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Milford, Utah channel change, KCLS and KPLD upgrades and moves

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Released: December 9, 2011

Federal Communications Commission

DA 11-2008

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Amendment of Section 73.202(b),
)
MB Docket No. 10-64
Table of Allotments,
)
RM-11598
FM Broadcast Stations.
)
(Milford, Utah)
)
)

Station KCLS(FM), Pioche, Nevada
)
BPH-20091016AEO
)
Station KPLD(FM), Kanab, Utah
)
BPH-20101112AJY

REPORT AND ORDER

(Proceeding Terminated)

Adopted: December 7, 2011

Released: December 9, 2011

By the Assistant Chief, Audio Division, Media Bureau:
1. The Audio Division has before it a Notice of Proposed Rule Making (the “Notice”)1 issued at
the request of Canyon Media Group, LLC (“Canyon”), and the captioned Canyon minor change
applications (the “Canyon Applications”). For the reasons explained below, we grant the Canyon
Applications and the rule making proposal set forth in the Notice.
2.

Background.

On October 16, 2009, Canyon and Lincoln County School District (“LCSD”)
initiated a “hybrid” application/rule making proceeding (“Initial Hybrid Proceeding”). The filings
included a Canyon application to upgrade and change the community of license for Station KCLS(FM)
(the “KCLS(FM) Application”) from Channel 269C2, Pioche, Nevada, to Channel 268C1, Leeds, Utah.2
LCSD proposed to upgrade and change the community of license of noncommercial educational Station
KLYX(FM) (the “KLYX(FM) Application”) from Channel 209C3, Panaca, Nevada, to Channel 209C2,
Pioche, Nevada.3 Canyon petitioned and the Notice proposed the substitution of Channel 288C for vacant
Channel 285C at Milford, Utah.4


1 Milford, Utah, Notice of Proposed Rule Making, 25 FCC Rcd 2768 (MB 2010).
2 See File No. BPH-20091016AEO. Canyon subsequently amended the technical proposal on two occasions. The
KCLS(FM) Application, as amended (the “KCLS(FM) Amended Application”), specifies a Channel 268C0 facility
at a different transmitter site.
3 See File No. BMPED-20091016AEN. As described in more detail below, in November 2010, the KLYX(FM)
Application was severed from the Initial Hybrid Proceeding at LCSD’s request and granted independently of the
remaining parts of the Initial Hybrid Proceeding (the “Modified Hybrid Proceeding”).
4 Canyon also requested that the staff issue an order to show cause to modify the license of Station KPLD(FM),
Kanab, Utah, from Channel 266C to Channel 286C. Canyon subsequently acquired KPLD(FM) and filed the
captioned application to effect this channel substitution. See File No. BPH-20101112AJY.

Federal Communications Commission

DA 11-2008

3. Canyon filed comments in support of the proposed channel substitution at Milford, Utah. No
other comments were received.
4.

Discussion.

The allotment change proposed in the Notice would facilitate implementation of
the Canyon Applications. In this regard, we must consider whether grant of the KCLS(FM) Amended
Application complies with our Section 307(b) processing policies. In the Second Report and Order in the
Rural Radio proceeding, the Commission modified these policies, establishing a rebuttable presumption
that a proposal that would or could serve 50 percent of an urbanized area should be treated as serving
such area for purposes of applying our FM allotment priorities.5 The KCLS(FM) Amended Application
would provide 70 dBu service to 100 percent of the St. George, Utah, Urbanized Area. The KCLS(FM)
Application was filed prior to the effective date of the revised Section 307(b) procedures. It is not entitled
to processing under the former processing policy, however, because no construction permit has been
granted or license modified in the Modified Hybrid Proceeding.6
5. We find that the facts and equities of this case are sufficiently similar to those which qualify
for processing under the former standards and that a waiver on this basis is warranted. As previously
noted, the Initial Hybrid Proceeding included the KLYX(FM) Application, which was designed to
provide “backfill” service to Pioche to offset the loss of the community’s sole local service resulting from
the relocation of Station KCLS(FM) to Leeds, Utah. The KLYX Application was not technically related
to any of the other Initial Hybrid Proceeding proposals. Several other issues, including the need to obtain
Mexican concurrence in a related licensing proceeding,7 prevented action on the Initial Hybrid Proceeding
during most of 2010. Accordingly, in November 2010, when faced with an expiring construction permit,
LCSD requested that the Commission sever the KLYX(FM) Application from the Initial Hybrid
Proceeding and process it “on its own merits.”8 The staff promptly granted the KLYX(FM) Application
and a covering license application was filed on December 16, 2010, one day prior to the expiration of the
KLYX(FM) construction permit. Canyon represents that it provided both significant funding and
resources during difficult winter weather conditions to facilitate the timely construction of KLYX(FM).
6. Although the granted KLYX(FM) construction permit and license are not part of the Modified
Hybrid Proceeding, these licensing actions were indisputably based on Canyon’s and LCSD’s recognition
that it was necessary to include a Pioche “backfill” as part of their proposed coordinated facility changes.
Faced with a processing policy under which all coordinated filings are disposed of simultaneously,9
Canyon and LCSD had no option other than to sever the KLYX(FM) Application from the Initial Hybrid
Proceeding. Moreover, the grant of the KCLS(FM) Amended Application would almost certainly not be


5 See Policies to Promote Rural Radio Service and to Streamline Allotment and Assignment Policies, Second Report
and Order, First Order on Reconsideration, and Second Further Notice of Proposed Rule Making, 25 FCC Rcd 2556,
2572, ¶ 30 (“Rural Radio”).
6 Id. at 2576, ¶ 30; and at 2578, ¶ 39.
7 On October 16, 2009, the same date that Canyon filed the KCLS(FM) Application, Cochise Media Licenses, LLC,
proposed a change of community for Channel 268C3, Peach Springs, Arizona, to Channel 267C2, Oatman, Arizona.
However, Channel 268C3 at Peach Springs, mutually exclusive with the KCLS(FM) Amended Application, needed
to be protected until the Mexican government concurred in the move to Oatman. See File No. BNPH-
20091016ADO; and Peach Springs, Arizona, Report and Order, 25 FCC Rcd 16104 (MB 2010).
8 See File No. BMPED-20091016AEN, Amendment of October 25, 2010, at Exhibit 1.
9 See 47 C.F.R. § 73.3517(e). See also 1998 Biennial Regulatory Review – Streamlining of Radio Technical Rules in
Parts 73 and 74 of the Commission’s Rules,
First Report and Order, 14 FCC Rcd 5272, 5282, ¶ 14 (1999)
(“Applications will be processed together and, if grantable, will be granted simultaneously”).
2

Federal Communications Commission

DA 11-2008

possible without the timely construction and continued operations of KLYX(FM). On these narrow and
unusual facts, we find that a waiver of the revised processing rules is warranted. Accordingly, we will
treat the KCLS Amended Application as a proposal to provide a first local service to Leeds, Utah. Grant
of the KCLS(FM) Application would result in a preferential arrangement of allotments.10 Pioche,
Nevada, would continue to be served by FM Station KLYX, Channel 209C2. We therefore find that the
proposal contained in the Notice, in conjunction with the proposals set forth in the Canyon Applications,
would serve the public interest.
7.

Conclusion.

Accordingly, pursuant to the authority found in 47 U.S.C. Sections 4(i), 5(c)(1),
303 (g) and (r) and 307(b) and 47 C.F.R. Sections 0.61, 0.204(b) and 0.283, IT IS ORDERED That,
effective January 23, 2012, the FM Table of Allotments, 47 C.F.R. Section 73.202(b), IS AMENDED, with
respect to the community listed below, to read as follows:
Community
Channel
Milford, Utah
288C
Reference Coordinates: 38-31-11 NL and 113-17-07 WL, at a site 27.6 km (17.2 miles) northwest of
Milford.
8. IT IS FURTHER ORDERED, That the Form 301 minor change application of Canyon Media
Group, LLC, for Station KPLD(FM), Kanab, Utah, to operate on FM Channel 286C rather than FM
Channel 266C, File No. BPH-20101112AJY, IS GRANTED.
9. IT IS FURTHER ORDERED, That the Form 301 minor change application of Canyon Media
Group, LLC, for Station KCLS(FM), to upgrade and change the station’s community of license from
Channel 269C2, Pioche, Nevada, to Channel 268C0, Leeds, Utah, File No. BPH-20091016AEO, IS
GRANTED.
10. A copy of this Report and Order will be sent by Certified Mail, Return Receipt Requested to
Brendan Holland, Esq, Davis Wright Tremaine LLP, 1919 Pennsylvania Aveue, N.W., Suite 200,
Washington, DC 20006 (Counsel for Canyon Media Group, LLC).
11. IT IS FURTHER ORDERED, That this proceeding IS TERMINATED.
12. The Commission will send a copy of this Report and Order in a report to be sent to Congress
and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801
(a)(1)(A).
13. A filing window period for Channel 288C for Milford, Utah, will not be opened at this time.
Instead, the issue of opening this allotment for auction will be addressed by the Commission in a subsequent
Order.


10 The FM allotment priorities are: (1) first fulltime aural service; (2) second fulltime aural service; (3) first local
service; and (4) other public interest matters. Co-equal weight is given to priorities (2) and (3). See Revision of FM
Assignment Policies and Procedures
, Second Report and Order, 90 FCC Rcd 88 (1982), recon. denied,
Memorandum Opinion and Order, 56 RR2d 448 (1983).
3

Federal Communications Commission

DA 11-2008

14. For further information concerning this proceeding, contact Deborah A. Dupont, Media
Bureau (202) 418-7072.
FEDERAL COMMUNICATIONS COMMISSION
Nazifa Sawez

Assistant Chief
Audio Division
Media Bureau
4

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