**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Amendment of Section 73.202(b), ) MM Docket No. 98-176

Table of Allotments, ) RM-9363

FM Broadcast Stations. )

(Killeen and Cedar Park, Texas ) )

**REPORT AND ORDER**

**(Proceeding Terminated)**

**Adopted: January 19, 2000 Released: February 2, 2000**

By the Chief, Allocations Branch:

1\. In response to a Petition for Rule Making filed by LBJS Broadcasting
Company, LP (LBJS\"), the Chief, Allocations Branch, has before it for
consideration the [Notice of Proposed Rule Making]{.underline}, 13 FCC
Rcd 18790 (1998), requesting the reallotment of Channel 227C from
Killeen, Texas, to Cedar Park, Texas, and modification of the license
for Station KLNC(FM) to specify Cedar Park as the community of
license.[^1] The [Notice]{.underline} also requested comments on whether
the policy established in [Newnan and Peachtree City,
Georgia]{.underline}, 7 FCC Rcd 6307 (Allocations Branch 1992), should
be continued and whether it should be extended to post-1964 FM stations
that are not now in conformity with our current spacing requirements.
LBJS filed supporting comments in which it reaffirmed its interest in
Channel 227C at Cedar Park. GulfStar Communications Killeen Licensee,
Inc. (\"GulfStar\"), Texas Star Radio, Inc. (\"Texas Star\") and Cen-Tex
Media, Inc. (\"Cen-Tex\") and Fuller-Jeffrey Radio of New England, Inc.
(\"Fuller-Jeffrey\") filed comments. Reply comments were filed by LBJS
and GulfStar.[^2]

2\. In [Newnan and Peachtree City, Georgia]{.underline}, 7 FCC Rcd 6307
(Allocations Branch 1992), the Chief, Allocations Branch, reallotted
Channel 244A from Newnan to Peachtree City as a first local service and
modified the license of Station WMKJ(FM) to specify Peachtree City as
the new community of license. Although Station WMKJ(FM) did not propose
to change its technical facilities, Station WMKJ(FM) was a pre-1964
"grandfathered" station that was short-spaced to another pre-1964
"grandfathered" station. This proposal was granted over the objection
that it would create a short-spaced allotment in violation of the
minimum distance separation requirements set forth in Section 73.207 of
the Commission\'s Rules because no new short spacings were created, no
existing short spacings were exacerbated, and the potential for
interference between the currently short-spaced stations would not be
increased. In the instant case, Station KLNC(FM), Channel 227C, Killeen,
is a pre-1964 "grandfathered" station and is short-spaced by 55.1
kilometers to co-owned Station KLBJ(FM), Channel 229C, Austin, Texas,
which is also a pre-1964 "grandfathered" station. In addition, station
KLNC(FM), Channel 227C, Killeen, is short-spaced to three other FM
stations because of construction permit applications granted to stations
using the contour protection and directional antenna provisions of
Section 73.215 of the Commission's Rules. Specifically, Station KLNC(FM)
is short-spaced by 11.5 kilometers to Station KSTV(FM), Channel 226C3,
Dublin, Texas, by 18.3 kilometers to Station KPLV(FM), Channel 227C1,
Port Lavaca, Texas, and by 4.2 kilometers to Station KKZN(FM), Channel
227C2, Haltom City, Texas, and these three stations are providing
contour protection under Section 73.215 to Station KLNC(FM) as if they
were fully-spaced stations.

3\. The proposed reallotment of Channel 227C from Killeen to Cedar Park,
Texas, was filed pursuant to the provisions of Section 1.420(i) of the
Commission\'s Rules, which permit the modification of a station\'s
authorization to specify a new community of license without affording
other interested parties an opportunity to file competing expressions of
interest. [See]{.underline} [Amendment of the Commission\'s Rules
Regarding Modification of FM and TV Authorizations to Specify a New
Community of License]{.underline}, 4 FCC Rcd 4870 (1989), [recon.
granted in part]{.underline}, 5 FCC Rcd 7094 (1990) (\"[Change of
Community]{.underline}\"). Cedar Park was incorporated in 1973 and has a
population of 5,161 according to the 1990 U.S. Census.[^3] Cedar Park
has its own local government which consists of nine departments, a fire
and police department, parks, schools, court system and businesses which
include banks, insurance companies, restaurants, a local newspaper and
Chamber of Commerce, as well as a local post office and a separate zip
code (78613).

4\. LBJS states that the proposed reallotment would provide a
preferential arrangement of allotments as Cedar Park will gain its first
local aural transmission service with Killeen continuing to be served by
local Stations KRMY(AM), KNCT(FM) and KIIZ(FM). Further, since no site
change or facility change is anticipated, LBJS points out that Station
KLNC(FM) will continue to provide city grade service to Killeen. LBJS
states that Station KLNC(FM) is a pre-1964 \"grandfathered\"
short-spaced station and since no site change is contemplated, there
will be no new short-spacings created, nor an increase in any existing
short-spacings as a result of the proposed reallotment. In response to
the [Notice]{.underline}, LBJS supports continuation of the policy set
forth in [Newnan and Peachtree City, Georgia]{.underline}, and
application of the policy to this proceeding.

5\. TexasStar, licensee of Station KKZN, Haltom City, Texas, and
Cen-Tex, licensee of Station KSTV, Dublin, Texas, filed joint comments
in support of the proposed relocation of Station KLNC(FM) from Killeen
to Cedar Park which involves pre-existing short-spacings to both
Stations KKZN and KSTV. In response to the [Notice]{.underline},
TexasStar and Cen-Tex state that it is wrong for the Commission to treat
a request by an existing short-spaced station to change its community of
license as a new allotment, as the station is making a major change in
its facilities and should be governed by current Commission Rules as set
forth in Sections 73.213 and 73.215 for these types of changes. Further,
TexasStar and Cen-Tex argue that the Commission should not limit this
policy to pre-1964 grandfathered short-spaced stations and that the same
rationale should apply to stations that are short-spaced regardless of
the reason. TexasStar and Cen-Tex point out that in a Petition for Rule
Making (RM-9395) filed by USA Digital Radio Partners, L.P., (See Public
Notice DA 98-2244, released November 6, 1998), to permit the
introduction of digital audio broadcasting, statistics were provided
showing that out of approximately 5,600 commercial FM stations licensed
in the United States, approximately 3,280 stations (60%) have at least
one short spacing. TexasStar and Cen-Tex argue that the ability to
change community of license should not be based on whether the station
was in operation prior to 1964 or was \"victimized\" by another station
causing the short spacing by a move pursuant to Section 73.215 of the
Rules.

6\. Fuller-Jeffrey, licensee of Station WPKQ, Berlin, New Hampshire,
urges the Commission to grant the request of LBJS to change the
community of license for Station KLNC(FM) and leave the policy
established in [Newnan and Peachtree City]{.underline} intact.
Fuller-Jeffrey points out that its interest in this proceeding is to
protect the policy adopted in [Newnan and Peachtree City]{.underline} as
Fuller-Jeffrey is currently involved in a rule making proceeding in MM
Docket No. 97-216 requesting the reallotment of Channel 279C from
Berlin, New Hampshire, to North Conway, New Hampshire, and modification
of its license for Station WPKQ.[^4] Fuller-Jeffrey states that its
proceeding in MM Docket No. 97-216 is similar to the instant proceeding
involving Killeen and Cedar Park as both cases involve pre-1964
short-spacings in which the affected station does not propose to modify
its transmitting facilities.

7\. GulfStar, licensee of Station KIIZ, Killeen, Texas, requests that
the LBJS Petition be denied. GulfStar points out that the proposed
reallotment of Channel 227C from Killeen to Cedar Park is not only
short-spaced to pre-1964 grandfathered short-spaced Station KLBJ, but
also to Station KSTV, Dublin, Texas, Station KPLV, Port Lavaca, Texas,
and to Station KKZN, Halton City, Texas. GulfStar notes that this
proceeding raises the question of whether the policy articulated in
[Newnan and Peachtree City]{.underline} should be extended to allow new
allotments that carry over violations of Section 73.207 with respect to
post-1964 FM stations that are not now in conformity with the
Commission\'s current spacing requirements. According to GulfStar,
LBJS\'s proposal allows a more lenient allotment separation requirement
which implies that the Table of Allotments is unimportant and
unnecessary. GulfStar states that the policy in [Newnan and Peachtree
City]{.underline} was aimed exclusively at pre-1964 grandfathered
stations, while grant of LBJS\'s proposal would constitute a revised
allocation approach disturbing the public interest goal of an
interference-free FM service.

8\. In reply comments LBJS argues that GulfStar\'s objections to the
Cedar Park allotment concern competition rather than the integrity of
the FM band. LBJS points out that GulfStar will not suffer any adverse
consequence as a result of the reallotment and none of the stations
actually involved in the short-spacings have submitted any opposition to
the proposed change. LBJS alleges that since no technical modifications
to the KLNC facilities are proposed, there will be no impact whatsoever
on the integrity of the Table of Allotments because regardless of
whether Channel 227C is retained in Killeen or allotted to Cedar Park,
the allotment will continue to be short-spaced. The benefit of providing
a first local service at Cedar Park, therefore, can be achieved without
harming the public interest, asserts LBJS.

9\. GulfStar, in reply comments, alleges that it has demonstrated that
grant of the LBJS proposal would seriously undermine the Commission\'s
policies and objectives as contained in the FM Table of Allotments and
Section 73.207 of the Commission\'s Rules. GulfStar points out that
while three other parties filed comments in response to the
[Notice]{.underline}, only one party discusses the merits of extending
the policy established in [Newnan and Peachtree City]{.underline} to
post-1964 grandfathered short-spacings. GulfStar states that TexasStar
and Cen-Tex comment that they believe that all community reallotments
should be allowed so long as the proposed reallotment complies with the
Commission\'s technical rules. GulfStar argues that one of the
fundamental purposes of the FM Table of Allotments has been to prevent
the migration of rural stations into more populated areas. GulfStar
believes that if LBJS\'s proposal is granted not only will the integrity
of the FM Table be disturbed by allowing short-spacings to be carried
over into new allotments but also there will be an opportunity for
community of license changes to be used merely as devices to enable the
migration of stations into urbanized areas.

[Discussion.]{.underline}

10\. After a review of the comments filed in this proceeding, we believe
that it is in the public interest to reallot Channel 227C from Killeen
to Cedar Park and to change Station KLNC(FM)'s community of license to
Cedar Park. To begin with, in [Newnan and Peachtree City]{.underline},
the Chief, Allocatiaons Branch reallotted Channel 244A from Newnan to
Peachtree City and modified the license of Station WJKJ to specify
Peachtree City as the new community of license. Station WJKJ was a
pre-1964 "grandfathered" station that did not meet the current spacing
requirements set forth in Section 73.207 of the Commission's Rules.
While we recognized that we were authorizing a short-spaced allotment by
granting the community change, no change in class or transmitter site
was requested; and, therefore no additional or new short spacing was
created. Here, as in [Newnan and Peachtree City]{.underline}, Station
KLNC is short-spaced to another pre-1964 short-spaced station, Station
KLBJ. We recently reaffirmed our view in [Newnan and Peachtree
City]{.underline} that pre-1964 grandfatherd short-spacing is
permissible at the allotment stage. [See]{.underline} [Oceanside and
Encinitas, CA]{.underline}, MM Docket 99-170, DA 99-1837, released
September 10, 1999, and [Berlin and Conway, New Hampshire]{.underline},
[supra]{.underline}, note 4. As stated in [Oceanside and
Encinitas]{.underline}, the "...rationale for that action was that
grandfathered FM stations that were in compliance with the rules when
authorized should be afforded the same opportunity to change their
community of license as other stations authorized in conformity with our
Rules." [Oceanside and Encinitas]{.underline} at para. 4. In this
situation, pre-existing short-spacings that resulted from changes in the
Commission's spacing rules did not prevent a rulemaking petitioner from
proposing a change of community of license that utilizes its existing
site, does not propose to exacerbate the existing short-spacings, and is
otherwise consistent with our allotment criteria.[^5]

11\. After reviewing the comments in this proceeding, we believe that a
similar approach should be taken with respect to the remaining
short-spacings that occur in the present case involving Section 73.215
of the Commission's Rules. In this case, we note that LBJS does not
propose to change its technical facilities or to utilize contour
protection to any station. Instead, three other stations have been
authorized to operate on a short-spaced basis with regard to Station
KLNC(FM) pursuant to Section 73.215 of the Commission's Rules and are
providing contour protection to Station KLNC(FM) as if it were a fully
spaced station. Under these circumstances, where no technical change is
proposed by Station KLNC(FM) and where no new short-spacing would be
created and no existing short-spacing is exacerbated, we believe that
Station KLNC(FM) should be afforded the same opportunity to reallot its
channel and change its community of license as the pre-1964 and the
pre-1989 short-spaced stations. To do otherwise would result in
preventing a station from changing its community of license where it did
not create the short-spacing, even though the change results in a
preferential arrangement of allotments.

12\. We are not persuaded to deny LBJS's request by Gulfstar's
allegations that extending the [Newnan and Peachtree City]{.underline}
policy to the facts of this case would result in a migration of stations
from rural to urban areas. The issue of whether a proposed reallotment
and change of community of license would result in the migration of
stations from rural to urban areas in violation of Section 307(b) of the
Communications Act, especially where no technical change is proposed, is
a matter that is best addressed by applying our existing law and policy
in this area \-- that is, examining whether a suburban community is
sufficiently independent of a nearby urbanized area to warrant a first
local service preference under our well-established [Huntington and
Tuck]{.underline} policy and comparing the existing and proposed
arrangement of allotments using our FM Priorities. Applying those
policies to this particular case, we find that LBJS has demonstrated
that Cedar Park, a community of 5,161 individuals, passes the
[Tuck]{.underline} test. Specifically, LBJS proposes to reallot Channel
227C and to change its community of license from Killeen, which itself
is an Urbanized Area, to Cedar park which is a community located within
the Austin, Texas Urbanized Area. It has demonstrated that Cedar Park
has its own local government which consists of nine departments, a fire
and police department, parks, schools, court system and businesses which
include banks, insurance companies,

restaurants, a local newspaper and Chamber of Commerce, as well as a
local post office and a separate zip code (78613). Consequently, a
reallotment of Channel 227C to Cedar Park should be considered as a
first local service under Priority (3) of the FM Priorities.[^6]

13\. By way of comparison, retaining Channel 227C at Killeen would
trigger priority 4, other public interest matters, because it would be a
fourth local service to Killeen. It is well established under Commission
precedent that a first local service to a community under priority 3 is
to be favored over a fourth local service to a community. Consequently,
we will grant LBJS' proposal because it will result in a preferential
arrangement of allotments. However, we are concerned with the migration
of FM stations from rural to urban areas and the availability of local
radio service in rural areas. Thus, we intend to examine on a
case-by-case basis other rulemaking proposals where a station seeks to
change its community of license from a rural to a suburban community and
where there are short-spacings authorized under Section 73.215 of the
Commission's Rules.

14\. An engineering analysis has determined that Channel 227C can be
allotted to Cedar Park, Texas, at the station's current transmitter
site.[^7] From this site, Station KLNC(FM) will remain short spaced to
Station KSTV, Channel 226C3, Dublin, Texas, Station KPLV, Channel 227C1,
Port Lavaca, Texas, Station KKZN, Channel 227C2, Haltom City, Texas, and
Station KLBJ, Channel 229C, Austin, Texas. In granting LBJS\'s request
for a change of community, LBJS will be required to specify its current
licensed site for Station KLNC(FM), Killeen, in any license application
for Station KLNC(FM), Channel 227C, Cedar Park, Texas, to implement this
proposal. In accordance with Section 1.420(i) of the Commission\'s
Rules, we will modify Station KLNC(FM)\'s authorization to specify
operation on Channel 227C at Cedar Park, Texas, as its new community of
license.

15\. Accordingly, pursuant to the authority found 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) and 0.283 of the Commission\'s
Rules, IT IS ORDERED, That effective March 20, 2000, the FM Table of
Allotments, Section 73.202(b) of the Commission\'s Rules, IS AMENDED,
with respect to the communities listed below, to read as follows:

Community Channel No.

Cedar Park, Texas 227C

Killeen, Texas 222A

16\. IT IS FURTHER ORDERED, pursuant to Section 316(a) of the
Communications Act of 1934, as amended, that the License of LBJS
Broadcasting Company for Station KLNC, Channel 227C, Killeen, Texas, IS
MODIFIED to specify operation on Channel 227C at Cedar Park, Texas,
subject to the following conditions:

\(a\) Nothing contained herein shall be construed as

authorizing any change in license BMLH-920423KD

except for the community as specified above. Any

changes, except those specified, require prior authori-

zation pursuant to an application for construction

permit. (FCC Form 301).

\(b\) A license application should be filed to

implement this proposal as approved above.

17\. Pursuant to Commission Rule Section 1.1104(1)(k) and (2)(k), any
party seeking a change of community of license of an FM or television
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, LBJS Broadcasting Company, LP, licensee of Station
KLNC(FM), is required to submit a rule making fee in addition to the fee
required for the application to effect the change in community of
license.

18\. IT IS FURTHER ORDERED, That the Secretary shall send a copy of this
[Report and Order]{.underline} by Certified Mail, Return Receipt
Requested, to the following:

Cen-Tex Media, Inc. Victoria Radio Works, LTD

Station KSTV (Dublin) Station KPLV (Port Lavaca)

3209 West Washington Street 8203 Vantage Drive, Suite 840

Stephensville, Texas 76401 San Antonio, Texas 78230

Texas Star Radio, Inc.

Station KKZN (Haltom City)

P. O. box 2026

York, Pennsylvania 17401

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

20\. For further information concerning this proceeding, contact
Kathleen Scheuerle, Mass Media Bureau, (202) 418-2180.

FEDERAL COMMUNICATIONS COMMISSION

John A. Karousos

Chief, Allocations Branch

Policy and Rules Division

Mass Media Bureau

[^1]: ^?^ The call sign was changed from KAJZ to KLNC effective October
    5, 1998.

[^2]: ^?^ Late-filed supplemental comments were filed by LBJS to which
    CapStar Royalty II Corp. (\"CapStar\"), successor to GulfStar,
    responded.

[^3]: ^?^ LBJS, in comments, stated that Cedar Park has a population of
    14,000 as of 1995 which is an increase of 180% from the 1990 U. S.
    Census population figures.

[^4]: ^?^ At the time that Fuller Jeffrey filed its comments in this
    proceeding, its own proposal in MM docket 97-216 was pending.
    Thereafter, the Chief, Allocations Branch adopted this proposal,
    permitting a reallotment and change of community proposal involving
    pre-1964 grandfathered short-spaced stations. [See]{.underline}
    [Report and Order in MM Docket No. 97-216]{.underline}, Berlin and
    North Conway, New Hampshire, DA No. 99-1839, released September 10,
    1999.

[^5]: ^?^ Likewise, if there had been any pre-1989 short-spacings
    involved in this proceeding, they would also be permissible because
    we recently extended the [Newnan and Peachtree City]{.underline}
    policy to that class of short-spacings for the same reasons.
    [See]{.underline} [Fremont and Holton, Michigan]{.underline}, DA No.
    99-2095, released October 8, 1999.

[^6]: ^?^ The 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)).

[^7]: ^?^ The coordinates for Channel 227C at Cedar Park are 30-43-34
    and 97-59-23. Since no change in transmitter site is contemplated,
    concurrence of the Mexican Government is not required for the
    reallotment of Channel 227C from Killeen to Cedar Park.