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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 ) ) Amendment of Section 73.202(b), ) MM Docket No. 93-17 Table of Allotments, ) RM-8170 FM Broadcast Stations. ) (Rosendale, New York) ) MEMORANDUM OPINION AND ORDER (Proceeding Terminated) Adopted: January 5, 1998 Released: January 9, 1998 By the Chief, Policy and Rules Division: 1. The Commission has before it a Petition for Reconsideration filed by the State University of New York ("SUNY") directed to the Memorandum Opinion and Order in this proceeding, 12 FCC Rcd 10020 (1997). Sacred Heart University, Inc. and Aritaur Communications, Inc. each filed an Opposition to Petition for Reconsideration. SUNY filed a Reply. For the reasons discussed below, we dismiss the Petition for Reconsideration. Background 2. At the request of SUNY, licensee of noncommercial educational Station WFNP, Channel *204A, Rosendale, New York, the Notice of Proposed Rule Making, 8 FCC Rcd 947 (1993), proposed the allotment of Channel 273A to Rosendale, and modification of the Station WFNP license to specify operation on Channel 273A. In the Notice, we noted that should another party express an interest in providing Rosendale with an additional local service, Channel 255A would be available for allotment. We observed that SUNY had not requested that Channel 273A be reserved for noncommercial educational use. We also stated that Commission policy generally does not permit the reservation of a commercial channel for noncommercial educational use except where channels in the reserved portion of the FM band (Channels 201- 220) are not available due to Channel 6 interference or preclusion by a foreign allotment. For these reasons, we requested that SUNY provide information regarding the availability of channels in the noncommercial educational FM band and clarify whether it seeks to have Channel 273A allotted on a commercial or noncommercial educational basis. In response to the Notice, SUNY filed comments reiterating its intention to apply for the channel, if allotted. SUNY also stated that it did not want Channel 273A reserved for noncommercial educational use even though it will continue to operate Station WFNP as a noncommercial educational station. 3. The Report and Order, 10 FCC Rcd 11471 (1995), did not modify the noncommercial educational license of Station WFNP to operate on Channel 273A. Instead, it allotted Channel 273A to Rosendale and opened a filing window. SUNY filed a Petition for Reconsideration directed to Report and Order. In a subsequent Memorandum Opinion and Order, we denied that Petition for Reconsideration. 11 FCC Rcd 3607 (1996). Thereafter, the Commission denied an Application for Review directed to that staff action. In doing so, the Commission determined that SUNY could not use Section 1.420(g) of the Rules to modify a noncommercial educational license. The Commission also determined that allotting Channel 273A to Rosendale and opening a filing window was consistent with an earlier action in Sioux Falls, South Dakota, 51 FR 4169, February 3, 1986, and provided the greatest public interest benefit. 4. On August 1, 1997, SUNY filed this Petition for Reconsideration with the Chief, Allocations Branch, directed to the Commission action denying its Application for Review. In its Petition for Reconsideration, SUNY contends that the Commission decision "did not address one aspect" of its Application for Review which would permit modification of the Station WFNP license consistent with the Commission interpretation of Section 1.420(g) of the Rules. Specifically, SUNY now requests that we modify its license to specify operation on Channel 273A reserved for noncommercial educational use and allot Channel 255A to Rosendale in order to accommodate the pending applications for the Channel 273A allotment. In this regard, SUNY refers to its January 26, 1996, Consolidated Reply to the Oppositions to its original Petition for Reconsideration. In that Reply, SUNY stated, for the first time, that it would now accept a Channel 273A reserved for noncommercial educational use. 5. We dismiss the Petition for Reconsideration. The first argument set forth in this Petition for Reconsideration is repetitive with respect to an argument already considered by the Commission. The Commission clearly determined that the provisions of Section 1.420(g) of the Rules which permit a commercial FM station to modify its license to a nonadjacent channel are not available to a noncommercial educational station. Second, SUNY's willingness to accept Channel 273A reserved for noncommercial educational use after the adoption of the Report and Order does not represent changed facts or circumstances, or facts unknown to SUNY which normally permit entertaining a Petition for Reconsideration of a Commission action denying an Application for Review. SUNY could have requested prior to the Report and Order that its Station WFNP license be modified to Channel 273A as a noncommercial educational channel. To the contrary, it specifically requested that Channel 273A not be reserved for noncommercial educational use. In this situation, we do not believe that it would be in the public interest to permit SUNY to request that its license be modified to a commercial allotment, without entertaining competing expressions of interest, and, once an unfavorable decision is rendered, submit an untimely alternative request to have its license modified to Channel 273A reserved for noncommercial educational use. In addition to being unfair to the other nine applicants who have filed applications for the Channel 273A allotment based upon our action in the Report and Order, such a procedure would be contrary to the public interest benefit of an orderly and efficient transaction of Commission business. See Colorado Radio Corp.v.FCC, 118 F.2d 24 (D.C. Cir.1941); Idaho Broadcasting Consortium, Inc., 11 FCC Rcd 5264 (1996). 6. Accordingly, pursuant to Section 1.106(b)(3) of the Commission's Rules, IT IS ORDERED, That the aforementioned Petition for Reconsideration filed by the State University of New York IS DISMISSED. 7. For further information concerning this proceeding, contact Robert Hayne, Mass Media Bureau, (202) 418-2177. FEDERAL COMMUNICATIONS COMMISSION Douglas W.Webbink Chief, Policy and Rules Division Mass Media Bureau