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 Federal  Communications  Commission  DA  01-  1065 
 Before  the 
 Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of 
 Amendment  of  Section  73.202(  b), 
 Table  of  Allotments, 
 FM  Broadcast  Stations. 
 (Rincon,  Puerto  Rico) 


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 MM  Docket  No.  00-  123 
 RM-  9903 


 MEMORANDUM  OPINION  AND  ORDER  (Proceeding  Terminated) 
 Adopted:  April  18,  2001  Released:  April  24,  2001 
 By  the  Chief,  Allocations  Branch: 
 1.  The  Allocation  Branch  has  before  it  a  Petition  for  Reconsideration  filed  by  Jose  J.  Arzuaga,  Jr., 
 d/  b/  a  Ocean  Communications  directed  to  the  Report  and  Order  in  this  proceeding.  DA  01-  255,  released 
 February  2,  2001.  International  Broadcasting  Corporation  (“  International  Broadcasting”)  filed  an 
 Opposition  to  Petition  for  Reconsideration  and  Ocean  Communications  filed  a  Reply.  For  the  reasons 
 discussed  below,  we  deny  the  Petition  for  Reconsideration. 


 Background 
 2.  At  the  request  of  Ocean  Communications,  the  Notice  of  Proposed  Rule  Making  in  this 
 proceeding  proposed  the  allotment  of  Channel  300B  to  Rincon,  Puerto  Rico,  as  a  first  local  service.  Ocean 
 Communications  filed  timely  Comments  in  response  to  the  Notice.  International  Broadcasting,  licensee  of 
 Station  WVOZ,  Channel  299B,  Carolina,  Puerto  Rico,  filed  Comments  after  the  comment  date  in  this 
 proceeding.  In  its  Comments,  International  Broadcasting  states  that  the  proposed  coordinates  for  the 
 Channel  300B  allotment  are  located  within  the  Desecheo  National  Wildlife  Refuge  and  would  not  be 
 available  for  a  transmitter  site.  In  support  of  this  contention,  International  Broadcasting  included  a  letter 
 from  Val  K.  Urtan,  Project  Leader,  Caribbean  Islands  NWR  Complex,  Fish  and  wildlife  Service, 
 Department  of  the  Interior,  stating  that  no  request  for  a  permit  to  construct  a  tower  had  been  submitted  and 
 that  approval  of  such  a  tower  would  be  unlikely.  We  accepted  this  submission  because  it  contained 
 information  of  decisional  significance  and  had  been  served  upon  Ocean  Communications.  In  light  of  this 
 information,  we  determined  that  there  was  no  reasonable  assurance  of  an  available  transmitter  site  and 
 denied  the  proposed  allotment. 


 3.  In  support  of  its  Petition  for  Reconsideration,  Ocean  Communications  advances  both  a 
 procedural  and  substantive  argument.  Ocean  Communications  first  notes  that  the  International 
 Broadcasting  pleading  is  both  unauthorized  and  untimely  and  that  it  was  “precluded”  from  filing  a 
 response.  In  regard  to  the  substantive  argument  of  transmitter  site  unavailability,  Ocean  Communications 
 argues  that  there  had  been  no  showing  that  the  transmitter  site  must  be  located  within  the  Desecheo 
 National  Wildlife  Refuge.  In  this  regard,  Ocean  Communications  states  that  it  intends  to  locate  its 
 transmitter  “on  a  ship”  in  the  Atlantic  Ocean. 
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 Federal  Communications  Commission  DA  01-  1065 
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 4.  We  deny  the  Petition  for  Reconsideration.  Consideration  of  the  late-  filed  Comments  by 
 International  Broadcasting  enabled  us  to  resolve  this  proceeding  on  the  basis  of  a  complete  and  accurate 
 record.  International  Broadcasting  served  its  Comments  on  Ocean  Communications.  In  view  of  the 
 decisional  significance  of  the  Comments,  Ocean  Communications  could  have  filed  a  response  to  the  letter 
 from  Val  K.  Urtan  either  at  that  time  or  in  the  context  of  its  Petition  for  Reconsideration.  In  either  context, 
 Ocean  Communications  is  afforded  an  opportunity  to  refute  the  substance  of  International  Broadcasting 
 argument.  In  regard  to  the  substance  of  the  argument,  we  undertook  our  own  engineering  review  of  this 
 matter.  Rincon  is  located  at  the  western  edge  of  Puerto  Rico.  In  order  to  comply  with  the  minimum 
 spacing  requirements  set  forth  in  Section  73.207(  b)  of  the  Rules,  the  proposed  reference  site  must  be 
 located  26.  6  kilometers  (16.  5  miles)  west  of  Rincon.  The  only  island  upon  which  the  transmitter  could  be 
 located  is  Desecheo  Island.  The  Desecheo  National  Wildlife  Refuge  covers  all  of  Descheo  Island.  On  the 
 basis  of  our  own  engineering  review,  there  is  no  site  on  land  that  could  accommodate  a  transmitter  site  for 
 this  allotment.  The  Ocean  Communications  contention  that  it  could  locate  its  transmitter  on  a  ship  does  not 
 appear  to  be  feasible  or  practical.  It  would  be  necessary  for  a  ship  to  maintain  a  stationary  location  at  the 
 allotment’s  authorized  site  approximately  16  miles  into  the  Atlantic  Ocean.  We  continue  to  believe  that 
 Ocean  Communications  does  not  have  a  reasonable  assurance  of  a  transmitter  site  availability.  See  Grand 
 View,  Idaho,  15  FCC  Rcd  2768  (2000);  Cusseta,  Georgia,  6  FCC  Rcd  7437  (1991). 


 5.  Accordingly,  IT  IS  ORDERED,  That  the  aforementioned  Petition  for  Reconsideration  filed  by 
 Jose  J.  Arzuga,  Jr.  d/  b/  a  Ocean  Communications  IS  DENIED. 


 6.  IT  IS  FURTHER  ORDERED,  That  this  proceeding  IS  TERMINATED. 
 7.  For  further  information  concerning  this  proceeding,  contact  Robert  Hayne,  Mass  Media 
 Bureau,  (202)  418-  2177. 


 FEDERAL  COMMUNICATIONS  COMMISSION 


 John  A.  Karousos 
 Chief,  Allocations  Branch 
 Policy  and  Rules  Division 
 Mass  Media  Bureau 
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