**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Amendment of Section 73.202(b), ) MM Docket No. 00-159

Table of Allotments, ) RM-9889

FM Broadcast Stations. )

(Thermopolis and Story, Wyoming) )

)

[REPORT AND ORDER]{.underline}

(Proceeding Terminated)

Adopted: June 20, 2001; Released: June 29, 2001

By the Chief, Allocations Branch:

1\. At the request of Idaho Broadcasting Consortium, Inc.
("petitioner"), permittee of Station KHWC(FM),[^1] Channel 252C2,
Thermopolis, Wyoming, the Allocations Branch has before it the [Notice
of Proposed Rule Making]{.underline}, 15 FCC Rcd 19046 (2000), proposing
the substitution

of Channel 252C1 for Channel 252C2 at Thermopolis, reallotment of
Channel 252C1 from Thermopolis to Story, Wyoming, and the modification
of Station WHWC(FM)'s construction permit accordingly.[^2] Petitioner
filed comments in support of the proposal reaffirming its intention to
apply for the channel, if reallotted to Story. Lovcom, Inc. ("Lovcom")
filed opposing comments. Reply comments were filed by petitioner and
Lovcom. After the record closed, petitioner filed a "Motion for Leave to
File and Clarification."[^3]

2\. The proposed reallotment was filed pursuant to the provisions of
Section 1.420(i) of the Commission\'s Rules, [which]{.underline} 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}\").

3\. In its comments, petitioner states that the proposed reallotment of
Channel 252C1 to Story, Wyoming, as the community's first local aural
transmission service will result in a preferential arrangement of
allotments. Additionally, the reallotment will result in a net gain of
service to an area 7,725.6 square kilometers (2,982.9 square miles)
containing a population of 21,462 persons, as well as the elimination of
a gray area of 659.9 square kilometers (254.8 square miles) containing
15 persons. It will provide a fourth service to an area of 5,063.6
square kilometers (1,955.1 square miles) containing 923 persons, and a
fifth service to an area of 4,561.0 square kilometers (1761 square
miles) containing 2,653 persons. Thus, not only is the overall net
service gain more than 21,000, but new serve will be provided to 3,591
persons in underserved areas. All the theoretical loss area will remain
well-served with the exception of a small area of 1,269.4 square
kilometers (490.1 square miles) containing 61 persons. Petitioner claims
that these factors far outweigh the minimal loss in service that will
theoretically occur as a result of the change in community of license.
Moreover, Thermopolis will retain serve from full-time, commercial
service from Station KTHE(AM), KDNO(FM), and from noncommercial Station
KUWT(FM).

4\. In its opposing comments, Lovcom, Inc., licensee of Stations
KROE(AM), KZWY(FM), and KYTI(FM), Sheridan, Wyoming, argues that Story
is not a "community" for allotment purposes. In support of its argument,
Lovcom states that Story is neither incorporated nor listed in the U.S.
Census, nor does petitioner establish that Story is a "geographically
identifiable population grouping." Lovcom further states that petitioner
has failed to estatabish a nexus between the social, economic and
governmental organizations and Story, citing [Avon, North
Carolina]{.underline}, 14 FCC Rcd 3939 (1999); and [Belview,
Minnesota]{.underline}, 11 FCC Rcd 12793 (1996). Futhermore, Lovcom
asserts that petitioner provided inaccurate and misleading information
about the existence of "community" indicia in Story, and failed to show
any nexus between organizations and businesses and the needs of Story
residents. Lovcom claims that the critical deficiency is petitioner's
failure to demonstrate that the organizations and businesses in Story
are intended to serve the residents of Story rather than residents in
other nearby areas such as Sheridan, citing [Lupton,
Michigan]{.underline}, 11 FCC Rcd 14428 (1996); [Pleasant Dale,
Nebraska]{.underline}, 14 FCC Rcd 18893 (1999);
[Kanarraville,]{.underline} Utah, 14 FCC Rcd 15962 (1999); and
[Littlefield, Arizona,]{.underline} 15 FCC Rcd 10263 (2000). Lovcom
submits an affidavit supporting its claim that Story does not possess
the "community" indicia to establish it as a "community" for allotment
purposes. For these reasons, Lovcom requests that the petitioner's
proposal be denied.

5\. In its reply comments, petitioners states that the Commission
defines "community" for allotment purposes as a "geographically
identifiable population grouping." Petitioner further states that Story
is listed in the 2000 U. S. Census as a Census Designated Place
(population 887), and that there is the presumption that it is a
"community" for allotment purposes. Story is also listed in the [2000
Rand McNally Commercial Road Atlas]{.underline} as having a population
of 700 persons, and appears on the Wyoming road map. Furthermore,
petitioner asserts that there are numerous other characteristics which
demonstrate that Story is a "community" for allotment purposes.
Petitioner submits an affidavit and responses to questionnaires/surveys
of residents and employees of businesses located in Story. The affidavit
declares that some of the businesses located in Story are: The
Balkenbush Real Estate Company, the T.L.C. Greenhouse, The Alpine
Excavation Company, the Wagon Box Inn Restaurant, Campground and Cabins,
the Tunnel Inn Restaurant, the Story Pines Inn, Electronic Classroom
Furniture, The Lodore Supper Club Restaurant, the Waldorf "A" Story
Restaurant and Deli, the Piney Creek General Store, Inc., the Wyoming
Game and Fish Department Fish Hatchery. Story also has a U.S. Post
Office, its own zip code (82842), its own telephone exchange (683),
Story Community Branch Library, Story Volunteer Fire Department, and the
Story Elementary School. There are three or four churches, and signs
were observed by the affiant for the Story Lions Club, The Story Women's
Club, a local park and playground equipment, the Thorn Rider Youth Camp,
and a Presbyterian Church. Petitioner asserts that the residents of
Story consider themselves not a part of any other community, but rather
a separate, self-contained community deserving of a first local aural
transmission service.

6\. In its reply comments, Lovcom contends that the gray area petitioner
claims will be eliminated is erroneous, in that petitioner used
nighttime service areas rather than daytime service areas for AM
stations. Therefore, when the daytime contours of AM stations area used
there are no gray area to be eliminated by the proposed reallotment.
Lovcom further argues that even if actual service contours of existing
FM stations were used rather than uniform circle, petitioner's proposal
would result in providing a sixth or higher aural service to all the
proposed service area. Thus, Lovcom concludes that even if Story were
deemed to be a "community" for allotment purposes, which it is not,
there would be "scant" public interest benefits. In response to Lovcom's
claims, petitioner submits an engineering statement demonstrating that
the reallotment of Channel 252C1 to Story will eliminate a gray area and
provide service to underserved populations. Petitioner asserts that the
Commission has specified the methodology to be used to conduct reception
service analyses in numerous rule making cases, citing [Woodville and
Wells, Texas,]{.underline} 15 FCC Rcd 18010 (2000). Petitioner further
asserts that these procedures were followed exactly in preparing its
analysis of reception services in the gain and loss areas, and that
Lovcom's analysis deviates from well-established Commission policies.

[Discussion]{.underline}

7\. As an initial matter, we find that petitioner has sufficiently
demonstrated that Story is a "community" for allotment purposes. To
establish that a locality is a "community" for allotment purposes, it
must be demonstrated that a locality has "social economic, cultural or
governmental indicia" which identify it as a community.
[See]{.underline} [Avon , North Carolina,]{.underline} 14 FCC Rcd 3939,
3940 (1999). It is sufficient to demonstrate that the locality is
"commonly regarded as a distinct group. This can be proven by the
'testimony of local residents or by objective indications of the
existence of a common perception that a locality's populace constitutes
a distinct geographical population.'" [Implementation of BC Docket No.
80-90 to Increase the Availability of FM Broadcast
Assignments,]{.underline} 5 FCC Rcd 934 (1990). The Commission has held
that "\[e\]xamples of objective indications of community status include
the existence of political, commercial, social and religious
organizations and services in the community. Another indication of
community status is 'whether the residents function as and conceive of
themselves as residents of a community, around which their interests
coalesce.'" Based on the information before us, we believe the public
interest would be served by the substitution of Channel 252C1 for
Channel 252C2 at Thermopolis, the reallotment of Channel 252C1 from
Thermopolis to Story, Wyoming, as the community's first local aural
transmission service.[^4]

8\. In considering a change of community of license proposal, we must
determine whether the proposal would result in a preferential
arrangement of allotments pursuant to the Commission\'s change of
community procedures. [See Change Community]{.underline},
[supra.]{.underline} Under those procedures, we

compare the existing arrangement of allotments with the proposed
arrangement of allotments using our FM allotment priorities.[^5]
[See]{.underline} [Revision of FM Assignment Policies and
Procedures]{.underline}, 90 FCC 2d 88, 92 (1982).

9\. In making that comparison, we find that the proposed arrangement of
allotments triggers priority (3)\--first local service. Under this
priority, Story would receive a first local aural transmission service.
The station is unbuilt and the reallotment will not result in the
removal of the sole local service in Thermopolis (population 3,172),
whereas, one AM and two FM stations would remain licensed to the
community. Moreover, our engineering analysis has determined that the
methodology used in petitioner's gain and loss are study is consistent
with the Commission's guidelines, and that theoretically, the
reallotment of Channel 252C1 to Story will provide new service to gain
area of 16,422 square kilometers (6,340.6 square miles) containing a
population of 29,562 persons. The reallotment would also eliminate a
gray area of approximately 810 square kilometers (312.7 square miles)
containing a population of 25 persons. On the other hand, we note that
the reallotment will create a loss area of 8,560.3 square kilometers
(3,305.2 square miles) containing a population of 8,248. The loss area
would continue to receive three or more reception services, and 50% of
the gain area would continue to receive three reception services. Since
the 70 dBu signal for the reallotment would not encompass 50% or more of
any urbanized area, a [Tuck]{.underline} analysis is not necessary.[^6]

[Technical Summary]{.underline}

10\. An engineering analysis has determined that Channel 252C1 can be
reallotted to Story in compliance with the Commission's minimum distance
separation requirements without the imposition of a site restriction at
petitioner's requested site.[^7] In accordance with Section 1.420(i) of
the Commission's Rules, we modify Station KHWC(FM)'s construction permit
to specify operation on Channel 252C1 at Story, Wyoming, as its new
community of license.

11\. 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, August 13, 2001, 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:

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

Thermopolis, Wyoming 269C1

Story, Wyoming 252C1

12\. IT IS FURTHER ORDERED, pursuant to Section 316(a) of the
Communications Act of 1934, as amended, that the construction permit of
Legend Communications of Wyoming, L.L.C. for Station KHWC(FM),
Thermopolis, Wyoming, IS MODIFIED to specify operation on Channel 251C1
at Story, Wyoming, subject to the following conditions:

> \(a\) Within 90 days of the effective date of this
> [Order]{.underline}, the permittee 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.
>
> \(c\) 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.

13\. 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, Legend Communications of Wyoming, L.L.C. permittee of Station KHWC(FM), is required to submit a rule making fee in addition to the fee required for the application to effect the upgrade and change in community of license.

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

Legend Communications of Wyoming, L.L.C.

5074 Dorsey Hall Drive, Suite 205

Elliott City, Maryland 21042

(Permittee of Station KHWC(FM))

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

16\. For further information concerning this proceeding, contact Sharon
P. McDonald, Mass Media Bureau, (202) 418-2180.

FEDERAL COMMUNICATIONS COMMISSION

FEDERAL COMMUNICATIONS COMMISSION

John A. Karousos John A. Karousos

Chief, Allocations Branch

Policy and Rules Division

Mass Media Bureau

[^1]: Call sign KHWC was assigned on April 17, 2001.

[^2]: The construction permit for Channel 252C2 at Thermopolis was
    assigned from Idaho Broadcasting Consortium, Inc. to Legend
    Communications of Wyoming, L.L.C. on May 31, 2000, and consummated
    on August 1, 2000.

[^3]: ^?^The Commission generally does not accept pleadings after the
    closing of the pleading cycle. However, since this clarification is
    of decisional significance and will enable us to have a complete
    record, it will be accepted and considered.

[^4]: Official Notice has been taken.

[^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. \[Co-equal weight
    given to priorities (2) ad (3).\]

[^6]: [See]{.underline} [Headland, Alabama and Chattahoochee,
    Florida]{.underline}, 10 FCC Rcd 10352 (1995); [Huntington
    Broadcasting Co.]{.underline} v. [FCC]{.underline} , 192 F.2d 33
    (D.C. Cir. 1951); [RKO General, Inc.]{.underline}, 5 FCC Rcd 3222
    (1990); and [Faye and Richard Tuck]{.underline}, 3 FCC Rcd 5374
    (1988).

[^7]: The coordinates for Channel 252C1 at Story are 44-34-28 North
    Latitude and 106-52-14 West Longitude.