**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | File No. BSTA-20010216ABP    |
|                                  | *) |                              |
| **PACIFIC BROADCASTING ) File    | ** | File No. BSTA-20010323ACD    |
| No. BSTA-20010216ABP**           |    |                              |
|                                  | *  | Facility ID No. 40798 )      |
| **OF MISSOURI, LLC** ) File No.  | *) | Facility ID No. 40798 ) File |
| BSTA-20010323ACD                 | ** | No. BSTA-20010323ACD         |
|                                  |    |                              |
| ) Facility ID No. 40798          | *  | ) Facility ID No. 40798      |
|                                  | *) |                              |
| For Special Temporary            | ** |                              |
| Authorization to )               |    |                              |
|                                  | *  |                              |
| Operate Station KTKY-FM,         | *) |                              |
| Refugio, Texas )                 | ** |                              |
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+----------------------------------+----+------------------------------+

#  MEMORANDUM OPINION AND ORDER

**Adopted: June 14, 2004** **Released: June 16, 2004**

By the Commission:

1\. We have before us the March 13, 2003, petition for reconsideration
filed by Pacific Broadcasting of Missouri, LLC ("Pacific"), licensee of
broadcast station KTKY-FM, Refugio, Texas. Pacific requests
reconsideration of the Commission's February 11, 2003, *Memorandum
Opinion and Order*[^1] denying Pacific's application for review of a
staff decision denying Pacific's request for Special Temporary
Authorization ("STA")[^2] to operate KTKY-FM from the facilities
specified in its construction permit to relocate KTKY-FM to Taft,
Texas.[^3] We also have before us: (1) the March 13, 2003, "Petition for
Partial Reconsideration or, in the Alternative, Clarification" filed by
Marathon Media Group, LLC ("Marathon");[^4] and (2) the "Joint Petition
for Reconsideration and Clarification" filed by Garwood Broadcasting
Company of Texas; New Ulm Broadcasting Company; and Roy E. Henderson
("Joint Petitioners").[^5] They request that the Commission reconsider
the *Order'*s conclusion that petitioners can no longer rely on vacant
"backfill" allotments to satisfy local transmission service requirements
in communities from which existing service is being removed.[^6] On June
25, 2003, Joint Petitioners filed pleadings for expedited Commission
action and for a stay of further staff action.[^7] On February 13, 2004,
Marathon withdrew its petition.[^8] On March 4, 2004, Joint Petitioners
filed pleadings to update the pleadings filed for expedited Commission
action and for a stay of further staff action.[^9] On March 25, 2004,
Fort Bend Broadcasting Company ("Fort Bend") filed a supplement to the
record in this proceeding.[^10] On March 26, 2004, Marathon filed
pleadings to request clarification on one related issue.[^11] For the
reasons discussed below, we deny Pacific's petition for reconsideration
of its Taft STA requests and deny the petition for reconsideration of
our action modifying the "backfill" policy in FM allotment
proceedings.[^12] We also deny Marathon's request for clarification and
dismiss as moot Fort Bend's supplement and Joint Petitioners' Joint
Motion and Update to Joint Motion for expedited Commission action and
for a stay of further staff action.

2\. **Background.** Pacific filed a Petition for Rule Making December
23, 1998, in which it sought, *inter alia*, the substitution of Channel
293C2 for Channel 291C3 at Refugio, Texas, and reallotment of Channel
293C2 from Refugio to Taft, Texas. Pacific further sought modification
of the KTKY-FM license to specify Taft as its community of license.
Finally, Pacific proposed the allotment of Channel 291A at Refugio.[^13]
The Bureau issued a *Notice of Proposed Rule Making* reflecting these
requests.[^14]

3\. In its comments, Pacific recognized that the Commission strongly
disfavors community of license modifications that result, as would be
the case here, in the removal of a community's sole local service.
Pacific argued that it should be allowed to commence KTKY-FM's
operations at Taft before replacement service was initiated at Refugio
due to the possibility of delays in the competitive bidding process to
award a new construction permit at Refugio. In the *Report and Order*
granting Pacific's proposed re-allotment, the Bureau rejected Pacific's
argument, noting that the Commission has specifically stated that the
public has a legitimate expectation that existing service will continue,
and that this expectation is a factor to be weighed independently
against the service benefits that may result from reallotting a channel.
Having weighed the factors, the staff granted Pacific's reallotment
request because it would result in a first local transmission service to
both Taft and Refugio. However, the staff also stated that it was
"compelled" to condition the reallotment of Channel 293C2 to Taft on
activation of a channel at Refugio to insure continued service at
Refugio.[^15]

4\. Pacific did not seek reconsideration or review of the *Refugio R&O*.
Pacific subsequently filed an application proposing operation of KTKY-FM
on Channel 293C2 at Taft, Texas, with an increase in effective radiated
power to 50 kilowatts, an increase in antenna height above average
terrain to 136 meters, and relocation of the transmitter. The Bureau
issued Pacific a construction permit on November 2, 2000 (the "Taft
Construction Permit").[^16] Consistent with the *Refugio R&O*, the Taft
Construction Permit bore the following special operating condition:

> Operation of Station KTKY on Channel 293C2 in Taft, Texas, including
> program test operation pursuant to Section 73.1620, will not be
> commenced until such time as express authorization from the Commission
> has been granted. Such authorization will not be granted until a
> construction permit has been issued for Channel 263A or Channel 291A
> at Refugio, Texas, and activation of service has been initiated on
> Channel 263A or Channel 291A at Refugio.

Pacific did not reject this grant as conditioned,[^17] nor did it seek
reconsideration or review of the staff action.

5\. On February 16, 2001, less than four months after issuance of the
Taft Construction Permit, Pacific requested STA to operate KTKY-FM with
the facilities specified in that authorization. It stated that it had
lost the lease on its Refugio tower site and was unable to negotiate
with the site lessor for an extension or a new lease.[^18] On March 12,
2001, Pacific ceased operation of KTKY-FM, and on March 23, 2001,
Pacific requested STA to remove the special operating condition in the
now-final Taft Construction Permit and proposed to operate with the
newly constructed Taft facilities.[^19] Pacific claimed it was unable to
find a viable alternate site that would allow continued operation from
Refugio. On April 13, 2001, the Bureau denied both STA requests.[^20]
Pacific filed a petition for reconsideration on May 14, 2001, which the
Bureau denied on December 21, 2001. Pacific timely filed its application
for review on January 22, 2002. On February 11, 2003, the Commission
denied review and affirmed the staff's denial of both STA requests. On
that date, the Commission also directed the Bureau to cease its former
practice of relying on vacant "backfill" allotments to preserve local
service as a basis for permitting community of license changes by
existing stations.[^21] It held that a rulemaking petitioner may rely on
a backfill allotment only when the backfill involves a currently
licensed and operating station, and when the backfill reallotment itself
complies with local service floor requirements; that is, the level of
broadcast service that must be maintained subsequent to any deletion or
reduction in facilities.

6\. Pacific timely filed a petition for reconsideration of the
Commission decision on March 13, 2003. On that same date, Marathon and
Joint Petitioners filed petitions for reconsideration of the
Commission's policy on "backfill" policy announced in the *Order.* On
June 25, 2003, Joint Petitioners filed a motion for expedited
consideration of their March 13, 2003 petition and for a stay of further
staff action. On October 10, 2003, Pacific requested STA to operate with
temporary facilities at Refugio. The staff granted this request on
October 21, 2003. On February 11, 2004, Pacific requested STA to operate
from a different temporary site at Refugio.[^22] The staff granted this
request on February 17, 2004.

7\. **Discussion.** *Pacific's Petition for Reconsideration**.*** The
standards for reconsideration of Commission denial of an application for
review are narrow.[^23] The Commission will only entertain a petition
for reconsideration when the petition relies on facts which: (1) relate
to events that have occurred or circumstances which have changed since
the last opportunity to present such matters; or (2) were unknown to the
petitioner until after his last opportunity to present such matters,
which could not, through the exercise of ordinary diligence, have been
learned prior to such opportunity.[^24] Pacific claims, pursuant to
Section 1.106(b)(2)(i), that it has standing to file its petition for
reconsideration because it does present a "new set of facts and
circumstances."

8\. We disagree. First, Pacific contends that the impending future
auction of more than 500 new FM allotments is a new fact providing
sufficient justification for the Commission to reconsider its
unfavorable earlier decision on Pacific's STA request.[^25] However,
Pacific's purported new fact is both incorrect and immaterial. Postponed
Auction No. 37 is now scheduled for the Fall of this year. However, it
is simply not the case, as Pacific asserts, that a backfill permittee is
likely to initiate service in the near future. Moreover, even if Auction
No. 37 is held this Summer, the earliest the Bureau could issue a new
construction permit for Refugio would be 2005. Such a permit would
specify a 2008 construction deadline.[^26] This estimate assumes no
technical or legal challenges or problems, matters not fully within
Pacific's control. In fact, the Commission's experience with Auction No.
84, involving new and major change AM station applications, shows that
litigation arising out of the process is possible. Further, we cannot
assume -- as Pacific speculatively claims -- that Pacific would have
prevailed at the auction and immediately would have constructed the
replacement Refugio facilities. In fact, Pacific recognized the delays
inherent in the licensing process when it opposed the very condition at
issue here, based on the possibility of delays in the competitive
bidding process. Pacific's claim that the issuance of a construction
permit and construction of a station at Refugio on Channel 263 can be
"accomplished in a relatively short time" due to the "impending release
of the auction rules," has no basis in fact.[^27]

9\. Second, Pacific contends that it has provided material details of
its efforts to find a new site in Refugio. Pacific states that
submission of its March 2003 status report reinforces its claim that a
viable site is not available in Refugio.[^28] Again, we disagree. In
responding to the loss of a licensed site, the critical task is not the
construction of equivalent or maximum facilities. Thus, the issue is
not, as Pacific assumes, whether the reconstruction of its former
facilities is feasible or prudent.[^29] In contrast to the restrictive
conditions Pacific has imposed in evaluating its alternatives, the
Bureau has traditionally allowed licensees great flexibility in
operating from temporary facilities.[^30] Pacific's March 2003 status
report, in fact, demonstrates that there are possible solutions to
Pacific's temporary siting problem. Indeed, on October 10, 2003, and
February 11, 2004, Pacific requested STA for operation from temporary
facilities at Refugio, and the staff has granted these requests. We
continue to believe that the STA is a preferable solution to the loss of
service to over 70,000 KTKY-FM listeners while the station remained
silent.

10\. Despite the grant of Pacific's STA requests, Pacific continues to
argue for an operation from the Taft site which it asserts would provide
service to 300,000 other listeners, including 60 dBu service to all but
1,000 current Refugio listeners.[^31] We have already concluded that
this proposed STA operation from Taft would not provide acceptable
service to KTKY-FM's current community of license. Operation from the
Taft site would not provide principal community coverage (70 dBu) to any
part of Refugio. Thus, not only would Refugio be deprived of a local
transmission service, but its reception service would be significantly
degraded. The community of Refugio "has a legitimate expectation that
existing \[local\] service will continue,"[^32] and this expectation is
not met by Pacific's proposed STA operation from Taft. [^33] In
contrast, the recently granted February 17, 2004, STA request for
operation from temporary facilities at Refugio continues to provide
service to the licensed community and maintains, as closely as
practicable, the licensed service area without extending it.[^34]
Pacific has, therefore, provided no new arguments or evidence that
persuades us to alter our initial conclusion in this regard.

11\. Pacific also faults the Commission for not making "a case specific
decision to waive its rules under the unique circumstances of this
case."[^35] Indeed, the Commission may waive any provision of its rules
on its own motion and for good cause shown.[^36] We conclude that
special circumstances do not exist to justify a waiver on our own motion
in this case, even if we were to deem the instant filing to be a waiver
request. The remainder of Pacific's petition repeats arguments
previously presented and considered by the Commission. [^37] We find
that these arguments do not warrant further consideration. [^38] It is
well established that "rehearing will not be granted merely for the
purpose of debating matters on which the tribunal has once deliberated
and spoken." [^39]

12\. *Marathon/Joint Petitioners Petitions for Partial Reconsideration
and Clarification.*[^40] Marathon and Joint Petitioners, pursuant to
Section 1.106(b)(1), claim standing to petition the Commission's
decision on "backfill" policy due to petitioners' pending applications
to relocate their stations.[^41] We agree. Therefore, we will consider
all petitioners' requests regarding our "backfill" policy. Marathon
contends that our new "no backfill" rule modifies a rule that the
Commission adopted by notice and comment rulemaking, and agencies are
not free to modify rules promulgated in that manner without invoking
rulemaking procedures.[^42]

13\. Section 553 of the Administrative Procedure Act ("APA") describes
the procedures agencies must follow when required to notify all
potentially interested parties before adoption of any proposed new rule
and permit them to submit comments. However, the Commission has broad
authority under the APA to fashion policies through rulemaking or *ad
hoc* adjudication.[^43] In the *Order,* the Commission modified the
backfill policy. The prior staff practice, however, was never codified
as part of the Commission's rules, nor has it been adopted through
notice and comment rulemaking procedures. Rather, it was developed
through case-by-case adjudications. Consequently the Commission retains
the authority to change this policy through adjudications based on its
determination as to whether the policy continues to be consistent with
the public interest.[^44]

14\. In the *Community of License Memorandum Opinion and Order,* the
Commission merely mentions backfill allotments as a "factor to be
considered" in reviewing city of license modification proposals. [^45]
Importantly, the Commission explicitly rejected an approach that would
routinely permit the use of vacant allotments to "preserve" local
service. It held at the time that a vacant allotment "does not
adequately cure the disruption to existing service occasioned by removal
of an operating station. From the public's perspective, the potential
for service at some unspecified future date is a poor substitute for the
signal of an operating station. . . ."[^46] Since that pronouncement,
the Commission has adopted new rules that allow permittees twice as long
-- 36 months \-- to complete construction. Moreover, the Commission has
developed new rules for the award of commercial and NCE broadcast
authorizations.[^47] In these new circumstances, the licensing of vacant
allotments is too remote and too contingent to justify the filing of
move-out proposals premised on such replacement services. As this case
illustrates, this practice can burden Commission resources and lead to
spectrum entanglements. We again conclude, therefore, that the better
policy is to accept rulemaking proposals requesting a change in the
community of license of the sole local service licensed to a community
only upon the initiation of broadcast operations by a replacement
service.[^48]

15\. Marathon and Joint Petitioners also argue that if the Commission
rejects petitioners' request to modify the policy,[^49] it nevertheless
should not apply the revised policy to proposals on file before the
change became effective.[^50] Marathon specifically contends that the
Commission does not ordinarily have the ability to reverse existing law
and apply the new law retroactively to pending cases of other
parties.[^51] As noted previously, the *Order* at issue here merely
changed a processing policy, and the Commission clearly has the
authority to cease application of a policy -- even in pending cases --
when it has found that policy to be contrary to the public
interest.[^52] Contrary to Marathon's contention, a change in Commission
policy that upsets an expectation that current rules and policies would
continue does not constitute unlawful retroactive rule making.[^53]
Additionally, the Supreme Court has made clear that pending applications
may be dismissed based on changed processing rules.[^54] Here, we have
determined that the public interest is best served by modifying our
"backfill" policy in resolving all pending change of community of
license rulemaking proposals; we therefore reject petitioners'
contention that we may not apply the new policy to pending
proposals.[^55]

16\. Finally, Joint Petitioners submit that if the new backfill policy
is retained, the Commission should accord special consideration to
parties seeking waiver of the application of the new policy to their
pending cases.[^56] Specifically, Joint Petitioners note that the June
11, 2003 *Public Notice* listing counterproposals to be considered in MB
Docket No. 02-248[^57] omitted New Ulm Broadcasting Company's ("New
Ulm") counterproposal to provide a first local transmission service to
Schulenberg, Texas, because the counterproposal is inconsistent with the
new backfill policy.[^58]

17\. Any applicant may, of course, make a written request for waiver of
any Commission rule.[^59] The staff may grant a waiver of its rules
where the particular facts make strict compliance inconsistent with the
public interest if applied to petitioner and when the relief requested
would not undermine the policy objective of the rule in question.[^60]
Moreover, the processing staff must give any waiver request the
requisite "hard look" required by the federal courts.[^61] In this
regard, the Commission has determined that there may be "rare
circumstances where removal of a \[sole\] local service might serve the
public interest. . . ."[^62] We reject the argument that the pendency of
a backfill proposal at the release of the *Order* is such a
circumstance. In this case, our core commitment to retaining a
community's sole local service must prevail over the desire of certain
broadcasters to effect station improvements based on an interpretation
of our Section 307(b) mandate that we believe no longer serves the
public interest. We direct the staff to dismiss in the ordinary course
those rulemaking petitions, notices of proposed rulemaking and
counterproposals that rely solely on a vacant allotment to replace a
community's sole local transmission service. Neither the Joint
Petitioners nor any other party requires approval from the Commission to
file a request for waiver of the revised backfill policy in broadcast
allotment proceedings or to seek review of the return of a proposal
because it fails to preserve a community's sole local service. These
matters are most appropriately considered in the context of the
particular allocation proceeding. [^63] Accordingly, we decline Joint
Petitioner New Ulm's request to require the staff to consider the
Schulenberg counterproposal in MB Docket 02-248.

18\. **Conclusion.** IT IS ORDERED that Pacific's Petition for
Reconsideration IS DENIED. IT IS FURTHER ORDERED, that the Petition for
Partial Reconsideration or Clarification filed by Marathon Media Group,
LLC, and subsequently withdrawn, IS DISMISSED, and the Joint Petition
for Reconsideration and Clarification filed by New Ulm Broadcasting Co.,
Garwood Broadcasting Co., and Roy E. Henderson IS DENIED. Finally, in
light of our action here, Marathon Media Group, LLC's Request for
Clarification IS DENIED, and New Ulm Broadcasting Co.'s, Garwood
Broadcasting Co.'s, and Roy E. Henderson's Joint Motion and Update to
Joint Motion for Expedited Action and Stay of Further Staff Action and
Fort Bend Broadcasting Company's Supplement ARE DISMISSED as moot.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

[^1]: *Pacific Broadcasting of Missouri, LLC*, 18 FCC Rcd 2291 (2003)
    ("*Order*").

[^2]: File Nos. BSTA-20010216ABP ("February STA Request");
    BSTA-20010323ACD ("March STA Request"). *See* 47 U.S.C. § 309(f).

[^3]: File No. BPH-20000613AAF.

[^4]: Petition for Partial Reconsideration or, in the Alternative,
    Clarification filed by Marathon Media Group, LLC on March 13, 2003
    ("Marathon Petition").

[^5]: Joint Petition for Reconsideration and Clarification filed by
    Garwood Broadcasting Company of Texas; New Ulm Broadcasting Company;
    and Roy E. Henderson on March 13, 2003 ("Joint Petitioners
    Petition").

[^6]: A "backfill" allotment is one specifically made to replace an
    allotment that is being modified to permit a change in the city of
    license of an authorized station. *See, e.g., Cheboygan, Rogers
    City, Bear Lake, Bellaire, Rapid River, Manistique, Ludington,
    Walhalla and Onoway, Michigan,* 17 FCC Rcd 20491 (MB 2002).

[^7]: Joint Motion for Leave to File Joint Motion for Expedited
    Commission Action and Stay of Further Staff Action and Joint Motion
    for Expedited Commission Action and Stay of Further Staff Action
    filed June 25, 2003, by Garwood Broadcasting Company of Texas; New
    Ulm Broadcasting Company; and Roy E. Henderson ("Joint Motion").

[^8]: Withdrawal of Petition for Partial Reconsideration or, in the
    Alternative, Clarification filed February 13, 2004, by Marathon
    Media Group, LLC.

[^9]: Joint Motion for Leave to File Update to Joint Motion for
    Expedited Commission Action and Stay of Further Staff Action and
    Update to Joint Motion for Expedited Commission Action and Stay of
    Further Staff Action filed March 4, 2004, by Garwood Broadcasting
    Company of Texas; New Ulm Broadcasting Company; and Roy E. Henderson
    ("Joint Motion Update").

[^10]: Supplement filed March 25, 2004, by Fort Bend Broadcasting
    Company.

[^11]: Motion for Leave to File Request for Clarification and Request
    for Clarification filed March 26, 2004, by Marathon Media Group, LLC
    ("Request for Clarification").

[^12]: Pacific notes that it incorporates by reference petitioners'
    arguments concerning "backfill" allotment procedures. *See* Pacific
    Petition at n.2.

[^13]: Previously, Channel 263A had been allotted at Refugio, based on a
    proposal by *WAB Broadcasting. Refugio, Texas,* 14 FCC Rcd 3922 (MMB
    1999).

[^14]: *Refugio and Taft, Texas*, 14 FCC Rcd 11609 (MMB 1999)
    ("*NPRM*"). Pacific filed its Petition for Rule Making in accordance
    with 47 C.F.R. §1.420(i), which allows FM licensees to request a new
    community of license in a rule making proceeding. *See Amendment of
    the Commission's Rules Regarding Modification of FM and TV
    Authorizations to Specify a New Community of License,* 4 FCC Rcd
    4870 (1989), *recon. granted in part and denied in part,* 5 FCC Rcd
    7094 (1990) ("*Community of License MO&O*").

[^15]: *Refugio and Taft, Texas* 15 FCC Rcd 8497, 8499-8500 (MMB 2000)
    ("*Refugio R&O*").

[^16]: File No. BPH-20000613AAF.

[^17]: *See* 47 C.F.R. § 1.110.

[^18]: *See* February STA Request.

[^19]: *See* March STA Request.

[^20]: *Letter to James Withers, Pacific Broadcasting of Missouri, LLC*
    (MMB Apr. 13, 2001).

[^21]: *See Order*, 18 FCC Rcd 2296 ("Backfill allotments permit the
    filing of inherently contingent proposals, and create the potential
    for the type of problems and resource burdens that led to the
    codification of the Commission's general prohibition on filing
    contingent applications"). *See also* n.6, *supra*. *See, e.g., 4*7
    C.F.R. § 73.3517.

[^22]: Pacific states that it was unable to construct STA facilities at
    the Refugio site Pacific proposed October 10, 2003, due to denial of
    permission "by the hospital governing board at the proposed site."

[^23]: *See State of Oregon*, 15 FCC Rcd 24039 (2000).

[^24]: 47 C.F.R. § 1.106(b)(2)(i)-(ii).

[^25]: The Commission postponed Broadcast Auction No. 37, originally
    scheduled for February 21, 2001 (*see Public Notice*, "FM Broadcast
    Auction Scheduled for February 21, 2001," 15 FCC Rcd 18081 (WTB/MMB
    2000)) in which one of the Refugio allocations is to be auctioned
    and for which Pacific has promised to bid. The auction was postponed
    indefinitely (*see Public Notice*, "FM Auction No. 37 Postponed," 16
    FCC Rcd 16479 (WTB/MMB 2001), largely due to uncertainty created by
    the decision of the United States Court of Appeals for the D.C.
    Circuit in *National Public Radio v. F.C.C.,* 254 F.3d 226 (D.C.
    Cir. 2001). In response to the D.C. Circuit opinion, the Commission
    released a *Second Report and Order* on April 10, 2003, establishing
    the Commission's new policies for licensing spectrum that the
    Commission has not reserved for the exclusive use of broadcast
    stations that provide or intend to provide noncommercial educational
    service (*see In the Matter of Reexamination of the Comparative
    Standard For Noncommercial Educational Applicants,* 18 FCC Rcd 6691
    (2003)). However, a date for Broadcast Auction No. 37 has not been
    set.

[^26]: 47 C.F.R. § 73.3598.

[^27]: Pacific Petition at 4.

[^28]: This claim is undercut by Pacific's finding of a Refugio site as
    outlined in its February 11, 2004, STA request.

[^29]: Pacific Petition at 5 (alleging expense, impracticality of
    construction, and economic viability of any Refugio site).

[^30]: *See, e.g., Letter to Brad C. Deutsch, Esq.* (MB Apr. 19, 2002)
    (approving STA operation with "a single-bay emergency antenna on a
    short tower near the studio building"); *Letter to Kenneth C.
    Howard, Jr., Esq*. (MMB Nov. 29, 2000) (STA operation from a
    temporary location on a rooftop); *Letter to Dennis P. Corbett,
    Esq*. (MMB June 17, 1999) (temporary operation with emergency
    antenna mounted on a telephone pole).

[^31]: Pacific Petition at 7.

[^32]: *Community of License MO&O*, 5 FCC Rcd at 7097.

[^33]: *See, e.g., Caldwell, College Station, and Gause, Texas*, 13 FCC
    Rcd 13772, 13776 (1998) ("We do not believe the public interest is
    best served by allowing the only broadcast station assigned to
    Caldwell to provide the requisite 70 dBu signal to less than the
    entire community of license.").

[^34]: *See Letter to James Withers* (MB Oct. 21, 2003) (For commercial
    FM -- 3.16mV/m with 1.0 mV/m contour).

[^35]: Pacific Petition at 7.

[^36]: 47 C.F.R. § 1.3.

[^37]: For instance, Pacific argues that the public interest would be
    served by deleting the condition specified in both the Taft
    allocation and construction permit in order to permit STA operations
    from the Taft site; that the Taft facilities would cover a greater
    population, noting that all but approximately 1,000 of the listeners
    served by KTKY(FM)'s Refugio facilities would receive a 60
    dBµ-strength signal; and that the public is better served by
    allowing it to use its Taft facilities rather than remaining silent.

[^38]: *See In re Application of Matt Phillips, Joel Kay and Beverly
    Lockridge d/b/a FM 104.9 Broadcasting*, 9 FCC Rcd 1932 (1994).

[^39]: *WWIZ, Inc.*, 37 FCC 685, 686 ¶ 2 (1965), *aff'd sub.nom. Lorain
    Journal Co. v. FCC*, 351 F.2d 824 (D.C. Cir. 1965).

[^40]: Although Marathon has requested withdrawal of its petition, we
    take this opportunity to address certain issues raised in its
    pleadings.

[^41]: 47 C.F.R. § 1.106(b)(1) ("\[A\]ny party . . . whose interests are
    adversely affected by any action taken by the Commission . . . may
    file a petition for reconsideration. . . .").

[^42]: Marathon Petition at 4.

[^43]: *See SEC v. Chenery Corp.,* 332 U.S. 194, 203 (1947); *see also
    NLRB v. Wyman-Gordon Co., 394 U.S. 759, 765 (1969)*; *NLRB v. Bell
    Aerospace Co*., 416 U.S. 267, 294 (1974); *Chisholm v. FCC*, 538
    F.2d 349, 364-366 (D.C. Cir. 1976), *cert. denied*, 429 U.S. 890
    (1976); *South Central Bell Telephone Company v. Louisiana Public
    Service Commission*, 744 F2d 1107, 1118 (5th Cir. 1984); *Southern
    Bell Tel. and Tel. v. FCC*, 781 F.2d 209, 216 n. 8 (D.C. Cir. 1986);
    *Turro v. FCC, 859 F.2d 1498* (D.C. Cir. 1988); *Atochem N. Am.,
    Inc. v. U.S. EPA*, 759 F. Supp. 861 (D.D.C. 1991).

[^44]: *See Chisholm v. FCC*, 538 F.2d 349, 365 (D.C. Cir. 1976).

[^45]: *Community of License MO&O*, 5 FCC Rcd at 7097.

[^46]: *Id.*

[^47]: *See In the Matter of Reexamination of the Comparative Standard
    For Noncommercial Educational Applicants*, 18 FCC Rcd 6691 (2003).

[^48]: In its March 26, 2004, Request for Clarification, Marathon tries
    to distinguish the practice of allotting backfill allotments to
    avoid the loss of a community's sole local transmission service from
    the practice of allotting backfill allotments "to replace \[the loss
    of existing\] service to unserved or underserved areas." We note
    that we need not reach this issue in resolving the present appeal.
    We will, therefore, deny Marathon's Request for Clarification. The
    Commission will consider Marathon's arguments in the context of its
    specific application.

[^49]: *See* Joint Petitioners Petition at 5-8.

[^50]: Marathon Petition at 6; Joint Petitioners Petition at 3.

[^51]: Marathon Petition at 6.

[^52]: *Washington Association for Television and Children v. FCC*, 665
    F.2d 1264, 1268 (D.C. Cir. 1981) (where an agency, in an intervening
    proceeding, has determined that a policy previously applied no
    longer serves the public interest, convenience, and necessity, and
    therefore would not be applied henceforth, the agency on remand of
    action cannot be required to apply a policy it has rejected); *see
    also* *See Report and Order in Docket 82-320,* 93 F.C.C. 2d 436,
    457-58 (1983), *recon. denied*, 56 R.R.2d 835 (1984), *aff\'d sub
    nom. Beaufort County Broadcasting Company v. FCC,* 787 F.2d 645
    (D.C. Cir. 1986) (application of new policies to pending cases did
    not violate the rights of the applicants).

[^53]: *Landgraf v. USI Film Products*, 511 U.S. 244, 269 & n. 24 (1994)
    (a law does not act retrospectively merely because it is applied in
    a case arising from conduct antedating its enactment or upsets
    expectations based in prior law; rather, the issue is whether the
    new provision attaches new legal consequences to events completed
    before its enactment); *DirecTV, Inc. v. FCC*, 110 F.3d 816, 826
    (D.C. Cir. 1997) ("\[A\] new rule or law is not retroactive 'merely
    because it . . . upsets expectations based on prior law,'" quoting
    *Landgra*f); *Chemical Waste Management, Inc. v. EPA,* 869 F.2d
    1526, 1536 (D.C. Cir. 1989) ("\[I\]t is often the case that a
    business will undertake a certain course of conduct based on the
    current law and will then find its expectations frustrated when the
    law changes. This has never been thought to constitute retroactive
    lawmaking . . .").

[^54]: *United States v. Storer Broadcasting Co*., 351 U.S. 192, 202
    (1956). Indeed, an agency may even apply new or modified rules to
    pending applicants. *See, e.g., Community Television, Inc. v. FCC,*
    216 F.3d 1133, 1143 (D.C. Cir. 2000); *Chadmore Communications, Inc.
    v. FCC,* 113 F.3d 235, 240-241 (D.C. Cir. 1997).

[^55]: *See Barnwell, South Carolina, et al.,* 18 FCC Rcd 15152, 15154
    (MB 2003).

[^56]: Joint Petitioners Petition at 11, citing *Storer, supra*, and 47
    C.F.R. § 1.3.

[^57]: *Consumer and Governmental Affairs Bureau Reference Information
    Center Petition for Rule Making Filed, Public Notice*, Report No.
    2069 (rel. June 11, 2003).

[^58]: Joint Motion at 3.

[^59]: *See WAIT Radio v. FCC, 418* F.2d 1153, 1157 (D.C. Cir. 1969);
    *aff´d,* 459 F.2d 1203 (1972*) cert. denied*, 409 U.S. 1027 (1972)
    citing *Rio Grande Family Radio Fellowship, Inc. v. FCC*, 406 F.2d
    664 (D.C. Cir. 1968); *Birach Broadcasting Corporation,* 18 FCC Rcd
    1414 (2003); *Family Stations, Inc. v. DirecTV, Inc.*, 17 FCC Rcd
    25333 ¶ 7 (2002).

[^60]: *Id.; see also Northeast Cellular Tel. Co. v. FCC*, 897 F.2d 1164
    (D.C. Cir. 1990).

[^61]: *See WAIT Radio, supra*.

[^62]: *Community of License MO&O,* 5 FCC Rcd at 7096.

[^63]: In its March 25, 2004, Supplement, Fort Bend states that it has
    filed a Petition for Partial Reconsideration in MB Docket No. 02-335
    challenging only the "retroactive" application of the policy set
    forth in the *Order*. The Commission will consider Fort Bend's
    arguments in MB Docket No. 02-335. We will, therefore, dismiss Fort
    Bend's Supplement.