**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | MM Docket No. 01-47          |
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| Amendment of Section 73.202(b),  | ** | RM-10063                     |
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| Table of Allotments,             | *  | RM-10119                     |
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| FM Broadcast Stations.           | ** | RM-10120                     |
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| (Valley Mills, Teague, Brady,    | *  |                              |
| Hico, Meridian,                  | *) |                              |
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| San Saba, Richland Springs,      |    |                              |
| Texas)                           | *  |                              |
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**REPORT AND ORDER**

**(Proceeding Terminated)**

**Adopted: October 20, 2004 Released: October 25, 2004**

By the Assistant Chief, Audio Division, Media Bureau:

1\. The Audio Division has before it the *Notice of Proposed Rule
Making* [^1] issued at the request of Valley Mills Radio Broadcasting
Company ("Petitioner"). Petitioner and Elgin FM Limited Partnership
("Elgin FM Limited") filed supporting comments.[^2] Roy Henderson and
Pecan Bayou Radio (collectively "Joint Parties") and Teague Broadcasting
Company ("Teague Broadcasting") filed counterproposals.[^3] Petitioner
filed reply comments in response to Teague Broadcasting's
counterproposal. Farris Broadcasting, Inc. ("Farris Broadcasting"),
licensee of Station KNEL-FM, Channel 237A, Brady, Texas filed reply
comments in response to the Joint Parties' counterproposal. The Joint
Parties filed reply comments to the *Public Notice.* Petitioner filed
Motion for Leave to File Comments. Farris Broadcasting filed responsive
comments to a subsequent *Order to Show* Cause.[^4] Roy Henderson filed
a Withdrawal of Consent and Support. No other comments or
counterproposals were received in this proceeding.

2\. **Background.** The *Notice* proposed the allotment of Channel 237C2
at Valley Mills, Texas, as that community's first local service. In
response to the *Notice,* Petitioner filed comments reiterating an
intention to apply for proposed Channel 237C2 at Valley Mills, if
allotted. Elgin FM Limited filed supporting comments. Teague
Broadcasting timely filed a counterproposal requesting the allotment of
Channel 237C3 to Teague, Texas, as its first local service. Petitioner
filed reply comments supporting the proposed Teague allotment and
withdrawing its Valley Mills proposal. Petitioner filed a sworn
declaration certifying that it has not received, nor is entitled to
receive, any money or other consideration, directly or indirectly, in
exchange for the request to withdraw its expression of interest in the
allocation of Channel 237C2 to Valley Mills, Texas pursuant to Section
1.420(j) of the Commission's rules.[^5] Elgin FM Limited filed a sworn
affidavit in compliance with Section 1.420(j) withdrawing its expression
of interest in the proposed Valley Mills allotment. The affidavit
certified that Elgin FM Limited has received and will not receive,
either directly or indirectly, any money or other consideration in
connection with the withdrawal of its expression of interest.

3.  The Joint Parties originally filed a timely counterproposal
    containing an Option I and an Option II.[^6] The Joint Parties
    subsequently filed a Partial Withdrawal for Option I because Roy
    Henderson withdrew his interest in the reallotment of Channel 237C3
    from San Saba to Goldthwaite, Texas, but maintained interest in the
    Channel 237A substitution at San Saba necessary to accommodate
    Option II.[^7] Option II requested the allotment of Channel 291A at
    Richland Springs, Texas, as its second local service, the
    substitution of Channel 237A for Channel 291A at San Saba and
    modification of the license of Station KBAL-FM accordingly. This
    proposed substitution requires the substitution of Channel 296A for
    Channel 237A at Brady and the modification of the license for
    Station KNEL-FM to reflect this change. To this end, we issued the
    *Order to Show Cause* directed to Farris Broadcasting, licensee of
    Station KNEL-FM to show cause why its license should not be change
    as proposed herein. Option II also proposed the allotment of Channel
    285A at Hico, Texas, as its first local service. This proposed
    allotment requires the substitution of Channel 237A for vacant
    Channel 285A at Meridian, Texas.[^8]

4.  The Joint Parties filed responsive comments stating that the Teague
    counterproposal was not technically correct when filed because it
    was short-spaced to the site originally proposed for the Channel
    236C2 upgrade for FM Station KNDE at College Station, Texas in MM
    Docket 91-58. Farris Broadcasting filed responsive comments to the
    *Order to Show Cause* stating that it objects to the Channel 296A
    substitution for Station KNEL-FM because it would create extreme
    listener confusion, and preclude the station from upgrading to a
    Class C3 allotment. In any event, Farris Broadcasting stated that if
    the Joint Parties' counterproposal is granted, reimbursement would
    be a minimum of \$250,000.00. In a subsequent pleading, Roy
    Henderson filed a withdrawal of consent and support for the proposed
    Channel 237A substitution at San Saba.

5\. **Discussion.** Both counterproposals conflict with the proposed
Valley Mills allotment. However, since there are no expressions of
interest in this allotment, we will evaluate each counterproposal
because these proposals are not mutual exclusive. [^9]

6\. The proposed Richland Springs allotment requires the substitution of
Channel 237A for Channel 291A at San Saba and modification of the
license of Station KBAL-FM accordingly. Roy Henderson recently withdrew
his expression of interest in the proposed San Saba substitution, in
compliance with Section 1.420(j) of the Commission's rules. As such, we
will not consider the proposed Richland Springs allotment because Pecan
Bayou needed to file the requisite pledge for reimbursement absent Roy
Henderson's consent. [^10] On the other hand, we will consider the
merits of the proposed Hico allotment because it is mutually exclusive
with the originally proposed Valley Mills allotment. Pecan Bayou Radio
requested the allotment of Channel 285A at Hico, Texas, as its first
local service.[^11] To accommodate this allotment, Pecan Bayou Radio
proposed the substitution of Channel 237A for vacant Channel 285A at
Meridian, Texas.

7\. Accordingly, we are allotting Channel 285A to Hico, Texas, as its
first local service. To accommodate this allotment, we are substituting
Channel 237A for vacant Channel 285A at Meridian, Texas. Channel 285A
can be allotted to Hico consistent with the Commission's minimum
distance separation requirements at city reference coordinates. The
reference coordinates for Channel 285A at Hico are 31-58-54 North
Latitude and 98-01-54 West Longitude. Channel 237A can be allotted to
Meridian consistent with the Commission's minimum distance separation
requirements provided there is a site restriction of 7.4 kilometers (4.6
miles) northwest of the community. The reference coordinates for Channel
237A at Meridian are 31-59-07 North Latitude and 97-41-22 West
Longitude.

8\. Teague Broadcasting filed its counterproposal requesting the
allotment of Channel 237C3 to Teague, Texas, as its first local service.
[^12] The Joint Parties asserted that the Teague counterproposal was not
technically correct when filed, citing *Broken Arrow*,[^13] because
there was no finality in MM Docket 91-58 because of its pendency before
the U.S. Court of Appeals for the D.C. Circuit. The *Report and Order*
in MM Docket 91-58 ("KNDE *R&O*"), upgraded FM Station KNDE, College
Station, Texas at a site that would no longer conflict with the proposed
Channel 237C3 allotment at Teague. Therefore, the Teague counterproposal
was technically correct based on our holding in *Auburn*[^14] because
the Teague counterproposal was filed after the effective date in the
KNDE *R&O*.[^15] Moreover, the proposed Teague allotment is not
short-spaced to the license of FM Station KNDE, Channel 236C2, College
Station, Texas.[^16] Based on the foregoing, we are allotting Channel
237C3 to Teague, Texas, as its first local service. Channel 237C3 can be
allotted to Teague, in compliance with the Commission's minimum distance
separation requirements provided there is a site restriction of 19.6
kilometers (12.2 miles) north of the community. The reference
coordinates for Channel 237C3 at Teague are 31-47-33 North Latitude and
96-12-39 West Longitude.

9\. The Commission will send a copy of this *Report and Order* in a
report to be sent to Congress and the General Accounting Office pursuant
to the Congressional Review Act, *see* 5 U.S.C. 801(a)(1)(A).

10\. Accordingly, pursuant to the authority found in 47 U.S.C. Sections
4(i), 5(c)(1), 303(g) and (r) and 307(b) and 47 C.F.R. Sections 0.61,
0.204(b) and 0.283, IT IS ORDERED, That effective January 5, 2005,[^17]
the FM Table of Allotments, 47 C.F.R. Section 73.202(b), IS AMENDED,
with respect to the communities listed below, to read as follows:

[Communities]{.underline} [Channel No.]{.underline}

Hico, Texas 285A

Meridian, Texas 237A

Teague, Texas 237C3

11\. The window period for filing applications for Channel 285A at Hico,
Texas and Channel 237C3 at Teague, Texas will not be opened at this
time. Instead, the issue of opening these allotments for auction will be
addressed by the Commission in a subsequent order. A filing window for
the substituted Channel 237A will not be opened at this time since
Channel 285A at Meridian, Texas, Auction No. FM297, is schedule to be
auctioned in Auction No. 37 on November 3, 2004. As such, the ultimate
permittee for this allotment is required to file an application
specifying Channel 237A in lieu of Channel 285A at Meridian, Texas.

12\. IT IS ORDERED, That the Petition for Rulemaking filed by Valley
Mills Radio Broadcasting Company proposing the allotment of Channel
237C2 to Valley Mills, Texas IS DISMISSED.

13\. IT IS FURTHER ORDERED, That the aforementioned proceeding IS
TERMINATED

14\. For further information concerning this proceeding, contact Rolanda
F. Smith, Media Bureau, (202) 418-2180.

FEDERAL COMMUNICATIONS COMMISSION

John A. Karousos

Assistant Chief

Audio Division

Media Bureau

[^1]: *Valley Mills, Texas,* 16 FCC Rcd 3522 (MMB 2001). ("*Notice")*.

[^2]: Elgin FM Limited filed a Withdrawal of Expression of Interest in
    the proposed Valley Mills allotment.

[^3]: The Joint Parties filed a Partial Withdrawal for Option I of its
    counterproposal. As such, Option II was placed on *Public Notice.
    See Public Notice,* Report No. 2488, released June 1, 2001.

[^4]: *Valley Mills, Teague, Brady, Hico, Meridian, San Saba, Richland
    Springs, Texas*, 19 FCC Rcd 10214 (MB 2004).

[^5]: *See* 47 C.F.R. 1.420(j).

[^6]: The Joint Parties' counterproposal was filed on April 9, 2001. On
    May 11, 2001, we released *Winslow, Camp Verde, Mayer and Sun City
    West, Arizona*, 16 FCC Rcd 9551 (MMB 2001), in which we announced
    that after release of the decision in the Federal Register, we would
    no longer accept petitions for rule making or counterproposals that
    contain optional or alternative proposals.

[^7]: Roy Henderson filed an affidavit pursuant to Section 1.420(j)
    stating that no agreements, written or oral, express or implied,
    relating to the dismissal of his expression of interest in applying
    for Channel 273C3 at Goldthwaite, Texas. Henderson further, states
    that nor has he been paid or promised any payment or other
    consideration in exchange for its withdrawal of expression of
    interest in the proposal Goldthwaite reallotment.

[^8]: Channel 285A at Meridian, Texas (FM297) is included among the 290
    FM channels listed for auction in FM Auction 37, scheduled to
    commence November 3, 2004.

[^9]: It is Commission policy to refrain from making a new allotment to
    a community absent an expression of interest. *See e.g., Clarendon,
    Texas,* 18 FCC Rcd 12701 (MB 2003) and *Jasper, Texas*, 18 FCC Rcd
    418 (MB 2003).

[^10]: *See Circleville, Ohio,* 8 FCC Rcd 2d 159 (1967).

[^11]: Hico is an incorporated community with a 2000 Census population
    of 1,341 persons. Hico has its own mayor and city council and city
    manager. Hico provides a number of municipal services, including
    police and fire protection. Hico has its own post office,
    independent school district, doctors' clinic, pubic library and a
    number of commercial businesses.

[^12]: Teague was incorporated in 1925 and has a 2000 U.S. Census
    population of 4,557 persons. It is governed by a mayor and five city
    council members, and served by various city officials. Teague has
    several civic organizations and commercial businesses.

[^13]: *Broken Arrow and Bixby, Oklahoma and Coffeyville, Kansas,* 3 FCC
    Rcd 6507 (MMB 1988).

[^14]: *See Auburn, Alabama, et al,* 18 FCC Rcd 10333 (MB 2003)
    ("*Auburn*").

[^15]: *See Caldwell, College Station and Gause, Texas*, 13 FCC Rcd
    13772 (1998), *recon. denied,* 15 FCC Rcd 3322 (2000).

[^16]: *See* BLH-20030303ABG.

[^17]: *See* 47 C.F.R. § 1.427(a) and 47 U.S.C. § 553(d). *See, e.g.,
    Authorization and Use of Software Defined Radios,* 16 FCC Rcd 17373
    (2001) (new rules effective 120 days after publication in the
    Federal Register).