**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | MM Docket No. 02-266         |
|                                  | *) |                              |
| Amendment of Section 73.202(b),  | ** | RM-10557                     |
|                                  |    |                              |
| Table of Allotments,             | *  |                              |
|                                  | *) |                              |
| FM Broadcast Stations.           | ** |                              |
|                                  |    |                              |
| (Chillicothe, Dublin, Hillsboro, | *  |                              |
| and                              | *) |                              |
|                                  | ** |                              |
| Marion, Ohio)                    |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
+----------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**(Proceeding Terminated)**

**Adopted: July 5, 2006 Released: July 7, 2006**

By the Assistant Chief, Audio Division, Media Bureau:

1.  The Audio Division has before it: (1) a Petition for Reconsideration
    of a *Report and Order*[^1] in this proceeding filed by the
    Committee for Competitive Columbus Radio ("Committee");[^2] (2) an
    Opposition to Petition for Reconsideration jointly filed by
    Citicasters Licenses, L.P., licensee of Station WMRN-FM, Dublin
    (formerly, Marion) Ohio, and Clear Channel Broadcasting Licenses,
    Inc., licensee of Station WSRW-FM, Chillicothe (formerly,
    Hillsboro), Ohio (collectively, "Clear Channel");[^3] (3) a Reply to
    Opposition to Petition for Reconsideration filed by the Committee;
    and (4) other related pleadings.[^4] For the reasons discussed
    below, we deny the Committee's Petition for Reconsideration.

    **BACKGROUND**

2.  At the request of Clear Channel , the *Notice of Proposed Rule
    Making*[^5] in this proceeding proposed the reallotment, downgrade,
    and change of community of license for Station WMRN-FM from Channel
    295B at Marion, Ohio to Channel 294B1 at Dublin, Ohio, pursuant to
    the provisions of Section 1.420(i) of the Commission's rules [^6] To
    accommodate the relocation of Station WMRN-FM to Dublin, the *NPRM*
    also proposed the reallotment, downgrade, and change of community of
    license for Station WSRW-FM from Channel 294B at Hillsboro, Ohio, to
    Channel 293A at Chillicothe, Ohio. Three parties[^7] filed
    objections to these proposals, questioning, *inter alia,* whether
    the reallotments would result in a preferential arrangement of
    allotments and whether the relocation of Station WMRN-FM from Marion
    to Dublin would violate our multiple ownership rules or raise
    competitive concerns.

3.  The *R&O* granted Clear Channel's rulemaking petition over these
    objections. First, the *R&O* determined that Clear Channel's
    proposed reallotments together constitute a preferential arrangement
    of allotments under our FM allotment priorities.[^8] Specifically,
    the reallotment of Station WMRN-FM would result in a first local
    service to Dublin (pop. 31,392), triggering Priority 3. By way of
    contrast, the retention of Stations WSRW-FM at Hillsboro (pop.
    6,386) and WMRN-FM at Marion (pop. 35,318) would maintain second and
    third local services, respectively in these communities, triggering
    less significant Priority 4. Second, the *R&O* concluded that the
    Committee's concentration of control and multiple ownership issues
    were prematurely raised because the Commission's policy is not to
    consider such issues in conjunction with an allotment rulemaking
    proceeding.[^9] Rather, any issue with respect to compliance with
    Section 73.3555 of the Commission's rules will be considered in
    conjunction with applications to implement the reallotments.[^10]

4.  In its Petition for Reconsideration, the Committee seeks to raise
    three issues. First, it argues that the *R&O* erred in approving the
    relocation of Station WMRN-FM to Dublin, which is in the Columbus,
    Ohio, radio market, because Clear Channel cannot own any more
    stations in that market under the multiple ownership rules. The
    Committee acknowledges that the Commission has considered multiple
    ownership issues as part of its consideration of the implementing
    applications. The Committee, however, disagrees with this approach
    and contends that the issue should be confronted now. Second, the
    Committee argues that postponing consideration of the multiple
    ownership issue until the application stage is wasteful of
    Commission resources because under this policy, staff resources are
    expended on reallotments that may not be implemented. Third, the
    Committee notes that Clear Channel's proposal would downgrade both
    stations WMRN-FM and WSRW-FM, resulting in loss of service to the
    public, and would leave Hillsboro (pop. 6,368) with only one local
    daytime-only transmission service. Thus, argues the Committee, the
    *R&O* unjustly concentrated on Priorities (1) through (3) of the FM
    Allotment Priorities and virtually ignored Priority (4), and in so
    doing, incorrectly concluded that the Clear Channel proposal would
    create a preferential arrangement of allotments.

5.  In its Opposition to Petition for Reconsideration, Clear Channel
    argues that that the Committee fails to raise any new factual or
    legal arguments. Clear Channel contends that the staff properly
    concluded that the multiple ownership issues are prematurely raised
    and that the proposal creates a preferential arrangement of
    allotments. In its Reply to Opposition to Petition for
    Reconsideration, the Committee reiterates that the multiple
    ownership issue should be considered at the present time because
    Clear Channel would have to divest itself of two FM stations in the
    Columbus, Ohio, radio market before it could own a station in Dublin
    and because no divestiture commitment has been submitted.

    **DISCUSSION**

6.  After careful review of the pleadings, we will deny the Committee's
    Petition for Reconsideration. Its first argument that compliance
    with the multiple ownership rules should be considered at the
    allotment, as opposed to the application, stage was previously
    raised by the Committee[^11] and rejected in the *R&O* as explained
    above.[^12] It is well established that the Commission will not
    reconsider arguments that have already been considered.[^13] The
    *R&O*'s decision on this issue was supported by case law, and the
    Committee fails to cite any legal or factual error on this issue.

7.  Although the Committee believes that postponing consideration of the
    multiple ownership issue until the application stage is wasteful of
    Commission resources, the Commission determined otherwise and
    adopted this policy " . . . in order to achieve an efficient and
    orderly transaction of both the rulemaking and the application
    process . . . ."[^14] . Under Section 4(j) of the Communications Act
    of 1934, as amended, the Commission has the power to ". . . conduct
    its proceedings in such manner as will best conduce to the proper
    dispatch of business and to the ends of justice."[^15] The Supreme
    Court has repeatedly held that this provision gives the Commission
    broad discretion to adopt its own procedures.[^16] Determining
    whether a multiple ownership issue can be raised at the allocation
    or application stage is the type of procedural matter that is within
    the Commission's discretion. Nothing in the record of this
    proceeding demonstrates that this policy is arbitrary or capricious
    or that the Commission abused its discretion.[^17]

8.  Finally, there is no error of fact or law regarding the staff's
    determination that Clear Channel's proposal would result in a
    preferential arrangement of allotments. Although Clear Channel's
    proposal would downgrade Stations WMRN-FM and WSRW-FM, resulting in
    loss of service to the public, and would leave Hillsboro with a
    local daytime-only AM station, these results are outweighed by the
    provision of a first local service at Dublin, which triggers higher
    allotment Priority (3). By way of contrast, retaining second and
    third local services at Hillsboro and Marion, respectively, triggers
    less significant Priority (4).[^18]

9.  Accordingly, IT IS ORDERED, That the Petition for Reconsideration
    filed by the Committee for Competitive Columbus Radio IS DENIED.

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

11. For further information concerning this proceeding, contact
    Andrew J. Rhodes, Audio Division, Media Bureau (202) 418-2180.

    FEDERAL COMMUNICATIONS COMMISSION

    John A. Karousos

    Assistant Chief

    Audio Division

    Media Bureau

[^1]: *Chillicothe, Dublin, Hillsboro, and Marion, OH,* Report and
    Order, 20 FCC Rcd 6305 (MB 2005) ("*R&O*").

[^2]: The Committee includes the following Columbus area broadcasters:
    North American Broadcasting Co., Inc., licensee of Stations WBZX(FM)
    and WMNI(AM), Columbus, Ohio, and WEGE(FM), Westerville, Ohio; WCLT
    Radio, Inc., licensee of WCLT-AM-FM, Newark, Ohio; Associated Radio,
    Inc., licensee of WSMZ-FM, Johnstown, Ohio, and WODB-FM, Delaware,
    Ohio; and Franklin Communications, Inc., licensee of WVKO(AM) and
    WSNY(FM), Columbus, Ohio.

[^3]: Citicasters Licenses, Inc., and Clear Channel Broadcasting
    Licenses, Inc., are indirect wholly owned subsidiaries of Clear
    Channel Communications, Inc.

[^4]: After the pleading cycle ended, the following pleadings were
    filed: (1) Motion to Accept Supplement and a Supplement filed by
    Clear Channel on August 2, 2005; (2) Opposition to Supplement filed
    by the Committee on August 11, 2005; (3) Reply to Opposition to
    Supplement filed by Clear Channel on August 22, 2005; (4) Comment on
    Citicasters' Supplement filed by Sandyworld, Inc., licensee of FM
    translator W294AH, Columbus, Ohio, on August 16, 2005 ; (5) Reply to
    Comment filed by Clear Channel on August 29, 2005; (6) Motion to
    Accept Supplement and Supplement filed by Clear Channel on November
    8, 2005; (7) Opposition to Supplement filed by the Committee on
    November 17, 2005, and an attachment filed on November 18, 2005; (8)
    Reply to Opposition to Supplement filed by Clear Channel on December
    1, 2005; (9) Motion for Leave to Supplement Petition for
    Reconsideration filed by the Committee on April 24, 2006; (10)
    Opposition to Motion for Leave to Supplement Petition for
    Reconsideration filed by Clear Channel on May 9, 2006; (11) Further
    Motion for Leave to Supplement Petition for Reconsideration filed by
    the Committee on May 12, 2006; (12) Opposition to Further Motion for
    Leave to Supplement Petition for Reconsideration filed by Clear
    Channel on May 19, 2006; and (13) Reply to Opposition to Further
    Motion for Leave to Supplement Petition for Reconsideration filed by
    the Committee on May 31, 2006. In accordance with Section 1.429(d)
    of the Commission's rules, we will not consider these supplements
    and responsive pleadings. *See, e.g., Oakdale, Tioga, and West
    Monroe, LA,* Second Report and Order and Memorandum Opinion and
    Order, 4 FCC Rcd 6242, 6243 n.1 (MMB 1989). These pleadings, which
    attempt to raise multiple ownership issues as part of this
    rulemaking proceeding, are more appropriately considered in
    connection with Clear Channel's application for construction permit
    (File No. BPH-20050726ALM) to implement the reallotment and change
    of community of license for Station WMRN-FM to Dublin, Ohio.

[^5]: *Chillicothe, Dublin, Hillsboro, and Marion, OH,* Notice of
    Proposed Rule Making, 17 FCC Rcd 16345 (MB 2002) ("*NPRM*").

[^6]: This rule permits the modification of a station's authorization to
    specify a new community of license without affording other
    interested parties an opportunity to file competing expressions of
    interest.

[^7]: These parties are the Committee, Sandyworld, Inc., and Infinity
    Broadcasting Operations, Inc. ("Infinity). Infinity did not file a
    petition for reconsideration. Sandyworld's late filed Comment is not
    being considered. *See supra,* note 4.

[^8]: The FM allotment priorities are (1) first fulltime aural service;
    (2) second fulltime aural service; (3) first local service; and (4)
    other public interest matters. \[Co-equal weight is given to
    priorities (2) and (3).\] *See Revision of FM Assignment Policies
    and Procedures,* Second Report and Order, 90 FCC 2d 88, 91 (1982).

[^9]: *See Chillicothe and Ashville, OH,* 18 FCC Rcd 22410, 22414 (MB
    2003), Memorandum Opinion and Order, *application for review
    pending. See also Detroit Lakes and Barnesville, MN, and Enderlin,
    ND,* Memorandum Opinion and Order, 17 FCC Rcd 25055, 25059-60 (MB
    2002).

[^10]: *See* File Nos. BPH-20050726ALM for Station WMRN-FM and
    BPH-20050726AMD for Station WSRW-FM. An informal objection was filed
    against the application for Station WMRN-FM. Both of these
    applications are currently pending.

[^11]: *See* Motion for Leave to Supplement Comments filed by the
    Committee on July 22, 2003 at 2-3; and Response to Supplement of
    Citicasters filed by the Committee on September 15, 2003, at 4-5.

[^12]: *See R&O,* 20 FCC Rcd at 6311.

[^13]: *See Eagle Broadcasting Co. v. FCC,* 514 F.2d 852 (D.C. Cir.
    1975); and *WWIZ, Inc.,* Memorandum Opinion and Order, 37 FCC 685,
    686 (1964), *aff'd sub nom. Lorain Journal Co. v. FCC,* 351 F.2d 824
    (D.C. Cir. 1965), *cert. denied,* 383 U.S. 967 (1966).

[^14]: *Chillicothe and Ashville, OH,* Memorandum Opinion and Order, 18
    FCC Rcd at 22414, *app. for rev. pending.*

[^15]: 47 U.S.C. § 4(j).

[^16]: *See, e.g., FCC v. Pottsville Broadcasting Co.,* 309 U.S. 134,
    138 (1940) (designating for comparative hearing an application for a
    new AM station after court remand is within the Commission's broad
    procedural powers under Section 4(j) of the Communications Act);
    *FCC v. WJR*, 337 U.S. 265, 282 (1949) (deciding whether to permit
    oral argument in connection with a petition for reconsideration is
    within the Commission's discretion under Section 4(j) of the
    Communications Act); and *FCC v. Schreiber,* 381 U.S. 279, 289-90
    (1966) (rule requiring public disclosure at an investigatory hearing
    except where it is shown that public interest would be served by
    non-public disclosure is within the Commission's authority under
    Section 4(j) of the Communications Act).

[^17]: To the extent the Committee contends that the proposed
    reallotment to Dublin cannot be made because Clear Channel has not
    made a commitment to divest itself of any of its stations in the
    Columbus, Ohio, radio market, we disagree. There is no requirement
    that Clear Channel make a divestiture commitment before it files an
    application implementing this rulemaking. In any event, we take
    official notice that Clear Channel divested itself of Station
    WQIO(FM), Mt. Vernon, Ohio, which is located in the Columbus radio
    market. *See* File No. BalH-20050726ACU, which was granted on
    September 6, 2005, and consummated on October 1, 2005.

[^18]: *See, e.g., Crowell, Bonham, Bridgeport, et al., TX,* Report and
    Order, 19 FCC Rcd 5347 (MB 2004) (downgrading and realloting an FM
    station to Bennington, TX, as a first local service under Priority
    (3) outweighs retaining the station as a second local service at
    Bonham, TX, under Priority (4)). *See also Ravenswood and Elizabeth,
    WV,* Report and Order, 10 FCC Rcd 3181 (MMB 1995) (removing a
    community's second local service and leaving it with a daytime-only
    station is justified by providing a first local service at another
    community).