**DA 06-1547**

In Reply Refer to:

1800B3-JP

Released: July 31, 2006

Max Radio of the Carolinas Licenses, LLC

PO Box 1897

Kill Devil Hills, NC 27948

In re: Max Radio of the Carolinas Licenses, LLC

WCMS-FM, Hatteras, North Carolina

Facility ID: 83211

File No. 20051213ADD

To Whom It May Concern:

We have before us a Request for Waiver of Section 73.1125 of the
Commission's Rules[^1] (the "Rules") for Station WCMS-FM, Hatteras,
North Carolina, filed by Max Radio of the Carolinas Licenses, LLC ("Max
Radio") on December 13, 2005. For the reasons discussed below, we waive
Section 73.1125 of the Rules.

**Background.** Section 73.1125 of the Rules ("Main Studio Rule")
requires a station's main studio to be located either: (1) within a
station's principal community contour; (2) within the contour of any
other broadcast station licensed to its community; or (3) within 25
miles of the center of its community. Max Radio seeks a waiver of the
Main Studio Rule in order to co-locate the main studio of WCMS-FM with
the main studios of commonly owned Stations WQDK(FM), WCXL(FM), and
WGAI(AM) at 103 West Wood Hill Drive, Nags Head, North Carolina.
WCMS-FM's community of license, Hatteras, is located on North Carolina's
Outer Banks. The Station's main studio is presently located in
Engelhard, North Carolina. Englehard is located on the western
(mainland) coast of Pamlico Sound. Englehard and Hatteras are separated
by approximately 28 miles of open water. The proposed Nags Head studio
location is approximately 63 miles from Hatteras and approximately 8.3
miles outside the WCMS-FM principal community contour. Max Radio states
that the waiver is in the public interest because it would reduce the
distance a Hatteras listener would need to drive to reach WCMS-FM's main
studio. The actual driving distance from Hatteras to the current main
studio site is approximately 108 miles. Due to the unique geographic
attributes of North Carolina's Outer Banks there is no direct route from
Hatteras to Engelhard. Max Radio states that a WCMS-FM listener located
in Hatteras would have to drive north through the Outer Banks, cross
over to the mainland, then drive south for approximately 50 miles before
reaching the current main studio site. The proposed main studio site in
Nags Head falls outside of the Main Studio Rule, but is only 63 miles
driving distance from Hatteras, via a more direct route through the
Outer Banks, obviating the need to cross to the mainland.[^2]

Max Radio also urges that the waiver is justified because it would
"yield incidental economic benefits to the Stations,"[^3] such as
reduction in operation costs. Max Radio would be able to operate WCMS-FM
from the existing facilities of its co-owned stations in Nags Head,
instead of staffing and operating a separate studio for WCMS-FM. Max
Radio states that if the waiver is granted, it will maintain a public
file in the community of Hatteras, will continue to maintain a toll-free
telephone number to the WCMS-FM studio, and will continue its
involvement in the Hatteras community.

**Discussion.** Max Radio seeks a Main Studio Rule waiver because the
proposed main studio location is approximately 8.3 miles outside the
principal community contour of WCMS-FM. When an applicant seeks a
waiver, it must plead with particularity the facts and circumstances
which warrant such action.[^4] "A waiver is appropriate only if special
circumstances warrant a deviation from the general rule and such
deviation will serve the public interest."[^5]

The Main Studio Rule is rooted in Section 307(b) of the Communications
Act of 1934, as amended (the "Act"), which mandates the Commission to
"make such distribution of licenses, frequencies, hours of operation,
and of power among the several States and communities as to provide for
a fair, efficient, and equitable distribution of radio service to each
of the same."[^6] Section 307(b) of the Act creates a "bedrock
obligation" of each broadcast licensee to serve the needs and interests
of its community.[^7] A central component of this scheme requires a
station's main studio to be reasonably accessible to its community of
license. [^8] The Main Studio Rule "maintains broadcasters' obligations
under Section 307(b) to provide service to their community of license by
\[ensuring\] the main studio's connection to the community of
license."[^9]

As an initial matter, we are not persuaded by Max Radio's economic
arguments. Max Radio cites no precedent in the Request for Waiver
justifying a waiver of the Main Studio Rule for a commercial radio
station based on economic considerations, and we are aware of none. In
fact, the Commission has rejected the argument that the reduction in
operating costs resulting from the co-location of studios of commonly
owned stations is not an adequate justification for waiver of the Main
Studio Rule.[^10] In previous instances where a commercial licensee has
attempted to justify a waiver of the Main Studio Rule based solely on
the economic benefit to the licensee, the Commission has denied the
waiver.[^11]

Nevertheless, we find that Max Radio has presented sufficient facts that
when considered in their totality, demonstrate unique circumstances that
meet the standard for waiver of the Main Studio Rule. This decision is
grounded on the unique geographic characteristics of North Carolina's
Outer Banks. The proposed Nags Head site is significantly more
convenient and accessible to Hatteras listeners than the current
Engelhard studios. Thus, grant of this waiver will promote the Section
307(b) policies which the Main Studio Rule is designed to advance.
Taking into consideration all of these factors and Max Radio's promise
to maintain a public file, a toll-free telephone number, and continued
community involvement in Hatteras, we find it in the public interest to
waive the Main Studio Rule for Station WCMS-FM.

**Conclusion/Actions.** For the above stated reasons Max Radio of the
Carolinas Radio Licenses, LLC Request for Waiver of Section 73.1125 of
the Commission's Rules is granted. This action is taken under authority
delegation pursuant to Section 0.283 of the Rules.[^12]

Sincerely,

Peter H. Doyle

Chief, Audio Division

Media Bureau

cc: Julian L. Shepard, Esq.

[^1]: 47 C.F.R. § 73.1125.

[^2]: ^?^ *See* Request for Waiver -- Exhibit A, which contains maps
    contrasting the driving distances from Hatteras to Engelhard and
    Nags Head.

[^3]: ^?^ Request for Waiver at 3.

[^4]: *Rio Grande Family Radio Fellowship, Inc. v. FCC*, 406 F.2d 664
    (D.C. Cir. 1968). In addition, Section 73.3566(a) of the
    Commission's radio broadcast rules provides that requests for waiver
    "shall show the nature of the waiver or exception desired and shall
    set forth the reasons in support thereof." 47 C.F.R. § 73.3566(a).

[^5]: *Northeast Cellular Telephone Co. v. FCC,* 897 F.2d 1164, 1166
    (D.C. Cir. 1990) (citing *WAIT Radio v. FCC*, 418 F.2d 1153, 1157-59
    (D.C. Cir. 1969)).

[^6]: 47 U.S.C. § 307(b).

[^7]: Review of the Commission's Rules regarding the main studio and
    local public inspection files of broadcast television and radio
    stations, *Report and Order*, 13 FCC Rcd 15691, 15692 (1998) *recon.
    granted in part*, 14 FCC Rcd 11113 (1999) ("*Main Studio* *Report
    and Order*").

[^8]: *Main Studio* *Report and Order* at 15695.

[^9]: *Main Studio* *Report* *and* *Order* at 15696.

[^10]: *See* *Maines Broadcasting, Inc*., 8 FCC Rcd 5501, 5502 (1993)
    and *Radio Redentor, Inc*., 14 FCC Rcd 17754, 17755 (1999)
    (rejecting Main Studio Rule waiver requests based on financial
    considerations).

[^11]: *See* *Id*.; *see* *also* *Eclectic Enterprises, Inc*., 14 FCC
    Rcd 17751 (1999).

[^12]: ^?^ 47 C.F.R. § 0.283.