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FM Table of Allotments, Ehrenberg, AZ

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Released: December 6, 2013

Federal Communications Commission

DA 13-2342


Before the

Federal Communications Commission

Washington, D.C. 20554



In the Matter of
)


)

Amendment of Section 73.202(b),
)

Table of Allotments,
)
MB Docket No. 11-207
FM Broadcast Stations.
)
RM-11517
(Ehrenberg, First Mesa, Kachina Village, Munds
)
RM-11518
Park, Wickenburg, and Williams, Arizona)
)
RM-11669

)

Application of
)

Univision Radio License Corporation
)
File No. BPH-20080915AFP
KHOV-FM, Wickenburg, Arizona
)
Facility ID No. 29021




MEMORANDUM OPINION AND ORDER


Adopted: December 5, 2013

Released: December 6, 2013

By the Chief, Audio Division, Media Bureau:

1. We have before us a Petition for Reconsideration (the “Reconsideration Petition”) filed on
March 18, 2013, by Univision Radio License Corporation (“Univision”), licensee of Station KHOV-FM,
Wickenburg, Arizona. The Reconsideration Petition seeks review of the Report and Order1 in this
proceeding that dismissed Univision’s Petition for Rule Making and hybrid application (the “Wickenburg
Petition and Application”)2 and granted a Counterproposal filed by Grenax Broadcasting II, LLC
(“Grenax”), licensee of Station KBTK(FM), Kachina Village, Arizona (the “Counterproposal”).3 We
also have before us a Joint Request for Approval of Settlement Agreement (“Joint Request”) filed on July
26, 2013, by Grenax and Univision (collectively, the “Settling Parties”).4 The Joint Request seeks
approval for the withdrawal of Grenax’s Counterproposal and the reinstatement and grant of Univision’s
Wickenburg Petition and Application. For the reasons set forth below, we approve the Joint Request,
grant the Wickenburg Petition and Application, and dismiss Grenax’s Counterproposal and associated
application.
2.

Background.

The Settling Parties filed mutually exclusive proposals in this proceeding.
Initially, Univision filed the mutually contingent Wickenburg Petition and Application. The Wickenburg
Application proposed an upgrade for its Station KHOV-FM, Wickenburg, from FM Channel 287C2 to
Channel 286C0 at a new transmitter site. In order to facilitate this upgrade, the Wickenburg Petition
requested an involuntary channel change for Grenax’s Station KBTK(FM), Kachina Village, Arizona, from

1 See Ehrenberg, First Mesa, et al., Arizona, Report and Order, 28 FCC Rcd 1262 (MB 2013) (“R&O”).
2 See RM-11518 and File No. BPH-20080915AFP, respectively.
3 See RM-11669.
4 On July 26, 2013, Univision also filed a Supplement to Petition for Reconsideration.



Federal Communications Commission

DA 13-2342




Channel 286C2 to Channel 246C2.5 In response, Grenax filed a timely Counterproposal6 to allot Channel
246C2 to Munds Park, Arizona.7 The Counterproposal was mutually exclusive with the Wickenburg
Petition and Application because the proposed Channel 246C2 allotments at Munds Park and Kachina
Village are short-spaced under the minimum distance separation requirements.8
3. In the R&O, we comparatively evaluated the proposals under the Commission’s FM Allotment
Priorities.9 We found that, under Priority (4), other public interest matters, a second local service at Munds
Park is preferable to an increase in existing service at Wickenburg, including the provision of an additional
service to some underserved listeners.10 Therefore, we granted the Counterproposal, allotted Channel
246C2 at Munds Park, substituted Channel 281C for vacant Channel 247C at First Mesa, and dismissed the
Wickenburg Petition and Application. Thereafter, Univision timely filed the Reconsideration Petition,
arguing that the Wickenburg Petition and Application should be favored over Grenax’s Counterproposal on
various grounds.
4. On July 26, 2013, the Settling Parties filed the Joint Request, seeking approval of a Settlement
Agreement (the “Agreement”) under Section 1.420(j) of the Rules. 11 Under this Agreement, Grenax agrees
to withdraw its Counterproposal and long-form application for the Munds Park allotment and to implement
the Order to Show Cause to change Station KBTK(FM)’s frequency from Channel 286C2 to Channel
246C2 to accommodate the Wickenburg Application. In return, Univision agrees to reimburse Grenax
$59,628 for its legitimate and prudent expenses for prosecution of its Counterproposal and for the
negotiation and settlement process, 12 subject to the Commission reinstating and granting the Wickenburg

5 The Wickenburg Petition also requested channel substitutions for two vacant allotments. Specifically, it
proposed to substitute Channel 228C2 for vacant Channel 282C2 at Ehrenberg, Arizona, and to substitute Channel
281C for vacant Channel 247C at First Mesa, Arizona.
6 See Ehrenberg, First Mesa, et al., Arizona, Notice of Proposed Rule Making and Order to Show Cause, 26 FCC
Rcd 16965 (MB 2011) (“Notice”).
7 As required by Commission policy, Grenax filed a construction permit application (File No. BNPH-
20120221ACZ) for Channel 246C2 at Munds Park and paid the filing fees. In order to accommodate the Munds
Park allotment, Grenax also requested the substitution of Channel 281C for vacant Channel 247C at First Mesa.
8 See 47 C.F.R. § 73.207.
9 The FM Allotment Priorities are (1) first full-time aural service; (2) second full-time aural service; (3) first local
service; and (4) other public interest matters. Co-equal weight is given to priorities (2) and (3). See Revision of
FM Assignment Policies and Procedures,
Second Report and Order, 90 FCC 2d 88 (1982).
10 See R&O, 28 FCC Rcd at 1262. The Counterproposal would provide a second reception service to 246 persons,
a third reception service to 2,280 persons and a fourth reception service to 52 persons, as well as an overall
increase in service to 1.29 million persons.
11 See 47 C.F.R. § 1.420(j).
12 The Agreement itemizes these expenses as follows:
1. Legal expenses for prosecution of Counterproposal
$39,300
2. Engineering expenses for Counterproposal
$5,900
3. Legal expenses for settlement
$14,428
Total:
$59,628
See Joint Request for Approval of Settlement Agreement, Exhibit A, Settlement Agreement, Schedule A.
(continued….)

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Federal Communications Commission

DA 13-2342




Petition and Application.13 The Agreement also provides that Univision would reimburse Grenax for its
reasonable expenses in changing Station KBTK(FM)’s channel, which are estimated at $101,112.14 The
Settling Parties contend that this Agreement complies with Section 1.420(j) because, as documented by
affidavits, neither Grenax nor its principals has or will receive any money or other consideration in excess of
Grenax’s legitimate and prudent prosecution, settlement, and channel change expenses. They also believe
that this settlement will conserve the parties’ and the FCC’s resource s and expedite the initiation of
improved service to several Arizona communities. Accordingly, the Settling Parties request approval of the
Agreement.
5.

Discussion.

Section 1.420(j). We find that the Joint Request and the Agreement comply with
Section 1.420(j) because Grenax is withdrawing its Counterproposal in return for reimbursement of its
itemized and documented expenses incurred in prosecuting its Counterproposal and negotiating and seeking
approval of the settlement.15 Each party filed a declaration in accordance with Section 1.420(j), containing
an itemization of reimbursable expenses that have been or will be incurred.16 We have reviewed these
submissions and find them to be legitimate and prudent expenses under the Circleville guidelines.17
Accordingly, we approve the Joint Request and the Agreement pursuant to Section 1.420(j), vacate the
R&O, dismiss Grenax’s Counterproposal, and reinstate the Wickenburg Petition and Application.
6. Republication. Although the Settling Parties filed the Joint Request under Section 1.420(j), we
note that Section 73.3525(b) of the Rules is also relevant because Grenax is dismissing a conflicting, long-
(Continued from previous page)

13 See Univision’s Supplement to Petition for Reconsideration at 3.
14 The Agreement itemizes these estimated expenses as follows:
1. New Antenna
$31,112
2. Installation/Tower Crew
$30,000
3. Technical Services
$15,000
4. Promotional Expenses
$25,000
Total
$101,112
The agreement also provides that these estimates may increases due to vendor price changes over the passage of
time. See Joint Request for Approval of Settlement Agreement, Exhibit A, Settlement Agreement at 4 and
Schedule A.
15 See, e.g., Crowell, et al., Texas, Report and Order, 19 FCC Rcd 5347 (MB 2004) (approving withdrawal of an
expression of interest in an FM allotment proceeding in return for reimbursement of the party’s itemized and
documented out of pocket expenses in prosecuting its proposal).
16 See Joint Request for Approval of Settlement Agreement, Exhibit B, Declaration of Jose Valle of Univision and
Declaration of Greg Dinetz of Grenax.
17 See Circleville, Ohio, Second Report and Order, 8 FCC 2d 159, 163 (1967) (requiring that, whenever an existing
station is ordered to change frequency to accommodate another station, the benefiting station must reimburse the
affected station for its reasonable and prudent expenses and establishing guidelines for determining
reimbursement) (“Circleville”). See also,Howard M. Weiss, Esq., and Christopher D. Imlay, Esq., Letter, 28 FCC
Rcd 3234 (MB 2013) (approving reimbursement of legitimate and prudent expenses totaling $75,554 in
connection with an involuntary channel change).

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Federal Communications Commission

DA 13-2342




form application for the Munds Park allotment, 18 as well as the Counterproposal. Under Section
73.3525(b), whenever the terms of a settlement agreement between mutually exclusive broadcast
applications include the withdrawal of an application, the Commission requires republication of local notice
in the community of the withdrawing application if it determines that the application’s withdrawal would
unduly impede achievement of a fair, efficient, and equitable distribution of radio service under Section
307(b) of the Communications Act of 1934, as amended.19 In this case, we find that the dismissal of the
application would not unduly impede the principles embodied in Section 307(b) because Munds Park, a
small community with a population of 631 persons, already has one local service.20 The community also
receives 15 aural services.21 Additionally, the Section 307(b) preference in this case was made under
Priority (4), other public interest matters. Accordingly, we conclude that no local republication is required
and approve the dismissal of Grenax’s application for the Munds Park allotment.
7. Wickenburg Petition and Application. Having dismissed the Grenax Counterproposal and
associated long-form application, we will grant the Wickenburg Application to upgrade the class of channel
of Station KHOV-FM from Channel 287C2 to Channel 286C0. The upgrade will serve the public interest
because it will provide a net gain of service to 1,294,275 persons with no loss of service and will include
some new service to underserved areas.22 Further, to accommodate the Wickenburg Application, we will
also grant the allotments proposed in the Wickenburg Petition. First, we will modify the license of Station
KBTK(FM), Kachina Village, to specify operation on Channel 246C2 in lieu of Channel 286C2. Second,
we will substitute Channel 228C2 for vacant Channel 286C2 at Ehrenberg, Arizona. Third, we will retain
Channel 281C at First Mesa, Arizona, as this channel was already substituted for vacant Channel 247C at
First Mesa in the R&O.
8. Technical Matters. Channel 286C0 can be substituted for Channel 287C2 at Wickenburg at the
site specified in the Wickenburg Application, which has reference coordinates of 34-11-23 NL and 112-45-
18 WL.23 Because this site is located within 320 kilometers (199 miles) of the U.S.-Mexican border,
concurrence by Mexico has been obtained. Likewise, Channel 246C2 can be substituted for Channel 286C2
at the licensed site for Station KBTK(FM), Kachina Village, Arizona, at reference coordinates of 34-58-06
NL and 111-30-29 WL. Channel 228C2 can be substituted for Channel 286C2 at Ehrenberg, Arizona, at
reference coordinates of 33-36-54 NL and 114-24-14 WL.24 Finally, we will retain Channel 281C at First
Mesa, Arizona, at reference coordinates of 35-41-09 NL and 110-21-43 WL.

18 See File No. BNPH-20120221ACZ.
19 See 47 C.F.R. § 73.3525(b). See also 47 U.S.C. § 307(b).
20 Station KFSZ(FM) is licensed to Munds Park.
21 See, e.g., Elijah Broadcasting Corporation, Letter, 16 FCC Rcd 21561 (MB 2001) (not requiring republication
where community of withdrawing application has 3 local stations and receives 14 radio services).
22 See supra note 10. In view of our action granting the Wickenburg Petition and Application, we will dismiss
Univision’s Reconsideration Petition and Supplement as moot.
23 The allotment reference coordinates for Channel 286C0 at Wickenburg are 34-04-17 NL and 112-47-55 WL.
24 We are allotting Channel 228C2 at Ehrenberg at reference coordinates that are different from those requested in
the Wickenburg Petition in order to accommodate a proposal in a pending allotment proceeding. See Ehrenberg,
Arizona,
Notice of Proposed Rule Making, 28 FCC Rcd 5007 (MB 20013). In that proceeding, the rule making
petitioner proposed the substitution of Channel 228C2 at Ehrenberg at these reference coordinates in order to
accommodate a hybrid application for the reallotment of Station KSRX-FM from Twentynine Palms, California,
to North Shore, California. See File No. BPH-20120316ABT.

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Federal Communications Commission

DA 13-2342




9.

Conclusion/Ordering Clauses.

In view of the above, we conclude that the public interest is
served by approval of the Joint Request, grant of the Wickenburg Petition and Application, and the
dismissal of Grenax’s Counterproposal and associated application. Accordingly, pursuant to the authority
found in Sections 4(i), 5(c)(1), 303(g) and (r) of the Communications Act of 1934, as amended, and
Sections 0.61, 0.204(b), and 0.283 of the Commission’s Rules, IT IS ORDERED, That, effective,
January 21 2014, the FM Table of Allotments, Section 73.202(b) of the Commission’s Rules, IS
AMENDED, for the communities listed below, as follows:
Communities Channel Number
Ehrenberg, Arizona 228C2
First Mesa, Arizona 281C
Munds Park, Arizona ---

10. IT IS FURTHER ORDERED, that pursuant to Section 316 of the Communications Act of
1934, as amended, the license for Station KBTK(FM), Kachina Village, Arizona, Facility ID No. 14938,
IS MODIFIED to specify operation on Channel 246C2 in lieu of Channel 286C2, subject to the following
conditions:

(a) Within 90 days of the effective date of this Order, the license shall submit to the
Commission a minor change application for construction permit (Form 301);
(b) Upon grant of the construction permit, program tests may be conducted in accordance
with Section 73.1620;
(c) Nothing contained herein shall be construed to authorize a change in transmitter
location or to avoid the necessity of filing an environmental assessment pursuant to
Section 1.1307 of the Commission’s Rules.

11. IT IS FURTHER ORDERED, that the Joint Request for Approval of Settlement Agreement
filed by Grenax Broadcasting II, LLC and Univision Radio License Corporation IS GRANTED; the
Report and Order in MB Docket No. 11-207 IS VACATED; the Counterproposal (RM-11669) filed by
Grenax Broadcasting II, LLC, and the associated long-form application (File No. BNPH-20120221ACZ)
ARE DISMISSED; and the Petition for Rule Making (RM-11518) and the application (File No. BPH-
20080915AFP) filed by Univision Radio License Corporation ARE GRANTED.


12. IT IS FURTHER ORDERED, that the Petition for Reconsideration and Supplement to
Petition for Reconsideration filed by Univision Radio License Corporation ARE DISMISSED as moot.


13. The Audio Division SHALL SEND a copy of this Memorandum Opinion and Order to Mace
Rosenstein, Esq. and Daniel H. Kahn, Esq., Covington & Burling LLP, 1201 Pennsylvania Avenue, N.W.,
Washington, DC 20004 (Counsel to Univision); M. Scott Johnson, Esq., and Howard M. Weiss, Esq.,
Fletcher, Heald and Hildreth, PLC, 1300 N. 17th Street – Eleventh Floor, Arlington, Virginia 22209
(Counsel to Grenax); Greg Dinetz, Grenax Broadcasting II, LLC, 10337 Carriage Club Drive, Lone Tree,
CO 80124; and Christopher Wood, Esq., Univision Communications Inc., 5999 Center Drive, Los Angeles,
CA 90045.






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Federal Communications Commission

DA 13-2342





14. For further information concerning this proceeding, contact Andrew J. Rhodes, Media Bureau,
(202) 418-2120.









FEDERAL COMMUNICATIONS COMMISSION









Peter H. Doyle






Chief, Audio Division






Media Bureau



6



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