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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. 96-253 Table of Allotments, ) RM-8962 FM Broadcast Stations. ) (Bainbridge, Georgia) ) REPORT AND ORDER (Proceeding Terminated) Adopted: August 27, 1997 Released: September 5, 1997 By the Chief, Allocations Branch: 1. At the request of Chattahoochee Broadcast Associates ("petitioner"), the Commission has before it the Notice of Proposed Rule Making, 11 FCC Rcd 20904 (1996), proposing the allotment of Channel 270A to Bainbridge, Georgia, as the community's second local FM service. Comments were filed by the petitioner reiterating its intention to apply for the channel, if allotted, and by Paxson Tallahassee License, Inc. ("Paxson"). Reply comments were filed by the petitioner. 2. Paxson is the licensee of Station WXSR, Quincy, Florida. Paxson opposes the allotment of Channel 270A to Bainbridge because it conflicts with the application (BPH-961230IA) which it filed to implement the upgrade of Station WXSR from Channel 268C2 to Channel 268C1, as granted by Report and Order, 11 FCC Rcd 8772 (1996). Paxson states that the pending application only requests that Station WXSR's license be modified to specify operation on Channel 268C1 with an increased effective radiated power of 83 kilowatts. Further, it goes on to state that the transmitter site specified in the application is the station's presently licensed transmitter site and that no change in the site is either pending or contemplated. 3. In reply comments, petitioner argues that the Commission's Rules with respect to conflicts between petitions and applications is clear. Where, as here, the application was filed after the petition but prior to the close of the initial comment period, the application will be given comparative consideration under existing allocation precedent. This precedent, according to the petitioner, generally finds that the public interest is better served by the allotment of a new FM channel, as it represents a new primary service, over an applicant's request for a specific transmitter site, which, unless shown otherwise, serves only the applicant's private interests, citing Andalusia, Alabama, 49 FR 32201 (1984). In this case, petitioner points out that Station WXSR was upgraded from Channel 268C2 to Channel 268C1, at the reference coordinates requested by Paxson. Although it has now filed an application specifying its present transmitter site, rather than the coordinates requested in the rule making, petitioner states that Paxson has made no attempt to demonstrate that use of its present transmitter site will provide a service which is to be preferred over a new primary service at Bainbridge. 4. We believe the public interest would be served by allotting Channel 270A to Bainbridge since it could provide the community with its second local FM service. Paxson has provided no showing that the use of its presently authorized transmitter site represents anything more than a site preference. No showing has been made that use of the station's present site would provide a benefit to the public that would outweigh the provision of a new service at Bainbridge. Indeed, it only states that its pending application specifies its present transmitter site rather than the site requested in the petition for rule making for Channel 268C1 at Quincy, and that it does not intend to request use of a different transmitter site. Thus, Paxson has failed to show that the continued use of its present transmitter site provides any public interest benefit whatsoever. Nor has Paxson shown that the transmitter site which it requested in the rule making which allotted Channel 268C1 to Quincy is unavailable and that there are no other transmitter sites which can be utilized. Therefore, in accordance with Commission precedent, we will not deny the provision of an additional aural service at Bainbridge in favor of the use of a preferred site by Station WXSR. See Las Vegas, Nevada, 51 FR 9453 (1986) (applicant's site preferred over new allotment because it would provide service to an area which received only one aural service) and Dunn, Fuquay-Varina, Hope Mills, Topsail Beach and Williamston, North Carolina, 4 FCC Rcd 2301 (1989). 5. Channel 270A can be allotted to Bainbridge in compliance with the Commission's minimum distance separation requirements without the imposition of a site restriction. 6. Accordingly, pursuant to the authority contained 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 October 20, 1997, the FM Table of Allotments, Section 73.202(b) of the Commission's Rules, IS AMENDED, with respect to the community listed below, to read as follows: City Channel No. Bainbridge, Georgia 247C, 270A 7. The window period for filing applications will open on October 20, 1997, and close on November 20, 1997. 8. IT IS FURTHER ORDERED, That this proceeding IS TERMINATED. 9. For further information concerning this proceeding, contact Leslie K. Shapiro, Mass Media Bureau, (202) 418-2180. FEDERAL COMMUNICATIONS COMMISSION John A. Karousos Chief, Allocations Branch Policy and Rules Division Mass Media Bureau