**DA 06-1174**

In Reply Refer to:

1800B3-MFW

Released: June 1, 2006

Mr. Hal Rose, Senior Vice-President

First Broadcasting Capital Partners, L.L.C.

10^th^ Floor

750 North St. Paul

Dallas, TX 75201

In re: First Broadcasting Capital Partners, L.L.C.

WOXY(FM), Mason, OH

Facility ID No. 3653

File No. BPH-20050928AQQ

Dear Mr. Rose:

This letter refers to the captioned application (the "Application")
filed by First Broadcasting Capital Partners, L.L.C. ("First
Broadcasting") for minor modification of the facilities of station
WOXY(FM), Mason, Ohio. The Application was filed to implement a rule
making reallotting WOXY(FM) from Oxford, Ohio, to Mason, Ohio.[^1] On
October 19, 2005, Mr. Bradley J. Beer ("Beer") filed an informal
objection to the proposal.[^2] For the reasons set forth below, we deny
Beer's objection and grant the Application.

*Background*. In 2004, the then licensee of WOXY(FM), Balogh
Broadcasting Company, Inc. ("Balogh"),[^3] along with several other
licensees, filed a Joint Petition for Rule Making to amend the FM Table
of Allotments[^4] by, *inter alia*, reallotting Channel 249A from Oxford
to Mason, Ohio as the latter community's first local service and
modifying the station WOXY(FM) license accordingly. The Commission
issued a *Notice of Proposed Rule Making*[^5] in November of 2004. Beer
timely filed comments opposing the WOXY(FM) reallotment on December 29,
2004, claiming that the WOXY(FM) proposal was a "migration" of WOXY(FM)
from a rural area to the suburbs of Cincinnati, Ohio. Beer argued that
"Mason, Ohio was selected as the closest community to Cincinnati where
the \[WOXY(FM)\] signal could go yet meet spacing requirements with
other broadcasters."[^6] He also asserted that the Oxford business
community would be deprived of its only local radio advertising outlet
by the removal of commercial station WOXY(FM). Beer noted that the other
commercial stations providing service to Oxford were licensed to much
larger communities and would not likely be cost-effective alternatives
for advertisers in Oxford.

The Bureau rejected Beer's contentions, reallotted Channel 249A from
Oxford to Mason, and modified WOXY(FM)'s authorization accordingly. The
Bureau found that the reallotment to Mason resulted in a preferential
arrangement of allotments because it would establish a first local
service at Mason, while Oxford would retain noncommercial educational
station WMUB(FM). Under well settled policies, the establishment of a
first local service at Mason, priority (3), is preferred to the
retention of a second local service, a priority (4) consideration.[^7]
Additionally, the Joint Petitioners submitted a *Tuck* showing[^8]
demonstrating that Mason is sufficiently independent of the Cincinnati
Urbanized Area to warrant a first local service preference. First
Broadcasting subsequently filed the Application to implement the rule
making.

In his objection to the Application, Beer reargues his opposition to the
reallotment of WOXY(FM)'s frequency to Mason and challenges First
Broadcasting's "intent" to serve residents of Mason. He contends that
First Broadcasting "succeeded in changing the Table of Allotments to
move \[WOXY(FM)\] for the benefit of the 'underserved' citizens of
Mason, Ohio."[^9] Additionally, Beer charges that First Broadcasting
chose the small community of Mason[^10] -- as opposed to a larger, more
economically viable community -- solely to facilitate the adoption of
the *Mason Report and Order*. Finally, Beer observes that First
Broadcasting proposes to locate the WOXY(FM) transmitter to maximize
service to the urbanized area, a site location which would provide
minimum city-grade signal coverage to Mason.[^11] He therefore requests
that the Application be denied.

*Discussion*. Beer improperly seeks to relitigate the Mason reallotment
in this application proceeding. The *Mason Report and Order* is final,
and issues regarding the propriety of reallotting WOXY(FM) from Oxford
to Mason will not be collaterally examined by the staff here.
Additionally, to the extent Beer challenges the Application's compliance
with the Commission's core technical rules, we reject those contentions.
The Application complies with Section 73.315(a) of the Commission's
Rules.[^12]

Finally, to the extent Beer challenges First Broadcasting's intention to
serve the residents of Mason, Ohio, the Commission does not presume that
applicants proposing suburbs of large cities as their communities of
license do not intend to serve the needs and interests of those
communities.[^13] Recognizing that an applicant might have an incentive
to seek a frequency in a smaller, under-served community of license that
is geographically proximate to another community with a larger
population and economic base with the goal of serving the larger
community, the Commission initially adopted several policies to
determine which community an applicant actually intended to serve.[^14]
In *Suburban Community* in 1983, however, the Commission abandoned these
tests of an applicant\'s intent on the grounds that they inhibited entry
into unserved communities and frustrated competition in metropolitan
communities. The Commission adopted, instead, a presumption that an
applicant intends to serve its designated community of license so long
as (1) the applicant provides a city-grade service to the designated
community of license; (2) the applicant proposes programming that will
serve the designated community of license; and (3) the applicant\'s main
studio location complies with Section 73.1125 of the Commission's
rules.[^15] In *Suburban Community*, the Commission concluded that \"the
risk of a renewal challenge for failure actually to serve the designated
community constitutes a more effective regulatory tool than utilization
in advance of guidelines and factors that are inexact in divining
intent.\"[^16] Thus, the Commission decided that if an application
satisfies the three objective factors adopted in *Suburban Community*,
it is preferable to provide the applicant an \"opportunity to
demonstrate its good faith\" rather than try to determine how the
station will be operated in the future.[^17] No further action on this
allegation is warranted at this time.

*Conclusion/Actions*. Accordingly, IT IS ORDERED, that for the reasons
set forth above, the October 27, 2005 informal objection filed by
Bradley J. Beer IS DENIED, and the Application (File No.
BPH-20050928AQQ) for minor modification of the facilities of station
WOXY(FM), Mason, Ohio, IS GRANTED.

Sincerely,

Peter H. Doyle

Chief, Audio Division

Media Bureau

cc: Bradley J. Beer

Mark N. Lipp, Esq.

[^1]: *Georgetown, Mason, Oxford, and West Union, Ohio, and Salt Lick,
    Kentucky*, Report and Order, 20 FCC Rcd 12976 (MB 2005) (the
    "*Mason* *Report and Order*").

[^2]: The Informal Objection indicates that it was served on First and
    its engineering consultant. First did not file an opposition to the
    objection.

[^3]: Balough subsequently assigned WOXY(FM) to First Broadcasting.
    *See* Application No. BALH-20040126AMT, granted on March 17, 2004
    and consummated on May 15, 2004.

[^4]: 47 C.F.R. § 73.202.

[^5]: *Georgetown, Mason, Oxford, and West Union, Ohio, and Salt Lick,
    Kentucky*, Notice of Proposed Rule Making, 19 FCC Rcd 22016 (MB
    2004).

[^6]: Beer Comment at 1.

[^7]: The FM Allotment priorities are (1) First full-time aural service;
    (2) Second full-time aural service; (3) First local service; and (4)
    Other public interest matters. Equal weight is given to priorities
    (2) and (3). *See Revision of FM Assignment Policies and
    Procedures*, Second Report and Order, 90 FCC 2d 88, 91 (1988).

[^8]: *See* *Faye and Richard Tuck*, Memorandum Opinion and Order, 3 FCC
    Rcd 5374 (1988) ("*Tuck*").

[^9]: Objection at 1.

[^10]: Mason has a population of approximately 22,000 people. Beer
    suggests that First "should have" chosen Middletown, Ohio, as
    WOXY(FM)'s community of license, as Middletown has a population of
    51,605, and the WOXY(FM) transmitter will be located at the edge of
    Middletown, serving all of that community's residents with a city
    grade (70 dBµ/3.16mV/m) signal.

[^11]: First cites *John R. Hughes,* 50 Fed. Reg. 5679 (Feb. 11, 1985)
    and *Letter to Southwest Communications, Inc.*, ref. 8920-HVT (MMB
    July 16, 1986) (80 percent city-grade signal coverage of community
    deemed substantial compliance with 47 C.F.R. § 73.315).

[^12]: 47 C.F.R. § 73.315(a). *See John R. Hughes, supra*. In that case,
    the Commission determined that an AM application proposing coverage
    of 80% of the "residential area" of a community was in "substantial
    compliance" with the city coverage rules. First Broadcasting's
    Application states, and we have confirmed, that WOXY(FM)'s predicted
    coverage contour will encompass 93 % of the population and 86 % of
    the area within the town of Mason, Ohio. We find that this
    constitutes "substantial compliance" under *John R. Hughes.*

[^13]: *See Tuck*, 3 FCC Rcd at 5374, citing *Suburban Community Policy,
    the Berwick Doctrine, and the de Facto Reallocation Policy*, Report
    and Order, 93 FCC 2d 436, 450-51 ¶ 30 (1983), *recon. denied,* 56 RR
    2d 835 (1984) ("*Suburban Community*").

[^14]: *See Policy Statement on Section 307(b) Considerations for
    Standard Broadcast Facilities involving Suburban Communities*,
    Public Notice, 2 FCC 2d 190 (1965) (adopted objective test of AM
    applicant\'s intent to serve a larger geographically proximate
    community); *Berwick Broadcasting Corp*., Memorandum Opinion and
    Order, 20 FCC 2d 393 (1969) (applied the public interest
    consideration underlying the AM suburban community policy to FM
    radio); *Hall Broadcasting Co., Inc*., Memorandum Opinion and Order,
    71 FCC 2d 235, 237 (1979) (defined *de facto* reallocation as
    involving an attempt to utilize a channel assigned to one community
    in order to establish a broadcast service in another community).

[^15]: 47 C.F.R. § 73.1125. *See Suburban Community*, 93 FCC 2d at 456;
    *see also* *Roberts Communications, Inc.*, Memorandum Opinion and
    Order, 11 FCC Rcd 1138 (1996) (although Section 73.1125 no longer
    required location of a broadcast station's main studio to be in the
    station's community of license, an applicant that locates its studio
    within the geographic parameters of Section 73.1125 will satisfy
    *Suburban Community*'s third criterion).

[^16]: *Suburban Community*, 93 FCC 2d at 456 (emphasis in original).

[^17]: *Id.* at 457 (quoting *Robert Adams*, 38 FCC 2d 1, 4 (1972)).