**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Amendment of Section 73.202(b), ) MM Docket No. 97-203

Table of Allotments, ) RM-9132

FM Broadcast Stations. )

(Wallace, Idaho and Lolo, Montana ) )

**[REPORT AND ORDER]{.underline}**

(Proceeding Terminated)

**Adopted: November 24, 1999 Released: November 30, 1999**

> By the Chief, Allocations Branch:

1.  Number range level0Number range level1Number range level2Number
    range level3Number range level4Number range level5Number range
    level6Number range level7The Commission has before it a *Notice of
    Proposed Rulemaking*, 12 FCC Rcd 13,893 (1997) ("*Notice*"), issued
    at the request of Hawkeye Properties, Inc. ("Hawkeye"), permittee of
    Station KQWK(FM), Channel 248C2 (97.5 MHz), Wallace, Idaho. The
    *Notice* proposed amendment of the FM Table of Allotments by
    changing its community of license from Wallace to Lolo, Montana as
    that community's first local aural service. The *Notice* also
    proposed that Station KQWK's license be modified to specify Lolo as
    its new community of license and to operate on downgraded Channel
    248C3.

2.  Hawkeye filed comments in response to the *Notice*, reiterating its
    intention to apply for Channel 248C3 at Lolo, if allotted, and to
    construct a station there. Comments opposing Hawkeye's proposal were
    filed by Sunbrook Communications, Inc. ("Sunbrook"), licensee of FM
    Stations KGGL(FM) and KZOQ(FM) and of AM Stations KGRZ(AM) and
    KYLT(AM), all of Missoula, Montana.[^1] Hawkeye proposed to
    downgrade Station KQWK to Channel 248C3 and to reallot that channel
    from Wallace to Lolo under the provisions of Section 1.420(i) of the
    Commission's Rules. That section permits the modification of a
    station's license to specify a new community of license while not
    affording other interested parties the opportunity to file competing
    expressions of interest in the proposed allotment. *See Modification
    of FM and TV Authorizations to Specify a New Community* *of
    License*, 4 FCC Rcd 4870 (1989) (*"Change of Community of License
    R&O"*), *recon.* *granted in part*, 5 FCC Rcd 7094 (1990) (*"Change
    of Community of License MO&O"*).

3.  The proposed allotment reference site for Lolo, Montana, a U.S.
    Census Designated Place, is located 151.7 kilometers (94 miles) away
    from the transmitter site for Station KQWK at Wallace, Idaho,
    insufficient to meet the Class C2-C3 co-channel interstation
    separation requirement, and is, therefore, short-spaced and mutually
    exclusive with Station KQWK.[^2] As we reported in the *Notice*,
    Hawkeye stated that Lolo has a population of 2746 and has no local
    aural transmission service. Hawkeye also cited a number of indicia
    that purportedly denote Lolo as a community for allotment purposes.
    In addition, we took note of Hawkeye's report that Wallace would
    retain local transmission service provided by the fulltime AM
    Station KWAL and, potentially, by Station KSIL(FM), to operate on
    Channel 264C, for which a construction permit (File No.
    BPH-960916MD) has been granted.[^3]

4.  As stated in the *Notice*, while neither Wallace nor Lolo is located
    within an urbanized area, the proposed Lolo station, operating on
    downgraded Channel 248C3, would provide a 70 dBu city grade signal
    not only over all of Lolo, but also over the entirety of the
    Missoula, Montana Urbanized Area. Such coverage, therefore, well
    exceeds the percentage of urbanized area coverage, 50%, that
    triggers the need to justify a request for a first local
    transmission service preference. A petitioner would do so by
    demonstrating the independence of the proposed city of license from
    the nearby central city. *See Headland, Alabama, and Chattachoochee,
    Florida*, 10 FCC Rcd 10,352 (1995) and *Faye and Richard Tuck*, 3
    FCC Rcd 5374 (1988) ("*Tuck*"). Accordingly, we requested that
    Hawkeye provide additional information to constitute a *Tuck*
    showing to demonstrate whether Lolo is sufficiently independent of
    Missoula to warrant a first local service preference or whether the
    Missoula stations should be attributed to Lolo.

5.  Hawkeye filed comments that included, along with reaffirmation of
    its intention to apply for Channel 248C3, if allotted, information
    additional to that offered in its petition to demonstrate that "Lolo
    is sufficiently independent of the central city of Missoula to
    justify a first local service preference." That additional
    information consisted of reports that: 1) Lolo lies at the junction
    of several major state highways, 2) the telephone directory it
    shares with nearby Florence, Montana had 26 names that incorporate
    the name Lolo, and 3) several named residents made unsworn
    statements that Lolo is separate and distinct from Missoula.[^4]

6.  In its opposition, Sunbrook notes that the information Hawkeye
    provided in response to the *Notice* only repeated the same
    information it already had provided in its petition for rulemaking.
    Sunbrook argues that its opposition is otherwise based on Hawkeye's
    alleged failure to meet certain reallocation criteria and that its
    proposal does not constitute a preferential arrangement of
    allotments. Station KWQK would not be providing a first aural
    reception service in either Lolo or Wallace, alleges Sunbrook, and,
    therefore, would not satisfy the first allotment priority.[^5]
    Further, the movement of Station KWQK to Lolo would deprive Wallace
    and surrounding areas with the potential of receiving their second
    aural reception service, which would constitute the second allotment
    priority. Such movement to a community like Lolo, already
    well-served by existing stations, would not be in the public
    interest. Sunbrook finally claims that Lolo would not be deserving
    of a first local transmission service preference, allotment priority
    three, because it fails the three-part *Tuck* test of signal
    population coverage, relative size and proximity of the small
    community to the central city, and interdependence of the suburban
    community and the central city of the Urbanized Area. Sunbrook
    claims that 70 dBu coverage of the entirety of Missoula by the Lolo
    station denotes Lolo's lack of independence from Missoula, that the
    relative small population of Lolo and its close proximity indicates
    that Lolo is a "mere appendage" of the Missoula Urbanized Area, and
    that each of the seven factors denoting interdependence demonstrates
    Lolo's high degree of dependence on Missoula. Sunbrook provides
    numerous survey results as to the volume of highway traffic between
    Lolo and Missoula, indicating that many Lolo residents work
    elsewhere. Sunbrook points out that Lolo lacks other indicia that
    would suggest independence. Finally, Sunbrook alleges that compared
    to Lolo, Wallace is underserved by stations in the Missoula market.
    Additionally, Sunbrook insists that relocation of the potential
    Wallace aural service would not provide any service benefit to Lolo
    that does not already exist.

7.  *Discussion.* As noted above and in the *Notice*, without the
    additional information to perform a *Tuck* analysis, we could not
    determine whether Hawkeye's proposal warrants a first local service
    preference. In its comments, Hawkeye provided barely more
    information than it already had provided in its initial petition.
    This information falls well short of that required to establish a
    first local service preference under *Tuck*. Specifically, based on
    the record in this proceeding, the first two *Tuck* factors, the
    degree of signal coverage over the adjacent urbanized area and the
    size and proximity of the suburban community and the central city of
    the urbanized area, both strongly suggest a dependence of Lolo on
    Missoula. City-grade coverage of the proposed Lolo station would
    encompass the entirety of the urbanized area and, according to the
    1990 U.S. Census, Missoula is more than 15 times the size of Lolo.
    On the critical third *Tuck* factor (the interdependence of the
    suburban community with the central city of the urbanized area),
    Hawkeye has not shown that a majority of the eight factors regarding
    independence has been met. Of these eight factors, four appear to
    favor the dependence of Lolo on the Missoula Urbanized area (*i.e*.,
    extent to which residents work in the urbanized area versus Lolo,
    the lack of media outlets in Lolo, the lack of a local government
    and elected officials, and the lack of independent police, fire
    protection, and other municipal services). While parts of three
    factors may support a finding of independence *(i.e*., statements
    from residents that they perceive the community as independent, the
    presence of 26 businesses with Lolo in their names, and the sharing
    a local phone book with Florence), this is not sufficient to
    outweigh the evidence provided by Sunbrook on dependence. We also
    note that no information was submitted by either side on one of the
    factors (*i.e*., whether Missoula and Lolo are in the same
    advertising market). Under these circumstances, we must attribute
    the Missoula stations to Lolo and not credit Lolo with a first local
    service under Priority (3). As a result, the proposed reallotment
    and downgrade would trigger Priority (4), other public interest
    matters, and would be considered as a 11^th^ local transmission
    service.

8.  By way of comparison, retaining Station KQWK(FM) at Wallace and
    having it built there would trigger Priority (2) because it would
    provide a second full-time reception service to 1035 persons in an
    area of 1325 square kilometers (511.8 square miles). [^6]Retention
    of the station at Wallace would also provide new service to
    underserved persons. Specifically, 2669 persons would received a
    third full-time reception service in an area of 2781 square
    kilometers, and 1182 persons would receive a fourth full-time
    reception service in an area of 515.9 square kilometers.

Since the existing arrangement of allotments triggers a more important
allotment priority than the proposed arrangement of allotments, the
public interest is better served by retaining the allotment at Wallace.

9.  Accordingly, IT IS ORDERED, That the petition for rulemaking filed
    by Hawkeye Properties, Inc. IS DENIED.

10. IT IS FURTHER ORDERED, That this proceeding IS TERMINATED.

11. For further information concerning the above, contact J. Bertron
    Withers, Jr., Mass Media Bureau, (202) 418-2180.

    FEDERAL COMMUNICATIONS COMMISSION

    John A. Karousos

Chief, Allocations Branch

Policy and Rules Division

Mass Media Bureau

[^1]: Sunbrook's comments were filed 3½ months late, and Hawkeye filed
    to a motion to strike it. Sunbrook filed an opposition to the
    motion, accompanied by its Petition for Leave to Accept Late-Filed
    Comments. While acceptance of late-filed comments is not
    contemplated by our Rule §1.415(d) unless specifically requested or
    authorized by the Commission, which was not done here, we will,
    however, accept Sunbrook's comments in the interest of promoting the
    resolution of this case on the basis of an enhanced record.

[^2]: The proposed Channel 248C3 at Lolo would require a co-channel
    separation distance of 177 km (110 mi) from the site for KQWK on
    Channel 248C2 at Wallace. *See* Rule §73.207(b)(1).

[^3]: We note that another rulemaking proposal is pending regarding
    KSIL(FM). In MM Docket 98-159, the Commission proposes to reallot
    KSIL(FM)'s Channel 264C and change its community of license from
    Wallace to Bigfork, Montana. A decision in that docket will be
    released shortly after this decision.

[^4]: Hawkeye also reports that the 12-mile stretch of highway from
    Missoula to Lolo has no retail and little residential development,
    and that the two communities are not contiguous. In addition, the
    president of Hawkeye reports on his personal contacts with several
    residents who "talked of incorporating sometime in the near future,"
    and with the Lolo Middle School secretary who "echoed those
    sentiments" and noted that Lolo had at least 6 churches of differing
    denominations.

[^5]: 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. \[co-equal weight
    given to priorities (2) and (3).\]

[^6]: This figure for second full-time reception service takes into
    account the two other authorized stations licensed to Lolo: KWAL(AM)
    and KSIL(FM).