*Pages 1--2 from Microsoft Word - 13188.doc* Federal Communications Commission DA 01- 2784 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. (Taccoa, Sugar Hill, and Lawrenceville Georgia) ) ) ) ) ) ) ) MM Docket No. 98- 162 RM- 9263 MEMORANDUM OPINION AND ORDER (Proceeding Terminated) Adopted: November 28, 2001 Released: November 30, 2001 1. The Allocations Branch has before it a Petition for Reconsideration filed by Southern Broadcasting of Pensacola, Inc. (“ Southern Broadcasting”) directed against the Report and Order in this proceeding. 16 FCC Rcd 14069 (2001). For the reasons discussed below, we are setting aside the channel reallotment and license modification set forth in the Report and Order. 2. At the request of Southern Broadcasting, licensee of Station WNGC (formerly Station WSTE-FM), Channel 291C, Taccoa, Georgia, the Report and Order substituted of Channel 291C1 for Channel 291C at Taccoa, Georgia, reallotted of Channel 291C1 to Sugar Hill, Georgia, and modified the Station WNGC license to specify operation on Channel 291C1 at Sugar Hill. In its Petition for Reconsideration, Southern Broadcasting refers to its Counterproposal to its own proposal as set forth in underlying Notice of Proposed Rule Making. 13 FCC Rcd 17750 (1998). Specifically, Southern Broadcasting proposed the reallotment of Channel 291C1 to Lawreneceville, Georgia, in lieu of Sugar Hill as originally proposed. This Counterproposal was not considered in the context of the Report and Order in this proceeding. In the event this Counterproposal cannot be granted, Southern Broadcasting withdraws its interest in reallotting Channel 291C1 to Sugar Hill and modifying its Station WNGC license to specify operation on Channel 291C1 at Sugar Hill. 3. We cannot favorably entertain the Counterproposal proposing the reallotment to Lawrenceville. This proposal does not provide the requisite 70 dBu signal to Lawrenceville as required by Section 73.315( a) of the Rules. In this regard, the proposed site is 55.8 kilometers south of Lawrenceville. Using the standard propagation methodology based on the F( 50,00) curves and assuming uniform terrain and maximum facilities, the 70 dBu contour would only extend 51.5 kilometers. To address this noncompliance with Section 73.315( a) of the Rules, Southern Broadcasting has submitted an engineering exhibit purporting to demonstrate 70 dBu coverage of Lawrenceville. Southern Broadcasting also requests waiver of Section 73.313( e) of the Rules which sets forth the requirements with respect to demonstrating sufficient terrain variance that would permit use of an alternate propagation method. Southern Broadcasting also notes that the Commission in Streamlining of Radio Technical Rules in Parts 73 and 74 of the Commission’s Rules proposed a supplemental point- to- point propagation prediction method, 15 FCC Rcd 21649 (2000). In its engineering exhibit, Southern Broadcasting has not provided sufficient information to demonstrate compliance with Section 73.315( a) of the Rules. Furthermore, it would be inappropriate for the staff to preempt this matter by implementing a supplemental point- to- point propagation methodology while the issue is being considered by the Commission. 1 Federal Communications Commission DA 01- 2784 2 4. As noted earlier, Southern Broadcasting has withdrawn its interest in implementing the Channel 291C1 reallotment to Sugar Hill and modification of its Station WNGC license to specify operation on Channel 291C1 at Sugar Hill. For this reason, we are setting aside our action in the Report and Order. Station WNGC will remain licensed on Channel 291C at Taccoa, Georgia. 5. As stated above, Southern Broadcasting filed a Counterproposal to its own proposal as set forth in the Notice. In this regard, Southern Broadcasting provided no reason or explanation as to why this Lawrenceville reallotment Counterproposal could not have been set forth in its original Petition for Rule Making. In such situations, it is necessary for the staff to process two inconsistent proposals from the same party in a single rulemaking proceeding. This appears to be an unnecessary expenditure of staff resources without any offsetting public interest benefit and is not conducive to the efficient transaction of Commission business. We are also concerned with fairness to other parties. A Notice of Proposed Rule Making elicits counterproposals and alerts parties that future FM rulemaking and application proposals could be foreclosed by the filing of a counterproposal. After the comment date in a rulemaking proceeding, parties cannot file a competing proposal to the underlying proposal or counterproposal. Such parties can be permanently prejudiced by the filing of a counterproposal because the counterproposal is deemed to be the “logical outgrowth” of the proposal and within the scope of that Notice. See Weyerhaeuser Company v. Costle, 590 F. 2d 702 (D. C. Cir. 1978); Owensboro on the Air v. United States, 262 F. 2d 1011, 1031 (D. C. Cir. 1958); see also Pinewood, South Carolina, 5 FCC Rcd 7609 (1990). There is also an issue as to whether the second proposal filed by the rulemaking proponent is within the scope of the notice or meets a “logical outgrowth” test. To address these concerns, we intend to carefully review future counterproposals filed by the original rulemaking proponent. In the absence of an explanation, such as unforeseen circumstances, as to why the new proposal could not have been advanced in the initial petition for rule making, we reserve the right, as a procedural matter, to process the new proposal in a new proceeding. 6. Accordingly, IT IS ORDERED, That the aforementioned action substituting Channel 291C1 for Channel 291C at Taccoa, Georgia, reallotting Channel 291C1 to Sugar Hill, Georgia, and modifying the Station WNGC license to specify operation on Channel 291C1 at Sugar Hill, Georgia, IS HEREBY SET ASIDE. 7, IT IS FURTHER ORDERED, That the aforementioned Petition for Reconsideration filed by Southern Broadcasting of Pensacola, Inc. IS GRANTED to the extent indicated above. 8. IT IS FURTHER ORDERED, That this proceeding IS TERMINATED. 9. 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 2