**Before the**

**Federal Communications Commission**

##  Washington, D.C. 20554

In the Matter of )

)

# Amendment of Section 73.202(b), ) MM Docket No. 01-101

Table of Allotments, ) RM-10097

FM Broadcast Stations. )

(St. Augustine and Neptune Beach, )

Florida) )

**REPORT AND ORDER**

**(Proceeding Terminated)**

**Adopted: October 17, 2001 Released: October 26, 2001**

By the Chief, Allocations Branch:

1\. The Allocations Branch has before it the [Notice of Proposed Rule
Making]{.underline}, DA 01-1083, released April 27, 2001, \[66 FR 26825
(May 15, 2001) ("[Notice]{.underline}"), issued in response to a
petition for rule making filed by Clear Channel Broadcasting Licenses,
Inc. ("Clear Channel") licensee of Station WFKS(FM), Channel 250C2, St.
Augustine, Florida. Clear Channel requested the reallotment of Channel
250C2 to Neptune Beach, Florida, as that community's first local aural
transmission service, and the modification of Station WFKS's license to
specify Neptune Beach as its community of license. Clear Channel filed
comments reaffirming its proposal and reiterating its intent to
implement its proposal if the reallotment of Channel 250C2 to Neptune
Beach occurs. No other party filed comments or any other pleading in
this proceeding. In response to a staff inquiry, Clear Channel filed
additional information concerning its compliance with the criteria set
forth in [Faye and Richard Tuck]{.underline} ("[Tuck]{.underline}"), 3
FCC Rcd 5374 (1988), to demonstrate that Neptune Beach is sufficiently
independent of Jacksonville to merit a first local service preference.
For the reasons stated below, we grant Clear Channel's request to change
its community of license to Neptune Beach.

2\. Clear Channel filed its request to reallot Channel 250C2 to Neptune
Beach, Florida, 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 an opportunity to file competing expressions of
interest.[^1]

3\. The [Notice]{.underline} in this proceeding observed that Clear
Channel argues that the reallotment of Channel 250C2 from St. Augustine
(1990 U.S. Census population of 11,692 persons) to Neptune Beach (1990
U.S. Census population of 6,816 persons) is to be preferred under the
Commission's allotment priorities because it would provide Neptune Beach
with its first local aural transmission service (priority 3).[^2]
Neptune Beach is located within the Jacksonville Urbanized Area. In this
light, Clear Channel provided information to demonstrate that Neptune
Beach is independent of the urbanized area pursuant to the criteria set
forth in [Tuck]{.underline}, [supra]{.underline}, and warrants being
considered as a first local aural transmission service under priority
(3).[^3] Those criteria include (1) signal population coverage; (2) the
size and proximity of the suburban community to the central city; and
(3) the interdependence or independence of the suburban community to the
central city of the urbanized area. 3 FCC Rcd 7374 at 5377-78.[^4]

4\. With regard to the [Tuck]{.underline} criteria, the city of Neptune
Beach is located 25 kilometers (15.6 miles) east of the city reference
coordinates of Jacksonville, Florida. The facilities proposed by Clear
Channel at Neptune Beach would place a 70 dBu contour over 95.3 percent
of the Jacksonville Urbanized Area. There are no white or gray service
areas within the proposed gain or loss areas. All of the gain area
currently receives well over five aural services, and all of the loss
area will continue to receive over five aural services. Further, St.
Augustine, the community to which Station WFKS is currently assigned,
will continue to be the community of license of five radio stations.[^5]
Neptune Beach is an incorporated community with a 1990 U.S. Census
population of 6,816 persons. Neptune Beach's independence from
Jacksonville is demonstrated by the facts that it has its own city
government including an elected mayor and city council and an appointed
city manager (factor 4 under the [Tuck]{.underline} factors,
[supra]{.underline} at note 4) and provides its residents an extensive
variety of municipal services, including its own police and fire
departments, parks, sewage plant and water works (factor 8 under the
[Tuck]{.underline} factors). Neptune Beach also has its own health care
and commercial facilities. Among its retail establishments, the city has
four grocery stores, two pharmacies, five beauty salons, two hotels,
three banks, and over a dozen restaurants (factor 6 under the
[Tuck]{.underline} factors). In addition, Neptune has its own zip code,
thus satisfying factor 5 of the [Tuck]{.underline} factors.[^6] As to
[Tuck]{.underline} factor 1 which asks to what extent community
residents work in Jacksonville, Clear Channel notes that this
information is not available, but asserts that, based on 1990 U.S.
Census information, Neptune Beach has 3,766 jobs, which would be
sufficient to employ more than a majority of Neptune Beach's 6,816
residents. We agree with Clear Channel that such a substantial
opportunity for employment in Neptune Beach suggests that Neptune Beach
is not dependent on Jacksonville for its residents' employment.[^7]
Under [Tuck]{.underline} factor 3, which asks whether community leaders
and residents perceive the community as distinct from the central city
of the relevant urbanized areas, Clear Channel has provided three
declarations from leaders and residents of Neptune Beach which state
that the residents of Neptune Beach think of themselves as a "distinct
community around which their interests coalesce."

5\. We note that we have considered a community as independent when a
majority of the [Tuck]{.underline} factors demonstrate that the
community is distinct from the urbanized area. [See]{.underline},
[e.g.]{.underline}, [Parker and St. Joe, Florida]{.underline}, 11 FCC
Rcd 1095 (1996). Neptune Beach has clearly met this standard. In light
of the evidence described in the preceding paragraph of this Report and
Order, we conclude that Neptune Beach, although located within the
Jacksonville Urbanized Area, should be treated as a separate and
distinct community and should not be credited with transmission services
licensed to Jacksonville.

6\. Having made the foregoing decisions, we must determine whether Clear
Channel's proposal would result in a preferential arrangement of
allotments. To do so, we must compare the existing and proposed
arrangements of allotments using the allotment priorities set forth in
[Revision of FM Assignment Policies and Procedures]{.underline},
[supra]{.underline} at note 2. Since Neptune Beach would receive its
first local aural transmission service (priority 3), Clear Channel's
proposal to serve Neptune Beach is favored over the retention of the
allotment at St. Augustine (priority 4). Based upon the foregoing, we
believe that the public interest would be served by reallotting Channel
250C2 from St. Augustine to Neptune Beach. Therefore, in accordance with
the provisions of Section 1.420(i) of the Commission's Rules, we will
modify the license of Station WFKS(FM) to specify operation on Channel
250C2 at Neptune Beach, Florida.

7\. As stated in the [Notice]{.underline}, Channel 250C2 can be allotted
to Neptune Beach, Florida, in conformity with the minimum distance
separation requirements of Section 73.207(b) of the Commission's Rules,
utilizing Clear Channel's requested site at the coordinates of 30-16-53
North Latitude and 81-34-15 West Longitude.

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 December 10, 2001, the FM Table of
Allotments, Section 73.202(b) of the Commission's Rules, IS AMENDED for
the community listed below, as follows:

[Community]{.underline} [Channel Number]{.underline}

St. Augustine, Florida 231C3

Neptune Beach, Florida 250C2

9\. IT IS FURTHER ORDERED, pursuant to Section 316(a) of the
Communications Act of 1934, as amended, that the license of Clear
Channel Broadcasting Licenses, Inc. for Station WFKS(FM), St. Augustine,
Florida, IS MODIFIED to specify operation on Channel 250C2 at Neptune
Beach, Florida, subject to the following conditions:

\(a\) Within 90 days of the effective date of this [Order]{.underline},
the licensee 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 of the Commission's Rules.

\(c\) 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.

10\. Pursuant to Commission Rule Section 1.1104(l)(k) and (3)(m), 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, Clear Channel Broadcasting Licenses, Inc., licensee
of Station WFKS(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.

> 11\. IT IS FURTHER ORDERED That this proceeding IS TERMINATED.

5.  

12\. For further information concerning the above, contact R. Barthen
Gorman, Mass Media Bureau, (202) 418-2180.

FEDERAL COMMUNICATIONS COMMISSION

#  John A. Karousos 

#  Chief, Allocations Branch

Policy and Rules Division

Mass Media Bureau

[^1]: [See]{.underline} [Modification of FM and TV Authorizations to
    Specify a New Community of License]{.underline}, 4 FCC Rcd 4870
    (1989), [recon.]{.underline} [granted]{.underline} [in]{.underline}
    [part]{.underline}, 5 FCC Rcd 7094 (1990).

[^2]: [See]{.underline} [Revision of FM Assignment Policies and
    Procedures]{.underline}, 90 FCC 2d 88 (1992). 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 \[co-equal weight is given to priorities (2)
    and (3)\].

[^3]: [See]{.underline} [also]{.underline} [Huntington Broadcasting Co.
    v. FCC]{.underline} ( "[Huntington]{.underline} "), 192 F.2d 33
    (D.C. Cir. 1951).

[^4]: In [Tuck]{.underline}, the Commission set forth eight factors in
    assessing the independence of a specified community: (1) the extent
    to which the comunity 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 needs and interests; (3) whether community 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) whether the smaller community has its own local
    telephone book provided by the local 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 extent to which the specified
    community relies on the larger metropolitan area for various
    municipal services such as police, fire protection, schools, and
    libraries.

[^5]: These stations include educational stations WFCF(FM), Channel
    203A, and WAYL, Channel 220A; commercial FM Station WSOS, Channel
    231C3, and AM stations WFOY, 1240 kHz, and WAOC, 1420 kHz.

[^6]: [See]{.underline} [Jupiter and Hobe Sound, Florida]{.underline},
    12 FCC Rcd 3570, 3572-3573 (1997).

[^7]: [See]{.underline} [Jupiter and Hobe Sound, Florida]{.underline},
    [supra]{.underline}.