**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

)

Amendment of Section 73.202(b) ) MM Docket No. 95-108

Table of Allotments ) RM-8631

FM Broadcast Stations )

(Ankeny and West Des Moines, )

Iowa) )

**REPORT AND ORDER**

**(Proceeding Terminated)**

Adopted: February 16, 2000 Released: February 25, 2000

By the Chief, Allocations Branch:

1\. The Commission has before it for consideration the [Notice of
Proposed Rule Making]{.underline}, 10 FCC Rcd 7671 (1995)(\"Notice\"),
proposing the reallotment of Channel 223C2 from Ankeny to West Des
Moines, Iowa. The [Notice]{.underline} was issued in response to a
petition filed by Fuller-Jeffrey Broadcasting Corporation of Greater Des
Moines (\"Petitioner\").[^1] Petitioner also requested modification of
its license for Station KJJY-FM to specify operation at the new
location. Petitioner filed comments restating its interest in the
allotment of Channel 223C2 at West Des Moines.[^2]

2\. The proposed reallotment of Channel 223C2 from Ankeny to West Des
Moines, Iowa was filed pursuant to the provisions of Section 1.420(i) of
the Commission\'s Rules, which permit the modification of a station\'s
license 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\"). West Des Moines is located within the urbanized Area of
Des Moines, Iowa with a population of 39,387, while the population of
Des Moines is 193,187. Pursuant to the FM allotment priorities set forth
in [Revison of FM Assignment Policies and Procedures]{.underline}, 90
FCC 2d 88, 92 (1982), petitioner originally claimed in its rule making
petition that the reallotment of Channel 223C2 to West Des Moines would
result in a preferential arrangement of allotments since it would
provide the community with its first local aural transmission service,
without depriving Ankeny (population 18,482) of its sole local aural
transmission service. However, the [Notice]{.underline} found that the
proposal will not provide West Des Moines with a first local service but
could result in a second local service. This is due to the fact that
non-commercial FM Station KWDM, Channel 204A is licensed to West Des
Moines, and non-commercial FM stations are now counted as transmission
and reception services for purposes of Section 307(b) allotment
comparison. [See]{.underline} [Modification of FM and TV Authorizations
to Specify a New Community of License]{.underline}, 5 FCC Rcd at 7097
and n. 19; [Valley Broadcasters, Inc.,]{.underline} 5 FCC Rcd 2785
(1990); [Channel 32 Broadcasting Company]{.underline}, 6 FCC Rcd 5188
(1991), [recon.]{.underline} [denied]{.underline}, 7 FCC Rcd 1694
(1992).

3\. Nevertheless since West Des Moines is within the Des Moines
urbanized area, the petitioner was requested to provide a showing to
demonstrate that West Des Moines is sufficiently independent of the Des
Moines urbanized area to warrant a second local service using the
Commission\'s three factors enumerated in [RKO General]{.underline}
(KFRC), 5 FCC Rcd 3222 (1990) and [Faye and Richard Tuck]{.underline}, 3
FCC Rcd 5374 (1988) and [Elizabeth City, North Carolina and Chesapeake,
Virginia]{.underline}, 9 FCC Rcd 3586 (1994).[^3] In response to the
request petitioner reiterated its initial showing and submitted the
following information. Under the first criteria signal-population
coverage, petitioner notes that there are a total of twenty-four
stations, nine AM and fifteen FM stations that provide service to the
general area that includes both West Des Moines and the Des Moines
Urbanized Area. Fifteen of the twenty-four stations cover all of both
West Des Moines and the Des Moines Urbanized Area with a city-grade
signal. Eight stations cover some part of both West Des Moines and the
Des Moines Urbanized Area with their city-grade signals. One other
station covers a part of the Des Moines Urbanized Area, but no part of
West Des Moines, with its city-grade signal. Under the interdependence
criteria petitioner states that of West Des Moines\'s population of
39,387, approximately 47% (18,046 residents) participate in the work
force. Of this work force, approximately 32% (5,853) work in West Des
Moines and approximately 68% (12,193) work outside of West Des Moines.
Approximately 9,189 people work in the central city of Des Moines.
Petitioner states that West Des Moines is served by a daily newspaper
out of Des Moines, the Des Moines Register. There are no television
stations licensed to serve West Des Moines. Four stations are licensed
to serve Des Moines.[^4] Petitioner includes statements from West Des
Moines community leaders and residents which recognize West Des Moines'
status as a separate community. Petitioner states that West Des Moines
is an incorporated city within the boundaries of Polk County, Iowa. West
Des Moines has its own elected city council, mayor and an appointed city
manager. Petitioner further states that U.S. West publishes a primary
telephone directory entitled, \"Des Moines and Surrounding
Communities.\" The phone book contains listings for West Des Moines
residences and businesses as well as listings for businesses and
residences in other communities within the Greater Des Moines area. [^5]
Petitioner also notes that West Des Moines has its own zip code.
Regarding local facilities, petitioner contends that as of 1993, West
Des Moines had 4,714 businesses operating within its boundaries.
Petitioner further submits that West Des Moines' transportation needs
are provided by the \"Metro Transit Authority\", which serves West Des
Moines with daily bus service in & out of the central city of Des
Moines. West Des Moines relies upon the Des Moines International Airport
for commercial airline service. West Des Moines does not have a hospital
and is dependent upon several large medical centers operating within the
boundaries of the City of Des Moines. West Des Moines has its own
police, fire protection, schools, and Regarding the advertising market,
Arbitron and A.C. Nielsen classify the Des Moines Metro market as
including the counties of Polk, Warren, Dallas, and Story, Iowa. West
Des Moines is located in Polk County Statistical Area (SMSA). Petitioner
concludes that from the perspective of advertisers and those interested
media purchases in the area, there is no distinction between West Des
Moines and the Des Moines Urbanized Area.

4\. [Discussion]{.underline}. As a threshold matter, we address an issue
regarding the compliance of the petitioner's rulemaking proposal with
the Commission's minimum distance separation requirements. In its
rulemaking petition, Fuller-Jeffrey proposes to use as the reference
coordinates for Channel 223C2 at West Des Moines the current license
site for Station KJJY-FM, Ankeny.[^6] At the time that the rulemaking
proposal was filed, these coordinates complied fully with the
Commission's minimum distance separation requirements set forth in
Section 73.207 of the Commission's Rules. However, after the [Notice of
Proposed Rule Making]{.underline} was released in this proceeding, an
application (BPH-960322IC) was filed by Station KTWA(FM), Channel 224A,
Ottumwa, Iowa, for a one-step upgrade to Channel 224C2, using the
contour protection provisions of Section 73.215 of the Rules. This
application was subsequently granted by the staff. Although the
reference coordinates for Fuller-Jeffrey's Station KJJY(FM) at both
Ankeny and West Des Moines are fully protected through the contour
protection provisions of Section 73.215, there is currently a
short-spacing of 0.9 kilometers under the minimum distance separation
requirements set forth in Section 73.207. We take this opportunity to
clarify that the 0.9-kilometer short-spacing does not render
Fuller-Jeffrey's rulemaking proposal unacceptable or defective. Since
Fuller-Jeffrey's rulemaking proposal was filed before the Ottumwa
application, it was entitled to protection under the Commission's policy
and rules set forth in *Conflicts between Rulemaking Proposals and
Applications,* 7 FCC Rcd 4917 (Comm. 1992), *recon. granted in part and
denied in part*, 8 FCC Rcd 4743 (Comm. 1993). The Ottumwa application
affords the Fuller-Jeffrey rulemaking proposal the requisite protection
under Section 73.208(b) of the Commission's Rules -- that is, it uses
the contour protection provisions of Section 73.215 of the Rules to
protect the rulemaking proposal. Likewise, the Fuller-Jeffrey proposal
complied with the requirements of Section 73.208(a) of the Commission's
Rules at the time that it was filed. That rule requires that rulemaking
proposals be fully spaced, utilizing the minimum distance separation
requirements set forth in Section 73.207 of the Rules, with respect to
authorized stations (i.e. licenses and construction permits), vacant
allotments, and previously cut-off applications as set forth in our
*Conflicts between Rulemaking Proposals and Applications.* Under these
circumstances, it would be unfair to the rulemaking petitioner to
consider that its proposal is now unacceptable because of a
short-spacing that was subsequently and properly authorized by the
staff. We have taken this approach in some prior cases and reaffirm
their applicability. *See e.g.*, [South Burlington,
Vermont]{.underline}, 6 FCC Rcd 7111 (Allocations Branch 1991).
Moreover, this rationale is similar to that utilized in the recent case
of [Killeen and Cedar Park, TX]{.underline}, MM Docket 98-176, DA
00-143, released February 2, 2000. Therein, we held that it would be
unfair for a station seeking to change its community of license and to
remain at its current license site with no facilities changes not to be
able to change its community of license because of a short-spacing
created by the grant of an application using the contour protection
provisions of Section 73.215.

5.  Based on the information before us, we find that petitioner has
    sufficiently demonstrated that West Des Moines is a separate and
    independent community from the Des Moines Urbanized Area and that
    the Des Moines radio stations need not be attributed to West Des
    Moines. We find that although some of the factors support a finding
    of interdependence, a majority of the eight factors support a
    finding of independence (e.g., factors three, four, five, and eight
    as set forth in footnote four). [Supra]{.underline}. Our view is
    particularly buttressed by the large population of West Des Moines,
    the large number of commercial establishments and its municipal
    services and school system. [See]{.underline} [Change of
    Community]{.underline}, [supra]{.underline}. Having made this
    determination, we must compare the existing arrangement of
    allotments with the proposed arrangement of allotments using our FM
    allotment priorities. [See]{.underline} [Revision of FM Assignment
    Policies and Procedure]{.underline}. 90 FCC 2d 88, 92 (1982).

6\. In making this analysis, we note that the reallotment of Channel
223C2 to West Des Moines would provide West Des Moines with its second
local and first competitive transmission service, thus triggering
priority (4) \"other interest matters\", while Ankeny already has local
transmission service, thus again triggering priority (4). Under priority
(4), the issue is whether there should be a second local and first
competitive service in West Des Moines or Ankeny. Since West Des Moines
has a larger population (31,702) than Ankeny (18,482),[^7] we believe
that the public interest is better served by providing a second local
and first competitive transmission service to West Des Moines rather
than retaining the transmission service in Ankeny. Moreover, there will
be no disruption in reception service to residents of Ankeny because
petitioner is not moving its transmitter. Ankeny will continue to
receive local service from Station KMXD-FM, Channel 292A, while West Des
Moines will receive local service from Station KWDM-FM. Based on the
above information, we find that the public interest would be served by
reallotting Channel 223C2 from Ankeny, Iowa to West Des Moines, Iowa.

7\. Channel 223C2 can be allotted to West Des Moines, Iowa, in
compliance with the Commission\'s minimum distance requirements at the
licensed site of Station KJJY-FM.[^8] In accordance with the provisions
of Section 1.420(i) of the Commission\'s Rules, we will modify the
license for Station KJJY-FM to specify West Des Moines, as its community
of license on Channel 223C2 in lieu of its use at Ankeny, Iowa.

8\. 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) and 0.283 of the Commission\'s
Rules, IT IS ORDERED, That effective April 10, 2000, the FM Table of
Allotments, Section 73.202(b) of the Commission\'s Rules, IS AMENDED for
the communities listed below, to read as follows:

[Community]{.underline} [Channel No.]{.underline}

#  Ankeny 292A 

West Des Moines 223C2

9\. IT IS FURTHER ORDERED[,]{.underline} That pursuant to the authority
contained in Section 316(a) of the Communications Act of 1934, as
amended, that the license of Station KJJY-FM, Ankeny, Iowa, IS MODIFIED,
to specify operation at West Des Moines, subject to the following
conditions:

\(a\) Nothing contained herein shall be construed as authorizing any
change in License except for the community as specified above. Any
changes except those specified require prior authorization pursuant to
an application for construction permit (FCC Form 301).

\(b\) Program tests may be conducted in accordance with the provisions
of Section 73.1620 of the Rules, PROVIDED the transmission facilities
comply in all respects with License except for the community as
specified above, and a license application (Form 302) is filed within 10
days of commencement of program tests.

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

11\. For further information concerning this proceeding contact Arthur
D. Scrutchins, Mass Media Bureau, (202) 418-2180.

FEDERAL COMMUNICATIONS COMMISSION

John A. Karousos

Chief, Allocations Branch

Policy and Rules Division

Mass Media Bureau

[^1]:     ^?^On October 3, 1996, petitioner was sold to WCSO
    Broadcasting Ltd. Partnership which subsequently changed its name to
    Two Rivers Broadcasting Ltd. Partnership (BALH-960617GR).

[^2]:     ^?^Fuller-Jeffrey also filed additional comments regarding the
    community of West Des Moines at the request of the staff.

[^3]:     ^?^Generally, [Huntington and Tuck]{.underline} showings are
    required to justify a first local service preference, not a second
    local. However, as explained [infra]{.underline}, the petitioner has
    met the requirements to show that West Des Moines is sufficiently
    independent of the Des Moines urbanized area so that the Des Moines
    stations need not be attributed to West Des Moines. There are eight
    factors relevant to interdependence: (1) the extent to which
    community residents work in the larger metropolitan area, rather
    than the specified community; (2) whether the smaller community has
    its own newspaper or other media that covers the community\'s local
    needs and interests; (3) whether the community\'s leaders and
    residents perceive the specified community as being an integral part
    of, or separate from, the larger metropolitan area; (4) whether the
    specified community has its own local government and elected
    officials; (5) telephone company or zip code; (6) whether the
    community has its own commercial establishments, health facilities,
    and transportation systems; (7) the extent to which the specified
    community and the central city are part of the same advertising
    market; and (8) the municipal services such as police, fire
    protection, schools, libraries. [See]{.underline} [KRFC]{.underline}
    supra.

[^4]:     ^?^KCCI-TV, Channel 8; KDSM-TV, Channel 17; WHO-TV, Channel
    13; and KDIN-TV, Channel 11. Fuller-Jeffrey notes that a single
    cable system serves the Des Moines Urbanized Area which is operated
    by an affiliate of TCI. There is one low-power, noncommercial
    educational station (KWDM) licensed to serve West Des Moines. There
    are no AM radio stations licensed to serve West Des Moines.

[^5]:     ^?^U.S. West also publishes a \"Des Moines West\" directory in
    which West Des Moines listings are grouped with those of the
    communities Clive, Johnston, Urbandale, and Windsor Heights, Iowa.

[^6]: ^?^ These coordinates are 41-39-53 and 93-45-24.

[^7]:     ^?^Population figures are from the 1990 U.S. Census, unless
    otherwise noted.

[^8]:     ^?^The coordinates for this allotment are North Latitude
    41-39-53 and West Longitude 93-45-24.