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Needles, California, FM Table of Allotments

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Released: December 23, 2011

Federal Communications Commission

DA 11 -2059

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Amendment of Section 73.202(b),
)
MB Docket No. 08-85
Table of Allotments,
)
RM-11427
FM Broadcast Stations.
)
RM-11517
(Needles, California; Ehrenberg, First Mesa,
)
RM-11518
Kachina Village, Wickenburg, and Williams,
)
RM-11519
Arizona)
)

REPORT AND ORDER

(Proceeding Terminated)

Adopted: December 21, 2011

Released: December 23, 2011

By the Assistant Chief, Audio Division, Media Bureau:
1. The Audio Division considers herein the Notice of Proposed Rule Making and Order to Show
Cause1 issued in response to a Petition for Rule Making (“Needles Petition”)2 filed by Michael Cusinato
(“Petitioner”). Also before us are: (1) a Petition for Rule Making (“Williams Petition”)3 filed by Rocket
Radio, Inc. (“Rocket Radio”); (2) a Petition for Rule Making and hybrid Application4 (“Wickenburg
Petition and Application”) filed by Univision Radio License Corporation (“Univision”), licensee of Station
KHOV-FM, Channel 287C2, Wickenburg, Arizona; and (3) various related pleadings.5 For the reasons
discussed below, we dismiss the Needles Petition, terminate this proceeding, and concurrently issue a Notice
of Proposed Rule Making
to consider the mutually exclusive Williams Petition and the Wickenburg Petition
and Application.
2.

Background.

The Notice proposed the allotment of FM Channel 287B1 at Needles,
California, as the community’s fourth local transmission service.6 To accommodate the proposed Needles
allotment, the Notice proposed channel changes for two vacant allotments. Specifically, the Notice
proposed the substitution of Channel 228C2 for vacant Channel 286C2 at Ehrenberg, Arizona, and the
substitution of Channel 281C for vacant Channel 247C at First Mesa, Arizona. Furthermore, to facilitate the


1 Needles, California, Ehrenberg and First Mesa, Arizona, Notice of Proposed Rule Making and Order to Show
Cause, 23 FCC Rcd 11129 (MB 2008) (“Notice”).

2 See RM-11427.
3 See RM-11517.
4 See RM-11518 and File No. BPH-20080915AFP, respectively.
5 These pleadings include: (1) Reply to Order to Show Caused filed by Univision; (2) Comments filed by Rocket
Radio; (3) Comments, Response to Order to Show Cause, and Counterproposal filed by Grenax Broadcasting II,
LLC (“Grenax”), licensee of Station KBTK(FM), Kachina Village, Arizona; (4) Reply Comments and Opposition to
Counterproposal filed by Univision; (5) Reply Comments filed by Grenax; and (6) Reply comments filed by Rocket
Radio.
6 The Notice also acknowledged that, along with the Needles Petition, the Petitioner had concurrently filed an
application, File No. BNPH-20070312ACB, for a new station on Channel 287B1 at Needles and paid the requisite
filing fee, pursuant to Commission policy.

Federal Communications Commission

DA 11-2059

Needles allotment, we issued an Order to Show Cause to Univision as to why its license for Station KHOV-
FM, Wickenburg, Arizona, should not be changed from Channel 287C2 to Channel 286C2 and to Grenax as
to why its license for Station KBTK(FM), Kachina Village, Arizona, should not be changed from Channel
286C2 to Channel 246C2.
3. In response to the Notice, Rocket Radio filed Comments, alerting the staff that Rocket Radio
had concurrently filed the non-conflicting, Williams Petition to allot Channel 287C2 to Williams, Arizona,
as a second local service. To accommodate the Williams allotment, Rocket Radio proposed the same
channel changes at Ehrenberg, First Mesa, Wickenburg, and Kachina Village that were proposed in the
Needles Petition. Rocket Radio noted that, as a result of these channel changes, it would be possible for
both Needles and Williams to have new local services.
4.
Univision filed a Reply to Order to Show Cause, stating that it does not oppose modification of
its license for Station KHOV-FM, Wickenburg, Arizona, to specify operation on Channel 286. However, it
also concurrently filed the hybrid Wickenburg Petition and Application. Specifically, the Wickenburg
Application proposes the upgrade of Station KHOV-FM, Wickenburg, from Channel 287C2 to Channel
286C0. To accommodate the Wickenburg Application, Univision also proposed the same channel changes
at Ehrenberg, First Mesa, and Kachina Village proposed by the Needles Petition. We note that the
Wickenburg Application is mutually exclusive with the Williams Petition because proposed Channel 286C0
at Wickenburg is short-spaced to proposed Channel 287C2 at Williams under the Commission’s minimum
distance separation rule.7
5. After these pleadings were filed, the staff issued a Public Notice, accepting the Williams
Petition and the Wickenburg Petition and Application as counterproposals in this proceeding.8 In response
to the Public Notice, Grenax filed Reply Comments which raised two issues. First, Grenax contends that the
Needles Petition should be dismissed and this proceeding should be terminated because neither the
Petitioner nor any other party filed an expression of interest in the proposed Needles allotment, which is
required in order to allot a new channel. Second, Grenax argues that the Williams Petition and the
Wickenburg Petition and Application should not be treated as counterproposals in this proceeding because
they do not conflict with the Needles Petition and thus do not have the necessary nexus to be considered in
this proceeding. Rather, Grenax states that these two proposals are consistent with the Needles Petition and
should be considered together in a separate rulemaking proceeding.
6.

Discussion.

Needles Petition. We agree with Grenax that the Needles Petition should be
dismissed. The Commission’s well established policy is to refrain from allotting a channel absent a bona
fide
expression of interest.9 Because the Petitioner did not file a continuing expression of interest in
proposed Channel 287B1 at Needles and no other party filed an interest in the proposed channel, we
cannot allot Channel 287B1 at Needles. Accordingly, we will dismiss the Needles Petition and terminate
this proceeding.


7 47 C.F.R. § 73.207.
8 Public Notice, Report No. 2883, March 10, 2009. The Public Notice also accepted as a counterproposal an
alternate channel suggestion by Grenax to modify its license for Station KBTK(FM), Kachina Village, Arizona, on
Channel 285C2 in lieu of the Notice’s proposal to modify its license to specify Channel 246C2, and assigned it RM-
11519. See Grenax’s Comments, Response to Order to Show Cause, and Counterproposal, filed on September 15,
2008, at 4-5.
9 See e.g., Clarendon, Texas, Report and Order, 18 FCC Rcd 12701 (MB 2003) and Jasper, Texas, Report and
Order, 18 FCC Rcd 418 (MB 2003)(stating that it is Commission policy to refrain from making a new allotment to a
community absent an expression of interest).
2

Federal Communications Commission

DA 11-2059

7. Williams Petition and Wickenburg Petition and Application. Although the Public Notice
accepted the Williams Petition and the Wickenburg Petition and Application as counterproposals in this
proceeding, we also agree with Grenax that these pleadings are not counterproposals and should not have
been considered in this proceeding. A counterproposal is defined as a proposal for an alternative and
mutually exclusive allotment or set of allotments in the context of the proceeding in which it is made.10
While both the Williams Petition and the Wickenburg Petition and Application are related to the Needles
Petition as they require the same related channel substitutions at other communities, they lack the element
of mutual exclusivity with the Needles Petition to be treated as counterproposals in this proceeding.11
Under these circumstances, these proposals should be considered in a separate rulemaking proceeding,
affording the opportunity for the filing of comments and counterproposals, because they are mutually
exclusive with each other.12 Accordingly, we are concurrently issuing a separate Notice of Proposed Rule
Making to consider the Williams Petition and the Wickenburg Petition and Application. 13
8. The Commission will not send a copy of this Report and Order pursuant to the Congressional
Review Act, see 5 U.S.C. 801(a)(1)(A), because this proceeding is terminated without the adoption of any
rules.
9. IT IS FURTHER ORDERED, That the Petition for Rule Making, RM-11427, filed by
Michael Cusinato IS DISMISSED.
10. IT IS FURTHER ORDERED, That the application, File No. BNPH-20070312ACB, filed by
Michael Cusinato IS DISMISSED.
11. IT IS FURTHER ORDERED, That the rulemaking proposal, RM-11519, filed by Grenax
Broadcasting II, LLC IS DISMISSED.
12. A copy of this Report and Order will be sent to Michael Cusinato, 1705 Peridot Ct., Castle
Rock, Colorado 80108 (Petitioner)” Scott R. Flick, Esq., Pillsbury Winthrop Shaw Pittman LLP, 2300 N
Street, N.W, Washington, DC 20037 (Counsel to Univision); M. Scott Johnson, Esq., Fletcher, Heald and


10 See Implementation of BC Docket 80-90 to Increase the Availability of FM Broadcast Assignments, Memorandum
Opinion and Order, 5 FCC Rcd 931 n.5 (1990).
11 For the same reasons, the Public Notice should not have accepted Grenax’s suggestion to allot alternate Channel
285C2 at Kachina Village as a counterproposal in this proceeding because it is not in conflict with any of the
allotments proposed in the Notice. Although Channel 285C2 at Kachina Village is short-spaced to the Wickenburg
Application’s proposed Channel 286C0 at Wickenburg, that conflict does not make Grenax’s alternate channel a
counterproposal because the Wickenburg Application is not mutually exclusive with the Needles Petition.
Accordingly, we will dismiss Grenax’s proposal but afford Grenax the opportunity to file comments in response to
an Order to Show Cause, which will be included in our concurrently adopted Notice of Proposed Rule Making.
12 The Williams Petition and the Wickenburg Application are mutually exclusive with each other because (1)
Channel 287C2 at Williams conflicts with Channel 286C0 at Wickenburg under the minimum distance separation
requirements; and (2) both proposals were filed on the same day, September 15, 2008. See 47 C.F.R. §
73.208(a)(3)(iii) (providing that a rulemaking petition to amend the FM Table of Allotments not meeting the
minimum distance separation requirements specified in a pending minor change application will not be considered
unless it was filed no later than the date of the minor change application). See also Conflicts Between Applications
and Petitions for Rulemaking to Amend the FM Table of Allotments,
Report and Order, 7 FCC Rcd 4917 (1992),
recon. granted in part and otherwise denied, Memorandum Opinion and Order, 8 FCC Rcd 4743 (1993).
13 In this new proceeding, we will entertain counterproposals with respect to the Williams Petition because it is a
rulemaking petition. However, the Wickenburg Application is cut-off vis-à-vis any subsequently filed proposals
because, as a minor change application, it receives cut-off protection as of the date it is filed. See 47 C.F.R. §
73.3573(f). As a result, counterproposals to the Williams Petition must protect the proposed allotment of Channel
286C0 at Wickenburg, Arizona.
3

Federal Communications Commission

DA 11-2059

Hildreth, PLC, 1300 North 17th St., 11th Floor, Arlington, VA 22209 (Counsel to Grenax); Erwin
G.Krasnow., Esq., Garvey Schubert Barer, 1000 Potomac Street, N.W., Fifth Floor, Flour Mill Building,
Washington DC 20007 (Counsel to Rocket Radio); Univision Radio License Corporation, 1999 Avenue of
the Stars, Suite 300, Los Angeles, CA 90067; and Grenax Broadcasting II, LLC, 10337 Carriage Club
Drive, Lone Tree, Colorado 80124.
13. IT IS FURTHER ORDERED, That the aforementioned proceeding IS TERMINATED.
14. For further information concerning this proceeding, contact Andrew J. Rhodes or Rolanda F.
Smith, Media Bureau, (202) 418-2180.
FEDERAL COMMUNICATIONS COMMISSION
Nazifa Sawez
Assistant Chief
Audio Division
Media Bureau
4

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