WPCC8 2BVTZ3|P)?xxxXVZXx6X@DQX@HP LaserJet 4/4MCL)HPLAS4.WRSSx  @,, $iX@ X-#Xj\  P6G; DXP##XP\  P6Q DXP##XP\  P6Q DXP##XP\  P6Q DXP#2(@XXCourier New (TT)Times New Roman (TT)"5@^2CRdd$CCdq2C28dddddddddd88qqqYzoCNzoozzC8C^dCYdYdYCdd88d8ddddCN8ddddY`(`l2CC!CCPRCddYYYYYYzYzYzYzYC8C8C8C8ddddddddddYdddddoddYYYYYzYzYzYddddddPdCdCCCdNdz8zRdddCRoNoNNF2[dCYddddd7>d<d<CCYYdCCddCYCdYzzzzCCCCqodYYYYYYYYYYY8888dddddddnddddddd?xxxXVZXx6X@DQX@7PC2X DXP\  P6QXPH  GT@73|P2 @E2 @w @ "5@^.=K\\!==\g.=.3\\\\\\\\\\33gggQzzpf=Gpfzfpp=3=V\=Q\Q\Q=\\33\3\\\\=G3\\\\QX%Xc.====IK=\\QQQQQzzQpQpQpQpQ=3=3=3=3\\\\\\\\\\Q\\\\\f\\QQzQzQzQpQpQpQ\\\\\\I\=\===\G\p3pK\\\z=zKfGfGN@.S\=Q\\\\\39\7\7==QQ\==\\=Q=7t=eeeegoo.Ijg2Z\\yeCpj`vZefeloPpPj`e~~tro.=K\\!==\g.=.3\\\\\\\\\\33gggQzzpf=Gpfzfpp=3=V\=Q\Q\Q=\\33\3\\\\=G3\\\\QX%Xc=\Q\\=f===QQ@\=G=.=\\\\%\=3\g=\Ie77=jS.=79\Qzpppp====gf\QQQQQQzQQQQQ3333\\\\\\\e\\\\\\\Times New Roman (TT)Times New Roman (Bold) (TT)Arial (TT)Roman"5@^?(?SO_c(88?g(g(WOOOOOOOOOO((_g_GkOWSWSO[_,;WGc[WWWWOK_O_OSO888WO(OSKSK3KW,,S,WOSOCC;WG_OKG8 8_((((W,E(OWOOOOOOOOOOOwSKSKSKSKSK,,,,,,,,[WWOWOWOWO_W_W_W_W(KOOWSWOWOSKWOSSOOWWOOSKSKSKSKWWSK[K[O[[K[K_W_W,WWW,,,W;WSG,GE[W[WWW((WCWEOC((N((;S(GOOOS(OOOOKOOOOOO(((((((((((((((OOtOg[[GOee*,KO.wROOn[CfxKxWlRx[][ceIfIs`Wx[rriwge((((((((((((((((((((((((((((((((?(?SO_c(88?g(g(WOOOOOOOOOO((_g_GkOWSWSO[_,;WGc[WWWWOK_O_OSO888WO(OSKSK3KW,,S,WOSOCC;WG_OKG8 8_(((((((((((((((((((((((((((((((((((KOOS,SWOOOOOOO,gOO(K;((OOOOOOGOOOOOOOSSSSS,,,,W[WWWWWOW____SSWOOOOOOwKKKKK,,,,OWOOOOOGOWWWWKS"5@^(1<d<d<CCYYdCCddCYCdYzzzzCCCCqodYYYYYYYYYYY8888dddddddnddddddd X- I. A. 1. a.(1)(a) i) a) 1. 1. 1. a.(1)(a) i) a)#Xj\  P6G; DXP##XP\  P6Q DXP##XP\  P6Q DXP##XP\  P6Q DXP#2&@@@@?#"5@^2Coddȧ8CCdr2C28ddddddddddCCrrrdzNdzoȐC8CtdCdoYoYCdo8Co8odooYNCodddYO,Oh2CC!CCPRCdodddddȐYYYYYN8N8N8N8oddddooooddoddddzodddYYYYYYddddooPoNoNCNodo8RoodȐYYoNoNNF2ldCdddddd>400000000009>9+@04242079$4+<744440-909020!!!4002-2--42O4020(($4+90-+!!94)0400000000000G2-2-2-2-2-744040404094949494-004240402-40220044002-2-2-2-442-7-7077-7-94944444$42++)7474444(4)0(N$2+00020000-00000000t0>77+0c<<&&209<!!&>>400000000009>9+@04242079$4+<744440-909020!!!4002-2--42O4020(($4+90-+!!9-002240000000>00-$000000+0000000222224744444049999224000000G-----0400000+04444-2y.C8*XC\  P6QP7PC2X DXP\  P6QXP.7UC2XxXU4  pQXW!0(X h0\  P6QhPI(!XI,(\  P6Q,P,Q=3X3< &Q2PQ&PS0%X3J02PQJP1XC7X3aXX2PQXPxy.K8?X?qK\  P@QP xI-!&X?,-\  P@Q,P,2J=.X &J\  P6Q&P .-2N=.X7&N4  pQ&?^N;XJ^\  P6QP2 @5RA8"5@^;N_uuµ*NNu;N;AuuuuuuuuuuAAgשN[ЩܩNANnuNgugugNuuAAuAuuuuN[Auuuugp/p~;NN'NN]`NuugggggМgggggNANANANAuuuuuuuuuuguuuuuuugggggggguuuuuu]uNuNNNu[uA`uuuЩN`[[NR;juNguuuuu@HuFuFNNgguNNuuNgNFtN捍:]@suuCzsffz;N_uuµ*NNu;N;AuuuuuuuuuuAAgשN[ЩܩNANnuNgugugNuuAAuAuuuuN[Auuuugp/p~NuguuNNеNNggRuN[N;Nuuuu/uN@uNu]FFNj;NFHugМNNNNugggggggggggAAAAuuuuuuuuuuuuuu S-  #&J\  P6Q &P#  2 X-5  # XP\  P6Q DXP#Federal Communications Commission   xxDA 97407   yxdddy 2Q3 Before the Federal Communications Commission  S-& Washington, D.C. 20554 ă  X-# XP\  P6Q DXP#  XZ-In the Matter of hh @) pp  XC- ` `  hh@)  X,-Amendment of Section 73.202(b),hh@) hMM Docket No. 9643  X-Table of Allotments, hh@) hRM8754  X-FM Broadcast Stations. hh@) hRM8830  X-(Frederiksted and Charlotte Amalie,@)  X -Virgin Islands)h  yOI -ԍThe community of Charlotte Amalie has been added to the caption.h hh@)hpp  xx 0(#(#Xx  X -  hhREPORT AND ORDER  Xt -  hh(Proceeding Terminated)  XF- x Adopted: February 21, 1997; Released: February 28, 1997 By the Chief, Allocations Branch: " X-  O"  x#^\  P6Q JP## XP\  P6Q DXP#1#&Q2PQ< &P#. #XP\  P6Q DXP#At the request of Jose J. Arzuaga ("petitioner"), the Commission has before it the  X- xNotice of Proposed Rule Making ("NPRM"), 11 FCC Rcd 3010 (1996), proposing the allotment  X- xof Channel 297B1 at Frederiksted, Virgin Islands, as the community's third local FM transmission  X- xNservice (RM8754). X yO- xԍAs stated in the NPRM, although petitioner requested the allotment of Channel 296B1 at Frederiksted, we  yOv- x;substituted Channel 297B1 for consideration there to avoid a conflict with an earlier filed proposal to allot Channel  x293B at Christiansted, Virgin Islands, and with the licensed site of Station WMEG(FM), Channel 295B, Guayama,  yO-Puerto Rico. Petitioner filed comments in support of the proposal reaffirming his  xintention to apply for the channel, if allotted. Comments and counterproposals were filed by  Xw- xLRafael Serra ("Serra") and Calypso Communications ("Calypso").Yw@ yOh- e ЍThe Calypso counterproposal was placed on Public Notice on June 25, 1996, Report No. 2138 (RM8830).  e A counterproposal was timelyfiled by Serra proposing the allotment of Channel 298A at St. John, Virgin Islands  e(population 3,504), as the island's first local aural transmission service. Serra also supports a Class B1 allotment at  yO"- eFrederiksted but proposes the allotment of Channel 296B1 in lieu of Channel 297B1 as proposed in the NPRMZ"qNotice. Our  e,engineering analysis reveals that the proposed allotment of Channel 298A St. John would potentially be the island's  esecond local FM transmission service, since Channel 267B has been allotted to Cruz Bay and a construction permit  yO$- ehas been issued. See 10 FCC Rcd 8111 (1995). However, we find that the counterproposal is not acceptable, and  etherefore, it has not been placed on Public Notice. Counterproposals must be "technically correct and substantially  yOp&- ewcomplete" at the time of their filing. See e.g., Fort Bragg, California, 6 FCC Rcd 5817 (1991); Provincetown, et al.,"p&0*''&"  yO- eYMassachusetts, 8 FCC Rcd 19 (1992); and Sanford and Robbins, North Carolina, 12 FCC Rcd 1 (1997).  Here, Serra's  ecounterproposal is technically defective because it was 0.7 kilometers shortspaced at the time it was filed to the then  eapplication site, and now construction permit site, of Station WAHQFM, Channel 299B, Carolina, Puerto Rico.  eAdditionally, Serra's counterproposal does not specify a "community" on the island of St. John (which is 92 square  emiles), although the 1990 U.S. Census lists Cruz Bay (population 2,466) as a Census Designated Place, and Coral Bay  e(population 363) as a subdistrict. The Commission generally considers specific "communities" on an island when  yO@- eKmaking allotments, not the entire island itself, unless clearly defined "community" status can be established. See  yO- eYCulebra and Vieques, Puerto Rico, et al., 6 FCC Rcd 5161 (1991). Therefore, we find that the island of St. John, per  yO-se, does not qualify as a cognizable "community" for allotment proposes.  yO` - xJ e  In an attempt to amend its proposal, Serra contends in the "Joint Opposition to Motion to Dismiss," that if the  xCommission finds that Cruz Bay is the only "community" on St. John for allotment purposes, his proposal should  xbe permitted to go forward as a "Cruz Bay" allotment. We reject Serra's contention since Cruz Bay was not specified  x-in the petition and counterproponents are not permitted to file curative amendments, especially where, as here,  yO - xacceptance of such an amendment would prejudice another timelyfiled counterproposal that is acceptable. See Amor  yOH - xJFamily Broadcasting Group v. FCC, 918 F.2d 960 (D.C. Cir. 1990). Therefore, we will dismiss the counterproposal.  xIn light of the ultimate resolution of this proceeding, we need not address responsive pleadings to the St. John proposal. However, to the extent they address the remaining proposals, we will consider Serra's comments. All population figures are taken from the 1990 U.S. Census. Y Petitioner and Calypso filed"w00*''ZZ"  X- x=reply comments to the NPRM. Calypso also filed a motion to dismiss Serra's counterproposal,  xreply comments to the Public Notice accepting its counterproposal, and a request for expedited  X-action.'0P yO- x X  X ЍThe following unauthorized pleadings, not accompanied by motions to accept, pertaining to the St. John proposal  xiwere filed after the record closed: (1) "Joint Opposition to Motion to Dismiss" filed by petitioner and Serra; and  x(2) "Reply to Joint Opposition to Motion to Dismiss," filed by Calypso. Section 1.415(d) of the Commission's Rules  yO - x<precludes the filing of pleadings beyond the comment and reply comment periods set forth in the NPRM, unless  xispecifically requested or authorized by the Commission. However, given the action taken in this proceeding, the unauthorized pleadings are moot and need not be considered.'  X-  lx2. Comments. In response to the NPRM, Calypso Communications, permittee of Station  xWVNX(FM), Channel 246B, Charlotte Amalie, Virgin Islands, filed a counterproposal proposing  xthe substitution of Channel 297B1 for Channel 246B at Charlotte Amalie, and the modification  X_- xof Station WVNX(FM)'s construction permit accordingly (RM8830). _P yO- -  ЍWe note that on October 16, 1996, Calypso filed for an extension of time in which to build its Class B  -facilities at Charlotte Amalie, pending the outcome of the instant rule making proceeding. An "Informal Objection"  -was filed by petitioner, an "Opposition to Informal Objection" was filed by Calypso, and petitioner filed a "Reply to Opposition to Informal Objection." In support of its proposal,  xkCalypso asserts that the channel substitution is necessary to implement its alreadygranted  x<construction permit for the station. The construction permit was initially granted on June 25, 1991  x(File No. BPH870707MI), but is not usable because operation on Channel 246B would result  xNin mutually destructive interference with Channel 247C at Tortola, British Virgin Islands. " 0*%%ZZ "  x/Calypso notes that although in its 1992 decision, the Commission confirmed that a channel  xKsubstitution was warranted, it was denied because it did not outweigh the public interest benefits  xfor the conflicting proposal to allot a first local service at Cruz Bay, Virgin Islands. However,  xCalypso contends that the instant proposal is consistent with the Commission's allotment policies.  xCalypso further contends that its technical statement demonstrates that there are no Class B  x\channels available at Charlotte Amalie. Indeed, if Station WVNX(FM) were downgraded to  xClass B1, as proposed, Calypso claims that Channel 297 would be the only channel available for  X_- xyits use._P yO- x  ЍOur engineering study confirms that Channel 297 would be the only available channel at Charlotte Amalie for a Class B1 allotment. Thus, in order to have a viable construction permit, Calypso avers that it is necessary  xfor Station WVNX(FM) to downgrade to a Class B1 and substitute Channel 297 for Channel 246.  xIn essence, Calypso asserts it merely seeks to implement a 1987 allotment judgment with a usable  x=frequency. Calypso submits that the petitioner's proposal does not have any such equity and  xdeserves no allotment preference. In sum, Calypso contends that its proposal should prevail  xbecause (a) it would permit the Commission to resolve a technical interference impasse whereby  xCalypso is currently required to construct Station WVNX(FM) on an unusable frequency at  xCharlotte Amalie; and (b) it would provide Charlotte Amalie with its seventh local FM  x[transmission service. Calypso concludes that since neither allotment would provide a first nor  x=second fulltime aural service, or a first local service, the proposed allotment of Channel 297B1  xat Charlotte Amalie deserves a dispositive preference under FM allotment priority four, other  Xb- x[public interest matters, citing Revision of FM Assignment Policies and Procedures, 90 FCC 2d  XK-88 (1982).K P yO- xKԍThe allotment priorities are: (1) first fulltime aural service; (1) second fulltime aural service; (3) first local service; and (4) other public interest matters. [Coequal weight is given to priorities (2) and (3).] Calypso states its intention to apply for the channel, if allotted.   x3. In its reply comments, petitioner supports the St. John proposal and opposes the  xsubstitution of Channel 297B1 for Channel 246B at Charlotte Amalie, Virgin Islands. Petitioner  xrejects Calypso's claim that it cannot build a station at its present construction permit site because  xzoperation on Channel 246B would result in mutually destructive interference with respect to  xChannel 247C, Tortola, British Virgin Islands. Petitioner asserts that the Tortola station is not  xon the air, and the Commission should not recognize the claim of interference from a station that  X- xdoes not exist. Moreover, assuming, arguendo, that the Calypso proposal would provide a new  xyservice to Charlotte Amalie (population 12,331), an eighth local FM transmission service would  xnot be preferred over a third local FM transmission service at Frederiksted (population 1,064).  xIndeed, petitioner states that neither community has a large population and that an additional local  xyFM service at Frederiksted would be of decisional significance. Clearly, states petitioner, " x0*%%ZZ\"  xthe public would be better served by a third local FM transmission service at Frederiksted, rather  x than an eighth local FM service at Charlotte Amalie, a community already more than amply served.   x4. In its reply comments, Calypso opposes the Frederiksted and St. John proposals.  xCalypso reiterates its earlier comments that the Charlotte Amalie proposal deserves a dispositive  x preference under FM allotment priority four. In its motion to dismiss, Calypso requests the  X_- xdismissal of the St John proposal because, inter alia, the island, per se, does not qualify as a  xcognizable "community" for allotment purposes. Calypso also urges that the Commission grant  xthe proposed substitution of Channel 297B1 for Channel 246B at Charlotte Amalie, and deny petitioner's proposal to allot Channel 297B1 at Frederiksted.  X -  ]x5. Discussion. Conflicting proposals are comparatively considered under the guidelines  X - xset forth in Revision of FM Assignment Policies and Procedures, supra, However, because an  x<alternate Class B1 channel has been found for Frederiksted that resolves the conflict between the  xtwo remaining proposals, no comparative analysis is necessary. Therefore, we believe the public  xinterest would be served by allotting alternate Channel 269B1 at Frederiksted as the community's  Xy- xthird local FM transmission service.+yP yO- xԍWe note that the Commission may allot an alternate channel in order to resolve conflicts between proposals.  yO-See NPRM, Appendix 3(c); see also Pinewood, South Carolina, 5 FCC Rcd 7609 (1990).+ We also substitute Channel 297B1 for Channel 246B at  xCharlotte Amalie, as the community's sixth local commercial FM transmission service, and  xmodify Station WVNX(FM)'s construction permit accordingly. This channel substitution will  xLeliminate potential interference with Channel 247C authorized at Tortola, British Virgin Islands,  xand will enable Station WVNX((FM) to have, to the extent feasible, an equivalent class  xireplacement channel. An engineering analysis has determined that Channel 269B1 can be allotted  xto Frederiksted in compliance with the Commission's minimum distance separation requirements  X- xat city reference coordinates.  P yO-ԍThe coordinates for Channel 269B1 at Frederiksted are North Latitude 174248 and West Longitude 645300. Additionally, Channel 297B1 can be allotted to Charlotte Amalie  x/in compliance with the   Commission's minimum distance separation requirements with a site  xrestriction of 20.8 kilometers (12.9 miles) east at Station WVNX(FM)'s presently authorized  X-site. P yO- xJԍThe coordinates for Channel 297B1 at Charlotte Amalie are North Latitude 182030 and West Longitude 644359. ` `  X|- x   x6. Accordingly, pursuant to the authority found in Sections 4(i), 5(c)(1), 303(g) and (r)  xkand 307(b) of the Communications Act of 1934, as amended, and Sections 0.61, 0.204(b) and  x+0.283 of the Commission's Rules, IT IS ORDERED, That  x>effective April 14, 1997, the FM Table of Allotments, Section 73.202(b) of the Commission's"  0*%%ZZz" Rules, IS AMENDED, with respect to the communities listed below, to read as follows: x  X-  City hppChannel No.  X-  X-xFrederiksted, Virgin Islandshh@hpp253A, P yO- xKԍAs stated in the NPRM, Channel 253A was allotted to Frederiksted pursuant to MM Docket No. 91259, as  yO- xpotentially the community's second local FM transmission service. See 10 FCC Rcd 6673 (1995). A Petition for  yO- xjReconsideration was filed on July 24, 1995. On November 15, 1996, a Memorandum Opinion and Order was  yOu- xxadopted affirming the action taken in the Report and Order, which allotted Channel 253A at Frederiksted, Virgin  yO= -Islands. See 11 FCC Rcd 16392 (1996), rev. pending.  269B1, 278A, 0(#(#X X-x ` `   Xv-  xCharlotte Amalie, Virgin Islands@h*226A, 241B1, 250B, 271B, *275A, 282B, x` `  hh@h287B, 297B1   x7.#XP\  P6Q DXP# IT IS FURTHER ORDERED, That pursuant to Section 316(a) of the Communications  xAct of 1934, as amended, the construction permit of Calypso Communications for Station  x=WVNX(FM), Charlotte Amalie, Virgin Islands, IS MODIFIED, to specify operation on Channel 297B1 in lieu of Channel 246B, subject to the following conditions:  X -  x(a) Within 90 days of the effective date of this Order, the permittee shall submit to the  xCommission a minor change application for a construction permit (Form 301), specifying the new facility.    x(b) Upon grant of the construction permit, program tests may be conducted in accordance with Section 73.1620.  X4-   1x(c) Nothing contained herein shall be construed to authorize a change in transmitter  xlocation or to avoid the necessity of filing an environmental assessment pursuant to Section 1.1307 of the Commission's Rules.   x8. Operation with the facilities specified herein is subject to modification, suspension,  x[or termination without right to hearing, if found by the Commission to be necessary in order to  xconform to the ITU Radio Regulations governing FM Broadcasting and to bilateral and other multilateral agreements between the United States and other countries. x  XN-  x9. IT IS FURTHER ORDERED, That the Secretary shall send a copy of this Report and  X7-Order by Certified Mail, Return Receipt Requested, to the following: "x 0*%%ZZ"Ԍx` `  Calypso Communications x` `  4433 Wells Parkway x` `  University Park, Maryland 20782 x` `  (Permittee of Station WVNX(FM))   X` hp x (#%'0*,.8135@8: