10 FCC Red No. 14 Federal Communications Commission Record DA 95-1384
Before the
Federal Communications Commission
Washington, D.C. 20554
MM Docket No. 91-255
In the Matter of
Amendment of Section 73.202(b), RM-7781
Table of Allotments,
FM Broadcast Stations.
(Nowata and CoHinsville, Oklahoma)
REPORT AND ORDER
(Proceeding Terminated)
Adopted: June 19,1995; Released: June 27, 1995
By the Chief, Allocations Branch:
1. At the request of BSB Communications ("petitioner"),
the Commission has before it the Notice of Proposed Rule
Making, 6 FCC Red 5178 (1991), proposing the substitution
of Channel 268C3 for Channel 268A, the reallotment of
Channel 268C3 from Nowata to CoHinsville, Oklahoma, as
its first local aural transmission service, and the modifica
tion of Station KQSY's construction permit to specify
CoHinsville as its community of license. Comments were
filed by the petitioner and John M. Singer ("Singer").
Reply comments were filed by the petitioner. Singer and
KBGH Radio Group ("KBGH"). 1
2. Petitioner reiterates its intention to apply for Channel
268C3, if allotted to Collinsville. In addition, it appends
supporting comments from the Mayor of Collinsville and
the present and past presidents of the Collinsville Chamber
of Commerce.
3. Singer, permittee of Station KBXT-FM, Bixby, Okla
homa, argues that the petition should be denied. It states
that Station KQSY does not need to relocate to Collinsville
in order to operate on Channel 268C3 and the deletion of
Channel 268A from Nowata would, in reality, leave the
community without any local service. Although Station
KRIG(FM) is licensed to Nowata, Singer states that the
station has been granted special temporary authority to be
off-the-air until September 27, 1991, and according to
Commission records, has not requested an extension of its
STA. Thus, he believes it reasonable to assume that Station
KRIG(FM) does not intend to resume operation.2 Further,
Singer contends that the proposed relocation of Station
KQSY is really an attempt to serve the Tulsa Urbanized
Area rather than Collinsville itself, which he states is lo
cated on the "very edge" of the Urbanized Area. According
to Singer, 58% of the Tulsa Urbanized Area would lie
within Station KQSY's 1 mV/m contour and the popula
tion residing within the Urbanized Area would account for
approximately 70% of the station's population gain. He
goes on to state that the petitioner has not provided any
information demonstrating that the residents of Collinsville
want a local radio station and questions whether the peti
tioner, on its own, would have such knowledge since the
licensee of Station KQSY is not a resident of either Nowata
or Collinsville, but rather Abilene, Texas. Finally, Singer
argues that Nowata should retain Channel 268A since the
community is growing at a faster rate than Collinsville,
Collinsville is already well served by the Tulsa area stations
and Collinsville would receive a "strong" aural signal from
a Nowata Channel 268C3 station.
4. In reply comments, Singer again argues that the dele
tion of Channel 268A from Nowata would result in the
removal of the community's sole local transmission service
since Station KRIG(FM) has not stated its intention to
return to on-air service. Further, it contends that implicit
in the petitioner's application for Nowata was an intention
to serve the community which Singer states is now being
abandoned for no reason other than the financial gain that
would result from relocating into or near an Urbanized
Area. Singer also points out that the licensees of Stations
KRIG(FM) and KQSY are both based in Abilene, Texas.
From this fact he argues that there is "strong circumstan
tial evidence that these two entities are plotting and plan
ning together." Therefore, he urges the Commission to
view the representations of Station KRIG(FM) regarding
resumption of operation with "great caution" so as to avoid
the manipulation of Commission rules and, indeed, be
lieves that further Commission inquiry into the "Abilene
Connection" is warranted.
5. In response, petitioner agrees that Channel 268C3
could be allotted to Nowata because of the modification of
Station KIND(FM) at Independence, Kansas, from Channel
269A to Channel 275A. 3 However, he points out that Sta
tion KIND(FM) is still operating on Channel 269A and no
application has been filed for the new channel. Therefore,
petitioner states that until such time as Station KIND(FM)
begins operating on Channel 275A, Channel 268C3 is
inoperable at Nowata. Petitioner also characterizes as idle
speculation and surmise Singer's statements that Station
KQSY seeks to serve the Tutsa Urbanized Area rather than
Collinsville, noting that no evidence has been presented to
support the contention. While Singer states that Collinsville
1 KBGH, permittee of Station KRIG(FM) (formerly
KNFB(FM)), Nowata, Oklahoma, submitted initial comments
supporting the rule making after the date for filing such re
sponses but prior to the date for filing reply comments. KBGH
also filed timely reply comments reiterating its support for the
reallotment of Channel 268C3 to Collinsville. Since the late-
filed initial comments do not provide any information not also
provided in its timely reply comments, we will only discuss the
reply comments. After the record closed, petitioner filed sup
plemental comments concerning the off-the-air status of Station
KRIG(FM). Singer filed comments in response and petitioner
filed a motion to strike the Singer responsive comments. The
Commission's Rules do not contemplate the filing of pleadings
beyond the comment and reply comment periods set forth in
the Notice of Proposed Rule Making. Further, in this case, the
status of Station KRIG(FM) is no longer an issue since the
station returned to the air on May 4, 1993, and thus the
unauthorized comments are moot.
2 Station KRIG(FM) resumed on-air operation in May 1993.
3 Station KIND(FM)'s license was modified from Channel 269A
to Channel 275A to permit Station KVOE-FM, Emporia, Kan
sas, to upgrade its operation from Channel 269A to Channel
269C2. See 5 FCC Red 7385 (1990).
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DA 95-1384 Federal Communications Commission Record 10 FCC Red No. 14
is on the "very edge" of the Urbanized Area, petitioner
submits that according to the 1980 U.S. Census map of the
Tulsa Urbanized Area, Collinsville is not only not on the
edge of the Urbanized Area but not shown on the map at
all. Petitioner also disputes Singer's assertion that Nowata
should retain its two local aural transmission services be
cause the community is growing at a faster rate than
Collinsville. Rather, petitioner states that between 1960 and
1990 Nowata's population decreased by 6.8% while the
population of Collinsville increased by 42.7%. Petitioner
also states that the residents of Collinsville are in favor of a
local radio station as shown by the proffered letters from a
number of Collinsville civic leaders. Finally, petitioner
submits that Singer's opposition is not based on the public
interest but instead is an attempt to "frustrate" what he
believes to be competition for the Tulsa market.
6. KBGH supports petitioner's request to reallocate
Channel 268C3 to Collinsville. It states that Nowata, with a
1990 population of less than 4,000 persons, cannot support
two local stations.
DISCUSSION
7. After careful review of the pleadings before us, we
believe the public interest would be served by substituting
Channel 268C3 for Channel 268A and reallotting the chan
nel from Nowata to Collinsville since it could enable
Collinsville to receive its first local aural transmission ser
vice and permit Station KQSY to provide service to an
additional 467,489 persons. As proposed, we will also
modify Station KQSY's construction permit to specify
Channel 268C3 at Collinsville. Collinsville has a 1990 U.S.
Census population of 3,556 persons, which represents a
gain of 1.35% between 1980 and 1990. Nowata, on the
other hand, has declined in population 8.8% between 1980
and 1990, according to the U.S. Census Bureau.
Collinsville is governed by a mayor and four commis
sioners, and has its own police and fire departments, water,
electric, trash, sewer and ambulance service, as well as
numerous local businesses. Collinsville is not located in the
Tulsa Urbanized Area, instead being 20 kilometers (12.4
miles) from the outer edge. Further, while Singer argues
that Collinsville is located near the outer limits of the
Urbanized Area and Station KQSY's 60 dBu signal would
cover 58% of the Urbanized Area, the Commission has
declined to extend the same concerns about the presump
tion of a first local service preference where a station seeks
to move from a rural community to one within an Urban
ized Area to those stations seeking to move from one rural
community to another rural community, albeit closer to
the Urbanized Area. See Pinetops and Scotland Neck, North
Carolina, 1 FCC Red 5113 (1992) and Van Wen, Ohio and
Monroeville, Indiana, 7 FCC Red 6519 (1992) (will not
presume that a community outside of. but near, an Urban
ized Area is not entitled to a first local transmission service
preference). In this case, we find that Singer has not pre
sented any evidence that would lead us to believe that
Collinsville is not entitled to a first local transmission
service preference. We specifically conclude that a 60 dBu
signal coverage of 58% of the Tulsa Urbanized Area is not
sufficient, given the lack of any other evidence, to warrant
further analysis of the factors set out in Faye and Richard
Tuck, 3 FCC Red 5374 (1988). Finally, we note that while
Station KQSY's 60 dBu signal, as a Collinsville Class C3
station, may cover 58% of the Tulsa Urbanized Area,
88.6% of the increased service area lies outside of the
Urbanized Area.
8. A staff engineering study has determined that the
allotment of Channel 268C3 to Collinsville will enable
Station KQSY to provide service to an additional 467,489
persons within a 2,363 square kilometer area. This gain in
population is offset by the fact that the relocation of Chan
nel 268C3 will also result in a loss of service to 5,883
persons within a 697 square kilometer area. However,
while we carefully consider any proposal that would result
in a loss of existing reception service, we believe the public
interest is well served by this reallotment proposal, given
the large reception service gains and the relatively small
reception service losses that would result. See Eatonton,
Georgia, et al., 8 FCC Red 4938 (1993). Further, the vast
majority of the population (5,656 persons) affected by the
change in community will remain well served with at least
five reception services and no population will receive less
than four services.
9. As pointed out by Singer, Channel 268C3 can be
allotted to Nowata in compliance with the Commission's
minimum distance separation requirements because of the
modification of Station KIND(FM)'s license from Channel
269A to Channel 275A at Independence, Kansas. However,
even if the petitioner agreed to the allotment of Channel
268C3 to Nowata instead of Collinsville, it would not be
possible for Station KQSY to effectuate the upgrade at this
time since Station KIND(FM) has not yet changed fre
quency. Therefore, we believe that since the substitution of
Channel 268C3 for Channel 268A at Nowata, and the
channel's reallotment to Collinsville, will provide
Collinsville with its first local aural transmission service,
will not result in the creation of a loss area where the
population receives less than five aural services, with the
exception of the extremely small population (227 persons)
who will receive four services, and will enable Station
KQSY to upgrade its facilities without the delay which
would be occasioned by the necessary move of Station
KIND(FM) to Channel 275A, the public interest will be
served by granting petitioner's request. Finally, as to Sing
er's request that the Commission investigate the "Abilene
Connection" to determine if they have attempted to ma
nipulate the Commission's Rules, we find that Singer's
speculative allegations do not constitute evidence sufficient
to warrant an investigation.
TECHNICAL SUMMARY
10. Channel 268C3 can be allotted to Collinsville in
compliance with the Commission's minimum distance sep
aration requirements with a site restriction 1.8 kilometers
(1.1 miles) east to accommodate petitioner's desired trans
mitter site and to avoid short-spacings to Station KXOJ-
FM, Channel 265A, Sapulpa, Oklahoma, and Station
KEOK, Channel 269C3, Tahlequah, Oklahoma.4
4 The coordinates for Channel 268C3 at Collinsville, Okla
homa, are North Latitude 36-21-50 and West Longitude
95-49-16.
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10 FCC Red NO. 14 Federal Communications Commission Record DA 95-1384
11. Accordingly, pursuant to the authority contained in
Sections 4(i), 5(c)(l), 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 11, 1995, 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.
Collinsville, Oklahoma 268C3
Nowata, Oklahoma 232A
12. IT IS FURTHER ORDERED, pursuant to Section
316(a) of the Communications Act of 1934, as amended,
that the construction permit of BSB Communications, for
Station KQSY, IS MODIFIED to specify operation on
Channel 268C3, in lieu of Channel 268A, and to specify
Collinsville, Oklahoma, in lieu of Nowata, Oklahoma, as
its community of license, subject to the following con
ditions:
(a) Within 90 days of the effective date of this Order,
the permittee shall submit to the Commission a mi
nor change application for a construction permit
(Form 301).
(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(l)(k)
and (2)(k), any party seeking a 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, BSB Communica
tions, permittee of Station KQSY, is required to submit a
rule making fee in addition to the fee required for the
applications to effect the change in community of license
and/or upgrade.
14. IT IS FURTHER ORDERED, That this proceeding
IS TERMINATED.
15. For further information concerning this proceeding,
contact Leslie K. Shapiro or Stanley Schmulewitz (engi
neering issues), 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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