Federal Communications Commission DA 96-1229
Before the
Federal Communications Commission 
Washington, D.C. 20554
In the Matter of )
Amendment of Section 73.202(b), ) MM Docket No. 95-44
Table of Allotments, ) RM-8602
FM Broadcast Stations. )
(Fair Bluff, North Carolina) )
MEMORANDUM OPINION AND ORDER
Adopted: July 26, 1996 Released: August 2, 1996 
By the Chief, Policy and Rules Division:
1. The Commission has before it the petition for reconsideration and motion for stay filed 
by Atlantic Broadcasting Co., Inc. ("Atlantic") of the August 11,1995, Report and Order ("Report 
and Order II"). 10 FCC Red 9255 (1995). The Report and Order denied Atlantic's request to 
delete vacant and then unapplied-for Channel 287A at Fair Bluff, North Carolina, or alternatively 
to impose a 12.7 .kilometer (7.9 mile) northeast site restriction on the allotment. 1 Atlantic also 
seeks reconsideration of the Order rescinding the July 26, 1995, Report and Order ("Report and 
Order I"X 10 FCC Red 8244 (1995) which denied petitioner's request to delete Channel 287A 
at Fair Bluff but granted that portion which requested the imposition of the site restriction.2 
Comments in opposition were filed by S.O.S. Broadcasting ("SOS"), to which Atlantic replied.
Background
2. Atlantic, licensee of Station WDAR-FM, Channel 288C3, Darlington, South Carolina, 
currently operates with a directional antenna to protect the Fair Bluff allotment. It requested 
either the deletion of Channel 287A at Fair Bluff or the imposition of a different site restriction 
on the allotment in order to accommodate Station WDAR-FM's pending application (BMPH- 
950224ID) to operate omnidirectionally. In response to the Notice of Proposed Rule Making, 
three parties filed comments expressing an intention to apply for the Fair Bluff allotment. One 
of these parties, S.O.S. Broadcasting ("SOS"), objected to the imposition of the requested site 
restriction, stating that the viability of the prospective station could be harmed because of the 
limited city-grade contour of a Class A station, while one of the remaining two parties stated that 
it had no objection to the new site restriction, and the last party was silent on this subject.
1 Public Notice of the filing of the petition for reconsideration was given on October 23, 1995, Report No. 2108.
2 The July 26, 1995, Report and Order. 10 FCC Red 8244 (1995), was rescinded by Order, released August 10, 
1995 (DA 95-1772). 12662
Federal Communications Commission DA 96-1229
3. The Commission assumes, at the allotment stage, that city-grade coverage can be 
provided by Class A stations where the transmitter is located no more than 16.2 kilometers (10.1 
miles) from the center of the community. In Report and Order I. we found that the objections 
of SOS were speculative because the proposed site restriction was within the distance limitations 
where such coverage is generally assumed, and SOS provided no technical showing to the 
contrary. Therefore, while Report and Order I retained Channel 287A at Fair Bluff to 
accommodate the expressions of interest submitted in response to the rule making, we did impose 
the site restriction to accommodate Atlantic's pending application.
4. Subsequently, however, on the Commission's own motion, this action was rescinded 
and Report and Order II was issued which denied both components of Atlantic's request. We 
declined to impose the requested additional site restriction based on the Commission's policy to 
allot channels with the least site restriction possible in order to provide prospective applicants 
with the greatest flexibility in selecting transmitter sites. In addition, Report and Order II restated 
the Commission's general policy of not changing reference coordinates for vacant allotments in 
the course of a rule making proceeding in the absence of other changes in the Table of 
Allotments or to entertain rule making petitions solely to change reference coordinates, citing 
Chatom. Alabama. 10 FCC Red 7725 (1995), and Grenada. Mississippi. 7 FCC Red 4838 (1992).
5. In its petition for reconsideration, Atlantic does not dispute that the Commission will 
not propose to change an allotment's reference coordinates unless a change in the Table of 
Allotments is also proposed. It does disagree that its proposal falls under this prohibition 
because it did request a change in the Table of Allotments, namely, the deletion of Channel 287A 
from Fair Bluff. Atlantic also contends that the retention of the channel at Fair Bluff in light of 
the expressions of interest received during the course of the proceeding should not have prevented 
the Commission from imposing the requested site restriction. To do so, it argues, "elevates form 
over substance to maintain a policy that serves no purpose and which does not serve the public 
interest." As to the cases cited by the Commission in support of the denial, Atlantic states that 
neither the Chatom. AL nor Grenada. MS cases supra, present similar fact patterns and are thus 
not controlling. It states that in Chatom. AL. the petitioner proposed no change to the Table of 
Allotments and at the time the petition was filed there was an application pending for use of the 
channel. Thus, imposing a site restriction would have meant that the pending applicant would 
have been required to amend its application. Here, Atlantic did propose a change in the Table 
of Allotments, and there were no applications on file for the Fair Bluff allotment. Thus no party 
could have been adversely affected by the imposition of the site restriction. In Grenada. MS. the 
issue of a new transmitter site restriction was raised for the first time as part of a petition for 
reconsideration as well as the introduction of a new community to the rule making. Thus, the 
proposal was found to be an untimely filed counterproposal and denied. In this proceeding, the 
issue of imposing a different site restriction on the Fair Bluff allotment was part of the original 
petition for rule making, the public was afforded ample opportunity to comment, and the 
Commission could carefully consider whether to impose the new site restriction.
6. Atlantic points out that the Commission, in Report and Order II. stated that the policy 
against changing an existing site restriction absent a corresponding change in the Table of
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Allotments is to avoid compromising the integrity of the Table. However, it argues that there 
would be no negative impact from the imposition of the new site restriction, submitting that the 
site restriction would not prevent the filing of an application for the Fair Bluff channel. In fact, 
Atlantic points out that not only did it identify a potential transmitter site but also presented 
evidence that the site would be available, would likely pass local zoning requirements and that 
the Federal Aviation Administration ("FAA") would likely also approve use of the site. Thus, 
it avers that the integrity of the Table would not be compromised by the imposition of the new 
site restriction. Atlantic argues that the Commission's concern that prospective applicants who 
may be in the process of obtaining a specific transmitter location for the vacant FM channel 
would be harmed is also misplaced. Again, it points out that at least one available and 
technically feasible site has been identified.
7. Atlantic contends that the Commission has riot explained how it could base its denial 
of the petition in Report and Order II on the same "unfounded" concerns that were dismissed in 
Report and Order I and thus submits that the decision in Report and Order II is arbitrary, 
capricious and at odds with the public interest. It claims that we failed to consider the real 
benefit to the public which would result from Station WDAR-FM operating as an omnidirectional 
station versus the theoretical burden of locating a transmitter within a restricted area. In addition, 
Atlantic points out that no consideration was given to the delay in new service at Fair Bluff 
which could result from the filing of multiple applications because of the freeze on processing 
mutually exclusive applications, pursuant to the decision in Bechtel v. FCC. 10 F.3rd 875 (D.C. 
Cir. 1993).
8. SOS opposes the imposition of the additional site restriction requested by Atlantic. 
It states that imposing the "substantial" site restriction would "severely" limit the choices of 
potential transmitter sites available to SOS and other interested applicants. It argues that although 
Atlantic has identified one possible transmitter site, no showing has been made that this site is 
the best site or that it would provide sufficiently good coverage of both the community and 
market to make the station viable. In addition, SOS contends that if any difficulties arise with 
the use of Atlantic's identified site after the reference coordinates are changed, there would be 
little recourse by the Fair Bluff applicants, thus possibly preventing the station from being 
activated. SOS also argues that imposing the additional site restriction contravenes the 
Commission's long-standing policy of allotting channels with the least site restriction possible, 
citing Vacaville. CA. 4 FCC Red 8315 (1989), recon. denied. 6 FCC Red 143 (1991).
9. SOS also submits that Atlantic's proposal goes directly against the Commission's 
policy of not changing reference coordinates for vacant allotments without making other changes 
in the Table of Allotments though a rule making proceeding. It states that once an expression 
of interest in the Fair Bluff allotment was received and the Commission determined that the 
channel would be retained, to then adopt the remainder of Atlantic's proposal would result in an 
Order only changing the allotment's reference coordinates, precisely the result the Commission 
seeks to avoid. SOS argues that if the Commission changes its policy and adept's Atlantic's 
proposal, it would be a simple matter for other stations to have a vacant channel's reference 
coordinates changed by merely proposing the channel's deletion. It believes that such a policy
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would create significant uncertainty for prospective applicants for such vacant channels who 
might be in the process of obtaining a site location, only to have a site restriction imposed which 
would alter the area available for use. Thus, it argues that the change in policy would indeed 
compromise the integrity of the Table.
10. Finally, SOS submits that Atlantic has not shown that the imposition of the 
additional site restriction is the only means for Station WDAR-FM to achieve omnidirectional 
operation or that the station's present coverage is inadequate. Further, although Atlantic states 
that the station would serve more people, it points out that no showing, or even an allegation, has 
been made that the people within the gain area are not already well served by other area stations. 
Therefore, it argues that Atlantic has not shown that the benefits accruing from the adoption of 
its proposal would outweigh the detriments.
11. In response, Atlantic again states that there would be no negative impact on 
prospective applicants from the imposition of the new site restriction because it has identified a 
possible transmitter site and submitted evidence that the site is available, would likely comply 
with local zoning requirements and that the site would obtain the approval of the FAA. Contrary 
to SOS' argument, Atlantic contends that it has shown the public interest benefits which would 
accrue from a grant of its request, that is, the ability of Station WDAR-FM to operate 
omnidirectionally and provide service to an additional 3,800 persons without any negative impact 
on the potential for new service at Fair Bluff. It submits that such a showing of public benefit 
should be "more than sufficient" to support the imposition of the requested site restriction. 
Further, it states that SOS has again failed to show how the imposition of the site restriction 
would have a negative impact on potential Fair Bluff applicants. In fact, Atlantic states that it 
has filed an application for the Fair Bluff channel, specifying the same transmitter site as 
proposed herein.
12. Finally, Atlantic again states that a grant of its proposal will not result in a change 
of the Commission's policy not to change reference coordinates for vacant allotments without 
making other changes to the Table of Allotments through a rule making proceeding. Atlantic 
reiterates that it did propose a change in the Table of Allotments, namely the deletion of Channel 
287A from Fair Bluff. The fact that the channel was retained at Fair Bluff because three parties 
submitted expressions of interest in the allotment should not result in the denial of the site 
restriction proposal. To do so, Atlantic again states, would elevate form over substance and 
maintain a policy that serves no purpose and disserves the public interest. Atlantic also disagrees 
that the adoption of its proposal would open a "Pandora's box," as suggested by SOS. It submits 
that the Commission has specifically stated its criteria for the imposition of a site restriction and 
that it has met this criteria, that is, the proposal requested a change in the Table of Allotments, 
it demonstrated that no adverse effect would result from the new site restriction, and the public 
interest would be served by permitting the enhanced operation on Station WDAR-FM.
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DISCUSSION
13. For the reasons set forth below, we find that the public interest would be served by 
granting Atlantic's petition for reconsideration and imposing the requested site restriction on 
Channel 287A at Fair Bluff.3 We find that this case does not fall under the Commission's policy 
of not changing the reference coordinates of an allotment absent other changes to the Table of 
Allotments. The essential purpose of that policy is to ensure that the public is given notice and 
an opportunity to comment on proposed changes. The ability of the Commission to provide such 
notice and an opportunity to participate is afforded where, as here, Atlantic proposed a change 
to the Table of Allotments, namely the deletion of Channel 287A at Fair Bluff, and the 
Commission so proposed. As an alternative to the deletion should a party express an intention 
to apply for the Fair Bluff channel, Atlantic also proposed the change in the channel's reference 
coordinates. Because a change in the Table was proposed, the Commission was able to give 
notice to all interested parties that a possible outcome could be a change in the reference 
coordinates, thus affording these parties an opportunity to present evidence of the impact that 
such a change would have on the activation of the channel. This situation is unlike Chatom. 
supra, where no change in the Table of Allotments was proposed, or Grenada, supra, where the 
proposed site restriction was raised for the first time on reconsideration. Where a party seeks 
nothing more than a change in an allotment's reference coordinates, it is not possible to seek such 
input from the public because no change in the rules is proposed. Therefore, the above policy 
refers only to those cases where nothing more than a change in an allotment's reference 
coordinates is requested.
14. SOS argues that allowing parties to optionally propose the deletion of a vacant and 
unapplied-for channel or a change in the reference coordinates if interest in use of the channel 
is expressed would create significant uncertainty for prospective applicants who may be in the 
process of obtaining a transmitter site, only to find that the site is unacceptable because of a 
change in the reference coordinates. As stated above, the Commission will not consider a request 
to only alter a channel's reference coordinates absent other proposed changes to the Table because 
there is no vehicle available which would afford the public notice of the proposed change and 
an opportunity to comment on the effect of such a change. We agree that to effect such a change 
without an opportunity for comment by potential applicants would indeed compromise the 
integrity of the Table. However, this is not the case where a Notice of Proposed Rule Making 
is issued affording all parties an opportunity to comment on either the deletion of a channel of 
a change in the channel's reference coordinates. We do not see where a prospective applicant 
is subject to any more uncertainty from the consideration of a petition that alternatively proposes 
either the deletion of a vacant channel or a change in the channel's reference coordinates than 
would arise from the filing of an application for a new station nearby or a transmitter site change 
for an existing station which protects the vacant channel's reference coordinates but impinges on 
the total land area available for a transmitter site. Further, we do not believe that the public
3 The coordinates for Channel 287A at Fair Bluff are 34-21-22 North Latitude and 78-54-36 West Longitude.
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Federal Communications Commission DA 96-1229
interest is served by stymying an existing station's efforts to improve its facilities because of the 
existence of a vacant and unapplied-for channel.
15. SOS also argues that imposing a greater site restriction on the Fair Bluff allotment 
contravenes the Commission's policy of allotting channels with the least site restriction possible, 
citing Vacaville. CA. supra. We find that SOS's reliance on the Vacaville. CA. decision is 
misplaced. That decision does state that if a proposed allotment requires a site restriction, the 
Commission will endeavor to impose that which is the least restrictive theoretical site from the 
intended city of license. This policy came into play as part of the reason for considering the 
allotment of Channel 254A in lieu of the requested Channel 23 8A at Middletown, CA in order 
to resolve a mutual exclusivity with another petition seeking the upgrading of the Vacaville 
station from Channel 237A to Channel 237B1. Therefore, we find that the Vacaville. CA decision 
also stands for the policy that the Commission will not deny another station's request to improve 
its facilities solely because of a parry's site preference.
16. The Commission is charged with the responsibility for allotting channels to the 
various communities in furtherance of the public interest, convenience and necessity. In so doing, 
the Commission attempts to provide as many communities as possible with a local transmission 
service. The Commission has also found that the public interest is served by enabling stations 
to use the scarce radio frequency in the most efficient manner in order to provide as many people 
as possible with service from as many stations as possible. While these two goals are generally 
compatible with each other, there are instances, such as this one, where competing interests must 
be balanced. Here, the balance is between the benefits accruing from providing prospective 
applicants with as much flexibility as possible in selecting a transmitter site for a vacant allotment 
at Fair Bluff and the benefit arising from an existing station being able to improve its facilities 
by operating omnidirectionally which is a new service being provided to 3,800 persons. In this 
case, we find that Atlantic has persuasively shown that the imposition of the additional site 
restriction on the Fair Bluff channel will not impede the activation of the channel. It has 
identified a potential transmitter site, submitted evidence that the site is available, and would also 
likely receive both local and governmental approval for use as a radio transmission tower. 
Further, two of the three participants in this proceeding have raised no objection to the imposition 
of the new site restriction while SOS has provided nothing more than speculation as the basis for 
its objections.4
17. Accordingly, IT IS ORDERED, That the Petition for Reconsideration filed by 
Atlantic Broadcasting Co., Inc. IS GRANTED. IT IS FURTHER ORDERED, That the Motion 
for Stay filed by Atlantic Broadcasting Co., Inc. IS DISMISSED AS MOOT.
18. IT IS FURTHER ORDERED, That this proceeding IS TERMINATED.
* Two timely applications for use of Channel 287A at Fair Bluff have been received and each has specified a 
transmitter site which complies with the mileage separation requirements vis-a-vis Atlantic's pending application to 
operate Station WDAR-FM omnidirectionally.
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19. For further information concerning this proceeding, contact Leslie K. Shapiro, Mass 
Media Bureau, (202) 418-2180.
FEDERAL COMMUNICATIONS COMMISSION
Douglas W. Webbink
Chief, Policy and Rules Division
Mass Media Bureau
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