*Pages 1--3 from Microsoft Word - 27562.doc* Federal Communications Commission DA 03- 1533 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. (Quanah, Archer City, Converse, Flatonia, Georgetown, Ingram, Keller, Knox City, Lakeway, Lago Vista, Llano, McQueeney, Nolanville, San Antonio, Seymour, Waco and Wellington, Texas, and Ardmore, Durant, Elk City, Healdton, Lawton and Purcell, Oklahoma.) ) ) ) ) ) ) ) ) ) ) MM Docket No. 00- 148 RM- 9939 RM- 10198 REPORT AND ORDER (Proceeding Terminated) Adopted: May 7, 2003 Released: May 8, 2003 By the Chief, Audio Division: 1. The Audio Division has before it a Notice of Proposed Rule Making in the captioned proceeding. 1 Nation Wide Radio Stations filed Comments and Reply Comments. First Broadcasting Company, L. P., Rawhide Radio, L. L. C., Next Media Licensing, Inc., Capstar TX Limited Partnership and Clear Channel Broadcast Licenses, Inc. (“ Joint Parties”) filed a Counterproposal and Reply Comments. Fritz Broadcasting Co., Inc. and M& M Broadcasters, Ltd. filed Joint Reply Comments. Elgin FM Limited Partnership and Charles Crawford (“ Elgin- Crawford”) jointly filed Reply Comments and Maurice Salsa filed Reply Comments. 2 For the reasons discussed below, we are dismissing both the initial proposal for Channel 233C3 at Quanah, Texas, and the Counterproposal. Background 2. At the request of Nation Wide Radio Stations, the Notice in this proceeding proposed the allotment of Channel 233C3 to Quanah, Texas. 3 In response to the Notice, the Joint Parties filed a Counterproposal involving twenty- two communities in Texas and Oklahoma. In one aspect of this Counterproposal, the Joint Parties propose the substitution of Channel 248C for Channel 248C2 at Durant, Oklahoma, reallotment of Channel 248C to Keller, Texas, and modification of the Station KLAK license to specify operation on Channel 248C at Keller, Texas. In order to accommodate this allotment, 1 15 FCC Rcd 15809 (MM Bur. 2000). 2 In this proceeding, Texas Grace Communications, Elgin FM Limited Partnership, Charles Crawford, Maurice Salsa, M& M Broadcasters, AM& FM Broadcasters and the Joint Parties have filed additional pleadings. In view of our action dismissing the Joint Parties Counterproposal, it will not be necessary to discuss these pleadings in the context of this Report and Order terminating this proceeding. 3 Nation Wide Radio Stations has withdrawn its expression of interest in this allotment. In accordance with Section 1.420( j) of the Rules, Nationwide Radio Stations states that neither it nor any of its principals have been paid or promised any consideration for the withdrawal of its expression of interest in the Quanah allotment. 1 Federal Communications Commission DA 03- 1533 2 the Joint Parties propose three channel substitutions. Included among those substitutions was the substitution of Channel 230C1 for Channel 248C1 at Archer City, Texas, and the modification of the Station KRZB permit to specify operation on Channel 230C1. On the basis of our own engineering review, Joint Reply Comments filed by Fritz Broadcasting Co., Inc. and M& M Broadcasters, Ltd., and Reply Comments filed by Maurice Salsa, the proposed transmitter site (33- 36- 58 and 98- 51- 42) for the Channel 230C1 allotment at Archer City is short- spaced to a prior- filed application filed by AM & FM Broadcasters, LLC, licensee of Station KICM, Channel 229C2, Krum, Texas, to upgrade to Channel 229C1 (File No. BMPH- 20000725AAZ) (the “KICM Class C1 Application”). 3. Counterproposals that are in conflict with a previously filed application can be considered if the counterproposal is amended to remove the conflict within 15 days from the date the counterproposal appears on public notice. 4 The Note also requires a counterproponent to show that it could not have known by exercising due diligence of the pending conflicting FM application. The Joint Parties and AM & FM Broadcasters submitted Reply Comments addressing this issue. Under the agreement, AM & FM Broadcasters agrees to file an application to downgrade Station KICM to Channel 229C2 in the event its application is granted and the Counterproposal is adopted. Pursuant to the agreement, the Joint Parties would “compensate” AM & FM Broadcasters for the downgrade of Station KICM. On August 20, 2001, the staff granted the KICM Class C1 Application. Discussion 4. We dismiss the Counterproposal because the proposed Archer City Channel 230C1 allotment is short- spaced to the KICM Class C1 construction permit. The Joint Parties have not shown that they could not have known about the then- conflicting KICM Application. Nor have the Joint Parties sought to amend their Counterproposal to protect the proposed Archer City Channel 230C1 allotment. 5. The Commission does not entertain a short- spaced allotment that is contingent on the grant of another application. 5 This is precisely what the Joint Parties seek. The Archer City allotment is short-spaced to the KICM construction permit and contingent on the staff granting future applications by AM & FM Broadcasters for both a Class C2 construction permit and license. We reject Joint Parties argument that its downgrade proposal complies with the contingent application procedures set forth in Section 73.3517( e) of the Commission’s Rules. Section 73. 3517( e) permits the simultaneous acceptance of contingent minor change applications. It does not authorize the filing of contingent rulemaking petitions. Accordingly, the Counterproposal must be dismissed. Alternative Proposals 6. The Joint Parties filed an alternative twelve- allotment proposal in anticipation of a staff determination that the Channel 230C1 Archer City allotment is impermissibly short- spaced to the KICM permit. We reject this alternative. A counterproposal must conflict with the proposal set forth in the Notice. 6 In this instance, none of these proposals conflict with Nation Wide Radio Station’s initial proposal for a Channel 233C3 allotment at Quanah. As such, we will not bifurcate the Counterproposal or otherwise consider any of these proposals in the context of this proceeding. 7 4 See Note to Section 73. 208 of the Rules; see also Conflicts Between Applications and Petitions for Rule Makingto Amend the FM Table of Allotments, 8 FCC Rcd 4743 (1993). 5 See Oxford and New Albany, Mississippi, 3 FCC Rcd 615 (MM Bur. 1988), recon. 3 FCC Rcd 6626 (MM Bur. 1988); see also Cut and Shoot, Texas, 11 FCC Rcd 16383 (MM Bur. 1996). 6 See Implementation of BC Docket No. 80- 90 to Increase the Availability of FM Broadcast Assignments, 5 FCC Rcd 931, n. 5 (1990). 7 See also Broken Arrow and Bixby, Oklahoma, Coffeyville, Kansas, 3 FCC Rcd 6507 (MM Bur. 1988). 2 Federal Communications Commission DA 03- 1533 3 7. In the event that its Counterproposal can not be favorably entertained, the Joint Parties advance two alternative proposals. The staff no longer entertains alternative proposals set forth in counterproposals. 8 In any event, each of these alternatives fails to comply with our rules and procedures. The first proposal involves the proposal to reallot Channel 248C to Keller, Texas, and modify the Station KLAK license to specify operation on Channel 248C at Keller. A Channel 248C allotment at Keller requires the substitution of Channel 230C1 at Archer City, and thus, cannot be considered. The second alternative only proposes the substitution of Channel 247C1 for Channel 248C at Waco, Texas, reallotment of Channel 247C1 to Lakeway, Texas, and modification of the Station KWTX license to specify operation on Channel 247C1 at Lakeway. The Joint Parties also proposed related channel substitutions necessary to accommodate this reallotment. However, none of these proposed channel substitutions conflict with the underlying Channel 233C3 allotment at Quanah, Texas, proposed in the Notice. 8. Accordingly, IT IS ORDERED, That the aforementioned proposal filed by Nation Wide Radio Stations for a Channel 233C3 allotment at Quanah, Texas, IS DISMISSED. 9. IT IS FURTHER OREDERED, That the aforementioned Counterproposal filed by the Joint Parties IS DISMISSED. 10. IT IS FURTHER ORDERED, That this proceeding IS TERMINATED. 11. For further information concerning this proceeding, contact Robert Hayne, Media Bureau, (202) 418- 2177. FEDERAL COMMUNICATIONS COMMISSION Peter H. Doyle Chief, Audio Division Media Bureau 8 See Winslow, Camp Verde, Mayer and Sun City West, Arizona, 16 FCC Rcd 9551 (MM Bur. 2001). 3