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 Federal  Communications  Commission  DA  02-  620 
 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  (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,  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  communitys  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-  FMs  license  accordingly;  (b)  the  substitution  of  Channel 
 249A  for  Channel  264A  at  Richlands,  Virginia,  and  the  modification  of  Station  WRIC-  FMs  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,  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 
 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). 
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 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  Amendment  of  the  Commission's  Rules  Regarding  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  7094  (1990)  ("  Change  of  Community").  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  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,  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  Commissions  Rules,  citing  St.  Augustine  and 
 Callahan,  Florida,  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,  8  FCC  2d  159  (1967).  Holston  affirms  its  intention  to  apply  for 


 3  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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 Channel  274A  at  Glade  Spring,  if  allotted. 


 5.  In  its  reply  comments,  petitioner  states  that  Holstons  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  Holstons  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,  13  FCC  Rcd  13458 
 (1998).  Finally,  petitioner  questions  Holstons  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 
 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,  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  Change  of  Community,  supra.  Under  those  procedures,  we  compare  the  existing  arrangement  of 
 allotments  with  the  proposed  arrangement  of  allotments  using  our  FM  allotment  priorities.  4  See  Revision  of  FM  Assignment  Policies  and  Procedures,  supra. 


 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. 
 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).] 
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 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  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  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,  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,  e.  g.,  Blanchard,  Louisiana  and  Stephens,  Arkansas,  10  FCC  Rcd  9828,  9829  (Comm.  1995)  and  cases  cited  therein.  See  also  Rose  Hill, 
 Trenton,  Aurora  and  Ocracoke,  North  Carolina,  11  FCC  Rcd  21223  (1996);  Athens  and  Atlanta,  Illinois,  11  FCC  Rcd  3445  (1996).  As  indicated  in  the  Blanchard  case,  the  population  difference 
 has  been  dispositive  even  if  the  difference  is  small.  In  that  case,  the  population  difference  was 
 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,  3  FCC  Rcd 
 at  5378. 
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 38  people,  and  the  allotment  was  made  to  the  community  with  the  larger  population. 
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 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,  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  Commissions  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,  supra,  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  communitys  first  local  aural  transmission  service.  An  engineering  analysis  has 
 determined  that  Channel  274A  can  be  allotted  to  Glade  Spring  in  compliance  with  the  Commissions  minimum  distance  separation  requirements  with  a  site  restriction  of  13.3  kilometers  (8.3  miles)  east 
 at  petitioners  requested  site.  6  Additionally,  to  accommodate  the  allotment,  Channel  263A  can  be  substituted  at  Marion  at  petitioners  requested  site;  7  Channel  249A  can  be  substituted  at  Richlands  at 
 Station  WRIC-  FMs  presently  licensed  site;  8  and  Channel  264A  can  be  substituted  at  Grundy  at 
 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. 
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 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  Channel  No. 
 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  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. 
 9  The  coordinates  for  Channel  264A  at  Grundy  are  37-  18-  08  North  Latitude  and  82-  07-  04  West  Longitude. 
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 19.  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 
8