Federal Communications Commission DA 96-1901
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. ) 
(Cut and Shoot, Texas) )
MEMORANDUM OPINION AND ORDER 
(Proceeding Terminated)
Adopted: November 15,1996 Released: November 18,1996
By the Chief, Policy and Rules Division:
1. The Commission has before it the Petition for Reconsideration filed by Ben Walker 
Broadcasting, Inc. ("Walker Broadcasting"), directed to the staff action returning its Petition for 
Rule Making proposing the allotment of Channel 23 5 A to Cut and Shoot, Texas. For the reasons 
discussed below, we deny the Petition for Reconsideration.
2. Our action returning the Petition for Rule Making as technically unacceptable was 
premised on a short-spacing to the licensed site of Station KYKR, Channel 236C1, Beaumont, 
Texas. 1 In doing so, we recognized that the Walker Broadcasting proposal is fully spaced to the 
outstanding construction permit for Station KYKR, also on Channel 236C1 (File No. BPH- 
950117ID). We also stated that Walker Broadcasting could refile its Petition for Rule Making 
once the facilities authorized in the Station KYKR construction permit are constructed and 
licensed.
3. In its Petition for Rule Making, Walker Broadcasting argues that in the past, we have 
processed such petitions for rule making contingent on the licensing of facilities specified in an 
outstanding construction permit. As such, Walker Broadcasting requests that we afford similar 
consideration to its Petition for Rule Making.
'Section 73.207 of the Commission's Rules requires a separation of 133 kilometers between a Class A channel 
and a first adjacent Class Cl channel. The distance between the proposed Channel 235A allotment at Cut and Shoot 
and the licensed site for Channel 236C1 at Beaumont is 125 kilometers.
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Federal Communications Commission DA 96-1901
4. Processing petitions for rule making which would rely on other events by third parties 
to effect the compliance of the proposal with the separation requirements is not conducive to the 
efficient transaction of Commission business and imposes unnecessary burdens on the 
administrative resources of both the Allocations Branch and the Audio Services Division. 
Specifically, the facilities set forth in some outstanding construction permits are never built and 
licensed. If a Notice of Proposed Rule Making has been adopted and the construction permit 
subsequently cancelled, the Audio Services Division must notify the Allocations Branch and the 
Allocations Branch must then dismiss the petition for rule making and terminate the proceeding. 
In such a situation, adopting a Notice of Proposed Rule Making, dismissing a petition for rule 
making, and terminating a proceeding all represent avoidable and unnecessary expenditures of 
resources. Also, this imposes an unfair burden on parties who have filed comments in that 
proceeding. Additionally, the facilities specified in still other construction permits are often not 
built and licensed in a timely manner. In turn, this would delay resolution of a rulemaking 
proceeding because the "contingent" construction permit is not yet licensed. We do not see any 
public interest benefit in such a delay. In this connection, the delay in adopting a Report and 
Order is unfair to other parties in the proceeding with proposals that are not contingent on the 
licensing of facilities set forth in an outstanding construction permit.
5. The staff may have, in some instances in the past, processed rulemaking petitions 
contingent on the licensing of facilities in an outstanding construction permit. However, in a case 
such as that presented by Walker Broadcasting's proposal, there is no countervailing public 
interest sufficient to warrant consideration of a proposal which violates the rule, and we will not 
do so.2 This policy of not accepting petitions for rule making contingent on the licensing of 
facilities set forth in an outstanding construction permit will conserve Commission resources and 
enable us to process expeditiously the vast majority of rulemaking proposals which are not 
contingent on the licensing of facilities authorized in a construction permit.3 On balance, we do 
not believe that it is detrimental to the public interest to have some potential rulemaking 
proponents await the eventual licensing of facilities set forth in a construction permit before they 
may file a petition for rule making. If and when construction of the modified facilities of Station 
KYKR is completed and a license issued, Walker Broadcasting may resubmit its allotment 
proposal in full compliance with our rules.4
'Section 73.208 of the Commission's Rules clearly specifies the applicable reference point to be used in 
determining FM minimum separations as "authorized" transmitter sites. 47 C.F.R. §73.208(aXlXO- In this situation, 
both the licensed site and the construction permit site represent authorized sites and a rulemaking proponent must 
meet the separation requirements for both sites.
3In adopting this procedural policy, we stress that such a policy would not be applicable in situations in which 
a final Commission action in a rulemaking proceeding has modified a license or construction permit to specify 
operation on another channel. In those situations, a rulemaking proponent need only protect the authorization, as 
modified.
*The application of this procedural policy to consistently enforce our rules, as interpreted herein, does not require 
notice and opportunity for public comment. See 5 U.S.C. § 553(bX3XA); see also Section 1.412(bX4) of the Rules.
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Federal Communications Commission DA 96-1901
6. Accordingly, IT IS ORDERED, That the aforementioned Petition for Reconsideration 
filed by Ben Walker Broadcasting, Inc. IS DENIED.
FEDERAL COMMUNICATIONS COMMISSION
Douglas W. Webbink
Chief, Policy and Rules Division
Mass Media Bureau
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