********************************************************    
                         NOTICE
********************************************************

This document was converted from
WordPerfect to ASCII Text format.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

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 re Application of                    )
                              )
TM Communications, Inc.            )
(Assignor)                         )
                              )
and                           )
                              )         File No. BAL-990318GE
Radio Peach, Inc.                  )
(Assignee)                         )
                              )
For Assignment of the License of        )         
Station WNEX(AM), Macon, Georgia        )         
Facility ID No. 54034                   )

                   MEMORANDUM OPINION AND ORDER

Adopted:  August 16, 1999                    Released:  August 19, 1999  

     By the Chief, Mass Media Bureau:

1.   The Commission, by the Chief, Mass Media Bureau, acting pursuant to delegated authority has under
consideration: (1) the above-captioned application for assignment of the license of Station WNEX(AM),
Macon, Georgia, from TM Communications, Inc. ("TMC") to Radio Peach, Inc. ("Peach") (File No. BAL-
990318GE); and (2) a related request for a permanent waiver of the Commission's one-to-a-market rule, 47
C.F.R.  73.3555(c), which restricts common ownership of television and radio stations in the same market. 
The application and waiver request are unopposed.   

2.   Peach and Radio Perry, Inc. ("Radio Perry") are commonly controlled by Register Communications,
Inc. ("RCI").  Radio Perry is the licensee of Stations WPGA(AM), WPGA-FM, and VHF television Station
WPGA(TV), all licensed to Perry, Georgia.  Radio Perry was previously granted a permanent waiver of the
one-to-a-market rule to permit the common ownership of these Perry stations.  See Perry Television, Inc., 5
FCC Rcd 1667 (Rev. Bd. 1990).  Because the Grade A contour of WPGA(TV) encompasses Macon, the
community of license of WNEX(AM), Peach has requested a permanent waiver of the one-to-a-market rule
to add WNEX(AM) to the radio-television combination already controlled by RCI.  In addition, Peach has
submitted a showing to demonstrate that its acquisition of WNEX(AM) does not require consideration under
the Commission's local radio ownership rules because the principal community contour of WNEX(AM) does
not overlap that of either WPGA(AM) or WPGA-FM.      

3.   Peach bases its request for a waiver of the one-to-a-market rule on the standards adopted in the Second
Report and Order, MM Docket No. 87-7, 4 FCC Rcd 1741 (1989) ("Second Report and Order"), recon.
granted in part and denied in part, 4 FCC Rcd 6489 (1989) ("Second Report and Order Recon.).  Under these
standards, the Commission presumptively favors waiver requests involving "failed" broadcast stations, that is,
stations that have not been operating for substantial periods of time (four months or more) or that are involved
in bankruptcy proceedings.  See 47 C.F.R.  73.3555, note 7.  

4.   Peach claims that WNEX(AM) has a history of being silent, most recently for a period in excess of
four months from July through December 1998, and that it is a "failed station" pursuant to Note 7 of 
73.3555(c).  According to Peach, the station would have remained dark but for monthly fees from the proposed
assignee pursuant to a January 8, 1999 time brokerage agreement ("TBA").  Specifically, Peach claims that
during the seven-month period that WNEX(AM) has been operating under the TBA, the station has realized
no net revenue and that expenses have been covered by revenues from the TBA.  Peach therefore asserts that
it is entitled to a waiver under the "failed station" standard.  

5.   We have reviewed the contour map submitted with Peach's application and find that it demonstrates
that there is no overlap of the principal community contours of WNEX(AM) and either WPGA(AM) or
WPGA-FM.  Thus, the local radio ownership rules are not implicated by Peach's acquisition of WNEX(AM),
and we may proceed under the presumptive waiver standard set forth in note 7 to  73.3555(c).  See, e.g.,
Liberty Temple Full Gospel Church, Inc., Debtor-in-Possession, 13 FCC Rcd 4420 (1998), citing
Memorandum Opinion and Order in MM Docket No. 91-140, 7 FCC Rcd 6387, 6394, n. 40 (1992); Moosey
Communications, Inc., 8 FCC Rcd 5274 (1993).  

6.   An examination of the documentation submitted in support of the waiver request reveals that absent
payments from Peach, the proposed assignee, pursuant to the TBA, WNEX(AM) would not generate sufficient
revenues to cover its expenses and that broadcasting operations would likely cease.  Thus, although
WNEX(AM) is not now off the air or the subject of a bankruptcy proceeding, we find that the station is the
functional equivalent of a "failed station" for purposes of the presumptive waiver standard under Note 7. 
Presumptive waivers of the one-to-a-market rule for failed stations are based on the rationale that the public
interest is better served by permitting the common ownership of radio and television stations in the same market
than by requiring a station to remain off the air.  Second Report and Order, 4 FCC Rcd at 1753.  Accordingly,
we find that, in light of the documentation submitted and in the absence of any evidence rebutting this
documentation, it would be inconsistent with the public interest to exclude WNEX(AM) from eligibility under
the presumptive waiver standard for failed stations, because the parties to the instant transaction were able to
return the station to the air through operation under the TBA.    

7.   Accordingly, IT IS ORDERED, that the request for a permanent waiver of the Commission's one-to-a
market rule, 47 C.F.R.  73.3555(c), to permit common ownership of Stations WPGA-TV, Perry, and
WNEX(AM), Macon, Georgia, IS GRANTED.

8.   IT IS FURTHER ORDERED, that having found the applicants fully qualified and that grant of the
application would serve the public interest, the application to assign the license of Station WNEX(AM),
Macon, Georgia, from TM Communications, Inc. to Radio Peach, Inc. (File No. BAL-990318GE) IS
GRANTED.  

                         FEDERAL COMMUNICATIONS COMMISSION



                         Roy J. Stewart
                         Chief, Mass Media Bureau