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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. 97-216 Table of Allotments, ) RM-9153 FM Broadcast Stations. ) (Berlin and North Conway, New Hampshire)) REPORT AND ORDER (Proceeding Terminated) Adopted: September 8, 1999 Released: September 10, 1999 By the Chief, Allocations Branch: 1. At the request of Fuller-Jeffrey Radio of New England, Inc. (formerly Fuller-Jeffrey Broadcasting Corporation of Greater Des Moines) ("petitioner"),, the Commission has before it the Notice of Proposed Rule Making, 12 FCC Rcd 16403 (1997), proposing the reallotment of Channel 279C from Berlin to North Conway, New Hampshire, as the community's first local aural transmission service, and the modification of Station WPKQ's license to specify North Conway as its community of license. Comments were filed by the petitioner reiterating its intention to apply for Channel 279C, if reallotted to North Conway. 2. The proposed reallotment of Channel 279C from Berlin to North Conway was filed pursuant to the provisions of Section 1.420(i) of the Commission's Rules which permits the modification of a station's license to specify a new community of license without affording other interested parties an opportunity to file competing expressions of interest. See Amendment of the Commission's Rules Regarding Modification of FM and TV Authorizations to Specify a New Community of License ("Change of Community R&O"), 4 FCC Rcd 4870 (1989), recon. granted in part ("Change of Community MO&O), 5 FCC Rcd 7094 (1990). 3. As stated in the Notice, North Conway is listed in the 1990 U.S. Census as a Census Designated Place ("CDP") and attributed with a population of 2,032 persons. North Conway has its own post office and zip code, as well as local police and fire departments, library, Settlers' Green Shopping Center as well as other businesses, such as the Scottish Lion Import Shop, Inc., the North Conway Community Center, a Masonic Temple, medical services, and a number of churches. Berlin, with a 1990 U.S. Census population of 11,824 persons, receives local aural service from AM Station WMOU as well as Station WPKQ. 4. Station WPKQ is a grandfathered short-spaced station with respect to Station WKNE, Channel 279B, Keene, New Hampshire. As set forth in the Notice, Section 1.420(i) of the Commission's Rules does not specifically address situations involving grandfathered short-spaced stations such as Station WPKQ. The Commission previously found that the public interest was served by considering waiving strict compliance with the spacing requirements where no new short- spacings were created, existing ones were not exacerbated and the potential for increased interference between the currently short-spaced stations was not increased. See, Newnan and Peachtree City, Georgia, 7 FCC Rcd 6307 (1992). However, recognizing that Section 1.420(i) of the Commission's Rules does not specifically address such grandfathered short-spaced station, the Notice requested whether a waiver of the spacing requirements would be appropriate in this instance in view of the magnitude (112 kilometers) of the short-spacing to Station WKNE at Keene, New Hampshire. 5. In response, petitioner states that to deny the proposal would be a "fruitless frustration" of the public interest, with no beneficiary. Since WKNE would not benefit from a denial of its proposal, petitioner states that the failure to waive the spacing requirements in this instance would only serve to deny North Conway of its first local aural service. 6. We believe the public interest would be served by reallotting Channel 279C from Berlin to North Conway, since it could provide the community with its first local aural service, which is a higher allotment priority than the allotment of a second local aural service at Berlin. We believe that a waiver of Section 73.207 is warranted since there is no change in Station WPKQ's technical facilities and thus the short-spacings, and any attendant interference, which already exist will not worsen. Channel 279C can be allotted to North Conway at Station WPKQ's presently licensed transmitter site, which is 27.9 kilometers (17.3 miles) northwest of North Conway. In implementing this change of community of license, the petitioner must propose the existing Station WPKQ transmitter site. While North Conway is located within 320 kilometers of the U.S.-Canadian border, prior Canadian approval of the change in community is not required because no change in transmitter site or facilities is proposed. However, as a result of our decision herein, we will notify the Canadian government of the change to the Table of Allotments to reflect the deletion of Channel 279C at Berlin and its reallotment to North Conway. In accordance with Section 1.420(i), we will also modify petitioner's license for Station WPKQ to specify North Conway as its community of license. 7. 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 25, 1999, 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. Berlin, New Hampshire -- North Conway, New Hampshire 279C 8. IT IS FURTHER ORDERED, pursuant to Section 316(a) of the Communications Act of 1934, as amended, that the license of Fuller-Jeffrey Radio of New England, Inc., for Station WPKQ, IS MODIFIED to specify North Conway, New Hampshire, in lieu of Berlin, New Hampshire, as its community of license, subject to the following conditions: (a) Within 90 days of the effective date of this Order, the licensee shall submit to the Commission a minor change application for a construction permit (Form 301) specifying the new facilities at its currently authorized site, at coordinates 44-16-14 North Latitude and 71- 18-15 West Longitude. (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. 9. IT IS FURTHER ORDERED, That this proceeding IS TERMINATED. 10. 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