**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Amendment of Section 73.202(b), ) MB Docket No. 04-429

Table of Allotments, ) RM-11120

FM Broadcast Stations. )

(Burlington and Cary, North Carolina) )

**REPORT AND ORDER**

**(Proceeding Terminated)**

**Adopted: June 22, 2005 Released: June 24, 2005**

By the Assistant Chief, Audio Division, Media Bureau:

1\. The Audio Division of the Media Bureau has before it for
consideration the *Notice of Proposed Rulemaking*[^1] proposing changes
in the FM Table of Allotments, 47 C.F.R. § 73.202(b). In response to a
petition filed by Capstar TX Limited Partnership ("Capstar"), licensee
of Station WRSN-FM, Channel 230C, Burlington, North Carolina, the
*Notice* proposes to change the community of license for Station WRSN-FM
from Burlington to Cary, North Carolina. Capstar's request was filed
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 the opportunity to file competing expressions of interest in the
proposed allotment. Capstar represents that if its request is granted,
it will file an application to modify the facilities of Station WRSN-FM
to specify operation on Channel 230C at Cary, North Carolina. Capstar
filed comments supporting the changes proposed in the *Notice*.

2\. In determining whether to approve a change of community, we compare
the existing versus the proposed arrangement of allotments using the FM
allotment priorities set forth in *Revision of FM Assignment Policies
and Procedures*.[^2] Retention of Channel 230C at Burlington would
satisfy only the fourth allotment priority, "other public interest
matters," whereas the proposed reallotment of Channel 230C at Cary would
satisfy the third allotment priority, "first local service."[^3]

3\. We recognize that Cary is located within the Raleigh, North Carolina
Urbanized Area. In such circumstances, we do not blindly apply a first
local service preference. Instead, we determine whether to apply a first
local service preference after evaluating the independence of the
proposed community from the central city of the urbanized area.[^4]
Applying the *Tuck* criteria, Cary is sufficiently independent of
Raleigh, the central city in the Raleigh, North Carolina Urbanized Area,
to qualify for a first local service preference, for the reasons
discussed below.

4\. In *Tuck*, the Commission specified the following three factors for
evaluating a community's independence: (1) signal population coverage,
*i.e*., the degree to which the proposed station will provide service to
both the suburban community and the larger metropolis; (2) the size and
proximity of the suburban community relative to the metropolis; and (3)
most importantly,^5^ the interdependence of the suburban community with
the metropolis.

5\. The 70 dBu contour of Station WRSN-FM currently encompasses 100
percent of the Raleigh Urbanized Area, and it will continue to do so
following the proposed change of community. Although the proposed change
of community will result in a move into an urbanized area, the signal
coverage of that urbanized area will not increase as a result of the
change. Under the circumstances, we do not view a first local service
preference for Cary as a pretext to enter an urban market. Comparison of
the size and proximity of Cary and Raleigh is consistent with a finding
that the proposed allotment at Cary is entitled to preference as a first
local service. Cary's population is 34 percent that of Raleigh, and Cary
is located 12.7 kilometers from Raleigh. In numerous proceedings, where
the size disparity between the two communities was greater and the
distance between them shorter, we nonetheless have found that the
proposed new community satisfied the requirements of *Tuck*.[^5]

6\. Turning to the crucial third *Tuck* factor, we find ample evidence
that Cary is independent of Raleigh and therefore should be afforded a
first local service preference. Petitioner presents convincing evidence
that Cary has a unique identity and history, separate from those of
Raleigh. Cary has an independent government, led by a mayor and six
council members, who are each elected to four-year terms. Cary has
numerous administrative offices and departments, and the government of
Cary provides municipal services to residents, including police and fire
protection, garbage collection, water and sewer services, planning, and
inspections.

7\. The population of Cary has grown significantly in the past thirty
years, tripling in the 1970s and doubling in the 1980s and 1990s. Cary's
Planning Department estimates that Cary's population was 107,221 as of
October 1, 2003, and will be 176,384 by July 1, 2020. Cary spans two zip
codes, 27511 and 27519, and has its own separate listings in the local
telephone company directory.

8\. Cary is home to a variety of businesses and commercial
establishments, including numerous local businesses that incorporate the
word "Cary" in their names. Numerous health care and medical service
providers are located in Cary, and Cary is home to several churches. A
significant percentage of Cary residents telecommute or work at home. Of
the 51,175 employed individuals residing in Cary, 16,242 persons work at
their place of residence, comparing favorably with other independent
communities.

9\. Finally, Cary has its own local media. *The Cary News* is a weekly
publication with a circulation of 15,000 that covers local news and
contains other articles of local interest. Local businesses advertise in
*The Cary News*, which enables them to reach the residents of Cary
without relying on Raleigh media sources.

10\. For all of the foregoing reasons, we conclude that the public
interest would be served by and reallotting Channel 230C at Cary, North
Carolina. Channel 230C can be allotted at Cary in compliance with the
minimum distance separation requirements of the Commission's Rules with
a site restriction of 35.4 kilometers (22.0 miles) west of Cary at
reference coordinates of**:** 35-52-15 NL and 79-09-40 WL.[^6]

11\. The Commission will send a copy of this *Report and Order* in a
report to be sent to Congress and the Government Accountability Office
pursuant to the Congressional Review Act, *see* 5 U.S.C. §801(a)(a)(A).

12\. Accordingly, pursuant to the authority found in 47 U.S.C. Sections
4(i), 5(c)(1), 303(g) and (r) and 307(b), and 47 C.F.R. Sections 0.61,
0.204(b),0.283, and 1.420(i), IT IS ORDERED, That effective August 8,
2005, the FM Table of Allotments, 47 C.F.R. Section 73.202(b), IS
AMENDED, with respect to the communities listed below, to read as
follows:

[Community Channel Number]{.underline}

Burlington, North Carolina 266C

> Cary, North Carolina 230C

13\. IT IS FURTHER ORDERED, That pursuant to 47 U.S.C. Section 316(a),
the license of Capstar TX Limited Partnership, for Station WRSN-FM,
Channel 230C, Burlington, North Carolina, IS MODIFIED to specify
operation on Channel 230C at Cary, North Carolina, 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 47 C.F.R. 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 47 C.F.R. Section 1.1307, unless
the proposed facilities are categorically excluded from environmental
processing.

14\. Capstar TX Limited Partnership, licensee of Station WRSN-FM, is
required to submit a rule making fee in addition to the fee required for
the applications to effectuate the changes specified above.

15\. 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, Esq.

#  J. Thomas Nolan, Esq.

> Vinson & Elkins L.L.P.

1455 Pennsylvania Avenue, N.W.

Suite 600

Washington, D.C. 20004-1008

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

17\. For further information concerning this proceeding, contact Deborah
Dupont, Media Bureau, (202) 418-7072.

FEDERAL COMMUNICATIONS COMMISSION

John A. Karousos

Assistant Chief

> Audio Division

Media Bureau

[^1]: *Burlington and Cary, North Carolina,* 19 FCC Rcd 15,378 (MB 2004)
    ("*Notice*").

[^2]: 90 FCC 2d 88 (1982), *recon. denied*, 56 RR 2d 448 (1983). 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 is given to
    priorities (2) and (3).

[^3]: Burlington will continue to be served by two local stations,
    WSMT(AM) and WTZX(AM).

[^4]: *See Faye and Richard Tuck,* 3 FCC Rcd 5374 (1998) *("Tuck"),* and
    *Huntington Broadcasting Co. v. FCC,* 192 F.2d 33 (D.C.Cir. 1951*)
    ("Huntington").*

[^5]: *See* *Ada, Newcastle and Watonga, Oklahoma*, 11 FCC Rcd 16896
    (MMB 1996) (Newcastle had population equal to 0.9 percent of
    Oklahoma City), and cases cited therein.

[^6]: No change to the physical facilities of Station WRSN-FM will be
    necessary.