**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | MM Docket No. 89-120         |
|                                  | *) |                              |
| Amendment of Section 73.202(b),  | ** | MM Docket No. 90-195         |
|                                  |    |                              |
| Table of Allotments,             | *  | MM Docket No. 91-352         |
|                                  | *) |                              |
| FM Broadcast Stations.           | ** | MM Docket No. 92-214         |
|                                  |    |                              |
| (Northwye, Cuba, Waynesville,    | *  |                              |
|                                  | *) |                              |
| Lake Ozark, and Eldon, Missouri) | ** |                              |
|                                  |    |                              |
| (Brookline, Missouri)            | *  |                              |
|                                  | *) |                              |
| (Ava, Branson, and               | ** |                              |
|                                  |    |                              |
| Mountain Grove, Missouri)        | *  |                              |
|                                  | *) |                              |
| (Columbia, Bourbon, Leasburg,    | ** |                              |
|                                  |    |                              |
| Gerald, Dixon, and Cuba,         | *  |                              |
| Missouri)                        | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
+----------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**(Proceeding Terminated)**

**Adopted: March 27, 2002 Released: April 18, 2002**

By the Commission:

1\. The Commission has before it a December 3, 2001 Application for
Review of a [Memorandum Opinion and Order]{.underline}
(["MO&O]{.underline}"), DA 01-2567, 16 FCC Rcd 19423 (Allocations Br.
2001) in the above captioned proceeding, filed by Lake Broadcasting,
Inc. ("Lake"), the former licensee, *inter alia*, of Station KBMX (FM),
Eldon, Missouri, and the former permittee of Station KXFE(FM), Cuba,
Missouri. Lake seeks review of the [MO&O]{.underline} insofar as it
dismissed its petition for reconsideration in MM Docket No. 89-120 and
terminated that proceeding. Lake is not appealing the
[MO&O]{.underline}'s termination of MM Dockets Nos. 90-195, 91-352, and
92-214.

**[Background]{.underline}**

2\. In MM Dockets 89-120 and 92-214, Lake sought to upgrade the classes
of Stations KBMX(FM), Eldon, Missouri and KXFE(FM), Cuba, Missouri,
which at the time the rulemakings were begun, were authorized to Lake.
Lake's upgrades were not granted,[^1] and Lake filed petitions for
reconsideration in MM Dockets 89-120 and 92-214. Lake also filed
petitions for reconsideration in MM Docket Nos. 90-195 and 91-352,
arguing that actions in those subsequent rulemaking proceedings
prejudiced Lake's petition for reconsideration in MM Docket 89-120.[^2]
The Chief, Allocations Branch, dismissed Lake's petitions for
reconsideration in these four separate rulemaking proceedings as
moot[^3] because the Commission had, in the interim, revoked all of the
stations licensed to Lake or controlled by its principal shareholder,
Michael Rice.[^4] The basis for the license revocations was Michael
Rice's conviction and incarceration for six counts of deviate sexual
assault in the first degree and two felony counts of deviate sexual
assault in the second degree. In addition, the Commission concluded that
there had been misrepresentations and a lack of candor by the stations
controlled by Rice as to his further involvement in the management and
operation of those radio stations subsequent to his convictions. The
U.S. Court of Appeals for the D.C. Circuit affirmed those actions, and
the U.S. Supreme Court denied *certiorari*. [See]{.underline}
[Contemporary Media, Inc. et al. v. Federal Communications
Commission]{.underline}, 214 F. 3d 187 (D.C. Cir. 2000), [cert.
denied]{.underline}, \_\_\_\_ U.S. \_\_\_\_, 121 S. Ct. 1355 (2001).
Rice did not seek rehearing before the U.S. Supreme Court, and those
station revocations are, therefore, final.

3\. Thereafter, Lake filed petitions for reconsideration in each of the
above-captioned proceedings. In those petitions, Lake argued that the
dismissal of its reconsideration petitions as moot was premature
because, at that time, Lake was authorized to operate its stations and
it intended to file with the Commission a request for extension of its
operating authority and additional equitable relief. In the
[MO&O]{.underline} before us for review, the staff consolidated the four
petitions for reconsideration and disagreed that their dismissal as moot
was premature. The staff reasoned that Lake's former license for Station
KBMX (FM), Eldon, Missouri, and its former construction permit for
Station KFXE-FM, Cuba, MO, could not be upgraded because those
authorizations were revoked and those actions became final thirty days
after the U.S. Supreme Court denied [certiorari]{.underline}. In
addition, the [MO&O]{.underline} noted that the staff had denied Lake's
request for special equitable relief, finding that it was "an untimely
collateral challenge to a proceeding that has been final since April 13,
2001, the deadline for seeking rehearing of the Supreme Court's denial
of [certiorari]{.underline}. [See]{.underline} [Public
Notice]{.underline}, DA 01-1441, released July 3, 2001 at 5. Further,
the [MO&O]{.underline} pointed out that the Commission had ordered Rice
and his wholly owned companies to cease broadcast operations of all of
their formerly licensed stations no later than 11:59 PM on October 3,
2001. [See]{.underline} [Memorandum Opinion and Order]{.underline}, FCC
01-300, released October 3, 2001. The Commission's decision directing
the cessation of broadcast activities also affirmed the staff's
dismissal of Lake's petition for equitable relief.

**[Application for Review]{.underline}**

4\. In its application for review, Lake seeks to raise two issues that
it believes warrant reinstatement of its petition for reconsideration in
MM Docket 89-120. First, Lake argues that the [MO&O]{.underline}
committed reversible procedural error by holding that the dismissal of
its petition for reconsideration in MM Docket 89-120 as moot was not
premature. In support of this position, Lake notes that on November 1,
2001, Lake filed a notice of appeal in the United States Court of
Appeals for the District of Columbia Circuit [sub nom.]{.underline}
[Michael S. Rice, Contemporary Media, Inc, Contemporary Broadcasting,
Inc., and Lake Broadcasting, Inc. v. FCC]{.underline} (Case No.
01-1474), appealing the above referenced [Memorandum Opinion and
Order]{.underline}, FCC 01-300, that had affirmed the staff's dismissal
of Lake's petition for equitable relief. Lake alleges that, since
finality has not occurred concerning Lake's efforts to preserve and
resurrect its authorization for Station KBMX (FM), it was premature for
the staff to terminate MM Docket No. 89-120. Second, Lake argues that,
regardless of whether Lake remains the licensee of Channel 270A at
Eldon, Missouri, the channel should be upgraded to Channel 270C2 for
scientific and public interest reasons.[^5]

**[Discussion]{.underline}**

5\. After careful consideration, we will deny Lake's application for
review and affirm the termination of MM Docket 89-120 because we agree
that the [MO&O]{.underline} properly concluded that the dismissal of
Lake's petition for reconsideration in MM Docket 89-120 as moot was not
premature. As we recently explained in another proceeding, in which we
denied Rice's application for review of the staff's dismissal of its
petition for equitable relief:

> Rice's Application for Review, like his Petition, assumes without
> discussion that there is some legal basis for permitting Rice to
> 'retain his radio properties' despite the fact that the Commission has
> revoked the licenses for those stations in an action that became final
> and no longer subject to judicial review before Rice filed the
> petition at issue here. In this regard, the application for review is
> contrary to well-settled principles of finality. [See]{.underline}
> [Greater Boston Television Corp. v. FCC]{.underline}, 463 F.2d 268,
> 336 (D.C. Cir. 1972), [cert]{.underline} [denied]{.underline}, 406
> U.S. 950 (1972); [Crosthwait v. FCC]{.underline}, 584 F.2d 550, 556
> (D.C. Cir. 1978); and [Gonzales Broadcasting, Inc.]{.underline}, 14
> FCC Rcd 10,951 (1999).[^6]

Since the revocation of the license for Station KBMX (FM), Eldon,
Missouri, had already become final, it was not premature for the staff
to dismiss Lake's reconsideration in MM Docket 89-120 as moot. Lake's
appeal in the United States Court of Appeals for the D.C. Circuit of the
Commission's denial of its request for special relief is irrelevant
because that filing did not change the fact that the license revocations
were final. Our view is further buttressed by the fact that we recently
reviewed Rice's request for equitable relief in the proceeding quoted
above and concluded that "we are not persuaded that anything has been
presented that suggests that there was any injustice or fraud in the
proceedings that led to the revocation of theses licenses. Indeed, we
find nothing in the petition that would have warranted reopening the
hearing if Rice\'s' claims had been timely raised.\"[^7] Under these
circumstances, dismissing Lake's petition for reconsideration as moot in
MM Docket No. 89-120 was proper.

6\. Finally, we will not upgrade Channel 270A at Eldon, Missouri, to
Channel 270C2. Under Section 1.420(g) of the Rules, only a licensee or
permittee of an FM station may seek an upgrade to a higher class,
adjacent FM Channel and a modification of its station authorization.[^8]
Indeed, we have denied requests by applicants to upgrade the classes of
FM channels because they are not the holders of a station
authorization.[^9] Since Lake's authorization for Channel 270A has been
revoked, we will not upgrade the channel class. However, whoever becomes
the holder of a construction permit or a license for that channel may
file a rulemaking petition for an upgrade.[^10]

7\. Accordingly, IT IS ORDERED, That the December 3, 2001 Application
for Review filed by Lake Broadcasting, Inc. IS DENIED.

8\. IT IS FURTHER ORDERED, That MM Docket 89-120 IS TERMINATED.

9\. IT IS FURTHER ORDERED, That MM Dockets 90-195, 91-352, and 92-214
ARE TERMINATED.

> FEDERAL COMMUNICATIONS COMMISSION
>
> William F. Caton
>
> Acting Secretary

[^1]: [See]{.underline} [Report and Order]{.underline} in MM Docket No.
    89-120, 7 FCC Rcd 1449 (Allocations Br. 1992). In this proceeding,
    Lake filed a counterproposal to upgrade the Eldon station from
    Channel 270A to Channel 270C1. [See]{.underline} [also]{.underline}
    [Report and Order]{.underline} in MM Docket No. 92-214, 16 FCC Rcd
    8704 (Allocations Br. 1995) . In this docket, Lake filed a
    counterproposal for a nonadjacent upgrade of Station KXFE, Cuba,
    Missouri, from Channel 271A to Channel 297C3.

[^2]: Likewise, in its petition for reconsideration in MM Docket No.
    92-214, Lake also argued that another action taken in that
    proceeding prejudiced its petition for reconsideration in MM Docket
    89-120.

[^3]: [See]{.underline} [Memorandum Opinions and Orders]{.underline} in
    Docket Nos. 89-120, 90-195, 91-352, and 92-214 at 16 FCC Rcd
    7982(2001); 16 FCC Rcd 8693 (2001); 16 FCC Rcd 8701 (2001); and 16
    FCC Rcd 8704 (2001), respectively.

[^4]: [See]{.underline} [Initial Decision]{.underline}, 12 FCC Rcd
    14,254 (ALJ 1997), [aff'd]{.underline}, [Memorandum Opinion and
    Order]{.underline}, FCC 01-300 (released October 3, 2001).

[^5]: Lake has abandoned its original pursuit in MM docket No. 89-120 of
    its request to upgrade Station KBMX (FM) to Channel 270C1.

[^6]: [Memorandum Opinion and Order]{.underline} denying August 2, 2001
    Application for Review filed by Michael Rice of the July 3, 2001
    *Public Notice*, FCC 02-65, released February 28, 2002 , at 2-3,
    para. 5.

[^7]: [Id.]{.underline} At para. 6.

[^8]: [See]{.underline}, [e.g.]{.underline}, [Santa Margarita and
    Guadalupe, CA]{.underline}, 2 FCC Rcd 6930, 6931 (Allocations Br.
    1987), [recon. denied]{.underline}, 4 FCC Rcd 7887 (Policy and Rules
    Div. 1989), [application for review dismissed]{.underline}, 7 FCC
    Rcd 4552 (Comm. 1992); [Mount Pleasant, Iowa]{.underline}, 10 FCC
    Rcd 12069 n.1 (Policy and Rules Div. 1995); and [Lafayette,
    Louisiana]{.underline}, 4 FCC Rcd 5073, 5076 notes 9 and 13 (Comm.
    1989), [aff'd by judgment]{.underline} [sub]{.underline}
    [nom.]{.underline} [Crisler v. FCC]{.underline}, 919 F. 2d 182 (D.C.
    Cir. 1990).

[^9]: [See]{.underline} [Santa Margarita and Guadalupe, CA]{.underline},
    2 FCC Rcd at 6931.

[^10]: To the extent that Lake suggests alternate bases for upgrading
    the channel ([i.e.]{.underline} scientific or public interest
    reasons) that are not dependent upon whether Lake remains the
    licensee at Eldon, we do not believe that it would be appropriate to
    do so in this proceeding. Any party interested in upgrading a vacant
    but unapplied for channel may petition to amend the FM Table of
    Allotments provided that the proposal works technically and that
    there is a valid expression of interest.