232A can be allotted to Bay Springs, places Channel 232 affects the rights of seven parties. Ac Mississippi, at the current site for Station WIZK-FM. 10 As cording to Wolff, Option I provides for improved FM requested by Wolff Broadcasting, licensee of Station service at five communities. A Class Cl upgrade at Ever WPGG, Evergreen, Alabama, we shall substitute Channel green would provide a gain of at least 125,000 persons, a 227C1 for Channel 227C2 at Evergreen and modify its Class C2 upgrade at Butler would provide a gain of at least license for Station WPGG accordingly.11 Finally, in re 82,000 persons, a Class C2 upgrade at Jackson would pro sponse to the counterproposal filed by WHOD, Inc., we vide a, gain of at least 17,900 persons, and the substitution shall substitute Channel 233C2 for Channel 233C3 at Jack of Channel 232A for Channel 228A at Bay springs permits son, Alabama, and modify the license for Station WHOD, Stations WIZK-FM and WHJT to operate at six kilowatts. Channel 233C3, to specify operation on Channel 233C2. Reply comments were filed by Cotton Valley and MC also Channel 233C2 can be allotted to Jackson in compliance supporting Option I, stating this allotment scheme will best with the Commission's spacing requirements at WHOD, serve the public interest by providing improved or addi Inc.'s specified site.12 The allotment of Channel 233C2 is tional service to the largest number of people. Butler filed short spaced to a construction permit for Station WJZD, reply comments supporting Option I of the Notice, stating Channel 233A, Long Beach, Mississippi. However, the that the upgrade at Butler would result in the provision of Long Beach permit was granted in accordance with the a second full-time aural service to 135 people in a 27 provisions of Section 73.215 of the Commission's Rules, square kilometer area and will provide new service to a which allows contour protection for short spaced assign significant underserved area (less than five existing services) ments. At the site selected by WHOD, Inc., Channel 233C2 of approximately 1,152 square kilometers with an estimated is also fully spaced to Channel 235C, Station WKSJ-FM, population of 8,480 people. Mobile, Alabama and to the allotment of Channel 233A, 8. Capitol operates Station WKSJ-FM, Channel 235C at Long Beach, Mississippi. Although we recognize Beach Mobile, Alabama. Capitol states that it does not oppose the Broadcasting's concerns with the allotment of Channel allotment of Channel 233C2 at Jackson provided WHOD, 233C2 at Jackson preventing future upgrades at Long Inc. uses a site that fully complies with the geographic Beach, it is not Commission policy to allot alternate chan spacing requirements with respect to Station WKSJ-FM. nels or deny allotments only to protect a possible future Capitol further states that it takes no position on the request for rule making. See Clarendon, Pennsylvania, 6 comparative merits of the various proposals in this com FCC Red 6053 (1991) and Hardinsburg, , 5 FCC plicated proceeding. Red 7685 (1990). 9. Beach Broadcasting, permittee of Station WJZD, 11. Accordingly, pursuant to the authority contained in Channel 233A, Long Beach. Mississippi, filed an opposi Sections 4(i), 5(c)(l), 303(g) and (r) and 307(b) of the tion to WHOD, Inc.'s counterproposal. According to Beach Communications Act of 1934, as amended, and Sections Broadcasting, Channel 233C2 at Jackson, Alabama, is short 0.61, 0.204(b) and 0.283 of the Commission's Rules, IT IS spaced to the transmitter site specified in Beach's applica ORDERED, That effective August 19, 1994, the FM Table tion. Further, the Jackson allotment would preclude Beach of Allotments, Section 73.202(b) of the Commission's Broadcasting from upgrading its facility on Channel 233. Rules, IS AMENDED for the communities listed below, to Beach Broadcasting indicates that an upgrade of its facility read as follows: could increase its coverage to include an additional 60,000 people, which is a 35 percent increase over its current Community Channel No. coverage. Beach Broadcasting argues that Station WHOD is Bay Springs, Mississippi 232A already a Class C3 station providing wide area FM cov Butler, Alabama 228C2 erage. Beach Broadcasting requests that WHOD, Inc.'s pro Evergreen, Alabama 227C1 posal for Jackson, Alabama, be denied to enable Station WJZD, Long Beach, to upgrade to a higher class facility. Jackson, Alabama 233C2 10. Conflicting proposals, such as have been filed in this proceeding, are comparatively considered under the guide 12. IT IS FURTHER ORDERED, pursuant to the au lines set forth in Revision of FM Assignment and Policies thority contained in Section 316 of the Communications and Procedures, 90 FCC 2d 88 (1982).8 However, because of Act of 1934, as amended, that the license of Station the withdrawal or dismissal of several petitions and coun WQGL, Butler, Alabama, IS MODIFIED to specify opera terproposals, such a comparison is no longer necessary in tion on Channel 228C2; the license of Station WIJK-FM, this proceeding. In response to the proposal filed jointly by Evergreen, Alabama, IS MODIFIED to specify operation Butler Broadcasting and Cotton Valley, we shall substitute

8 The priorities are (1) First full-time aural service; (2) Second and 88-15-00. full-time aural service; (3) First local service; and (4) other 10 The coordinates for Channel 232A at Bay Springs are public interest matters. [Co-equal weight given to priorities (2) 31-59-00 and 89-13-50. and (3)j. 11 The coordinates for Channel 227C1 at Evergreen are 9 The coordinates for Channel 228C2 at Butler are 32-08-10 31-14-48 and 86-48-32. 12 The coordinates for Channel 233C2 at Jackson are 31-30-35 and 88-02-39.

3156 9 FCC Red No. 14 Federal Communications Commission Record DA 94-699 on Channel 227C1; and, the license of Station WHOD, submit a rule making fee when filing its application to Jackson, Alabama, IS MODIFIED to specify operation on implement the change in community of license and/or Channel 233C2, subject to the following conditions: upgrade. As a result of this proceeding, Wolff Broadcasting Corporation, licensee of Station WIJK-FM, Evergreen, Ala (a) Within 90 days of the effective date of this Order, bama, and Radio Station WHOD, Inc., licensee of Station the licensees shall file with the Commission minor WHOD, Jackson, Alabama, are required to submit a rule change applications for construction permits (Form making fee in addition to the fee required for the applica 301), specifying the new facilities. tions to effect the upgrade. 13 20. IT IS FURTHER ORDERED, That this proceeding (b) Upon grant of the construction permit, program IS TERMINATED. tests may be conducted in accordance with Section 73.1620. 21. For further information concerning this proceeding, contact Kathleen Scheuerle, Mass Media Bureau, (202) (c) Nothing contained herein shall be construed to 634-6530. authorize a change in transmitter location or to avoid the necessity of filing an environmental assessment FEDERAL COMMUNICATIONS COMMISSION pursuant to Section 1.1307 of the Commission's Rules.

13. IT IS FURTHER ORDERED, That pursuant to the authority contained in Section 316(a) of the Communica John A. Karousos tions Act of 1934, as amended, that the license of Station WIZK-FM, Bay Springs, Mississippi, Channel 228A, IS Acting Chief, Allocations Branch MODIFIED, to specify operation on Channel 232A, sub Policy and Rules Division ject to the following conditions: Mass Media Bureau

(a) Nothing contained herein shall be construed as authorizing any change in License BLH-6730, except for the channel as specified above. Any changes, except those specified require prior authorization pursuant to an application for construction permit (FCC Form 301). (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-6730, except for the chan nel as specified above, and a license application (Form 302) is filed within 10 days of commencement of program tests.

14. IT IS FURTHER ORDERED. That the petition filed by Faulkner-Philips, Inc. (RM-7813) IS DISMISSED. 15. IT IS FURTHER ORDERED. That the petition filed by G. Dean Pearce (RM-6799) IS DISMISSED. 16. IT IS FURTHER ORDERED, That the counter proposal filed jointly by Thomas William Hickman, III and Newton Broadcasting Company (RM-7999) IS DIS MISSED. 17. IT IS FURTHER ORDERED, That the counter proposal filed by G. Dean Pearce (RM-7996) IS DISMISSED. 18. IT IS FURTHER ORDERED, That the counter proposal filed by James Ducker (RM-7998) IS DIS MISSED. 19. Pursuant to Commission Rule Section 1.1104(l)(k) and (2)(k), any party seeking a change of community of license of an FM or television allotment or an upgrade of an existing FM allotment, if the request is granted, must

13 The rule making fee requirement applies only to those petitions filed after May 21, 1990, the effective date of the fee collection program implementing the provisions of the Omnibus Budget Reconciliation Act of 1989 (Gen. Doc. 86-285), 5 FCC Red 3558, 3575 (1989).

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