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FM Table of Allotments, Culebra and Vieques, Puerto Rico

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Released: December 31, 1969

Federal Communications Commission DA 09-52

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)
Amendment of Section 73.202(b),
)
MB Docket No. 04-318
Table of Allotments,
)
RM-11040
FM Broadcast Stations.
)

(Culebra and Vieques, Puerto Rico
)

MEMORANDUM OPINION AND ORDER

Adopted: January 14, 2009 Released: January 16, 2009

By the Assistant Chief, Audio Division, Media Bureau:
1. The Commission has before it a Petition for Reconsideration filed by Western New Life,
Inc. ("Petitioner"), permittee of Station WJZG(FM) ("WJZG"), Channel 293A, Culebra, Puerto Rico,1
directed to the Report and Order in this proceeding.2 Oppositions to the Petition for Reconsideration
were filed by V.I. Stereo Communications Corp. ("V.I. Stereo"), Raul G. Rivera Menendez
("Menendez"), International Broadcasting Corporation ("IBC"), and Aerco Broadcasting Corporation
("Aerco"). Petitioner filed a Motion to Accept Late Filed Reply and a Reply.3 For the reasons stated
below, we deny the Petition for Reconsideration.
2.

Background.

Station WJZG received a construction permit to operate on Channel 293A
at Culebra, Puerto Rico in 1995, but the permit was conditioned upon the outcome of a rulemaking
proceeding in MM Docket No. 91-259. The Report and Order4 in that rulemaking proceeding
involved a "daisy chain" of allotments and substituted Channel 254A for Channel 293A at Culebra.
Petitioner states that neither it nor its predecessor in interest could be licensed on Channel 293A at
Culebra because that allotment had been removed. Moreover, it cannot commence operations on
Channel 254A until other station modifications are implemented. Petitioner obtained an STA to
operate the Culebra facility on Channel 293A in 1998 and has regularly renewed the STA which
permits WJZG to provide a first local service to Culebra.


1 Petitioner currently operates WJZG(FM) pursuant to Special Temporary Authority ("STA").
2 Culebra and Vieques, Puerto Rico, Report and Order, 21 FCC Rcd 6884 (MB 2006).
3 For good cause shown, Petitioner's motion is granted.
4 Canovanas, Culebra, Las Piedras, Mayaguez, Quebradillas, San Juan and Vieques, Puerto Rico and
Christiansted and Frederiksted, Virgin Islands
, Report and Order, 10 FCC Rcd 6673 (MMB 1995); recon.
denied
, Memorandum Opinion and Order, 11 FCC Rcd 16392 (MMB 1996); app. for rev. denied, Memorandum
Opinion and Order, 12 FCC Rcd 10055 (1997); further recon. denied, Memorandum Opinion and Order, FCC
99-147, released June 21, 1999 (64 Fed. Reg. 48307, September 3, 1999).

Federal Communications Commission DA 09-52

3. At the request of Petitioner, the Notice of Proposed Rule Making ("Notice ")5 in this
proceeding proposed the substitution of Channel 291A for Channel 254A at Culebra, Puerto Rico, in
an attempt to obtain a permanent authorization for Station WJZG. To accommodate the foregoing
allotment, the Notice proposed the deletion of Channel 291B at Vieques, Puerto Rico. The Notice
also stated that Channel 291B would not be deleted at Vieques if there was an expression of interest
for the channel. IBC, Aerco, Menendez and V.I. Stereo opposed the deletion of Channel 291B at
Vieques and expressed their interest in applying for that channel. In its comments and reply
comments, Petitioner argued that if there were expressions of interest for Channel 291B at Vieques,
that Channel 254A could be substituted for Channel 291B at Vieques, thus providing a second local
aural transmission service to Vieques, which is already served by a fulltime AM station, to allow
Station WJZG to obtain a permanent authorization on Channel 291A at Culebra, Puerto Rico.
Petitioner also claimed that Station WJZG is providing a first local service that the residents of
Culebra have come to rely upon after many years of operation, whereas the Vieques Channel 291B
allotment was never constructed, so that the residents of Vieques have not come to rely on that
particular service. Lastly, Petitioner asserted that the instant case is similar to the Bethel Springs et
al., Tennessee
("Bethel Springs") case.6 Petitioner claims that, in Bethel Springs, a vacant allotment at
Tiptonville, Tennessee, was downgraded to enable the reallotment, upgrade, and change in community
of license of an existing station which would provide first local service to a new community of
license. Thus, Petitioner argues, the Commission concluded that downgrading the vacant allotment
was appropriate because the public interest benefit of providing a first local service outweighed
downgrading an existing channel.
4. The Report and Order in this proceeding denied Petitioner's initial proposal to substitute
Channel 291A for Channel 254A at Culebra, Puerto Rico, as well as Petitioner's alternate proposal to
substitute Channel 254A for Channel 291B at Vieques and to allot Channel 291A to Culebra. The Report
and Order
rejected both proposals because several parties had filed expressions of interest to retain
Channel 291B at Vieques and to apply for it as a Class B allotment. In addition, the Report and Order
observed that since the Notice had not proposed the substitution of Channel 254A for Channel 291B at
Vieques as an alternative, the public had not been afforded the required opportunity to respond to this
alternate proposal. Lastly, the Report and Order found no compelling public interest benefit for deleting
Channel 291B at Vieques or substituting Channel 254A for Channel 291B at Vieques in order to
accommodate the allotment of Channel 291A at Culebra as a permanent authorization. The Report and
Order
also explained that Petitioner's reliance on Bethel Springs as a similar case was misplaced. In this
regard, the Report and Order noted that, in Bethel Springs, the downgrade of the Tiptonville, Tennessee
channel was proposed in the Notice of Proposed Rule Making in that proceeding, and no formal
expression of interest was submitted either opposing the downgrade or explicitly indicating that any
party had an interest in applying for the vacant Tiptonville channel.
5.

Discussion

. In its Petition for Reconsideration, Petitioner repeats the arguments it made in
its comments and reply comments. Petitioner claims that the staff should have given serious
consideration to Petitioner's alternative proposal, namely, substituting Channel 254A for Channel
291B at Vieques in order to accommodate the allotment of Channel 291A at Culebra. Petitioner states
that the Commission could have treated Petitioner's alternative proposal as a counterproposal since it
was recommended in Petitioner's comments as well as in its reply comments. Petitioner also asserts


5 Culebra and Vieques, Puerto Rico, Notice of Proposed Rule Making, 19 FCC Rcd 15389 (MB 2004).
6 Memorandum Opinion and Order, 17 FCC Rcd 14472 (MMB 2002).

2

Federal Communications Commission DA 09-52

that it was not necessary to publish a separate notice about Petitioner's alternate proposal, that the
alternative proposal was a "logical outgrowth" of the Notice, and that the public had ample
opportunity to review the comments on the Commission's website and at the Commission's offices
and could have filed reply comments. Petitioner observes that it and one other party filing reply
comments expressed interest in applying for Channel 254A at Culebra. Petitioner also argues that the
commenters who expressed their interest in applying for Channel 291B at Vieques did not file reply
comments stating any objection to substituting Channel 254A for Channel 291B at Vieques. We note
that the filing of reply comments is not required. We also observe that four commenters who
expressed their interest in applying for Channel 291B in Vieques also filed Oppositions to Petitioners'
Petition for Reconsideration, stating explicitly that they wished to apply for Channel 291B in Vieques.
Further, the staff was simply following relevant Commission precedents when it stated in the Notice
that Channel 291B in Vieques would not be deleted if there was an expression of interest for the
channel.7 Although the Report and Order was somewhat ambiguous as to the weight the staff gave to
the fact that the alternative proposal was not included in the Notice, we have considered Petitioner's
alternative proposal at this stage of the rulemaking proceeding and we do not perceive any compelling
public interest reason for granting Petitioner's original proposal or its alternative proposal. In this
regard, the Notice had already promised to retain Channel 291B at Vieques if there was an expression
of interest in that channel.

6. In its Petition for Reconsideration, Petitioner also argues that the Report and Order's result
is contrary to Bethel Springs. We find that Bethel Springs is not applicable to the case before us. In
brief, Bethel Springs was unique in several respects and, in any event, was a staff decision, and thus
not as binding as a Commission decision. We observe that Bethel Springs involved the downgrade of
a vacant channel in Tiptonville, Tennessee, that had received a construction permit, but whose permit
had expired. Thus, parties had already had the opportunity to apply for a construction permit for
Tiptonville and that process had been completed. In that light, Bethel Springs allowed the Tiptonville
channel to be downgraded so that a first local service could be awarded to a different community
under priority 3 of the FM allotment priorities.8 In the instant case, the process for determining
whether V.I. Stereo should retain its construction permit for Channel 291B at Vieques had not been
completed at the time the Report and Order was released. Further, in Bethel Springs, no formal
expression of interest was submitted either opposing the downgrade, or explicitly indicating that any
party had an interest in applying for the vacant Tiptonville channel, or building a station if its
application were granted. In the case before us, several parties have expressed interest in applying for
Channel 291B in Vieques, should that channel become vacant.
7. Previously, V.I. Stereo held a construction permit to build a new station on Channel 291B at
Vieques, but failed to construct before its permit expired. At the time the Report and Order herein was
adopted, V.I. Stereo had pending before the Commission an Application for Review of the recission of
the Vieques construction permit. Thus, at the time the Report and Order was adopted, Channel 291B


7 See, e.g., Montrose and Scranton, Pennsylvania, Memorandum Opinion and Order, 5 FCC Rcd 6305 (1990);
Driscoll, Texas, et al., Report and Order, 10 FCC Rcd 6528 (MMB 1995); and Martin, Tennessee, et al.,
Memorandum Opinion and Order, 15 FCC Rcd 12747 (MMB 2000).
8 See Revision of FM Assignment Policies and Procedures, Second Report and Order, 90 FCC 2d 88 (1982),
recon. denied, Memorandum Opinion and Order, 56 RR 2d 448 (1983). The FM allotment priorities are: (1) first
full-time aural service; (2) second full-time service; (3) first local aural transmission service and (4) other public
interest matters. Co-equal weight is given to priorities (2) and (3).
3

Federal Communications Commission DA 09-52

at Vieques was not technically vacant. Subsequently, the Commission partially granted V.I. Stereo's
Application for Review and reinstated the Vieques construction permit.9 An application for license to
cover the Vieques construction permit is currently pending.10 If V.I. Stereo receives a license for
Channel 291B at Vieques, Puerto Rico, Petitioner's Petition for Reconsideration would be rendered
moot, because Channel 291B would be occupied and could not be downgraded. In any event, there is
no basis for the requested reconsideration at this time.

8. The Commission will not send a copy of this Memorandum Opinion and Order in a report to be
sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act,
see 5 U.S.C. 801(a)(1)(A), because by denying the Petition for Reconsideration in this case, we are not
adopting any new rule which we need to report to the Congress or the Government Accountability
Office.
9. Accordingly, IT IS ORDERED That the Petition for Reconsideration filed by Western New
Life, Inc. IS DENIED.

10. IT IS FURTHER ORDERED that this proceeding IS TERMINATED.
11. For further information concerning this proceeding, contact Richard B. Gorman, Media Bureau,
(202) 418-2180.
FEDERAL COMMUNICATIONS COMMISSION
John A. Karousos
Assistant Chief
Audio Division
Media Bureau


9 See V.I. Stereo Communications Corp. ("VISCC Decision"), Memorandum Opinion and Order, 21 FCC Rcd
14259 (2006).
10 See File No. BLH-20080611AAE.
4

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