**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Amendment of Section 73.202(b), ) MM Docket No. 99-244

Table of Allotments, ) RM-9678

FM Broadcast Stations. ) RM-9873

(Cumberland, Kentucky and Weber City, Virginia; )

Glade Spring, Marion, Richlands and )

Grundy, Virginia)[^1] )

[REPORT AND ORDER]{.underline}

(Proceeding Terminated)

Adopted: March 6, 2002; Released: March 19, 2002

By the Chief, Allocations Branch:

1\. At the request of Cumberland City Broadcasting Company
("petitioner"), licensee of Station WSEH(FM), Channel 274A, Cumberland,
Kentucky, the Allocations Branch has before it the [Notice of Proposed
Rule Making]{.underline}, 14 FCC Rcd 10545 (1999), proposing the
substitution of Channel 274C3 for Channel 274A at Cumberland, the
reallotment of Channel 274C3 from Cumberland, Kentucky to Weber City,
Virginia. Petitioner also requested the modification of Station
WSEH(FM)'s license to specify Weber City as its new community of
license. Petitioner filed comments in support of the proposal
reaffirming his intention to apply for the channel, if reallotted to
Weber City. A counterproposal and comments were filed by Holston Valley
Broadcasting Corporation ("Holston"), proposing the allotment of of
Channel 274A Glade Spring, Virginia, as the community's first local
aural transmission service.[^2] To accommodate the allotment, petitioner
also requested (a) the substitution of Channel 263A for Channel 273A at
Marion, Virginia, and the modification of Station WOLD-FM's license
accordingly; (b) the substitution of Channel 249A for Channel 264A at
Richlands, Virginia, and the modification of Station WRIC-FM's license
accordingly; and (c) the substitution of Channel 264A for Channel 249A
at Grundy, Virginia, and the modification of Station WMJD(FM)'s license
accordingly. An [Order to Show Cause,]{.underline} 16 FCC 19431 (2001),
was issued to the licensee of Station WMJD(FM) in Grundy, Virginia, to
show why its license should not be modified to specify operation on
Channel 264A. Comments in support of the counterproposal were filed by
Peggy Sue Broadcasting Corporation, licensee of WRIC-FM, Richands,
Virginia. Holston filed further comments. Reply comments to the
counterproposal were filed by petitioner.

2\. The proposed reallotment was filed pursuant to the provisions of
Section 1.420(i) of the Commission\'s Rules, which permit 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} [Amendment of
the Commission\'s Rules Regarding Modification of FM and TV
Authorizations to Specify a New Community of License]{.underline}, 4 FCC
Rcd 4870 (1989), [recon. granted in part]{.underline}, 5 FCC Rcd 7094
(1990) (\"[Change of Community]{.underline}\"). In support of its
proposal, petitioner states Weber City is located in Scott County and
has its own mayor/council form of government. Weber City has its on
local post office, zip code, churches, banks, schools, and parks. Weber
City also has many local businesses which employ local residents
including two large grocery stores, tobacco warehouse and a bookbinding
company. Petitioner further states Weber City has its own local police
and fire services, and a local zoning body and taxing priority.
Petitioner asserts that Weber City clearly has all of the
[Tuck]{.underline} criteria to establish it as a separate and
independent community.[^3]

3\. In support of the Glade Spring proposal, Holston states that Glade
Spring is an incorporated town in Washington County, Virginia with a
1990 U.S. Census population of 1,435 (the 2000 U.S. Census population is
1,374 persons). Glade Spring has a post office, zip code (24340), a fire
department, a police department, 13 churches, a library, and a high
school. Holston asserts that Glade Spring is clearly a community for
allotment purposes, citing [Willows and Dunnigan,
California]{.underline}, 9 FCC Rcd 1802 (994). Holston argues the Weber
City is the larger of the two communities and should be afforded the
allotment pursuant to Section 307(b) of the Communications Act. Holston
claims that petitioner seeks to relocate Station WSEH(FM) from a
mountainous rural area in southeast Kentucky to Weber City, Virginia,
which for all practical purposes is a suburb of Kingsport, Tennessee,
one of the "Tri-Cities" (along with Johnson City and Bristol), which is
well-served by radio and television stations. Holston argues that,
unlike the Weber City allotment, the Glade Spring proposal does not
deprive Cumberland of its only commercial FM allotment, but rather
creates a new service. Thus, Holston concludes that the Glade Spring
counterproposal better serves Section 307(b) of the Commission's Rules,
citing [St. Augustine and Callahan, Florida,]{.underline} 46 RR 2d 1295
(1980).

4\. Holston states that the Glade Spring proposal requires only the
involuntary channel change of one station, Station WMJD(FM), since
Stations WRIC-FM and WOLD-FM have agreed to the requested channel
changes. With respect to Station WOLD-FM, Holston has submitted a copy
of a letter from Emerald Sound, Inc., consenting to the change of its
channel and transmitter site. Holston states its willingness to
reimburse all three stations for reasonable and prudent expenses
pursuant to [Circleville, Ohio]{.underline}, 8 FCC 2d 159 (1967).
Holston affirms its intention to apply for Channel 274A at Glade Spring,
if allotted.

5\. In its reply comments, petitioner states that Holston's reliance on
the 1990 Census that shows Glade has 58 more residents than Weber City
(population 1,377) is inaccurate and does not depict the actual
population of the community (the 2000 U.S. Census population is 1,333).
Petitioner argues that the population difference (41 persons) is
insignificant in light of the substantial area and population gains that
the upgrade and reallotment of Channel 274C3 to Weber City would
provide. Petitioner further argues that Holston's claim that the
reallotment from Cumberland to Weber City would not be in the public
interest because it would move the channel to a community with a smaller
population is unfounded, citing [Pauls Valley, et. al.,
Texas]{.underline}, 13 FCC Rcd 13458 (1998). Finally, petitioner
questions Holston's motives for filing the counterproposal. Petitioner
advises that Holston owns and operates a number of broadcast facilities
within the Bistol-Kingsport-Johnson City, Tennessee-Virginia market.
Petitioner alleges that since this is not the first time Holston has
sought to keep competition out of the market by filing a
counterproposal, it appears that the instant counterproposal is a
"blocking scheme" to thwart the reallotment and upgrade by a broadcaster
who is serious about providing a first local service to a deserving
community. Therefore, petitioner concludes that the counterproposal
filed by Holston should be denied.

[Discussion]{.underline}

6\. As an initial matter, we find that both Weber City and Glade Spring
are communities for allotment purposes. However, conflicting proposals
are considered under the guidelines set forth in [Revision of FM
Assignment Policies and Procedures]{.underline}, 90 FCC 2d 88, 92
(1982). Since the staff could find no alternate Class A channel for
Glade Spring, we need to compare the communities. However, before making
such a comparison, in considering a change of community of license
proposal, we must first determine whether the Weber City reallotment
would result in a preferential arrangement of allotments pursuant to the
Commission\'s change of community procedures. [See]{.underline} [Change
of Community]{.underline}, [supra.]{.underline} Under those procedures,
we compare the existing arrangement of allotments with the proposed
arrangement of allotments using our FM allotment priorities.[^4]
[See]{.underline} [Revision of FM Assignment Policies and
Procedures]{.underline}, [supra.]{.underline}

7\. Under this comparison, we believe that the upgrade and reallotment
of Channel 274C3 and Station WSEH(FM) to Weber City would be preferred
over the retention of the allotment and station in Cumberland because
the reallotment would trigger a higher allotment priority. Specifically,
the reallotment would constitute a first local service to Weber City
(population 1,333) under priority (3). By way of comparison, the
retention of the station in Cumberland (population 2,611) would trigger
priority (4) as a second service because station WCPM(AM) is already
licensed to that community.

8\. We further believe that the reallotment to Weber City triggers
priority (3) as a first local service. Although Weber City is located
outside the Kingsport, Tennessee-Virginia Urbanized area, Station
WSEH(FM)'s 70 dBu signal will encompass 100% of that Urbanized area,
and, as a result, petitioner provided a [Tuck]{.underline} showing that
it should be credited with a first local service and that the local
stations in the Kingsport, Tennessee-Virginia Urbanized Area should not
be attributed to Weber City. We have reviewed that showing and agree
that Weber City is sufficiently independent from the central city of the
Urbanized Area to be credited with a first local service for purposes of
comparison under the FM allotment priorities. We base this finding on
the presence of the majority of the eight factors on interdependence
outlined in the [Tuck]{.underline} test.[^5] Of those eight factors, we
find that petitioner has satisfied factors (3), (4) (5) (6) and (8). No
information was given for factors (1), (2) or (7). While a first local
preference is not dispositive on the criteria of signal population and
size of the suburban community relative to the adjacent city, we note
that the city boundaries between Weber City and Kingsport (population
44,905) are less than five miles.

9\. We now must compare the reallotment and upgrade of Station WSEH(FM)
on Channel 274C3 at Weber City with the allotment of Channel 274A at
Glade Spring, Virginia. Where, as here, there is a choice between two
mutually exclusive proposals both involving priority 3 (first local
service), the Commission has used the populations of the communities of
license as the tie-breaking mechanism. [See Revision of FM Assignment
Policies and Procedures]{.underline}, 90 FCC 2d 88, 92 (Comm. 1982). We
have also taken into account the number of reception services available
to the populations in the competing communities. Where the number of
reception services was above a threshold level, the Commission has based
the decision on a straight population comparison. [See]{.underline},
[e.g.]{.underline}, [Blanchard, Louisiana and Stephens,
Arkansas]{.underline}, 10 FCC Rcd 9828, 9829 (Comm. 1995) and cases
cited therein. [See]{.underline} [also]{.underline} [Rose Hill, Trenton,
Aurora and Ocracoke, North Carolina]{.underline}, 11 FCC Rcd 21223
(1996); [Athens and Atlanta, Illinois,]{.underline} 11 FCC Rcd 3445
(1996). As indicated in the [Blanchard]{.underline} case, the population
difference has been dispositive even if the difference is small. In that
case, the population difference was 38 people, and the allotment was
made to the community with the larger population.

10\. We believe that the same result is warranted in the instant case.
Since both communities have 14 FM reception services, the allotment in
this case will be made to Glade Spring because of its higher population
(i.e., 1,374 persons versus 1,333 persons for Weber City). In making
this decision, we recognize that the reallotment and upgrade of Station
WSEH(FM) at Weber City would result in a loss of service to 57,146
persons and a gain of service to 324,873 persons, for a net gain of
service to 265,263 persons. We do not believe that this net gain of
service should change our result because most of this net gain
constitutes enhanced secondary service under priority (4) as opposed to
first local transmission service under priority (3). Since we are
ultimately deciding this case upon first local transmission service
principles, we must be governed by the populations that would receive
first local tranmission service as opposed to enhanced secondary
service. Our view is further buttressed by the fact that the gain and
loss areas are otherwise well served with five or more full-time
reception services. Finally, by preferring the Glade Spring proposal
over Weber City, we are not only providing the larger community with a
first local transmission service but at the same time are retaining an
FM station in Cumberland, resulting in a net gain of FM allotments in
the Table.

We issued an [Order to Show Cause]{.underline}, ordering
Virginia-Kentucky Broadcasting Co. ("VKBC") to show why its channel
should not be modified. No response was received from VKBC. Accordingly,
pursuant to Section 1.87 of the Commission's Rules, VKBC is deemed to
have consented to the proposed channel change at Grundy, Virginia. As
previously indicated, both Station WOLD-FM, Marion, Virginia, and
Station WRIC-FM, Richlands, Virginia, have agreed to the requested
channel changes.

12\. In accordance with [Circleville, Ohio]{.underline},
[supra,]{.underline} Holston has indicated its willingness to reimburse
Stations WOLF-FM, WRIC-FM and WMJD(FM) or reasonable and prudent
expenses for their respective channel changes.

13\. We believe the public interest would be served by allotting Channel
at Glade Spring, Virginia, as the community's first local aural
transmission service. An engineering analysis has determined that
Channel 274A can be allotted to Glade Spring in compliance with the
Commission's minimum distance separation requirements with a site
restriction of 13.3 kilometers (8.3 miles) east at petitioner's
requested site.[^6] Additionally, to accommodate the allotment, Channel
263A can be substituted at Marion at petitioner's requested site;[^7]
Channel 249A can be substituted at Richlands at Station WRIC-FM's
presently licensed site;[^8] and Channel 264A can be substituted at
Grundy at Station WMJD(FM)'s presently licensed site.[^9]

14\. Accordingly, pursuant to the authority found 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 3, 2002, the FM Table of
Allotments, Section 73.202(b) of the Commission\'s Rules, IS AMENDED,
with respect to the communities listed below, to read as follows:

[City]{.underline} [Channel No.]{.underline}

Glade Spring, Virginia 274A

Marion, Virginia 230C, 263A, 278A

Richlands, Virginia 249A, 288A

Grundy, Virginia 264A

15\. A filing window for Channel 274A at Glade Spring, Virginia, will
not be opened at this time. Instead, the issue of opening this allotment
for auction will be addressed by the Commission in a subsequent order.

16\. IT IS FURTHER ORDERED, That the petition for rule making filed by
Cumberland City Broadcasting Company, IS DENIED.

17\. IT IS FURTHER ORDERED, That the Secretary shall send a copy of this
[Report and Order]{.underline} by Certified Mail, Return Receipt
Requested, to the following:

Emerald Sound, Inc. Peggy Sue Broadcasting Corp.

Post Office Box 31 137 Oriole Avenue

Marion, Virginia 24354 Princeton, West Virginia 24740

(Licensee of Station WOLD-FM)) (Licensee of Station WRIC-FM)

Virginia-Kentucky Broadcasting Co.

Post Office Box 2054

Grundy, Virginia 24614

(Licensee of Station WMJD(FM))

#  

> 18\. IT IS FURTHER ORDERED, That this proceeding IS TERMINATED.

19\. For further information concerning this proceeding, contact Sharon
P. McDonald, Mass Media Bureau, (202) 418-2180.

FEDERAL COMMUNICATIONS COMMISSION

FEDERAL COMMUNICATIONS COMMISSION

John A. Karousos John A. Karousos

Chief, Allocations Branch

Policy and Rules Division

Mass Media Bureau

[^1]: The communities of Glade Spring, Marion, Richlands and Grundy were
    added to the caption.

[^2]: The counterproposal was placed on Public Notice on May 15, 2002,
    Report No. 2411 (RM-9873).

[^3]: [See]{.underline} [Headland, Alabama and Chattahoochee,
    Florida]{.underline}, 10 FCC Rcd 10352 (1995); [Huntington
    Broadcasting Co.]{.underline} v. [FCC]{.underline} , 192 F.2d 33
    (D.C. Cir. 1951); [RKO General, Inc.]{.underline}, 5 FCC Rcd 3222
    (1990); and [Faye and Richard Tuck]{.underline}, 3 FCC Rcd 5374
    (1988).

[^4]: The FM 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. \[Co-equal weight
    given to priorities (2) ad (3).\]

[^5]: In determining whether a suburban community should be denied a
    first local service preference, the Commission has stated that it
    will rely primarily on three criteria---signal population coverage,
    the size of the suburban community relative to the adjacent city,
    and the interdependence of the suburban community with the central
    city. There are eight factors relevant to interdependence the
    Commission considers: (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 covers the community\'s local needs and
    interests; (3) whether the community\'s 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) 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 municipal services such as police, fire
    protection, schools, libraries. [Tuck]{.underline}, 3 FCC Rcd at
    5378.

[^6]: The coordinates for Channel 274A at Glade Spring are 36-45-15
    North Latitude and 81-37-56 West Longitude.

[^7]: The coordinates for Channel 263A at Marion are 36-51-23 North
    Latitude and 81-30-21 West Longitude.

[^8]: The coordinates for Channel 249A at Richlands are 37-09-04 North
    Latitude and 81-53-56 West Longitude.

[^9]: The coordinates for Channel 264A at Grundy are 37-18-08 North
    Latitude and 82-07-04 West Longitude.