9 FCC Red No. 24 Federal Communications Commission Record DA 94-1242 290A and 231A in lieu of Channel 231A and Channel Before the 240A, respectively. In response to the Order to Show Cause, Federal Communications Commission Franklin filed opposing comments. Responsive comments Washington, D.C. 20554 were filed by petitioner.5 2. As an initial matter, petitioner contends that its coun terproposal constitutes an incompatible channel swap, thereby protecting it from competing expressions of inter MM Docket No. 93-28 est. Although petitioner©s counterproposal was placed on public notice, additional engineering analysis indicates that In the Matter of petitioner©s counterproposal does not constitute an incom patible channel swap. In adopting the rule which permits Amendment of Section 73.202(b), RM-8172 upgrades on co- and adjacent channels without allowing Table of Allotments, RM-8299 competing expressions of interest, or incompatible channel swaps, the Commission stated that it will consider analo FM Broadcast Stations. gous proposals involving channel substitutions at other (Colonial Heights, Tennessee) communities which would be necessary to create the mutu ally exclusive relationship required to comply with Section 1.420(g)(3) of the Commission©s Rules.6 As an example, the REPORT AND ORDER Commission contemplated a situation where a licensee on (Proceeding Terminated) Channel 240A at community A seeks to upgrade on Chan nel 271C2. To do so, the licensee on Channel 240A must Adopted: November 8,1994; Released: November 17,1994 exchange channels with the licensee on Channel 270A in community B. The allotment of Channel 271C2 to com By the Acting Chief, Allocations Branch: munity A must require the deletion of channel 270A at community B and channel 240A must be the only class A 1. At the request of Murray Communications ("peti which can be substituted at community B. As the Commis tioner"), permittee of Station WLJQ(FM), Channel 290A, sion stated, "... although channels 240A and 271C2 are not Colonial Heights, Tennessee, the Commission has before it adjacent, nevertheless Channel 271C2 is not available in the Notice of Proposed Rule Making, 8 FCC Red 1794 the Ashbacker sense for application by other interested (1993), proposing the substitution of Channel 290C3 for parties, because Channel 270A must be replaced with Channel 290A at Colonial Heights and modification of Channel 240A in order for the upgrade to be possible..." petitioner©s authorization to specify operation on the high Here, petitioner does not propose to swap its current op er powered channel. Bruce G. Morrison, Chief Operating erating channel with another authorized facility but rather Officer of Station WMXK-FM, Morristown, Tennessee, proposes a number of channel substitutions plus one sta filed comments on behalf of the Station WMXK-FM. 1 Peti tion moving its transmitter site in order to accommodate tioner filed a counterproposal2 and reply comments. Peti petitioner©s upgrade on Channel 240C2 or 240C3. Accord tioner©s counterproposal requests the substitution of Chan ingly we will deny petitioner©s counterproposal, however, nel 240C2 or, alternatively, Channel 240C3 for Channel we note that Channel 290C3 can be substituted for Chan 290A at Colonial Heights, Tennessee, and modification of nel 290A at Colonial Heights and the allotment of this its construction permit to specify the upgrade. In order to channel does not require an existing station to change accommodate these proposals, petitioner also requests the frequency or site. substitution of Channel 290A for Channel 231A at 3. We believe the public interest would be served by Tazewell, Tennessee, Channel 231A for Channel 240A at substituting Channel 290C3 for Channel 290A at Colonial Morristown, Tennessee, Channel 252A for Channel 290A Heights since it would enable Station WLJQ(FM) to ex at Whitley City, Kentucky, and a change of site for Station pand its coverage area. Channel 290C3 can be allotted to WAEY-FM, Princeton, West Virginia.3 The Commission Colonial Heights in compliance with the Commission©s subsequently issued an Order to Show Cause, 8 FCC Red minimum distance separation requirements with a site re 7901 (1993), to WFSM, Inc., and Franklin Communica striction of 16.7 kilometers (10.4 miles) southwest to ac- tions. Inc. ("Franklin"),4 respective licensees of Stations WCTU(FM), Channel 231A, Tazewell, Tennessee, and WMXK(FM), Channel 240A, Morristown, Tennessee, di recting the licensees to demonstrate why their licenses should not be modified to specify operation on Channel 1 Morrison©s letter and subsequent comments were late- filed, relocate its transmitter site to the extent necessary to clear the and were not accompanied by a request for their acceptance. proposed substitution of Channel 240C2 or, alternatively, Chan Therefore, Morrison©s comments will not be considered. nel 240C3 for Channel 290A at Colonial Heights. 2 Public Notice of the counterproposal was given July 29, 1993, 4 On December 22, 1993, the Commission approved the ap Report No. 1955 and a corrected Public Notice was issued on plication for assignment of license from Franklin August 3, 1993. Communications, Inc. to Newport Publishing Company. 3 The three channel substitutions and change of transmitter 5 Due to the resolution of this proceeding, we need not address site for Station WAEY-FM required for Channel 240C2 are also the issues raised by Franklin. required for Channel 240C3. In this regard, we note that Station 6 See Modification of FM Broadcast Licenses to Higher Class WHAY(FM) has consented in advance to the channel change at Whitley City, Kentucky, and Station WAEY(FM) also agreed to 6767 DA 94-1242 Federal Communications Commission Record 9 FCC Red No. 24 commodate petitioner©s site. 7 As requested, we will also FEDERAL COMMUNICATIONS COMMISSION modify Station©s WLJQ(FM)©s construction permit to speci fy operation on Channel 290C3.8 4. Accordingly, pursuant to the authority contained in Sections 4(i), 5(c)(l), 303(g) and (r) and 307(b) of the Communications Act of 1934, as amended, and Sections John A. Karousos 0.61, 0.204(b) and 0.283 of the Commission©s Rules, IT IS Acting Chief, Allocations Branch ORDERED, That effective January 3, 1995, the FM Table of Allotments, Section 73.202(b) of the Commission©s Policy and Rules Division Rules, IS AMENDED, with respect to the community Mass Media Bureau listed below, to read as follows: City Channel No. Colonial Heights, 290C3 Tennessee 5. IT IS FURTHER ORDERED, pursuant to Section 316(a) of the Communications Act of 1934, as amended, that the construction permit of for Station WLJQ(FM), Colonial Heights, Tennessee, IS MODIFIED to specify op eration on Channel 290C3, in lieu of Channel 290A, sub ject to the following conditions: (a) Within 90 days of the effective date of this Order, the permittee shall submit to the Commission a mi nor change application for a construction permit (Form 301). (b) Upon grant of the construction permit, program tests may be conducted in accordance with Section 73.1620. (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 Commission©s Rules. 6. 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 sub mit a rule making fee when filing its application to imple ment the change in community of license and/or upgrade. As a result of this proceeding, Murray Communications, permittee of Station WLJQ(FM) is required to submit a rule making fee in addition to the fee required for the applications to effect the change in community of license and/or upgrade. 7. IT IS FURTHER ORDERED, That the counterpro posal filed by Murray Communications (RM-8299), re questing the substitution of Channel 240C2 or 240C3 for Channel 290A at Colonial Heights, Tennessee, IS DIS MISSED. 8. IT IS FURTHER ORDERED, That this proceeding IS TERMINATED. 9. For further information concerning this proceeding, contact Pam Blumenthal. Mass Media Bureau, (202) 634-6530. Co-Channels or Adjacent Channels, 60 R.R. 2d 114,120 (1986). 8 Petitioner stated its intention to apply for Channel 290C3 if 7 The coordinate for Channel 290C3 at Colonial Heights are the substitution of Channel 240C2 or 240C3 could not be imple North Latitude 36-21-11 and West Longitude 82-35-24. mented at Colonial Heights. 6768.