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D & H Media, LLC, Station KWKJ(FM), Windsor, MO

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Released: August 2, 2013

Federal Communications Commission

Washington, D.C. 20554

August 2, 2013

DA 13-1699


In Reply Refer To:

1800B3-SJW
Released: August 2, 2013
Mr. James Allen Patten
205 Industrial Drive
Windsor, MO 65360
Gregg P. Skall, Esq.
Womble Carlyle Sandridge & Rice, LLP
1200 Nineteenth Street N.W.
Suite 500
Washington, DC 20036
In re:
KWKJ(FM), Windsor, Missouri
D & H Media, LLC
Facility ID No. 39629
File No. BRH-20120926ADF

Informal Objection

Dear Mr. Patten and Mr. Skall:
We have before us: (1) the referenced application ("Renewal Application") of D & H Media,
LLC ("Licensee") to renew its license for KWKJ(FM), Windsor, Missouri ("Station"), and (2) the
January 7, 2013, Informal Objection ("Objection") to that application filed by James Allen Patten
("Patten").1 For the reasons set forth below, we deny the Objection and grant the Renewal Application.

Background.

Previously, the Station was licensed to serve Warsaw, Missouri.2 On May 4, 2001,
the Commission granted Licensee's Petition for Rule Making and modified the Station's community of
license from Warsaw to Windsor, Missouri.3 Licensee subsequently constructed transmission facilities to
serve Windsor and received a license to operate with those facilities in 2002.4
On September 26, 2012, Licensee timely filed the Renewal Application. On January 7, 2013,
Patten filed the Objection, expressing concern that the Station has not operated in the public interest.5 He
presents three main arguments: (1) the Station's main studio does not comply with Section 73.1125 of the
Commission's Rules ("Main Studio Rule");6 (2) the Station caters to the residents of Warrensburg,
Missouri, rather than Windsor, Missouri;7 and (3) the change of the Station's community of license from

1 Licensee filed an Opposition to Informal Objection ("Opposition") on February 11, 2013.
2 Caro and Cass City, Michigan; Warsaw and Windsor, Missouri, Notice of Proposed Rule Making, 16 FCC Rcd
2908, 2908 (MB 2001).
3 Caro and Cass City, Michigan; Warsaw and Windsor, Missouri, Report and Order, 16 FCC Rcd 9461, 946263
(MB 2001).
4 See File No. BLH-20020313ABA, granted on May 10, 2002.
5 Objection at 1.
6 Id. See also 47 C.F.R. 73.1125.
7 Objection at 13.

Warsaw to Windsor reduces the chances of establishing a low-power FM ("LPFM") radio station in
Windsor.8 Patten urges the Commission to find that the Station did not act in the public interest and, thus,
deny the Renewal Application.9
In the Opposition, Licensee first argues that the Station has not violated the Main Studio Rule10
because the Station's main studio lies within 25 miles of Windsor's post office.11 Next, Licensee argues
that the Station serves Windsor residents with programming responsive to the Windsor community.12
Licensee emphasizes that licensees have broad discretion in choosing programming to serve the public
interest.13 Finally, Licensee contends that the Station's designation of Windsor, Missouri, as its
community of license does not hinder that community's ability to acquire an LPFM license and that
claiming otherwise is irrelevant in any case.14 Licensee concludes that the Objection fails to establish a
substantial and material question of fact as to whether granting the Renewal Application would not serve
the public interest.15

Discussion.

Informal objections to license renewal applications must, pursuant to Section 309(e)
of the Communications Act of 1934, as amended ("Act"), provide properly supported allegations of fact
that, if true, would establish a substantial and material question of fact that grant of the application would
be prima facie inconsistent with Section 309(k) of the Act,16 which governs our evaluation of an
application for license renewal. Specifically, Section 309(k)(1) provides that we are to grant the renewal
application if, upon consideration of the application and pleadings, we find that: (1) the station has served
the public interest, convenience, and necessity; (2) there have been no serious violations of the Act or the
Rules; and (3) there have been no other violations which, taken together, constitute a pattern of abuse.17
If, however, the licensee fails to meet that standard, the Commission may deny the application -- after

8 Id. at 1.
9 Id. at 45.
10 Opposition at 23.
11 Id. at 2; Opposition, Exhibit A. See 47 C.F.R. 73.208(a)(1)(iv), 73.1125(a)(3).
12 Opposition at 3 (citing Opposition, Declaration of Greg Hassler, Attachment 1).
13 Id. at 4 (citing WSKG Public Telecommunications Council, 23 FCC Rcd 1259 (MB 2008); WUFT-FM,
Gainesville, FL
, 21 FCC Rcd 6957 (MB 2006)) (other citations omitted).
14 Opposition at 3. Licensee also argues that it satisfied the Section 307(b) requirements for changing the Station's
community of license to Windsor, Missouri. Opposition at 4. See 47 U.S.C. 307(b); Modification of FM and TV
Authorizations to Specify a New Community of License
, Report and Order, 4 FCC Rcd 4870 (1989), recon. granted
in part
, Memorandum Opinion and Order, 5 FCC Rcd 7094 (1990). However, the Informal Objection to the
Renewal Application cannot serve as a basis for revisiting the decision to license the Station as a Windsor station
that decision became a final order many years ago. Instead, we need only examine Patten's allegation regarding
availability of spectrum for future LPFM licensing as part of our Section 309(k) analysis. See infra text
accompanying notes 1618.
15 Opposition at 5. See 47 U.S.C. 309(k)(1).
16 See, e.g., WWOR-TV, Inc., Memorandum Opinion and Order, 6 FCC Rcd 193, 197 n.10 (1990), aff'd sub nom.
Garden State Broadcasting L.P. v. FCC
, 996 F.2d 386 (D.C. Cir. 1993), rehearing denied (Sep. 10, 1993); Area
Christian Television, Inc.,
Memorandum Opinion and Order, 60 RR 2d 862, 864 (1986) (informal objection must
contain adequate and specific factual allegations sufficient to warrant the relief requested).
17 47 U.S.C. 309(k)(1). The renewal standard was amended to read as described by Section 204(a) of the
Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (1996). See Implementation of Sections 204(a)
and 204(c) of the Telecommunications Act of 1996 (Broadcast License Renewal Procedures)
, Order, 11 FCC Rcd
6363 (1996).
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notice and opportunity for a hearing under Section 309(e) of the Act -- or grant the application "on terms
and conditions that are appropriate, including a renewal for a term less than the maximum otherwise
permitted."18
With respect to Patten's first argument, the Main Studio Rule requires that each broadcast station
operate its main studio either: (1) within the station's community of license; (2) within the contour of any
other broadcast station licensed to its community; or (3) within 25 miles of the reference points of the
center of its community of license, as described in Section 73.208(a)(1) "whichever it chooses."19 We
have confirmed that the distance from the post office20 to the Station's main studio is 19.9 miles; thus, we
agree with Licensee that the Station complies with the Main Studio Rule.
Patten's second argument is that Licensee's programming "focus[es] . . . entirely on
Warrensburg," Missouri, instead of the neighboring community of Windsor.21 In support, Patten alleges
that the Station's website, including its "local news reports, local sports reports, community calendar, or
any [other] area," does not mention "Windsor, Missouri."22 He also alleges that the programming does
not mention "Windsor, Missouri."23 Patten concludes that Licensee has essentially "substitut[ed]
Warrensburg for Warsaw," the previous community of license, and questions whether that substitution
serves the public interest of Windsor and constitutes a "preferential arrangement of allotments."24
Licensees have a duty to respond to local needs and issues by choosing appropriate
programming.25 They also have broad discretion to determine, in good faith, the issues that they believe
to be of concern to the communities that they serve and the manner in which to address those issues.26
The Commission will not intervene unless a licensee has abused this discretion and has consistently and
unreasonably ignored matters of public concern.27 For instance, we may consider whether a licensee
offers such nominal levels of issue-responsive programming as to have defaulted on this core obligation.28
However, Patten has failed to provide specific allegations of fact calling for further inquiry as to whether

18 47 U.S.C. 309(k)(2), 309(k)(3).
19 47 C.F.R. 73.1125(a); Review of the Commission's Rules Regarding the Main Studio and Local Public
Inspection Files of Broadcast Television and Radio Stations
, Report and Order, 13 FCC Rcd 15691, 15694 (1998)
("Main Studio R&O"), recon. granted in part, 14 FCC Rcd 11113 (1999). In this context, these reference points are
generally the coordinates listed in the United States Department of Interior publication entitled Index to the National
Atlas of the United States
. Main Studio R&O, 13 FCC Rcd at 15694 n.17 (citing 47 C.F.R. 73.208(a)(1)). If a
community's reference coordinates are not listed in the Atlas, however, the coordinates of the main post office serve
as an alternative. Id.
20 See 47 C.F.R. 73.208(a)(1)(iv).
21 Objection at 13.
22 Id. at 2.
23 Id.
24 Id.
25 See, e.g., WTMX(FM), Skokie, IL, Letter, 22 FCC Rcd 6568, 6570 (MB 2007) ("WTMX").
26 Time-Life Broadcast, Inc., Memorandum Opinion and Order, 33 FCC 2d 1081, 1092 (1972). See also Office of
Communication of United Church of Christ v. FCC
, 707 F.2d 1413, 1431 (D.C. Cir 1983), and Broadcast Localism,
Notice of Inquiry, 19 FCC Rcd 12425, 12429 (2004).
27 Columbia Broadcasting System, Inc., Memorandum Opinion and Order, 51 FCC 2d 273, 280 (1975).
28 See, e.g., Philadelphia Radio Stations, Memorandum Opinion and Order, 5 FCC Rcd 3487, 348788 (1990).
3

Licensee has abused its broad discretion or otherwise failed to meet this programming obligation.29 His
one unsupported and conclusory phrase that the programming does not mention "Windsor, Missouri,"
does not provide the quantum of evidence necessary to establish prima facie that grant of the Application
would be contrary to the public interest.30 Moreover, Patten has not challenged Licensee's evidence
showing that the Station has chosen programming responsive to issues faced by Windsor residents. For
example, the Station broadcasts local Windsor news and weather reports, hosts regular discussions with
the U.S. Representative from Missouri's 4th Congressional District and other local public officials, airs the
Windsor High School varsity athletic scores and provides coverage of the Windsor Basketball
Tournament. In contrast, we find information about the Station's website to be far less probative in
determining whether the Licensee has fulfilled its on-air obligation to serve the community of Windsor.31
Patten also expresses concern that the Station's official station identification lists Windsor,
Missouri, alongside "several other local towns."32 But as Licensee notes,33 Section 73.1201(b)(2) permits
the Station to name communities other than the community of license in the Station's official station
identification, as long as the community of license precedes the other communities.34 Thus, the fact that
the Station lists other communities alongside Windsor, Missouri, in its official station identification is no
indication that the Station is not complying with Section 73.1201 or otherwise is failing to serve the
public interest.35
Finally, we reject Patten's third argument, which is that the Station's operation as a full-service
station licensed to Windsor, Missouri lessens that community's chances of acquiring a low-power FM
radio license.36 Within the context of this Renewal Application, Section 309(k) of the Act expressly
prohibits us from considering whether other potential licensees would better serve the public interest,

29 See Area Christian Television, Inc., Memorandum Opinion and Order, 60 RR 2d 862, 864 (1986); WSIA(FM),
Staten Island, New York
, Letter, 22 FCC Rcd 4890, 4894 (MB 2007). Patten also alleges that the Windsor
community is unaware that the Station's community of license is, in fact, Windsor. Objection at 3. He claims that
he "could provide plenty of anecdotal evidence" (but does not) and also notes that Windsor's official website does
not list the Station. Id. However, these allegations similarly do not raise a substantial and material question of fact
calling for further inquiry into whether the Station serves Windsor.
30 See Objection at 2.
31 See KXLG(FM), Milbank, SD, Letter, 26 FCC Rcd 15567, 15570 n.27 (MB 2011) (citing cases in which the staff
found that content on a website was not dispositive and did not raise a substantial and material question of fact that
would warrant further consideration).
32 Objection at 2.
33 Opposition at 3.
34 See 47 C.F.R. 73.1201(b)(2). The Commission decided to amend Section 73.1201(b)(2) to allow "a broadcaster
to include in its official station identification the name of any community or communities that it selects, irrespective
of the level of signal coverage provided to such communities." In the Matter of Amendment of Section
73.1201(b)(2) of the Commission's Rules--Additional City Identification
, Report and Order, 95 FCC 2d 1253, 1258
59 (1983) ("Additional City Identification R&O"), recon. denied, 98 FCC 2d 787 (1984). Furthermore, the
Commission found that this change would not affect a station's "primary service obligation to its community of
license" when considering a license renewal. Id.
35 See 47 C.F.R. 73.1201(b)(2); Additional City Identification R&O, 95 FCC 2d at 125859. See also, e.g.,
WTMX, 22 FCC Rcd at 6571 n.22 (applying the rule to find as acceptable an announcement naming an additional
city after the community of license).
36 See Objection at 34.
4

convenience, or necessity.37 We therefore cannot deny the Application because that Station uses spectrum
that a potential LPFM applicant might desire. Accordingly, Patten's various objections to the Renewal
Application do not raise a substantial and material question of fact as to whether the Station has operated
in the public interest.38

Conclusion/Actions.

We have examined the Objection and find that it does not raise a
substantial and material question of fact calling for further inquiry or otherwise persuade us that to grant
the Renewal Application would contravene the public interest, convenience, and necessity. Accordingly,
we deny the Informal Objection. Moreover, we have evaluated the Renewal Application pursuant to
Section 309(k) of the Act, and we find that the station has served the public interest, convenience, and
necessity during the subject license term; there have been no serious violations of the Act or the Rules;
and there have been no other violations which, taken together, constitute a pattern of abuse.
Accordingly, IT IS ORDERED that the Informal Objection filed on January 7, 2013 by James
Allen Patten IS DENIED, and the application (File No. BRH-20120926ADF) of D & H Media, LLC for
renewal of its license for Station KWKJ(FM), Windsor, Missouri, IS GRANTED.
Sincerely,
Peter H. Doyle
Chief, Audio Division
Media Bureau

37 47 U.S.C. 309(k)(4). Moreover, as Patten admits, LPFM stations remain "secondary to existing and modified
full-service FM stations." Objection at 4; Local Community Radio Act of 2010, Pub. L. No. 111-371, 5(3), 124
Stat. 4072, 4073 (2011); 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
Rulemaking, 26 FCC Rcd 2556, 257172 n.77 (2011), recon. granted in part, 27 FCC Rcd 12829 (2012) (stating
that Congress "direct[ed] us to ensure that FM translator and booster stations, and LPFM stations, remain secondary
to existing and modified full-service FM stations"). The availability of any frequencies near Windsor, Missouri, for
LPFM service is, thus, irrelevant to whether the full-service Station's license should be renewed. In any event, we
refer Patten and any other parties interested in an LPFM filing opportunity to our LPFM channel finder tool:
http://www.fcc.gov/encyclopedia/low-power-fm-lpfm-channel-finder. This tool shows, at the reference coordinates
for Windsor, Missouri, nine potential channels remain available for licensing in the upcoming October 2013 LPFM
filing window.
38 See 47 U.S.C. 309(k)(1).
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