in Catlettsburg; (5) both of K & M's partners reside in Ashland, Ky.; and (6) Catlettsburg is now without any FM, AM, or TV broadcast station while Huntington has several broadcast facilities. On this factual basis, the petitioner argues that K & M's proposal to use a class B FM channel, which is intended by the Commission to serve metropolitan centers and wide areas, in the small community of Catlettsburg is, in reality, an attempt to serve the two larger communities of Huntington and Ashland and the Huntington-Ashland urbanized area. Christian contends that the addition of a suburban community issue here is necessary in order to prevent the grant of an FM facility in a contested proceeding to an applicant claiming a section 307(b) preference as a first local station in a small community when, in fact, the applicant's proposal is tailored to serve an entire urbanized area with a population many times that of the designated station location. Finally, petitioner notes that, although the Commission's Policy Statement on section 307 (b) Considerations for Standard Broadcast Facilities Involving Suburban Communities, 2 F.C.C. 2d 190, 6 R.R. 2d 1901 (1965), refers to AM applications, the same policy has been extended to FM proposals, citing Berwick Broadcasting Corp., 12 F.C.C. 2d 8, 12 R.R. 2d 665 (1968). 3. In opposition, K & M contends that, entirely aside from the fact that the Commission's policy statement does not apply to FM applications, Christian's petition must be denied since its supporting as sumptions are untrue. In this regard, K & M points out that the only assigned FM channel in the area which could be used at Catlettsburg is a class B channel and that the proposed transmitter site was selected to meet station separation requirements imposed by the Commission's rules and not because the applicant did not wish to serve the community of Catlettsburg.2 K & M points to an alleged basic inconsistency in Christian's petition, i.e., on the one hand, Christian asserts that K&M's failure to make a sufficient number of program contacts outside of Catlettsburg supports the requested Suburban issue while, on the other hand, Christian argues that K & M's proposal is tailored to serve an entire urbanized area. K & M also states that, subsequent to the filing of the Christian petition, its consulting engineer studied the feasibility of eliminating the conflict between the Christian and K & M applications through the allocation of an FM channel to Catlettsburg; that, as a result of the study, K & M is simultaneously filing a petition for rulemaking to allocate channel 224.A to the community of Catlettsburg; and that, if the channel is assigned to the community, it will file an application therefor. K & M contends that its action in this regard completely belies the speculative allegations contained in the petition to enlarge issues. 4. The Broadcast Bureau, in its comments on this facet of Christian's petition, also opposes the addition of a suburban community. issue to this proceeding. While it agrees that the considerations underlying the Commission's policy statement are applicable in FM proceedings, citing Berwick Broadcasting Corp., supra, and Christian 2 K & M contends that the Berwick precedent, cited by the petitioner in support of its request, is inapposite here since that proceeding involved an application by an AM licensee, located in the central community, for an FM facility in a suburban community. Voice of Central Ohio, 15 F.C.C. 2d 308, 14 R.R. 2d 791 (1968), it contends that the petitioner has failed to support its request with an adequate showing. According to the Bureau, a substantially strongershowing is required to support the addition of a suburban community issue to an FM proceeding than that which is required in an AM proceeding where a presumption of service to a larger community may arise on the basis of only station location and engineering factors such as signal strength. In an FM proceeding, the Bureau asserts, it must be specifically demonstrated that the objectives of section 307(b) would be frustrated by the award of a preference to an applicant for providing a local broadcast outlet to a community which the applicant. will not realistically serve. The Bureau also notes that section 73.203 of the rules provides for the utilization of FM channels outside of listed communities and that the Commission did not intend to impose stringent curbs on the use of FM channels outside of listed communities. According to the Bureau, the Commission insured that assignments would be utilized for the benefit of the area immediately surrounding the listed community by providing for specified minimum powers coupled with shorter distances between the listed and unlisted communities. The Bureau contends that no particular significance should attach to the location of K & M's transmitter site since the selection factors of an FM site differ from those for an AM site due primarily to propagation characteristics and since mileage separation requirements were considered by K & M in selecting a site southeast of Catlettsburg. In regard to applicable precedent, it is the Bureau's position that Berwick does not support petitioner's request since, in that proceeding, there were other considerations which indicated a proposal to serve the listed community and which are not present here * and that Christian Voice is distinguishable since there the applicant conceded that its proposal was intended to serve the listed community and surrounding area. In summary, the Bureau asserts that, since Christian has shown no more than site location and engineering details of K &M's proposal, which while ordinarily sufficient to raise a presumption in an AM context do not meet the tests set forth in Berwick and Christian Voice, and since this proceeding is essentially similar to Almardon Incorporated of Florida, 16 F.C.C. 2d 395, 15 R.R. 2d 500 (1969), where the Board denied a request to add a suburban community issue, Christian's request should be denied. 5. In reply, Christian points out that K & M has not chosen to discuss its reasons for proposing such great coverage with a 50-kw. station in order to serve a community of only 3,874 persons. The petitioner asserts, in this regard, that the nonavailability of other channels did The Bureau notes that K & M's application, as originally filed, was returned because of a separation shortage with station WDAO, Dayton, Ohio, which lies northwest of Catlettsburg. The application was refiled specifying the present site presumably to avoid the separation problem and not primarily to increase the applicant's coverage of the listed community. The Bureau points to the following factors which were noted by the Board in the Berrick proceeding: the common ownership of an AM station in the listed community; some duplication of programing; the joint use of staff personnel; and the location of the transmitter in order to obtain maximum coverage of the listed community. The Bureau dismisses, as irrelevant, the fact that K & M also has an application (BP-18042) pending for an AM station in Catlettsburg with a transmitter site near the community since it relates to a pending application and to a station in the community as opposed to the Berwick situation. 18 F.C.C. 2d not compel K & M to propose power far in excess of that required to serve Catlettsburg and that the defect in K & M's application is its proposal to serve some 189,990 persons while limiting its programing survey to the needs and interests of Catlettsburg. In regard to K&M's rulemaking petition, Christian notes that the requested FM channel was available when K & M filed its application and that, therefore, an issue is required to determine whether K & M's failure to make a frequency search prior to the filing of Christian's instant petition constitutes an abuse of process, especially since K & M continues to prosecute its application here while promising to file for the new channel upon its allocation to Catlettsburg. 6. The Board agrees with the Broadcast Bureau that Christian's showing is insufficient to warrant the addition of a suburban community issue against the K & M proposal. The factors noted by the petitioner in support of its request, i.e., the location of K & M's transmitter site and its proximity to Huntington; Catlettsburg's location within the Huntington-Ashland urbanized area; the Ashland residence of K&M's partners; the placement of a city-grade signal over Huntington and Ashland; and the power requested, standing alone, do not raise the question of whether K & M will provide a realistic local transmission service to Catlettsburg in the context of this FM proceeding. See Almardon Incorporated of Florida, supra. More specifically, the Board finds that the residence of K & M's partners and the location of Catlettsburg within the Huntington-Ashland urbanized area are of little significance in terms of whether K & M will serve its specified community. It appears that the applicant's transmitter site was selected primarily to meet the separation requirements of the Commission's rules rather than to serve the listed community of Huntington and Ashland. The strength of the signal to be provided to Huntington and Ashland is also unpersuasive since such coverage is contemplated by the Commission in the utilization of FM channels by unlisted communities. See Report and Order in docket No. 17969, 12 F.C.C. 2d 660, 12 R.R. 2d 1612 (1968). In contrast to the petitioner's allegations, the filing of K & M's rulemaking petition and its pending application for an AM station in Catlettsburg seem to negative any claimed intent of K & M to serve the listed community of Huntington. As the Bureau points out, the Berwick precedent is inapposite here since there is no AM ownership in the listed community by the FM applicant and since the transmitter site location was apparently dictated primarily by mileage separation requirements imposed by the Commission's rules. In addition, there were other factors inherent in the Berwick proceeding, as indicated in footnote 4, supra, which reflected an intent to serve the listed community and which are not present here. Similarly, Christian Voice is distinguishable from the instant case since there the applicant conceded its intention to serve the listed community. Finally, while we note that the deficiencies in K & M's ascertainment of community program needs will be made the subject of a Suburban Christian's related request, contained in its reply pleading, for an issue which would inquire into whether K & M's delay in making its frequency search is an abuse of the Commission's process will not be entertained. Such a request should be made in an original pleading. See Lorenzo W. Milam and Jeremy D. Lansman, F.C.C. 64R-561, 4 R.R. 2d 463 (1964). inquiry herein and may be relevant to our consideration of the suburban community request, they do not serve as an adequate basis for the addition of a suburban community issue since the deficiencies relate to efforts outside of Catlettsburg. Almardon Incorporated of Florida, supra. Since the petitioner's allegations are not sufficient to raise a substantial question of whether K & M will provide a realistic local transmission service to Catlettsburg, the request for a suburban community issue will be denied. SUBURBAN ISSUE 7. In support of its request for a Suburban issue against K & M, Christian contends that K&M's decision to specify such wide coverage carries with it the responsibility to ascertain the needs and interests of the entire service area and to make a reasonable effort to meet such needs and interests through proposed programing, citing Long Island Video, Inc., 12 F.C.C. 2d 905, 13 R.R. 2d 88 (1968), and Minshall Broadcasting Company, 11 F.C.C. 2d 796, 12 R.R. 2d 502 (1968). It is petitioner's position that the K & M application discloses no effort by the applicant to ascertain the needs and interests of those communities outside of the immediate Catlettsburg area and that such failure to survey communities within the applicant's proposed primary service area other than the community of station location is cause for denial of the application. Christian also notes that K & M cannot claim an identity of interest throughout its proposed service area since significant portions thereof lie outside of Kentucky and since several large communities are included therein. The Broadcast Bureau supports Christian's request for a Suburban issue. 8. The Review Board is of the opinion that a sufficient showing has been made to warrant the addition of a Suburban issue against the K & M proposal. The petitioner and the Broadcast Bureau correctly note that K & M, in ascertaining the needs and interests of the area proposed to be served by the Catlettsburg station, apparently limited its survey to Catlettsburg residents. In its application, K & M submits the results of interviews with 21 community leaders of Catlettsburg. However, we must note that the applicant's proposed coverage area includes not only the community of Catlettsburg but also the cities of Huntington, W. Va., and Ashland, Ky., as well as the rural areas contiguous to the Huntington-Ashland urbanized area. In fact, both cities lie well within the applicant's proposed 1-mv./m. contour and both apparently are encompassed by K&M's 3.16-mv./m. contour. As a result, it does not appear that K & M's survey included all of the area to be served by the Catlettsburg station even though an applicant is expected to ascertain the programing needs and interests of its entire proposed service area. See Minshall Broadcasting Company, supra: Long Island Video, Inc., supra; Public Notice on Broadcast Applicant's Ascertainment of Community Needs, F.C.C. 68-847, 13 R.R. 2d 1903 (1968). Since we cannot assume that an identity of interest exists within the entire proposed service area insofar as needs and interests are concerned and since the facts available to us on the basis of the pleadings and K & M's application seem to indicate the absence of a community of interest, a Suburban issue is required and will be specified herein. 9. Accordingly, It is ordered, That the petition to enlarge issues, filed March 9, 1969, by Christian Broadcasting Association, Inc., Is granted to the extent indicated below and Is denied in all other respects; and 10. It is further ordered, That the issues in this proceeding Are enlarged by the addition of the following issue: To determine the efforts made by K & M Broadcasting Company to ascertain the community needs and interests of the area to be served and the means by which the applicant proposes to meet such needs and interests. 11. It is further ordered, That the burden of proceeding with the introduction of evidence and burden of proof under the issue added herein will be on K & M Broadcasting Co.; and 12. It is further ordered, That the request for enlargement of issues contained in the reply pleading, filed March 25, 1969, by Christian Broadcasting Association, Inc., Is dismissed. FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary. The Board notes that K & M, in its opposition to the petitioner's requests, did not contest the allegations of need for a Suburban inquiry. 18 F.C.C. 2d |