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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Amendment of Section 73.202(b), ) MM Docket No. 96-43 Table of Allotments, ) RM-8754 FM Broadcast Stations. ) RM-8830 (Frederiksted and Charlotte Amalie, ) Virgin Islands) ) REPORT AND ORDER (Proceeding Terminated) Adopted: February 21, 1997; Released: February 28, 1997 By the Chief, Allocations Branch: 1. At the request of Jose J. Arzuaga ("petitioner"), the Commission has before it the Notice of Proposed Rule Making ("NPRM"), 11 FCC Rcd 3010 (1996), proposing the allotment of Channel 297B1 at Frederiksted, Virgin Islands, as the community's third local FM transmission service (RM- 8754). Petitioner filed comments in support of the proposal reaffirming his intention to apply for the channel, if allotted. Comments and counterproposals were filed by Rafael Serra ("Serra") and Calypso Communications ("Calypso"). Petitioner and Calypso filed reply comments to the NPRM. Calypso also filed a motion to dismiss Serra's counterproposal, reply comments to the Public Notice accepting its counterproposal, and a request for expedited action. 2. Comments. In response to the NPRM, Calypso Communications, permittee of Station WVNX(FM), Channel 246B, Charlotte Amalie, Virgin Islands, filed a counterproposal proposing the substitution of Channel 297B1 for Channel 246B at Charlotte Amalie, and the modification of Station WVNX(FM)'s construction permit accordingly (RM-8830). In support of its proposal, Calypso asserts that the channel substitution is necessary to implement its already-granted construction permit for the station. The construction permit was initially granted on June 25, 1991 (File No. BPH-870707MI), but is not usable because operation on Channel 246B would result in mutually destructive interference with Channel 247C at Tortola, British Virgin Islands. Calypso notes that although in its 1992 decision, the Commission confirmed that a channel substitution was warranted, it was denied because it did not outweigh the public interest benefits for the conflicting proposal to allot a first local service at Cruz Bay, Virgin Islands. However, Calypso contends that the instant proposal is consistent with the Commission's allotment policies. Calypso further contends that its technical statement demonstrates that there are no Class B channels available at Charlotte Amalie. Indeed, if Station WVNX(FM) were downgraded to Class B1, as proposed, Calypso claims that Channel 297 would be the only channel available for its use. Thus, in order to have a viable construction permit, Calypso avers that it is necessary for Station WVNX(FM) to downgrade to a Class B1 and substitute Channel 297 for Channel 246. In essence, Calypso asserts it merely seeks to implement a 1987 allotment judgment with a usable frequency. Calypso submits that the petitioner's proposal does not have any such equity and deserves no allotment preference. In sum, Calypso contends that its proposal should prevail because (a) it would permit the Commission to resolve a technical interference impasse whereby Calypso is currently required to construct Station WVNX(FM) on an unusable frequency at Charlotte Amalie; and (b) it would provide Charlotte Amalie with its seventh local FM transmission service. Calypso concludes that since neither allotment would provide a first nor second full-time aural service, or a first local service, the proposed allotment of Channel 297B1 at Charlotte Amalie deserves a dispositive preference under FM allotment priority four, other public interest matters, citing Revision of FM Assignment Policies and Procedures, 90 FCC 2d 88 (1982). Calypso states its intention to apply for the channel, if allotted. 3. In its reply comments, petitioner supports the St. John proposal and opposes the substitution of Channel 297B1 for Channel 246B at Charlotte Amalie, Virgin Islands. Petitioner rejects Calypso's claim that it cannot build a station at its present construction permit site because operation on Channel 246B would result in mutually destructive interference with respect to Channel 247C, Tortola, British Virgin Islands. Petitioner asserts that the Tortola station is not on the air, and the Commission should not recognize the claim of interference from a station that does not exist. Moreover, assuming, arguendo, that the Calypso proposal would provide a new service to Charlotte Amalie (population 12,331), an eighth local FM transmission service would not be preferred over a third local FM transmission service at Frederiksted (population 1,064). Indeed, petitioner states that neither community has a large population and that an additional local FM service at Frederiksted would be of decisional significance. Clearly, states petitioner, the public would be better served by a third local FM transmission service at Frederiksted, rather than an eighth local FM service at Charlotte Amalie, a community already more than amply served. 4. In its reply comments, Calypso opposes the Frederiksted and St. John proposals. Calypso reiterates its earlier comments that the Charlotte Amalie proposal deserves a dispositive preference under FM allotment priority four. In its motion to dismiss, Calypso requests the dismissal of the St John proposal because, inter alia, the island, per se, does not qualify as a cognizable "community" for allotment purposes. Calypso also urges that the Commission grant the proposed substitution of Channel 297B1 for Channel 246B at Charlotte Amalie, and deny petitioner's proposal to allot Channel 297B1 at Frederiksted. 5. Discussion. Conflicting proposals are comparatively considered under the guidelines set forth in Revision of FM Assignment Policies and Procedures, supra, However, because an alternate Class B1 channel has been found for Frederiksted that resolves the conflict between the two remaining proposals, no comparative analysis is necessary. Therefore, we believe the public interest would be served by allotting alternate Channel 269B1 at Frederiksted as the community's third local FM transmission service. We also substitute Channel 297B1 for Channel 246B at Charlotte Amalie, as the community's sixth local commercial FM transmission service, and modify Station WVNX(FM)'s construction permit accordingly. This channel substitution will eliminate potential interference with Channel 247C authorized at Tortola, British Virgin Islands, and will enable Station WVNX((FM) to have, to the extent feasible, an equivalent class replacement channel. An engineering analysis has determined that Channel 269B1 can be allotted to Frederiksted in compliance with the Commission's minimum distance separation requirements at city reference coordinates. Additionally, Channel 297B1 can be allotted to Charlotte Amalie in compliance with the Commission's minimum distance separation requirements with a site restriction of 20.8 kilometers (12.9 miles) east at Station WVNX(FM)'s presently authorized site. 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 April 14, 1997, the FM Table of Allotments, Section 73.202(b) of the Commission's Rules, IS AMENDED, with respect to the communities listed below, to read as follows: City Channel No. Frederiksted, Virgin Islands 253A, 269B1, 278A, Charlotte Amalie, Virgin Islands *226A, 241B1, 250B, 271B, *275A, 282B, 287B, 297B1 7. IT IS FURTHER ORDERED, That pursuant to Section 316(a) of the Communications Act of 1934, as amended, the construction permit of Calypso Communications for Station WVNX(FM), Charlotte Amalie, Virgin Islands, IS MODIFIED, to specify operation on Channel 297B1 in lieu of Channel 246B, subject to the following conditions: (a) Within 90 days of the effective date of this Order, the permittee shall submit to the Commission a minor change application for a construction permit (Form 301), specifying the new facility. (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. 8. Operation with the facilities specified herein is subject to modification, suspension, or termination without right to hearing, if found by the Commission to be necessary in order to conform to the ITU Radio Regulations governing FM Broadcasting and to bilateral and other multilateral agreements between the United States and other countries. 9. IT IS FURTHER ORDERED, That the Secretary shall send a copy of this Report and Order by Certified Mail, Return Receipt Requested, to the following: Calypso Communications 4433 Wells Parkway University Park, Maryland 20782 (Permittee of Station WVNX(FM)) 10. The window period for filing applications for Channel 269B1 at Frederiksted, Virgin Islands, will open on April 14, 1997, and close on May 15, 1997. 11. IT IF FURTHER ORDERED, That the counterproposal filed by Rafael Serra to allot Channel 298A at St. John, Virgin Islands, IS DISMISSED. 12. IT IS FURTHER ORDERED, That the Motion to Dismiss Rafael Serra's counterproposal filed by Calypso Communications, IS DISMISSED as moot. 13. IT IS FURTHER ORDERED, That this proceeding IS TERMINATED. 14. For further information concerning this proceeding, contact Sharon P. McDonald, Mass Media Bureau, (202) 418-2180. Questions related to the window application filing process should be addressed to the Audio Services Division, Mass Media Bureau, (202) 418-2700. FEDERAL COMMUNICATIONS COMMISSION John A. Karousos Chief, Allocations Branch Policy and Rules Division Mass Media Bureau