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FM Table of Allotments, Fredericksburg, Llano, et al., Texas

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Released: July 24, 2014
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Federal Communications Commission DA 14-1050

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. 05-112

FM Broadcast Stations.

)

RM-11185

(Fredericksburg, Converse, Flatonia,

)

RM-11374

Georgetown, Ingram, Lakeway, Lago Vista, Llano,

)

McQueen, Nolanville, San Antonio,

)

and Waco, Texas)

)

)

Amendment of Section 73.202(b),

)

MB Docket No. 05-151

Table of Allotments,

)

RM-11222

FM Broadcast Stations.

)

RM-11258

(Llano, Junction, and Goldthwaite, Texas)

)

)

MEMORANDUM OPINION AND ORDER

Adopted: July 23, 2014

Released: July 24, 2014

By the Chief, Audio Division, Media Bureau:

1. The Audio Division has before it a Petition for Reconsideration (“Petition”) filed August 10,

2007, by Rawhide Radio, LLC, Clear Channel Broadcasting Licenses, Inc., CCB Texas Licenses, LP, and

Capstar TX Limited Partnership (collectively, “Joint Parties”). The Petition seeks review of the Report

and Order in this proceeding,1 which denied a Counterproposal filed by the Joint Parties for a “daisy

chain” of FM allotments involving eleven communities and granted a mutually exclusive

Counterproposal (“Munbilla Counterproposal”) filed by Munbilla Broadcasting Properties, Ltd.

(“Munbilla Broadcasting”) for a new FM allotment at Goldthwaite, Texas.2

For the reasons discussed

below, we deny the Petition.

I. BACKGROUND

2. Almost five years before this proceeding began, the Joint Parties proposed a similar “daisy

chain” in the Quanah proceeding.3

The events in that proceeding form the primary basis for the Joint

Parties’ arguments in the current proceeding involving many of the same communities. In Quanah, the

Commission dismissed the Joint Parties’ proposal because of a technical defect. The Commission also

1 Fredericksburg, Converse, Flatonia, et al., Texas, Report and Order, 22 FCC Rcd 10883 (MB 2007)

(“Fredericksburg R&O”).

2 Oppositions to Petition for Reconsideration were filed by Charles Crawford and Katherine Pyeatt on August 27,

2007, Radio Ranch, Ltd. (“Radio Ranch”) on November 13, 2007, and Munbilla Broadcasting on November 13,

2007. The Joint Parties filed a Reply to Oppositions on November 23, 2007.

3 See Quanah, Texas, et al., Report and Order, 18 FCC Rcd 9495 (MB 2003), recon. denied, Memorandum Opinion

and Order, 26 FCC Rcd 7159 (2004) (“Quanah Reconsideration Decision”), rev. denied, Memorandum Opinion

and Order, 26 FCC Rcd 7159 (2011) (“Quanah Review Decision”) (collectively, “Quanah”)

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Federal Communications Commission

DA 14-1050

rejected the Joint Parties’ request to “bifurcate” their proposal and issue a separate Notice of Proposed

Rule Making on the portion that was not defective.

3. While the Joint Parties Application for Review was pending in the Quanah proceeding, they

refiled their proposal in the current proceeding. Specifically, this proceeding began with the issuance of

two unrelated Notices of Proposed Rule Making. First, at the request of Katherine Pyeatt, the Notice of

Proposed Rule Making in MB Docket No. 05-112 proposed the allotment of Channel 256C3 to

Fredericksburg, Texas.4

Second, at the request of Linda Crawford, the Notice of Proposed Rule Making

in MB Docket No. 05-151 proposed the allotment of Channel 297A to Llano, Texas.5

In response to the

Llano NPRM, Munbilla Broadcasting filed the Munbilla Counterproposal proposing the allotment of

Channel 297A to Goldthwaite, Texas. This Counterproposal is mutually exclusive with the Llano NPRM

because Channel 297A at Goldthwaite conflicts with Channel 297A at Llano under the Commission’s

minimum distance separation rule.6

In response to the Fredericksburg NPRM, the Joint Parties modified

and resubmitted their prior proposal as a Counterproposal. Among these proposed allotments were the

substitution of Channel 256A for then vacant Channel 243A at Ingram, Texas, and the substitution of

Channel 297A for 242A at Llano, Texas, for Rawhide Radio LLC’s Station KQBT(FM). Because these

proposed allotments were timely with respect to the Llano NPRM and the Munbilla Counterproposal, we

consolidated these dockets.7

4. The Fredericksburg R&O granted the Munbilla Counterproposal, allotting Channel 297A to

Goldthwaite, Texas, as a first local service. It also denied the Joint Parties Counterproposal because the

proposed substitution of Channel 297A at Llano was short-spaced to the Station KOOV(FM) (formerly

KHLB) construction permit at Burnet, Texas.8 The KVOO(FM) Application was filed and granted prior

to the filing of the Joint Parties Counterproposal in this proceeding. The Fredericksburg R&O

specifically noted that the Station KOOV(FM) construction permit is conditioned on the outcome of MM

Docket 00-148 and, except for the outcome of that proceeding, was entitled to cut-off protection from all

subsequently filed rule making proposals and applications.

5. In their Petition, the Joint Parties argue that the staff erred by (1) not affording their

Counterproposal cut-off protection dating back to the dismissal of their proposal in the Quanah

proceeding; (2) making inconsistent statements in the Quanah Reconsideration Order and the

Fredericksburg R&O about the refilling of their proposal; (3) processing the KOOV(FM) Application and

relying on the effective but non-final dismissal of the Joint Parties Counterproposal in Quanah; and (4)

not considering an engineering solution proposing alternate coordinates for the Channel 297A proposal at

Llano that would remove the conflict with Station KOOV(FM). Accordingly, the Joint Parties believe

that their Counterproposal should be reinstated and considered on the merits.

II. DISCUSSION

6. Section 1.429 of the Commission’s Rules sets forth the limited provisions under which the

Commission will reconsider an action in a rule making proceeding.9

Reconsideration is warranted only if

4 Fredericksburg, Texas, Notice of Proposed Rule Making, 20 FCC Rcd 6009 (MB 2005) (“Fredericksburg

NPRM”).

5 Llano and Junction, Texas, Notice of Proposed Rule Making, 20 FCC Rcd 6318 (MB 2005) (“Llano NPRM”).

6 See 47 C.F.R. § 73.207(b).

7 See Fredericksburg R&O, 22 FCC Rcd at 10883-84.

8 See File No. BPH-20030902ADU (the “KOOV(FM) Application”).

9 See 47 C.F.R. § 1.429.

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DA 14-1050

the petitioner cites error of fact or law or has presented facts or circumstances that otherwise warrant

Commission review of its prior action.10

The Joint Parties have not met this standard.

7. Cut-off Protection/Inconsistency. We find that no error was committed in the Fredericksburg

R&O by requiring the Joint Parties Counterproposal to protect the previously filed KOOV(FM)

Application at Burnett, Texas.

It is well established that counterproposals must protect the transmitter

sites of previously filed and cut-off applications.11

In this case, the Joint Parties Counterproposal, which

proposes, inter alia, the Channel 297A substitution at Llano, was filed on May 9, 2005. By way of

contrast, the KOOV(FM) Application was filed on September 2, 2003. The staff granted the unopposed

KOOV(FM) Application on June 29, 2004,12 subject to the outcome of the Quanah proceeding.13

Because Channel 297A at Llano conflicted with the transmitter site specified in the previously filed and

cut-off KOOV(FM) Application, the Joint Parties Counterproposal was technically defective at time of

filing and properly dismissed. We also find that, contrary to the assertion by the Joint Parties, the

Counterproposals filed in MB Docket No. 05-112 and MM Docket No. 00-148 are not the “same.” The

dismissal of the Joint Parties Counterproposal in MB Docket 00-148 became final in 2011 when no party

sought reconsideration or judicial review of the Quanah Review Decision.14

Finality in that proceeding

extinguished Joint Parties’ cut-off rights based on the initial Counterproposal filing. The refiling of the

dismissed Quanah Counterproposal in this proceeding does not revive that dismissed proposal or create

cut-off rights with regard to proposals in the present proceeding. We find Joint Parties’ reliance on a

single sentence in the Quanah Reconsideration Decision to establish unprecedented non-rule based cut-

off protection to be misplaced. The permission to refile their Counterproposal without prejudice provided

for therein15

related only to the erroneously accepted rule making petitions, not to other technically

acceptable proposals such as the KOOV(FM) Application. While the language used in the Quanah

Reconsideration Decision was admittedly inartful, it is beyond dispute that the staff lacks even the color

of authority to suspend on an ad hoc basis filing rules which establish the rights of thousands of filings

each year. Accordingly, we reject as meritless Joint Parties’ contention that the Fredericksburg R&O was

inconsistent with the Quanah Reconsideration Decision.

8. Processing Policy. Joint Parties also object to the processing of the KOOV(FM) Application,

claiming it was error for the staff to rely on the effective but non-final dismissal of the Joint Parties

Counterproposal in MB Docket 00-148. We disagree. Contrary to their claim,16 the application was not

processed under the Auburn policy which allows for the consideration of a rule making proposal

contingent on an effective but non-final rule making.17

In 2000, three years before Auburn, the

10 See Eagle Broadcasting Co. v. FCC, 514 F.2d 852 (D.C. Cir. 1975).

11 See 47 C.F.R. § 73.208(a)(1); Conflicts Between Applications and Petitions for Rule Making to Amend the FM

Table of Allotments, Report and Order, 7 FCC Rcd 4917 (1992), recon. denied in part , Memorandum Opinion and

Order, 8 FCC Rcd 4743 (1993).

12 Broadcast Actions, Report No. 45768 (rel. July 1, 2004).

13 On May 6, 2011, the Commission denied the Joint Parties Counterproposal in the Quanah proceeding, which

made grant of the KOOV(FM) Application final.

14 Quanah Review Decision, 26 FCC Rcd at 7159.

15 See Quanah Reconsideration Decision, 19 FCC Rcd at 7163 (“In the event the appeals [of the erroneously

accepted rule makings] are denied, there would be no impediment that would preclude the proposals originally

contained in the Counterproposal as well as any related allotment proposals”).

16 Petition for Reconsideration at 6.

17 See Auburn, Alabama, et al., Memorandum Opinion and Order, 18 FCC Rcd 10333, 10340-41 (MB 2003)

(“Auburn”).

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Federal Communications Commission

DA 14-1050

Commission explicitly recognized that it was proper to process an application contingent on an effective

but non-final rule making following the 1996 elimination of the rule which automatically stayed the

effectiveness of a rule making order upon the filing of a petition for reconsideration.18 Auburn, which

also explicitly relied on the elimination of the automatic stay provision, merely extended the Chester

policy to permit the consideration of rule making proposals contingent on effective but non-final rule

makings. We also reject as meritless Joint Parties claim that the Commission should apply 2000

processing standards to its 2005 proposal.19

Unless an application qualifies under an explicit

grandfathering provision, the Commission applies the law in effect at the time of action, not at filing.20

Finally we reject the contention that the processing of the KOOV(FM) Application was unfair because the

Joint Parties Counterproposal is “technically acceptable.”21

This argument is difficult to apprehend. The

dismissal was based on the fact that the Counterproposal was defective at the time of filing.22

Joint Parties

also contradict their technical acceptability assertion by acknowledging that a change in the reference for

coordinates in Llano Channel 297A allotment is necessary to perfect their proposal.23

9. Engineering Solution. In their Petition, the Joint Parties suggest an engineering solution by

modifying the reference coordinates for their Channel 297A substitution at Llano. We cannot accept this

modification of the Joint Parties Counterproposal because it is late. A counterproposal must be

technically correct at the time it is filed.24

Moreover, acceptance of this engineering solution would

violate our processing policy of no longer accepting curative amendments for counterproposals.25

Accordingly, we will not accept the engineering solution.

III. ORDERING CLAUSES

10. Accordingly, IT IS ORDERED, That the Petition for Reconsideration filed by Rawhide

Radio, LLC, Clear Channel Broadcasting Licenses, Inc., CCB Texas Licenses, LP, and Capstar

TX Limited Partnership, IS DENIED.

11. For further information concerning this proceeding, contact Andrew J. Rhodes, Media

Bureau, and (202) 418-2700.

FEDERAL COMMUNICATIONS COMMISSION

Peter H. Doyle

Chief, Audio Division

Media Bureau

18 See Chester, CA, et al., Memorandum Opinion and Order, 16 FCC Rcd 4009 (2000) (para. 6). See also

Amendment of Section 1.420(f) of the Commission’s Rules Concerning Automatic Stays of Certain Allotment Orders,

Report nd Order, 11 FCC Rcd 9501) (1996) (deleting rule that automatically stayed allotment proceedings upon the

filing of a petition for reconsideration).

19 Petition for Reconsideration at 6.

20 See BVM Helping Hands, Memorandum Opinion and Order, FCC 14-81 (rel. June 13, 2014), at para 4.

21 Petition for Reconsideration at 6.

22 See supra at paragraph 7.

23 Petition for Reconsideration at 7.

24 See Broken Arrow and Bixby, Oklahoma, Report and Order, 3 FCC Rcd 6507 (MMB 1988).

25 See Quanah Review Decision, 26 FCC Rcd at 7164.

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