Before the

Federal Communications Commission

Washington, D.C. 20554

+----------------------------------+---+------------------------------+
| In the Matter of                 | * | MM Docket No. 94-76          |
|                                  | * |                              |
| Amendment of Section 73.202(b),  | ) | MM Docket No. 94-77          |
| Table of Allotments, FM          | * |                              |
| Broadcast Stations (Chester,     | * | MM Docket No. 95-51          |
| Shasta Lake City, Alturas,       |   |                              |
| McCloud, Weaverville, and        | * | RM-8470                      |
| Shingletown, CA)                 | * |                              |
|                                  | ) | RM-8477                      |
| Application of Woodrow Michael   | * |                              |
| Warren Construction Permit for   | * | RM-8523                      |
|                                  |   |                              |
| KLCR-FM, Lakeview, OR            | * | RM-8524                      |
|                                  | * |                              |
| Application of McCarthy          | ) | RM-8591                      |
| Wireless, Inc. Construction      | * |                              |
| Permit for                       | * | File No. BPH-960619MF        |
|                                  |   |                              |
| KISK-FM, Shasta Lake City, CA    | * | File Nos. BPH-960717MA and   |
|                                  | * |                              |
| Application for Phoenix          | ) | BLH-980713KD                 |
| Broadcasting, Inc. Construction  | * |                              |
| Permit for                       | * | File No. BPH-961010MF        |
|                                  |   |                              |
| KBHX-FM, Shingletown, CA         | * |                              |
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+----------------------------------+---+------------------------------+

MEMORANDUM OPINION AND ORDER

(Proceeding Terminated)

**Adopted:** April 6, 2000 **Released:** April 19, 2000

By the Commission:

1.  The Commission has before it an application for review of the
    allotment decisions in the staff's M*emorandum Opinion and Order* in
    MM Docket Nos. 94-76, 94-77, and 95-51 ("*MO&O*") filed by m. JAYNE
    sawyer d/b/a/ m. JAYNE enterprises ("sawyer").[^1] The Commission
    also has before it sawyer's applications for review of the following
    related staff actions: (1) grant of Woodrow Michael Warren's
    application for a new FM station, Lakeview, OR; (2) grant of Phoenix
    Broadcasting, Inc.'s application for a new FM station, Shingletown,
    CA; and (3) grant of McCarthy Wireless, Inc.'s application for a new
    FM station, Shasta Lake City, CA. For the reasons set forth below,
    we deny sawyer's applications for review.

2.  In two separate, but interrelated rulemaking proceedings, the staff
    allotted Channel 259A to Chester, CA and Channel 241A to
    Shingletown, CA. Sawyer filed separate petitions for reconsideration
    of both the Report & Order in the Chester proceeding[^2] ("*Chester*
    *R&O*") and the Report & Order of the Shingletown proceeding[^3]
    ("*Shingletown* *R&O* "). In her petition for reconsideration of the
    *Chester* *R&O*, sawyer proposed an alternative allotment plan in
    order to accommodate her original proposal to allot Channel 296A to
    Chester.[^4] In her petition for reconsideration of the
    *Shingletown* *R&O*, sawyer claimed that the staff improperly
    allotted Channel 241A to Shingletown, CA. In a consolidated
    *MO&O*,[^5] the staff denied sawyer's petition as to the Chester
    *R&O* for failure to show sufficient basis to reconsider the
    allotment decision. The staff also denied sawyer's petition for
    reconsideration of the *Shingletown* *R&O*, finding that allotment
    of Channel 241A was proper and in accordance with the Commission's
    rules and procedures.

3.  In her application for review of the *MO&O*, sawyer reargues issues
    that were raised in her petitions for reconsideration. Regarding the
    *Chester* *R&O*, sawyer contends that the staff should have compared
    the allotment plan she suggested in her petition for reconsideration
    of the *Chester* *R&O* [^6] with the allotment plan that the staff
    adopted in the *Chester* *R&O*.[^7] The staff noted initially that
    it disagreed with sawyer's contention that a Channel 259A Chester
    allotment was inferior to Channel 296, and therefore that her
    proposal resulted in a preferential allotment scheme. As the staff
    fully explained in the *MO&O*, the two channels are equivalent.[^8]
    The staff also explained that her scheme had several
    deficiencies[^9] and was not superior to the scheme adopted because
    both plans accommodated four mutually exclusive or interrelated
    rulemaking proposals, resulting in new FM allotments to six
    communities.

4.  In her application for review of the *MO&O*, with regard to the
    *Shingletown R&O*, sawyer contends that the staff committed
    prejudicial, procedural error by allotting Channel 241A at
    Shingletown despite the pendency of her appeal of the *Chester R&O*,
    where she had proposed the mutually exclusive allotment of Channel
    242C2 at Shasta Lake City. We disagree. The Commission's rules no
    longer prohibit the grant and construction of authorized facilities
    pending final resolution of a related, outstanding rulemaking
    proceeding. *See Amendment of Section 1.420(f) of the Commission's
    Rules Concerning Automatic Stays of Certain Allotment Orders*, 11
    FCC Rcd 9501 (1996) (deleting rule that automatically stayed in
    allotment proceedings upon the filing of a petition for
    reconsideration). *See e.g.* *Cloverdale, Montgomery and Warrior,
    AL*, 12 FCC Rcd 2090, 2093 (MMB 1997) (since lifting the automatic
    stay provision, the Commission routinely grants applications
    notwithstanding petitions pending in related proceedings).

5.  Sawyer has also filed applications for review with respect to the
    construction permits granted in Lakeview, Shingletown and Shasta
    Lake City. She argues that the staff should have withheld issuance
    of the permits until final action was taken on her appeals in the
    *Chester* and *Shingletown R&Os*. Regarding the issuance of the
    Lakeview and the Shingletown permits, we do not need to reach the
    merits of sawyer's arguments. In both proceedings, sawyer failed to
    participate in earlier stages of the proceedings where the staff
    granted the underlying construction permits, and she failed to show
    good reason why she could not do so, as required by 47 C.F.R.
    §1.115(a). [^10] Furthermore, there is no merit to sawyer's argument
    that participation in an allotment rulemaking confers automatic
    party status in a related application proceeding. *See e.g.
    Esperanza, Puerto Rico, Christiansted, Virgin Islands*, 11 FCC Rcd
    2908, 2908-09 (MMB 1996).

6.  As for sawyer's application for review of the grant of the Shasta
    Lake City permit, we find that the staff properly denied sawyer's
    petition to deny because the Commission's rules no longer require
    that the staff dispose of sawyer's appeal in the *Chester R&O* prior
    to granting the Shasta Lake City permit.[^11] *See Amendment of
    Section 1.420(f) of the Commission's Rules Concerning Automatic
    Stays of Certain Allotment Orders*, 11 FCC Rcd 9501, 9504-05 (1996).

7.  ACCORDINGLY, IT IS ORDERED, that the Application for Review filed
    by m. JAYNE sawyer d/b/a m. JAYNE enterprises in Docket Nos. 94-76,
    94-77 and 95-51 IS HEREBY DENIED;

8.  IT IS FURTHER ORDERED, that the Application for Review filed by m.
    JAYNE sawyer d/b/a m. JAYNE enterprises against Woodrow Michael
    Warren's application for a construction permit for FM station,
    Lakeview, OR (File No. BPH-960619MF) and the Application for Review
    and Motion to Impose Stay against Phoenix Broadcasting, Inc.'s
    application for a construction permit for FM station, Shingletown,
    CA (File No. BPH-961010MF) ARE HEREBY DISMISSED;

9.  IT IS FURTHER ORDERED, that the Application for Review and Motion to
    Impose Stay filed by m. JAYNE sawyer d/b/a m. JAYNE enterprises
    against McCarthy Wireless, Inc.'s construction permit for FM
    station, Shasta Lake City, CA (File No. BPH-960717MA) IS HEREBY
    DENIED and the application for a license to cover the construction
    permit (File No. BLH-980713KD) IS HEREBY GRANTED.

10. IT IS FURTHER ORDERED, that these proceedings ARE TERMINATED.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

[^1]: *MO&O,* 13 FCC Rcd 8549 (MMB 1998).

[^2]: MM Dockets 94-76 and 94-77, 11 FCC Rcd 5288 (Allocations Branch,
    1996).

[^3]: MM Docket 95-51, 11 FCC Rcd 8672 (Allocations Branch, 1996).

[^4]: In her petition for reconsideration, she proposed the allotment of
    Channel 237C3 to McCloud in lieu of Channel 238C3 and Channel 242C2
    to Shasta Lake City in lieu of Channel 296C3. She also proposed to
    allot Channel 299C or Channel 297C1 in lieu of Channel 297C to
    Alturas, or alternatively she suggested that Channel 297C not be
    allotted at all because there is already a vacant Class C3 channel
    allotted to that community. *See MO&O*, 13 FCC Rcd at 8551 n.2.

[^5]: *See supra* note 1.

[^6]: *See id.* at 8551 n. 2.

[^7]: *See id.* at 8550 ¶ 5.

[^8]: *See id.* at 8552 ¶ 13.

[^9]: *See id.* at 8553 n. 5.

[^10]: Although sawyer filed a petition for reconsideration of the grant
    of the Lakeview construction permit, her petition was properly
    dismissed by the staff for her failure to participate in earlier
    stages of the proceeding as required by 47 C.F.R. §1.106(b)(1).
    *See* June 3, 1998 letter from Linda Blair, Chief, Audio Services
    Division, Mass Media Bureau to Ms. m JAYNE sawyer. (1800B3-JWR).

[^11]: Sawyer also requested stays of the grants of the Shasta Lake City
    and Shingletown permits. Based on our actions in this Order, the
    requests for stay are rendered moot.