FEDERAL COMMUNICATIONS COMMISSION
                            WASHINGTON, DC  20554
                                      
                               August 28, 1996
                                                                      IN REPLY REFER TO:
                                                                          1800B3-AED
                                        


Charles R. Naftalin, Esq. 
Koteen & Naftalin, L.L.P.
1150 Connecticut Avenue, N.W.
Washington, DC  20036 


                                                               In re: KGMS(FM), Green Valley, AZ
                                                                       Good Music, Inc. ("Good Music") 
                                                                       BPH-950208IF 



Dear Mr. Naftalin: 

This letter is in reference to the above-captioned minor change "one step" application to
upgrade from Channel 246A to Channel 246C2 pursuant to the Report and Order in MM
Docket 92-159, 8 FCC Rcd 4735 (1993) ("One-Step Order").  The application also proposed
to change the effective radiated power, antenna location and antenna height.  The
application was amended on March 8, 1996 in response to our January 17, 1996 letter. 
Since the amendment failed to remedy all of the deficiencies addressed in our letter, we are
dismissing the application.

The application as originally filed proposed a one-step upgrade.  Because the proposed
facility site was short-spaced, the applicant proposed a separate allotment reference 
site. Footnote 1.   Our January 17, 1996 letter noted that the
proposed allotment reference site was short-spaced to three Mexican allotments and one
station.  Furthermore, because of contour overlap the allotment reference site did not
comply with the U.S.-Mexican Agreement.  In response to our letter, the March 8, 1996
amendment changed the directional antenna pattern in order to eliminate overlap between
the proposed facility and the vacant Mexican allotment on Channel 247B in Sonoita. 
However, with respect to the proposed allotment reference site the applicant stated "[t]he
allotment reference site conforms to the Commission's allotment standards and is not
applicable to Mexican stations."  This is not correct.  The proposed allotment site must
be acceptable under the U.S.- Mexican Agreement before the proposed facility site can be
considered. 

The Commission has stated that the nationwide FM allotment scheme is constructed on
two core technical requirements:  (1) that allotment sites comply with the minimum
spacing requirements of § 73.207 and (2) that the allotment must satisfy the
community coverage requirements of 
§ 73.315.  The goals of the allotment scheme are to prevent overcrowding of FM
stations and provide a consistent, fair, efficient, and equatable distribution of FM facilities
as required by Section 307(b) of the Communications Act. Footnote 2.  
Further, the Commission has indicated that all applicants using the "one-step" process must satisfy the 
same allotment requirements as petitioners in an allotment rulemaking proceeding to amend the 
FM Table of Allotments.Footnote 3.   Furthermore, the Commission has indicated that
where a station seeks modification using the "one-step" process and is unable to
demonstrate that a suitable allotment site exists that would satisfy the spacing
and community coverage requirements for the station's channel and class, the application
would be dismissed. Footnote 4.   This policy is strictly enforced even where the
applicant intends to utilize the more lenient spacing and contour protection requirements
of § 73.215.  There is no precedent for waiver of the allotment requirements.

The proposed allotment reference site is short-spaced to three Mexican allotments and one
Mexican station (XHNGS-FM, Nogales on Channel 244B).  With respect to the three
allotments it may be possible to limit the KGMS facilities in order to comply with the
U.S.-Mexican Agreement.  However, the 54 dBu protected contour of XHNGS-FM would
encompass the proposed allotment reference site. Footnote 5.   
Therefore, no reduction in facilities would eliminate the overlap caused to XHNGS-FM and the site 
cannot comply with the U.S.-Mexican Agreement.  Furthermore, when considered as an allotment site, 
the proposed facility site does not comply with the allotment standards because of the short-spacing to
KHTC.  Accordingly, the application is unacceptable for filing.  

 In the Commission's letter dated January 17, 1996, it was stated that:

     ...pursuant to 47 C.F.R. § 73.3522(a)(6), "...an applicant whose application is
     found to meet the minimum filing requirements but nevertheless is not complete
     and acceptable shall have the opportunity in the 30-day period specified in the FCC
     staff's deficiency letter to correct all deficiencies in the tenderability and
     acceptability of the underlying application, including any deficiency not specifically
     identified by the staff."  Additionally, 47 C.F.R. § 73.3564(a) states that,
     "[a]pplications with uncorrected tender and/or acceptance defects remaining after the
     opportunity for corrective amendment will be dismissed with no further opportunity
     for corrective amendment." See Appendix B in the Report and Order in MM
     Docket No. 91-347, 7 FCC Rcd 5074, 57 Fed. Reg. 34872, released July 27, 1992. 
     Accordingly, this letter constitutes your one opportunity for corrective amendment
     pursuant to 47 C.F.R. § 73.3522(a)(6).

Therefore, Application BPH-950208IF, being unacceptable for filing after the one
opportunity for corrective amendment, IS HEREBY DISMISSED.  This action is taken
pursuant to 47 C.F.R. § 73.3522(a)(6).

                                                                    Sincerely,



                                                                    Dennis Williams 
                                                                    Assistant Chief 
                                                                    Audio Services Division
                                                                    Mass Media Bureau

cc: Carl T. Jones Corporation
     Good Music, Inc. 



Footnotes:

Footnote 1: The application proposed 47 C.F.R. § 73.215 processing to KHTC(FM), Phoenix, Arizona.

Footnote 2: See Amendment of Part 73 of the Commission's Rules to Permit Short-Spaced FM Station Assignments by Using Directional Antennas, 6 FCC Rcd 5356, 5358 (1991) (para. 13).

Footnote 3: See Amendment of the Commission's Rules to Permit FM Channel and Class Modifications by Application, 8 FCC Rcd 4735, 4737 (1993) (para.13).

Footnote 4: Id. at 4737 (para. 14).

Footnote 5: Because XHNGS-FM facilities are not limited, pursuant to the U.S.-Mexican Agreement, it must be protected to maximum facilities for a Class B station.