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KAYE SCHOLERLLP the Mcpherson Building 901 Fifteenth Street, NW Washington

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KAYE SCHOLERLLP the Mcpherson Building 901 Fifteenth Street, NW Washington mf3FILE COPY ORIGINAL KAYE SCHOLERLLP The McPherson Building 901 Fifteenth Street, NW Washington. DC 20005 202682-3500 Fax 202 682-3580 www.kayescholer.com Allan C. Moskowitz 202 682-3501 Fax 682-3580 [email protected] January 20,2004 Ms. Marlene H. Dortch Secretary Federal Communications Commission 445 - 12th Street, SW Washington, DC 20554 Re: MB Docket No. 03-23 1 RM-10818 Dear Ms. Dortch, On behalf of Megahertz Licenses, LLC, licensee of Radio Stations WWLY(FM), Huntingdon, Pennsylvania and WXMJ(FM), Mt. Union, Pennsylvania and petitioner in the above-referenced rulemaking docket, we are herewith submitting an original and four copies of its “Supplement to Comments and Reply” in response to the Notice of Prooosed Rulemaking in the above-referenced docket. Should any questions arise with respect to this matter, please contact the undersigned counsel. Respectfully submitted, KAYE SCHOLER LLP n Allan G. Moskowitz \ NO of Cnpiea rec’d Of+ List ABCDE 13060174 WPD NEW YORK CHicb.00 Lo5 ANGELES WASHINGTON, D C WEST PALM 0-CH FRANKFURT HONG KONG LoNooN SHANOHAII KAYE SCHOLERLLP Ms Marlene H. Dortch, Secretary 2 January 20,2004 bcc LynnDeppen 13060174 WPD NEW YORK CHICAOO LO5 ANGELES WA3HlNGroN. D C WEST PALM BEACH FRANKFURTHOW KONO LONDON S~nwo~nl BEFORE THE NeaetP1 Mummuttitftfiutts Mommissiott WASHINGTON, D C 20554 In the Matter of Amendment of Section 73.202(b), 1 MB Docket No. 03-231 Table of Allotments ) RM-I 081 8 FM Broadcast Stations. (Mt. Union, Huntingdon, Centre 1 Hall and South Williamsport, 1 Pennsylvania) To: Assistant Chief Audio Division SUPPLEMENTAL COMMENTS AND REPLY Megahertz Licenses, LLC, (“Megahertz”), licensee of Radio Stations WHUN(AM)/WWLY(FM), Huntington, Pennsylvania and WXMJ(FM), Mt. Union, Pennsylvania, by its attorney, respectfully supplements its “Comments” which were filed in response to the Notice of Prouosed Rulemaking (“NPRM”) DA 03-3552, released November 14, 2003 in the above-referenced docket. Megahertz herein also replies to the “Comments” of Dame Broadcasting, LLC (“Dame”) filed on January 5,2004. In support thereof, the following is respectfully shown: SuDplement to Comments 1. The Commission’s NPRM agreed that the proposed reallotment of Channel 258B1 would provide Centre Hall with its first local aural broadcast service and that the reallotment of 292A to Mt. Union would prevent the removal of the sole local service at that community. However, the NPRM noted that while Mt. Union is not part of the State College urbanized area, nor does the existing 70 dBu signal of Radio Station WXMJ(FM) cover any portion of an urbanized area, Centre Hall is located within the State College, Pennsylvania Doc Ill3060433 WPD Urbanized Area and the proposed allotment of Channel 258B1 at Centre Hall would allow the 70 dBu signal of WXMJ(FM) to cover 100% of that urbanized area. Consequently, the Commission requested and Petitioner submitted an analysis pursuant to the requirements of Fave and Richard -Tuck, 3 FCC Rcd. 5374 (1988) (“Tuck”) in determining whether Centre Hall is entitled to preference as a first local service.’ 2. Pursuant to Tuck, the Commission specified three (3) factors for evaluating a community’s independence in order to establish an allotment preference as a first local service: (1) signal population coverage; (2) the size and proximity of the suburban community relative to the metropolis; and (3) the interdependence of the suburban community with the metropolis. Of these three (3) factors, the Commission has determined that the most significant is the third. 3. First, despite the fact that WXMJ(FM)’s 70 dBu signal will cover 100 percent of the State College Urbanized Area, this has not been considered an impediment in previous cases. See biter and Hobe Sound. Florida, 12 FCC Rcd. 3570 (1997). With respect to size and proximity, State College has 71,301 persons while Centre Hall has 1,079. Again, however, such percentages have not precluded favorable consideration as a first local service. See, e.g., & Newcastle and Watonea. Oklahoma, 11 FCC Rcd. 16896 (1996) (4,214 versus 444,719 persons in the Urbanized Area); Scotland Neck and Pinetous. North Carolina, 7 FCC Rcd. 5113 (1992), Detroit Lakes and Bamesville, Minnesota, and Enderlin. North Dakota, 16 FCC Rcd. 22581 (2001). 1 Petitioner’s “Comments” indicated that Centre Hall is not within the State College Urbanized Area. However, Petitioner erroneously argued that, as a result, a Tuck showing was unnecessary. In recognition of Headland, Alabama and Chattachochie, Florida, 10 FCC Rcd. 10352 (1995), Petitioner withdraws its objection. Doc 1113060433 WPD 2 4. Megahertz hereby submits additional information documenting the independence of Centre Hall as a community warranting an allotment preference as a first local service. Other than the general demographic information from the 2000 US.Census that approximately 65.7% of Centre Hall’s population is in the labor force and that their mean (average) travel time to work is approximately 25.9 minutes, Petitioner has been unable to find any hard data regarding where residents work. In lieu of any other information, Petitioner conducted an informal survey of area employers. The Borough of Centre Hall is located in Potter Township which is in turn is located in Centre County. State College is located in Centre County but is not located in Potter Township. Attached as Exhibit 1 is the Declaration of Amber Daughtry. an Account Executive with commonly owned Radio Station WBHV(FM), State College, Pennsylvania, who conducted a survey of 35 businesses, all located in Potter Township and some of which are located in Centre Hall. It is clear from the survey that, at least of the 35 businesses surveyed, none of which are in State College hut are in either the Borough of Centre Hall or close by in Potter Township, 36% of their employees are residents of the Borough of Centre Hall. Consequently, a sizeable percentage of Centre Hall’s residents do not rely on State College for employment. Megahertz submits that this evidence is sufficient to support a favorable finding on this factor. See, Chillicothe and Ashville. Ohio, DA 03-3443, Released October 31,2003; and Anniston and Ashland, Alabama and Colleee Park. Covington. Milledeeville and Social Circle. Georgia, 16 FCC Rcd. 341 1 (M.M. Bureau 2001). (16 percent ofworkforce employed in a community sufficient to support a favorable finding on this factor.) 5. While Centre Hall does not its own a newspaper, the community does have its own website, “www centrehall.com”, which advertises town information, attractions, DOC #I3060433 WPD 3 organizations and businesses. See Exhibit 2. This fact is somewhat favorable with respect to factor 2. 6. With respect to the 3rd factor, perception of community leaders and residents, attached hereto as Exhibit 3 are letters from business leaders, clergymen and residents of Centre Hall attesting to the fact that these individuals perceive Centre Hall as an independent community. Moreover, Megahertz has amply documented the fact that the Borough of Centre Hall has an elected seven member council, an elected mayor, provides water to the community, has its own volunteer fire company, planning commission, elementary school, library and in conjunction with the township of Potter, provides sewage service to the community. Moreover, as previously documented, the Borough of Centre Hall was incorporated in 1885 but was established decades before that, thereby satisfying factor 4. Attached in Exhibit 3, as just one more example of the civic organizations in Centre Hall, are selected pages from The Centre Hall Garden Club’s 2002-2003 Booklet. The Garden Club was organized in 1938 and is still going strong! These factors clearly support a determination that residents of Centre Hall perceive their community as independent. See, Chillicothe and Ashville, Ohio, m,see also Detroit Lakes et al., suma. 7. Similarly, factor 5 supports the determination that Centre Hall is independent of the State College Urbanized Area, in that it has its own zip code and local post office. See, Detroit Lakes. et al.. m. 8. The availability of commercial establishments, health facilities and transportation systems also supports a finding of independence with respect to factor 6. Attached hereto as Exhibit 4 are copies of pictures of numerous local commercial establishments. As previously documented, there are a variety of commercial establishments including restaurants, a pharmacy, hardware store, etc. and a number of churches. Moreover, the residents of Centre Hall do not rely on the transportation system of any municipality in that there is QQ transportation system in Centre County and, in fact, there is no bus route between Centre Hall and State College. See, Chillicothe and Ashville. Ohio, ma. 9. Since Centre Hall has no separate newspapers and is part of the State College Abritron Metro Market, it would appear that Centre Hall and State College are part of the same advertising market. However, the facts certainly support a favorable finding regarding the 8th factor, the extent to which Centre Hall relies on the State College for municipal services. It does not. As previously noted, Centre Hall does not rely on State College for any municipal service, in that Centre Hall has its own municipal services, is. water, fire and rescue, library, etc., and for those which it lacks, it relies on Centre County 10. The submitted evidence requires that the Commission make a favorable disposition on the most important of the && issues, i.e., the independence of Centre Hall. Of the eight factors which the Commission considers with respect to the independence of a “suburban community”, Centre Hall has satisfied at least six, which solidly supports a finding that Centre Hall is wholly independent of the State College Urbanized Area and entitled to consideration as a first local service. Realv to Dame 11. Dame is the parent company of the licensees of Radio Stations WBUS(FM), Boalsburg, Pennsylvania: Radio Station WRSC(AM), State College, Pennsylvania; WQWK(FM), University Park, Pennsylvania; WJHT(FM), Port Matilda, Pennsylvania; and WBLF(AM), Bellefonte, Pennsylvania.
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