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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) MM Docket No. 90-466 Amendment of Section 73.202(b), ) RM-7327 Table of Allotments, ) RM-7987 FM Broadcast Stations. ) RM-7988 (Hondo, Hollywood Park, and Dilley, Texas)) RM-8705 MEMORANDUM OPINION AND ORDER Adopted: December 30, 1997Released: January 9, 1998 By the Chief, Policy and Rules Division: 1. The Commission has before it a petition for reconsideration filed by Reding Broadcasting Company ("Reding"), licensee of Station KBUC (FM), Pleasanton, Texas, of the Report and Order, 7 FCC Rcd 7610 (1992) in the above captioned proceeding. The Report and Order allotted Channel 255C2 at Dilley, Texas, at the request of Aguilar Broadcasting of Texas ("Aguilar") and dismissed, at the petitioner's request, the petition for rule making and comments filed by Radio Medina, Inc. ("Medina") requesting the substitution of Channel 254C3 for Channel 253A at Hondo, Texas. It also dismissed counterproposals filed by Reding and M&R Communications as technically deficient. Reding and James Withers, licensee of Station KRBH(FM), Hondo, Texas, and owner of Five Points Broadcasting, permittee of Station KEEP(FM), Bandera, Texas, filed a "Joint Update of and Supplement to Petition for Reconsideration" and Reding filed a "Supplement to Petition for Reconsideration" and "Motion to Accept Supplement to Petition for Reconsideration." 2. Background. This proceeding originated with the filing of a petition for rule making by Medina which proposed the substitution of Channel 254C3 for Channel 253A at Hondo, and modification of Station KRBH-FM's construction permit to specify operation on the new channel. See Notice of Proposed Rule Making, in this proceeding, 5 FCC Rcd 6265 (1990) ("Notice"). Medina subsequently withdrew its expression of interest. Reding's counterproposal requested the substitution of Channel 253C2 for Channel 252A at Pleasanton, Texas and the modification of Station KBUC-FM's (formerly KBOP-FM) license accordingly. In order to accommodate the substitution at Pleasanton, Reding also requested the substitution of Channel 276A for Channel 252A at Bandera, Texas, and modification of the license of Station KEEP(FM); a change in the reference coordinates for the pending allotment of Channel 276C2 to Karnes City, Texas which was considered and granted in MM Docket 91-56; and the substitution of Channel 290A for Channel 253A at Hondo, Texas and the modification of the construction permit of Station KRBH(FM). 3. The Report and Order held that, pursuant to the minimum distance separation requirements that became effective on October 2, 1989, see Second Report and Order in MM Docket 88-375, 4 FCC Rcd 6375 (1989), Reding's proposals for Class A equivalent channel substitutions at Bandera and Hondo were short-spaced to Mexican allotments. Using the coordinates specified in Reding's counterproposal, the Commission's engineering analysis indicated that Channel 276A at Bandera would be short-spaced to Channel 276B at Cuidad Acuna, Coahila, Mexico; and Channel 290A was short-spaced to vacant Channel 290C, Sabinas, Coahila, Mexico. Thus, the counterproposal was not considered in the proceeding and was not placed on public notice. 4. Petition for Reconsideration. On reconsideration, Reding argues that the Commission erroneously applied the Section 73.207(b) minimum distance separation requirements to its counterproposal and treated the channel substitutions at Hondo and Bandera as requests for 6 kilowatt Class A allotments. It claims that since the proposals at both Hondo and Bandera were equivalent channel substitutions for stations operating at 3kilowatts, and not allotments of new channels, the equivalent channels were 3 kilowatt Class A channels and not 6 kilowatt. Reding argues that the proposals, if correctly considered as 3 kilowatt proposals, would have been fully spaced both to domestic and foreign allotments. Reding also argues that the Commission erred in the Report and Order in this docket when it based this determination on the Second Report and Order in MM Docket 88-375. Reding argues that the Second Report and Order in MM Docket 88-375 is silent on the treatment of allotments in the Mexican Treaty Zone, and thus did not apply to those allotments. As further support of this argument, it points to Section 73.207(b)(3) of the Commission's Rules. It claims that 3 kilowatt spacings should have applied to its Hondo and Bandera proposals because they were governed by Section 73.207(b)(3) which provides for 3 kilowatt spacings for Class A stations, and which was not amended in the Second Report and Order in MM Docket 88-375. Using those spacings, they should have been found fully spaced with respect to both U.S. and Mexican allotments and acceptable for filing. It also argues that the U.S./Mexican Agreement of 1972 supports this argument because it provides only for 3 kilowatt Class A allotments. In addition, it argues that because the Second Report and Order in MM Docket 88-375 is silent on the treatment of allotments in the Mexican Treaty Zone, Section 73.207(b)(1) setting forth the minimum distance separation requirements for domestic U.S. allotments was limited to the areas outside the Mexican and Canadian border zones, and thus did not apply to its proposal. Finally, it claims that because of this silence in the Second Report and Order in MM Docket 88-375, the Commission failed to give adequate notice of the requirements it imposed in this matter. 5. In a supplement filed in March 1995, Reding requested that the Commission consider granting reconsideration based on two changed circumstances. One circumstance was the passage of a new agreement between the U.S. and Mexico under which its proposals would be fully spaced. The other circumstance was that new parties were in control of the Hondo and Bandera stations, and they agreed in writing to the changes requested in Reding's counterproposal. 6. Discussion. We will deny the petition for reconsideration. Contrary to Reding's argument, the Second Report and Order in MM Docket 88-375 and the text of Section 73.207(b)(1) clearly state that all U.S. proposals for Class A stations filed after October 2, 1989, were required to meet the minimum distance separation requirements in Table A, Section 73.207(b)(1) of the Rules corresponding to 6kW operation. This was the rule regardless of the station's location or actual operating power. Furthermore, Table C of Section 73.207(b)(3) specified the required minimum distances from which U.S. allotments within 320 kilometers of the Mexican border must be separated from Mexican allotments. The text of that rule also provides that "U.S. Class A assignments operating with more than 3kW ERP. . . are considered to be Class B." The Memorandum Opinion and Order in MM Docket No. 88-375, 6 FCC Rcd 3417, (1991), further underscores this point. It clearly states that all Class A allotments filed after October 2, 1989, would require concurrence of the Mexican government to modify the bilateral table to change the allotment to Class B. That document also notes that the allotment would be required to meet the minimum distance separations corresponding to Class B operation with respect to foreign allotments and assignments. Memorandum Opinion and Order in MM Docket No. 88-375, 6 FCC Rcd 3417, 3423 (1991). Therefore, all new Class A allotments filed after October 2, 1989 were required to meet the 6 kilowatt spacings with respect to domestic and foreign allotments. This was true of any proposal, whether for a new channel or a substitution channel for an existing allotment, and was the procedure followed by the Commission for every allotment requested in both border areas after October 2, 1989. Reding's counterproposal was filed on December 17, 1990. Thus, Reding's allotment proposal meeting only the 3 kilowatt spacings with respect to Mexican allotments was unacceptable for filing and properly dismissed without consideration. 7. Reding is also incorrect in its argument that the rule allows an allotment in the Mexican Treaty Zone to meet the 3 kilowatt spacings but allotments outside of the Mexican Treaty Zone to meet the 6 kilowatt spacings. The language of Section 73.207(b)(1) is unambiguous: "Domestic allotments and assignments must be separated from each other by no less than the distances in Table A...." This was true in all areas of the country, including the border areas, and included all proposals, even same class substitutions. Although Table C in Section 73.207(b)(3) provided spacings that took into account all existing 3 kilowatt Class A stations in the Mexican border areas, this referencing to 3 kilowatt spacings was done because those were the requirements of the treaty with Mexico then in effect. This referencing to 3 kilowatt spacings did not contemplate new Class A 3 kilowatt allotments being created in those areas. 8. Reding further claims that the Second Report and Order in MM Docket 88-375 failed to give proper notice to parties filing proposals in the Mexican border area by not explicitly stating that new Class A allotments in the border areas would be treated as Class B allotments with respect to Mexican allotments, and be required to comply with the corresponding minimum distance spacing requirements for Class B operations. These arguments are beyond the scope of this proceeding. They go to the legal substance of the Second R&O in MM Docket 88-375 and should have been raised in a timely filed petition for reconsideration of that action. They are without merit in any event, because the Second R&O in MM Docket 88-375 and the text of Section 73.207 clearly state that all new Class A allotments requested after October 2, 1989, would be required to comply with the minimum distance separation requirements corresponding to 6 kilowatt operation. All of these allotments would thus fall within the category of stations operating at more than 6 kilowatts ERP and 91km HAAT, with respect to Mexico and would be treated as Class B stations with respect to Mexico. 9. With respect to the changed circumstances raised by Reding in its supplement, we note initially that the passage and ratification of the 1992 agreement between the U.S. and Mexico has no affect on our decision herein. The counterproposal was defective on the date it was filed and was properly dismissed without consideration. Our law is well settled on this point. Counterproposals must be technically correct and substantially complete at the time of filing. See Sanford and Robbins, North Carolina, 12 FCC Rcd 1 (1997); see also Broken Arrow and Bixby, Oklahoma, and Coffeeville, Kansas, 3 FCC Rcd 6507 (1988), recon. denied, 4 FCC Rcd 6981 (1989). Although the counterproposal cannot, therefore, be considered in this proceeding, it could be refiled and treated in a new proceeding. 10. Accordingly, the Petition for Reconsideration filed by Reding Broadcasting IS DENIED. 11. IT IS FURTHER ORDERED That is proceeding IS TERMINATED. 12. For further information concerning this proceeding, contact Victoria M. McCauley, Mass Media Bureau, (202) 418-2130. FEDERAL COMMUNICATIONS COMMISSION Douglas W. Webbink Chief, Policy and Rules Division Mass Media Bureau