$// MO&O, FM B/C STAS. (Douglas, GA & LaCrosse, FL), DA 95-460//$ $ / 73.202 FM Table of Allotments, DA 95-460/$ ///newjob/// $///DA 95-460,3/14/95///$ DA 95-460 BEFORE THE FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554 In the Matter of ) ) Amendment of Section 73.202(b), ) MM Docket No. 90-522 Table of Allotments, ) RM-7493 FM Broadcast Stations. ) RM-7499 (Douglas, Georgia and) ) LaCrosse, Florida) ) MEMORANDUM OPINION AND ORDER AND ORDER REOPENING FILING WINDOW (Proceeding Terminated) Adopted: ; Released: March 17, 1995 By the Chief, Policy and Rules Division: 1. The Commission on its own motion reconsiders its decision of the Report and Order, in this proceeding, 8 FCC Rcd 736 (1993). The Report and Order substituted Channel 258C for Channel 258C1 at Douglas, Georgia, and modified the license of Station WDMG(FM) to specify operation on Channel 258C. In addition, Channel 258A was allotted to LaCrosse, Florida, as a first local aural transmission service. 2. Background. This proceeding began with the filing of two separate and mutually exclusive petitions for rule making. The first petition, filed by WDMG, Inc., ("WDMG"), proposing the substitution of Channel 258C for Channel 258C1 at Douglas, Georgia, and the modification of Station WDMG(FM)'s license to specify operation on the higher class channel. The second petition, filed by Robert E. Wideman ("Wideman"), requested the allotment of Channel 258A to LaCrosse, Florida, as that community's first local aural transmission service. In response to the petitions for rule making the Commission issued a Notice of Proposed Rule Making, 5 FCC Rcd 6575 (1990). 3. In the Report and Order, we concluded that with appropriate site restrictions, both channels could be allotted. Subsequent to the release of the Report and Order, we discovered that this engineering conclusion was incorrect and the proposals remained mutually exclusive. Therefore, it is necessary to reconsider the Report and Order. With respect to the filing window for the allotment of Channel 258A to LaCrosse, Florida, we issued an Order Staying Filing Window, 8 FCC Rcd 2146 (1993), to allow for further consideration of the two proposals. 4. A further engineering analysis determined that there are no alternate channels or sites available for Douglas, Georgia and LaCrosse, Florida, which would remove the mutual exclusivity. Therefore, we must comparatively consider these proposals under the Commission's Revision of FM Assignment Policies and Procedures, 90 FCC 2d 88 (1982) under priority (3). A first local aural FM transmission service is generally preferred over a proposal to upgrade an existing facility. See also, Benton, Arkansas, 3 FCC Rcd 4840 (1988), recon. denied, 7 FCC Rcd 2555 (1992). If the proponent for a channel upgrade is in conflict with a proposal for a new allotment, the upgrade proponent may demonstrate that its proposal should be preferred by providing a showing of need for the proposed increase in existing service. This could take the form of a comparison indicating which new areas are to be covered and the extent to which these areas are currently unserved or underserved. In the absence of such a showing of need for the proposed increase in service, a conflicting new allotment would be favored since it represents a new service. See Benton, Arkansas, supra. WDMG has not made such a showing. Therefore, we find that the provision of a first local aural service at LaCrosse, Florida, must be preferred over the proposal to upgrade the existing service to Station WDMG(FM), Douglas, Georgia. 5. In consideration of the above, we believe the public interest would be served by the allotment of Channel 258A to LaCrosse, Florida. Channel 258A can be allotted to LaCrosse in compliance with the Commission's minimum distance separation requirements with a site restriction of 13.1 kilometers (8.2 miles) southeast, in order to avoid a short- spacing to Station WDMG(FM), Channel 258C1, Douglas, Georgia, and Station WQIK(FM), Channel 256C, Jacksonville, Florida. Therefore, it is no longer necessary to stay the filing window for Channel 258A at LaCrosse, Florida. We will deny the proposed Douglas upgrade on Channel 258C, and reopen the filing window for Channel 258A at LaCrosse, Florida. 6. Accordingly, pursuant to the authority found in Sections 4(i), 5(c)(1), 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 May 1, 1995, the FM Table of Allotments, Section 73.202(b) of the Commission's Rules, IS AMENDED for the community listed below, as follows: City Channel No. LaCrosse, Florida 258A Douglas, Georgia 258C1 7. Accordingly, IT IS ORDERED, That the window period for filing applications for Channel 258A at LaCrosse, Florida, will open on May 1, 1995, and close on June 1, 1995.. 8. IT IS FURTHER ORDERED, That the petition for rule making filed by WDMG Inc., (RM-7493), requesting the substitution of Channel 258C for Channel 258C1 at Douglas, Georgia, IS DENIED. 9. IT IS FURTHER ORDERED, That this proceeding IS TERMINATED. 10. For further information concerning this proceeding, contact Nancy J. Walls, Mass Media Bureau, (202) 418-2180. Questions related to the window application filing process should be addressed to the Audio Services Division, FM Branch, Mass Media Bureau (202) 418-2700. FEDERAL COMMUNICATIONS COMMISSION Douglas W. Webbink Chief, Policy and Rules Division Mass Media Bureau 6712-01 FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 (MM Docket No. 90-522; RM-7493, RM-7499) Radio Broadcasting Services; LaCrosse, Florida and Douglas, Georgia AGENCY: FEDERAL COMMUNICATIONS COMMISSION ACTION: Final rule. SUMMARY: This document allots Channel 258A to LaCrosse, Florida, as that community's first local aural transmission service, at the request of Robert E. Wideman (RM-7499), and denies the substitution of Channel 258C for Channel 258C1 at Douglas, Georgia at the request of WDMG, Inc., (RM-7493). In doing so, this document sets aside the Report and Order in this proceeding, upgrading Station WDMG(FM), Douglas, Georgia to Channel 258C. See 58 FR 7194, February 5, 1993. Channel 258A can be allotted to LaCrosse in compliance with the Commission's minimum distance separation requirements with a site restriction of 13.1 kilometers (8.2 miles) southeast, in order to avoid a short-spacing to Station WDMG(FM), Channel 258C1, Douglas, Georgia, and Station WQIK(FM), Channel 256C, Jacksonville, Florida, at coordinates North Latitude 29-44-38 and West Longitude 82- 19-52. This document also reopens the filing window for Channel 258A at LaCrosse, Florida, which was stayed by a previous Order. See 58 FR 16780, March 31, 1993. With this action, this proceeding is terminated. DATES: Effective , 1995. The window period for filing applications for Channel 258A at LaCrosse, Florida, will be open on 1995, and close on 1995. FOR FURTHER INFORMATION CONTACT: Nancy J. Walls, Mass Media Bureau, (202) 418-2180 SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's Memorandum Opinion and Order, MM Docket No. 90-522, adopted , 1995, and released 1995. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center (Room 239), 1919 M Street, NW, Washington, D.C. The complete text of this decision may also be purchased from the Commission's copy contractors, International Transcription Service, Inc., (202) 857-3800, 1919 M Street, N.W., Room 246, or 2100 M Street, N.W., Suite 140, Washington, D. C. 20037. List of Subjects in 47 CFR Part 73: Radio Broadcasting Part 73 of Title 47 of the Code of Federal Regulations is amended as follows: 47 CFR Part 73 [AMENDED] 1. The authority citation for Part 73 continues to read as follows: AUTHORITY: Secs. 303, 48 Stat., as amended, 1082; 47 U.S.C. 154, as amended. Section 73.202 [Amended] 2. Section 73.202(b), the Table of FM Allotments under Florida, is amended by adding LaCrosse, Channel 258A. FEDERAL COMMUNICATIONS COMMISSION Douglas W. Webbink Chief, Policy and Rules Division Mass Media Bureau