Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of )

)

Amendment of Section 73.202(b), ) MM Docket No. 99-181

Table of Allotments, ) RM-9584

FM Broadcast Stations. ) RM-9700

(Easton, Merced and North Fork, California) )

[REPORT AND ORDER]{.underline}

(Proceeding Terminated)

Adopted: March 8, 2000 Released: March 17, 2000

> By the Chief, Allocations Branch:

1\. Before the Commission for consideration is the [Notice of Proposed
Rule Making]{.underline} released May 21, 1999 (DA 99-971), issued in
response to a petition filed on behalf of Mountain West Broadcasting
("Mountain West"), proposing the allotment of Channel 300A to Easton,
California, as that community's first local aural transmission service.
Supporting comments were filed individually by Mountain West, Mario Meza
("Meza"), and SAE Broadcasting Company ("SBC"), each indicating an
intention to apply for Channel 300A at Easton, if allotted. San Joaquin
Radio Company, LLC ("San Joaquin"), licensee of Station KAJZ(FM), filed
comments[^1] and a counterproposal[^2] well as a petition for leave to
supplement.[^3] No other comments were received.

2\. San Joaquin requests the substitution of Channel 300B1 for Channel
299A at Merced, California, the reallotment of Channel 300B1 to North
Fork, California, as that locality's first

local aural transmission service, and modification of its authorization
for Station KAJZ(FM) accordingly. San Joaquin's proposal seeks to invoke
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]{.underline}
[Modification of FM and TV Authorizations to Specify a New Community of
License]{.underline} ("[Change of Community R&O]{.underline}"), 4 FCC
Rcd 4870 (1989), [recon. granted in part]{.underline} "[Change of
Community MO&O]{.underline}"), 5 FCC Rcd 7094 (1990). The requested
allotment of Channel 300B1 to North Fork (pop. 2,541),[^4] an
unincorporated community, is mutually exclusive with its existing
authorization at Merced (pop. 56,216). The two communities are located
80 kilometers apart while 96 kilometers is required between first
adjacent Class A-B1 channels. Moreover, as the distance between Easton
and North Fork is 60.2 kilometers whereas a distance of 143 kilometers
is required, San Joaquin's requested allotment at North Fork is mutually
exclusive with the proposed allotment of Channel 300A at Easton.

3\. In support of its proposal San Joaquin asserts that North Fork is
entitled to a first local service preference. San Joaquin advises that
North Fork is a self-contained community that has a chamber of commerce,
fire department, library, recreation center, town hall, health care
facilities, an elementary and high school, post office (zip code 93643),
and a local museum. Additionally, San Joaquin reports that North Fork
has several churches as well more than two dozen businesses, as
identified by the North Fork Chamber of Commerce. Also, according to San
Joaquin, the North Fork Community Development Council provides water,
sewer, land use regulation, planning and community beautification
services to the community. Further, San Joaquin remarks that according
to the North Fork post office, more than 5,000 people receive their mail
addressed to that postal facility. Additionally, San Joaquin advises
that although unincorporated, North Fork has an elected local
government, and that the North Fork Mono Rancheria Council oversees
Federal programs for members of the Mono Indian tribe whose members
comprise approximately 11% of the communty population. Community
organizations that include North Fork in their names include the
Boosters, Sierra Tribal Consortium, Faculty Club, History Group,
Parent-Teacher Group, Stamp Club and the Sierra Tribal Consortium.
Moreover, San Joaquin advises that local media services in the community
consist of the *North Fork Journal*, a weekly newspaper, and cable
service provided by Ponderosa Cablevision. Additionally, San Joaquin
advises that PG&E and Ponderosa Telephone comprise the largest employers
in North Fork, and that a majority of the residents of that community
also work there. As a final endorsement of its proposal, San Joaquin
reports that a Class B1 station operating from the reference point for
Channel 300B1 at North Fork would result in the provision of a 70 dBu
signal to only 10% of the Fresno Urbanized Area. Therefore, San Joaquin
avers that its request to change its community of license is not subject
to the provision of additional information responsive to a
[Tuck]{.underline} analysis to show that North Fork is sufficiently
independent of Fresno to merit a first local service preference or
whether it should be credited with all of the authorized aural services
in the Fresno Urbanized Area.[^5]

4\. In further support of the proposal San Joaquin states that its
proposal would result in a preferential arrangement of allotments
("[Change of Community R&O]{.underline}" at 4873) as it would provide a
first local transmission service to North Fork without removing the sole
local service at Merced.[^6] San Joaquin advises that Station KAJZ
currently provides 60 dBu service to 136,681 persons in an area of 2507
square kilometers. Assuming operation with standard Class B1 facilities
(25 kW ERP, 100 meters HAAT) from a preferred site located 5 kilometers
from North Fork on Smiley Mountain at coordinates 37-14-39 NL and
119-33-58 WL, the proposed reallotment and upgrade will result in the
provision of primary service to 620,052 persons in an area of 7998
square kilometers, representing an increase in service to 483,371
persons (+354%). As the requested reallotment of Channel 300B1 to North
Fork requires a site change, the proposal will result in loss of service
to 136,681 persons in an area of 2507 square kilometers. San Joaquin's
engineering statement advises that its proposal will not result in the
creation of any white or gray areas, and that all portions of the loss
area will continue to receive full-time service from at least five
licensed aural services.

5\. Comparatively, San Joaquin advises that the allotment of a Class A
channel at the proposed Easton reference point would result in the
provision of a 70 dBu signal to 82% of the Fresno Urbanized Area.
Further, San Joaquin asserts that as Easton (pop. 1,877),[^7] is a
small, unincorporated suburb located 2.1 miles south of the Fresno city
boundaries, absent a [Tuck]{.underline} analysis, cited *supra*, the
Easton proposal is not entitled to a first local service preference. In
support of its assertion San Joaquin provided the following information
to establish that Easton is not an autonomous community, but rather is
dependent upon Fresno for many essential services. Among its assertions
San Joaquin reports that Easton has only a few businesses, and therefore
a majority of its residents work in Fresno. No local print media is
published in Easton; rather, the [Fresno Bee]{.underline} is widely
circulated in the community. Also the [Twin City Times]{.underline}, a
weekly periodical, serves several communities, including Easton.
Further, Easton is devoid of local government and has no elected
officials. Nor does Easton have its own telephone book. Instead, Easton
telephone numbers are included in the Fresno directory. Nor does Easton
have a post office. Rather, the Fresno Main Post Office, which also
includes Easton in its zip code, provides mail boxes to Easton
residents. Few commercial businesses are located in Easton. The
community is devoid of banks, public transportation, or municipal
services. The Easton Health Center provides minimal part time care to
low income women and children. Further, San Joaquin asserts that Easton
lacks local advertising media and is part of the Fresno advertising
market. Public education for Easton residents is provided by the
Washington Union School District, a part of the Fresno County Education
Department. Library services are provided to Easton residents by the
Fresno County Library that operates a satellite branch there 14 hours
per week

6\. San Joaquin asserts that the 60 dBu contour of the proposed North
Fork allotment

would encompass an area 215% larger with 13% more residents than the
area that would receive

primary service of a Class A station operating at Easton. Therefore, as
its proposal would provide service to a larger population and area than
would be served by the Easton proposal, San Joaquin urges its adoption
to provide a first local transmission service to North Fork.

[Discussion]{.underline}

7\. After carefully reviewing the record in this proceeding, we believe
that this case essentially involves a comparison between two competing
first local services under our FM allotment priorities[^8] and related
case precedent. However, as a threshold matter, we must first address
the issue of whether our [Huntington]{.underline} and [Tuck]{.underline}
policies should be applied to determine whether the two communities are
sufficiently independent from the Fresno Urbanized Area to warrant
qualifying for a first local service preference under FM priority
(3).[^9] We do not believe that the [Huntington]{.underline} and
[Tuck]{.underline} policy should be applied to either proposal. First,
with respect to the North Fork proposal, we note that the petitioner is
proposing to reallot its station from Merced, which is the central city
of its own Urbanized Area as defined by the U.S. Census, to North Fork,
a community located outside of but proximate to the Fresno Urbanized
Area. However, as the proposed city-grade (70 dBu) signal of the North
Fork station will cover only 10% of the Fresno Urbanized Area, under our
well established policy set forth in [Headland and Chattahooche,
Alabama]{.underline},[^10] 10 FCC Rcd 10352 (1995),
[Huntington]{.underline} and [Tuck]{.underline} do not apply since the
percentage of city grade coverage is less than 50% of the Fresno
Urbanized Area. Secondly, with respect to the proposed Easton allotment,
while we recognize that Easton is located within the Fresno Urbanized
Area, Allocation Branch policy has consistently been not to apply the
[Huntington]{.underline} and [Tuck]{.underline} test to drop-in
allotments in urbanized areas. This issue has not arisen often due to
the difficulty of dropping new allotments into communities located in
urbanized areas. Rather, [Huntington]{.underline} has only been applied
in the context of change of community of license proceedings or in
comparative hearings involving applications, neither of which are
applicable to the Easton proposal. Even in those change of community
cases in which [Huntington]{.underline} has arisen, the smaller
community has been inside the urbanized area of a larger city or if
proximate thereto, would provide a 70 dBu signal over 50% or more of the
urbanized area, and a showing has been made of interdependency between
the smaller community and the larger urban center. As explained further
below, the disparate application of the [Huntington]{.underline} and
[Tuck]{.underline} test to change of community cases, as opposed to
drop-in allotments, is not decisionally significant in this case.

8\. First we need to examine San Joaquin's change of community proposal
to decide if it would result in a preferential arrangement of
allotments. [See]{.underline} [Change of Community MO&O,]{.underline}
[supra]{.underline}. Applying those procedures, we compare the existing
arrangement of allotments with the proposal using the FM allotment
priorities set forth in [Revision of FM Assignment Policies and
Procedures]{.underline}, 90 FCC 2d 88 (1992), [supra]{.underline}. In
making our comparison, the first two priorities are not applicable in
this instance. No white or gray areas are involved (priorities (1) and
(2)). Rather, as North Fork would receive its first local aural
transmission service (priority (3)), it is favored over the retention of
the allotment at Merced (priority (4)), which is served locally by six
other transmission services.[^11] As San Joaquin's proposal would result
in the provision of a first local aural transmission service at North
Fork, it must now be comparatively considered with the proposed
allotment of Channel 300A to Easton, California, as that community's
first local aural transmission service.

9\. The [Notice]{.underline} did not request community information for
Easton, given its status as a Census Designated Place. Although not
requested, San Joaquin provided sufficient information establishing
North Fork's community status for allotment purposes. As we believe each
community is deserving of an allotment, a staff frequency search was
undertaken to determine the availability of an alternate channel for the
drop-in allotment proposal at Easton. The study revealed that Channel
300 is the only channel available. Having established that neither
proposal would fulfill allotment priority one (first full-time aural
service) or priority two (second full-time aural service), but each
would fulfill priority three (first local service), our decision in this
case must be based upon the population differences of the two
communities. [See]{.underline}, [Blanchard, Louisiana and Stephens,
Arkansas]{.underline}, 10 FCC Rcd 9828 (1995), and cases cited therein.
[See]{.underline} [also]{.underline} [Revision]{.underline},
[supra]{.underline}. As North Fork (pop. 2,541) is larger than Easton
(pop. 1,877), we believe the public interest would be served by
allotting Channel 300B1 to North Fork as it would provide a first local
aural transmission service to the more populous community. Our decision
is further buttressed by the fact that each community receives at least
five full-time reception services.[^12]

10\. In further support of the superiority of San Joaquin's proposal,
the reallotment will afford it an opportunity to expand the service area
capability of Station KAJZ. Moreover, the reallotment will result in an
increase in primary service to 620,052 persons in an area of 7998 square
kilometers, representing an increase in 60 dBu service of 483,371
persons (+354%) over the present facility at Merced that provides 60 dBu
service to 136,681 persons in an area of 2507 square kilometers.
Although the loss area consists of 136,681 persons in an area of 2507
square kilometers, all portions of the loss area receive more than five
full-time reception services and is considered to be well served.
Additionally, the reallotment will not leave Merced devoid of local
service. Based upon the foregoing, we believe the public interest would
benefit by substituting Channel 300B1 for Channel 299A at Merced and
reallotting Channel 300B1 to North Fork, California, as requested. In
accordance with the provisions of Section 1.420(g) and (i) of the
Commission's Rules, we will modify the license of Station KAJZ(FM) to
specify operation on Channel 300B1 at North Fork, California.

11\. Channel 300B1 can be allotted to North Fork, California, consistent
with the minimum distance separation requirements of Section 73.207(b)
of the Commission's Rules at San Joaquin's proposed site located 5.3
kilometers (3.3 miles) west of the community at coordinates 37-14-39 NL
and 119-33-58 WL.

12\. 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 May 1, 2000, the FM Table of
Allotments, Section 73.202(b) of the Commission's Rules, IS AMENDED with
respect to the communities listed below, as follows:

> [City]{.underline} [Channel No.]{.underline}
>
> Merced, California 231A, 248B, 268B[^13], 292A
>
> North Fork, California 300B1

13\. IT IS FURTHER ORDERED, That pursuant to Section 316(a) of the
Communications Act of 1934, as amended, the license of San Joaquin Radio
Company, L.L.C. for Station KAJZ(FM) (File No. BLH-941026KC), IS
MODIFIED to specify operation on Channel 300B1 at North Fork,
California, in lieu of Channel 299A at Merced, California, 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; 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.

14\. Pursuant to Commission Rule Section 1.1104(3)(l), 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, San Joaquin Radio Company, L.L.C., licensee of Station
KAJZ(FM), is required to submit a rule making fee in addition to the fee
required for the applications to effectuate the change in community of
license and upgrade at North Fork, California.

15\. IT IS FURTHER ORDERED, That the petition for rulemaking filed by
Mountain West Broadcasting to allot Channel 300A to Easton, California
(RM-9584), IS DENIED.

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

17\. For further information concerning the above, contact Nancy Joyner,
Mass Media Bureau, (202) 418-2180.

> FEDERAL COMMUNICATIONS COMMISSION
>
> John A. Karousos
>
> Chief, Allocations Branch
>
> Policy and Rules Division
>
> Mass Media Bureau

[^1]: San Joaquin filed a petition for rule making as described in
    paragraph 2, [infra]{.underline}, that is mutually exclusive with
    the proposed allotment of Channel 300A at Easton. As San Joaquin's
    proposal was not processed before the [Notice]{.underline} herein
    was adopted, it has been accepted as a counterproposal. See footnote
    2, [infra]{.underline}.

[^2]: Public Notice of the counterproposal was given August 12, 1999
    (Report No. 2352).

[^3]: San Joaquin's supplemental comments serve to identify names and
    addresses of community indicia enumerated in its counterproposal.
    Proponent urges that as its petition for rule making was accepted as
    a counterproposal, the Commission did not have an opportunity to
    consider earlier whether further supporting information would be
    required relative to its proposed community of license, as in
    instances when a community issue is raised in an initial allotment
    petition. No objections to San Joaquin's supplemental comments were
    filed by any of the Easton rulemaking participants. Therefore, we
    will consider the supplemental comments to provide a more complete
    record for resolution of this proceeding. [See]{.underline} Section
    1.425 of the Commission's Rules.

[^4]: Population figures reported herein were taken from the 1990 U.S.
    Census reports.

[^5]: [See]{.underline} [Huntington Broadcasting Co.]{.underline} v.
    [FCC]{.underline}, 192 F.2d 33 (D.C. Cir. 1951), [RKO General,
    Inc.]{.underline} ("[KFRC]{.underline}"), 5 FCC Rcd 3222 (1990), and
    [Faye and Richard Tuck]{.underline} ("[Tuck]{.underline}"), 3 FCC
    Rcd 5374 (1988). [KFRC]{.underline} and [Tuck]{.underline} clarified
    the type of evidence considered in determining whether a suburban
    community should be denied a first local service preference. First,
    the Commission examines "signal population coverage," *i.e.*, the
    degree to which the proposed station could provide service not only
    to the suburban community, but also to the adjacent metropolis.
    Second, the Commission examines the size and proximity of the
    suburban community relative to the adjacent city, and whether the
    suburban community is within the Urbanized Area of the city. Third,
    the Commission determines the interdependence of the suburban
    community with the central city, using as evidence eight additional
    factors set forth in [Tuck]{.underline}.

[^6]: Petitioner's engineering statement advises that Merced will
    continue to be served locally by FM Stations KBKY, Channel 231A,
    KABX, Channel 248B, KAMB, Channel 268B, KIBG, Channel 292A, as well
    as AM Stations KYOS, and KTFN.

[^7]: San Joaquin advises that although the 1990 Census attributes
    Easton with a populaiton of 1,877, that figure includes numerous
    residents on family farms in the vicinity of Easton. According to
    San Joaquin less than 1,000 people reside within Easton's community
    boundaries as defined by the Fresno County Office of Public Works
    and Development.

[^8]: 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) an (3).) [Revision of FM Assignment Policies and
    Procedures]{.underline} ("[Revision]{.underline}"), 90 FCC 2d 88
    (1982).

[^9]: We note that if North Fork were located within the Fresno
    Urbanized Area, [Huntington]{.underline} and [Tuck]{.underline}
    policies would apply regardless of the percentage of city grade
    coverage of the Fresno Urbanized Area. We have long held that
    [Huntington]{.underline} and [Tuck]{.underline} applies to
    situations when moving from a community located outside of an
    urbanized area to another community located within an urbanized
    area. [See]{.underline} [Elizabeth City, North Carolina and
    Chesapeake, Virginia]{.underline}, 7 FCC Rcd 6815 (1992)
    (supplemental information requested to demonstrate the independence
    of Chesapeake, Virginia, from the Norfolk Urbanized Area to merit a
    local service preference). [See]{.underline} [also]{.underline},
    [Malvern and Bryant, Arkansas]{.underline}, 14 FCC Rcd 3576 (1999)
    ([Tuck]{.underline} showing required where proposed community is
    located partially within the relevant urbanized area, even though
    station would provide 70 dBu signal to less than 1% of the urbanized
    area. [See]{.underline} [also]{.underline} [Kankakee and Park
    Forest, Illinois]{.underline}, (DA 99-2563) released December 15,
    1999 (proposed relocation from Kankakee, the central city of its own
    urbanized area, to Park Forest, Illinois, located in the Chicago
    Urbanized Area, requires a showing that the community is
    sufficiently independent from the urbanized area to warrant a first
    local service preference).

[^10]: If an authorized facility requests to change its community of
    license to one that is outside of an urbanized area but whose signal
    would place a city-grade, 70 dBu signal over 50% or more of an
    Urbanized Area, the proponent is required to provide the same
    showings as currently required for those parties seeking to move to
    a community within an Urbanized Area.

[^11]: FM Stations KBKY, Channel 231A, KABX-FM, Channel 248B, KAMB,
    Channel 268B, KIBG, Channel 292A, as well as AM Stations KYOS and
    KTFN, are licensed to Merced.

[^12]: ^?^ According to Commission records, fifteen FM stations (6 of
    which are noncommercial educational stations) and at least 10 full
    time AM stations are licensed to Fresno. Therefore, given Easton and
    North Fork proximity to the urbanized area, each community benefits
    from the multiplicity of facilities licensed at Fresno.

[^13]: 47 CFR Part 73, Radio Broadcast Services, § 73.202(b), Table of
    FM Allotments, does not currently reflect the allotment of Channel
    268B at Merced. However, Channel 268B was allotted to Merced in the
    original Table of Allotments, and is presently licensed at that
    community to Central Valley Broadcasting Company, Inc. for Station
    KAMB(FM) (File No. BLED971112KJ). Therefore, we will make the
    editorial change to the FM Table of Allotments in the context of
    this proceeding to reflect the allotment of Channel 268B at Merced,
    California. As the correction is editorial in nature, a public
    notice and comment proceeding is not required. [See]{.underline} 5
    USC 553(b)(A) and (B).