**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  |                              |
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| Amendment of Section 73.202(b),  | ** |                              |
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| Table of Allotments,             | *  |                              |
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| FM Broadcast Stations.           | ** |                              |
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| (Mercedes, San Benito,           | *  |                              |
| Brownsville,                     | *) |                              |
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| Premont, and Falfurrias, Texas)  |    |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: September 23, 2005 Released: September 26, 2005**

By the Assistant Chief, Audio Division, Media Bureau:

1\. The Audio Division has before it a Petition for Reconsideration
filed by Clear Channel Broadcasting Licenses, Inc., licensee of Station
KHKZ(FM), Mercedes, Texas and Capstar TX Limited Partnership, licensee
of Station KTEX(FM) Brownsville, Texas ("Petitioners") directed to the
letter dated June 10, 2005, returning their joint Petition for Rule
Making. For the reasons discussed below, we deny the Petition for
Reconsideration.

**Background**

2\. In their Petition for Rule Making, Petitioners proposed: (1) the
substitution of Channel 292C3 for Channel 292A at Mercedes, Texas, the
reallotment of Channel 292C3 to San Benito, Texas as a first local
service, and the modification of Station KHKZ's license to reflect the
upgrade and change of community, and (2) the reallotment of Channel
262C0 from Brownsville to Mercedes, Texas, and the modification of
Station KTEX's license to reflect the change of community. To
accommodate Channel 292C3 at San Benito, Petitioners proposed the
substitution of Channel 287A for Channel 292A at Falfurrias, Texas and
modification of Station KPSO-FM's license to reflect the channel change.
To accommodate Channel 287A at Falfurrias, Petitioners proposed the
substitution of Channel 292A for vacant Channel 287A at Premont, Texas
-- without modifying the reference coordinates of the vacant allotment.
Commission staff determined that the Petition for Rule Making was
unacceptable for consideration because the proposed Channel 292C3
reallotment to San Benito is short-spaced to the proposed Channel 292A
substitution of the vacant allotment at Premont.[^1]

**Petition for Reconsideration**

3\. Petitioners argue that the dismissal of their Petition for Rule
Making should be reconsidered because "the only defect was due to the
specification of incorrect coordinates \[for Channel 292A at Premont\]
and the current freeze on filing new petitions \[for rule makings\]
necessitates filing this \[petition for\] reconsideration."[^2] They now
propose new reference coordinates for Channel 292A at Premont to
eliminate the short spacing, and state that there is Commission
precedent for modifying reference coordinates of vacant allotments.[^3]
Petitioners assert that there is also precedent for the Media Bureau to
modify allotment reference coordinates on its own motion when such
modification would serve the public interest, citing *Bayboro, North
Carolina* ("*Bayboro*").[^4]

**Discussion**

4\. Section 1.429 of the Commission's rules[^5] sets forth the limited
provisions under which the Commission will reconsider a rulemaking
action. Reconsideration is warranted only if the petitioner cites errors
of fact or law, or presents new facts or changed circumstances which
raise substantial or material questions of fact which otherwise warrant
Commission review of its prior action. Petitioners have not set forth
any errors of law or facts, nor presented new facts or changed
circumstances that would warrant reconsideration. Changes in reference
coordinates of vacant allotments are permissible in petitions for rule
makings or counterproposals to amend the FM Table of Allotments.[^6]
However, Petitioners failed in their Petition for Rule Making to propose
the necessary changes in reference coordinates for the vacant allotment
at Premont that would comply with our minimum separation requirements.
Nor have Petitioners provided any basis for permitting corrected
coordinates on reconsideration to outweigh the public interest concerns
for technical compliance at the outset to ensure fairness to other
parties who file proposals in compliance with our technical rules and
the efficient transaction of Commission business.[^7] Petitions for rule
making and counterproposals must be technically correct at the time they
are filed.[^8]

5\. *Bayboro* is distinguishable because therein petitioner complied
with the Commission's technical rules for city grade coverage[^9] and
minimum distance separation requirements. The staff *sua sponte*
specified an alternate site in the notice of proposed rule making
because the petitioner had specified a site located in a wetlands area.
The alternate site for an otherwise acceptable proposal avoided the
necessity of resolving any site suitability issue. In allotment
proceedings, the Commission generally requires a petitioner to provide a
theoretical site and presumes the suitability and availability of a
proposed site unless that presumption is rebutted[^10] by a
"sufficiently compelling showing."[^11] In *Bayboro*, aside form a
preliminary staff determination regarding the wetlands, it had not been
established that the originally proposed site was, in fact, unsuitable.
In this instance, site suitability was not at issue. Rather, Petitioners
failed to comply with the Commission's minimum distance separation
requirements. Thus, we affirm the dismissal of Petitioners' Petition for
Rule Making.

6\. Accordingly, IT IS ORDERED, That the Petition for Reconsideration IS
DENIED.

7\. This document is not subject to the Congressional Review Act. (The
Commission, is, therefore, not required to submit a copy of this
*Memorandum Opinion and Order* to the Government Accountability Office,
pursuant to the Congressional Review Act, *see* 5 U.S.C. Section
801(a)(1)(A), because the proposed petition for rule reconsideration was
denied.)

8\. For further information concerning this proceeding, contact Helen
McLean, Media Bureau, and (202) 418-2738.

FEDERAL COMMUNICATIONS COMMISSION

John A. Karousos

Assistant Chief

Audio Division

Media Bureau

[^1]: 47 C.F.R. § 73.207.

[^2]: Petition for Reconsideration at 1. *See also Revision of
    Procedures Governing Amendments to FM Table of Allotments and
    Changes of Community of License in the Radio Broadcast Services,
    Notice of Proposed Rule Making*, 20 FCC Rcd 11142 (2005).

[^3]: Petitioners cite to *Eldorado, Texas et al*., 19 FCC Rcd 9179 (MMB
    2000) and *Fair Bluff, North Carolina*, 10 FCC Rcd 9255 (MMB 1995).

[^4]: Petitioners cite to the *Notice of Proposed Rule Making* in
    *Bayboro, North Carolina*, 6 FCC Rcd 4850 (MMB 1991). *See also* the
    *Report and Order* in *Bayboro, North Carolina*, 7 FCC Rcd 6305 (MMB
    1992).

[^5]: 47 C.F.R. § 1.429.

[^6]: *See* Note 3, *supra*.

[^7]: *See e.g. Shorter, Alabama*, 19 FCC Rcd 6844 (MB 2004) (affirming
    on reconsideration the dismissal of petition for rule making due to
    short spacing to licensed site).

[^8]: *See Caldwell, Texas, et al.*, 15 FCC Rcd 20641 (2000)

[^9]: 47 C.F.R. § 73.315.

[^10]: *San Clemente, California*, 3 FCC Rcd 6728 (MMB 1988) *appeal*
    *dismissed sub. nom. Mount Wilson FM Broadcasters, Inc. v. FCC*, 884
    F.2d 1462 (D.C. Cir. 1989). *See also San Clemente, California*, 10
    FCC Rcd 8291 (1995).

[^11]: *Key West, Florida*, 3 FCC Rcd 6423 (MMB 1988).