**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of

Amendment of Section 73.202(b), ) MM Docket No. 98-55

FM Table of Allotments, ) RM-9255

FM Broadcast Stations. ) RM-9327

(Pleasanton, Bandera )

Hondo, and Schertz, Texas) )

**REPORT AND ORDER**

**(Proceeding Terminated)**

**Adopted: February 9, 2000 Released**: **February 18, 2000**

By the Chief, Allocations Branch:

1.  Number range level0Number range level1Number range level2Number
    range level3Number range level4Number range level5Number range
    level6Number range level7The Commission has before it the *Notice of
    Proposed Rule Making*, 13 FCC Rcd 7351 (1998 (\"*Notice*\"), issued
    in response to a petition filed by Reding Broadcasting Co.
    (\"petitioner\"), licensee of Station KBUC(FM), Channel 252A,
    Pleasanton, Texas. Petitioner requested the substitution of Channel
    253C2 for Channel 252A at Pleasanton, Texas, and the modification of
    Station KBUC(FM)'s license accordingly. To accommodate this upgrade,
    the petition proposes the substitutions of Channel 290A for Channel
    253A at Hondo, Texas and Channel 276A for Channel 252A at Bandera,
    Texas, a change of site for Hondo, and a modification of the
    licenses for Stations at Bandera and Hondo. It includes a pledge to
    reimburse the licensee at Bandera and the permittee at Hondo for
    their expenses in effectuating the channel substitutions and the
    change of transmitter site at Hondo, as well as an agreement to the
    site relocation signed by the permittee at Hondo.

2.  Petitioner filed comments and a counterproposal.[^1] North American
    Broadcasting Co. ("NABC"), an applicant at Karnes City, Texas, and
    Comal Broadcasting Company (\"Comal") also filed comments and
    counterproposals. Reply comments were filed by petitioner, NABC,
    Comal, La Radio Cristiana Network, permittee of Station KAYG(FM),
    Camp Wood, Texas, and jointly by James Withers, licensee of Station
    KEEP(FM), Bandera, Texas and Five Points Broadcasting, Inc.,
    permittee of Station KRBH(FM) Hondo, Texas. [^2]

3.  In response to the *Notice* proposing an upgrade at Pleasanton and
    related channel substitutions, petitioner filed comments and a
    counterproposal requesting the substitution of Channel 253C1 for
    Channel 252A instead of Channel 253C2, and a change of community
    from Pleasanton to Schertz, Texas, with the same related channel
    substitutions at Hondo and Bandera. NABC requests that alternate
    Channel 256A be substituted at Bandera, Texas instead of Channel
    276A, with a related channel substitution of Channel 251A for
    Channel 256A at Camp Wood, Texas to make available a previously
    proposed site for the allotment at Karnes City.[^3] Comal requests,
    as an alternative to the upgrade at Pleasanton, the allotment of
    Channel 253C2 at Blanco, Texas, with the same related channel
    substitutions at Hondo and Bandera as proposed by petitioner.[^4]

4.  Petitioner filed its counterproposal 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. *See Report
    and Order* in MM Docket No. 88-526 (\"*Change of Community R&O*\"),
    4 FCC Rcd 4870 (1989), *recon. granted in part* (\"*Change of
    Community MO&O*\"), 5 FCC Rcd 7094 (1990).[^5] In support of the
    proposal, petitioner states that the requested reallotment, which is
    mutually exclusive with its existing authorization on Channel 252A
    at Pleasanton, as well as its proposed allotment at Pleasanton,
    would fulfill a higher allotment priority by providing a first local
    aural service to Schertz, while Pleasanton will continue to receive
    local full-time service from AM Station KBOP. In support of its
    counterproposal, petitioner states that after it filed its original
    proposal for Pleasanton and while it reviewed possible transmitter
    site locations for that allotment, it discovered that its Station
    KBUC(FM) might be able to upgrade to a Class C1 station. It states
    that it has located a suitable and available tower which would
    accommodate this upgrade. However, it states that it cannot cover
    the community of Pleasanton with a city-grade signal from this site
    and thus the allotment of Channel 253C1 requires a change of
    community to Schertz from Pleasanton. It acknowledges that Schertz,
    a community of 14,014 persons, is partially in the San Antonio
    Urbanized Area and that Channel 253C1, if allotted, would cover over
    99% of the San Antonio Urbanized Area with a 70dBu, or city grade,
    signal. It argues that the reallotment should be granted because the
    community of Schertz is separate and apart from the Urbanized Area
    and thus warrants an allotment to the community as a first local
    aural service. It offers an analysis of the community *vis á vis*
    the Urbanized Area and in support of its conclusion that the
    community is independent and not interdependent with the Urbanized
    Area, citing *Faye and Richard Tuck* (\"*Tuck*\"), 3 FCC Rcd 5374
    (1988). In the alternative, petitioner requests that the Commission
    grant its proposal for channel 253C2 at Pleasanton if it determines
    that Schertz is not deserving of an allotment. Petitioner states
    that it will apply for either channel, if allotted.

5.  NABC opposes petitioner's counterproposal at Schertz. It argues that
    petitioner's proposal to Schertz should be denied and its proposal
    to Pleasanton should be granted because the community of Schertz is
    interdependent with the San Antonio Urbanized Area and does not
    warrant a first local service preference under the FM allotment
    priorities. In addition, it claims that petitioner's representations
    regarding its proposed Channel 253C1 transmitter site at Schertz and
    its intention to serve the community of Schertz belie its actual
    intention to serve the San Antonio Urbanized Area. NABC also argues
    that the Commission should deny petitioner's proposal to change
    community because a grant will further exacerbate the migration of
    stations from rural to urban areas.

6.  In its reply comments, petitioner alleges that both the NABC and
    Comal counterproposals should be dismissed as defective. Petitioner
    claims that NABC failed to include coordinates for a site for the
    Karnes City allotment or an engineering report in support of its
    proposal for that site. Petitioner also alleges that Comal failed to
    include a statement from Five Points Broadcasting, Inc. that it is
    willing to change transmitter site to accommodate the allotment at
    Blanco. Petitioner also alleges that both counterproposals failed to
    include pledges to reimburse the licensees or permittees whose
    channels they proposed to substitute.

**DISCUSSION**

7.  We will grant the proposal to Schertz as filed by petitioner. As a
    threshold matter, we agree with petitioner that Comal's
    counterproposal is defective. It failed to include a statement from
    Five Points Broadcasting, Inc., that it is willing to change
    transmitter site to accommodate the allotment at Blanco and failed
    to include pledges to reimburse the licensees or permittees whose
    channels they proposed to substitute.[^6] We also agree that NABC's
    counterproposal is defective and must be dismissed for its failure
    to include pledges to reimburse the parties at Bandera and Hondo for
    the costs associated with channel and transmitter site changes, but
    disagree with petitioner that the counterproposal contained
    insufficient engineering information.[^7] We note that even if each
    of these counterproposals were considered in a comparative analysis
    with petitioner's counterproposal at Schertz, they would not be
    chosen as a preferential arrangement of allotments. The proposal at
    Blanco, a first local service, would serve a smaller community and
    approximately one-tenth the number of persons.[^8] NABC's proposal
    at Bandera and Camp Wood would simply accommodate NABC's described
    technical difficulties and apparently speculative concerns about
    future improvements at Karnes City and the other involved
    communities, which do not establish a public interest benefit which
    could form the basis for a grant in a comparative analysis with
    Schertz. However, petitioner's proposal at Schertz would prevail in
    any event as a first local service under FM allotment priority
    three, whereas NABC's proposal would fall under priority four, other
    public interest matters. We note that NABC's application prevailed
    at auction at Karnes City, which it could amend to achieve its
    desired results using the various methods available to applicants,
    such as contour protection.

8.  We believe that petitioner's showing has established the
    independence of Schertz from the San Antonio Urbanized Area. The
    allotment of Channel 253C1 could provide the community with its
    first local aural service while Pleasanton would retain local aural
    service from Station KBOP(AM). We do not question Schertz's status
    as a community for allotment purposes. However, we agree that this
    proposal must fulfill a majority of the eight interdependence
    criteria spelled out in *Tuck*. NABC accurately notes that the first
    two criteria support a finding that the proposal would serve the
    surrounding Urbanized Area rather than the independent community.
    Schertz is partially located within the San Antonio Urbanized Area,
    and the allotment of a C1 Channel would cover over 99% of the
    Urbanized Area. Therefore, petitioner, in recognition of this, has
    provided information in support of its argument that Schertz is
    independent of the Urbanized Area and thus entitled to a first local
    service preference using the factors enumerated in *RKO General*
    ("*KFRC* "), 5 FCC Rcd 3222 (1990) and *Tuck*.[^9] In addition,
    petitioner has provided data regarding the areas and populations
    which would gain and lose service if Channel 253 C1 were allotted to
    Schertz.

9.  Based on the showing presented by petitioner, we find that Schertz
    is a community independent of the San Antonio Urbanized Area.
    Although it does not fulfill all of the delineated eight factors, it
    does satisfy a majority of them, which is sufficient to demonstrate
    a community's independence. *See Tuck*; *Report and Order* in MM
    Docket No. 95-32 ("*Parker and St. Joe, Florida*"), 11 FCC Rcd 1095
    (1996). First, petitioner states that it does not have information
    to prove where the residents of Schertz work, but that there are a
    good number of businesses located in Schertz to make employment
    available to a number of residents. While this may show that
    employment opportunities are available, it is not sufficient to
    establish that a majority of residents live and work in the
    community, as we have generally required. \[cite\] Second,
    petitioner shows that the city of Schertz is served by a monthly
    newsletter, as well as *The Herald*, a weekly publication that
    covers all local activities. The newspaper used by the city for
    publication of bids, employment openings, public hearings, and
    ordinances is the *Seguin Gazette-Enterprise*, which is published
    six days a week in the city of Seguin. NABC points out that neither
    newspaper is a Schertz publication; however, we note that since
    neither is a San Antonio publication, this does not establish
    interdependence. Furthermore, Schertz does have its own monthly
    newsletter, which in conjunction with the other papers minimally
    satisfies this criterion. Third, petitioner notes that the city of
    Schertz has a distinct history, that a number of businesses identify
    strongly with the city and include the word "Schertz" in their
    names, and that the City Secretary attests that the city government
    perceives itself as an autonomous community from San Antonio. While
    NABC challenges this on the basis that it is supported only by one
    letter from a city official, we believe this is a satisfactory
    showing with sufficient documentation. In addition, the letters NABC
    offered to support its allegation of interdependence do not persuade
    us to the contrary, because they do not address or establish a
    majority of the *Tuck* factors. Fourth, petitioner proffers that the
    city has its own local government and elected officials and thus is
    independent. It shows that Schertz was incorporated by the State of
    Texas in 1958; it has a council-manager form of government and has
    an elected mayor. The City Manager is the Chief Administrative
    Officer. The city government has 144 full-time employees, including
    a Comptroller, Police Chief, Public Works Director, among others,
    and a Municipal Court Judge, Prosecutor, City Engineer, and City
    Auditor under contract. This is not disputed and is more than
    adequate to support a finding of independence. Fifth, the city of
    Schertz has one zip code, and post office, and is served by a
    telephone book separate from San Antonio. This is not challenged and
    we find it to be satisfactory. Sixth, the city has numerous
    commercial establishments, churches, VFW, DAV, Elks, Knights of
    Columbus, Lions, Kiwanis and Jaycees. Schertz does not have its own
    hospital, but it does have medical clinics and dentists and it has a
    veterinary clinic. This is an adequate showing in support of
    independence and is also not disputed. Seventh, with respect to the
    advertising market, petitioner provided no information. Eighth, the
    city has its own Police Department, Fire Department, schools and
    library. Its Public Works department provides water service, streets
    and parks, a city pool and animal control. Its school district,
    Schertz-Cibolo Universal City School District, is independent of San
    Antonio. Its library has more than 40,000 volumes. All of these
    factors support a finding of independence.

10. With respect to NABC's allegations as to petitioner's intentions to
    serve the community, we find that there is no evidence to support
    these allegations. Petitioner did not allege that the site serving
    Schertz was the only site it could locate, nor was it required to
    allege this. With respect to NABC\'s concerns regarding possible
    abuse of the Commission's process in order to remove service from a
    rural area to move into an urban area, there is no prohibition on
    such a move as long as it complies with the Commission's FM
    allotment priorities. *See Change of Community R&O* 4 FCC Rcd
    at 4873. We have determined that this reallotment does comply with
    our FM allotment priorities and thus fulfills the public interest.
    No abuse has been demonstrated. As an additional point of fact, we
    note that petitioner pledged to reimburse both James Withers,
    licensee of Station KEEP(FM), Bandera, Texas for its reasonable
    expenses for changing frequency and Five Points Broadcasting, Inc.,
    permittee of Station KRBH(FM) Hondo, Texas for its reasonable
    expenses of changing frequency and transmitter location.[^10]

11. Petitioner also states, and a Commission staff engineering analysis
    confirms, that the proposed Class C1 station at Schertz will provide
    a 60dBu signal to over 1,300,000 persons. The proposed change of
    community will also result in a small loss area of 374 square
    kilometers with a population of 1,044 persons; this area will
    continue to receive service from at least five radio stations.

12. The allotment of Channel 253C1 at Schertz, Texas, can be made at
    petitioner's requested site 44.1 kilometers (27.4 miles) west of the
    community.[^11] The allotment of Channel 276A at Bandera can be made
    at Station KEEP(FM)'s licensed site.[^12] The allotment of Channel
    290A at Hondo can be made with a site restriction of 10.4 kilometers
    (6.4 miles) west of the community.[^13] We note that these
    communities are located within 320 kilometers (199 miles) of the
    U.S.-Mexico border, and concurrence of the Mexican government has
    been received for these allotments.

13. 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 3, 2000 ,
    the FM Table of Allotments, Section 73.202(b) of the Commission\'s
    Rules, IS AMENDED for the communities listed below, as follows:

Community Channel Number

Schertz, Texas 253C1

Bandera, Texas 276A

Hondo, Texas 290A

14. IT IS FURTHER ORDERED, That the Secretary of the Commission shall
    send by Certified Mail, Return Receipt Requested, a copy of this
    *Order* to the following:

Mark N. Lipp James G. Withers

Shook, Hardy and Bacon 1921 Crampton Court

801 Pennsylvania Ave., NW Chesterfield, MO 63017

Suite 600 (Licensee of Station KEEP(FM))

Washington, DC 20004

and

Gene A. Bechtel Five Points Broadcasting, Inc.

Bechtel & Cole, Chartered 9450 Plainfield Drive

1901 L Street, NW Rock Hill, MO 63119

Suite 250 (Permittee of Station KRBH(FM))

Washington, DC 20036

(Counsel for petitioner)

Henry E. Crawford Bruce A. Eisen

Smithwick & Belendiuk Kaye, Scholer, Fierman, Hays & Handler

1990 M Street, N.W., Suite 510 901 15th Street, NW

Washington, DC 20036 Washington, DC 20005

(Counsel for Comal Broadcasting Co.) (Counsel for North American
Broadcasting Co.)

15. IT IS FURTHER ORDERED, That pursuant to Section 316(a) of the
    Communications Act of 1934, as amended, the authorization of Station
    KBUC(FM) IS MODIFIED to specify operation on Channel 253C1 at
    Schertz, Texas in lieu of 253A at Pleasanton, Texas, the
    authorization of Station KRBH(FM) IS MODIFIED to specify operation
    on Channel 290A in lieu of Channel 253A, and the authorization of
    Station KEEP(FM) IS MODIFIED to specify operation on Channel 276A in
    lieu of Channel 252A, subject to the following conditions:

\(a\) Within 90 days of the effective date of this *Order,* 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; and

\(c\) 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.

16. Pursuant to Commission Rule Section 1.1104(1)(k) and (2)(k), any
    party seeking a change in 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, Reding Broadcasting
    Company, licensee of Station KBUC(FM), Pleasanton, Texas is required
    to submit a rule making fee in addition to the fee required for the
    applications to effectuate the upgrade of its license from Channel
    to Channel .

17. IT IS FURTHER ORDERED, That this proceeding BE TERMINATED.

18. IT IS FURTHER ORDERED, That the petitions filed by North American
    Broadcasting Company and Comal Broadcasting Company ARE DISMISSED.

19. For further information concerning the above, contact Victoria
    McCauley, Mass Media Bureau, (202) 418-2130.

FEDERAL COMMUNICATIONS COMMISSION

John A. Karousos

Chief, Allocations Branch

Policy and Rules Division

Mass Media Bureau

[^1]: ^?^ The community of Schertz, Texas, has been added to the
    caption.

[^2]: ^?^ Late-filed comments in opposition were also filed by
    Cosmopolitan Enterprises of Victoria, Inc. These comments are
    unauthorized and will not be considered in this proceeding.

[^3]:     ^?^ NABC is an applicant for Channel 276C2 at Karnes City,
    Texas. It has challenged this allotment in this proceeding and in a
    previous proceeding, because the substitution of Channel 276A for
    Channel 252A at Bandera requires a site restriction of 16 km east of
    the community of Karnes City. *See Report and Order in MM Docket
    90-466* 13 FCC Rcd 234 (1998) (*Hondo, Texas, et al.*).

[^4]: ^?^ We note that petitioner's original proposal for Pleasanton in
    this proceeding is the same proposal it filed in MM Docket No.
    90-466 and was denied because the Hondo and Bandera allotments were
    short-spaced to Mexican allotments under the U.S./Mexican Agreement
    of 1972, which was in effect at the time they were filed. *See
    Report and Order in MM Docket 90-466* 13 FCC Rcd at 235 (1998)
    (*Hondo, et al.*). However, under the U.S./Mexican Agreement of
    1992, the current treaty with Mexico, those allotments are fully
    spaced and the Mexican government has already approved them.

[^5]:

[^6]: ^?^ *See Report and Order* in Docket No. 16662 ("*Circleville,
    Ohio")*, 8 FCC 2d 159 (1967) (reimbursement); See *Report and Order*
    in MM Docket No. 88-519 ("*Beaumont and Big Bear Lake,
    California")*, 4 FCCRcd 7505 (1989)(transmitter site change).

[^7]: ^?^ NABC late-cured this reimbursement pledge. However, we cannot
    accept this cure because to do so would prejudice petitioner's
    rights. *See Report and Order* in MM Docket 97-26 ("*Detroit, Howe
    and Jacksboro, Texas*"), 13 FCC Rcd 16561 (1998) at ¶6; *see also
    Report and Order* in MM Docket 87-591 ("*Scottsboro, Alabama,
    Trenton, Georgia, and Signal Mountain, Tennessee*"), 6 FCC Rcd 6111
    (1991)*.*

[^8]: ^?^ The city of Blanco has a 1990 population of 1,238 persons and
    the proposal at Blanco would serve approximately 112,000 persons.

[^9]: ^    ?^ The three criteria considered in making a first local
    service preference determination are (1) signal to population
    coverage, i.e., the degree to which a station would provide coverage
    not only to the suburban community but to the adjacent metropolis as
    well, (2) the size and proximity of the suburban community relative
    to the adjacent city, and (3) the interdependence of the suburban
    community with the central city, established by the consideration of
    the following eight factors:

    > \(1\) 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 cover the community\'s local 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 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.

[^10]: Attached to both the Petition for Rule Making and the
    Counterproposal is an agreement between petitioner and James Withers
    and Five Points Broadcasting, Inc., showing the amount petitioner
    has agreed to pay expenses for the affected parties' changes. In
    accordance with previous policy, we expect this amount to be limited
    to the parties' reasonable out of pocket expenses in connection with
    the frequency change and the transmitter site change. *See
    Circleville, Ohio,* 8 FCC2d 159(1967)*.*

[^11]: The coordinates for Channel 253C1 at Schertz are 29-31-25 and
    98-43-25.

[^12]: The coordinates for Channel 276A at Bandera are 29-51-22 and
    99-05-25.

[^13]: The coordinates for Channel 290A at Hondo are 29-21-00 and
    99-15-00.