**Before the**

**Federal Communications Commission**

##  Washington, D.C. 20554

In the Matter of )

)

# Amendment of Section 73.202(b), ) MB Docket No. 04-318 

# Table of Allotments, ) RM-11040 

FM Broadcast Stations. )

(Culebra and Vieques, Puerto Rico )

**MEMORANDUM OPINION AND ORDER**

**Adopted: January 14, 2009 Released: January 16, 2009**

By the Assistant Chief, Audio Division, Media Bureau:

1\. The Commission has before it a Petition for Reconsideration filed by
Western New Life, Inc. ("Petitioner"), permittee of Station WJZG(FM)
("WJZG"), Channel 293A, Culebra, Puerto Rico,[^1] directed to the
*Report and Order* in this proceeding.[^2] Oppositions to the Petition
for Reconsideration were filed by V.I. Stereo Communications Corp.
("V.I. Stereo"), Raul G. Rivera Menendez ("Menendez"), International
Broadcasting Corporation ("IBC"), and Aerco Broadcasting Corporation
("Aerco"). Petitioner filed a Motion to Accept Late Filed Reply and a
Reply.[^3] For the reasons stated below, we deny the Petition for
Reconsideration.

2\. **Background.** Station WJZG received a construction permit to
operate on Channel 293A at Culebra, Puerto Rico in 1995, but the permit
was conditioned upon the outcome of a rulemaking proceeding in MM Docket
No. 91-259. The *Report and Order*[^4] in that rulemaking proceeding
involved a "daisy chain" of allotments and substituted Channel 254A for
Channel 293A at Culebra. Petitioner states that neither it nor its
predecessor in interest could be licensed on Channel 293A at Culebra
because that allotment had been removed. Moreover, it cannot commence
operations on Channel 254A until other station modifications are
implemented. Petitioner obtained an STA to operate the Culebra facility
on Channel 293A in 1998 and has regularly renewed the STA which permits
WJZG to provide a first local service to Culebra.

3\. At the request of Petitioner, the *Notice of Proposed Rule Making*
("*Notice* ")[^5] in this proceeding proposed the substitution of
Channel 291A for Channel 254A at Culebra, Puerto Rico, in an attempt to
obtain a permanent authorization for Station WJZG. To accommodate the
foregoing allotment, the *Notice* proposed the deletion of Channel 291B
at Vieques, Puerto Rico. The *Notice* also stated that Channel 291B
would not be deleted at Vieques if there was an expression of interest
for the channel. IBC, Aerco, Menendez and V.I. Stereo opposed the
deletion of Channel 291B at Vieques and expressed their interest in
applying for that channel. In its comments and reply comments,
Petitioner argued that if there were expressions of interest for Channel
291B at Vieques, that Channel 254A could be substituted for Channel 291B
at Vieques, thus providing a second local aural transmission service to
Vieques, which is already served by a fulltime AM station, to allow
Station WJZG to obtain a permanent authorization on Channel 291A at
Culebra, Puerto Rico. Petitioner also claimed that Station WJZG is
providing a first local service that the residents of Culebra have come
to rely upon after many years of operation, whereas the Vieques Channel
291B allotment was never constructed, so that the residents of Vieques
have not come to rely on that particular service. Lastly, Petitioner
asserted that the instant case is similar to the *Bethel Springs et al.,
Tennessee* ("*Bethel Springs*") case.[^6] Petitioner claims that, in
*Bethel Springs*, a vacant allotment at Tiptonville, Tennessee, was
downgraded to enable the reallotment, upgrade, and change in community
of license of an existing station which would provide first local
service to a new community of license. Thus, Petitioner argues, the
Commission concluded that downgrading the vacant allotment was
appropriate because the public interest benefit of providing a first
local service outweighed downgrading an existing channel.

4\. The *Report and Order* in this proceeding denied Petitioner's
initial proposal to substitute Channel 291A for Channel 254A at Culebra,
Puerto Rico, as well as Petitioner's alternate proposal to substitute
Channel 254A for Channel 291B at Vieques and to allot Channel 291A to
Culebra. The *Report and Order* rejected both proposals because several
parties had filed expressions of interest to retain Channel 291B at
Vieques and to apply for it as a Class B allotment. In addition, the
*Report and Order* observed that since the *Notice* had not proposed the
substitution of Channel 254A for Channel 291B at Vieques as an
alternative, the public had not been afforded the required opportunity
to respond to this alternate proposal. Lastly, the *Report and Order*
found no compelling public interest benefit for deleting Channel 291B at
Vieques or substituting Channel 254A for Channel 291B at Vieques in
order to accommodate the allotment of Channel 291A at Culebra as a
permanent authorization. The *Report and Order* also explained that
Petitioner's reliance on *Bethel Springs* as a similar case was
misplaced. In this regard, the *Report and Order* noted that, in *Bethel
Springs*, the downgrade of the Tiptonville, Tennessee channel was
proposed in the Notice of Proposed Rule Making in that proceeding, and
no formal expression of interest was submitted either opposing the
downgrade or explicitly indicating that any party had an interest in
applying for the vacant Tiptonville channel.

5\. **Discussion**. In its Petition for Reconsideration, Petitioner
repeats the arguments it made in its comments and reply comments.
Petitioner claims that the staff should have given serious consideration
to Petitioner's alternative proposal, namely, substituting Channel 254A
for Channel 291B at Vieques in order to accommodate the allotment of
Channel 291A at Culebra. Petitioner states that the Commission could
have treated Petitioner's alternative proposal as a counterproposal
since it was recommended in Petitioner's comments as well as in its
reply comments. Petitioner also asserts that it was not necessary to
publish a separate notice about Petitioner's alternate proposal, that
the alternative proposal was a "logical outgrowth" of the *Notice*, and
that the public had ample opportunity to review the comments on the
Commission's website and at the Commission's offices and could have
filed reply comments. Petitioner observes that it and one other party
filing reply comments expressed interest in applying for Channel 254A at
Culebra. Petitioner also argues that the commenters who expressed their
interest in applying for Channel 291B at Vieques did not file reply
comments stating any objection to substituting Channel 254A for Channel
291B at Vieques. We note that the filing of reply comments is not
required. We also observe that four commenters who expressed their
interest in applying for Channel 291B in Vieques also filed Oppositions
to Petitioners' Petition for Reconsideration, stating explicitly that
they wished to apply for Channel 291B in Vieques. Further, the staff was
simply following relevant Commission precedents when it stated in the
*Notice* that Channel 291B in Vieques would not be deleted if there was
an expression of interest for the channel.[^7] Although the *Report and
Order* was somewhat ambiguous as to the weight the staff gave to the
fact that the alternative proposal was not included in the *Notice*, we
have considered Petitioner's alternative proposal at this stage of the
rulemaking proceeding and we do not perceive any compelling public
interest reason for granting Petitioner's original proposal or its
alternative proposal. In this regard, the *Notice* had already promised
to retain Channel 291B at Vieques if there was an expression of interest
in that channel.

6\. In its Petition for Reconsideration, Petitioner also argues that the
*Report and Order*'s result is contrary to *Bethel Springs*. We find
that *Bethel Springs* is not applicable to the case before us. In brief,
*Bethel Springs* was unique in several respects and, in any event, was a
staff decision, and thus not as binding as a Commission decision. We
observe that *Bethel Springs* involved the downgrade of a vacant channel
in Tiptonville, Tennessee, that had received a construction permit, but
whose permit had expired. Thus, parties had already had the opportunity
to apply for a construction permit for Tiptonville and that process had
been completed. In that light, *Bethel Springs* allowed the Tiptonville
channel to be downgraded so that a first local service could be awarded
to a different community under priority 3 of the FM allotment
priorities.[^8] In the instant case, the process for determining whether
V.I. Stereo should retain its construction permit for Channel 291B at
Vieques had not been completed at the time the *Report and Order* was
released. Further, in *Bethel Springs*, no formal expression of interest
was submitted either opposing the downgrade, or explicitly indicating
that any party had an interest in applying for the vacant Tiptonville
channel, or building a station if its application were granted. In the
case before us, several parties have expressed interest in applying for
Channel 291B in Vieques, should that channel become vacant.

7\. Previously, V.I. Stereo held a construction permit to build a new
station on Channel 291B at Vieques, but failed to construct before its
permit expired. At the time the *Report and Order* herein was adopted,
V.I. Stereo had pending before the Commission an Application for Review
of the recission of the Vieques construction permit. Thus, at the time
the *Report and Order* was adopted, Channel 291B at Vieques was not
technically vacant. Subsequently, the Commission partially granted V.I.
Stereo's Application for Review and reinstated the Vieques construction
permit.[^9] An application for license to cover the Vieques construction
permit is currently pending.[^10] If V.I. Stereo receives a license for
Channel 291B at Vieques, Puerto Rico, Petitioner's Petition for
Reconsideration would be rendered moot, because Channel 291B would be
occupied and could not be downgraded. In any event, there is no basis
for the requested reconsideration at this time.

8\. The Commission will not send a copy of this *Memorandum Opinion and
Order* in a report to be sent to Congress and the Government
Accountability Office pursuant to the Congressional Review Act, *see* 5
U.S.C. 801(a)(1)(A), because by denying the Petition for Reconsideration
in this case, we are not adopting any new rule which we need to report
to the Congress or the Government Accountability Office.

9\. Accordingly, IT IS ORDERED That the Petition for Reconsideration
filed by Western New Life, Inc. IS DENIED.

10\. IT IS FURTHER ORDERED that this proceeding IS TERMINATED.

11\. For further information concerning this proceeding, contact Richard
B. Gorman, Media Bureau, (202) 418-2180.

FEDERAL COMMUNICATIONS COMMISSION

#  John A. Karousos 

#  Assistant Chief 

#  Audio Division

Media Bureau

[^1]: Petitioner currently operates WJZG(FM) pursuant to Special
    Temporary Authority ("STA").

[^2]: *Culebra and Vieques, Puerto Rico*, Report and Order, 21 FCC Rcd
    6884 (MB 2006).

[^3]: For good cause shown, Petitioner's motion is granted.

[^4]: *Canovanas, Culebra, Las Piedras, Mayaguez, Quebradillas, San Juan
    and Vieques, Puerto Rico and Christiansted and Frederiksted, Virgin
    Islands*, Report and Order, 10 FCC Rcd 6673 (MMB 1995); *recon.
    denied*, Memorandum Opinion and Order, 11 FCC Rcd 16392 (MMB 1996);
    *app. for rev. denied*, Memorandum Opinion and Order, 12 FCC Rcd
    10055 (1997); *further recon. denied*, Memorandum Opinion and Order,
    FCC 99-147, released June 21, 1999 (64 Fed. Reg. 48307, September 3,
    1999).

[^5]: *Culebra and Vieques, Puerto Rico*, Notice of Proposed Rule
    Making, 19 FCC Rcd 15389 (MB 2004).

[^6]: Memorandum Opinion and Order, 17 FCC Rcd 14472 (MMB 2002).

[^7]: *See*, *e.g*., *Montrose and Scranton, Pennsylvania*, Memorandum
    Opinion and Order, 5 FCC Rcd 6305 (1990); *Driscoll, Texas, et al.*,
    Report and Order, 10 FCC Rcd 6528 (MMB 1995); and *Martin,
    Tennessee*, *et al*., Memorandum Opinion and Order, 15 FCC Rcd 12747
    (MMB 2000).

[^8]: *See Revision of FM Assignment Policies and Procedures*, Second
    Report and Order, 90 FCC 2d 88 (1982), *recon. denied,* Memorandum
    Opinion and Order, 56 RR 2d 448 (1983). The FM allotment priorities
    are: (1) first full-time aural service; (2) second full-time
    service; (3) first local aural transmission service and (4) other
    public interest matters. Co-equal weight is given to priorities (2)
    and (3).

[^9]: *See* *V.I. Stereo Communications Corp*. ("*VISCC Decision*"),
    Memorandum Opinion and Order, 21 FCC Rcd 14259 (2006).

[^10]: *See* File No. BLH-20080611AAE.