$// R. Donnie Goodale, Lenoir, NC, MO&O, FCC 94-333 //$
$/ 1/106 Petition for Reconsideration, Denied /$
$/ 73.3573(g) FM "Hard Look" Rules, Procedural /$
///newjob///
$///FCC 94-333 12-30-94///$
                               Before The
                    FEDERAL COMMUNICATIONS COMMISSION      FCC 94-333
                         Washington, D.C.  20554


In re Application of          )
                              )
R. DONNIE GOODALE             )    File No. BPH-890615MF
                              )
For Construction Permit For A )
New FM Station on Channel 277A)
Lenoir, North Carolina        )

MEMORANDUM OPINION AND OR  DER 

Adopted:  December 22, 1994;  Released: January 6, 1995

By the Commission:

     1.  The Commission has under consideration the petition for
reconsideration filed on December 22, 1992 by R. Donnie Goodale
("Goodale").

     2.  Previously, the staff dismissed Goodale's above-
captioned application pursuant to the FM "hard look" processing
rules because Goodale had provided inconsistent geographic
coordinates for his proposed transmitter site and that
inconsistency could not be resolved confidently and reliably by
information available in the application.  Sundown
Communications, 5 FCC Rcd 7079 (MM Bur. 1990).  On December 31,
1990, Goodale filed a petition for reconsideration of the
dismissal.  That petition, pursuant to 47 C.F.R.  1.104(b), was
referred to the Commission and was denied.  R. Donnie Goodale, 7
FCC Rcd 1495 (1992) ("Goodale I").  On March 23, 1992, Goodale
filed a petition for reconsideration of that action with the
Commission.  Again, reconsideration was denied.  R. Donnie
Goodale, 7 FCC Rcd 7672 (1992) ("Goodale II").

     3.  In the instant petition for reconsideration, Goodale
cites National Family Planning v. Sullivan, 979 F.2d 227 (D.C.
Cir. 1992), a court decision decided the day after the Commission
adopted Goodale II.  That decision, Goodale contends, "strongly
suggests" that the Commission erred in adopting the FM "hard
look" processing rules without first undertaking a notice and
comment rulemaking.

     4.  The Court of Appeals for the District of Columbia
Circuit recently held that challenges to the "procedural lineage"
of the "hard look" rules are governed by the sixty-day period
provision in 28 U.S.C.  2344 (1988).  JEM Broadcasting Company,
Inc. v. FCC, 22 F.3d 320, 325-326 (D.C. Cir. 1994), aff'g JEM
Broadcasting Company, Inc., 8 FCC Rcd 77 (1992).  Thus we reject
Goodale's procedural argument concerning the 1985 "hard look"
rules as untimely.  In any event, as the court in JEM also held,
the "hard look" rules are procedural in nature and were properly
adopted without a notice and comment rulemaking.  22 F.3d at 326-
328.  Moreover, the National Family Planning case, cited by
Goodale, is inapposite because it does not concern procedural
rules.  Rather, it concerns the distinction between legislative
and interpretative rules, a distinction not pertinent here.

     5.  Goodale's remaining arguments repeat contentions which
he made and which we rejected in Goodale I and Goodale II and
therefore do not warrant reconsideration.  See WWIZ, Inc., 37 FCC
685 (1965), aff'd sub nom. Lorain Journal Co. v. FCC, 351 F.2d
824 (D.C. Cir. 1965); Fresno FM Ltd. P'ship, 7 FCC Rcd 4339
(1992).

     6.  ACCORDINGLY, IT IS ORDERED, That the petition for
reconsideration filed on December 22, 1992 by R. Donnie Goodale
IS DENIED.

                              FEDERAL COMMUNICATIONS COMMISSION
                              
                              
                              William F. Caton
                              Acting Secretary