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DOCKET FILE COPY ORIGINAL Before the FEDERAL COMMUNICATIONS COMMISSION RECEIVED Washington, D.C. 20554 SEP 26 2002 In the Matter of ) -~ncw6cowrrswm ) -wIwEs&IETuw Amendment of Section 73.202 ) MB Docket No. Table of Allotments, ) FM Broadcast Stations. ) RM No. (Toledo, Ohio, Oak Harbor, Ohio ) and Genoa, Ohio) ) To: Assistant Chief, Audio Division, Media Bureau JOINT PETITION FOR RULEMAKING Rasp Broadcasting Enterprises, Inc. (“Rasp”),licensee of WJZE(FM), Channel 247A, Oak Harbor, Ohio (Facility ID No. 55183), and Citicasters Licenses, Inc. (“Citicasters”), licensee of WRVF(FM), Channel 268B, Toledo, Ohio (Facihty ID No. 62188), by their respective attorneys, hereby jointly petition the Commission for the following four modifications (collectively, the “Proposal”): modification of the Commission’s Table of Allotments for FM Broadcast Stations (Section 73.202 of the Commission’s Rules) to: (i) delete Channel 247A from Oak Harbor, Ohio, and (ii) add Channel 247A to Genoa, Ohio; contingent on Commission approval of the above change in the Table of Allotments, modification of the Commission’s Table of Allotments for FM Broadcast Stations (Section 73.202 of the Commission’s Rules) to: (i) delete Channel 268B from Toledo, Ohio, and (ii)add Channel 268B to Oak Harbor, Ohio; and modification of the license of WJZE to specify operations on Channel 247A in Genoa, Ohio, in lieu of operation on Channel 247A in Oak Harbor, Ohio, and \\\DC ~ 58176/0217 - 1616128 “2 d) contingent on the above changes, modification of the license of WRVF to specify operations on Channel 268B in Oak Harbor, Ohio, in lieu of operation on Channel 268B in Toledo, Ohio. In reviewing a proposed change to the FM Table of Allotments, the Commission asks whether the proposal would serve one or more of the Commission's four allotment priorities. I/ Here, the Proposal would serve the third allotment priority by providing a first local aural transmission service to Genoa, Ohio. The community of Genoa has been identsed in both the 1990 and 2000 Censuses and has a 2000 Census population of 2,230 residents. 21 Genoa has its own government, its own schools, its own fire and police departments, its own churches, its own retail outlets, its own post office and its own zip code (43430). 31 Under any readmg of Commission precedent, Genoa also deserves its own local transmission service. 41 -11 See Parker & Port St. Joe R&O, 11 FCC Rcd 1095, 1095 (7 4) (1996). The four allotment priorities are: i) one full-time aural reception service to a community; ii) a second full-time aural reception service to a community; iii) one local transmission service to a community; or iv) other public interest factors. Id. The second and third criteria have equal priority. Id. -21 See Exhibit 1. -31 See id. -4/ The proposed re-allotment of Channel 247A from Oak Harbor to Genoa does not require a Tuck showing that Genoa is separate and distinct from Toledo. See Faye and Richard Tuck, 3 FCC Rcd 5347 (1988). Under Tuck (and subsequent Commission precedent), a showing that the new community of license of a proposed allotment is not interdependent on a nearby major city is required If: i) for the first time, the allotment, from the proposed reference coordinates, will encompass at least 50 percent of the relevant urbanized area within its projected 70 dBu contour; or ii) if the proposed allotment will not encompass at least 50 percent of the The Proposal will cause no disruption to existing levels of service. Under the Proposal, and consistent with FCC precedent, Oak Harbor will maintain a local FM transmission service through the reallotment of WRVF from Toledo to Oak Harbor, 51 while Toledo d1remain the community of license of 12 other radio stations, even after the proposed move of WRVF. Also, because the proposed allotment changes will be made without the need to re-locate the transmitting facilities of either WJZE or WRVF, the Proposal will not result in any loss of established service. 61 The attached Technical Exhibit demonstrates that the Proposal is consistent with the Commission’s technical requirements, assuming that the Commission employs a sensible reading of its established allocations policy regardmg stations that seek to change their communities of license without changing their actual transmitter sites and are already subject to Section 73.215 of the Commission’s Rules. Under Section 73.215 of the Commission’s Rules, the relevant urbanized area, the proposed community of license, but not the current community of license, is part of the relevant urbanized area. See, e.g.,Memphis, Tennessee, Olive Branch and Horn Lake, Mississippi, Report and Order, MM Docket No. 02-31 (Allocations, May 1, 2002). Here, Genoa is not part of the Toledo Urbanized Area, see Technical Exhibit (attached as Exhibit 2) at Figure 1, and the proposed reallotment of Channel 247A to Genoa does not involve any change in WJZE’s established parameters. Accordingly, the proposal does not require a Tuck showing. Likewise, the proposed re-allotment of Channel 268B from Toledo to Oak Harbor does not require a Tuck showing because it does not involve any change in the allotment’s reference coordinates, and Oak Harbor is not part of any urbanized area. Seeid. -51 See id. -61 See Technical Exhibit at 1, 3. 3 Commission wJl approve an application to move a station’s transmitter site to a location closer to another station’s site than would be permitted under Section 73.207, so long as the re-locating station provides contour protection to the other station. For allotment purposes, Commission precedent has accepted a proposed reference site that is the existing site of a station seeking to change its community of license, even though that site satisfies the Commission’s technical requirements only through Section 73.215.21 In this precedent, the Commission approves the proposed change if “no new short-spacing would be created and no existing short-spacing exacerbated.” 81 To date, the Commission has used this policy only to authorize a community of license change by a station that became subject to Section 73.215 because of a processing request by another station. But the Commission likewise should not deny a quali6ed community its first local transmission service simply because a station wishing to be reassigned to that community previously had requested Section 73.215 processing in a permit application. At a minimum, there is no reason to deny a community its first local transmission service when the relevant station encompassed the proposed community with its projected 70 dsu contour (pursuant to Allocations’ uniform terrain, maximum facilities methodology) prior to the application in which the station requested Section 73.2 15 processing. -71 See Killeen and Cedar Park, Terns, Report and Order, 15 FCC Rcd 1945 (Allocations, 2000). -81 Id. An example demonstrates the point. Under the Commission’s current Section 73.215 allotment policy, a station that has never requested Section 73.215 processing could petition to become the first local transmission service for an eligible community (the “Community”) so long as its 70 dBu contour encompasses the Community (and it satisfies other technical standards). Once that change occurs, the station then could request Section 73.215 processing with respect to a second station as part of an application to move to a better transmitter site. Accordingly, the same station should be able to obtain Commission approval for the exact same requests in reverse order: first, the station requests Section 73.215 processing to move closer to another station; second, the station requests a change in its community of license to a community that had been encompassed by its predicted 70 dBu signal from both its pre-Section 73.215 and its current transmitter site. As each set of changes reach the same real world result, there is no non- arbitrary basis for permitting the first set of moves as consistent with the public interest but precluding the second as contrary to the public interest. Here, the Proposal does not involve a station that seeks to be re- assigned to a community that was outside its projected 70 dl3u contour from its pre- Section 73.215 site. WJZE, using the maximum facilities and uniform terrain projection method employed in the allocations process, provided 70 dBu coverage of Genoa from its pre-Section 73.215 site. 91 Also, the proposed re-allotment satisfies the actual test employed by the Commission in its precedent approving the ___ -91 See Technical Exhibit at 3. reallotment of Section 73.2 15-designated stations: the proposed Genoa re-allotment neither creates nor exacerbates any short spacing prohibited by Section 73.215. Accordingly, that WJZE requested Section 73.2 15 processing with respect to a single station - WMEEO, Fort Wayne, Inhana -in order to improve service several years ago, should not preclude the proposed reallotment, which does not exacerbate or create any short-spacing, and will not enable a station to be assigned to a community to which it could not have been assigned but for a previous Section 73.215 request by that station. Grant of the proposal advances the public interest. First, it satisfies one of the Commission’s key allotment priorities: it provides a deserving community its first local transmission service. Second, adoption of the proposal will confirm that the Commission does not intend to maintain an arbitrary disparity in the way it processes an allotment request depending on when a station might have requested Section 73.215 treatment, which also will ensure that all stations are able to maximize their service to the public. For all the foregoing reasons, the Commission should issue an appropriate Notice of Proposed Rule Making, and then approve the proposed modifications of the Table of Allotments and WJZE’s and WRVF’s licenses under Section 1.420(i) of the Commission’s Rules.

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