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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), ) Table of Allotments, ) FM Broadcast Stations ) MM Docket No. 94-29 (Willows and Dunnigan, ) RM-8416 California) ) MEMORANDUM OPINION AND ORDER (Proceeding Terminated) Adopted: November 22, 2000 Released: December 1, 2000 By the Chief, Allocations Branch: 1. The Allocations Branch has before it for consideration a Petition for Reconsideration ("Reconsideration") filed jointly by Marysville Radio, Inc. and Roseville Radio, Inc. ("Petitioners") of the Report and Order ("R&O"), 10 FCC Rcd 11522 (1995), in this proceeding. The R&O substituted Channel 288B1 for Channel 288A at Willows, reallotted Channel 288B1 from Willows to Dunnigan, California, and modified the license for Station KIQS-FM accordingly. Comments in opposition to the petition for reconsideration were filed by Pacific Spanish Network ("Pacific"), and a reply was filed by the petitioners. 2. Background. In response to a petition for rulemaking filed by KIQS, Inc, the former licensee of Station KIQS-FM, now KQSC(FM), the Notice in this proceeding proposed to substitute Channel 288B1 for Channel 288A at Willows, CA, to reallot Channel 288B1 as a first local service at Dunnigan, CA, and to modify Station KQSC(FM)'s license accordingly. 3. In the R&O, we determined that Dunnigan was a community for allotment purposes. We further determined that the allotment to Dunnigan should be made because it triggers the higher allotment priority of a first local transmission service under Priority 3 as compared to Priority four, since the retention of KQSC(FM) in Willows would constitute its first local night-time transmission service. Although Dunnigan was located closer to Sacramento, CA than Willows, neither city was located in an urbanized area as defined by the Census Bureau. Therefore, no Tuck factor analysis was required. 4. Petition for Reconsideration. Petitioners argue that the Commission erred in granting the substitution of Channel 288B1 for Channel 288A at Willows and reallotting Channel 288B1 to Dunnigan. Petitioners argue that the Commission's decision is flawed in light of the new information that the Commission did not consider in its analysis. First, petitioner contends that there was no basis for the R&O's reliance on the 70dBu contour of the station instead of the 60 dBu contour, which defines the reach of the station's service area and which petitioner claims is the more appropriate standard. Petitioner submits an engineering analysis which shows that the station's 60 dBu contour would cover all of the Yuba City and Davis Urbanized Area and a portion of the Sacramento Urbanized Area. Second, the petitioners contend that a translator application filed by a media broker associated with the station which proposes to retransmit the station signal to cover Sacramento is relevant to this proceeding. In light of the above, petitioners argue that Pacific's real intention was to serve the above areas, not Dunnigan. Lastly, petitioners argue that the R&O made no attempt to address Dunnigan's interdependence with Yuba City, Davis and Sacramento Urbanized Areas. Petitioner argues that a Tuck analysis is required. 5. Opposition. As a threshold matter, Pacific argues that petitioner's corrected reconsideration petition was filed after the statutory deadline and is, therefore, late. Pacific next argues that the so-called new facts that petitioner claims should trigger reconsideration are not new and that the petitioner has failed to carry its burden under Section 1.429(b) of the Commission's Rules. Pacific disagrees that Dunnigan is dependent on either Yuba City, Davis or Sacremento. Pacific disagrees that Dunnigan depends on Yuba City, Davis or Sacremento for municipal services. Regarding the engineering analysis, Pacific contends that the engineering is not new, just commissioned and filed late. Pacific further contends that the ECAC methodology used by the petititioner has never been acceptable for alloment purposes, citing Section 73.313(c). Pacific also argues that the translator application filed by Brett Miller is neither new information nor relevant to these proceedings. Finally, Pacific contends that the nighttime distant aural services that Willows will continue to receive after the reallotment of the station to Dunnigan is responsive to the needs of Willows. Pacific argues that the question of whether the 9 or 11 distant aural services are responsive in their programming to the needs of Willows is not relevant in this proceeding. Finally, Pacific agrees that the R&O properly weighed the loss to Willows of a second local service against the gain of a first local service to Dunnigan and concluded that the public interest favors the allotment, citing Homestead and North Miami Beach, FL, DA 95-2385. 6. Reply to opposition. Petitioners contend that the deadline for filing petitions for reconsideration was 30 days after the R&O was published in the Federal Register or November 30, 1995, and that the corrected petition was timely filed because it was filed before that date. Therefore, petitioners disagree that its corrected petition constituted an impermissible supplement. Petitioners also state that they did attempt to serve Pacific on November 24, 1995. However, petitioners contend that Pacific has not been prejudiced by any alleged delay in service. Regarding the signal coverage, petitioners reiterate its engineers' contention that ECAC Terrian-Intergrated Rough Earth Model ("TIREM") is an acceptable procedure to generate a more accurate assessment of signal coverage in flat terrain like that found in the Dunnigan-Sacramento area. Based on the foregoing, petitioners argue that Pacific's proposed signal would cover all the Davis and Yuba City Urbanized Areas. 7. Discussion: We have considered the petitioners' reconsideration request and find that it should be denied. We agree with the staff's decision in the R&O in this proceeding, and we find that the proposed reallotment is fully consistent with the Commission's policy with regard to community of license changes. 8. To begin with, the petitioners' argument concerning new engineering information is without merit. This is due to the fact that we must reject petitioners' use of the ECAC-Terrain Intergrated Rough Earth Model (TIREM) propagation procedure to determine signal coverage. 73.313 of the Commission's Rules provides for submission of such propagation methods to supplement, but not supplant the Commission F (50,50) curves when the terrain departs widely from average terrain. For the showing to be at all useful the procedures used in preparing the study must be described as well as assumptions made and the methodology employed, and in addition, sample calculations should be provided. See Reno Nevada, 3 FCC Rcd 5631 (1988). Petitioner does not do any of this. It only provides exhibits which allegedly show that based on the TIREM procedure, the actual 60dBu service will extend beyond the predicted 60dBu service contour, thus enabling the station to cover all of the Yuba City and Davis Urbanized areas as well as portions of the Sacremento Urbanized Area. 9. However, our staff engineering analysis reveals that, based upon maximum facilities, an omni-directional antenna, and the Commission's F (50, 50) curves, the 70 dBu contour of Channel 288B1 at the allotment reference coordinates in Dunnigan will not cover any part of the Yuba City, Davis, or Sacramento, CA Urbanized Areas. We also note that a construction permit has been granted for Channel 288B1at a different site at Dunnigan and that from this site, the 70 dBu contour also does not cover any part of these Urbanized Areas. Using this same methodology, we have calculated the coverage of the 60 dBu contour and find that Channel 288B1 at the allotment reference site at Dunnigan will cover approximately 95% of the Yuba City, CA Urbanized Area but will not cover any part of the Davis or Sacramento, CA Urbanized Areas. However, from the construction permit site, the 60 dBu contour of Channel 288B1 will cover approximately 5% of the Davis Urbanized Area but will not cover any part of the Yuba City or Sacramento Urbanized Areas. 10. We next find that the Report and Order was correct in not applying the Huntington/Tuck test for a first local service preference for Channel 288B1 at Dunnigan because there was no 70 dBu coverage over any urbanized areas. While the petitioner argues that the 60, rather than the 70, dBu contour is the appropriate benchmark for analysis, we disagree. In this regard, we note that after the Commission established the change of community rule in a general notice and comment rulemaking proceeding, the Huntington/Tuck test was initially applied in change of community cases where the proposed community of license was located inside of an urbanized area. See, e.g., Elizabeth City, NC, 7 FCC Rcd 6815 (1992) (request for supplemental information to show that Cheasapeake, VA is deserving of a local service preference). Thereafter, we expanded our use of the Huntington/Tuck test and adopted a bright line test for its application. Specifically, we decided that a Huntington/Tuck analysis will be required in change of community cases where the proposed community of license is located proximate to but not inside an urbanized area and where the 70 dBu signal would cover 50% or more of an Urbanized Area. See Headland, Alabama and Chattahoochee, Florida, 10 FCC Rcd 10352, 10354 (1995). See also, e.g., Healdton, OK and Krum, TX, 14 FCC Rcd 3932 (1999) (Huntington / Tuck analysis not required where reallotment and change of community of license to Krum, TX will place a 70 dBu signal over only 22% of the Denton, TX urbanized area even though the 60 dBu signal will completely encompass the urbanized area). We believe that our action in the present docket is consistent with these precedents because, as noted in the Report and Order, Dunnigan is not located within any Urbanized Area and the 70 dBu signal of the Dunnigan station will not cover any part of an Urbanized Area. Moreover, this approach of using the 70 dBu contour has uniformly been followed for the past five years since its adoption, and we see no reason to deviate from it in the instant case. 11. We further find that the Report and Order properly compared the existing and proposed arrangement of allotments and concluded that the proposed arrangement of allotments was preferable because it triggered a first local service under Priority 3. By way of contrast, retention of the channel at Willows invoked Priority 4, Other Public Interest Matters, and would result at that time in a first night-time transmission service and a second full-time transmission service. Moreover, local transmission service would still be provided to Willows by a day-time only AM station, and night-time reception service was available from nine other stations licensed to different communities. This result is quite consistent with our past precedent under which a first local service is favored over retention of the only night-time service in the original community. See, e.g., Scotland Neck and Pinetops, NC, 7 FCC Rcd 5113 (1992), recon. denied, 10 FCC 11066 (1995) (first local service at Pinetops preferred over retention of sole local night-time service at Scotland Neck). Our view in this regard is further buttressed by the fact that, since the release of our Report and Order in this case, the Allocations Branch allotted Channel 292A to Willows as a second local service, and four applications are currently pending for this new allotment. . 12. Finally, with respect to petitioners' argument that the filing of a translator application to retransmit the station's signal is somehow relevant to this proceeding, we agree with opponents that this fact is irrelevant. The basis for this conclusion is that translators are a secondary service and that they are not considered in allocation proceedings. 13. Accordingly, IT IS ORDERED, That the Petition for Reconsideration filed by Marysville Radio, Inc. and Roseville Radio, Inc. IS DENIED. 14. IT IS FURTHER ORDERED, That this proceeding IS TERMINATED. 15. For further information concerning this proceeding, contact Arthur D. Scrutchins, Mass Media Bureau, (202) 418-2180. FEDERAL COMMUNICATIONS COMMISSION John A. Karousos Chief, Allocations Branch Policy and Rules Division Mass Media Bureau