**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Amendment of Section 73.202(b), ) MB Docket No. 03-26

Table of Allotments, ) RM-10638

FM Broadcast Stations. )

(Shawnee and Topeka, Kansas) )

**REPORT AND ORDER**

**(Proceeding Terminated)**

**Adopted: January 20, 2004 Released: January 23, 2004**

By the Assistant Chief, Audio Division:

1\. The Audio Division issued a *Notice of Proposed Rulemaking* in
response to a Petition for Rule Making filed by Cumulus Licensing
Corporation ("Cumulus"), licensee of FM Station KMAJ, Topeka,
Kansas.[^1] The *Notice* proposes to downgrade the license for FM
Station KMAJ from Channel 299C to Channel 299C1, and to change the
community of license from Topeka to Shawnee, Kansas. The Cumulus request
was filed pursuant to the provisions of Section 1.420(i) of the
Commission's Rules, which permits the modification of a station's
authorization to specify a new community of license without affording
other interested parties the opportunity to file competing expressions
of interest in the proposed allotment. [^2] Petitioner timely filed
comments supporting the changes proposed in the *Notice*.[^3]

DISCUSSION

3\. In determining whether to approve a change of community, we compare
the existing versus the proposed arrangement of allotments using the FM
allotment priorities set forth in *Revision of FM Assignment Policies
and Procedures*.[^4] The proposed change of community will provide
Shawnee with a first local aural service, while Topeka will continue to
receive local service from nine stations.

4\. We recognize that Shawnee is located within the Kansas City
Urbanized Area. In such circumstances, we do not blindly apply a first
local service preference. Instead, we determine whether to apply a first
local service preference after evaluating the independence of the
proposed community from the central city of the urbanized area.[^5]
Applying the *Tuck* criteria, Shawnee is sufficiently independent of
Kansas City to qualify for a first local service preference, for the
reasons discussed below.

5\. In *Tuck*, the Commission specified the following three factors for
evaluating a community's independence: (1) signal population coverage,
*i.e*., the degree to which the proposed station will provide service to
both the suburban community and the larger metropolis; (2) the size and
proximity of the suburban community relative to the metropolis; and (3)
the interdependence of the suburban community with the metropolis. Of
these three factors, the most significant is the third.[^6]

6\. As a Class C1 facility, Station KMAJ will, invariably, serve a large
area. The proposed reallotment thus would result in Station KMAJ's 70
dBu contour covering 43.8 percent of the Kansas City Urbanized Area, in
which Shawnee is located. This coverage does not, however, preclude a
finding that Station KMAJ will provide a first local service to Shawnee.
Shawnee's population of 47,996 persons represents approximately 11
percent of the population of Kansas City, Missouri, the central city in
the Kansas City Urbanized Area. The Commission has granted channel
change petitions in instances where the proposed community's population
was a considerably smaller percentage of the population of the urbanized
area's central city.[^7] Moreover, FM stations have been allotted to
numerous communities much smaller than Shawnee. Although Shawnee is only
14 kilometers (8.8 miles) from Kansas City, change of community
proposals have been approved in instances where the new community was
closer to the central city than is the case in this proceeding.[^8]
Neither the extent of signal coverage, nor the relative size or
proximity of Shawnee and Kansas City, precludes a finding that Shawnee
is an independent community for allotment purposes.

7\. Turning to the most important consideration, the interdependence of
the proposed community with the central city in the urbanized area, we
find that petitioner has established that Shawnee is an independent
community, rather than dependent upon Kansas City. Petitioner states
that the City of Shawnee has its own unique identity and history that
are separate from that of Kansas City. Shawnee, the seventh largest city
in the state of Kansas, was settled in the 1830s. Shawneetown, later
shortened to Shawnee, was incorporated in 1856, two years after the
Territory of Kansas was created. Shawnee became the first county seat of
Johnson County. Shawnee evolved into a small farm market center until
the 1950s, when population shifts from large urban areas to smaller
surrounding towns occurred.

8\. The population of Shawnee has tripled since 1970, and Shawnee has
experienced a population increase of 26.3 percent from 1990 to 2000,
growing from 37,993 persons to 47,996 persons. Businesses and other
organizations located in Shawnee afford its residents extensive
employment opportunities. Cumulus cites U.S. Census Database statistics,
which show that 3,218 of 18,149 employed Shawnee residents,
approximately 17.7 percent, work in Shawnee. Moreover, there are more
than 1,300 businesses located in Shawnee, including several major
employers with hundreds of employees. A substantial number of these
businesses identify themselves by using "Shawnee" in their names.
Shawnee also has numerous churches, civic organizations, and health care
providers and medical practice groups.

9\. Shawnee residents are served by a local weekly newspaper, the
*Shawnee Journal Herald*, with a circulation of 10,000 copies. The
*Herald,* which began publication in 1923, contains news articles about
local political issues and other subjects of local interest, such as
local sports stories. Petitioner states that Shawnee is a separate and
distinct advertising market from Kansas City and that many businesses
located in Shawnee advertise in the *Shawnee Journal Herald* rather than
in Kansas City media outlets. Shawnee resident also may access the
city's website to learn about Shawnee community events and news.

10\. Shawnee has its own zip codes[^9] and its own local government and
elected officials, including an elected mayor and eight council members,
two from each ward, who serve four-year terms. The city council, in
turn, selects a city manager. The government of Shawnee has numerous
departments, including city clerk, public works, finance, engineering,
police, fire, park, and recreation and planning. It also has a municipal
court division, licensing division, human resources, animal warden, fire
chief, police chief, public safety director, economic development
director, senior citizens' coordinator, building inspectors, and
electrical and plumbing inspectors. The City of Shawnee has 250
full-time employees and had a total budget of nearly \$26 million for
fiscal year 2002. There are two public school districts in the City of
Shawnee: Shawnee Mission School District and DeSoto School District.
Shawnee has a total of nine public elementary schools, two public middle
schools, two public high schools, and several private schools.

11\. The proposed downgrade and change of community will result in
134,899 persons losing service and 1,542,029 persons gaining service.
There are a few small sections of the loss area that will be left with
only four full-time reception services once Station KMAJ-FM is
reallotted to Shawnee. This area consists of 494 persons in 205 square
kilometers. The remainder of the loss area will continue to be served by
five or more transmission services.[^10] A few portions of the gain area
currently receive less than five transmission services. Allotment of
Channel 299C1 at Shawnee will provide a fourth service to 481 persons in
43 square kilometers and a fifth service to 4,610 persons in 108 square
kilometers.

12\. For all of the foregoing reasons, we conclude that the public
interest would be served by substituting Channel 291C1 for Channel 291C
at Topeka, Kansas, and reallotting Channel 299C1 at Shawnee, Kansas.
Channel 299C1 can be allotted to Shawnee in compliance with the minimum
distance separation requirements of the Commission's Rules with a site
restriction of 41.3 kilometers (25.6 miles) west of Shawnee at
coordinates 39-09-06 NL and 95-09-28 WL.

13\. Accordingly, pursuant to the authority contained in Sections 4(i),
5(c)(1), 303(g) and (r) and 307(b) of the Communications Act of 1934, as
amended, and Sections 0.61, 0.204(b),0.283, and 1.420(i) of the
Commission's Rules, IT IS ORDERED, That effective March 8, 2004, the FM
Table of Allotments, Section 73.202(b) of the Commission's Rules, IS
AMENDED as follows:

Community Channel Number

Shawnee, Kansas 299C1

Topeka, Kansas \-\-\-\-\-\--

15\. IT IS FURTHER ORDERED, pursuant to Section 316(a) of the
Communications Act of 1934, as amended, that the license of Cumulus
Licensing Corp., for FM Station KMAJ, IS MODIFIED to specify operation
on Channel 299C1 at Shawnee, Kansas, subject to the following
conditions:

> \(a\) Within 90 days of the effective date of the Order, the licensee
>
> of Station KMAJ-FM shall submit to the Commission a minor change
>
> application for a construction permit (Form 301), specifying the
>
> new facility;
>
> \(b\) Upon grant of the construction permit, program tests may be
>
> conducted in accordance with Section 73.1620; and
>
> \(c\) Nothing contained herein shall be construed to authorize a
>
> change in transmitter location or to avoid the necessity of filing an

environmental assessment pursuant to Section 1.1307 of the

> Commission's Rules, unless the proposed facilities are
>
> categorically excluded from environmental processing.

16\. Pursuant to Commission Rule Section 1.1104(1)(k) and (3)(l), any
party seeking a change in community of license of a TV or FM allotment
or an upgrade of an existing FM allotment, if the request is granted,
must submit a rule making fee when filing its application to implement
the change in community of license and/or upgrade. As a result of this
proceeding, Cumulus Licensing Corp., licensee of FM Station KMAJ, is
required to submit a rule making fee in addition to the fee required for
the applications to effectuate the changes specified above.

17\. IT IS FURTHER ORDERED, that the request of Allur-Kansas City, Inc.
to submit untimely comments in this proceeding is DISMISSED as MOOT; and

18\. IT IS FURTHER ORDERED, that the motion of Cumulus Licensing Corp.
to strike the untimely comments of Allur-Kansas City, Inc. is DISMISSED
as MOOT; and

19\. IT IS FURTHER ORDERED, that the request of Cumulus Licensing Corp.
to submit a supplement to the record in this proceeding is DISMISSED as
MOOT; and

20\. IT IS FURTHER ORDERED, that the Secretary of the Commission shall
send by Certified Mail Return Receipt Requested, a copy of this Order to
the following:

Mark N. Lipp

Vinson & Elkins, LLP

The Willard Office Building

1455 Pennsylvania Avenue, NW

Washington, D.C. 20004-1008

(Counsel for Cumulus Licensing Corp.)

21\. IT IS FURTHER ORDERED, That this proceeding IS TERMINATED.

22\. For further information concerning this proceeding, contact Deborah
Dupont, Media Bureau, (202) 418-7072.

FEDERAL COMMUNICATIONS COMMISSION

John A. Karousos

Assistant Chief, Audio Division

Media Bureau

[^1]: *Apopka, Maitland, and Homosassa Springs, Florida, Othello and
    Basin City, Washington, and ,Shawnee and Topeka, Kansas,* 18 FCC Rcd
    783 (MB. 2003).

[^2]: *See also* *Modification of FM and TV Authorizations to Specify a
    New Community of License*, 4 FCC Rcd 4870 (1989), *recon. granted in
    part*, 5 FCC Rcd 7394 (1990).

[^3]: Allur-Kansas City, Inc., licensee of Station KMJK, Lexington,
    Missouri, filed untimely comments. These comments contend that
    Cumulus intends to serve the Kansas City Urbanized Area and not
    Shawnee. These comments have been withdrawn; nonetheless, we will
    consider this issue in the context of evaluating the Cumulus
    proposal for a first local service preference.

[^4]: 90 FCC 2d 88 (1982), *recon. denied*, 56 RR 2d 448 (1983). 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 is given to
    priorities (2) and (3).

[^5]: *See Faye and Richard Tuck,* 3 FCC Rcd 5374 (1998) *("Tuck"),* and
    *Huntington Broadcasting Co. v. FCC,* 192 F.2d 33 (D.C.Cir. 1951*)
    ("Huntington").*

[^6]: *Tuck, supra.* *See also* *Eatonton and Sandy Springs, Georgia,
    and Anniston and Lineville, Alabama*, 6 FCC Rcd 6580, ¶23 (MMB.
    1991*), app. for rev. dismissed,* 12 FCC Rcd 8392 (MMB. 1997).

[^7]: *See* *Ada, Newcastle and Watonga, Oklahoma*, 11 FCC Rcd 16896
    (MMB. 1996) (Newcastle had population equal to 0.9 percent of
    Oklahoma City), and cases cited therein.

[^8]: *See, e.g.,* *Mullins and Briarcliffe Acres, South Carolina*, 14
    FCC Rcd 10516 (MMB. 1999) (new community of allotment four miles
    from the central city of the urbanized area).

[^9]: The zip codes designated exclusively for the City of Shawnee are:
    66203, 66214, 66216, 66217, 66218, 66219, 66220, 66226, and 66286.

[^10]: The Commission has considered five or more reception services to
    be "abundant." *Family Broadcasting Group*, 53 RR2d 662 (Rev.Bd.
    1983), *rev. denied* FCC 83-559 (Comm'n, Nov, 29, 1983); *see also
    LaGrange and Rollingwood, Texas*, 10 FCC Rcd 3337 (1995).