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 Federal  Communications  Commission  DA  01-  1543 
 Before  the 
 Federal  Communications  Commission 
 Washington,  D.  C.  20554 

 In  the  Matter  of  ) 
 ) 
 Amendment  of  Section  73.202(  b),  )  MM  Docket  No.  00-  159 
 Table  of  Allotments,  )  RM-  9889 
 FM  Broadcast  Stations.  ) 
 (Thermopolis  and  Story,  Wyoming)  ) 
 ) 

 REPORT  AND  ORDER 
 (Proceeding  Terminated) 

 Adopted:  June  20,  2001;  Released:  June  29,  2001 
 By  the  Chief,  Allocations  Branch: 
 1.  At  the  request  of  Idaho  Broadcasting  Consortium,  Inc.  (  petitioner),  permittee  of  Station 
 KHWC(  FM),  1  Channel  252C2,  Thermopolis,  Wyoming,  the  Allocations  Branch  has  before  it  the 
 Notice  of  Proposed  Rule  Making,  15  FCC  Rcd  19046  (2000),  proposing  the  substitution 
 of  Channel  252C1  for  Channel  252C2  at  Thermopolis,  reallotment  of  Channel  252C1  from 
 Thermopolis  t  o  St  ory,  Wyoming,  and  the  modificat  ion  of  St  at  ion  WHWC(  FM)  s  const  ruct  ion  permit 
 accordingly.  2  Petitioner  filed  comments  in  support  of  the  proposal  reaffirming  its  intention  to  apply  for 
 the  channel,  if  reallotted  to  Story.  Lovcom,  Inc.  (  Lovcom)  filed  opposing  comments.  Reply 
 comments  were  filed  by  petitioner  and  Lovcom.  After  the  record  closed,  petitioner  filed  a  Motion  for 
 Leave  to  File  and  Clarification.  3 

 2.  The  proposed  reallotment  was  filed  pursuant  to  the  provisions  of  Section  1.420(  i)  of  the 
 Commission's  Rules,  which  permit  the  modificat  ion  of  a  st  at  ion's  aut  horizat  ion  to  specify  a  new 
 community  of  license  without  affording  other  interested  parties  an  opportunity  to  file  competing 
 expressions  of  interest.  See  Amendment  of  the  Commission's  Rules  Regarding  Modification  of  FM 

 1  Call  sign  KHWC  was  assigned  on  April  17,  2001. 

 2  The  construction  permit  for  Channel  252C2  at  Thermopolis  was  assigned  from  Idaho  Broadcasting  Consortium, 
 Inc.  to  Legend  Communications  of  Wyoming,  L.  L.  C.  on  May  31,  2000,  and  consummated  on  August  1,  2000. 

 3  The  Commission  generally  does  not  accept  pleadings  after  the  closing  of  the  pleading  cycle.  However,  since  this 
 clarification  is  of  decisional  significance  and  will  enable  us  to  have  a  complete  record,  it  will  be  accepted  and 
 considered. 
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 Federal  Communications  Commission  DA  01-  1543 
 and  TV  Authorizations  to  Specify  a  New  Community  of  License,  4  FCC  Rcd  4870  (1989),  recon. 
 granted  in  part,  5  FCC  Rcd  7094  (1990)  ("  Change  of  Community"). 

 3.  In  its  comments,  petitioner  states  that  the  proposed  reallotment  of  Channel  252C1  to  Story, 
 Wyoming,  as  the  communit  ys  first  local  aural  transmission  service  will  result  in  a  preferent  ial 
 arrangement  of  allot  ment  s.  Addit  ionally,  the  reallot  ment  will  result  in  a  net  gain  of  service  t  o  an  area 
 7,725.6  square  kilometers  (2,  982.9  square  miles)  cont  aining  a  populat  ion  of  21,  462  persons,  as  well  as 
 t  he  eliminat  ion  of  a  gray  area  of  659.9  square  kilometers  (254.8  square  miles)  cont  aining  15  persons. 
 It  will  provide  a  fourth  service  to  an  area  of  5,  063.6  square  kilometers  (1,  955.1  square  miles) 
 containing  923  persons,  and  a  fifth  service  to  an  area  of  4,561.0  square  kilometers  (1761  square  miles) 
 containing  2,653  persons.  Thus,  not  only  is  the  overall  net  service  gain  more  than  21,000,  but  new 
 serve  will  be  provided  to  3,  591  persons  in  underserved  areas.  All  the  theoretical  loss  area  will  remain 
 well-  served  with  the  exception  of  a  small  area  of  1,269.4  square  kilometers  (490.1  square  miles) 
 containing  61  persons.  Petitioner  claims  that  these  factors  far  outweigh  the  minimal  loss  in  service  that 
 will  t  heoret  ically  occur  as  a  result  of  t  he  change  in  communit  y  of  license.  Moreover,  Thermopolis  will 
 retain  serve  from  full-  time,  commercial  service  from  Station  KTHE(  AM),  KDNO(  FM),  and  from 
 noncommercial  St  at  ion  KUWT(  FM). 

 4.  In  its  opposing  comments,  Lovcom,  Inc.,  licensee  of  Stations  KROE(  AM),  KZWY(  FM), 
 and  KYTI(  FM),  Sheridan,  Wyoming,  argues  that  Story  is  not  a  community  for  allotment  purposes. 
 In  support  of  its  argument,  Lovcom  states  that  Story  is  neither  incorporated  nor  listed  in  the  U.  S. 
 Census,  nor  does  petitioner  establish  that  Story  is  a  geographically  identifiable  population  grouping. 
 Lovcom  further  states  that  petitioner  has  failed  to  estatabish  a  nexus  between  the  social,  economic  and 
 governmental  organizations  and  Story,  citing  Avon,  North  Carolina,  14  FCC  Rcd  3939  (1999);  and 
 Belview,  Minnesota,  11  FCC  Rcd  12793  (1996).  Futhermore,  Lovcom  asserts  that  petitioner  provided 
 inaccurate  and  misleading  information  about  the  existence  of  community  indicia  in  Story,  and  failed 
 to  show  any  nexus  between  organizations  and  businesses  and  the  needs  of  Story  residents.  Lovcom 
 claims  that  the  critical  deficiency  is  petitioners  failure  to  demonstrate  that  the  organizations  and 
 businesses  in  Story  are  intended  to  serve  the  residents  of  Story  rather  than  residents  in  other  nearby 
 areas  such  as  Sheridan,  citing  Lupton,  Michigan,  11  FCC  Rcd  14428  (1996);  Pleasant  Dale,  Nebraska, 
 14  FCC  Rcd  18893  (1999);  Kanarraville,  Ut  ah,  14  FCC  Rcd  15962  (1999);  and  Littlefield,  Arizona,  15 
 FCC  Rcd  10263  (2000).  Lovcom  submits  an  affidavit  supporting  its  claim  that  Story  does  not  possess 
 the  community  indicia  to  establish  it  as  a  community  for  allotment  purposes.  For  these  reasons, 
 Lovcom  requests  that  the  petitioners  proposal  be  denied. 

 5.  In  its  reply  comments,  petitioners  states  that  the  Commission  defines  community  for 
 allotment  purposes  as  a  geographically  identifiable  population  grouping.  Petitioner  further  states  that 
 Story  is  listed  in  the  2000  U.  S.  Census  as  a  Census  Designated  Place  (population  887),  and  that  there 
 is  the  presumption  that  it  is  a  community  for  allotment  purposes.  Story  is  also  listed  in  the  2000 
 Rand  McNally  Commercial  Road  Atlas  as  having  a  population  of  700  persons,  and  appears  on  the 
 Wyoming  road  map.  Furthermore,  petitioner  asserts  that  there  are  numerous  other  characteristics 
 which  demonstrate  that  Story  is  a  community  for  allotment  purposes.  Petitioner  submits  an  affidavit 
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 Federal  Communications  Commission  DA  01-  1543 
 and  responses  to  questionnaires/  surveys  of  residents  and  employees  of  businesses  located  in  Story. 
 The  affidavit  declares  that  some  of  the  businesses  located  in  Story  are:  The  Balkenbush  Real  Estate 
 Company,  the  T.  L.  C.  Greenhouse,  The  Alpine  Excavation  Company,  the  Wagon  Box  Inn  Restaurant, 
 Campground  and  Cabins,  the  Tunnel  Inn  Restaurant,  the  Story  Pines  Inn,  Electronic  Classroom 
 Furniture,  The  Lodore  Supper  Club  Restaurant,  the  Waldorf  A  Story  Restaurant  and  Deli,  the  Piney 
 Creek  General  Store,  Inc.,  the  Wyoming  Game  and  Fish  Department  Fish  Hatchery.  Story  also  has  a 
 U.  S.  Post  Office,  its  own  zip  code  (82842),  its  own  telephone  exchange  (683),  Story  Community 
 Branch  Library,  Story  Volunteer  Fire  Department,  and  the  Story  Elementary  School.  There  are  three 
 or  four  churches,  and  signs  were  observed  by  the  affiant  for  the  Story  Lions  Club,  The  Story  Womens 
 Club,  a  local  park  and  playground  equipment,  the  Thorn  Rider  Youth  Camp,  and  a  Presbyterian 
 Church.  Petitioner  asserts  that  the  residents  of  Story  consider  themselves  not  a  part  of  any  other 
 community,  but  rather  a  separate,  self-  contained  community  deserving  of  a  first  local  aural  transmission 
 service. 

 6.  In  its  reply  comment  s,  Lovcom  cont  ends  that  t  he  gray  area  pet  it  ioner  claims  will  be 
 eliminat  ed  is  erroneous,  in  that  pet  it  ioner  used  night  t  ime  service  areas  rat  her  than  daytime  service  areas 
 for  AM  stations.  Therefore,  when  the  daytime  contours  of  AM  stations  area  used  there  are  no  gray 
 area  to  be  eliminated  by  the  proposed  reallotment.  Lovcom  further  argues  that  even  if  actual  service 
 contours  of  existing  FM  stations  were  used  rather  than  uniform  circle,  petitioners  proposal  would 
 result  in  providing  a  sixth  or  higher  aural  service  to  all  the  proposed  service  area.  Thus,  Lovcom 
 concludes  that  even  if  Story  were  deemed  to  be  a  community  for  allotment  purposes,  which  it  is  not, 
 there  would  be  scant  public  interest  benefits.  In  response  to  Lovcoms  claims,  petitioner  submits  an 
 engineering  statement  demonstrating  that  the  reallotment  of  Channel  252C1  to  Story  will  eliminat  e  a 
 gray  area  and  provide  service  to  underserved  populations.  Petitioner  asserts  that  the  Commission  has 
 specified  the  methodology  to  be  used  to  conduct  reception  service  analyses  in  numerous  rule  making 
 cases,  cit  ing  Woodville  and  Wells,  Texas,  15  FCC  Rcd  18010  (2000).  Petitioner  further  asserts  that 
 these  procedures  were  followed  exactly  in  preparing  its  analysis  of  reception  services  in  the  gain  and 
 loss  areas,  and  that  Lovcoms  analysis  deviates  from  well-  established  Commission  policies. 

 Discussion 
 7.  As  an  initial  matter,  we  find  that  petitioner  has  sufficiently  demonstrated  that  Story  is  a 
 community  for  allotment  purposes.  To  establish  that  a  locality  is  a  community  for  allotment 
 purposes,  it  must  be  demonstrated  that  a  locality  has  social  economic,  cultural  or  governmental 
 indicia  which  identify  it  as  a  community.  See  Avon  ,  North  Carolina,  14  FCC  Rcd  3939,  3940  (1999). 
 It  is  sufficient  to  demonstrate  that  the  locality  is  commonly  regarded  as  a  distinct  group.  This  can  be 
 proven  by  the  testimony  of  local  residents  or  by  objective  indications  of  the  existence  of  a  common 
 perception  that  a  localitys  populace  constitutes  a  distinct  geographical  population.    Implementation 
 of  BC  Docket  No.  80-  90  to  Increase  the  Availabilit  y  of  FM  Broadcast  Assignment  s,  5  FCC  Rcd  934 
 (1990).  The  Commission  has  held  that  [  e]  xamples  of  object  ive  indicat  ions  of  communit  y  st  at  us 
 include  the  existence  of  political,  commercial,  social  and  religious  organizations  and  services  in  the 
 community.  Another  indication  of  community  status  is  whether  the  residents  function  as  and  conceive 
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 Federal  Communications  Commission  DA  01-  1543 
 of  themselves  as  residents  of  a  community,  around  which  their  interests  coalesce.    Based  on  the 
 information  before  us,  we  believe  the  public  interest  would  be  served  by  the  substitution  of  Channel 
 252C1  for  Channel  252C2  at  Thermopolis,  the  reallotment  of  Channel  252C1  from  Thermopolis  to 
 Story,  Wyoming,  as  the  communitys  first  local  aural  transmission  service.  4 

 8.  In  considering  a  change  of  community  of  license  proposal,  we  must  determine  whether  the 
 proposal  would  result  in  a  preferential  arrangement  of  allotments  pursuant  to  the  Commission's  change 
 of  community  procedures.  See  Change  Community,  supra.  Under  those  procedures,  we 
 compare  the  existing  arrangement  of  allotments  with  the  proposed  arrangement  of  allotments  using  our 
 FM  allotment  priorities.  5  See  Revision  of  FM  Assignment  Policies  and  Procedures,  90  FCC  2d  88,  92 
 (1982). 

 9.  In  making  that  comparison,  we  find  that  the  proposed  arrangement  of  allotments 
 triggers  priority  (3)--  first  local  service.  Under  this  priority,  Story  would  receive  a  first  local  aural 
 transmission  service.  The  station  is  unbuilt  and  the  reallotment  will  not  result  in  the  removal  of 
 the  sole  local  service  in  Thermopolis  (population  3,172),  whereas,  one  AM  and  two  FM  stations 
 would  remain  licensed  to  the  community.  Moreover,  our  engineering  analysis  has  determined  that 
 the  methodology  used  in  petitioners  gain  and  loss  are  study  is  consistent  with  the  Commissions 
 guidelines,  and  that  theoretically,  the  reallotment  of  Channel  252C1  to  Story  will  provide  new 
 service  to  gain  area  of  16,422  square  kilometers  (6,  340.6  square  miles)  containing  a  population  of 
 29,562  persons.  The  reallotment  would  also  eliminate  a  gray  area  of  approximately  810  square 
 kilometers  (312.7  square  miles)  containing  a  population  of  25  persons.  On  the  other  hand,  we 
 note  that  the  reallotment  will  create  a  loss  area  of  8,  560.3  square  kilometers  (3,  305.2  square 
 miles)  containing  a  population  of  8,  248.  The  loss  area  would  continue  to  receive  three  or  more 
 reception  services,  and  50%  of  the  gain  area  would  continue  to  receive  three  reception  services. 
 Since  the  70  dBu  signal  for  the  reallotment  would  not  encompass  50%  or  more  of  any  urbanized 
 area,  a  Tuck  analysis  is  not  necessary.  6 

 4  Official  Notice  has  been  taken. 

 5  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).] 

 6  See  Headland,  Alabama  and  Chattahoochee,  Florida,  10  FCC  Rcd  10352  (1995);  Huntington  Broadcasting  Co.  v. 
 FCC  ,  192  F.  2d  33  (D.  C.  Cir.  1951);  RKO  General,  Inc.,  5  FCC  Rcd  3222  (1990);  and  Faye  and  Richard  Tuck,  3 
 FCC  Rcd  5374  (1988). 
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 Federal  Communications  Commission  DA  01-  1543 
 Technical  Summary 

 10.  An  engineering  analysis  has  determined  that  Channel  252C1  can  be  reallotted  to  Story  in 
 compliance  wit  h  t  he  Commissions  minimum  dist  ance  separat  ion  requirement  s  wit  hout  the  imposit  ion 
 of  a  site  restriction  at  petitioners  requested  site.  7  In  accordance  with  Section  1.420(  i)  of  the 
 Commissions  Rules,  we  modify  St  at  ion  KHWC(  FM)  s  const  ruct  ion  permit  to  specify  operat  ion  on 
 Channel  252C1  at  Story,  Wyoming,  as  its  new  community  of  license. 

 11.  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,  August  13,  2001,  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  Channel  No. 
 Thermopolis,  Wyoming  269C1 
 Story,  Wyoming  252C1 
 12.  IT  IS  FURTHER  ORDERED,  pursuant  to  Section  316(  a)  of  the  Communications  Act 
 of  1934,  as  amended,  that  the  construction  permit  of  Legend  Communications  of  Wyoming, 
 L.  L.  C.  for  Station  KHWC(  FM),  Thermopolis,  Wyoming,  IS  MODIFIED  to  specify  operation  on 
 Channel  251C1  at  Story,  Wyoming,  subject  to  the  following  conditions: 

 (a)  Within  90  days  of  the  effective  date  of  this  Order,  the 
 permittee  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. 

 (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. 

 13.  Pursuant  to  Commission  Rule  Section  1.1104(  1)(  k)  and  (2)(  k),  any  party  seeking  a 
 7  The  coordinates  for  Channel  252C1  at  Story  are  44-  34-  28  North  Latitude  and  106-  52-  14  West  Longitude. 
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 Federal  Communications  Commission  DA  01-  1543 
 change  of  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, 
 Legend  Communications  of  Wyoming,  L.  L.  C.  permittee  of  Station  KHWC(  FM),  is  required  to 
 submit  a  rule  making  fee  in  addition  to  the  fee  required  for  the  application  to  effect  the  upgrade 
 and  change  in  community  of  license. 

 14.  IT  IS  FURTHER  ORDERED,  That  the  Secretary  shall  send  a  copy  of  this  Report  and 
 Order  by  Certified  Mail,  Return  Receipt  Requested,  to  petitioner,  as  follows: 

 Legend  Communicat  ions  of  Wyoming,  L.  L.  C. 
 5074  Dorsey  Hall  Drive,  Suite  205 
 Elliot  t  Cit  y,  Maryland  21042 
 (Permittee  of  Station  KHWC(  FM)) 

 15.  IT  IS  FURTHER  ORDERED,  That  this  proceeding  IS  TERMINATED. 
 16.  For  further  information  concerning  this  proceeding,  contact  Sharon  P.  McDonald,  Mass 
 Media  Bureau,  (202)  418-  2180. 

 FEDERAL  COMMUNICATIONS  COMMISSION 

 John  A.  Karousos 
 Chief,  Allocations  Branch 
 Policy  and  Rules  Division 
 Mass  Media  Bureau 
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