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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. 96-94 Table of Allotments, ) RM-8790 FM Broadcast Stations. ) (Eufaula, Wagoner, Warner, and Sand) Springs, Oklahoma) ) REPORT AND ORDER (Proceeding Terminated) Adopted: March 26, 1997 Released: April 4, 1997 By the Chief, Allocations Branch: 1. At the request of Tri-Mac Broadcasting ("petitioner"), the Commission has before it the Notice of Proposed Rule Making, 11 FCC Rcd 4735 (1996), proposing the reallotment of Channel 271A from Wagoner to Warner, Oklahoma, and the modification of Station KRQZ-FM's license to specify Warner as its community of license. To accommodate the allotment at Warner, we also proposed the substitution of Channel 273C3 for Channel 272A at Eufaula, Oklahoma. Petitioner filed comments and reply comments. In addition, a counterproposal was filed by Music Sound Radio, Inc. ("Music Sound"), licensee of Station KTFX(FM), Sand Springs, Oklahoma. 2. Petitioner states that its proposal complies with Section 1.420(i) of the Commission's Rules and would serve the public interest by providing Warner with its first local aural transmission service and enable Station KRQZ-FM to improve the station's facilities to those of a full Class A. Because Station KRQZ-FM proposes to relocate its transmitter, petitioner has provided a gain and loss study showing that the reallotment of Channel 271A to Warner will enable the station to provide service to 32,572 persons within a 2,296 square kilometer (886 square mile) area. Within this gain area, petitioner states that Station KRQZ-FM will provide a seventh service to 80 people, a ninth service to 4,591 persons and a tenth service to 7,114 persons. The loss area occasioned by the reallotment, according to the petitioner, amounts to 28,550 persons within a 1,473 square kilometer (568 square mile) area. While recognizing that the Commission is concerned with the loss of an existing service which the public has a legitimate expectation to continue receiving, it states that this loss is mitigated by the fact that the entire population within the loss area will continue to receive at least six fulltime aural services and that 91.6% of the people residing within the loss area with receive thirteen or more fulltime stations. Petitioner also points out that Station KRQZ-FM is unable to increase power to a full 6 kW if it remains licensed to Wagoner and that the channel is also the only commercial channel which can be allotted to Warner. 3. Petitioner requests that the allotment be made at the coordinates requested in the petition (35-33-27; 95-14-41) and not those set forth in the Notice. Because Station KRQZ-FM is an existing station, it contends that it is appropriate for the Commission to use the coordinates suggested by the licensee for the new allotment. Generally, the Commission does propose the allotment of channels which are to be used by existing stations at the coordinates specified in the petition for rule making. In this instance, at the time the petition was filed, the allotment of Channel 271A at Warner met the mileage separation requirements to all existing stations and outstanding construction permits. However, it was short-spaced to the reference coordinates for Station KEOK, Channel 269C3, Tahlequah, Oklahoma. Therefore, rather than return the petition as unacceptable because it was contingent upon Station KEOK being licensed at the transmitter site set forth in the outstanding construction permit, a non-conflicting transmitter site was proposed for the allotment at Warner. Now that Station KEOK has been licensed at the site specified in the construction permit (BLH- 961003KA), we will consider the allotment of Channel 271A at Warner at the petitioner's preferred transmitter site. Technical Summary 4. Channel 271A can be allotted to Warner in compliance with the Commission's minimum distance separation requirements with a site restriction of 1.2 kilometers (0.7 miles) northwest to avoid a short-spacing to Station KENA-FM, Channel 271C3, Mena, Arkansas, and to accommodate petitioner's desired transmitter site. 5. Based upon the information presented, we find that the reallotment of Channel 271A to Warner (population 1,462 persons) will result in a preferential arrangements of allotments since it will provide the community with its first local aural transmission service without depriving Wagoner of its sole local aural transmission service. In addition, it will enable Station KRQZ-FM to improve its facilities to those of a full 6 kW Class A station. Therefore, in accordance with the provisions of Section 1.420(i), we will modify the license of Station KRQZ-FM to specify Warner as its community of license. We need not order Station KCES, Eufaula, to specify operation on Channel 273C3 in lieu of Channel 272A since that action has already been authorized by the grant of the station's one-step application and the Table of Allotments has been amended to reflect the change. See Report and Order, 11 FCC Rcd 10449 (1996). 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 May 19, 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. Wagoner, Oklahoma --- Warner, Oklahoma 271A 7. IT IS FURTHER ORDERED, pursuant to Section 316(a) of the Communications Act of 1934, as amended, that the license of K95.5, Inc. for Station KRQZ-FM, IS MODIFIED to specify Warner, Oklahoma, in lieu of Wagoner, Oklahoma, 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). (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. Pursuant to Commission Rule Section 1.1104(1)(k) and (2)(k), any party seeking a change of community of license of an FM or television allotment or an upgrade of an existing FM allotment, if the request is granted, must submit a rule making fee when filing its application to implement the change in community of license and/or upgrade. As a result of this proceeding, K95.5, Inc. licensee of Station KRQZ-FM, is required to submit a rule making fee in addition to the fee required for the applications to effect the change in community of license and/or upgrade. 9. IT IS FURTHER ORDERED, That the counterproposal filed by Music Sound Radio, Inc., to substitute Channel 272C2 for Channel 272A at Sand Springs, Oklahoma, and modify the license of Station KTFX(FM) accordingly, IS DISMISSED. 10. IT IS FURTHER ORDERED, That this proceeding IS TERMINATED. 11. 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