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Commission Denies Review To Access.1 - Magnolia, Arkansas

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Released: August 16, 2013

Federal Communications Commission

FCC 13-114

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)
Amendment of Section 73.202(b),
)
MB Docket No. 02-199
Table of Allotments,
)
RM-10514
FM Broadcast Stations.
)
(Magnolia, Arkansas, and Oil City,
)
Louisiana)
)

MEMORANDUM OPINION AND ORDER

Adopted: August 14, 2013

Released: August 16, 2013

By the Commission:
1.

Background.

The Commission has before it an Application for Review filed on
March 25, 2004, by Access.1 Louisiana Holding Company, LLC ("Access.1"), licensee of several radio
stations in the Shreveport, Louisiana, Urbanized Area1 (the "AFR") and various related pleadings.2
Access.1 seeks review of the January 30, 2004, decision3 of the Media Bureau ("Bureau"), denying
Access.1's Petition for Reconsideration of the Report and Order in this allocations proceeding.4 The
Magnolia R&O granted a Petition for Rule Making filed by Columbia Broadcasting Company, Inc.
("Columbia"), the predecessor of Cumulus Licensing, LLC ("Cumulus") as licensee of Station
KQHN(FM) (formerly KVMA-FM) (the "Station"),5 for a class downgrade and change of community for

1 Access.1 is the licensee of Stations KBTT(FM), Haughton, Louisiana, KSYR(FM), Benton, Louisiana,
KOKA(AM), Shreveport, Louisiana, KDKS-FM, Blanchard, Louisiana, KLKL(FM), Minden, Louisiana, and
KTAL-FM, Shreveport, Louisiana/Texarkana, Texas.
2 These pleadings include: (1) an Opposition to Application for Review, filed on April 9, 2004, by Columbia
Broadcasting Company, Inc., the former licensee of Station KQHN(FM) (formerly KVMA-FM), Magnolia,
Arkansas; (2) a Reply filed on April 22, 2004, by Access.1; (3) a Motion for Leave to File Supplement to
Application for Review and a Supplement to Application for Review (the "Supplement") filed on February 9, 2005,
by Access.1; (4) an Opposition to Motion for Leave to File Supplement filed on February 28, 2005 by Cumulus
Licensing, LLC; and (5) a Reply to Opposition filed on March 10, 2005, by Access.1.
3 See Magnolia, Arkansas, and Oil City, Louisiana, Memorandum Opinion and Order, 19 FCC Rcd 1553 (MB 2004)
("Magnolia Reconsideration Decision").
4 See Magnolia, Arkansas, and Oil City, Louisiana, Report and Order, 18 FCC Rcd 8542 (MB 2003) ("Magnolia
R&O"
).
5 Cumulus acquired control of Columbia on January 30, 2004, pursuant to Commission consent. See File No.
BTCH-20020522AAH. Thereafter, Cumulus became the assignee of the Station by grant of a short-form
assignment application. See File No. BALH-20041210AAP. For purposes of simplicity, unless otherwise noted, the
licensee of the Station will be referred to herein as Cumulus. At the request of Cumulus, in 2005, the Commission
further changed the community of license of the Station from Oil City to Waskom, Texas. See Dubach,
Natchitoches, Oil City, and Shreveport, Louisiana, and Groesbeck, et al., Texas,
Report and Order, 20 FCC Rcd
19495 (2005).

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FCC 13-114

the Station from Channel 300C1 at Magnolia, Arkansas, to Channel 300C2 at Oil City, Louisiana.6 The
Bureau concluded that the relocation of the Station to Oil City did not constitute a "move-in" to the
Shreveport, Louisiana, Urbanized Area because Cumulus had demonstrated under the then-existing Tuck
test7 that Oil City is sufficiently independent of the Shreveport Urbanized Area to warrant a first local
service preference.8 The Bureau also declined to consider, in the context of this proceeding, Access.1's
request that the Commission clarify and revise its procedures regarding "move-ins" to urbanized areas,
finding that such a request should be made in a separate rule making petition.9
2.
On review, Access.1 argues that the Bureau erred: (1) in determining that Oil City was
independent of Shreveport under the Tuck test; (2) in declining to adopt Access.1's proposed processing
policy of requiring a certification by the community of license modification proponent that it will not
select a site that would provide substantial service to the urbanized area; (3) in finding that the proposed
reallotment would serve the public interest because approximately 2,000 persons would be reduced from
five to four aural services and Magnolia would be left only with an AM station with limited nighttime
service; (4) in finding that the relocation of the Station to a more urbanized area would result in a
preferential arrangement of allotments;10 and (5) in not adequately addressing its allegation that Cumulus
had engaged in misrepresentation and lacked candor in claiming a first local service priority at Oil City
and then, after approval of the reallocation, filing an application11 for modified Station facilities that
would place a 70 dBu signal over the entire Shreveport Urbanized Area.12 Access.1 also argues that the
Commission's Tuck policy in general is arbitrary and capricious because it is not supported by any
measurable method of determining local program service and is inconsistent with the Commission's
newly adopted Arbitron radio market definition for the multiple ownership rules.13
3.

Discussion.

We have carefully reviewed the Magnolia Reconsideration Decision and the
full record of this rule making proceeding. We conclude that Access.1 has not demonstrated that the
Bureau erred with respect to the first three issues noted above that it raises in its AFR. The Magnolia

6 See Magnolia R&O, 18 FCC Rcd at 85443.
7 See Faye and Richard Tuck, Inc., Memorandum Opinion and Order, 3 FCC Rcd 5374 (1988) (establishing eight
factors to determine whether a suburban community is independent of a nearby central city).
8 See Magnolia Reconsideration Decision, 19 FCC Rcd at 1555, 5-7.
9 Id., 19 FCC Rcd at 1556 n.6.
10 See Amendment of the Commission's Rules Regarding Modification of FM and TV Authorizations to Specify a
New Community of License,
Report and Order, 4 FCC Rcd 4870 (1989) ("Community of License R&O"), recon.
granted in part,
Memorandum Opinion and Order, 5 FCC Rcd 7094 (1990) ("Community of License MO&O").
11 File No. BPH-20030610ADI ("Oil City Modification Application").
12 In its Supplement, Access.1 argues that the January 13, 2005 filing by Cumulus of a Request for Special
Temporary Authority ("STA Request") to operate Station KQHN(FM) on a different channel and at reduced power
to prevent interference to U.S. Air Force equipment at nearby Barksdale Air Force Base provides further evidence of
Cumulus's lack of candor in seeking a first local service priority at Oil City. This allegation is discussed at 7-8,
infra. It also questions for how long the Station's reduced service to Oil City, which Cumulus acknowledges in the
STA Request to be "deficient", will continue. This issue was subsequently mooted when, at Cumulus's request, the
Commission changed the Station's community of license to Waskom, Texas. See Dubach, Natchitoches, Oil City,
and Shreveport, Louisiana, and Groesbeck, et al., Texas,
Report and Order, 20 FCC Rcd 19495, 19500 (2005).
Therein, the Commission noted that its action would be subject to the resolution of the AFR in this proceeding. Id.
at 19499, n.19.
13 See AFR at 20-23.
2

Federal Communications Commission

FCC 13-114

Reconsideration Decision and the Magnolia R&O sufficiently addressed the issues raised, and we uphold
those decisions for the reasons stated therein.14
4.
We believe, however, that some additional discussion is warranted regarding the
remaining issues raised by Access.1 in its AFR. First, Access.1 claims that the Bureau failed to prevent
the migration of Station KQHN(FM) from a rural community to an urban area as it maintains is required
by the analysis announced in the Commission's Community of License proceeding.15 We disagree and
find that the Bureau appropriately applied the then-applicable Community of License procedures in
finding that that Oil City is an independent community from the Shreveport Urbanized Area. Contrary to
Access.1's allegations, the overall purpose of the analysis established in the Community of License
proceeding was not to prevent the migration of rural stations to urban communities, as it maintains,16 but
to encourage "changes to the tables of allotments that would result in a better overall arrangement of
allotments."17 In so stating, the Commission recognized that "an artificial or purely technical
manipulation" of its policies could result in a migration of stations from rural to urban areas.18 To prevent
such manipulation, the Commission directed the staff to apply the Tuck test to safeguard against such
manipulation. That is exactly what occurred in this case. Cumulus submitted a Tuck showing, which was
reviewed by the staff and, based in part on that review, the Bureau approved the proposal in the
Magnolia Reconsideration Decision. Accordingly, we find that the Bureau's disposition of the Petition
for Rule Making was fully consistent with the analysis set forth in Community of License proceeding.
5.
Further, Access.1 argues that Cumulus engaged in misrepresentation and/or has shown a
lack of candor as to whether the proposal would be a "move-in" to the Shreveport Urbanized Area and
that the Bureau erred in dismissing this argument as "frivolous."19 Misrepresentation involves false
statements made to the Commission with intent to deceive.20 In this case, Access.1 has not alleged any
specific "false statements" by Cumulus. On the contrary, the Petition for Rule Making specified
allotment reference coordinates of a theoretical fully spaced21 site from which the proposed new
community of license could receive adequate service from the Station.22 The specification of reference

14 The Magnolia Reconsideration Decision did not accept Access.1's Second Supplement to its Petition for
Reconsideration, filed on January 28, 2004, in which Access.1 challenged, for the first time, Cumulus's Tuck
showing, filed on July 29, 2003. The Bureau explained that the Second Supplement was not authorized under
Section 1.429(d) of the Rules and that, in any event, it contained no new information of decisional significance. See
Magnolia Reconsideration Decision,
19 FCC Rcd at 1556 n.2. We concur with these Bureau determinations and
agree that dismissal of that pleading was appropriate. As a separate and independent ground for our decision, we
agree with the Bureau on the merits that a majority of the eight Tuck factors are present here factor 1 (percentage
of working-age residents who work in the community); factor 2 (newspapers and other media); factor 3 (community
identity); factor 4 (elected government); factor 5 (post office and zip code); and factor 8 (fire and police protection).
Partial credit was warranted for factor 6 (businesses, medical facilities, mass transit) and factor 7 (advertising
market). Access.1 contends that this case is similar to Geenfield and Del Rey Oaks, Report and Order, 11 FCC Rcd
12681 (MMB 1196) ("Greenfield"). We disagree. Unlike here, in Greenfield, the proposed new station community
did not satisfy a majority of the Tuck factors.
15 See AFR at 11, citing Community of License R&O, 4 FCC Rcd at 4873.
16 AFR at 11.
17 Community of License R&O, 4 FCC Rcd at 4872.
18 Community of License MO&O, 5 FCC Rcd at 7096.
19 See AFR at 13-14.
20 See Fox River Broadcasting, Inc., Order, 93 FCC 2d 127, 129 (1983).
21 See 47 C.F.R. 73.207.
22 See 47 C.F.R. 73.315.
3

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coordinates in an FM allotment petition for rule making is not an implicit pledge by the petitioner to build
at that site. Indeed, under our then-existing procedures, a rule making petitioner was allowed to specify a
different transmitter site at the application stage.23 Frequently, different sites are specified in the
implementing application because a petitioner may not know the ultimate application site at the rule
making stage or because it may desire to specify a short-spaced site under Section 73.215, which is not
allowed at the rule making stage. Consistent with this approach, Cumulus specified a different transmitter
site in its implementing application. Thus, absent any extrinsic evidence to the contrary, which Access.1
has failed to produce, a misrepresentation allegation based on the specification of a different application
site is speculative.
6.
Access.1's lack of candor argument, based on Cumulus's decision not to specify the
reference coordinates in the construction permit application, fails for similar reasons. As noted above,24
reference coordinates are used solely for technical purposes. Thus, the plan to propose a different
transmitter site, including one that would permit service to the entire Shreveport Urbanized Area, is fully
consistent with the proffered reference coordinates, even if that plan was in place at the time of the filing
of the initial Oil City Petition for Rule Making. Nor does the existence of such a plan put at issue
Cumulus's pledge to serve Oil City. The Commission has consistently held that it will presume that an
applicant will meet its local programming obligations and that the alleged failure to do so is more
appropriately addressed in the context of a station's license renewal application.25 On these facts, we find
no "concealment, evasion [or] other failures to be fully informative"26 by Cumulus and no basis on which
to infer a Cumulus motive to engage in such conduct. Accordingly, we conclude that Access.1's lack of
candor allegation is without merit.
7.
To further support its lack of candor allegation, Access.1 claims that Cumulus's need to
file its STA Request was foreseeable, that Cumulus was aware that its proposed facility would provide
deficient service to Oil City and was part of a plan to reallot Station KQHN(FM) to the Shreveport
market.27 It cites language in a 1996 letter from the Federal Aviation Administration providing notice
that any future change in transmitter site would require FAA approval and notes that Cumulus did not
request such FAA approval in connection with its application to implement the rule making change. In
opposition, Cumulus submits a declaration from its Director of Engineering, explaining that the
interference problem was completely unforeseeable, a result of the radio receivers used in Air Force
aircraft that operated out of the Barksdale Air Force Base.28 Cumulus also contends that its STA Request
was a perfectly reasonable effort to keep the station on the air in light of its notification of the interference

23 See, e.g., Saltville, Virginia, and Jefferson, North Carolina, Memorandum Opinion and Order, 15 FCC Rcd
24296, 2497 (2000) (permitting reallotment and upgrade of an FM station's channel class at a specific transmitter
site that was different from the theoretical reference coordinates for the channel). While the Magnolia proceeding
was pending, the Commission amended its Rules to allow a licensee or permittee to change its community of license
by filing a minor modification application, instead of a petition for rule making. See Revision of Procedures
Governing Amendments to FM Table of Allotments and Changes of Community of License in the Radio Broadcast
Services,
Report and Order, 21 FCC Rcd 14212 (2006), recon. pending. Under this new procedure, an applicant
specifies both a theoretical "allotment" site and an application site at the same time in its application.
24 See supra, n.21 and n.22.
25 See Suburban Community Policy, the Berwick Doctrine and the De Facto Reallocation Policy, Report and Order,
93 FCC 2d 436 (1983); WBBK Broadcasting Inc., Memorandum Opinion and Order, 15 FCC Rcd 5906 (2000);
William Clay, Letter, 23 FCC Rcd 8412, 8420 (MB 2008).
26 Fox River Broadcasting, Inc., 93 FCC 2d 127, 129 (1983).
27 See Access.1 March 10, 2005, Reply at 1-2.
28 See Cumulus February 28, 2005, Opposition to Motion for Leave to File Supplement, Ex. 4, Declaration of Gary
Kline ("Kline Declaration").
4

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problem from the Commission. Finally, it argues that ensuing events are not probative of Cumulus's
intent.29
8.
We find that Access.1 has not raised a substantial and material question of fact regarding
Cumulus's candor. By proposing to side-mount on an existing, registered tower, Cumulus was not
required to request FAA approval merely because it specified a new channel.30 In these circumstances,
Cumulus's surprise at the FAA objection is reasonable.31 We also find credible the unrebutted declaration
of Cumulus's Director of Engineering. We agree with his statement that this sort of FAA objection is an
extremely rare event.32 Finally, we agree with Cumulus that the steps it took to keep the Station on the air
by relocating it to a new community were both appropriate and reasonable.33
9.
Access.1's criticism appears to be that the former Commission processing policy could
be manipulated by an applicant proposing a reallotment from which it can cover 100 percent of an
urbanized area but proposes a transmitter site from which it will not cover the urbanized area.34 However,
the Commission subsequently revised its policies to eliminate this potential problem and presumes that a
proposal should be treated as a "move-in" to an urbanized area if it would or could serve 50 percent or
more of an urbanized area. In such a case, the applicant may rebut that conclusion by making a Tuck
showing with regard to its proposal.35 In any event, as noted above, Cumulus submitted such a showing,
during the reconsideration stage of this rule making proceeding, which underwent the Bureau's scrutiny
to determine if its application would be a "move-in" to the Shreveport Urbanized Area, the Bureau
concluding that it was not.36 Under these circumstances, we conclude that no misrepresentation or lack of
candor occurred.37
10.
Finally, we address Access.1's contention that the Commission's then-existing Tuck
policy in general is arbitrary and capricious. This argument is procedurally defective because the Bureau
was not afforded an opportunity to pass on it, and we will, therefore, dismiss it.38

29 See id. at 2-4.
30 See File No. BPH-20030610ADI, Section III, Question 5.
31 The cited language in the FAA's 1996 No Hazard Determination is of no probative value. This is standard
language contained in all No Hazard Determinations and therefore would not have provided notice to Station
KQHN(FM) of a particular interference issue, such as that presented by the Barksdale aircraft equipment.
32 See Kline Declaration; see also Pacific Junction, Iowa, Report and Order, 26 FCC Rcd 16253 (MB 2010).
33 See Dubach, Natchitoches, Oil City and Shreveport, Louisiana, and Groesbeck, et al., Texas, supra. The
Station's reallotment to Waskom, Texas, is now final.
34 See AFR at 16.
35 See Policies to Promote Rural Radio Service and to Streamline Allotment and Assignment Procedures, Second
Report and Order, First Order on Reconsideration, and Second Further Notice of Proposed Rule Making, 26 FCC
Rcd 2556, 2572, 2577, 30, 38 (2011) (subsequent history omitted) ("Rural Radio").
36 See Cumulus July 29, 2003, Opposition to Petition for Reconsideration and Opposition to Motion for Stay at 5-10.
37 See Valley Broadcasting Company, Decision, 4 FCC Rcd 2611, 2617 (Rev. Bd. 1989) ("when accurate
information previously supplied by a party is a matter of open Commission record, an intent to categorically
misrepresent . . . is difficult to find"), citing Intercontinental Radio Inc., Decision, 98 FCC 2d 608, 639 (Rev. Bd.
1984).
38 See 47 C.F.R. 1.115(c) ("[n]o application for review will be granted if it relies on questions of fact or law upon
which the designated authority has been afforded no opportunity to pass"). We note that the Bureau did not conduct
a Tuck analysis in the Magnolia R&O. By letter dated January 20, 2004, the Bureau first requested Columbia and
Cumulus to submit such a showing as a result of their filing of the Oil City Modification Application that proposed
Station facilities that would cover the Shreveport Urbanized Area. This request came after Access.1 had filed its
(continued....)
5

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11.
ACCORDINGLY, IT IS ORDERED, that the Application for Review filed by Access.1
Louisiana Holding Company, LLC IS DENIED, pursuant to Section 5(c)(5) Communications Act of 1934,
as amended,39 and Section 1.115(g) of the Commission's Rules.40
12.
IT IS FURTHER ORDERED, that the Motion for Leave to File Supplement to
Application for Review and the Supplement to Application for Review filed by Access.1 Louisiana
Holding Company, LLC ARE DISMISSED as moot.

FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
(Continued from previous page)
Petition for Reconsideration. Nevertheless, although Access.1 responded with its January 28, 2004, "Second
Supplement to Petition for Reconsideration" attacking the specific Tuck showing submitted by Columbia and
Cumulus as not demonstrating the independence of Oil City from the Shreveport Urbanized Area, it failed to raise
before the Bureau the arguments about the general appropriateness of the Tuck analysis that it now presents to the
Commission.
39 47 U.S.C. 155(c)(5).
40 47 C.F.R. 1.115(g).
6

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