Federal Communications Commission	DA 21-1587


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
(Hamilton, Texas)

Application for Construction Permit to Modify
Station KRNR(FM), Goldthwaite, Texas

Application for a New FM Station at
Hamilton, Texas

Application for Construction Permit to Modify
Station KNUZ(FM), San Saba, Texas
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MB Docket No. 21-483
RM-11913



File No. 107517
Facility ID No. 198798

File No. 144065
Facility ID No. 761268

File No. 138089
Facility ID No. 65315

NOTICE OF PROPOSED RULEMAKING
AND ORDER TO SHOW CAUSE

Adopted:  December 17, 2021                                                         Released:  December 17, 2021

Comment Date:  February 7, 2022
Reply Comment Date:  February 22, 2022

By the Assistant Chief, Audio Division, Media Bureau:

I. INTRODUCTION
1. The Audio Division, Media Bureau (Bureau), has before it : (1) a petition for reconsideration (KRNR Petition for Reconsideration) filed by B Plus Broadcasting, LLC (B Plus) on April 27, 2021, seeking reinstatement of the above-referenced hybrid application (KRNR Modification Application) and petition for rulemaking (First KRNR Petition for Rulemaking) for a minor modification to the facilities of station KRNR(FM), Goldthwaite, Texas (KRNR) On March 26, 2021, the Audio Division, Media Bureau (Bureau) dismissed the KRNR Modification Application and First KRNR Petition for Rulemaking.  B Plus Broadcasting, Inc., Letter Decision, Ref. No. 1800B3-RFS (MB Mar. 26, 2021) (Dismissal Letter).  
; (2) the above-captioned application for a new FM station at Hamilton, Texas (Hamilton Application), filed by B Plus on April 27, 2021; and (3) the above-captioned application (Second KNUZ Modification Application) to modify the facilities of station KNUZ(FM), San Saba, Texas (KNUZ), filed by S Content Marketing, LLC (S Content) On October 11, 2017, Roy E. Henderson consummated a pro forma assignment of the KNUZ license to S Content Marketing, LLC, which he wholly owns.  See Application File No. BALH-20160830ABB.  For convenience, we refer to Roy E. Henderson and S Content Marketing, LLC, collectively, as “S Content.”
 on March 8, 2021. On April 8, 2021, B Plus filed an informal objection to the Second KNUZ Modification Application (KNUZ Informal Objection).  On April 21, 2021, Henderson filed an Opposition to the KNUZ Informal Objection (KNUZ Opposition).  On April 26, 2021, B Plus filed a reply to the KNUZ Opposition (KNUZ Reply).  
  For the reasons set forth below, we grant the KRNR Petition for Reconsideration to the extent that it requests: (1) the issuance of an order to show cause to S Content to show why the license of KNUZ should not be modified to specify operation on Channel 291A in lieu of Channel 224A at San Saba, Texas; and (2) the issuance of a notice of proposed rulemaking to create a new Class A FM station on Channel 263 at Hamilton, Texas.  
II. BACKGROUND
2. This proceeding concerns B Plus’s ongoing efforts to operate on Channel 224A.  As explained in more detail below, Channel 224A has been authorized to S Content for several years, during which time S Content has continued to operate on its old channel (Channel 291A).  B Plus requests to modify S Content’s authorization back to Channel 291A, thus making Channel 224A available for reassignment.  B Plus augments this proposal by also applying to construct a new station on its current channel, Channel 263A, that would provide a second local service to Hamilton, Texas. 
3. On March 10, 2017, the Bureau released a report and order (KNUZ Report and Order) authorizing KNUZ(FM), San Saba, Texas (KNUZ) to change from Channel 291A to Channel 224A at San Saba, Texas. Amendment of Section 73.202(b), Table of Allotments, FM Broadcast Stations (Mullin, Texas), Report and Order, 32 FCC Rcd 1848 (MB 2017).  On March 10, 2017, the Bureau granted the associated modification application (KNUZ Construction Permit).  See Application File No. BPH-20160601ABG.  
  The KNUZ licensee, S Content, did not construct the approved facilities, and the KNUZ Construction Permit expired unbuilt on March 10, 2020. See Application File No. BALH-20160830ABB.
  On the same day, March 10, 2020, B Plus filed the KRNR Modification Application, seeking to operate KRNR on Channel 224A in lieu of Channel 263A. Initially, B Plus sought to upgrade the Station from Class A to Class C3 at its existing transmitter site, substitute Channel 224 for Channel 263, and expand the Station’s effective radiated power (ERP) from 3.8 kW to 16 kW.  However, on June 14, 2020, B Plus amended the KRNR Modification Application to specify Class A facilities operating at 3.9 kW ERP on Channel 224.  See KRNR Modification Application, Technical Exhibit filed May 16, 2020, at 1.
  On September 24, 2020, B Plus filed the First KRNR Petition for Rulemaking, The First KRNR Petition for Rulemaking was submitted by the applicant on June 15, 2020, and accepted for filing by Bureau engineering staff on September 24, 2020.
 requesting: (1) the allotment of Channel 263A to Hamilton, Texas, as the community’s second local service; (2) the substitution of Channel 224A for Channel 263A at Goldthwaite, Texas; and (3) the deletion of reserved Channel 224A at San Saba, Texas. First KRNR Petition for Rulemaking at 1.
  
4. On March 26, 2021, the Bureau dismissed the KRNR Modification Application and KRNR Petition for Rulemaking, explaining that the request to allot Channel 263A to Hamilton, Texas, did not include the requisite new station application form, filing fee, and certification that B Plus intended to participate in the auction of any resulting allotment. Dismissal Letter at 2 (citing Revision of Procedures Governing Amendments to FM Table of Allotments and Changes of Community of License in the Radio Broadcast Services, Report and Order, 21 FCC Rcd 14212, 14223, para. 18 (2006) (Allotments Report and Order)).
  
5. On March 31, 2021, S Content filed the Second KNUZ Modification Application, which is essentially identical to the First KNUZ Modification Application, asserting that “[a]lthough the authorized facility on Channel 224 was not constructed during the life of the construction permit, FCC databases continue to reserve this channel for KNUZ(FM).  This instant application claims the reserved channel.” Second KNUZ Modification Application, Technical Statement filed Mar. 2, 2021, at 1.
  On April 8, 2021, B Plus filed the KNUZ Informal Objection, arguing that grant of the Second KNUZ Modification Application would result in S Content “operating KNUZ on Channel 291A for seven years . . . [while] block[ing] the use of Channel 224 in the area by anyone else . . .”—thus warehousing spectrum in violation of sections 307(b) and 309(j)(3)(D) of the Communications Act of 1934, as amended (Act), and section 73.3598 of the Commission’s rules. KNUZ Informal Objection at 3, 5 (citing 47 U.S.C. §§ 307(b) (mandating a fair, efficient, and equitable distribution of radio service) and 309(j)(3)(D) (mandating an efficient and intensive use of the electromagnetic spectrum”); 47 CFR § 73.3598(e) (stating that an unbuilt construction permit shall be automatically forfeit upon expiration).
  In its Opposition filed on April 20, 2021, S Content responds that it is “not warehousing frequency” and “[u]pon approval will diligently proceed with the implementation of its proposed facility.” KNUZ Opposition at 3.

6. On April 27, 2021, B Plus filed the KRNR Petition for Reconsideration and the Hamilton Application.  It also submitted the Second KRNR Petition for Rulemaking, requesting: (1) the allotment of Channel 263A to Hamilton, Texas, as the community’s second local service; (2) the substitution of Channel 224A for Channel 263A at Goldthwaite, Texas, (and modification of the KRNR license to specify operation on Channel 224A in lieu of Channel 263A); and (3) the issuance of an order to S Content to show cause why the KNUZ license should not be modified to specify Channel 291A in lieu of 224A at San Saba.  
7. In the KRNR Petition for Reconsideration, B Plus argues that its proposal would result in a more “fair, efficient and equitable” distribution of radio service. Second KRNR Petition for Rulemaking at 3 (citing 47 U.S.C. § 307(b)).
  Specifically, B Plus states that this is a preferential arrangement of allotments because it would provide a second local service (and first nighttime local service) to Hamilton, Texas, a licensable community with a population over 3,000. Second KRNR Petition for Rulemaking at 3-5.  The FM Allotment Priorities are (1) first full-time aural service; (2) second full-time aural service; (3) first local service; and (4) other public interest matters.  Co-equal weight is given to priorities (2) and (3).  Revision of FM Assignment Policies and Procedures, Second Report and Order, 90 FCC.2d 88, 91-92, paras. 7-13 (1982).  B Plus states that Hamilton is a community for allotment purposes because the Commission has previously allotted an FM channel to this community and Hamilton has other indicia of community status such as a local government and schools.  Second KRNR Petition for Rulemaking at 4.
  In addition, B Plus states, KRNR would cover 63 more people with its 60 dBu signal contour on Channel 224A than on Channel 263A and would provide a new second service to 246 people in a “gray area” (i.e., an area having only one other reception service). Second KRNR Petition for Rulemaking at 3-5.
  In contrast, according to B Plus, the proposed KNUZ facility would provide 60 dBu coverage to an additional 559 people on Channel 224A, only 8 of which reside in a gray area. Second KRNR Petition for Rulemaking at 3.
  B Plus also argues that S Content’s failure to construct on Channel 224A militates in favor of modifying the KNUZ license to remain on Channel 291A to prevent “spectrum warehousing” of both channels. Second KRNR Petition for Rulemaking at 5-7; KRNR Petition for Reconsideration at 6.
  B Plus also cites to Commission precedent that favors the establishment of a new local service over the modification of an existing facility. KRNR Petition for Reconsideration at 5 (citing Andalusia, Alabama, Report and Order, 49 FR 32201, 32202, para. 8 (MMB 1984) (“. . . [W]hen a pending channel assignment and a pending application are in technical conflict . . . the proposed channel assignment would be favored since it would represent a new service.”).
  For these reasons, B Plus concludes, its proposal represents a preferential arrangement of allotments as compared to KNUZ’s reserved allotment on Channel 224A. Second KRNR Petition for Rulemaking at 5. 
 
III. DISCUSSION
8. Reinstatement of KRNR Modification Application.  Under longstanding Commission policy, we will favorably consider petitions for reconsideration of an initial dismissal or return of an application when the applicant submits a curative amendment within 30 days of dismissal.  See, e.g., Hampton Roads Educational Telecommunications Association, Inc., Memorandum Opinion and Order, 30 FCC Rcd 14906 (MB 2015); see generally, Commission States Future Policy on Incomplete and Patently Defective AM and FM Construction Permit Applications, Public Notice, 56 RR 2d 776, 49 Fed. Reg. 47331 (Aug. 2, 1984).
  In this case, B Plus addressed the deficiencies identified in the Dismissal Letter by filing the Hamilton Application, paying the filing fee, and certifying that it would participate in any future auction of the Hamilton allotment and would build the proposed facility if authorized. KRNR Petition for Reconsideration at 5.
  Accordingly, we will reinstate the KRNR Modification Application.  
9. Minimum Distance Separation Requirement.  As B Plus appears to concede when it modified its request from the deletion of Channel 224A at San Saba to the involuntary substitution of Channel 291A for 224A, the KNUZ new channel assignment is entitled to protection under section 73.207 of the Commission’s rules 47 CFR § 73.207.
 despite S Content’s failure to construct under the First KNUZ Modification Application. See 47 CFR § 73.207; Allotments Report and Order, 21 FCC Rcd at 14221-22, para. 15. 
  Channel 224A at San Saba is a reserved, not vacant, channel—in the KNUZ Construction Permit, the Bureau modified the KNUZ assignment to add Channel 224A, deleted Channel 291A at San Saba, and modified the KNUZ license to specify operation on Channel 224A. KNUZ Construction Permit, Special Operating Condition # 2. 
  Nonetheless, we will consider the KRNR Modification Application and Second KRNR Petition for Rulemaking because, as discussed below, we are simultaneously issuing an order to show cause why the KNUZ license should not be modified to specify operation on Channel 291A (on which it is currently operating under an implied STA).  
10. Hamilton Petition for Rulemaking.  We believe that the public interest would be served by proposing the allotment of Channel 263A at Hamilton because it could result in a second local service to that community.  A staff engineering analysis reveals that Channel 263A can be allotted to Hamilton in conformity with the Rules at reference coordinates 31-39-48.1 NL and 98-21-29.4 WL. The Longley-Rice based 70 dBu "mean occurrence contour" covers 100% of Hamilton, Texas.

11. Order to Show Cause.  We find that the B Plus has cited sufficient public interest benefits to justify the issuance of a show cause order.  Section 316(a) of the Act permits us to modify the license or construction permit if such action is in the public interest. 47 U.S.C. § 316(a).
  In this case, assigning KNUZ to Channel 291A, San Saba, would accommodate B Plus’s request to create a new FM station on Channel 263A assigned to Hamilton, Texas, as that community’s second local service, and substitution for KRNR of Channel 224A for 263A. Hamilton’s first local service is provided by KCLW(AM), Hamilton, Texas, licensed to Faith in Christ Mission. 
  B Plus also states that its proposal would provide a new second service to 246 people in a “gray area.”  As required by the Commission’s Circleville policy, B Plus commits to reimbursing S Content for the reasonable costs incurred in connection with the proposed channel change. See Circleville, Ohio, Second Report and Order, 8 FCC 2d 159 (1967).  On October 5, 2021, B Plus filed a supplement to the Second KRNR Petition for Rulemaking (Circleville Supplement) and request for leave to file the Circleville Supplement. 
  Finally, a staff engineering analysis confirms that Channel 263A can be allotted at Hamilton in compliance with the Commission's minimum distance separation requirements without the imposition of a site restriction. See 47 CFR § 73.207.
  In these circumstances, we believe that the public interest would be served by issuing an order to show cause to S Content as to why the KNUZ license should not be modified to specify operation on Channel 291A in lieu of Channel 224A at San Saba. 
12. Section 316(a) of the Act requires that we notify the affected station of the proposed action, as well as the public interest reasons for the action, and afford the licensee at least 30 days to respond.  This procedure is codified in section 1.87 of the Commission’s rules. 47 CFR § 1.87.
  Pursuant to Section 1.87, S Content may, no later than January 31, 2022, file a written statement showing with particularity why the KNUZ license should not be modified as proposed in this Notice of Proposed Rule Making and Order to Show Cause.  We may call upon S Content to furnish additional information.  If S Content raises substantial and material questions of fact, a hearing may be required to resolve such questions of fact.  Upon review of the statements and/or additional information furnished, the Commission may grant the modification(s), deny the modification(s), or set the matter of modification for hearing.  If no written statement is filed by the date referred to above, S Content will be deemed to have consented to the proposed modification(s) and a final order will be issued if the modification(s) is (are) found to be in the public interest. 
13. Notice of Proposed Rulemaking.  We seek comment on the addition of a vacant allotment to the FM Table of Allotments, as follows:   
Channel No.
City				Present				Proposed
			Hamilton, Texas			-----				263A	
IV. PROCEDURAL MATTERS
14. Showings Required.  Comments are invited on the proposal discussed in this Notice of Proposed Rulemaking (NPRM).  Petitioner or any party that expresses interest in the allotment will be expected to answer whatever questions are presented in initial comments.  The petitioner of a proposed allotment is required to file comments even if it only resubmits or incorporates by reference its former pleadings.  The petitioner must restate its present intention to apply for the channel if it is allotted and, if authorized, to build a station promptly.  Failure to file may lead to denial of the request.  Any requests by a proponent for withdrawal or dismissal of an allotment request must be filed with the Commission in accordance with section 1.420(j) of the Rules. 47 CFR § 1.420(d).

15. Cut-off Protection.  The following procedures will govern the consideration of the filings in this proceeding:
(a) Counterproposals advanced in this proceeding itself will be considered, if advanced in initial comments, so that parties may comment on them in reply comments.  They will not be considered if advanced in reply comments. 47 CFR § 1.420(j).
  
(b) The filing of a counterproposal may lead the Commission to allot a different channel than was requested in the Petition. 47 CFR § 1.420(g)(2).

16. Comments and Reply Comments.  Pursuant to sections 1.415, 1.419, and 1.420 of the Rules, 47 CFR §§ 1.415, 1.419, and 1.420.
 interested parties may file comments and reply comments on or before the dates indicated on the first page of this document.  Comments may be filed using the Commission’s Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).
  Electronic Filers:  Comments may be filed electronically using the Internet by accessing the ECFS:  http://apps.fcc.gov/ecfs/.  Parties that choose to file electronically only need to submit one copy of each filing so long as the submission conforms to all procedural and filing requirements.  Online filing is optional.
· Paper Filers:  Parties who choose to file by paper must file an original and one copy of each filing.  If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.  Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail.  All filings must be addressed to the Commission’s Secretary, Office of the Secretary, Federal Communications Commission.  Any paper filing that is not addressed to the Office of the Secretary will be treated as filed on the day it is received in the Office of the Secretary.  Accordingly, failure to follow the specified requirements may result in the treatment of a filing as untimely.
o Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701.
o U.S. Postal Service first-class, Express, and Priority mail must be addressed to 45 L Street, NE, Washington DC  20554.
o Effective March 19, 2020, and until further notice, the Commission no longer accepts any hand or messenger delivered filings. This is a temporary measure taken to help protect the health and safety of individuals, and to mitigate the transmission of COVID-19. See FCC Announces Closure of FCC Headquarters Open Window and Change in Hand-Delivery Policy, Public Notice, 35 FCC Rcd 2788 (2020).

o During the time the Commission’s building is closed to the general public and until further notice, if more than one docket or rulemaking number appears in the caption of a proceeding, paper filers need not submit two additional copies for each additional docket or rulemaking number; an original and one copy are sufficient.
17. Service.  Pursuant section 1.420 of the Rules, 47 CFR § 1.420.
 all submissions by parties to this proceeding or by persons acting on behalf of such parties must be made in written comments, reply comments, or other appropriate pleadings.  The person filing the comments shall serve comments on the petitioners.  Reply comments shall be served on the person(s) who filed comments to which the reply is directed.  A certificate of service shall accompany such comments and reply comments. See 47 CFR §1.420(a), (b) and (c).
  Additionally, a copy of such comments should be served on counsel for petitioner, as follows:
Allan G. Moskowitz, Esq.
10845 Tuckahoe Way
North Potomac, MD 20878
18. Ex Parte Notices– Restricted.  The proceeding this Notice initiates shall be treated as a “restricted” proceeding in accordance with the Commission’s ex parte rules. 47 CFR §§ 1.1200 et seq.
  For purposes of this restricted notice and comment rulemaking proceeding, members of the public are advised that no ex parte presentations are permitted from the time the Commission adopts a notice of proposed rulemaking until the proceeding has been decided and such decision in the applicable docket is no longer subject to reconsideration by the Commission or review by any court. 47 CFR § 1.1208.
  An ex parte presentation is not prohibited if specifically requested by the Commission or staff for the clarification or adduction of evidence or resolution of issues in the proceeding.  47 CFR § 1.1204(a)(10).
  However, any new written information elicited from such a request or any summary of any new information shall be served by the person making the presentation upon the other parties to the proceeding in a particular docket unless the Commission specifically waives this service requirement. 47 CFR § 1.1204(a)(10)(ii).  In addition, an oral presentation in a restricted proceeding not designated for hearing requesting action by a particular date or giving reasons that a proceeding should be expedited other than the need to avoid administrative delay is permitted. A detailed summary of the presentation must be filed in the record and served by the person making the presentation on the other parties to the proceeding, who may respond in support or opposition to the request for expedition, including by oral ex parte presentation, subject to the same service requirement.  47 CFR § 1.1204(a)(11).
  Any comment that has not been served on the petitioner constitutes an ex parte presentation and shall not be considered in the proceeding.  Any reply comment which has not been served on the person(s) who filed the comment, to which the reply is directed, constitutes an ex parte presentation and shall not be considered in the proceeding. 
19. Availability of Documents.  Comments, reply comments, and ex parte submissions will be available for public inspection via ECFS (http://apps.fcc.gov/ecfs/).  Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat.
20. Paperwork Reduction and Regulatory Flexibility.  The Commission has determined that the relevant provisions of the Regulatory Flexibility Act of 1980, as amended, See 5 U.S.C. § 603.  The RFA, see 5 U.S.C. § 601 et seq., has been amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), Pub. L. No. 104-121, Title II, 110 Stat. 857 (1996).  The SBREFA was enacted as Title II of the Contract with America Advancement Act of 1996 (CWAAA).
 do not apply to a rulemaking proceeding to amend the FM Table of Allotments, section 73.202(b) of the Rules. 47 CFR § 73.602(b).
  This document does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995. See 44 U.S.C. §§ 3501-3520.
  In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002. See 44 U.S.C. § 3506(c)(4).

21. People with Disabilities.  To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).
22. Additional Information.  For further information concerning this proceeding, contact Nazifa Sawez, Audio Division, Media Bureau, at (202) 418-7059, nazifa.sawez@fcc.gov.  
V. ORDERING CLAUSES
23. Accordingly, IT IS ORDERED, that the petition for reconsideration filed by B Plus, Broadcasting, LLC, on April 27, 2021, IS GRANTED to the extent described in paragraph 1, supra.
24. IT IS FURTHER ORDERED that pursuant to 47 U.S.C. § 316(a) and 47 CFR § 1.87, that, on or before January 31, 2022, S Content Marketing, LLC, SHALL SHOW CAUSE why the license of KNUZ(FM), San Saba, Texas, should not be modified to specify Channel 291A in lieu of Channel 224A.  
25. IT IS FURTHER ORDERED that, pursuant to authority found in 47 U.S.C. sections 4(i), 5(c)(1), 303(g) and (r), and 307(b) of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 155(c)(1), 303(g), (r), and 307(b) and sections 0.61, 0.204(b), and 0.283 of the Rules, 47 CFR §§ 0.61, 0.204(b), and 0.283, IT IS PROPOSED TO AMEND the FM Table of Allotments, section 73.622(i) of the Rules, 47 CFR § 73.202(b), as set forth in this Notice of Proposed Rulemaking, and this Notice of Proposed Rulemaking IS ADOPTED.  
26. IT IS FURTHER ORDERED that, pursuant to applicable procedures set forth in sections 1.415, 1.419, 1.420 of the Rules, 47 CFR §§ 1.415, 1.419, and 1.420, interested parties may file comments and reply comments on the NPRM in MB Docket No. 21-483 and RM-11913 on or before February 7, 2022 and reply comments on or before February 22, 2022 .
27. IT IS FURTHER ORDERED the application for modification of station KRNR(FM), Goldthwaite, Texas, filed on March 10, 2020 (Application File No. 107517), IS REINSTATED AND ACCEPTED FOR FILING.
28. IT IS FURTHER ORDERED that a copy of this Notice of Proposed Rule Making and Order to Show Cause SHALL BE SENT by certified mail, return receipt requested, to the following:
Allan G. Moskowitz, Esq.
10845 Tuckahoe Way
N Potomac, MD 20879

John C. Trent, Esq.
Putbrese Hunsaker & Trent, P.C.
200 S. Church St
Woodstock, VA 22664

						FEDERAL COMMUNICATIONS COMMISSION



Nazifa Sawez
Assistant Chief, Audio Division 
Media Bureau