DOCKET FILE copy ORIGINAL Before the FEDERAL COMMUNICATIONS COMMISSION ORIGINAL Washington, D.C. 20554 Gr···,,/~~r). A" 'i t~: t,; ,.. ;' "t~ 't""H In the Matter of ) .RFf 07 1999 ) Amendment ofSection 73.20,Z\o ) MM Docket No. 99-240 Table ofAllotments fIllcHA'. C'D!I\>t;.,.,u,,;Ol'" ::;,;"S!!J{'iO ) RM - 9503 FM Broadcast Stations ,]FFleE Of n'E gE'.:R ) (Albemarle and Indian Trail, North Carolina) )
To: Chief, Allocations Branch Policy and Rules Division Mass Media Bureau
REPLY COMMENTS TO CAPSTAR TX LIMITED PARTNERSHIP
Susquehanna Radio Corp. ("SRC"), by its counsel and pursuant to Section 1.415 and 1.420 of the Commission's Rules hereby submits its reply to the "Comments of Capstar TX Limited
Partnership" ("Capstar"), licensee ofStations WLYT(FM), Hickory, North Carolina, WRFX(FM),
Kannapolis, North Carolina and WKKT(FM), Statesville, North Carolina in the above captioned proceeding. In support hereof, SRC states as follows:
1. SRC has requested the reallotment ofChannel 265A from Albemarle to Indian Trail,
North Carolina as its first local service. In doing so, a short spacing of21.35 km to Station WHSL-
FM, High Point, North Carolina and an interference area of 8 sq. km affecting 1,224 persons who are unable to receive WHSL-FM will be entirely eliminated. The elimination of a short spacing which also eliminates interference and contour overlap is a longstanding high priority public interest matter. See U, Eatontown, Point Pleasant and Red Bank, New Jersey, 5 RR 2d 1762 (1965).
Capstar does not challenge the public interest benefits ofthis proposal as it pertains to WHSL-FM,
High Point, North Carolina. Yet, Capstar fails to mention in its comments that it (through one ofits subsidiaries) is the licensee of WHSL-FM, High Point and stands to benefit greatly from SRC's proposal' Instead, Capstar identifies itself as a competitor in the Charlotte radio market ostensibly
No. 01 CoPies rec'd otf 0025750.01 Li6tABCOE
...._.....•••- .._-_...__.._------_.__. to protect its own private economIc interests. Having established the context of Capstar's participation in this proceeding, SRC will address Capstar's concerns.
2. First, Capstar argues that the relocation ofWABZ from Albemarle to Indian Trail will not result in a preferential arrangement of allotments because Albemarle (pop. 14,939 - 1990 U.S.
Census) will be left with two daytime only AM stations. Capstar cites no cases to support its position that two daytime AM stations and one full time station at Albemarle and no local service at Indian Trail is preferential to two daytime AM stations at Albemarle and one FM station at Indian
Trail under the Commission's priorities. In fact, the Commission's existing case law supports SRC's proposal. In Fredericksburg and Helotes. Texas, 10 FCC Rcd 6580 (1995), recons. granted, 11 FCC
Rcd 22317 (1996), the Commission favored a first local service at Helotes, Texas (pop. 1,535) even though Fredericksburg, Texas (pop. 6,934) would be left with only one daytime AM station. See also Marion and Orrville, Alabama, 6 FCC Rcd 3482 (1991), (Marion (pop. 4,467) was left with one daytime AM station in favor of a first local service to Orrville (pop. 349); Scotland Neck and
Pinetops, North Carolina 7 FCC Rcd 5113 (1992) recons. denied, 10 FCC Rcd 11 066 (1995);
Fruitland and Weiser. Idaho, 7 FCC Rcd 7538 (1992); Mora, Bosque Farms and Socorro, New
Mexico, 8 FCC Rcd 791 (1993); Ravenswood and Elizabeth, West Virginia, 10 FCC Rcd 3181
(1995); Bolivar and Nixa, Missouri 6 FCC Rcd 3648 (1991).
3. In each ofthese cases the smaller community was favored for a first local service over the retention of the former community's "sole full time and sole FM service." Unlike the other cases, Albemarle will be left with two AM stations to serve the communities needs whereas only one
AM station was retained in each ofthe cited cases. Clearly, the provision ofa first local service to
Indian Trail represents a preferential arrangement of allotments under past case law and the
Commission's priorities as set forth in Revision ofFM Assignment Policies and Procedures, 90 FCC
2d 88 (1982).
0025750.01 2 4. Secondly, while admitting that Indian Trail qualifies as a community and is therefore
entitled to its own radio station, Capstar argues that Indian Trail should not receive the first local
service priority because it is dependent on Charlotte under the Faye and Richard Tuck 3 FCC Rcd
5374 (1988), criteria. In this regard, Capstarpoints to the "mere" 11.3% ofIndian Trail residents
that work in their own community while 46.5% work in Charlotte citing Elizabeth City. North
Carolina and Chesapeake, Virginia 9 FCC Rcd 3586,3589 (1994) and RKO General Inc. 5 FCC Rcd
3222 (1990). Capstar also relies on the fact that Indian Trail telephone listings are found in the
Charlotte directory, Indian Trail does not have its own newspaper and that insufficient information
is provided concerning the extent to which local advertisers use Indian Trail media. Capstar also
argues that SRC did not adequately support the criteria ofhow community leaders and residents
perceive their community and that Indian Trail relies on Union County (in the Urbanized Area) for
some of its municipal services.
5. In its argument, Capstar makes two incorrect presumptions. First, Capstar seems to
believe that each of the Tuck factors are equally important and, second, that reliance on Union
County for some ofits needs equals dependence on Charlotte itself.
6. In evaluating the extent to which a community is independent from a central city, the
Commission has relied on a majority ofthe eight factors with a heavier emphasis on certain ofthose
factors. The burden is on the opponents invoking the Huntington 1 exception to overcome the
presumption that each community has a need for local service. Tuck at 5377. In Cadiz and Oak
Grove, Kentucky. 10 FCC Rcd 10785 (1995) the Commission found that a majority ofthe factors
favored Oak Grove even though it lacked its own newspaper, telephone directory, hospital, public transportation and libraries. See also D'Iberville and Wiggins. Mississippi, 10 FCC Rcd 10796
(1995) (D'Iberville lacked its own telephone book and police services); Parker and Port St. Joe.
1. Huntington Broadcasting Company vs. FCC, 192 F. 2d 33 (D.C. Cir. 1951).
0025750.01 3 Florida, II FCC Rcd 1095 (1995) (Parker does not have its own telephone directory, local
newspaper and is not a separate advertising market). Specifically as to the percentage ofresidents
working in their own community, this has not been a significant factor in past cases. See~,
Detroit, Howe and Jacksboro, Texas. Antlers and Hugo, Oklahoma 13 FCC Rcd 15591 (1998). Ada,
Newcastle and Watonga, Oklahoma, II FCC Rcd 16896 (1996), Hallie and Ladysmith. Wisconsin,
10 FCC Rcd 9257 (1995); Headland, Alabama and Chattahoochee, Florida, 10 FCC Rcd 10352
(1995); Bessemer and Tuscalossa. Alabama, 5 FCC Rcd 669 (1990). The fact that 11.3% ofthe
community's residents work in Indian Trail is comparable to the 13% working in Gilbert, Arizona,
Coolidge and Gilbert. Arizona, II FCC Rcd 3610 (1996). More importantly, it is clear that a
majority ofIndian Trail's residents do not work in Charlotte. See Malvern and Bryant, Arkansas,
14 FCC Rcd 3576 (1999).
7. As for local newspapers, Capstar does not contend that Indian Trail relies on
Charlotte for its local needs. Rather, the residents read the Union County Sentinel which has its
office in Indian Trail (P.O. Box 1035), and the Enquirer Journal published in a separate county than
that of Charlotte. The same is true of the local cable system. Indian Trail has its own Internet
website. See also Ada, Oklahoma, supra; Chesapeake and Elizabeth City, North Carolina, 9 FCC
Rcd 3586 (1994) (crediting Chesapeake for a supplement inserted in the Norfolk daily paper and
no local daily newspaper). Here, the Union Observer is a supplement to the Charlotte Observer and
focuses on Union County and Indian Trail events.
8. As for the perception ofcommunity residents and leaders, this factor has also been
ofrelatively minor significance. See~, Bay St. Louis and Poplarville, Mississippi, 10 FCC Rcd
13144 (1995) (finding independence without any showing regarding community leaders perception).
In a conversation with undersigned counsel, Mr. John Munn, the Town Manager ofIndian Trail,
stated that based on his experience, the residents ofIndian Trail consider their town to be a vibrant,
0025750.01 4 growing, and self-sustaining community that offers its residents access to all of the government
services, commercial establishments and cultural activities ofan independent cornmunity.
9. As for local telephone books, the Commission generally places less significance on
this factor as well. See Scotland Neck and Pinetops. North Carolina, supra, Coolidge. Arizona,
supra, Elizabeth City. North Carolina, supra, and Ada. Oklahoma, supra. The same is true for a
separate advertising market. This factor was of no significance in Hallie. Wisconsin, supra,
Falmouth and Mashpee. Massachusetts, 10 FCC Rcd 10445 (1995), D'Iberville. Mississippi, supra,
Bay St. Louis, Mississippi, supra. See also. Bon Air, Chester. Mechanicsville. Ruckersville,
Williamsburg and Fort Lee. Virginia (where Fort Lee was determined to be independent in spite of
being in the same advertising market as the central city). Nevertheless, Indian Trail businesses
advertise in the local newspapers and the Union Observer Supplement in order to direct their
advertising to Indian Trail residents.
10. From these cited cases, it should be clear that Capstar, in its effort to preserve its position in the Charlotte market, has focused on the most insignificant ofthe Tuck factors and fails to rebut the showing of independence stemming from Indian Trail's government services, businesses, and cultural activities.
II. In this regard, Indian Trail has its own local government which provides fire protection from a volunteer fire department which is separate from Monroe and from Charlotte. The community pays for two full-time sheriffs deputies to provide police protection. It also offers planning and zoning services, garbage collection, water and sewer services (paid to the county) and a library. The city has its own taxing authority which is used to pay for these services. Indian Trail has its own zip code, numerous commercial establishments, medical services, community activities, over 20 churches, civic organizations and public and private schools. These indicia ofindependence are consistent with the overwhelming majority of cases decided by the Commission and, in
0025750.01 5 particular, each ofthe cases cited earlier in this pleading. See~, Elizabeth City. North Carolina,
supra, cited by Capstar but which had no local daily newspaper, no local telephone book, shared
transportation within the Urbanized Area, and no separate advertising market.
12. There should be no doubt that Indian Trail is a separate, independent community
which would exist whether or not Charlotte also existed. SRC is interested in serving Indian Trail
due to its growth (annual rate of27%) and need for a local station to serve its growing population.
Accordingly, SRC urges the Commission to provide a first local service to Indian Trail, North
Carolina.
Respectfully submitted,
SUSQUEHA RADIO CO ORATION ~ By: . II \ Mar N. Lipp J es Morgan Shook, Hardy & Bacon 600 14th Street, NW Suite 800 Washington, DC 20005 (202) 783-8400
Its Counsel
September 7, 1999
0025750.01 6 CERTIFICATE OF SERVICE
I, Lisa M. Balzer, a secretary in the law firm of Shook, Hardy and Bacon, do hereby certify that I have on this 7th ofSeptember, 1999 caused to be mailed by first class mail, postage prepaid, copies ofthe foregoing "Reply Comments to Capstar TX Limited Partnership" to the following:
* John A. Karousos, Chief Mark J. Prak, Esq. Federal Communication Commission Brooks Pierce McLendon Mass Media Bureau Humphrey & Leonard, L.L.P. 445 12th Street, SW P.O. Box 1800 Room 3-A266 Raleigh, NC 27602 Washington, D.C. 20554 (Counsel to Carolina Radio Group, Inc.)
Station WIFM F.S.A. Broadcasting Group, Inc. Drawer 1038 813 North Bridge Street Elkin, NC 28621
Station WHSL-FM Capstar NC Limited Partnership 650 Madison Avenue New York, NY 10022
Station WKXU Carolina Radio Group, Inc. 3012 Highwoods Blvd. Suite 201 Raleigh, NC 27604
Gregory L. Masters, Esq. E. Joseph Knoll, Esq. Wiley, Rein & Fielding 1776 K Street, NW Washington, DC 20006 (Counsel to Capstar TX Limited Partnership)
David Tillotson, Esq. 4606 Charleston Terrace, N.W. Washington, D.C. 20007-1911 (Counsel to F.S.A. Broadcasting Group, Inc.) ~(~~ * HAND DELIVERED Lisa M. Balzer .
0025750.01