Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | MM Docket No. 98-130         |
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| Amendment of Section 73.202(b),  | ) | MM Docket No. 99-56          |
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| FM Table of Allotments,          | * | RM - 9297                    |
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| FM Broadcast Stations.           | * | RM - 9655                    |
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| (Saratoga, Green River, Big      | ) | RM - 9459                    |
| Piney and                        | * |                              |
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| La Barge, Wyoming)               |   |                              |
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REPORT AND ORDER

**(Proceedings Terminated)**

**Adopted: May 3, 2000 Released: May 12, 2000**

By the Chief, Allocations Branch:

1.  The Allocations Branch has before it a *Notice of Proposed Rule
    Making* in MM Docket No. 98-130, 13 FCC Rcd 13322 (1998), issued at
    the request of Mountain Tower Broadcasting ("Mountain Tower")
    requesting the allotment of Channel 259C at Saratoga, Wyoming, as
    the community's first aural transmission service. Mount Rushmore
    Broadcasting, Inc. ("Mount Rushmore") filed comments and a
    counterproposal requesting the allotment of Channel 259A at
    Saratoga, and the allotment of Channel 259C1 at Green River,
    Wyoming, as the community's second FM transmission service.[^1]
    Robert R. Rule d/b/a Rule Communications ("Rule") filed comments
    requesting that a site restriction be placed on Channel 259C at
    Saratoga, to clear its application for Station KRRR(FM) Cheyenne,
    Wyoming.[^2] Although Mountain Tower filed timely comments restating
    its interest in Channel 259C at Saratoga, it later filed a
    withdrawal and dismissal of its proposal.[^3]

2.  The Allocations Branch also has before it a *Notice of Proposed Rule
    Making* in MM Docket No. 99-56, 14 FCC Rcd 2877 (1999), issued at
    the request of Mountain West Broadcasting, proposing the allotment
    of Channel 259C to Big Piney, Wyoming. In response to the *Notice of
    Proposed Rule Making* in MM Docket No. 99-56, Mount Rushmore filed
    counterproposals for Channel 259A at Big Piney and Channel 261A at
    La Barge, Wyoming. These proposals are being considered together in
    this proceeding because of a conflict between Channel 259C1 at Green
    River in MM Docket No. 98-130 and Channel 259C at Big Piney in MM
    Docket No. 99-56. In addition, the principal for both Mountain Tower
    and Mountain West is the same individual, Victor Michael. This
    conflict will be resolved below.

3.  With respect to MM Docket No. 98-130, we will dismiss Mountain
    Tower's proposal and grant the counterproposal filed by Mount
    Rushmore for Channel 259A at Saratoga, Wyoming, and Channel 259C1 at
    Green River, Wyoming. In support of its proposal, Mount Rushmore
    states that both localities are communities for allotment purposes.
    With respect to Saratoga, Mount Rushmore states that it is an
    incorporated resort community with a 1990 population of 1,969
    persons, has its own mayor, town council, Chamber of Commerce, post
    office, zip code, police department and volunteer fire department.
    It also has its own schools, several churches, a library, and
    numerous businesses, including banks, restaurants, and hotels, as
    well as several social and civic organizations. Another factor in
    its population base is tourism which increases the population
    between May and September.

4.  With respect to Green River, Mount Rushmore states that the
    community already has an FM station and therefore has been
    determined to be a community for allotment purposes. As support for
    an additional allotment, it states that Green River is an
    incorporated community in an active tourist area. Mount Rushmore
    states that the Green River has a 1990 population of 12,711 persons
    with a thriving transient population during tourist season. This
    community is served by an elected mayor and city council, and has a
    Chamber of Commerce, post office, zip code, police department, and
    volunteer fire department. Green River also has its own schools,
    library, churches, and numerous businesses, including hotels and
    restaurants and civic and social organizations.

5.  Our engineering analysis shows that Channel 259A can be allotted at
    Saratoga, Wyoming,[^4] and that Channel 259C1can be allotted at
    Green River, Wyoming[^5] in accordance with the Commission's spacing
    requirements without site restrictions.

6.  The conflict between these two dockets arises from the short-spacing
    between the proposed allotment of Channel 259C1 at Green River in MM
    Docket No 98-130 and the proposed allotment of Channel 259C at Big
    Piney in MM Docket No. 99-56. Mount Rushmore's counterproposal for
    Channel 259C1 at Green River was filed on the September 8, 1998
    comment date in MM Docket No. 98-130. On the other hand, Mountain
    West's proposal for Channel 259C at Big Piney was not filed until
    December 22, 1999, and therefore was not entitled to consideration
    with the Green River proposal filed earlier in MM Docket No. 98-130.
    Therefore, we will dismiss Mountain West's petition for Channel 259C
    at Big Piney in MM Docket No. 99-56 and terminate that proceeding.
    We also note that because all of the parties in both dockets are the
    same and any had actual notice of all of the filings in these
    dockets, no party will be prejudiced by our dismissal. Therefore any
    Commission error that may have occurred in issuing the *Notice of
    Proposed Rule Making* in MM Docket No. 99-56 is harmless. The
    counterproposal filed by Mount Rushmore in MM Docket 99-56 for
    Channel 259A at Big Piney and Channel 261A at La Barge, Wyoming will
    be treated as a new petition for rule making in a separate
    proceeding.

7.  Accordingly, pursuant to the authority contained in Sections 4(i),
    5(c)(1), 303(g) and (r) and 307(b) 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 June 26, 2000, the
    FM Table of Allotments, Section 73.202(b) of the Commission\'s
    Rules, IS AMENDED, with respect to the communities listed below, as
    follows:

Community Channel No.

Saratoga, Wyoming 259A

Green River, Wyoming 259C1, 221C

8.  A filing window for Channel 259A at Saratoga, and for Channel 259C1
    at Green River, Wyoming, will not be opened at this time. Instead,
    the issue of opening a filing window for those channels will be
    addressed by the Commission in a subsequent Order.

9.  IT IS FURTHER ORDERED, That the Secretary of the Commission shall
    send by Certified Mail Return Receipt Requested, a copy of this
    *Order*, to the following:

    A Wray Fitch III Thomas J. Hutton

    Gammon & Grange Holland & Knight

    Seventh Floor 2100 Pennsylvania Ave.

    8280 Greensboro Dr. Suite 400

    McLean, VA 22102-3807 Washington, DC 20037-5564

    (Counsel for Mountain Tower Broadcasting) (Counsel for Mount
    Rushmore Broadcasting)

    John F. Garziglia

    Pepper & Corazzini

    1776 K Street, NW

    Suite 200

    Washington, DC 20006

    (Counsel for Rule Communications)

10. IT IS FURTHER ORDERED That the Mount Rushmore Broadcasting
    counterproposal for Channel 259A at Saratoga, Wyoming, and Channel
    259C1at Green River, Wyoming IS GRANTED.

11. IT IS Further ordered that the petitions for rulemaking filed by
    Mountain Tower Broadcasting for Channel 259C at Saratoga, Wyoming,
    and Mountain West Broadcasting for Channel 259C at Big Piney,
    Wyoming ARE DISMISSED.

12. IT IS FURTHER ORDERED That the comments filed by Robert R. Rule
    d/b/a Rule Communications ARE DISMISSED as moot.

13. IT IS Further ordered That MM Docket No. 98-130 Is Terminated.

14. IT IS Further ordered That MM Docket No. 99-56 Is Terminated.

15. For further information concerning the above, contact Victoria
    McCauley, Mass Media Bureau, (202) 418-2180. Questions related to
    the application filing process should be addressed to the Audio
    Services Division, Mass Media Bureau, (202) 418-2700.

    fEDERAL COMMUNICATIONS COMMISSION

    John a. Karousos

    Chief, Allocations Branch

    Policy and Rules Division

    Mass Media Bureau

[^1]: In its counterproposal, Mount Rushmore also includes a proposal to
    institute a proceeding to reevaluate the Commission's FM allotment
    priorities, claiming that the current allotment scheme discriminates
    against minorities. Such a proposal is not appropriately filed in an
    adjudicatory proceeding such as this and will not be considered
    further.

[^2]: *See* FCC File No. BPH-0980817IK.

[^3]: In accordance with Section 1.420(j) of the Rules, Mountain Tower
    filed a statement that it had not received or been promised any
    consideration for its withdrawal.

[^4]: The coordinates for Channel 259A at Saratoga, Wyoming, are
    41-27-12 and 106-48-30.

[^5]: The coordinates for Channel 259C1 at Green River, Wyoming, are
    41-31-36 and 109-28-06.