> **Before the**

**Federal Communications Commission**

##  Washington, D.C. 20554

In the Matter of )

)

# Amendment of Section 73.202(b), ) MB Docket No. 03-12 

# Table of Allotments, ) RM-10627 

FM Broadcast Stations. )

(Charles Town, West Virginia and Stephens )

City, Virginia) )

**MEMORANDUM OPINION AND ORDER**

**(Proceeding Terminated)**

**Adopted: February 15, 2006 Released: February 17, 2006**

By the Assistant Chief, Audio Division, Media Bureau:

1\. The Audio Division has before it: a Petition for Reconsideration of
the *Report and Order*[^1] in this proceeding, filed by Mid Atlantic
Network, Inc. ("Mid Atlantic"), licensee of Stations WINC(AM) and
WINC-FM, Winchester Virginia; an Opposition to Mid-Atlantic's Petition
for Reconsideration filed by Cleveland Radio Licenses, LLC ("Cleveland
Radio"), permittee of Station WKSI-FM,[^2] Stephens City, Virginia, a
Reply to the foregoing Opposition filed by Mid-Atlantic; a Supplement to
Mid-Atlantic's Petition for Reconsideration;[^3] an Opposition to
Mid-Atlantic's Supplement filed by Cleveland Radio; and a Reply to
Cleveland Radio's Opposition filed by Mid Atlantic. For the reasons
stated below, we deny the Petition for Reconsideration.

2\. The *Report and Order* granted Cleveland Radio's request to reallot
Channel 252A, Station WKSI-FM, Charles Town, West Virginia, to Stephens
City Virginia, as that community's first local aural transmission
service, and modified Station WKSI-FM's license to specify Stephens City
as its community of license. Cleveland Radio made the reallotment
request pursuant to Section 1.420(i) of the Commission's rules,[^4]
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.[^5]

3\. Mid Atlantic's Petition for Reconsideration of the *Report and
Order*, asserts that Cleveland Radio should have submitted a *Tuck*[^6]
showing because Stephens City, Virginia, is located within the
Winchester, Virginia Urbanized Area and Station WKSI-FM will cover 100
percent of that urbanized area with its 70 dBu contour. Mid Atlantic
claims that Stephens City is not independent of the Winchester Urbanized
Area, based on its analysis of Stephens City pursuant to *Tuck*. In
addition, Mid Atlantic claims that Cleveland Radio, which is a
subsidiary of Clear Channel Broadcasting Licenses ("Clear Channel"), is
moving Station WKSI-FM to Stephens City in order to fulfill Clear
Channel's plan to increase its market dominance of the Winchester
Urbanized Area.

4\. Cleveland Radio agrees that it should have submitted a *Tuck*
showing as part of this rulemaking proceeding because it is located in
the Winchester Urbanized Area, as defined by the 2000 U.S. Census, and
its proposal would place a 70 dBu contour over 100 percent of that
urbanized area. Cleveland Radio notes that when it filed its Petition
for Rule Making, it relied on the 1990 U.S. Census, which did not
include Stephens City in the Winchester Urbanized Area. Cleveland Radio
has submitted a *Tuck* showing in its Opposition to Mid Atlantic's
Petition for Reconsideration. As discussed below, Cleveland Radio has
demonstrated that Stephens City is sufficiently independent of the
Winchester Urbanized Area that the Commission can award Stephens City a
first local service preference under priority (3) of the FM allotment
priorities. Under *Tuck*, we examine such proposals by considering three
criteria: (1) the signal population coverage, (2) the size and proximity
of the proposed community to the central city of the urbanized area, and
(3) the interdependence of the proposed community to the urbanized
area.[^7] The interdependence criterion is the most important criterion
considered in making an allotment decision involving the proposed
reallotment of a station to an urbanized area. With respect to the
Winchester Urbanized Area, Stephens City is about 12 kilometers away
from Winchester and Stephens City's 2000 U.S. Census population of 1,146
is approximately 5 percent of the population of Winchester (2000 U. S.
Census of 23,585). These figures are similar to those where suburban
communities were granted a first local preference.[^8]

5\. In this instance, a majority of the eight *Tuck* factors support a
determination that Stephens City is independent from the Winchester
Urbanized Area. With respect to *Tuck* factor (1), the extent to which
community residents work in the larger metropolitan area, rather than
the specified community, 2000 U.S. Census data indicate that 11 percent
of Stephens City's employed residents work in Stephens City. This
percentage, along with the presence of local businesses under *Tuck*
factor (6), supports a determination of significant employment
opportunities under *Tuck* factor (1).[^9] Under *Tuck* factor (2),
whether the smaller community has its own weekly newspaper or other
media that cover the community's local needs and interests, Stephens
City maintains a website which contains pertinent information about
Stephens City businesses, municipal services provided by that city, job
opportunities, schools and community activities. In addition, Stephens
City publishes a bi-weekly newsletter providing citizens information on
city events, seasonal city services, local ordinances, business
licenses, and information provided by the Mayor and the Chief of Police.
Although these media are relatively limited in scope, they are deserving
of credit under *Tuck* factor (2). As to *Tuck* factor (3), whether the
smaller community's leaders and residents perceive Stephens City as
being separate from the Winchester Urbanized Area, Stephens City
deserves a favorable finding. Stephens City was chartered in 1758.
Although it was initially called Stephensburg, it is one of the oldest
towns in the Shenandoah Valley. Under *Tuck* factors (4) and (8),
Stephens City has its own local government and elected officials, and
also has a town treasurer, town attorney, and town administrator. Its
offices, departments and divisions include police, public safety, water
and sewer, planning, zoning, street maintenance, refuse and recycling.
Stephens City's Police Department consists of three officers and two
auxiliary officers, while its Volunteer Fire and Rescue Company consists
of two fulltime professional fire personnel and a volunteer staff. We
recognize that many rural towns and Census Designated Places rely on the
counties in which they are located to provide many services. In this
case, Frederick County, in which Stephens City is located, provides
public schools, a library, and some police and fire services for
Stephens City. Stephens City does not rely on Winchester for these
services. Thus, Stephens City deserves favorable findings under factors
(4) and (8).

6\. Under *Tuck* factor (5), Stephens City earns a favorable finding
because it has a post office and its own zip code. Under *Tuck* factor
(6), Stephens City has numerous commercial establishments, several
health providers, civic organizations and churches, and a few businesses
and organizations that use "Stephens City" in their names. Thus,
Stephens City receives a favorable finding under *Tuck* factor (6).
Insofar as *Tuck* factor (7) is concerned, we cannot make a favorable
finding even though Stephens City has some local media under *Tuck*
factor (2). In conclusion, the reallotment of Channel 252A from Charles
Town, West Virginia, to Stephens City, Virginia, is supported by a
majority of the *Tuck* factors. In light of all the relevant factors in
this case, we find that changing the community of license of Station
WKSI-FM from Charles Town, West Virginia, to Stephens City, Virginia, is
in the public interest.

7\. Mid Atlantic has also set forth competition-related arguments
focusing on Cleveland Radio's decision to move Station WKSI-FM from
Charles Town, West Virginia, to Stephens City, Virginia and the
allegation that the addition of Station WKSI-FM to the Winchester
Virginia market would "greatly reduce competition in the Winchester
market." In regard to questions concerning the Commission's multiple
ownership rules and related issues concerning concentration of control
of stations in the Winchester radio market, it is established policy not
to consider such issues in conjunction with an allotment rulemaking
proceeding. Rather, any issue with respect to compliance with Section
73.3555 of the Rules will be considered in conjunction with the
application to implement the reallotment.[^10] As the Commission has
stated previously, this policy is intended "...to achieve an efficient
and orderly transaction of both the rulemaking and the application
process" and recognizes that "a rulemaking proceeding involves a
technical and demographic analysis of competing proposals in the context
of Section 307(b) of the Act."[^11] Further, the Commission's *Ownership
Order*[^12] did not direct the staff to change this policy.[^13]
Consequently, concentration of control and multiple ownership issues are
not bases for denial of this rulemaking proposal.

8\. Accordingly, IT IS ORDERED That the Petition for Reconsideration and
the Supplement thereto filed by Mid Atlantic Network, Inc., ARE DENIED.

9\. IT IS FURTHER ORDERED That this proceeding IS TERMINATED.

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

FEDERAL COMMUNICATIONS COMMISSION

#  John A. Karousos 

#  Assistant Chief 

#  Audio Division Media Bureau 

[^1]: 18 FCC Rcd 22038 (MB 2003)

[^2]: ^?^ At the time the *Report and Order* was adopted, the call sign
    for this station was WXVA-FM.

[^3]: ^?^ Mid Atlantic filed a Motion for Leave to Supplement its
    Petition for Reconsideration along with the Supplement itself. To
    assure a complete record in this case, we grant that motion. We have
    also considered the Opposition to that Supplement and the Reply to
    the Opposition.

[^4]: ^?^ 47 C.F.R. § 1.420(i).

[^5]: *See* *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 7094 (1990).

[^6]: *Faye and Richard Tuck*, 3 FCC Rcd 5374 (1988) ("*Tuck*").

[^7]: In *Tuck*, the Commission set forth eight factors in assessing the
    independence of a specified community: (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 weekly newspaper or other media that cover the community's
    local needs and interests; (3) whether the 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 zip code or
    telephone book provided by the local telephone company; (6) whether
    the community has its own commercial establishments, health facility
    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. 3 FCC Rcd at
    5378. The Commission has considered a community as independent when
    a majority of these factors demonstrate that the community is
    distinct from the urbanized area. *See Parker and St. Joe, Florida*,
    11 FCC Rcd 1095 (M.M.Bur. 1996).

[^8]: See, e.g.*, Chillicothe and Ashville,Ohio*, 18 FCC Rcd 22410 (MB
    2003) (smaller community had less than one percent of the central
    city's population).

[^9]: The Commission has found that 16 percent of a community's
    workforce employed in the community is sufficient to support a
    favorable finding under *Tuck* factor 1. *See Anniston and Ashland,
    Alabama, and College Park, Georgia, et al.*, 16 FCC Rcd 3411 (MMB
    2001).

[^10]: *See Chillicothe and Ashville, Ohio*, 18 FCC Rcd 22410, 22414 (MB
    2003), *application for review pending*, and *Chillicothe, Ohio et
    al*., 20 FCC Rcd 6305 (MB 2005), *petition for reconsideration
    pending*. *See also, Detroit Lakes and Barnesville, Minnesota, and
    Enderlin, North Dakota*, 17 FCC Rcd 25055, 25059-60 (MB 2002); and
    *Letter from Peter H. Doyle, Acting Chief, Audio Services Division,
    to Paul A. Cuelski, Esq. et al., File No. BAPH-20011101 ABD* (May
    24, 2001).

[^11]: *Detroit Lakes and Barnesville, Minnesota, and Enderlin, North
    Dakota, supra* note 10, 17 FCC Rcd at 25059.

[^12]: *See 2002 Biennial Regulatory Review-Review of Commission's
    Broadcast Ownership Rules and Other Rules*, 18 FCC Rcd 13620 (2003),
    *aff'd in part and remanded in part, Prometheus Radio Project, et
    al. v. F.C.C.*, 373 F.3d 372 (2004), *stay modified on reh'g*, No.
    03-3388 (3^rd^ Cir. Sept. 3, 2004), *cert. denied*, 125 S. Ct 2902,
    2903, 2904 (2005).

[^13]: *See* *Chillicothe and Asheville, Ohio, supra* note 10, 18 FCC
    Rcd at 22414.