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 Federal  Communications  Commission  DA  04-  87 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 

 In  the  Matter  of  )  ) 
 Amendment  of  Section  73.202(  b),  )  MB  Docket  No.  03-  26  Table  of  Allotments,  )  RM-  10638 
 FM  Broadcast  Stations.  )  (Shawnee  and  Topeka,  Kansas)  ) 

 REPORT  AND  ORDER  (Proceeding  Terminated) 
 Adopted:  January  20,  2004  Released:  January  23,  2004 
 By  the  Assistant  Chief,  Audio  Division: 
 1.  The  Audio  Division  issued  a  Notice  of  Proposed  Rulemaking  in  response  to  a  Petition  for  Rule  Making  filed  by  Cumulus  Licensing  Corporation  (  Cumulus),  licensee  of  FM  Station  KMAJ,  Topeka, 
 Kansas.  1  The  Notice  proposes  to  downgrade  the  license  for  FM  Station  KMAJ  from  Channel  299C  to  Channel  299C1,  and  to  change  the  community  of  license  from  Topeka  to  Shawnee,  Kansas.  The 
 Cumulus  request  was  filed  pursuant  to  the  provisions  of  Section  1.420(  i)  of  the  Commissions  Rules,  which  permits  the  modification  of  a  stations  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.  2  Petitioner  timely  filed  comments  supporting  the  changes  proposed  in  the  Notice.  3 

 DISCUSSION 
 3.  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.  4  The  proposed  change  of  community  will  provide  Shawnee  with  a  first  local  aural 

 1  Apopka,  Maitland,  and  Homosassa  Springs,  Florida,  Othello  and  Basin  City,  Washington,  and  ,Shawnee  and 
 Topeka,  Kansas,  18  FCC  Rcd  783  (MB.  2003). 
 2  See  also  Modification  of  FM  and  TV  Authorizations  to  Specify  a  New  Community  of  License,  4  FCC  Rcd  4870 
 (1989),  recon.  granted  in  part,  5  FCC  Rcd  7394  (1990). 

 3  Allur-  Kansas  City,  Inc.,  licensee  of  Station  KMJK,  Lexington,  Missouri,  filed  untimely  comments.  These 
 comments  contend  that  Cumulus  intends  to  serve  the  Kansas  City  Urbanized  Area  and  not  Shawnee.  These  comments  have  been  withdrawn;  nonetheless,  we  will  consider  this  issue  in  the  context  of  evaluating  the  Cumulus 

 proposal  for  a  first  local  service  preference. 
 4  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). 
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 service,  while  Topeka  will  continue  to  receive  local  service  from  nine  stations. 
 4.  We  recognize  that  Shawnee  is  located  within  the  Kansas  City  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.  5  Applying  the  Tuck  criteria,  Shawnee  is  sufficiently  independent  of  Kansas 
 City  to  qualify  for  a  first  local  service  preference,  for  the  reasons  discussed  below. 
 5.  In  Tuck,  the  Commission  specified  the  following  three  factors  for  evaluating  a  communitys  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)  the  interdependence  of  the  suburban  community 
 with  the  metropolis.  Of  these  three  factors,  the  most  significant  is  the  third.  6 
 6.  As  a  Class  C1  facility,  Station  KMAJ  will,  invariably,  serve  a  large  area.  The  proposed  reallotment  thus  would  result  in  Station  KMAJs  70  dBu  contour  covering  43.8  percent  of  the  Kansas  City 
 Urbanized  Area,  in  which  Shawnee  is  located.  This  coverage  does  not,  however,  preclude  a  finding  that  Station  KMAJ  will  provide  a  first  local  service  to  Shawnee.  Shawnees  population  of  47,996  persons 
 represents  approximately  11  percent  of  the  population  of  Kansas  City,  Missouri,  the  central  city  in  the  Kansas  City  Urbanized  Area.  The  Commission  has  granted  channel  change  petitions  in  instances  where 
 the  proposed  communitys  population  was  a  considerably  smaller  percentage  of  the  population  of  the  urbanized  areas  central  city.  7  Moreover,  FM  stations  have  been  allotted  to  numerous  communities 
 much  smaller  than  Shawnee.  Although  Shawnee  is  only  14  kilometers  (8.8  miles)  from  Kansas  City,  change  of  community  proposals  have  been  approved  in  instances  where  the  new  community  was  closer  to 
 the  central  city  than  is  the  case  in  this  proceeding.  8  Neither  the  extent  of  signal  coverage,  nor  the  relative  size  or  proximity  of  Shawnee  and  Kansas  City,  precludes  a  finding  that  Shawnee  is  an  independent 
 community  for  allotment  purposes. 
 7.  Turning  to  the  most  important  consideration,  the  interdependence  of  the  proposed  community  with  the  central  city  in  the  urbanized  area,  we  find  that  petitioner  has  established  that  Shawnee  is  an 

 5  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). 
 6  Tuck,  supra.  See  also  Eatonton  and  Sandy  Springs,  Georgia,  and  Anniston  and  Lineville,  Alabama,  6  FCC  Rcd 
 6580,  23  (MMB.  1991),  app.  for  rev.  dismissed,  12  FCC  Rcd  8392  (MMB.  1997). 

 7  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. 

 8  See,  e.  g.,  Mullins  and  Briarcliffe  Acres,  South  Carolina,  14  FCC  Rcd  10516  (MMB.  1999)  (new  community  of 
 allotment  four  miles  from  the  central  city  of  the  urbanized  area). 
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 independent  community,  rather  than  dependent  upon  Kansas  City.  Petitioner  states  that  the  City  of  Shawnee  has  its  own  unique  identity  and  history  that  are  separate  from  that  of  Kansas  City.  Shawnee,  the 
 seventh  largest  city  in  the  state  of  Kansas,  was  settled  in  the  1830s.  Shawneetown,  later  shortened  to  Shawnee,  was  incorporated  in  1856,  two  years  after  the  Territory  of  Kansas  was  created.  Shawnee 
 became  the  first  county  seat  of  Johnson  County.  Shawnee  evolved  into  a  small  farm  market  center  until  the  1950s,  when  population  shifts  from  large  urban  areas  to  smaller  surrounding  towns  occurred. 

 8.  The  population  of  Shawnee  has  tripled  since  1970,  and  Shawnee  has  experienced  a  population  increase  of  26.3  percent  from  1990  to  2000,  growing  from  37,993  persons  to  47,996  persons.  Businesses 
 and  other  organizations  located  in  Shawnee  afford  its  residents  extensive  employment  opportunities.  Cumulus  cites  U.  S.  Census  Database  statistics,  which  show  that  3,218  of  18,149  employed  Shawnee 
 residents,  approximately  17.7  percent,  work  in  Shawnee.  Moreover,  there  are  more  than  1,300  businesses  located  in  Shawnee,  including  several  major  employers  with  hundreds  of  employees.  A  substantial 
 number  of  these  businesses  identify  themselves  by  using  Shawnee  in  their  names.  Shawnee  also  has  numerous  churches,  civic  organizations,  and  health  care  providers  and  medical  practice  groups. 

 9.  Shawnee  residents  are  served  by  a  local  weekly  newspaper,  the  Shawnee  Journal  Herald,  with  a  circulation  of  10,000  copies.  The  Herald,  which  began  publication  in  1923,  contains  news  articles 
 about  local  political  issues  and  other  subjects  of  local  interest,  such  as  local  sports  stories.  Petitioner  states  that  Shawnee  is  a  separate  and  distinct  advertising  market  from  Kansas  City  and  that  many  businesses 
 located  in  Shawnee  advertise  in  the  Shawnee  Journal  Herald  rather  than  in  Kansas  City  media  outlets.  Shawnee  resident  also  may  access  the  citys  website  to  learn  about  Shawnee  community  events  and  news. 

 10.  Shawnee  has  its  own  zip  codes  9  and  its  own  local  government  and  elected  officials,  including  an  elected  mayor  and  eight  council  members,  two  from  each  ward,  who  serve  four-  year  terms. 
 The  city  council,  in  turn,  selects  a  city  manager.  The  government  of  Shawnee  has  numerous  departments,  including  city  clerk,  public  works,  finance,  engineering,  police,  fire,  park,  and  recreation  and  planning.  It 
 also  has  a  municipal  court  division,  licensing  division,  human  resources,  animal  warden,  fire  chief,  police  chief,  public  safety  director,  economic  development  director,  senior  citizens  coordinator,  building 
 inspectors,  and  electrical  and  plumbing  inspectors.  The  City  of  Shawnee  has  250  full-  time  employees  and  had  a  total  budget  of  nearly  $26  million  for  fiscal  year  2002.  There  are  two  public  school  districts  in  the 
 City  of  Shawnee:  Shawnee  Mission  School  District  and  DeSoto  School  District.  Shawnee  has  a  total  of  nine  public  elementary  schools,  two  public  middle  schools,  two  public  high  schools,  and  several  private 
 schools. 
 11.  The  proposed  downgrade  and  change  of  community  will  result  in  134,899  persons  losing  service  and  1,542,029  persons  gaining  service.  There  are  a  few  small  sections  of  the  loss  area  that  will  be  left  with 
 only  four  full-  time  reception  services  once  Station  KMAJ-  FM  is  reallotted  to  Shawnee.  This  area  consists  of  494  persons  in  205  square  kilometers.  The  remainder  of  the  loss  area  will  continue  to  be  served  by  five 

 9  The  zip  codes  designated  exclusively  for  the  City  of  Shawnee  are:  66203,  66214,  66216,  66217,  66218,  66219, 
 66220,  66226,  and  66286. 
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 or  more  transmission  services.  10  A  few  portions  of  the  gain  area  currently  receive  less  than  five  transmission  services.  Allotment  of  Channel  299C1  at  Shawnee  will  provide  a  fourth  service  to  481 
 persons  in  43  square  kilometers  and  a  fifth  service  to  4,610  persons  in  108  square  kilometers. 
 12.  For  all  of  the  foregoing  reasons,  we  conclude  that  the  public  interest  would  be  served  by  substituting  Channel  291C1  for  Channel  291C  at  Topeka,  Kansas,  and  reallotting  Channel  299C1  at 
 Shawnee,  Kansas.  Channel  299C1  can  be  allotted  to  Shawnee  in  compliance  with  the  minimum  distance  separation  requirements  of  the  Commissions  Rules  with  a  site  restriction  of  41.3  kilometers  (25.6  miles) 
 west  of  Shawnee  at  coordinates  39-  09-  06  NL  and  95-  09-  28  WL. 
 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),  0.283,  and  1.420(  i) 
 of  the  Commissions  Rules,  IT  IS  ORDERED,  That  effective  March  8,  2004,  the  FM  Table  of  Allotments,  Section  73.202(  b)  of  the  Commissions  Rules,  IS  AMENDED  as  follows: 

 Community  Channel  Number 
 Shawnee,  Kansas  299C1 
 Topeka,  Kansas  ------- 
 15.  IT  IS  FURTHER  ORDERED,  pursuant  to  Section  316(  a)  of  the  Communications  Act  of  1934,  as  amended,  that  the  license  of  Cumulus  Licensing  Corp.,  for  FM  Station  KMAJ,  IS  MODIFIED  to  specify 
 operation  on  Channel  299C1  at  Shawnee,  Kansas,  subject  to  the  following  conditions: 
 (a)  Within  90  days  of  the  effective  date  of  the  Order,  the  licensee  of  Station  KMAJ-  FM  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  Commissions  Rules,  unless  the  proposed  facilities  are 
 categorically  excluded  from  environmental  processing. 
 16.  Pursuant  to  Commission  Rule  Section  1.1104(  1)(  k)  and  (3)(  l),  any  party  seeking  a  change  in 
 10  The  Commission  has  considered  five  or  more  reception  services  to  be  abundant.  Family  Broadcasting  Group, 
 53  RR2d  662  (Rev.  Bd.  1983),  rev.  denied  FCC  83-  559  (Commn,  Nov,  29,  1983);  see  also  LaGrange  and  Rollingwood,  Texas,  10  FCC  Rcd  3337  (1995). 
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 community  of  license  of  a  TV  or  FM  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,  Cumulus  Licensing  Corp.,  licensee  of  FM  Station  KMAJ,  is  required  to  submit  a  rule  making  fee  in  addition  to  the  fee  required  for  the 
 applications  to  effectuate  the  changes  specified  above. 
 17.  IT  IS  FURTHER  ORDERED,  that  the  request  of  Allur-  Kansas  City,  Inc.  to  submit  untimely  comments  in  this  proceeding  is  DISMISSED  as  MOOT;  and 

 18.  IT  IS  FURTHER  ORDERED,  that  the  motion  of  Cumulus  Licensing  Corp.  to  strike  the  untimely  comments  of  Allur-  Kansas  City,  Inc.  is  DISMISSED  as  MOOT;  and 
 19.  IT  IS  FURTHER  ORDERED,  that  the  request  of  Cumulus  Licensing  Corp.  to  submit  a  supplement  to  the  record  in  this  proceeding  is  DISMISSED  as  MOOT;  and 
 20.  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  Vinson  &  Elkins,  LLP 
 The  Willard  Office  Building  1455  Pennsylvania  Avenue,  NW 
 Washington,  D.  C.  20004-  1008  (Counsel  for  Cumulus  Licensing  Corp.) 

 21.  IT  IS  FURTHER  ORDERED,  That  this  proceeding  IS  TERMINATED. 
 22.  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 
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