*Pages 1--2 from Microsoft Word - 5076.doc* Federal Communications Commission FCC 00- 409 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of ) ) Amendment of Section 73.202( b), ) MM Docket No. 91- 137 Table of Allotments, ) RM- 7494 FM Broadcast Stations. ) (Salt ville, Virginia and ) Jefferson, North Carolina) ) MEMORANDUM OPINION AND ORDER (Proceeding Terminated) Adopted: November 17, 2000 Released: November 28, 2000 By the Commission: 1. The Commission has before it an application for review of the Memorandum Opinion and Order (“ MO& O”) in the above- captioned proceeding, 11 FCC Rcd 5234 (Policy and Rules Div. 1996), filed by Smith Communications, Inc. (" Smith"), licensee of Station WZJS( FM), Channel 264A (100.7 MHz), Banner Elk, North Carolina. An opposition was filed by 106.1, Inc., permittee on FM Channel 291A (106.1 MHz), Saltville, Virginia. Smith filed a reply to the opposit ion. 2. In the Report and Order in this proceeding, 10 FCC Rcd 7578 (Allocations Br. 1995), the staff granted the rulemaking petition of 106.1, Inc., to upgrade its construction permit for Channel 291A at Saltville to Channel 291C3, to reallot Channel 291C3 from Saltville to Jefferson, North Carolina, as a first local transmission service, and to change its community of license accordingly. The Report and Order also denied objections filed by Smith and several other parties. Thereafter, Smith filed a petition for reconsideration that was denied in the above referenced MO& O. 3. In its application for review, Smith seeks to raise four issues. First, Smith contends that the staff erred in finding that the holder of a construction permit for an unbuilt station may reallot its channel to another community under the Commission’s change of community rule, 47 C. F. R. Section 1.420( i). Second, Smith argues that the removal of an unbuilt station from one community to a new community should be considered a disqualifying loss of service to the old community, regardless of the unbuilt status of that station. Third, Smith questions whether the staff erred in adhering to the allotment priorities and to Section 307( b), in denigration of the premises of the generic rulemaking proceeding that established the change of community rule. That proceeding, Smith alleges, focuses on the accommodation of listeners newly migrated to other communities. Finally, Smith challenges the staff's rejection of Smith's predictions of coverage for Channel 291C3 at Jefferson based on the use of an alternative propagation methodology. 1 Federal Communications Commission FCC 00- 409 2 4. Each of Smith’s contentions were fully considered and rejected in the MO& O in this proceeding. We agree with the staff’s resolution of these issues and see no reason to depart from the reasoning set forth in the MO& O. However, because there are now actual facilit ies associat ed with 101.6, Inc. ’s proposal, we have verified the staff’s initial conclusion as to the population to be served by the reallottted station. Throughout this proceeding, Smith has claimed that the irregular terrain around Jefferson would render the population coverage within the 1.0 mV/ m contour of 106.1 Inc. ’s station so small that it does not justify the upgrade and reallotment to Jefferson. 1 In the MO& O, the staff disagreed with this allegation. Utilizing the Commission’s normal propagation methodology, the F (50,50) curves, at the allotment reference coordinates for Channel 291C3 at Jefferson, the staff found that the station would provide service to more than 100,000 persons within its 1.0 mV/ m contour. Since the release of the MO& O, 106.1 Inc. ’s application for construction permit and modification thereof has been granted at a specific transmitter site that is different from the theoretical reference coordinates for the channel. We have reexamined the coverage of the station from this new site using the actual facility levels granted, i. e., an ERP of 10. 5 kW and an HAAT of 155 meters, and the Commission’s F (50.50) curves as influenced by the terrain, and have found that the station will provide service to 151,662 persons within its 1.0 mV/ m contour. This figure reinforces the staff’s conclusion that there will be sufficient coverage by the st at ion in spit e of the allegat ions of terrain obst ruct ions by Smith. 5. Accordingly, IT IS ORDERED That, pursuant to 47 C. F. R.§ 1.115( g), the Application for Review filed by Smith Communicat ions, Inc. IS DENIED. FEDERAL COMMUNICATIONS COMMISSION Magalie Roman Salas Secretary 1 Specifically, Smith has alleged that 106.1 Inc. ’s proposed station on Channel 291C3 at Jefferson would serve only 19,827 persons within its 1.0 mV/ m contour, whereas as a 3 kW station on Channel 291A at Saltville, it would have served 26,574 persons. 2