**JOINT DISSENTING STATEMENT OF**

**COMMISSIONER MICHAEL J. COPPS**

**AND**

**COMMISSIONER JONATHAN S. ADELSTEIN**

 

**Re:       *Amendment of Section 73.202(b), Table of Allotments, FM
Broadcast Stations (Evergreen, Alabama and Shalimar, Florida), MB Docket
No. 04-219; In the Matter of Section 73.202(b), Table of Allotments, FM
Broadcast Stations (Lincoln and Sherman, Illinois), MM Docket No.
01-120.***

One of the more tangible ways in which the Commission's arcane allotment
policies have an impact on localism is how we address the migration of
radio stations from rural to urban markets.

Not to make light of a serious matter, but this has almost become a
parlor game. The goal of the game---whether you're applying for a new
station or a station currently licensed to a rural area---is to move as
close to a big market as possible. The closer you get to a big market,
the more potential listeners you can reach and hence the more
advertising dollars you can attract.

But there's a catch---at least there's supposed to be. The Commission is
required by Section 307(b) of the Communications Act "to provide a fair,
efficient, and equitable distribution of radio service" to "the several
States and communities." The FCC cannot simply permit radio stations to
relocate from rural areas to well-served urban markets without violating
that mandate.

That's when the game gets interesting. Under our FM allotment rules, the
Commission will give a preference to any applicant that proposes to
serve a community with ***no*** current licensees---*i.e.*, not that the
community doesn't receive radio service (it could receive service from
dozens of stations) but that no station lists that particular community
as its "community of license." That's where a good atlas comes in handy.
The next step is to scour the maps to find a community near an urban
area that doesn't yet have any stations licensed to it. You win the game
if you get the FCC to grant you a preference for providing "first
service" to a close-in suburban community while being able to cover the
larger market.

On their face, these cases certainly seem to fit that pattern. Why else
would Saga want to change its community of license from Lincoln,
Illinois (population 15,369) to the much smaller Sherman, Illinois
(population 2,871)---other than Sherman's adjacency to the Springfield
urban market? Similarly, why else would Gulf Coast seek to change its
community of license from Evergreen, Alabama (population 3,630) to tiny
Shalimar, Florida (population 718)---other than Shalimar's proximity to
the Ft. Walton urban market?

The Commission is supposed to keep the game honest by declining to grant
"first service" preferences for communities that are not truly
independent of the nearby urban market. This determination is made by
applying the three-pronged *Tuck* test.[^1] It is not so much the *Tuck*
test itself but the majority's lax application that causes me concern.
As described below, the majority's *Tuck* analysis is so feeble that it
scarcely amounts to a test at all.[^2]

*The Coverage Factor.* The majority finds that the Sherman station could
serve most, if not all, of the Springfield Urbanized Area, and that the
Shalimar station would "invariably" serve a significant portion of the
Ft. Walton Urbanized Area. Nevertheless, the majority "sees no public
benefit" in encouraging stations to reduce their coverage areas in order
to satisfy *Tuck*, and thus simply ignores this factor. The majority
misses the point. To some extent, we are trying to assess the intent of
the stations involved. Are they primarily interested in serving the
smaller community or the broader urban market? Signal coverage may not
be determinative on that question, but it is not irrelevant.

*The Relative Size and Distance Factor.* Sherman is 6.7 miles from the
center of Springfield with a population less than 3% of Springfield's
size (2,871 vs. 111,454). Shalimar is less than 1.5 miles from Ft.
Walton Beach---the communities actually are separated by only six-tenths
of a mile across Choctawhatchee Bay---and its population is less than 4%
its size (718 vs. 19,973). In light of *RKO*---in which the Commission
made an unfavorable finding based on a smaller community that was 16
miles from the urban market and 11% of its size---one would think that
the majority would make an unfavorable finding here. But the majority
ignores the distance factor altogether and relies on a staff decision
for the astonishing proposition that a community with ***less than 1%***
of the relative population of the larger market is not enough to justify
an unfavorable finding. If that is true, the second *Tuck* factor may as
well be eliminated entirely.

*The Independence Factor.* In both of these cases the majority concludes
that a majority of the eight indicia of "independence" support a
favorable finding---5 1/2 out of 8 favorable in *Sherman*, and 5 out of
8 favorable in *Shalimar*.[^3] But these findings do not withstand
scrutiny.

One indicia is work patterns: do the residents of the smaller community
remain in the community for work or do they commute to the larger
market? The majority speculates that up to 40% of Sherman residents work
in Sherman "or its immediate environs" based on the fact that (1) the
driving time from Sherman to the center of Springfield is approximately
15-25 minutes, and (2) census data shows that 40% of Sherman residents
commute 15 minutes or less to work. But there's no reason to suppose
that all Springfield jobs are located in the center of the city. The
Springfield airport, for instance, is closer to Sherman than the city
center. Moreover, Sherman is only about 3 miles long and 3.1 square
miles in total area.[^4] Given its size, any Sherman resident with a
commute longer than ten minutes is unlikely to work in the community,
thus making the likely number of residents who work in Sherman closer to
7.8% (the Census Bureau estimate of Sherman residents who work less than
ten minutes from home).

The Shalimar facts are even more compelling. Shalimar is only about one
mile long. At 30 miles per hour, it would take only two minutes to drive
the length of the community. The average commute time for Shalimar
residents is 16.3 minutes. Somehow, the majority concludes from these
facts "that a significant number of Shalimar residents work in or very
near Shalimar." This astonishing assertion is unsupported in the record
and contrary to common sense.

Another indicia is the "perception of community leaders and residents."
The majority makes a favorable finding in *Shalimar* based on a letter
from the Town Manager referring to "the strong sense of community." If
this is sufficient, we may as well just permanently assign this factor
to the favorable column and save the postage.

A third indicia is whether the smaller community has its own commercial
establishments, health facilities, and transportation systems. The idea
is to assess whether the community is self-sufficient or whether it
relies on the larger community to meet its basic needs. Here, neither of
these communities has the types of businesses one would expect to find
in a truly independent community. For instance, there is no indication
that either community has a grocery store, a hospital, a department
store, a dry cleaner, or a drugstore. Nevertheless, the majority finds
this factor is met in both cases based on a hodgepodge of "local
businesses" that just about any community could satisfy.

Thus, it appears that neither of these applications should have passed
muster under *Tuck* (although Sherman is a somewhat closer case). If the
majority wants to change the *Tuck* standard, it should do so openly
rather than maintaining the pretense of a test but draining it of any
practical effect. I am not proposing that we eliminate *Tuck*, only that
we enforce it. At the same time, I recognize that we have sought comment
on a proposal to authorize a station to change its community of license
to any community within the same market, provided that if the community
being vacated is left without a radio station, the vacating licensee
must underwrite the cost of a new LPFM station in the vacated community
for the period of one year.[^5] I express no view on that proposal, but
believe strongly that whatever rules we adopt in this area must actually
be enforced. Creating rules without adequate enforcement only invites
cynicism about the Commission's processes and unduly favors Washington
insiders who understand the way the game is played.

In the end, of course, this is no game. The residents of Lincoln,
Illinois have lost one of their three local stations (and only
commercial FM station), and the residents of Evergreen, Alabama have
lost one of only two local stations (and their only FM station). Those
stations were allowed to pack up and leave because the Commission no
longer provides a meaningful check under Section 307(b). The pay-off for
station owners can be swift. Gulf Coast Broadcasting has already sold
its Shalimar station to radio giant Cumulus and the station is now part
of Cumulus's four-station cluster in the Ft. Walton market. So Gulf
Coast won a big payday and Cumulus was able to further consolidate its
holdings in Ft. Walton.

Game over.

[^1]: The *Tuck* standard examines: (1) the station's proposed signal
    coverage over the urbanized area (the "Coverage Factor"); (2) the
    relative population size and distance between the suburban community
    and the urban market (the "Relative Size and Distance Factor"); and
    (3) the independence of the suburban community, based on various
    factors that would indicate self-sufficiency (the "Independence
    Factor"). *See Faye and Richard Tuck*, 3 FCC Rcd 5374 (1988).

[^2]: At one time, the Commission took the *Tuck* standard seriously. In
    *RKO General*, 5 FCC Rcd 3222 (1990), the Commission refused to give
    an applicant credit for providing "first local service" to Richmond,
    California, a community of 74,676 residents located 16 miles
    northeast of San Francisco across the San Francisco Bay. The
    Commission found that the three *Tuck* factors weighed against a
    granting a Section 307(b) preference to Richmond because of its
    interdependence with the San Francisco urban market. First, the
    Commission found that the proposed Richmond facilities were
    identical to facilities other applicants had proposed to serve the
    broader San Francisco market. Second, the Commission found that
    Richmond was located only 16 miles from San Francisco and only had
    11% of the population. Finally, applying the eight indicia of
    independent communities set forth in *Tuck*, the Commission found
    that there was insufficient evidence that Richmond was truly
    independent of San Francisco (*e.g.*, only 35.1% of Richmond
    residents worked in Richmond, Richmond did not have a major public
    hospital or a local public transportation system, and Richmond was
    served by 25 other radio stations licensed to San Francisco).

[^3]: The majority does not give full credit for one of the indicia in
    *Sherman* because while Sherman has its own zip code it does not
    have its own phone book.

[^4]: *See* http://www.shermanil.org/images/village_map/VILLAGE_MAP.pdf

[^5]: *See Report and Order and Third Notice of Proposed Rulemaking,* 23
    FCC Rcd 5922 (2008), ¶ 98.