*Pages 1--3 from Microsoft Word - 7929.doc* Federal Communications Commission FCC 01- 116 Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D. C. 20554 In re Application of ) ) CAMERON BROADCASTING COMPANY ) File No. BMPH- 19981202IA ) to Modify the Construction Permit of FM ) Station KHTZ( FM) for Operation on Channel ) Facility ID No. 84381 286C3 at Cameron, Texas ) MEMORANDUM OPINION AND ORDER Adopted: March 29, 2001 Released: April 2, 2001 By the Commission: 1. Cameron Broadcasting Company (“ CBC”) seeks review of the Mass Media Bureau’s (“ Bureau’s”) denial of its Petition for Reconsideration 1 of the Bureau’s action rescinding its prior grant of CBC’s application for a “one- step” modification of its construction permit for FM broadcast station KHTZ, Cameron, Texas. CBC now requests that we vacate the rescission and reinstate the grant of its modification application. For the reasons discussed below, we deny CBC’s Application for Review. 2. Background: CBC filed its application for a new FM broadcast station construction permit at Cameron, Texas on Channel 232A on November 18, 1996. 2 The only other applicant for the Cameron construction permit eventually settled with CBC, leaving CBC as the only applicant. CBC’s application was granted October 28, 1998. 3 3. On September 11, 1997, Houston Christian Broadcasters, Inc. (“ HCBI”) filed an application for a new non- commercial educational (“ NCE”) FM broadcast station construction permit on non-reserved Channel 257A at Thorndale, Texas. 4 Five commercial applications were also filed for the Thorndale allotment. On November 30, 1998, HCBI filed a Petition for Rule Making (“ Rule Making Petition”), seeking to amend the FM Table of Allotments to add Channel *286A at Thorndale, Texas for an NCE station. 5 This “mixed” commercial and non- commercial Thorndale application group for Channel 257A was subject to a processing freeze then in effect on conflicting NCE and commercial 1 Letter to Henry E. Crawford, Esq. and Jeffrey D. Southmayd, Esq., Ref. No. 1800B3- TSN (Audio Services Division, Mass Media Bureau, July 5, 2000). 2 File No. BPH- 961118M8. 3 Letter to Henry E. Crawford, Esq. and John M. Burgett, Esq., Ref. No. 1800B3- GDG (Audio Services Division, Mass Media Bureau, October 28, 1998). 4 File No. BPED- 970911MA. 5 Petition for Rule Making, In the Matter of Amendment of Section 73.202( b), Table of Allotments, FM Broadcast Stations (Thorndale, Texas), RM- 9675, MM Docket No. 99- 243 (November 30, 1998). 1 Federal Communications Commission FCC 01- 116 2 applications. 6 Adding a reserved channel in Thorndale provided HCBI with the opportunity to prosecute its NCE proposal, while permitting the remaining Thorndale commercial applicants to go to auction. 7 The Rule Making Petition, at the time it was filed, was not mutually exclusive with CBC’s construction permit. 4. Two days later, on December 2, 1998, CBC filed the above- captioned modification application, in which it sought to change from Class A to Class C3, and from Channel 232 to Channel 286. This modification application was mutually exclusive with HCBI’s Rule Making Petition. 8 However, HCBI’s Rule Making Petition was not timely entered in the Commission’s computer database. As a result, the staff failed to consider the pendency of the Rule Making Petition when it granted CBC’s modification application on March 12, 1999. Thereafter, on April 16, 1999, HCBI filed a petition for reconsideration of the grant of CBC’s modification application. The Bureau granted HCBI’s petition by letter dated December 20, 1999, 9 rescinding the CBC grant and informing CBC that its modification application would be deemed a counterproposal in the then- pending HCBI rule making proceeding. 10 5. Discussion: In its Application for Review, CBC contends that the Bureau erred in rescinding the grant of its modification application, because the prior- filed Rule Making Petition was defective as filed. First, CBC argues, HCBI’s proffered justification for the Rule Making Petition – namely, the elimination of a “mixed” commercial- NCE application group – is no longer valid, since the Commission subsequently adopted rules extending auction procedures to mixed groups of competing commercial and NCE applicants in Reexamination of the Comparative Standards for Noncommercial Educational Applicants, 15 FCC Rcd 7386, 7435- 36 (2000), Order on reconsideration, 16 FCC Rcd ___ (rel. February 28, 2001), appeal docketed, National Public Radio v. F. C. C., No. 00- 1246 (D. C. Cir. June 12, 2000). Second, CBC reiterates its contention that the Rule Making Petition is “defective on its face” because HCBI does not qualify for an NCE allotment of a non- reserved channel. 11 6. CBC’s substantive arguments against the HCBI Rule Making Petition have been properly raised in CBC’s various filings in the HCBI rule making proceeding. 12 The sole issue here is whether CBC’s modification application must be considered as a counterproposal to the HCBI Rule Making Petition. Significantly, CBC does not challenge the Bureau’s holding that where a rule making petition is filed prior to a conflicting application and such application is filed prior to the comment deadline in the rule making proceeding, the application will be treated as a counterproposal in the rule making. 6 See Public Notice, “FCC Freezes Comparative Proceedings,” 9 FCC Rcd 1055 (1994); First Report and Order, In the Matter of Implementation of Section 309( j) of the Communications Act – Competitive Bidding for Commercial Broadcast and Instructional Television Fixed Service Licenses, 13 FCC Rcd 15920, 15930, ¶ 25 (1998). 7 Rule Making Petition, ¶ 3. 8 KHTZ and HCBI’s proposed station at Thorndale are 44 kilometers apart; the minimum spacing between co-channel Class A and C3 stations is 142 kilometers. 47 C. F. R. §73. 207( b)( 1). 9 Letter to Jeffrey D. Southmayd, Esq. and Henry E. Crawford, Esq., Ref. No. 1800B3- TSN (Audio Services Division, Mass Media Bureau, December 20, 1999). 10 Notice of Proposed Rule Making, In the Matter of Amendment of Section 73. 202( b), Table of Allotments, FM Broadcast Stations (Thorndale, Texas), RM- 9675, MM Docket No. 99- 243 (July 2, 1999). 11 Application for Review, ¶¶ 9- 12. 12 Petition for Reconsideration, RM- 9675, MM Docket No. 99- 243 (August 2, 1999); Comments of Cameron Broadcasting Company, RM- 9675, MM Docket No. 99- 243 (August 23, 1999); Motion to Strike Supplement to Comments of Houston Christian Broadcasters, Inc., RM- 9675, MM Docket No. 99- 243 (June 30, 2000). 2 Federal Communications Commission FCC 01- 116 3 Amendment of the Commission’s Rules to Permit FM Channel and Class Modifications by Application, 8 FCC Rcd 4735, 4738 n. 22 (1993). Therefore, we conclude that the staff acted correctly in rescinding the grant of the CBC application, in order to permit its comparative consideration in the HCBI rule making proceeding. 8 FCC Rcd at 4739. It is in that proceeding that the merits of CBC’s arguments against HCBI’s Rule Making Petition will be considered. 7. Conclusion: For the foregoing reasons, we find that the Bureau properly denied CBC’s Petition for Reconsideration. Accordingly, Cameron Broadcasting Company’s Application for Review IS DENIED. FEDERAL COMMUNICATIONS COMMISSION Magalie Román Salas Secretary 3