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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Amendment of Section 73.202(b), )MM Docket No. 91-259 Table of Allotments, )RM-7309 FM Broadcast Stations. )RM-7942 (Canovanas, Culebra, Las Piedras,)RM-7943 Mayaguez, Quebradillas, San Juan,)RM-7944 and Vieques, Puerto Rico, and )RM-7948 Christiansted and Frederiksted, ) Virgin Islands) ) MEMORANDUM OPINION AND ORDER (Proceeding Terminated) Adopted: July 1, 1997Released: July 2, 1997 By the Commission: 1. The Commission has before it the Application for Review filed by Arso Radio Corporation ("Arso Radio") directed to the Memorandum Opinion and Order in this proceeding, 11 FCC Rcd 16392 (1996). Carlos J. Colon Ventura, Jose J. Arzuaga, Amor Radio Group, Corp., and V.I. Stereo Communications filed a Consolidated Opposition to Application for Review. Radio Station WKJB AM-FM, Inc. ("Radio WKJB"), and Arso Radio each filed a Reply to the Consolidated Opposition. For the reasons discussed below, we deny the Application for Review. Background 2. At the joint request of Carlos J. Ventura ("Ventura"), licensee of Station WSAN, Channel 255B, Vieques, Puerto Rico, and Jose J. Arzuaga, licensee of Station WQQZ, Channel 252A, Quebradillas, Puerto Rico, the Notice of Proposed Rule Making and Order to Show Cause in this proceeding proposed the substitution of Channel 252A for Channel 255B at Vieques, the reallotment of Channel 252A from Vieques to Canovanas, Puerto Rico, and modification of the Station WSAN license to specify operation on Channel 252A at Canovanas. 6 FCC Rcd 5310 (1991). In order to accommodate this substitution and reallotment, the Notice also proposed the substitution of Channel 258A for Channel 252A at Quebradillas, and modification of the Station WQQZ license to specify operation on Channel 258A. The Channel 252A substitution at Vieques and reallotment to Canovanas also required channel substitutions at Mayaguez and San Juan, Puerto Rico. Therefore, the staff included the Order to Show Cause directed to Radio WKJB, licensee of Station WKJB-FM, Channel 256B, Mayaguez, Puerto Rico, and Arso Radio, licensee of WPRM- FM, Channel 253B, San Juan, Puerto Rico. Specifically, Radio WKJB was directed to show cause why its Station WKJB-FM license should not be modified to specify operation on Channel 254B, and Arso Radio was directed to show cause why its Station WPRM-FM license should not be modified to specify operation on Channel 256B. 3. In response to the Notice, Ventura filed a counterproposal modifying its original proposal. Ventura proposed the same substitution of Channel 252A for Channel 255B at Vieques, but its reallotment to Las Piedras instead of Canovanas. In addition, the staff recognized that it had inadvertently failed to include an interrelated proposal by Amor Family Broadcasting Group to allot Channel 251A to Santa Isabel, Puerto Rico. For these reasons, the staff adopted a Further Notice of Proposed Rule Making requesting comment on the modified Ventura proposal and the Amor proposal to allot Channel 251A to Santa Isabel. 7 FCC Rcd 3324 (1992). Inasmuch as it was already necessary to issue a Further Notice, the staff included two proposals submitted earlier in response to the Notice. The first proposal was filed by V.I. Stereo Communications Corporation, licensee of Station WVIS, Channel 291B, Christiansted, St. Croix, Virgin Islands, requesting the reallotment of Channel 291B to Vieques, Puerto Rico. In order to accommodate this proposal, V. I. Stereo proposed the substitution of Channel 254A for vacant Channel 293A at Culebra, Puerto Rico. The second proposal was filed by Luis Hernandez requesting the allotment of Channel 253A to Frederiksted, Virgin Islands. This proposal required the deletion of Channel 253B at San Juan which had already been proposed in the Notice. 4. The Report and Order substituted Channel 252A for Channel 255B at Vieques, reallotted Channel 252A to Las Piedras, and modified the Station WSAN license to specify operation on Channel 252A at Las Piedras. The Report and Order also substituted Channel 258A for Channel 252A at Quebradillas, and modified the license of Station WQQZ to specify operation on Channel 258A. As proposed in the Order to Show Cause, the Report and Order accommodated these actions by substituting channels and modifying licenses at Mayaguez and San Juan. Specifically, it substituted Channel 254B for Channel 256B at Mayaguez, and modified the license of Station WKJB-FM to specify operation on Channel 254B, and substituted Channel 256B for Channel 253B at San Juan, and modified the license of Station WPRM-FM to specify operation on Channel 256B. In addition, it allotted Channel 251A to Santa Isabel, and Channel 253A to Frederiksted. It also reallotted Channel 291B from Christiansted to Vieques and modified the license of Station WVIS to specify Vieques as the community of license. Arso Radio and Radio WKJB filed Petitions for Reconsideration directed to the Report and Order. 5. In the Memorandum Opinion and Order, the staff denied both Petitions for Reconsideration. In doing so, the staff affirmed its earlier determination that new allotments to Las Piedras and Santa Isabel will result in a preferential arrangement of channels. In addition to noting the overall gain in the number of persons receiving service, the staff specifically determined that Las Piedras was entitled to a preference as a first local service notwithstanding its proximity to the San Juan, Caguas and Humacao Urbanized Areas. 6. In support of its Application for Review, Arso Radio again argues that the reallotment to Las Piedras is a move-in from a rural area to a well-served Urbanized Area which is not in the public interest and does not justify modification of the Station WPRM-FM license. In addition, Arso Radio contends that Las Piedras is not entitled to a preference as a first local service because Las Piedras is located within the Humacao Urbanized Area. In a separate vein, Arso Radio argues that the availability of five reception services to Vieques should not be considered sufficient service in this situation because Las Piedras receives service from 23 stations. Discussion 7. We deny the Application for Review, finding that the public interest will be served by the proposed Channel 252A channel substitution at Vieques, its reallotment to Las Piedras, and modification of the Station WSAN license to specify operation on Channel 252A at Las Piedras. We believe that this action results in a preferential arrangement of allotments as required by Modification of FM and TV Authorizations to Specify a New Community of License, 4 FCC Rcd 4870 (1989), recon granted in part, 5 FCC Rcd 7094 (1990) ("Community of License"). This determination is based upon the FM allotment priorities set forth in Revision of FM Assignment Policies and Procedures. Specifically, this will provide Las Piedras with a first local service and result in a net service gain to approximately 561,535 persons in Las Piedras and its surrounding area. In this regard, we recognize that the removal of Station WSAN from Vieques will result in a service loss to 55,935 persons in an area of 192.4 square kilometers (74.2 miles). However, this entire loss area will continue to receive at least five full-time aural services, including Station WIVI, licensed to Vieques. We continue to believe that five remaining reception services is abundant service which is sufficient to ameliorate any concern expressed by Arso Radio regarding a loss of a reception service. See Family Broadcasting Group, 53 RR2d 662, 669 (Rev. Bd. 1983), rev. denied. FCC 83- 559 (Comm'n Nov. 29, 1983); See also LaGrange and Rollingwood, Texas, 10 FCC Rcd 3337 (1995). We concur with the view that these public interest benefits justify modifying the respective licenses of Station WKJB-FM and Station WPRM-FM. 8. In affirming the staff action reallotting Station WSAN to Las Piedras, we realize that Las Piedras is located within the Humacao Urbanized Area. As noted by Arso Radio and Radio WKJB in their earlier Petitions for Reconsideration, we are concerned with the potential migration of stations from underserved rural areas to well-served urban areas. Community of License, 5 FCC Rcd at 7096. To this end, we will not uncritically apply a first local service preference of the FM allotment priorities when a station seeks to reallot its channel from a rural area to a suburban community in a nearby Urbanized Area. In making such a determination regarding a proposal to award a first local preference to a community in an Urbanized Area, we apply existing precedents. See, e.g. Huntington Broadcasting Co. v. FCC, 192 F.2d 33 (D.C. Cir. 1951); RKO General (KFRC), 5 FCC Rcd 3222 (1990); Faye and Richard Tuck, 3 FCC Rcd 5374 (1988). In essence, we consider the extent the station will provide service to the entire Urbanized Area, the relative populations of the suburban and central cities, and the independence of the suburban community. We applied each of these criterion to the facts of this proposal. 9. We believe that this proposal should be considered as a first local service to Las Piedras even though this allotment will provide a city-grade signal (70 dBu) to 100% of the Humacao Urbanized Area. In regard to the criteria outlined above, we wish to make several observations regarding the reallotment of Channel 252A to Las Piedras. A Class A FM facility is the minimum FM allotment. The Humacao Urbanized Area encompasses only 22.4 square miles containing 57,144 persons. In view of the limited size of this Humacao Urbanized Area, a Class A FM allotment to any community in that Urbanized Area will invariably provide city-grade coverage to the entire Urbanized Areas. In this situation, such coverage does not support a conclusion that Ventura is merely proposing a reallotment to Las Piedras in order to serve the Humacao Urbanized Area. There is also nothing in the record of this proceeding that would suggest that the Humacao Urbanized Area of 57,144 persons is sufficiently large or dominant enough to preclude a finding that Las Piedras is an independent community entitled to a first local service. In this regard, Las Piedras, with a 1990 population of 2,087 persons, is an independent community within the Las Piedras municipio with its own local government which provides its residents with municipal services, its own businesses, health facilities, churches, transportation systems, telephone book section and zip code. In fact, it is a long distance phone call from Las Piedras to either San Juan or Humacao. Ventura has also submitted letters from the Mayor of Las Piedras, the Mayor of Humacao and the Executive Assistant to the Mayor of San Juan all attesting to the fact that Las Piedras is an independent community without any political, economic, or social attachments to either San Juan or Humacao. In view of the above and the absence of evidence from Arso Radio to the contrary, we believe that there is sufficient independence from the Humacao Urbanized Area to justify a preference as a first local service to Las Piedras. RKO General (KFRC) 10. Arso Radio also contends that the decision in this proceeding is inconsistent with the Commission decision in RKO General (KFRC), supra. We disagree. That proceeding involved a six-way comparative hearing for the facilities of AM Station KFRC, San Francisco, California. Two of the applicants proposed Richmond, California, as their proposed community of license even though they had proposed facilities (unlimited time at a power of five kilowatts) and coverage identical to the facilities and coverage proposed by the other applicants who had proposed San Francisco as the community of license. In order to preclude an anomalous and artificial resolution of that proceeding, we did not afford Richmond a dispositive comparative preference as a first local service. 11. In that proceeding, we recognized that Richmond, with a population of 74,676 persons, was an incorporated community with its own local government, municipal services and business establishments. On the other hand, we noted that Richmond does not have a major public hospital, a local newspaper, or its own public transportation system. On balance, we concluded that these factors were a "mixed result" on the issue of independence of Richmond from the San Francisco- Oakland Urbanized Area. Such a conclusion was insufficient to justify a preference as a first local service in light of the signal coverage by the Richmond applicants to the Urbanized Area and the respective populations of Richmond and the entire San Francisco-Oakland Urbanized Area. While the communities of Richmond and Las Piedras have similar characteristics regarding independence from an Urbanized Area, the situations are distinguishable because of the relative populations of the San Francisco-Oakland and Humacao Urbanized Areas (3,629,516 versus 57,144 persons) and the fact that Ventura is proposing the minimum Class A FM allotment to serve Las Piedras. In contrast, the applicants for Richmond proposed five kilowatts, sufficient to serve the entire Urbanized Area, instead of a lesser AM power which would have been adequate to serve Richmond. 12. The primary distinction, however, between this proceeding and our decision in RKO General (KFRC) is the fact that we will not permit our allotment priorities and policies to be used in a manner which might appear to condone an artificial and unwarranted manipulation of these priorities and policies. We expressed this concern in RKO General (KFRC) and in Community of License. It continues to be our view that awarding a preference as a first local service to the Richmond applicants would have awarded an unfair and artificial advantage to these applicants at the expense of the competing applicants who had proposed identical facilities for a San Francisco station. Unlike that proceeding, Ventura did not propose an allotment to Las Piedras which had been previously licensed to a larger community in any Urbanized Area. Instead, Ventura merely proposed reallotting its existing channel from Vieques to Las Piedras. As required by Community of License, it was then incumbent upon us to compare the existing allotment at Vieques versus the proposed allotment at Las Piedras in order to determine whether this would result in a preferential arrangement of allotments. It is our view that reallotting the second local service at Vieques to Las Piedras as a first local service coupled with a net gain in service to 561,535 persons does, in fact, result in a preferential arrangement of allotments. 13. Accordingly, IT IS ORDERED, That the aforementioned Application for Review filed by Arso Radio Corporation IS DENIED. 14. IT IS FURTHER ORDERED, That this proceeding IS TERMINATED. FEDERAL COMMUNICATIONS COMMISSION William F.Caton Acting Secretary