**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Amendment of Section 73.202(b), ) MM Docket No. 92-214

Table of Allotments, ) RM-8062

FM Broadcast Stations. ) RM-8144

(Columbia, Bourbon, Leasburg, ) RM-8145

Gerald, Dixon and Cuba, Missouri) ) RM-8146

) RM-8147

**MEMORANDUM OPINION AND ORDER**

**(Proceeding Terminated)**

**Adopted: April 16, 2001 Released: April 20, 2001**

By the Chief, Allocations Branch:

1\. The Allocations Branch has before it for consideration two separate
Petitions for Reconsideration ("reconsideration") of the [Report and
Order]{.underline} ("[R&O]{.underline}"), 10 FCC Rcd 12624 (1995), in
this proceeding. The reconsiderations were filed by Lake Broadcasting,
Inc. ("Lake"), licensee of Station KBMX(FM), Eldon, Missouri, permittee
of Station KFXE(FM), Cuba, Missouri, and an applicant for a new FM
broadcast station on Channel 244A at Bourbon, Missouri, and by Central
Missouri Broadcasting, Inc. ("CMB"), counterproponent for Channel 243A
at Dixon, Missouri, in this proceeding.[^1] We will dismiss as moot
Lake's reconsideration petition given that Lake's license for Station
KBMX (FM) and its construction permit for Station KFXE(FM) have been
revoked with finality. The U.S. Supreme Court denied certiorari in
Lake's appeal of the revocation of its licenses and construction
permits. [See]{.underline} [Contemporary Media, Inc., et al., v. Federal
Communications Commission]{.underline}, 214 F. 3d 187 (D.C. Cir. 2000),
[cert. denied]{.underline}, 532 U.S. \_\_\_\_\_\_ (2001). We shall deny
the reconsideration filed by CMB.

2\. **Background.** The Commission issued a [Notice of Proposed Rule
Making]{.underline} ("[Notice]{.underline}"), 7 FCC Rcd 6230 (1992), in
response to a petition filed by The Greenfield Group seeking the
substitution of Channel 244C1 for Channel 244C3 at Columbia, Missouri,
and modification of its construction permit for Station KCMQ(FM) to
specify operation on Channel 244C1 (RM-8062).[^2] The
[Notice]{.underline} also proposed the substitution of Channel 297A for
vacant Channel 244A at Bourbon, Missouri, or the deletion of the vacant
channel if no interest was expressed in retention of a channel in
Bourbon. CMB counterproposed the allotment of Channel 243A at Dixon,
Missouri, as a first local service (RM-8146). Lake counterproposed the
substitution of Channel 297C3 for Channel 271A at Cuba, Missouri, and
retention of Channel 244A at Bourbon (RM-8147). Counterproposals were
also filed by Jeff Weinhaus ("Weinhaus") for an allotment at Leesburg,
Missouri (RM-8144) and by Tony Knipp for an allotment at Gerald,
Missouri (RM-8145). Weinhaus and Knipp withdrew their respective
counterproposals in compliance with Section 1.420(j) of the Commission's
Rules.

3\. The [R&O]{.underline} granted Greenfield's request to substitute
Channel 244C1 for Channel 244C3 at Columbia, Missouri, and modify the
license for Station KCMQ(FM) accordingly. To accommodate the upgrade at
Columbia, alternate Channel 231A was substituted for vacant Channel 244A
at Bourbon, Missouri, as Lake filed an application for Channel 244A
during the comment cycle in this proceeding which removed the basis for
deletion of the channel. In response to CMB's counterproposal, we
allotted Channel 221A at Dixon, Missouri. Finally, we denied Lake's
request to modify its construction permit for Station KFXE(FM), Cuba, to
specify operation on Channel 297C3 in lieu of Channel 271A. Since Zimmer
Radio of Mid-Missouri, Inc. stated its intention to file an application
for non-adjacent Channel 297C3 at Cuba, the channel was allotted to Cuba
and made available for application. There were no additional equivalent
channels that could be allotted to Cuba in order to satisfy Lake's
request for the non-adjacent upgrade.

4\. Subsequent to Lake's filing of its reconsideration petition,
however, Michael Rice, holder of all issued stock in Lake and its
president, was convicted of the felonies of deviate sexual assault and
sodomy of minors and sentenced to a total of eight years. Accordingly,
the Commission issued an [Order to Show Cause and Notice of Apparent
Liability]{.underline} ("[OSC]{.underline}"), 10 FCC Rcd 13,685 (1995),
as to why Lakes's license for Eldon Station KBMX(FM) and its
construction permit for unbuilt Cuba Station KFXE(FM) should not be
revoked, and why its pending application for a new FM station on Channel
244A at Bourbon, Missouri, should not be denied.[^3] The
[OSC]{.underline} also directed that all pending rulemaking/reallocation
requests that had been filed by Lake were to be held in abeyance.
Therefore, we refrained from taking action regarding Lake's petition for
reconsideration in this proceeding. In considering the facts adduced at
a hearing, however, the Commission affirmed the decision of an
Administrative Law Judge \[12 FCC rcd 14,254 (1997)\] and stated that,

the misconduct in this case was extremely serious, involving egregious

criminal acts by Licensees' sole owner and repeated misrepresentations
by

the Licensees designed to minimize the effect of Rice's criminal record
on

their qualifications. Cumulatively, the evidence of misconduct warrants
a

conclusion that the Licensees lack the requisite character traits of
truthfulness

and reliability to retain their authorizations.

13 FCC Rcd 14,460 (1998), [recon. denied]{.underline}, 14 FCC Rcd 8790
(1999). As related above, the Commission's actions were affirmed by the
U.S. Court of Appeals for D.C. Circuit, and the U.S. Supreme Court
denied certiorari.

5\. **Lake's Petition for Reconsideration.** In its petition for
reconsideration, Lake seeks to raise two arguments. First, it alleges
that we should not have opened up a filing window for Channel 297C3 at
Cuba. Instead, Lake alleges that its Cuba construction permit should
have been upgraded on non-adjacent Channel 297C3 because the other
expression of interest for this channel has been abandoned. Second, Lake
argues that opening up Channel 297C3 for general application prejudiced
Lake's reconsideration petition in MM Docket 89-120 because it precludes
granting the Eldon Station a C1 upgrade. We will dismiss both of these
arguments as moot because the authorizations for the Eldon and Cuba
stations have been revoked and because we recently dismissed Lake's
reconsideration petition in MM Docket No. 89-120. [See]{.underline}
[MO&O]{.underline}, DA No. 01-930, released April 13, 2001. The first
argument is also moot because an application (BPH-19960207MB) has been
filed by Reichel Broadcasting Company for Channel 297C3 at Cuba. Under
those circumstances, a non-adjacent upgrade for the Cuba construction
permit from Channel 271A to Channel 297C3 is not possible.

6\. **CMB's Petition for Reconsideration.** In its petition for
reconsideration, CMB objected to the allotment of Channel 221A at Dixon,
Missouri, in lieu of Channel 243A. CMB argued that the allotment of
Channel 221A at Dixon was contingent on the outcome of MM Docket 89-120
in which Lake Broadcasting, Inc. requested the substitution of Channel
221A for Channel 272A at Waynesville, Missouri, to accommodate the
allotment of Channel 270C1 at Eldon, Missouri. The R&O in Docket 89-120
allotted Channel 274A to Lake Ozark, Missouri, making no substitutions
at Waynesville, which made Channel 221A available for allotment at
Dixon. CMB states that it is the licensee of Station KTXY(FM), Jefferson
City, Missouri, and is familiar with Dixon and its economic potential.
The allotment of Channel 243A at Dixon, with the ability to locate the
transmitter east of the city, would permit the station to draw on a
larger and more stable audience and economic base while providing a
first local service to Dixon. It is CMB's opinion that the location of
Channel 221A on the west side of the community as opposed to the
allotment of Channel 243A on the east side of the community makes the
project not economically viable.

7\. We shall deny CMB's petition for reconsideration. Contrary to CMB's
contention, Channel 221A is equivalent to Channel 243A at Dixon for
allotment purposes. The Commission considers channels of the same class
to be equivalent unless showings have been made that a station cannot be
constructed for reasons such as environmental consequences or hazards to
air navigation. [See]{.underline} [Vero Beach, Florida]{.underline}, 3
FCC Rcd 1049 (1988), [rev. denied]{.underline}, 4 FCC Rcd 2184, 2185
(1989). CMB provided no evidence that Channel 221A is an unusable
channel at Dixon. CMB failed to show any overriding public interest
benefit in the allotment of Channel 243A over Channel 221A at Dixon.
Further, the Commission does not generally protect a petitioner's
proposed site in a rule making proceeding where the channel would be
available for application or auction by multiple parties with no
guarantee that the petitioner will ultimately become the licensee. In
this instance, Channel 221A can be allotted to Dixon at a less
restrictive site than Channel 243A.[^4] In any event, the filing of an
application by American Broadcasting Financial Corporation appears to
remove the question of viability of Channel 221A at Dixon
(BPH-19970527MC). Moreover, the dismissal of Lake's petition for
reconsideration as moot in MM Docket 89-120 removes the contingency of
the channel with another Commission proceeding.

8\. Accordingly, IT IS ORDERED, That the petition for reconsideration
filed by Lake Broadcasting, Inc. IS DISMISSED AS MOOT.

9\. Accordingly, IT IS ORDERED, That the petition for reconsideration
filed by Central Missouri Broadcasting, Inc. IS DENIED.

10\. IT IS FURTHER ORDERED, That this proceeding IS TERMINATED.

11\. For further information concerning this proceeding, contact
Kathleen Scheuerle, Mass Media Bureau, (202) 418-2181.

FEDERAL COMMUNICATIONS COMMISSION

John A. Karousos

Chief, Allocations Branch

Policy and Rules Division

Mass Media Bureau

[^1]: The petitions for reconsideration were put on Public Notice on
    January 26, 1996, Report No. 2119.

[^2]: ^?^ An assignment of license from the Greenfield Group to Zimmer
    Radio of Mid-Missouri, Inc. was granted on July 15, 1993, and
    consummated on August 11, 1993 (BALH-921015EB).

[^3]: The OSC also applied to licenses held by Contemporary Media, Inc.
    for Stations WBOW(AM), WBFX(AM) and WZZQ(FM), all Terre Haute,
    Indiana; to the license held by Contemporary Broadcassting, Inc. for
    KFMZ(FM), Columbia, Missouri; and to its construction permit for
    KAAM-FM, Huntsville, Missouri.

[^4]: Channel 221A was allotted to Dixon with a site restriction 6.8
    kilometers (4.2 miles) west of the community. The proposed site for
    Channel 243A at Dixon is 13.9 kilometers (8.6 miles) northeast of
    the community.