~4ainis & Jkltnnan, ([[4arter£~ Cfi.ounselon. nt ~ ~Z40 0C)CKEf FILE COPY ORfGINAL 1850 ~ ~tncl, ~.~ ~a~,~.Cfi.Z0036 (ZOZ) Z93-0011 ®f Cfinunsel }.armt J. jlqainis Jll'ax (ZOZ) Z93-0810 ~illimn ~ ~u~s, III ~ Jj. Jleltmum e-mail: [email protected] ~herl Jj. ~ller December 20, 2000 Magalie R. Salas, Esq. RECEIVED Secretary Federal Communications Commission DEC 202000 Portals II - 12th Street Lobby ~ ""'IWATIINI~. Filing Counter - TW-A325 ePPII2 6f'nE SECR£!'rARY 445 12th Street, S. W. Washington, D.C. 20554 Re: MM Docket No. 00-166 RM-9951, 10015 and 10016 Amendment of Section 73 .202(b) Table ofAllotments, FM Broadcast Stations (Wickenburg, Aguila and Bagdad, Arizona) Dear Ms. Salas: Transmitted herewith, on behalfofCircle S Broadcasting Co., Inc., is an original and four (4) copies of its Reply Comments in MM Docket 00-166. Please contact the undersigned in the event the Commission has any questions with respect to these Reply Comments. Sincerely, Enclosure j' - -_._----~-_.----- J:\# FCC\D, WICKENBURG-[12-20-00]RepComm.COY.doc ORIGINAL BEFORE THE FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of ) RECEIVED ) Amendment ofSection 73 .202(b) ) MM Docket No. 00-166 DEC 202000 Table ofAllotments ) RM-9951, 10015, 10016 FM Broadcasting Stations ) ....0GIM1NIC'AlIJNI ~ ClPfft OF 1M! SfCSI!IMV' (Wickenburg, Aguila and ) Bagdad, Arizona) ) To: Chief, Allocations Branch Policy and Rules Division Mass Media Bureau REPLY COMMENTS Circle S Broadcasting Co., Inc. ("Circle S"), licensee of Station KSWG(FM), Wickenburg, Arizona, by its counsel, hereby submits its Reply Comments in the above- captioned rule making in response to the Commission Public Notice, Report No. 2453, released December 5, 2000. In support ofits position, Circle S submits the following: The Commission's Notice of Proposed Rule Making, 00-2069, released September 8, 2000. proposed the allotment of Channel 242C3 at Wickenburg, Arizona. Circle S counterproposed that Channel 231 C3 be allotted to Aguila, Arizona, as that community's first local service and that Channel 242C3 be substituted for Channel 231 C3 at Wickenburg, Arizona and Station KSWG's license be modified accordingly. Bagdad Broadcasting Company ("BBC") counterproposed that Channel 242C3 be allotted to Bagdad, Arizona as that community's second local service. The Commission has requested reply comments with respect to these counterproposals. There is no doubt that Circle S's counterproposal, proposing Channel 231 C3 to Aguila, Arizona as that community's first local service and Channel 242C3 be substituted for Channel 231 C3 at Wickenburg, Arizona should be preferred over the allotment of Channel 242C3 as an additional service to either Wickenburg or Bagdad, Arizona. Aguila qualifies as a community deserving of a first local broadcast service. In comparison, Wickenburg retains existing service from one commercial AM station [KBSZ(AM)] and two commercial FM stations [KMYL-FM and KSWG(FM)]. A construction permit for Channel 276C3 has been authorized for Bagdad, Arizona. Therefore, adoption of the Circle S Aguila counterproposal would result in a preferential arrangement of allotments consistent with the criteria set out in the Commission's Revision oj' FM Assignment Policies and Procedures, 90 FCC 2d 88, 92 (1982). Whereas Wickenburg would be receiving its fourth local service and Bagdad a second service, Aguila would be obtaining a first local service. Under the Commission's allotment criteria, a first local service is preferred over additional local service. Moreover, as pointed out previously by Circle S in its November 14, 2000 Reply Comments, there are at least two other Class C3 channels that can be allotted to Bagdad consistent with the Commission's technical rules! Channel 226C3 can be allotted to Bagdad at several locations including reference coordinates 34 degrees, 37 minutes, 06 seconds North Latitude; 113 degrees, 22 minutes, 51 seconds West Longitude. Also, Channel 247C3 can be allotted to Bagdad at a number of locations including reference coordinates 34 degrees, 33 minutes, 12 seconds North Latitude; 113 degrees, 22 minutes, 04 seconds West Longitude. Both sites will provide the required 70dBu signal coverage over the community of Bagdad. Accordingly, the Commission can make an additional allotment to Bagdad and also allot Channel 231 C3 to Aguila while substituting Channel 242C3 for Channel 231 C3 at Wickenburg and modifying KSWG's 1 Circle S Broadcasting Co., Inc. Reply Comments, filed November 14,2000 at 2. .1:\# FCCD.Wickenburg[12-20-00]ReplyCom.LLS.doc 2 license. See Banks, Redmond, Sunriver and Corvallis, Oregon, 13 FCC Red 6596 (1998). As noted above, Aguila qualifies as a community for FCC allotment services as it has satisfactory indicia of community status. 2 The Commission has consistently held, both in fact and instatement, that the test for determining community status pursuant to Section 307(b) ofthe Communications Act is not a stringent one. See Columbia City, Florida, DA 00-2828, released December 15, 2000; Westly, California, 13 Red. 2470 (1998); Willows and Dunnigan, CalUhrnia, 10 FCC Red. 11522, 11523 (1995); Kenanansville, Florida, 5 FCC Red. 2663 (1990), rev. denied, 10 FCC Red. 9831 (1995); Semora, North Carolina, 5 FCC Red. 934, 935 (1990); Beacon Broadcasting, 2 FCC Red. 3469, recon. denied, 2 FCC Red. 7562 (1987); Seven Locks Broadcasting Co., 37 FCC 82 (1964). The Commission does not require a municipality to provide every municipal service in order to merit a finding of community status. Similarly, the absence of local government or even formal corporate boundaries is not fatal to a community's claim to a channel. The community of Aguila compares favorably to those communities considered favorably in recent Commission allotment decisions. In Westley, California, the Commission found that Westley contained sufficient indicia to conclude that it was a community for allotment purposes based on the fact that it had its own post office and zip code, some commercial businesses, its own volunteer fire department, some utility services, an elementary school, a local growers association and an office of the County Housing Authority. In Columbia City, the Commission determined that Columbia City constituted a community for allotment purposes despite the fact that it was not listed in any census reports, had no local government and provided 2 Circle S incorporates by reference its Counterproposal, filed October 30,2000, which discussed the qualifications ofAguila. .I :\# FCC\D.Wickenburg[12-20-00]ReplyCom.LLS.doc 3 no municipal services except, again, a volunteer fire department. The Commission did find that Columbia City had churches, some commercial businesses, an elementary school and individuals who attested to their belief that it was a community. Comparing Columbia City to the community of Semora, the Commission noted that, while both communities lacked municipal services and a local government, both had their own volunteer fire departments, churches and evidence of commercial activity and neither community was a small municipality on the fringe of a larger urban area. Columbia City, para. 7. Likewise, here, Aguila has no local government and lacks substantial municipal services. It does maintain its own volunteer fire department. (Aguila Fire Department), its own school (Aguila School), its own library (Aguila Public Library), churches, its own Head Start program (Aguila Head Start), its own water district (Aguila Water Services), a community center and numerous commercial establishments, including restaurants (Jim Lazy G Cafe & Saloon, Lil's Restaurant and Maricella's Restaurant), food stores, a motel, a gas station, an auto parts and hardware store, a rabbit ranch, a honey producer and a machine shop. Aguila, as a farm community, is also home to Maratori Farms, one ofthe nations largest producers ofmelions. See Attachment B to Circle S Counterproposal. Attached hereto are pictures of a few of these commercial establishments as well as the Aguila Post Office. Unlike Columbia City, which was found to constitute a community for allotment purposes, Aguila has its own post office and zip code (85320), not to mention its own telephone exchange (685). Moreover, like Columbia City and Semora, Aguila is not a small municipality on the fringe of a larger urban area. It is located sixty miles from Phoenix, just as Columbia City was located sixty miles from Jacksonville, Florida. .I :\# FCC\D.Wickenburg[12-20-00]ReplyCom.LLS.doc 4 Additionally, Circle S furnished the Commission in its Counterproposal with a copy of the Aguila section ofthe local telephone directory. A copy ofthat section ofthe directory is also attached hereto. The residential section ofthe telephone directory for Aguila contains over three hundred eighty (380) names.3 Circle S also provided in its Counterproposal the statements of local residents of Aguila stating that they regarded themselves as a distinct group deserving of a broadcast station. See Circle S Counterproposal, Attachment D. Circle S demonstrated in its counterproposal that Aguila is a geographically identifiable population grouping. As such, it qualifies as a community for Commission allotment purposes. Under the Commission's allotment priorities, it presents a superior proposal than does the proposal to add a second channel to Bagdad or a fourth station to Wickenburg. As such, for the reasons stated herein, Circle S respectfully requests that the Commission grant its Counterproposal to allot channel 231 C3 to Aguila, Arizona as a first local service and allot 242C3 as a replacement for channel 231 C3 at Wickenburg, Arizona at the reference point proposed in the Notice ofProposed Rulemaking and amend the Table of Allotments to reflect the foregoing and modify the license of Station KSWG(FM) to specify operations on that new channel. In the event that the Commission grants that Counterproposal, Circle S will file an application for the Aguila allotment as well as a modification application for Station KSWG and, 3 The Commission in the Columbia City case estimated the population ofthat community based on U.