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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Amendment of Section 73.202(b), ) MM Docket No. 98-55 FM Table of Allotments, ) RM-9255 FM Broadcast Stations. ) RM-9327 (Pleasanton, Bandera ) Hondo, and Schertz, Texas) ) REPORT AND ORDER (Proceeding Terminated) Adopted: February 9, 2000 Released: February 18, 2000 By the Chief, Allocations Branch: 1. The Commission has before it the Notice of Proposed Rule Making, 13 FCC Rcd 7351 (1998 ("Notice"), issued in response to a petition filed by Reding Broadcasting Co. ("petitioner"), licensee of Station KBUC(FM), Channel 252A, Pleasanton, Texas. Petitioner requested the substitution of Channel 253C2 for Channel 252A at Pleasanton, Texas, and the modification of Station KBUC(FM)'s license accordingly. To accommodate this upgrade, the petition proposes the substitutions of Channel 290A for Channel 253A at Hondo, Texas and Channel 276A for Channel 252A at Bandera, Texas, a change of site for Hondo, and a modification of the licenses for Stations at Bandera and Hondo. It includes a pledge to reimburse the licensee at Bandera and the permittee at Hondo for their expenses in effectuating the channel substitutions and the change of transmitter site at Hondo, as well as an agreement to the site relocation signed by the permittee at Hondo. 2. Petitioner filed comments and a counterproposal. North American Broadcasting Co. ("NABC"), an applicant at Karnes City, Texas, and Comal Broadcasting Company ("Comal") also filed comments and counterproposals. Reply comments were filed by petitioner, NABC, Comal, La Radio Cristiana Network, permittee of Station KAYG(FM), Camp Wood, Texas, and jointly by James Withers, licensee of Station KEEP(FM), Bandera, Texas and Five Points Broadcasting, Inc., permittee of Station KRBH(FM) Hondo, Texas. 3. In response to the Notice proposing an upgrade at Pleasanton and related channel substitutions, petitioner filed comments and a counterproposal requesting the substitution of Channel 253C1 for Channel 252A instead of Channel 253C2, and a change of community from Pleasanton to Schertz, Texas, with the same related channel substitutions at Hondo and Bandera. NABC requests that alternate Channel 256A be substituted at Bandera, Texas instead of Channel 276A, with a related channel substitution of Channel 251A for Channel 256A at Camp Wood, Texas to make available a previously proposed site for the allotment at Karnes City. Comal requests, as an alternative to the upgrade at Pleasanton, the allotment of Channel 253C2 at Blanco, Texas, with the same related channel substitutions at Hondo and Bandera as proposed by petitioner. 4. Petitioner filed its counterproposal 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 an opportunity to file competing expressions of interest. See Report and Order in MM Docket No. 88-526 ("Change of Community R&O"), 4 FCC Rcd 4870 (1989), recon. granted in part ("Change of Community MO&O"), 5 FCC Rcd 7094 (1990). In support of the proposal, petitioner states that the requested reallotment, which is mutually exclusive with its existing authorization on Channel 252A at Pleasanton, as well as its proposed allotment at Pleasanton, would fulfill a higher allotment priority by providing a first local aural service to Schertz, while Pleasanton will continue to receive local full-time service from AM Station KBOP. In support of its counterproposal, petitioner states that after it filed its original proposal for Pleasanton and while it reviewed possible transmitter site locations for that allotment, it discovered that its Station KBUC(FM) might be able to upgrade to a Class C1 station. It states that it has located a suitable and available tower which would accommodate this upgrade. However, it states that it cannot cover the community of Pleasanton with a city-grade signal from this site and thus the allotment of Channel 253C1 requires a change of community to Schertz from Pleasanton. It acknowledges that Schertz, a community of 14,014 persons, is partially in the San Antonio Urbanized Area and that Channel 253C1, if allotted, would cover over 99% of the San Antonio Urbanized Area with a 70dBu, or city grade, signal. It argues that the reallotment should be granted because the community of Schertz is separate and apart from the Urbanized Area and thus warrants an allotment to the community as a first local aural service. It offers an analysis of the community vis   vis the Urbanized Area and in support of its conclusion that the community is independent and not interdependent with the Urbanized Area, citing Faye and Richard Tuck ("Tuck"), 3 FCC Rcd 5374 (1988). In the alternative, petitioner requests that the Commission grant its proposal for channel 253C2 at Pleasanton if it determines that Schertz is not deserving of an allotment. Petitioner states that it will apply for either channel, if allotted. 5. NABC opposes petitioner's counterproposal at Schertz. It argues that petitioner's proposal to Schertz should be denied and its proposal to Pleasanton should be granted because the community of Schertz is interdependent with the San Antonio Urbanized Area and does not warrant a first local service preference under the FM allotment priorities. In addition, it claims that petitioner's representations regarding its proposed Channel 253C1 transmitter site at Schertz and its intention to serve the community of Schertz belie its actual intention to serve the San Antonio Urbanized Area. NABC also argues that the Commission should deny petitioner's proposal to change community because a grant will further exacerbate the migration of stations from rural to urban areas. 6. In its reply comments, petitioner alleges that both the NABC and Comal counterproposals should be dismissed as defective. Petitioner claims that NABC failed to include coordinates for a site for the Karnes City allotment or an engineering report in support of its proposal for that site. Petitioner also alleges that Comal failed to include a statement from Five Points Broadcasting, Inc. that it is willing to change transmitter site to accommodate the allotment at Blanco. Petitioner also alleges that both counterproposals failed to include pledges to reimburse the licensees or permittees whose channels they proposed to substitute. DISCUSSION 7. We will grant the proposal to Schertz as filed by petitioner. As a threshold matter, we agree with petitioner that Comal's counterproposal is defective. It failed to include a statement from Five Points Broadcasting, Inc., that it is willing to change transmitter site to accommodate the allotment at Blanco and failed to include pledges to reimburse the licensees or permittees whose channels they proposed to substitute. We also agree that NABC's counterproposal is defective and must be dismissed for its failure to include pledges to reimburse the parties at Bandera and Hondo for the costs associated with channel and transmitter site changes, but disagree with petitioner that the counterproposal contained insufficient engineering information. We note that even if each of these counterproposals were considered in a comparative analysis with petitioner's counterproposal at Schertz, they would not be chosen as a preferential arrangement of allotments. The proposal at Blanco, a first local service, would serve a smaller community and approximately one-tenth the number of persons. NABC's proposal at Bandera and Camp Wood would simply accommodate NABC's described technical difficulties and apparently speculative concerns about future improvements at Karnes City and the other involved communities, which do not establish a public interest benefit which could form the basis for a grant in a comparative analysis with Schertz. However, petitioner's proposal at Schertz would prevail in any event as a first local service under FM allotment priority three, whereas NABC's proposal would fall under priority four, other public interest matters. We note that NABC's application prevailed at auction at Karnes City, which it could amend to achieve its desired results using the various methods available to applicants, such as contour protection. 8. We believe that petitioner's showing has established the independence of Schertz from the San Antonio Urbanized Area. The allotment of Channel 253C1 could provide the community with its first local aural service while Pleasanton would retain local aural service from Station KBOP(AM). We do not question Schertz's status as a community for allotment purposes. However, we agree that this proposal must fulfill a majority of the eight interdependence criteria spelled out in Tuck. NABC accurately notes that the first two criteria support a finding that the proposal would serve the surrounding Urbanized Area rather than the independent community. Schertz is partially located within the San Antonio Urbanized Area, and the allotment of a C1 Channel would cover over 99% of the Urbanized Area. Therefore, petitioner, in recognition of this, has provided information in support of its argument that Schertz is independent of the Urbanized Area and thus entitled to a first local service preference using the factors enumerated in RKO General ("KFRC "), 5 FCC Rcd 3222 (1990) and Tuck. In addition, petitioner has provided data regarding the areas and populations which would gain and lose service if Channel 253 C1 were allotted to Schertz. 9. Based on the showing presented by petitioner, we find that Schertz is a community independent of the San Antonio Urbanized Area. Although it does not fulfill all of the delineated eight factors, it does satisfy a majority of them, which is sufficient to demonstrate a community's independence. See Tuck; Report and Order in MM Docket No. 95-32 ("Parker and St. Joe, Florida"), 11 FCC Rcd 1095 (1996). First, petitioner states that it does not have information to prove where the residents of Schertz work, but that there are a good number of businesses located in Schertz to make employment available to a number of residents. While this may show that employment opportunities are available, it is not sufficient to establish that a majority of residents live and work in the community, as we have generally required. [cite] Second, petitioner shows that the city of Schertz is served by a monthly newsletter, as well as The Herald, a weekly publication that covers all local activities. The newspaper used by the city for publication of bids, employment openings, public hearings, and ordinances is the Seguin Gazette-Enterprise, which is published six days a week in the city of Seguin. NABC points out that neither newspaper is a Schertz publication; however, we note that since neither is a San Antonio publication, this does not establish interdependence. Furthermore, Schertz does have its own monthly newsletter, which in conjunction with the other papers minimally satisfies this criterion. Third, petitioner notes that the city of Schertz has a distinct history, that a number of businesses identify strongly with the city and include the word "Schertz" in their names, and that the City Secretary attests that the city government perceives itself as an autonomous community from San Antonio. While NABC challenges this on the basis that it is supported only by one letter from a city official, we believe this is a satisfactory showing with sufficient documentation. In addition, the letters NABC offered to support its allegation of interdependence do not persuade us to the contrary, because they do not address or establish a majority of the Tuck factors. Fourth, petitioner proffers that the city has its own local government and elected officials and thus is independent. It shows that Schertz was incorporated by the State of Texas in 1958; it has a council-manager form of government and has an elected mayor. The City Manager is the Chief Administrative Officer. The city government has 144 full-time employees, including a Comptroller, Police Chief, Public Works Director, among others, and a Municipal Court Judge, Prosecutor, City Engineer, and City Auditor under contract. This is not disputed and is more than adequate to support a finding of independence. Fifth, the city of Schertz has one zip code, and post office, and is served by a telephone book separate from San Antonio. This is not challenged and we find it to be satisfactory. Sixth, the city has numerous commercial establishments, churches, VFW, DAV, Elks, Knights of Columbus, Lions, Kiwanis and Jaycees. Schertz does not have its own hospital, but it does have medical clinics and dentists and it has a veterinary clinic. This is an adequate showing in support of independence and is also not disputed. Seventh, with respect to the advertising market, petitioner provided no information. Eighth, the city has its own Police Department, Fire Department, schools and library. Its Public Works department provides water service, streets and parks, a city pool and animal control. Its school district, Schertz-Cibolo Universal City School District, is independent of San Antonio. Its library has more than 40,000 volumes. All of these factors support a finding of independence. 10. With respect to NABC's allegations as to petitioner's intentions to serve the community, we find that there is no evidence to support these allegations. Petitioner did not allege that the site serving Schertz was the only site it could locate, nor was it required to allege this. With respect to NABC's concerns regarding possible abuse of the Commission's process in order to remove service from a rural area to move into an urban area, there is no prohibition on such a move as long as it complies with the Commission's FM allotment priorities. See Change of Community R&O 4 FCC Rcd at 4873. We have determined that this reallotment does comply with our FM allotment priorities and thus fulfills the public interest. No abuse has been demonstrated. As an additional point of fact, we note that petitioner pledged to reimburse both James Withers, licensee of Station KEEP(FM), Bandera, Texas for its reasonable expenses for changing frequency and Five Points Broadcasting, Inc., permittee of Station KRBH(FM) Hondo, Texas for its reasonable expenses of changing frequency and transmitter location. 11. Petitioner also states, and a Commission staff engineering analysis confirms, that the proposed Class C1 station at Schertz will provide a 60dBu signal to over 1,300,000 persons. The proposed change of community will also result in a small loss area of 374 square kilometers with a population of 1,044 persons; this area will continue to receive service from at least five radio stations. 12. The allotment of Channel 253C1 at Schertz, Texas, can be made at petitioner's requested site 44.1 kilometers (27.4 miles) west of the community. The allotment of Channel 276A at Bandera can be made at Station KEEP(FM)'s licensed site. The allotment of Channel 290A at Hondo can be made with a site restriction of 10.4 kilometers (6.4 miles) west of the community. We note that these communities are located within 320 kilometers (199 miles) of the U.S.-Mexico border, and concurrence of the Mexican government has been received for these allotments. 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) and 0.283 of the Commission's Rules, IT IS ORDERED, That effective April 3, 2000 , the FM Table of Allotments, Section 73.202(b) of the Commission's Rules, IS AMENDED for the communities listed below, as follows: Community Channel Number Schertz, Texas 253C1 Bandera, Texas 276A Hondo, Texas 290A 14. 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 James G. Withers Shook, Hardy and Bacon 1921 Crampton Court 801 Pennsylvania Ave., NW Chesterfield, MO 63017 Suite 600 (Licensee of Station KEEP(FM)) Washington, DC 20004 and Gene A. Bechtel Five Points Broadcasting, Inc. Bechtel & Cole, Chartered 9450 Plainfield Drive 1901 L Street, NW Rock Hill, MO 63119 Suite 250 (Permittee of Station KRBH(FM)) Washington, DC 20036 (Counsel for petitioner) Henry E. Crawford Bruce A. Eisen Smithwick & Belendiuk Kaye, Scholer, Fierman, Hays & Handler 1990 M Street, N.W., Suite 510 901 15th Street, NW Washington, DC 20036 Washington, DC 20005 (Counsel for Comal Broadcasting Co.) (Counsel for North American Broadcasting Co.) 15. IT IS FURTHER ORDERED, That pursuant to Section 316(a) of the Communications Act of 1934, as amended, the authorization of Station KBUC(FM) IS MODIFIED to specify operation on Channel 253C1 at Schertz, Texas in lieu of 253A at Pleasanton, Texas, the authorization of Station KRBH(FM) IS MODIFIED to specify operation on Channel 290A in lieu of Channel 253A, and the authorization of Station KEEP(FM) IS MODIFIED to specify operation on Channel 276A in lieu of Channel 252A, 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 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 Commission's Rules. 16. Pursuant to Commission Rule Section 1.1104(1)(k) and (2)(k), any party seeking a change in 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, Reding Broadcasting Company, licensee of Station KBUC(FM), Pleasanton, Texas is required to submit a rule making fee in addition to the fee required for the applications to effectuate the upgrade of its license from Channel to Channel . 17. IT IS FURTHER ORDERED, That this proceeding BE TERMINATED. 18. IT IS FURTHER ORDERED, That the petitions filed by North American Broadcasting Company and Comal Broadcasting Company ARE DISMISSED. 19. For further information concerning the above, contact Victoria McCauley, Mass Media Bureau, (202) 418-2130. FEDERAL COMMUNICATIONS COMMISSION John A. Karousos Chief, Allocations Branch Policy and Rules Division Mass Media Bureau