*Pages 1--4 from Microsoft Word - 49635.doc* Federal Communications Commission DA 05- 1736 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 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). 1 Federal Communications Commission DA 05- 1736 2 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 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. 2 Federal Communications Commission DA 05- 1736 3 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 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: 6 No change to the physical facilities of Station WRSN- FM will be necessary. 3 Federal Communications Commission DA 05- 1736 4 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 4