FEDERAL COMMUNICATIONS COMMISSION
445 TWELFTH STREET, SW
WASHINGTON, DC 20554
MEDIA BUREAU
AUDIO DIVISION
APPLICATION STATUE: (202) 418-2730
HOME PAGE: www.tccgov/mb/ratho/audio-metha

APR29 2016

PROCESSING ENGINEER: lung Bu
TELEPHONE: (202) 418-2778
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Jeffrey D. Southmayd, Esq.
Southmayd & Mi, ler
4 Ocean Ridge Boulevard South
Palm Coast, FL 32137
John C. Trent, Esq.
Putbrese Hunsaker & Trent, P. C.
200 S. Church Street
Woodstock, VA 22664
In re: WHBJ(FM), Barnwell, SC
Facility ID No.: 184539
Barnwell Community Radio
BLED-2013 103 1AAM
BNPED-201 0021 9ABC
Request for Deletion of Special Operating
Condition No. 2
WBAW-FM, Pembroke, GA
Facility ID No. 54879
Bullie Broadcasting Corporation
BLH-1991 121 1KF
BPH-20130412AAF
Dear Counsel:
Before the Audio Division are (1) the October 31, 2013 application BLED-21031031AAM filed by
Barnwell Community Radio ("Barnwell") for license to cover Construction Permit BNPED20100219ABC; and (2) the request for deletion of Special Operating Condition No. 2 from
Construction Permit BNPED-20100219ABC. For the reasons set forth below, we delete Special
Operating Condition No. 2 from Barnwell's Construction Permit BNPED-20100219ABC, grant
Barnwell's licens application, and cancel Bullie Broadcasting Corporation's ("Bullie") implied
STA.
Background: In October 2001, the Audio Division issued a Report and Order, modifying the license
of Station WBAW-FM to specify operation on Channel 257C1 at Pembroke, GA in lieu of Channel

256C3 at Barnwell, SC.' Bullie obtained a construction permit ("WBAW Permit No. 1") for
Channel 257C1 at Pembroke, GA on January 12, 2004 ("Pembroke Facilities").2 This permit expired
on January 12, 2007. Bullie obtained a second construction permit ("WBAW Permit No. 2) for
identical Pembrok's Facilities on April 12, 2007. Bullie requested cancellation of this permit on
November 4, 2008 and obtained a third construction permit ("WBAW Permit No. 3) for Pembroke
Facilities on April 16, 2010. In February 2010, Barnwell filed a construction permit for a new
station in Barnweli, SC.5 The staff granted this application and issued a construction permit ("WHBJ
Construction Permit") on April 20, 2012. The WHBJ Construction Permit included Special
Operating Condition No. 2 which prohibited Barnwell from implementing operation until Bullie
initiates broadcast. on WBAW with Pembroke Facilities. On October 31, 2013, Barnwell filed a
license to cover th WHBJ Construction Permit. The license application included a request for
deletion of Speciai Operating Condition No. 2 and a request to commence Program Test Authority.6
Bullie requested cancellation of WBAW Permit No. 3 on April 12, 2013 and obtained a fourth
construction permit. ("WBAW Permit No. 4) for Pembroke Facilities on December 12, 2013.
WBAW Permit No. 4 expires on December 12, 2016.
Discussion: In 1999, the Commission clarified the protection rights of stations which modify their
assignments. It stated that "[a]fter the allotment rule making has become final, the affected station has
at best an 'implied STA' to remain on its old frequency until it is ready for operation on its new
frequency."8 STAs are not within the scope of assignments and allotments which receive protection
under the FM non.: reserved band technical rules.9 That is, stations operating with STAs - express or
implied - are entitied to no protection from operating stations, construction permits, pending
applications or subsequently filed applications. Thus, the Audio Division has noted that a station
operating with an rnplied STA "would be subject to established cut-off and application conflicts
processing policie with regard to any facility application or rulemaking proposal filed on or after the
effective date of the order."1°
'Barnwell, South Carolina, and Pembroke, Douglas, Georgia, etc., Report and Order, 16 FCC Rcd 17860 (2001)
("R&O"). See also Memorandum Opinion and Order, 17 FCC Rcd 18956 (2002), and Memorandum Opinion and
Order, 18 FCC Rcd 15152 (2003).
2 File No. BPH-2003)4 1 5ABM
File No. BPH-200701 1AAO
File No. BPH-2008 1 1O4ABL
File No. BNPED-2')100219ABC

6 Program Test Authority was granted on December 20, 2013.
File No. BPH-201)412AAF
8 1998 Biennial Regilatory Review - Streamlining of Mass Media Applications, Rules, and Processes,
Memorandum Opinion and Order, 14 FCC Rcd. 17525, 17540 n.55 (1999) (subsequent history omitted) (the
"Streamlining Order').
See 47 C,F.R. § 73.207, 73.213 and 73.215.
Gunnison, Crawford, and Olathe, Breckenridge, Eagle, Fort Morgan, Greenwood Village, Loveland and
Strasburg, CO, and Laramie, WY, Memorandum Opinion and Order, 20 FCC Rcd 5908, 5913 (MB 2005).

	

WBAW Permit No. 1, the first permit authorizing construction of Pembroke Facilities, was issued over
12 years ago. Thur, Bullie has had sufficient time to implement the channel change in Pembroke, GA.
Furthermore, Bullie was fully aware that the Station's continued operations in Barnwell received no
protection under th Commission's technical rules. It also should have been aware that in April 2012,
the Commission had granted the WHBJ Construction Permit and that this permit was in conflict with
continued operations at Barnwell." In this situation, we conclude that deletion of Special Operating
Condition No. 2 is in the public interest. Although initiation of operations authorized by the WHBJ
Construction Permit will result in interference to WBAW, WBAW lost all protection rights for the
formerly licensed flarnwell station in early 2003 when the R&O became a final order. Accordingly,
deletion Of Special Operating Condition No. 2 does not constitute a modification of the WBAW license
subject to the protest procedures set forth in Section 316(a) of the Communications Act of 1934, as
amended (the "Act').'2
Furthermore, in orier to eliminate the possibility for cross interference, we will cancel Bullie's implied
STA, an action that requires WBAW to cease operations with its Barnwell facility.'3 We find that
Bullie has had sufficient time to initiate operations with Pembroke Facilities and we direct Bullie to
expeditiously comnlete construction of the facilities authorized in WBAW Permit No. 4. We remind
Bullie that the Commission has stated that "implicit in the filing of any facility application is that the
applicant stands 'ready, willing, and able' to construct and operate as proposed."4 Neither a difficult
economic environment, nor financial hardship, nor a change in business plans regarding the build-out
of the Pembroke facility, relieves Bullie from its obligation to complete construction in a timely
fashion. Bullie accepted the construction and licensing obligations arising from the finality of the
R&O.
The Commission delegated authority to the staff to cancel implied STAs for any modifications made in
the course of "allotment rule makings."5 Moreover, pursuant to Section 73.1635(b) of the
Commission's Rules, the staff may modify or cancel a technical STA without prior notice or right to
hearing.'6 The staff has cancelled such STAs in the past when this action is necessary to accommodate
the operation of ar FM station pursuant to its authorization.'7 At this point, Bullie' s continuing
construction delays are thwarting Barnwell's efforts to implement a new facility in Barnwell, SC, while
File No. BNPED-0 10021 9ABC. This permit conditioned WHBJ's program test authority on the initiation of
service by WBAW ir Pembroke, GA on Channel 257C1.
12 See 47 U.S.C. § 3:6(a) (Commission may not modify the license of a station without providing licensee written
notice and a reasonable opportunity to protest).
13 We note that WBLW has been silent the majority of the last four years (operating for a total of 12 days since
November 2013) and silent for prolonged intervals since 2008. It recently went silent again on April 27, 2016. Any
future operation of Station WBAW must occur with the Pembroke Facilities.
14

Communications Corp., 18 FCC Rcd 9272, 9279 (2003).

15 Streamlining Ordr, 14 FCC Rcd at 17540 n.55.
' See 47 C.F.R. § 7 .. 163 5(b).
Corona de Tucson, Sierra Vista, Tanque Verde and Vail, AZ, and Animas, Lordsburg and Virden, NM,
Memorandum Opinion and Order, 23 FCC Rcd 4792, 4796 (MB 2008).

raising serious questions as to whether it is acting in good faith to initiate service at Pembroke, GA.
Thus, continued warehousing of this spectrum by Bullie in the face of Barnwell's long-standing
competing demand is plainly contrary to the public interest.
Conclusion. Accordingly, IT IS ORDERED, that the request to delete Special Operating Condition
No. 2 in the outsta'iding WHBJ construction permit (File No. BNPED-20100219ABC) IS
GRANTED. IT IS FURTHER ORDERED, that WHBJ's license application (BLED20131031AAM) IS HEREBY GRANTED. Finally, IT IS FURTHER ORDERED, that WBAW's
implied STA on Channel 256C3 in Barnwell, SC IS HEREBY CANCELLED.

Sincerely,

Rodolfo F. Bonacci
Assistant Chief
Audio Division
Media Bureau