436 Federal Communications Commission Reports
Suburban Community 307(b) Issue
Suburban Community-FM Station
Report and Order adopted eliminating the suburban community
policy, used in licensing AM stations, and its FM corollary, the
Berwick doctrine. Henceforth, the Commission will presume that
compliance with rules pertaining to service to community of
license will indicate an applicant's intent to serve that communi 
ty and not a nearby central city.
-Suburban Community Policy
BC Docket No. 82-320
FCC 83-81
BEFORE THE
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
In the Matter of
The Suburban Community Policy, the Ber 
wick Doctrine, and the De Facto Reallocation
Policy
REPORT AND ORDER
BC Docket 82-320
(Adopted: February 17, 1983 Released: March 14, 1983)
By THE COMMISSION: COMMISSIONER QUELLO DISSENTING IN PART
AND ISSUING A STATEMENT; COMMISSIONER
SHARP DISSENTING IN PART AND ISSUING A
STATEMENT.
Introduction
1. Before the Commission is the Notice ofProposed Rulemaking,
47 Fed. Reg. 29282, published July 1, 1982 and the comments filed in
response to that Notice. In the Notice, the Commission sought
comment on whether the public interest requires the continuation of
three policies used in the licensing of radio and television stations.
The policies, adopted to aid the Commission in fulfilling its responsi 
bilities under § 307(b) of the Communications Act, 47 U.S.C. § 307(b),
are the suburban community policy, used in authorizing AM radio,
and the Berwick doctrine and the de facto reallocation policy, used in
authorizing FM radio and television stations. We have reviewed
carefully the comments filed in this proceeding. The comments
indicate that the policies frequently are used for anticompetitive
purposes. Commenting parties also contend that the policies have
frustrated rather than furthered the goals of § 307(b) by inhibiting
93 F.e.c. 2d
Suburban Community Policy 437
the establishment of stations in small communities located nearby
larger ones. Consequently, based on our analysis of the comments
and for the reasons that follow, we believe that the mandate of §
307(b) can be fulfilled without reliance on these policies which, we
conclude, no longer serve the public interest and should be eliminat 
ed. We emphasize, however, that elimination of these policies will
not eliminate or modify § 307(b) of the Communications Act. Our
obligation to implement that statutory responsibility continues and
will be faithfully carried out.
Background
2. The Notice set out Commission responsibilities under § 307(b)
of the Communications Act. Section 307(b) requires the Commission
to "make such distribution of licenses, frequencies, hours of opera 
tion and of power among the several states and communities as to
provide a fair, efficient, and equitable distribution of radio service to
each of the same" Prior to the Radio Act of 1927, radio licensees
generally were free to locate their radio stations in any preferred
location subject to the then-existing minimal limitations against
electrical interference. The result was "an unjustifiable grouping of
stations within limited areas. There are within 50 miles of Chicago,
40 stations; of New York, 38; of Philadelphia, 22; and of San
Francisco, 22." 67 Congo Rec. 5479 (1926) (remarks of Representative
White). To dilute this concentration of radio stations in and around
large cities, Congress enacted Section 9 of the Radio Act of 1927,
which provided, inter alia, that
the licensing authority shall make such a distribution of licenses,
bands of frequency of wave lengths, periods of time for operations,
and of power among the different States and communities as to
give fair, efficient, and equitable radio service to each of the same.
Pub. L. No. 69-632, ch. 169, § 9, 44 Stat. 1166. By this statutory
provision, Congress authorized the newly created Federal Radio
Commission "in passing upon a license to consider its proposed
location and the area to be served" and directed the Commission to
"effect an equitable geographical distribution of stations over the
entire country." 67 Congo Rec. 5479 (1926).
3. Unsuccessful efforts were made to include in Section 9
language requiring the Commission to consider "the right of each
state to have allocated to it" a certain quota of frequencies. 68 Congo
Rec. 2557 (1927). However, the following year, a compromise
amendment to Section 9 was enacted which directed the Commission
to allocate frequencies among five zones, each composed of several
states. The frequencies were to be allocated in accordance with a
formula based on population. Pub. L. No. 70-195, 45 Stat. 373. In
1934, Congress reenacted Section 9, as amended, into the Communi 
cations Act, as Section 307(b). Two years later, in 1936, Congress
deleted the five-zone scheme, which had proved to be mechanistic
93 F,G.C. 2d
438 Federal Communicatwns Commission Reports
and unsatisfactory. This restored the original language of Section 9
of the Radio Act of 1927. Pub. L. No. 74-652, 49 Stat. 1475, 47 U.S.C.
§ 307(b). Thus, the legislative intent behind the original Section 9 of
the Radio Act is still controlling today; namely, to effect an equitable
geographical distribution of stations across the entire nation.
4. The Commission implemented § 307(b) in commercial FM
radio and TV by establishing and incorporating in its rules a Table of
Assignments for each service.' These tables provide for a distribution
of channels to specific communities throughout the United States
based, in part, on fixed mileage separations. The Commission
determined that
effectuation of the distribution of radio facilities in such a manner
that the result is fair, efficient and equitable and otherwise in the
public interest from the standpoint of the listening and viewing
public of the United States (Sections 303 and 307(b» can best
be achieved by the adoption of a Table of Assignments .
Sixth Report and Order on Television Allocations, 41 FCC 148, 151
(1952). The licensing procedure for FM and television is a two-step
process. Step one fulfills the § 307(b) obligation by making available
for licensing only a frequency which has been assigned to a specific
community on the Table of Assignments. If the applicant is desirous
of utilizing the frequency in another community, he or she must
petition for a rulemaking to amend the Table of Assignments. In step
two of the licensing procedure, applications are processed in order to
ascertain that the applicants have the requisite qualifications to be
licensees ofthe Commission. Ifthere is more than one applicant for a
frequency, a comparative hearing takes place in order to determine
the party most worthy of the grant. The Notice explained that
Commission rules permit a station to be located within 15 miles (TV
or Class BIC FM) or 10 miles (Class A FM)' of the community listed
in the Tables.
3
If multiple applicants apply for a single frequency
within the 15-mile or lO-mile limit, and these applications propose
different communities of license, then a second § 307(b) determina 
tion is made during the comparative hearing.
5. In contrast, AM radio frequencies are allocated on a demand
I See, Sixth Report and Order on Television Allocations, 41 FCC 148, 151-153 (1952).
Revision of FM Broadcast Rules, 40 FCC 747, 757 (1963). 47 C.F.R § 73.202
contains the FM Radio Table of Assignments and 47 C.F.R. § 73.606 contains the
Television Table of Assignments.
2 A Class A FM station is designed to render service to a relatively small
community, city, or town, and the surrounding rural area. A Class B FM station is
designed to render service to a sizeable community, city, or town, or to the
principal city or cities of an urbanized area, and to the surrounding area. A Class C
FM station is designed to render service to a community, city, or town, and large
surrounding area.
3 The 10- and IS-mile rule for FM is found at 47 C.F.R. §§ 73.203(b) of the rules. The
IS-mile rule for TV is found at 47 C.F.R. § 73.607(b),
93 F.e.e. 2d
Suburban Community Policy 439
basis, with an applicant requesting the desired community and
providing engineering exhibits ta show the absence of harmful
interference to existing stations. Section 307(b) considerations are
made during the one-step proceeding to process the construction
permit application. A hearing can result if petitions ta deny are filed
raising substantial and material questions of fact or if there are
mutually exclusive applications.
6. Objectives and priorities guide the Commission's § 307(b)
determinations. These set up preferences for applicants proposing to
establish a station in an underserved community or in a community
lacking broadcast service. Because the preferences are based on §
307(b) considerations, they can be conclusive in a mutually exclusive
licensing contest.' The Commission feared that preferences could
create incentives for applicants to try ta prevail on the § 307(b) issue
by designating as the community of license an underserved commu 
nity proximate to a larger, more lucrative community, which was the
intended recipient of the service. Thus, in an attempt to determine
which community an applicant actually intended to serve, the
Commission created the policies that are under study in this
proceeding.
7. The suburban community-central city setting presented the
Commission with its first occasion to test intent. Designation of a
suburban community without a local transmission service could
garner an applicant a § 307(b) preference while, at the same time,
permitting coverage of the larger metropolitan community, not
favored under § 307(b). Out of this situation, the suburban communi 
ty policy was promulgated. The Notice stated that the suburban
community policy, adopted in 1965 and modified in 1975 to apply
principally in hearings involving mutually exclusive license appli 
cants, is applicable where
the applicant's proposed 5 mV1m daytime contour would pene 
trate the geographic boundaries of any community with a
population of over 50,000 persons and having at least twice the
population of the applicant's specified community ... a presump 
tion will arise that the applicant realistically proposed to serve
that larger community rather than its specified community.
Policy Statement on Section 307(b) Considerations for Standard
Broadcast Facilities Involving Suburban Communities, 2 FCC 2d 190,
193 (1965) ("Suburban Community"). Related to this is the Berwick
Doctrine, which applies the public interest considerations underly 
ing the AM suburban community policy ta FM radio and television,
but without benefit of the presumption. Berwick Broadcasting Corp.,
12 FCC 2d (Rev. Bd. 1968); 20 FCC 2d 393 (1969); sub. nom. PA.L.
Broadcasters, Inc., 40 FCC 2d 546 (Rev. Bd. 1973). De facto realloca 
tion is
4 FCev. Allentown Broadcasting Corp., 349 U.S. 348 (1955).
93 F.CC. 2d
440 Federal Communications Commission Reports
[a]n attempt to utilize a channel assigned to one community in
order to establish a broadcast service in another community,
thereby depriving the assigned community of service from that
channel.
Hall Broadcasting Co., Inc., 71 FCC 2d 235, 237 (1979).
8. The Notice explained that the instant rulemaking proceeding
was prompted, in part, by a remand of Communications Investment
Corporation v. FCC, 641 F.2d 954 (1981) ("CIC"), by the United States
Court of Appeals for the District of Columbia. In that case, the Court
reviewed two actions of the Commission granting construction
permits for two FM' radio stations in Utah. The CIC court said that
the Commission had failed to follow its own and court precedent in
authorizing, without a hearing, a transmitter location that objectors
claimed constituted de facto reallocation of two class C FM stations
from their city of license to a larger community. The court derived
from the precedents nine factors
6
for determining when an evidenti 
ary hearing is required on de facto reallocation and Berwick doctrine
issues before a transmitter location can be approved. The court,
however, invited our review of the policies. Based on that invitation
and on our continuing evaluation of the relevancy of all our rules
and policies in furthering the public interest, we undertook this
rulemaking proceeding.
9. The Notice sought comment on whether the policies under
review herein continue to be necessary in implementing §307(b) in
light of the extensive dispersion of radio and television services
throughout the United States. The Notice also expressed concern
that the policies may impose unwarranted costs on the public and
the parties involved in licensing new or improved service. This
occurs, according to the Notice, when allegations that a proposed
facility will not serve its designated community are made, not in
furtherance of a fair, efficient, and equitable distribution of service,
but in order to delay or to impede the authorization of new service
and new competition, most often in smaller communities. We asked
5 D & B Broadcasting Co., Inc., 67 FCC 2d 570, reeonsid. denied, 67 FCC 2d 1116
(1978); Ben Lomond Broadcasting Co., 68 FCC 2d 1331 (1978).
fj The nine factors are: the ratio of the population of the city of license to that of the
larger city; the ratio of the distance between the proposed site and the city of
license to the distance between the site and the larger community; the ratio of the
signal strength in the city of license to the signal strength in the larger city; a loss
area in the city of license or surrounding areas; whether the proposed site is
already in Ufe by larger city stations; whether the station is commonly owned with
an AM static:'1 in the larger city and plans to share programming, staff or facilities
with it; whether the station has evinced a prior intent to locate in the larger city;
whether the station proposes to move its studio to the larger city; and whether
there is a unique advantage to the site proposed.
93 F.C.C. 2d
Suburban Community Policy 441
comment on whether the benefits to be derived from the policies
warrant the costs involved.
10. The Notice also sought comment on whether the term
"community" should be redefined for §307(b) purposes in application
processing to mean, not the specified community, but the metropoli 
tan area effectively covered by the signal of the proposed station.
Utilization of such a definition, said the Notice, would remove the
comparative preference for designating as the community of license
an underserved suburb while proposing power sufficient to cover a
metropolitan area. The final item on which we sought comment was
an implementation scheme in the event that the policies were
deleted.
Comments
11. Comments were filed by parties representing two main
interests: those generally concerned about the policies in question
and those with matters pending before the Commission involving the
policies.
7
One theme enunciated by commenting parties favoring
retention of the policies centered on the Commission's responsibility
to challenge, as stated by Seven Parties,S "disingenuous" applica 
tions. These were defined as construction permit applications
specifying, as the community of license, a small community that is
nearby a large or metropolitan community the applicant actually
intends to serve. In a similar vein, Dempsey and Koplovitz said that,
if the policies were removed, the Commission "will be plagued with
questions of good faith, (and) undisclosed motivation for service to
the larger more lucrative market," as long as an advantage can be
earned under §307(b). Chatterbox, Inc. and Commanche Broadcast 
ing, Inc. warn that "the evils sought to be averted by the policies still
exist."
i See Appendix A for a list of the commenting parties. On August 6, 1982, Southern
Minnesota Broadcasting Co., Antares Broadcasting Co., and four FM applicants
commenting jointly, Beaufort County Broadcasting Co., Dutchess Communications
Corp., Carson Valley Broadcasting Company, and Jack A. Carpenter ("Beaufort"').
requested the Commission to accept late filed comments. Because the filings were
only one day late and in the interest of developing a full record in this proceeding,
the comments have been accepted'and considered. In similar fashion, "Beaufort"
filed reply comments one da'y late, which, for the same reasons, will be accepted.
On September 9,1982, Channel 287, Inc., requested leave to respond to the reply
comments of Mid-States Broadcasting, Inc. Because this unauthorized filing refers
to a specific application pending before the Commission and otherwise raises no
new or significant issues relevant in this rulemaking, it is denied. Denton Channel
Two Foundation, Inc. filed a Motion to Strike portions of the reply comments of
Public Communications Foundation for North Texas who, on October 6, 1982, filed
an opposition. Because the Motion to Strike refers to matters pending in a
restricted adjudicative proceeding, the Motion to Strike is granted.
II Joint comments filed by: Alegria 1. Inc., Alegria, II, Inc., Alegria III, Inc., Big Time
Radio, Inc., the Orange County Broadcasting Corporation, Santa Maria Radio, Inc.,
and Sonrma, Inc. ("Seven Parties").
93 Fe.C. 2d
442 Federal Communications Commission Reports
12. Parties favoring deletion of the policies generally agreed
with Ben Lomond' who stated that the policies "are relics of an
,"arlier age when there was a paucity of local transmission services."
Atlantic Broadcasting Corporation expressed a similar conviction:
"[A]lthough the policies may have served legitimate public policy
concerns years ago, they have outlived their usefulness and, in fact,
may actually undermine the policies underlying §307(b).c' Gordon &
Healy Chartered, declaring that the policies have denied local
facilities to suburban American communities, submitted that, "It
makes no sense in 1982 to view such current proposals [for new
service] in light of American social structure of 1965 when the
Suburban Community Policy was first adopted."
13. The comments presented divergent views on the benefits
smaller communities, the intended beneficiaries under §307(b), have
reaped from these policies. Buena Vista Telecasters of Texas, Inc.,
Chatterbox and Edward O. Fritts stated that elimination of the
policies will hurt smaller communities because stations licensed to
those communities will direct service to nearby larger areas and
ignore the needs of the smaller communities. Ward & Mendelsohn,
P.C., believes that the suburban community policy, or a suitable
replacement, is necessary to "prevent abuse, but that significant
communities which merit their own local outlet (due to a reasonable
population benchmark) should not lose their valid §307(b) interests
merely because they are located near a still larger community."
Atlantic states that tastes and interests of persons living in large and
small communities proximate to each other are not so divergent that
service to one precludes service to another. Buena Vista, although
urging retention of the policies, notes that "the frequencies for which
applications are pending, or for which no applications have yet been
filed, tend to be those available for suburban or outlying communi 
ties." Arch Communications commented that ((hindrance ofcompeti~
tion, hearing costs and delays, the realization of §307(b) objectives
through past allocation decisions and the existence of other rules
and policies to assure that licensees will direct their service to their
specified communities of license" are persuasive reasons for abolish 
ing the policies.
14. Eight different parties" focused on the 10- and 15-mile rules
as a solution to the Berwick doctrine. Because the Tables of
9 Joint comments of Ben Lomond Broadcasting Company, KDAB, Inc., and Wasatch
Broadcasting Partnership ("Ben Lomond").
10 The parties are: ABC, Inc.; Joint Comments of Beaufort County Broadcasting Co.,
Dutchess Communications Corp., Copper Valley Broadcasting Co., Jack A.
Carpenter ("Beaufort"); Dempsey and Koplovitz; Gordon & Healy; Joint Reply
Comments of Arcatel, Inc., Lockhart Omni Communications, Inc., Cen-tex
Broadcasting Corporation, Texas Professional Communications, Inc., and Lock 
hart Radio, Inc. ("Lockhart"); Ward and Mendelsohn; McKenna, Wilkinson and
Kittner ("McKenna"). Joint Comments of Forward Communications Corp., Group
One Broadcasting Co., Guaranty Broadcasting Corp., Lake Huron Broadcasting
93 F.C.C. 2d
Suburban Community Policy
443
Assignment constitute the Commission's decision as to the "fair,
efficient and equitable" distribution of FM radio and TV stations
mandated by §307(b), these parties contended that the rulemaking
proceeding to amend the Tables should satisfy and conclude the
§307(b) question for those services. In other words, step one of the
licensing process should resolve all §307(b) determinations. As stated
by Ward & Mendelsohn
[A]ny party wishing to apply for a channel in a community other
than that specified in the Table of Assignments or in a Petition for
Rulemaking (to specify a new channel assignment) shall do so in
the course of the Commission's initial allocation procedures
rather than via an application.
15. The Notice's request for comments on a redefinition of
community elicited varied responses. Arch Communications stated
that without such a redefinition, unwarranted preferences could
become acute. Buena Vista, Ward & Mendelsohn, National Radio
Broadcasters Association (NRBA), and Gordon & Healy warned
about the impossibility in many instances, due to geographic
configurations, of covering a specified community with the requisite
signal and avoiding penetration of larger nearby communities with
the same signal. Dempsey and Koplovitz suggested that the proposal
be treated as One for the largest community to which "significant""
principal-city service is provided, regardless of the community
specified. Southwest Radio Enterprises disagrees with a redefinition
of community. It states, however, that ifsuch a definition is adopted,
it not be applied to Class A FM facilities, which are designed to serve
small local communities. Buena Vista and NRBA warn that appli 
cants receiving conclusive §307(b) preferences by proposing power
sufficient to serve underserved communities could later amend to
increase power andlor move their transmitter, thereby providing
service to a larger more lucrative community. Ogden Broadcasting
Service, Inc. cautions that such a redefinition "would defeat the
important policy goals of §307(b) by virtually insuring that smaller
communities situated near larger communities will never acquire
their own local broadcast transmission services."
16. In commenting on the de facto reallocation policy, the
Denton Channel Two Foundation and Communications Investment
Corporation said that as long as the Tables of Assignment are
retained, so must the de facto reallocation policy in order to insure
that applicants do not subvert the Table. McKenna, recognizing that
"inconsistent application of the de facto reallocation doctrine has
Corp" Shamrock Broadcasting Co.; Inc" Ralph C. Wilson Industries, Inc., Summit
Radio Corp., Wilson Communications, Inc., WKRG-TV, Inc. ("Licensees"),
11 Significant could mean, according to Dempsey and Koplovitz, "provision to the
larger community of at least 50% of the service that would satisfy any of the
applicable principal community criteria."
93 FC.C 2d
444 Federal Communications Commission Reports
generated considerable confusion, which has only been heightened
by the crc decision," suggests a de facto reallocation test based on
the nine-factor crc test. The National Association of Broadcasters
(NAB) suggested a similar test. Taft Broadcasting Co. believes that
the nine-factor analysis in the crc case constitutes a reasonable
approach to de facto reallocation, which the Commission should
reaffirm. Gordon & Healy suggested that enforcement of Commis 
sion rule §73.315(b) which states that the FM transmitter should be
located as near the center of the proposed service area as possible,
would solve the de facto reallocation problem for FM. On the other
hand, Ben Lomond finds that the distinctions SOme commenters
draw about the importance to §307(b) of the de facto reallocation
policy as opposed to the importance to §307(b) of the suburban
community policy and the Berwick doctrine are not persuasive.
17. Putbrese and Hunsaker suggests an alternative if the policies
are eliminated. The Commission should adopt a policy holding that
in cases "where there are mutually exclusive applicants for broad 
cast licenses in which there is overlap of 50% Or greater of the
proposed primary service contours of the proposals, then no § 307(b)
preference would be awarded."
18. The Notice's request for comment on the implementation
process should any or all of the policies be abandoned, elicited the
full range of options. Seven Parties and Southwest Radio Enterprises
said that the current policies should be applied to all applications
that have been "cut-off" Arch states that, should the three policies
be eliminated and community redefined, those decisions should be
applied in all pending cases. Ben Lomond states that the retroactive
effectiveness of the abolition of the policies could be so disruptive to
cases far into the hearing process that it may be prudent to have
various implementation programs dependent on the category of case.
Denton believes that de facto reallocation issues already designated
for hearing should not be deleted.
Discussion
19. Before discussing our decision on the policies under consider 
ation in this item, we believe it important to focus attention on one
view expressed by some of the commenting parties. These parties
warn of the misrepresentation that is rife when an applicant applies
for a facility in a community proximate to a community larger or
more lucrative than the designated one. These parties state that the
instant policies must be continued so that the Commission can look
behind the declarations about community of license made in the
application and/or related documents in order to ascertain the real
intent of the applicant with regard to the primary commumty to be
served. We acknowledge that such misrepresentations may occur.
Nevertheless, policies which attempt to guard against the eventuali 
ty of such behavior should be discarded if they are ineffectual or
93 F.C.C 2d
Suburban Community Policy
445
disserve the overall public interest, as long as other means are
available to deter misrepresentations. In this case, statutory and
regulatory provisions concerning candor and veracity required on
applications, amendments and related statements of fact filed with
the Commission adequately respond to the concerns of the parties.
Section 312(a)(1) of the Communications Act, 47 U.S.C. 312(a)(1),"
empowers us to revoke a station license for false statements
knowingly made in applications. Section 73.3513(d) of our rules, 47
C.F.R. § 73.3513(d), states that willful false statements made in
applications, amendments and related statements of fact are punish 
able by fine and imprisonment." Stating one community of license,
while intending to render primary service to another community
fails the candor and veracity test. The requirements for candor and
veracity in all dealings with the Commission are mandated by the
Communications Act and by our rules. RKO General, Inc. v. FCC, 670
F.2d 215 (D.C. Cir. 1981). We remind all applicants that those
requirements pertain whether or not the instant policies are
maintained.
20. On the basis of the record adduced, we have determined that
the policies in question, which attempt to ascertain an applicant's
intent with respect to the community to be served, should be
abolished. Due to the growth in broadcast services, suburban
locations are oftentimes as attractive to licensee applicants as
nearby cities. Thus, we no longer see a substantial likelihood that,
merely because of proximity to larger urban areas, licensees will
provide inadequate service to their communities. Moreover, these
policies inhibit entry into unserved communities because they
increase costs to suburban applicants and cause delays in processing.
In addition, the policies provide incumbent stations a means to delay
competition from new suburban stations and thereby retard competi 
tion in metropolitan markets. Consistent with this analysis is the
indication, gleaned from a review of the cases, that the test for
determining intent under the suburban community policy and
Berwick doctrine may be invalid for that purpose. For these reasons
the policies in question undermine the goal of Section 307(b), to
12 Sections 312(a)(1) reads as follows:
The Commission may revoke any station license or construction permit-
(1) for false statements knowingly made either in the application or in any
statement of fact which may be required pursuant to section 308.
J3 Section 73.3513(d) reads as follows:
Applications, amendments, and related statements of fact need not be submitted
under oath. Willful false statements made therein, however, are punishable by fine
and imprisonment, U.S. Code, Title 18, Section 1001, and by appropriate
administrative sanctions, including revocation of station license pursuant to
Section 312(a)(l) of the Communications Act.
93 F.C.C. 2d
446 Federal Communications Commission Reports
distribute broadcast services fairly, efficiently, and equitably, and
should therefore be abolished.
21. Suburban Community Policy and the Berwick Doctrine. We
begin the rationale for our decisions with the suburban community
policy and its FM corollary, the Berwick doctrine.;4 Because the de
facto reallocation policy is so closely related, much of our reasoning
applies with equal validity to that policy. The oldest of the policies,
the suburban community policy, was adopted in 1965. At that time,
the Commission was faced with the problem of processing "rising
numbers of applications for suburban communities, which would be
entitled to a first transmission service preference in a comparative
hearing." Suburban Community Policy, 2 FCC 2d at 191. The
Commission also had been instructed by the U.S. Court of Appeals
for the District of Columbia to establish or clarify the standards used
to distinguish between suburban applicants for the same frequency.
Miners Broadcasting Service, Inc. v. Federal Communications Com 
mission, 349 F.2d 199 (1965). The suburban community policy was
the Commission's response to those events.
22. The suburban community policy was designed to further §
307(b)'s mandate for a fair, efficient, and equitable distribution of
service by "testing" the AM radio applicant's intent to serve the
suburban community designated rather than a metropolitan center
located nearby. The test consists of the applicant's evidence that:
1. The suburban community has programming needs, separate
and distinct from the central city;
2. Those needs are unmet currently;
3. The applicant's programming proposal will meet the specific,
unsatisfied programming needs ofthe suburb; and
4. Advertising revenues generated within the specified commu-
nity are adequate to support the programming proposal.
This is a rugged test. An applicant subject to the presumption can
attempt to rebut it without a hearing through submission with the
application of information on the four issues. An applicant has to
demonstrate that its community has separate and distinct program 
ming needs which are currently unmet by existing stations. Estab 
lishing with competent and probative evidence that existing stations
are not serving the community's programming needs is a difficult
task. Normally, program logs and/or portions of an existing station's
renewal application are not detailed enough to satisfy the required
showing. Moreover, there is little incentive for existing stations,
whose personnel are the most knowledgable and thus most compe 
tent witnesses, to provide assistance. Consequently, reliance is often
placed on costly programming surveys. This evidentiary problem is
14 The Berwick doctrine is rarely invoked in licensing proceedings for television
stations because, by virtue of their technical specifications, television stations are
designed to serve regional areas.
93 F.e.c. 2d
Suburban Community Policy
447
exacerbated by the fact that the nearby larger community normally
has a number of aural facilities whose programming has to be
surveyed. In addition, it is not unusual for these nearby stations to
direct at least Some programming to the smaller suburban communi 
ty. With regard to demonstrating the source and adequacy of
projected revenues, again an applicant is faced with a difficult
burden. While the suburban community policy specifically stated
that dependence on revenues from other communities would not
necessarily be determinative, applicants still have to make an effort
to demonstrate the source of their revenues. The only reliable means
of obtaining this information involves surveying potential advertis 
ers. Thus, not only are the standards somewhat confused, but even
when understood, the evidentiary burdens are time consuming and
costly to meet. The burdens of proof required to rebut the presump 
tion were criticized by the United States Court of Appeals for the
District of Columbia in 1972. In the Court's view, applicants were left
"devoid of any guidelines as to the type and degree of evidence
required to rebut the commission's Policy Statement." Northern
Indiana Broadcasters, Inc.v. pc.c., 459 F.2d 1351 (1972). Although
the Court thought it incumbent upon the Commission to clarify the
standards used to grant or deny licellEes in suburban communities,
the Commission itself has not since i972 had occasion to resolve a
suburban community proceeding after hearing."
23. We have analyzed the reported cases involving the suburban
community issue and find what we believe is a disturbing variance in
success on rebutting the presumption. When there is only one
applicant for a frequency, the suburban applicant has been more
successful in rebutting the presumption than when there are
competing applicants. This is true in cases in which the presumption
was rebutted without a hearing" as well as in cases in which the
presumption was rebutted in a hearing.n When the suburban
applicant was not successful in rebutting the presumption in a
" Radio Wheeling, 85 FCC 2d 486, 490 (Rev. Bd. 1981).
16 Pettit Broadcasting Co., 21 RR 2d 317 (1971); David Ortiz Radio Corp., 16 FCC 2d
798 (1969); Wood & Watkins, 12 RR 2d 97 (1968); KACY, Inc., 15 FCC 2d 33 (1968);
WTOlV, Inc., 11 FCC 2d 277 (1968); Burlington Broadcasting Co., 9 RR 2d 1119
(1967); Virginia Broadcasters, 9 FCC 2d 205 (1967); Major Market Stations, Inc., 8
FCC 2d 13 (1967); Donnelly C. Reeves, 6 FCC 2d 531 (1967); Du Page County
Broadcasting Inc., 5 FCC 2d 557 (1966); Clay Broadcasters, Inc., 4 FCC 2d 932
(1966). Wood & Watkins, Burlington, DuPage County and Virginia Broadcasters
involved two or more applicants.
11 Progressive Broadcasting Co" 54 FCC 2d 638 (1975); Hymen Lake, 46 FCC 2d 560
(1974); Great Southern Broadcasting Co., 14 FCC 2d 176 (1968); Jupiter Associates,
Inc., 12 RR 2d 889 (1968); Mount-Ed-Lynn, Inc., 9 FCC 2d 986 (1967); Jersey Cape
Broadcasting CO/p., 2 FCC 2d 942 (1966); Southington Broadcasters, 2 FCC 2d 936
(1966). Progressiue Broadcasting Co. was the only mutually exclusive licensing
contest case.
93 F.C,C. 2d
448 Federal Communications Commission Reports
hearing, he typically was competing with another for thefrequen~
cy. >8 These results seem to indicate that, prior to 1975 when the
policy was relaxed to exclude most singleton applicants, an applicant
who was not vying with another applicant for one frequency had a
good chance of convincing the Commission that the designated
community truly would be the community served. However, that
outcome was not so certain when another applicant joined the
contest for a single outlet. We are concerned that the test can be
manipulated by the competing applicant so that it becomes not a
measurement of intent but a tool useful in defeating a suburban
community applicant.
24. Settlements of mutually exclusive licensing contestsfre~
quently result in the demise of the suburban community applicant."
This result leads us to question whether the burden of rebutting the
presumption creates an incentive seemingly at odds with the goals of
§ 307(b). For example, as a result of the settlement inH-B~K
Enterprises, the application designating the suburban community of
Grandview, Missouri, vying for its first local service, dropped out,
and Kansas City, Missouri, was awarded its sixth local service.
25. The Commission acknowledged that the suburbancommuni~
ty policy presented a significant obstacle to the authorization and
improvement of AM radio service in 1974. In that year, the
Commission initiated a rulemaking proceeding designed to liberalize
AM radio allocations policies. In the Notice ofProposed Rulemaking,
39 Fed. Reg. 42920, published on November 27, 1974, we sought
comment on whether or not the rule changes proposed would be
effective in encouraging more AM applications if the suburban
community policy remained unaltered. The Report and Order
concluding the proceeding found that, unchanged, the suburban
community policy would obstruct the goals sought to be achieved by
liberalizing § 73.37 of the rules in order to encourage AM applicants.
Therefore, the Commission relaxed the suburban communitypre~
sumption to apply primarily in mutually exclusive licensing contests
18 Centreville Broadcasting Co., 50 FCC 2d 261 (1974); James E. Reese, 45 FCC 2d 315
(1974); Broadcasters 7, Inc., 46 FCC 2d 282 (1974); What the Bible Says, Inc., 28
FCC 2d 551 (1971); Harry D. and Robert E. Stephenson, 33 FCC 2d 763 (1969);
Kittyhawk Broadcasting Corp., 20 FCC 2d 1011 (1969); Augustus L. Cavallaro, Jr.,
15 FCC 2d 4863 (1969); Tri-State Broadcasting Co., Inc., 19 FCC 2d 1042 (1969);
Tz:dewater Broadcasting Co., Inc., 12 FCC 2d 471 (1968); Northern Indiana
Broadcasters, Inc., 13 FCC 2d 546 (1968); KWEN Broadcasting Co., 10 FCC 2d 753
(1967); Boardman Broadcasting Co., Inc., 10 FCC 2d 422 (1967); Goodman
Broadcasting Co., 10 FCC 2d 141 (1967); Lebanon Valley Radio, 2 FCC 2d 683
(1966). Centreville, Cavallaro, Tri-State, Northern Indiana and Goodman were
singleton applicants.
19 Ditmer Broadcasting Co., Inc., 23 FCC 2d 283 (Rev. Ed. 1970); Sundial Broadcast 
ing Co., Inc., 17 FCC 2d 614 (Rev. Bd. 1969); Howard M. McBee, 19 FCC 2d 800
(1969); H-B-K Enterprises, 15 FCC 2d 683 (Rev. Bd. 1968); Logan Broadcasting Co.,
10 FCC 2d 166 (1967).
93 F.C.C 2d
Suburban Community Policy 449
in which a hearing was required irrespective of the suburban
community issue. We said
By amending the rules ... while continuing to impose the
significant burden of the § 307(b) presumption, particularly on
applications for improvements to existing facilities, we would
merely be removing one so-called artificial barrier while leaving
another in its place. .
54 FCC 2d at 21.
26. In 1969, the Review Board applied the public interest
considerations underlying the suburban community policy in an FM
licensing case and the Berwick doctrine was born. In its decision on
the merits in the Berwick proceeding, decided sub nom. PA.L.
Broadcasters, Inc., 40 FCC 2d 546 (1973), the Review Board made
clear that the suburban applicants for an FM facility had the burden
of proving the same four sub-issues that the Commission had adopted
for AM suburban applicants. See, paragraph 22, supra. However, in
two recent cases that we affirmed, the Review Board has criticized
those standards as "unworkable, unduly burdensome, and not
reasonably related to the Commission's concern" about an appli 
cant's intent to serve the designated community rather than a
nearby larger One. Radio Wheeling, Inc., 85 FCC 2d 486, 489 (Rev.
Bd., 1981). In Bie Broadcasting Co., 81 FCC 2d 1 (Rev. Bd., 1980), the
Review Board rejected outright use of the standards. Thus, the
Berwick doctrine, as traditionally applied, has been found to be
infirm as a test for determining an FM applicant's intent. This result
parallels our determination with respect to the suburban community
policy, as outlined above. It is appropriate, therefore, that these tests
be abolished.
27. We are mindful that the policies were promulgated in order
to protect underserved, small, and suburban communities, favored
under § 307(b), by assuring they actually receive the service
promised. As we said when promulgating the suburban community
policy, "developing deserving suburban communities" should be
protected in situations where the
propagation of a competitive signal over a heavily populated area
of substantial size, ... (has) led to our licensees' serving the
transmission and reception needs of that area rather than the
transmission needs of their specified communities.
2 FCC 2d at 193. The suburban community policy and the Berwick
doctrine responded to what apparently was considered the inevitable
intent of a small market licensee: to abandon the needs of its
designated market in those situations in which its signal was able to
reach a more populous community. Although that assumption may
have been valid in 1965, changes in the broadcasting industry since
that time, especially in radio, make the assumption invalid today.
28. The major change of relevance to the present proceeding is
the growth since 1965 in the number of broadcasting facilities. At
93 F.C.C. 2d
450 Federal Communications Commission Reports
the end of fiscal year 1965, there was a total of 5,630 AM and FM
radio stations in operation and 681 commercial and educational
television stations.'o By the end of fiscal year 1981, that number had
grown to 9,087 for radio and 1,035 for television.
21
Growth in the
number of stations has increased competition in the industry and
created the incentive for broadcasters to discover discrete markets
within which to provide an economically viable service. For example,
it is possible that a station could earn more revenues as the single
station in a 40,000 person community rather than the 11th station in
a nearby community of 400,000 persons. Identification with and
service of a small community becomes economically feasible after an
increase in the number of players in an industry fractionalizes a
market."
29. Another change in the broadcasting industry of relevance to
this proceeding is the role of demographics, creating an economic
incentive for a broadcaster to establish a station in a small
community to serve a particular type of audience, instead of in a
larger, more heterogenerous nearby community. For example, there
are 122 radio stations utilizing Spanish language programming for
twenty or more hours per week." Not all these stations are licensed
to large metropolitan communities. Among the communities in this
category are: 'tab546,1
The Broadcasting/Cablecasting Yearbook, 1982 also lists 151 all
news radio stations. This kind of programming appeals to a
specialized audience usually described by broadcasting entrepren 
eurs as well educated and middle income. Among the communities
receiving service from all-news stations are the following:"
'tab546,2
Thus, it is plausible that a broadcaster can fashion a service targeted
for a specific community characteristic, such as ethnicity, education 
al level or cultural preference and find the service economically
remunerative enough to be disinclined to abandon the smaller
community for the larger.
30. We believe the policies may be used to stem the establish 
ment of competing stations. In practice, the policies are frequently
invoked by stations in large communities against the establishment
of new or improved service in smaller communities.
25
Moreover, a
20 FCC Annual Report, 1965.
21 FCC Annual Report, 1981.
22 See generally, Inquiry and Proposed Rulemaking; Deregulation of Radio, 44 Fed.
Reg. 57636, published October 5, 1977, for an analysis of competition in radio
markets.
23 Broadcasting/Cablecasting Yearbook, 1982, at D-94.
24 Id.. at D-91.
25 Communications Investment Corp. v. FCC, 641 F.2d 954 (1981); Home Service
BroadcastingCorp., 68 FCC 2d 1135 (1978),
93 F.C.C. 2d
Suburban Community Policy
451
Berwick issue is not limited to mutually exclusive licensing contests
as is generally true in AM radio since 1975.
26
It can be contained in
Petitions to Deny new applications and applications for improved
facilities. If the small community applicant is unsuccessful in
passing the stringent test created by these policies, new or improved
service will be denied to the small community. This is a result at
odds with Commission policy fostering competition in the broadcast 
ing industry and with the objectives of § 307(b). If the suburban
community policy and the Berwick doctrine have worked against the
purposes of § 307(b), the statutory provision they were formulated to
implement, then their continuation is mere folly. The test for
overcoming these policies is a rugged one involVing high expendi 
tures for lawyers and engineers who participate in hearings with a
resulting delay in the authorization of new service in the smaller
community." This tends, ironically, to benefit stations in the larger,
metropolitan markets by delaying or frustrating the establishment
or improvement of competing stations in nearby smaller markets.
31. After considerable reflection, we fail to see the deleterious
effect on the public living in small communities from our authoriza 
tion of a station that designates the small community as its
community of license, locates its main studio in that community,
places the requisite signal over the community, fashions a program 
ming proposal to meet the needs and interests of the smaller
community, and then also competes in the larger metropolitan area
that includes the community of license. The station failing to live up
to its obligations to the community of license risks a renewal
challenge. In the Notice ofProposed Inquiry and Proposed Rulemak 
ing in BC Docket 80-130, 45 Fed. Reg. 26390, published April 18,
1980, we said about the Berwick dbctrine: "Even if it's true that the
station intends to compete in the metropolitan market, this does not
mean that it would not be able to offer programming responsive to
the needs of this smaller locality." We continue to believe that
statement to be true.
32. Many commenting parties in this proceeding discussed the
so-called 10- and 15-mile rules, 47 C.F.R. §§73.203(b) (FM) and
73.607(b) (TV). These rules permit an FM or TV station to be licensed
to an unlisted community within ten miles (Class A FM) or 15 miles
(Class BIC FM and TV) of a community contained in the Tables of
ZG In the Report and Order relaxing the applicability of the suburban community
policy to mutually-exclusive licensing contests primarily, the Commission af 
firmed its continuing concern about the intent of applicants with regard to their
community of license and stated that it would entertain suburban community
issues where warranted even outside a mutually-exclusive contest. 54 FCC 2d at
22. See e,g., Home Service Broadcasting Corp., 68 FCC 2d 1135 (1978).
27 The CIC court quoted from one party's pleadings that a hearing in that case
would have meant a delay of up to two years and an estimated cost of $50,000 for
attorney's fees.
93 F,C.C- 2d
452 Federal Communications Commission Reports
Assignments without petitioning for a rule making to add the
community to the Table. These rules were adopted at the time the
Tables were adopted.
28
Their purpose was "to preserve flexibility
and to permit adjustments ... upon demand and need in communi 
ties other than those listed in the table without going through the
rule making procedure." Notice ofProposed Rulemaking, FCC 68-54,
33 Fed. Reg. 917, published January 25, 1968. The Commission was
well aware of the fact that in adopting a Table of Assignments it was
impossible to predict population trends or pinpoint community
development. However, "a Table coupled with the flexibility present
in a 'twenty-five mile rule,' [now the lO-and 15-mile rule] provides
the best means to insure an efficient present distribution of chan 
nels." 40 FCC at 758. (emphasis added) We also noted, that, "the
question of future flexibility becomes increasingly academic as the
available FM channels are put to use by present day applicants." Id.
The decision to provide for flexibility within the limited geographical
area surrounding each listed community was appropriate for the
early days in which the new services were being established. That
condition does not exist today. Television and FM radio are mature,
thriving services, well dispersed throughout the United States." We
no longer have to foster and facilitate their development as we did
when the Tables of Assignments were adopted. In addition, the rules
create an unnecessary burden on applicants and the Commission
alike. The issues raised under the rules are issues that can be
resolved more efficiently and at lower cost to both the applicant and
the Commission in a rulemaking proceeding than in a hearing.
30
Therefore, we have decided to eliminate the 10- and 15-mile rules.
This, of course, does not mean that applicants are foreclosed from
applying for communities 10 or 15 miles from listed communities.
28 Sixth Report and Order on Television Allocations, 41 FCC 148, 209 (1952);
Revision ofFM Broadcast Rules, Third Report, i\!Iemorandum Opinion and Order,
40 FCC 747, 763 (1963). In F:M, §73.203(b) originally permitted a station to locate
within 25 miles of a listed community without amending the Table of Assign 
ments. This rule was changed in 1968 to 10 miles for Class A stations and 15 miles
for Class Band C stations. Amendment of Section 73.203(b) Concerning the
Availability ofFM Channels to Unlisted Communities, 12 FCC 2d 660 (1968),
29 The Commission has found that "there is nO part of the contiguous 48 states
which lacks at least some aural broadcast service, and almost no place, .. where
multiple skyv,rave services are not available." Clear Channel Broadcasting in the
AM Broadcast Band, 78 FCC 2d 1345, 1356 (1980). Similarly, in the television
service, the Commission has stated that the "Table of Assignments. ,was
designed to provide service to as large a part of the population as was possible and
at the same time to provide local outlets for as many communities as possible.
the goals of the Table have been largely achieved .. ," Inquiry Into the Future
Role of Low-Power Television BroadcO-'!ting, FCC 80-503, 45 Fed. Reg. 69178,
69179 10ct. 17, 1980).
30 §307(b) determinations are based on, inter alia, the number of transmission
services in competing communities, the number of reception services in each, and
the size of the communities involved.
93 FC.C. 2d
Suburban Community Policy 453
Our decision only means that the applicant must petition for a
rulemaking in order to add the community to the Table. Henceforth,
all §307(b) issues will be concluded in the rulemaking proceeding,
which is step one of the licensing process. Step two will be concerned
solely with establishing the qualifications of the applicants and,
when there are competing applicants, deciding which applicant
should prevail.
33. De Facto Reallocation. The de facto reallocation policy is
closely related to the Berwick doctrine.
31
It is applicable only in the
F;vI and TV services and does not require a central city-suburban
community setting. The Commission has made clear that two
essential elements must be present in order for a proponent to
prevail on an allegation of de facto reallocation: (1) redirection of the
service of an FM or TV station from its community of license in such
a manner as to constitute its removal from that community, and (2)
its effective use to provide service to another community. Central
Alabama Broadcasters, Inc., 68 FCC 2d 1339, 1340 (1978); Hall
Broadcasting Co., Inc., supra. The policy is most often invoked in
proceedings to modify existing facilities, for example, to change a
transmitter site or to increase power, If, as a result of such a
proposal, the station's signal either reaches another community,
typically a larger one, or penetrates more of it, the stage is set for a
de facto reallocation allegation.
34. Some commenting parties have urged that the de facto
reallocation policy is essential in safeguarding the integrity of the
Tables of Assignments and, through the Tables, §307(b). Others have
contended that our requirements for, inter alia, the requisite signal
over the community of license," and the location in that community
of the station's main studio,33 are adequate safeguards, As we will
outline below, we find that the policy has many of the same
infirmities we found to be present in the suburban communi 
ty/Berwick policies. Therefore, based principally upon those same
reasons, and upon the fact that in many instances the de facto
reallocation policy is indistinguishable from the Berwick doctrine,
we have determined that the de facto reallocation policy no longer
serves the public interest and should be abolished.
35, Our major concern with the policy is that rather than
furthering the purposes of §307(b), the de facto reallocation policy, as
applied, has frustrated that end. It is most often invoked against
small market stations. The frequent proponents of the policy are
31 See, CIC, 641 F.2d at 967, n. 82.
"' 47 C.F,R. §§73.188 (AM); 73,315 (FM); 73.685 (TV)
33 47 C.F.R. §73.1l25. "The Commission has frequently ruled that a station is
identified by the place where its studios are kept, not the location of its
transmitter or antenna." Community Telecasting Co. v. FCC, 255 F.2d 891, 893
(1958).
93 FC.C 2d
454 Federal Communications Commission Reports
licensees located in larger communities who will face increased
competition as the result of an application to modify or improve
facilities filed by licensees in nearby smaller communities.
34
The
arguments proponents make in support of de facto reallocation are
strikingly similar to those made by proponents of the suburban
community/ Berwick policies: that a station in the smaller communi 
ty will, as the result of the modification, direct its service to the
larger community thereby abandoning its community of license,
undermining the Tables, and subverting the goals of §307(b).
Changes in the industry, as we described above, no longer pre-ordain
such results. Moreover, the policy places a burden on the establish 
ment and improvement of service in small communities that is not in
keeping with the objectives of §307(b). We are also convinced that the
policy too frequently is invoked to preclude additional competition.
Such a result is an abuse of the policy.
36. Because the de facto reallocation policy does not require a
central city-suburban community relationship, its applicability is
broader than that of the suburban community policy and the
Berwick doctrine. More than ten years ago, in a case in which a
Chicago station filed a petition to deny raising de facto reallocation
against a Gary, Indiana station filing to relocate its transmitter, we
said:
[W]e did not intend to prohibit a Gary station from serving large
portions of the city of Chicago as it is simultaneously providing
primary service to Gary.... A de facto reallocation issue does not
arise merely because a licensee proposes an extension of a
station's service area, and in some circumstances, the retention of
the station's main studio in its community of license may itself
constitute sufficient contact with the community to rebut any
presumption of reallocation. Rhode Island Television Corp. v.
FCC, 320 F.2d 762 (1963); Community Telecasting Co. (WXTV) v.
FCC, 255 F.2d 891 (1958).
General Media TV; Inc., 27 FCC 2d 861, 863 (1971). The policy can be
invoked without regard to the size of the communities involved. Even
though the smaller of two communities is an independent, non 
suburban, and thriving city, worthy and capable of supporting its
own stations, an application to modify the license of a station in that
community will likely prompt an allegation of de facto reallocation
from a licensee in the larger community.35 The policy also can be
34 Son Broadcasting, Inc., 79 FCC 2d 598 (980); Hall Broadcasting Co., 71 FCC 2d
235 (1979); D and B Broadcasting Co. (KDABJ, 67 FCC 2d 243 (1978); Central
Alabama Broadcasters, 68 FCC 2d 1339 (1978); Magic Box Media, 65 FCC 2d 45
(1977): Kaiser Broadcasting Corp., 62 FCC 2d 246 (1977): Great Trails, 59 FCC 2d
916 (1976); Robat P. Adams, 36 FCC 2d 479 (1972); General Media TV, Inc., 27
FCC 2d 861 (1971); WSTE-TV, 11 FCC 2d 1013 (1968)
35 In the CIC case, Salt Lake City stations raised the issue of de facto reallocation
against Ogden, Utah stations that located their transmitters in an antenna farm
93 F.C.C. 2d
Suburban Community Policy 455
invoked without regard to the type of station involved. For example,
a Class C FM station is a wide area station designed to serve a
community, city or town and a large surrounding area. Similarly,
television stations are capable of serving wide areas. However, if
such a station applies to modify its signal strength to the highest
permitted, an allegation of de facto reallocation would undoubtedly
be forthcoming from a licensee in a community receiving a new or
strengthened signal.36 The fact that Class C FM and television
stations are supposed to serve wide areas is not enough to deflect an
allegation of de facto reallocation or even to avoid a hearing on the
allegation.
37
37. The CIC majority constructed its nine-factor test for deter 
mining when a hearing must be held on a Berwick or de facto
reallocation issue from precedents found in four cases decided
between 1963 and 1969.
38
The record of Commission action in this
area, however, includes other cases whose holdings are at variance
with the outcomes cited by the CIC majority. Several of these cases
pre-date the 1978 Commission action in the cases consolidated in
CIC," while others are more recent. In three cases decided before
Commission action in CIC, Grindstone Broadcasting Corp., 41 RR 2d
1107 (1977); Magic Box Media, Inc., 65 FCC 2d 45 (1977); and Public
Service Broadcasters, Inc., supra, we found that the mere fact that a
station proposes to put a city-grade signal over a larger nearby
community, in addition to its designated community, is not sufficient
to lead to the conclusion that the station intends to serve the larger
community.40 Since Commission action in the Cle case, we have
continued to move away from designating Berwick and de facto
reallocation issues. In Hall Broadcasting Co., Inc., supra, the
Commission could not find that a de facto reallocation would occur
when the transmitter of a Class C FM station was moved to a point
located near Salt Lake City. This location apparently cured a multipath
interference problem, caused by terrain, that impaired reception of the Ogden
stations in Ogden. Judge Wald, in dissent, noted, that the Salt Lake City stations
were received in Ogden more clearly than was Ogden station KDAB before its
move.
'" WSET-TV, 80 FCC 2d 233 (1980); Sarasota·Bradenton, 70 FCC 2d 699 (1979); Hall
Broadcasting, 71 FCC 2d 235 (1979).
" Radio Wheeling, 85 FCC 2d 486 (1981).
38 Wometco Enterprises, Inc. v. FCC, 314 F.2d 266 (D.C. Gir. 1963) (per curiam), rev'g
Scripps-Howard Radio, Inc., 22 RR 1054 (1962); Louisiana Television Broadcast 
ing Corp. v. FCC, 347 F.2d 808 (D.C. Cir. 1965) (per curiam), rev'g St. Anthony
Television Corp., 2 RR 2d 348 (1964); Santa Fe Television, Inc., 18 FCC 2d 741
(1969); Berwick Broadcasting Corp., 20 FCC 2d 393 (1969).
39 See CIC, 641 F.2d at 977, where majority seems to believe that only one case with
a contrary holding pre-dated Commission action in CIG.
40 See also, General Media Television, Inc., 27 FCC 2d 861, 863 (1971); Almardon,
Inc., 16 FCC 2'; 395, 399 (Rev. Bd. 1969); David Ortiz Radio Corp., 46 FCC 2d 341,
342 (Rev. Bd. 1974); Congaree Broadcasters, Inc., 40 FCC 2d 297, 300 (Rev Bd.
1973).
93 F.C.C. 2d
456 Federal Communications Commission Reports
midway between the community of license and a larger community
and the antenna height was increased, permitting greater coverage
of the larger community. Nor would we designate a de {acto issue in
Bie Broadcasting Co., 81 FCC 2d 1 (1980) and Radio Wheeling, Inc.,
85 FCC 2d 486 (1981). Many years ago, a similar decision withstood
judicial scrutiny. In Rhode Island Television Corp. v. FCC, 320 F.2d
762, 766 (1963), the Court approvingly quoted the Commission's
conclusion:
The mere fact that as a result ofthe proposed modification, WTEV
will improve its signal to the Providence area from Grade B to
Grade A does not warrant [the conclusion that there has been a
channel reassignment]. In fact, WTEV will continue to be a New
Bedford station, will maintain its main studio in New Bedford,
will place a principal city signal over that community and will be
primarily responsible for providing for the needs of that communi 
ty under the Rules. Accordingly, grant of the proposal will not
change the channel assignment.
The court's unequivocal statement twenty years ago has not resulted
in a disciplined use ofthe policy. Rather, the policy has been invoked
to frustrate more competition despite our consistent rejection of such
a course. The trend we have documented now must be concluded by
abolition of the policy. Anything less would permit future use in a
manner we find inconsistent with the public interest.
38. In the future, we will examine applications to detrmine
compliance with our licensing rules. If that exists, we will presume
the licensee intends to serve the community designated. Compliance
with the rules will result in the requisite signal to the community of
license, location of the main studio in that community and a
programming proposal that will serve the needs of the community of
license. Abolition of this policy does not mean that we will
countenance subversion of our rules or the Tables. However, we
believe the risk of a renewal challenge for failure actually to serve
the designated community constitutes a more effective regulatory
tool than utilization in advance of guidelines and factors that are
inexact in divining intent. Abolition of the de facto reallocation
policy also means that it will not be available for anti-competitive
purposes. Ten years ago, in approving an assignment of license
application in which de facto reallocation was raised by a petitioner
to deny, we said:
[P]etitioner is in effect asking us to hold a hearing to determine
whether the assignee will do what it has affirmatively represented
it would do. In effect, we are being asked to determine, in advance,
whether the assignee will operate KUTE as it has proposed it
would. In view of the assignee's explicit representations regarding
its proposed operation of KUTE, a hearing on this question is
clearly unnecessary. Moreover, such a hearing would deprive the
93 FC.C 2d
Suburban Community Policy
457
assignee of the opportunity to demonstrate its good faith. Brandy·
wine·Main Line Radio, Inc., 4 RR 2d 697, 702 (1965).
Robert Adams, 38 FCC 2d 1, 4 (1972). By abolishing the policy, we
will return to that position.
Redefinition of Community
39. The Notice asked for comment on whether the term "commu 
nity" should be redefined for §307(b) purposes to mean, not necessar 
ily the community specified on the application, but the community
actually receiving service as a result of the power proposed. We have
reviewed carefully the record in this proceeding to determine if it
supports such an action. We have determined that it does not. The
current definition of community has guided our §307(b) determina 
tions through the years. To change from that concept to one based on
a larger geographical or urbanized metropolitan area standard, for
example, requires that our action be supported by an adequate
record and a rational basis for making the change. We do not believe
that we have that record before us in this proceeding. Consequently,
we decline to adopt the proposed redefinition.
40. Our refusal to change the concept of community for §307(b)
purposes at this time does not foreclose the possibility of doing so in
the future. A rulemaking in which comments are elicited on such
questions as the benefits to the public interest of a new definition,
the costs that may be involved in making a change, the different
geographical standards that could be substituted, and the standard
that would be preferable could well provide the adequate basis to
support a decision to change the concept in the future.
41. Implementation. We believe that the public interest requires
the implementation of these decisions with respect to the suburban
community policy, the Berwick doctrine and the de facto reallocation
policy upon adoption of this Report and Order. Permitting the
policies abolished herein to be used, even in pending application
contests, would simply continue what we have found to be adverse to
the public interest. Therefore, effective with the adoption of this
Report and Order we will:
1. Process AM radio applications without application of the
suburban community policy;
2. Process petitions to amend the TV Table of Assignments
without application of the Berwick doctrine;"
3. Process FM and TV applications for new service or for
modification to existing service without application of
the Berwick doctrine and the de facto reallocation policy;
and
4. Delete from all hearings, in progress and scheduled to
41 The Berwick doctrine is not entertained in petitions to amend the FM Table of
Assignments. FM Assignment Policy and Procedures, 90 FCC 2d 88 (982).
93 F.C.C. 2d
458 Federal Communications Commission Reports
start after adoption of this Report and Order, all issues
based on the suburban community policy, the Berwick
doctrine and the de facto reallocation policy.
42. Deletion of §§73.203(b) and 73.607(b) of our rules, the 10- and
15-mile rules, will be phased in. Applications already on file as of the
date of the adoption of this Report and Order that utilize these rules,
will be processed under the rules. Applications filed after the date of
adoption of this Report and Order utilizing the 10- and 15-mile rule
will be accepted only if such an application is tendered as a valid
competing application to one the staff has already found acceptable
for filing under the 10- or 15-mile rule.
43. Regulatory Flexibility Act Final Analysis. The rule and
policy changes effected herein are appropriate in light of the changes
that have taken place in the broadcasting industry. These revisions
will also facilitate the establishment of additional radio and televi 
sion facilities by abolishing issues that give rise to costly hearings
with resultant delays in new service.
44. We received no public comments which specifically ad 
dressed the initial regulatory flexibility analysis contained in the
Notice of Proposed Rulemaking. Since the decisions we are making
in this proceeding relieve an economic burden, especially for
licensees in small communities, our action is consistent with the
purposes of the Regulatory Flexibility Act. Other alternatives that
we might have adopted would have achieved more limited benefits.
45. Accordingly, IT IS ORDERED, pursuant to the authority
contained in Section 4(i) and 303, of the Communications Act of 1934,
as amended, 47 U.S.C. §§4(i) and 303, that effective as stated herein,
Part 74 of the Commission's Rules is amended by the deletion of
§§73.203(b) and 73.607(b). IT IS FURTHER ORDERED, that, effec 
tive April 20, 1983, the suburban community policy, the Berwick
Doctrine, and the de facto reallocation policy are abolished. IT IS
FURTHER ORDERED, that this proceeding is TERMINATED.
FEDERAL COMMUNICATIONS COMMISSION
WILLIAM J. TRICARICO Secretary
ApPENDIX A
Comments submitted:
Alegria I, Inc., et aZ.:
Algeria II, Inc.
Alegria III, Inc.
Big Time Radio, Inc.
Orange County Broadcasting Corp.
Santa Maria Radio, Inc,
Sonrisa, Inc.
93 FCC. 2d
Suburban Community Policy
Association of Maximum Service Telecasters
Arch Communications Corp.
Atlantic Broadcasting Corp.
Beaufort County Broadcasting Company, et al.:
Dutchess Communications Corp.
Copper Valley Broadcasting Company
Jack A. Carpenter
Ben Lomond Broadcasting Co., et al.:
KDAB" Inc.
Wasatch Broadcasting Partnership
Buena Vista Telecasters of Texas, Inc.
Chatterbox, Inc.
Communications Investment Corp.
Commanche Broadcasting, Inc.
Carl Como, Ronette Communications Corp.
Dempsey and Koplovitz
Denton Channel Two Foundation, Inc.
Edward O. Fritts
Gordon & Healy, Chartered
Historic Hudson Valley Radio. Inc.
Kaldor Communications, Inc.
The Honorable Thomas N. Kindness, Member of Congress from Ohio
McKenna, Wilkinson & Kittner
National Radio Broadcasters Association
National Association of Broadcasters
Mark Pierce
Puerto Rico Broadcasting, Inc.
Putbrese & Hunsaker
Southern Minnesota Broadcasting Co. and Antares Broadcasting Co.
Southwest Radio Enterprises, Inc.
Taft Broadcasting Co.
Town and Country Broadcasting, Inc.
Ward & Mendelsohn, P.C.
Reply Comments Submitted
American Broadcasting Companies, Inc.
459
93 F.C.C. 2d
460 Federal Communications Commission Reports
Arcatel, Inc., et al.:
Lockhart Omni Communications, Inc.
Cen-Tex Broadcasting Corp.
Texas Professional Communications, Inc.
Lockhart Radio, Inc.
Atlantic Broadcasting Corp.
Beaufort County Broadcasting Co., et aZ.:
KDAB,Inc.
Wasatch Broadcasting Partnership
Euena Vista Telecasters Of Texas, Inc.
Community Television of Connecticut, Inc.
Forward Communications Corporation, et aZ.:
Group One Broadcasting Company
Guaranty Broadcasting Corp.
Lake Huron Broadcasting Corp.
Shamrock Broadcasting Co., Inc.
Ralph C. Wilson Industries, Inc.
Summit Radio Corp.
Wilson Communications, Inc.
WKRG-TV, Inc.
Mid-States Broadcasting, Inc.
National Association of Broadcasters
Ogden Broadcasting Service, Inc.
Public Communications Foundation for North Texas
Sanger Telecasters., Inc.
South Florida Broadcasting Company, Inc.
United Church of Christ, Office of Communication
WDOD of Chattanooga, Inc.
Ward & Mendelsohn, P.C.
February 17, 1983
Statement of
FCC Commissioner James H. Quello
Dissenting in Part
In re: The Suburban Community Policy, the Berwick Doctrine and the De Facto
Reallocation Policy
93 F.C.C. 2d
Suburban Community Policy 461
I support these new policies, but I dissent from the Commission's refusal to consider
broadening the definition of community in this proceeding.
DISSENTING STATEMENT OF COMMISSIONER STEPHEN A.
SHARP
Re: The Suburban Community Policy, the Berwick Doctrine and
the De Facto Reallocation Policy
I dissent from the Commission's action because, under the guise of
administrative convenience, it returns us to the pre-Berwick era
without a new answer to the problems as to which the Berwick
doctrine and its brethren have proven to be an inadequate solution.
In so doing, the Report and Order exhibits a basic misunderstanding
of the nature of major market radio broadcasting. This flaw stems, I
believe, from an attempt to justify the original result in the Ogden 
Salt Lake City dispute (while avoiding a second reversal and remand)
rather than solving the underlying problem. As a result, this
proceeding skews the rational, market-based decisions of broadcast 
ers in a manner not mandated by statute and is thus fundamentally
inconsistent with the deregulatory principles to which we have
sought to adhere.
Problems in the Report and Order
This ad hoc approach to policy-making leads to muddled facts and
questionable logic weakening the credibility of the Report and
Order's entire analysis. For example, paragraph 20 states that "[d]ue
to the growth in broadcast services, suburban locations are often 
times as attractive to licensee applicants as nearby cities." The
decision offers no factual support for this conclusory statement and
fails to show how, to the extent suburban locations are attractive,
such attractiveness is not due to the Section 307(b) preference
accorded applicants for such communities.
The discussion in paragraphs 27 through 29 provide the clearest
example of the fraility of this decision. The Report and Order
confuses "small market licensees" with suburban applicants and
confuses a "market" with a community of license. It labels as an
"assumption" the economic necessity of today's major market radio
stations: service to an area beyond the borders of a particular
suburb. It states that "small, and suburban communities" are
"favored under Section 307(b)" without any basis in the record, the
statute or the legislative history and in the face of contrary
indications in paragraphs 2 and 3. While the decision catalogues the
growth of broadcasting and increased competition, it fails to show
the relevance of national totals to the suburban community issues at
hand.
From the general, the Report and Order leads to the specific,
arguing that "it is possible that a station could earn more revenues
as a single station in a 40,000 person community rather than the
11th station in a neighboring community of 400,000 persons." While
93 F.C.C 2d
462 Federal Communications Commission Reports
a station with no competition in a community some distance from a
metropolitan area could earn substantial revenue, the unsupported
suggestion that this is as true for the single licensee in a suburban
community blinks at reality.
While a station may be the only licensee in a particular suburb, it
is compared with and competes for revenues against all of the other
stations in that metropolitan radio market. In nearly every case, a
close llidentification with service of a small community" in a
metropolitan market will ensure that the station will be the 11th
rated station if, indeed, it is rated at all. The "fractionalization" of
larger markets is both the result of and the reason for distinctive
formats based on content designed to appeal to a specific category of
listeners generally spread over a geographic area larger than the
specific community of license. The two lists in paragraph 29 further
demonstrate the unstated and unsupported assumptions which
underlie the decision. Even to the extent all news radio usually
appeals to a "well educated and middle income" audience, the fact
that over ninety percent of such stations are within metropolitan
areas does not lend much credence to the implication that serving
audiences in more than the community of license is not important
for a station's viability. Indeed, without an analysis of the service
area demographics for the listed stations, the relevance of paragraph
29 is questionable at best.' .
An Alternative Analysis
I agree that the Berwick, suburban community and de facto
reallocation doctrines and the 10- and 15-mile rules, have failed to
provide the Commission with an effective means to determine
whether broadcast applicants intend to serve suburban municipal 
ities rather than the heart of the market, the center city. Instead,
they may have been devices of delay and great cost to both parties
and the Commission, often animated by anti-competitive motives.
However, their elimination merely uncovers the deeper issue. The
Commission's administrative embellishment of Section 307(b) of the
Act has provided an incentive for applicants to seek a suburban
community of license in the form of a dispositive preference vis-a-vis
those who openly seek to serve a center city. To the extent this
regulatory gloss has deterred applicants from serving the market of
their choice, it has given rise to Berwick et al. as a means of testing
their true intent.
To my mind, it is this governmental incentive which is crucial. By
) There are factual problems with the lists as welL For example, many people in
Henderson, Nevada would be surprised to learn they were not part of the Las
Vegas metropolitan area.
93 F.C.C. 2d
Suburban Community Policy
463
removing it, as I proposed, Berwick issues would, perforce, disappear
as well.' My proposal would eliminate any Section 307(b) preference
available for an applicant as compared with a mutually-exclusive
applicant who seeks a community of license within the same
metropolitan statistical area C'MSA"). Thus, in the AM band, the
city of license sought would mean the MSA in which that city lies. In
the FM and TV bands, the city identified in the Tables would be
interpreted to mean the MSA in which that city is located. Thus, an
applicant could, if consistent with our technical requirements, apply
for any city within the MSA, without a rulemaking and without
affecting its Section 307(b) status relative to others in the same MSA.
Other technical, coverage, service and studio requirements remain
in force. Section 307(b) preferences would continue to be available in
situations where a competing applicant seeks a city of license outside
of the MSA.
Four objections have been raised in opposition to my proposal.
First, it is alleged to be inconsistent with the Commission's reliance
on each applicant forthrightly to state its intent to serve its proposed
city of license. My proposal purportedly denies that such reliance is
feasible and therefore would obviate the intent issue entirely (at
least within MSAs). Such an analysis misperceives my approach and,
indeed, stands it on its head. No reason has been given as to why the
Commission should be concerned with the applicant's stated intent
to serve a particular intra-MSA city for Section 307(b) purposes.
Until this is answered, there is no harm in eliminating the issue,
regardless of whether intent is stated honestly. Our misrepresenta 
tion jurisprudence exists to ensure compliance with our substantive
rules; we do not and should not establish rules merely in order to test
compliance with them.
Second, it is stated that my recognition of the need for waivers in
MSAs of unusual size or configuration would be overused or abused.
But it is not clear why waivers in this context would be different
than in any other. We are legally required to provide for waivers.
The cause of legal certainty can only be promoted by stating the
parameters for grant at the outset.
Third, my proposal is thought to be internally inconsistent
because it does not modify certain localism-based standards, such as
city coverage, studio location, ascertainment and programming
requirements, while limiting the impact of the Commission's gloss on
Section 307(b) itself (within MSAs). However, to the extent there is
an inconsistency, it is an argument for a close review of those
remaining Commission-imposed requirements, not for the retention
of an otherwise erroneous policy. Ifthey have a policy basis different
2 The non-resolution of this problem here is compounded by immediately eliminat 
ing Berwick-type issues in pending cases, thus prejudicing the rights of competing
applicants who have already applied for a license for a center city rather than a
convenient suburb.
93 F.CG 2d
464 Federal Communications Commission Reports
from that of the application selection preference, there may be a
basis for keeping them. Ifnot, they should be revisited.
Last, my suggestion to use the MSA designed by the Census
Bureau and OMB is challenged as not being an "appropriate"
delineation of a metropolitan area community for "our purposes". It
is difficult to refute these arguments because they advance no
standards of their own. Our reliance on city boundaries is indeed
longstanding, but continuing past approaches for their own sake is
not sound policy-making. Similarly, I recognize that MSAs are not a
perfect device in this context; nonetheless, they are the best
available geographic definition of the common socio-economic inter 
ests and patterns by which we define community. Whatever weak 
nesses do inhere in the use of MSAs, they are no different than those
of municipal borders.
I am also concerned that no cogent arguments have been made to
refute my approach to this issue. Neither the existence, nor the
market-distorting impact, of the problem have been denied; no pro 
suburban incentive legal requirement has been cited and my
proposal is more consistent with the general policy of this Commis 
sion.
The present Commission has sought to rely on market forces
rather than government regulation, whenever feasible. However, by
encouraging applicants to seek suburban locations on the basis of the
number of stations currently licensed to a particular municipality,
the Commission not only ignores the basic fact that radio waves do
not stop at political boundaries, but also inhibits the applicant's
otherwise market-based decision to serve a perceived market need.
Congress has indicated that, in certain situations, other policies
concerns are paramount; and with that decision I have no quarrel
here. Nonetheless, the elimination of preferences within a metropoli 
tan area is fully consistent with the language, legislative history and
Commission and judicial interpretation of Section 307(b). Significant 
ly, the statutory language itself does not define "community"; the
Commission's distribution of broadcast facilities "among the several
States and communities" must be "fair, efficient and equitable to
each of the same." The complex legislative history of this provision
indicates that Congress was concerned primarily with preserving the
ability of less populated areas of the country, particularly in the
west, but also rural areas in general, to obtain broadcast service. See
Pasadena Broadcasting Co. v. FCC, 555 F.2d 1046, 1050 (D.C. Cir.
1977). To the extent there was any concern with intra-metropolitan
area distribution of facilities, it was not clearly expressed.
Section 307(b), in its present form, was added to the Communica 
tions Act in 1936. It was designed to restore the provisions originally
enacted in the Radio Act of 1927 which had been significantly
revised in 1934. See 80 Congo Rec. 6032 (1936) (remarks of Sen.
Wheeler). The 1927 provision was animated by congressional con-
93 F.e.C. 2d
Suburban Community Policy
465
cerns that an excessive percentage of both the total and preferred
radio frequencies were used by stations based in the nation's largest
cities, particularly those in the east. As Rep. Davis noted, of the
approximately 700 stations then licensed, "[a]bout 600 of those are
held in 21 States, chiefly in a few large cities." 68 Congo Rec. 2575
(1927). Similarly, he stated "in the entire South and Southwest ...
there were 79 broadcasting stations, and there was not one first-class
license in the whole lot, and is not to-day, south of the Ohio River."
Id. He had previously cited the fact that there were "within 50 miles
of Chicago 40 stations, of New York 38, of Philadelphia 22, and of
San Francisco 22" as the basis for enjoining the Secretary of
Commerce "to effect an equitable distribution of stations over the
entire country." 67 Congo Rec. 5479 (1926) (emphasis added). There is
no indication in the legislative history that, in enacting Section
307(b) or its 1927 predecessor, Congress intended that the Commis 
sion be concerned with the relative status of a center city versus a
suburb, much less grant dispositive preferences on that basis.
As far back as the Sixth Report and Order on Television
Allocations, 1 RR 601, 621 (1952), we have recognized that
metropolitan centers and their central cities have "broad areas of
common interest" which we must consider in allocating broadcast
channels under Section 307(b). As a result, very few suburbs received
allocations, even after the center city received several. Indeed, even
prior to that point, not only we, but the Court of Appeals as well,
have recognized that smaller municipalities in metropolitan areas
are properly treated as identical to the center city for Section 307(b)
purposes. Huntington Broadcasting CO. U. FCC, 192 F.2d 33 (D.C. Cir.
1951).
Similarly, in St. Louis Telecast, Inc., 22 FCC 625 (1957), the
Commission refused to find Section 307(b) applicable in selecting
among mutually exclusive applicants for a television station in the
St. Louis as its proposed city of license. We noted there that both St.
Louis and East St. Louis were in the St. Louis Standard Metropolitan
Area and that "there exists a single economically and culturally
integrated community ...." 22 FCC at 713. See also Rossmoyne
Corp., 7 RR 117 (1951). I would expand that finding, by rule, to all
MSAs.
Finally, I would note that, while this issue may appear to be a
minor one; it does, in fact, have long-term significance. We are
currently considering a proposal to drop-in a substantial number of
FM stations. Later this decade, an entire new segment of the
spectrum may be made available for AM stations in the 1600 KHz
band. Thus, the Commission's action is important and will affect
many licensing decisions in the years ahead.
In conclusion, I acknowledge the Commission's willingness to
consider a new proceeding, on an accelerated schedule, to provide a
more copious record on this issue. While late is better than never,
93 F.C.C. 2d
466 Federal Communications Commission Reports
given the many major policy issues in the mass media area which are
to be resolved in the near future, I am not optimistic of an early
resolution. Sound deregulation is not accomplished by utilizing two
rulemaking proceedings when one will do.
93 FCC. 2d