**DA 08-2676**

*In Reply Refer to:*

1800B3-RDH

Released: December 9, 2008

Ernest T. Sanchez, Esq.

Susan M. Jenkins, Esq.

The Sanchez Law Firm

2300 M Street, N.W.

Washington, DC 20037

John M. Pelkey, Esq.

Garvey Schubert Barer

1000 Potomac Street, N.W.

Washington, DC 20005

Suzanne E. Rogers, Esq.

Law Offices of Suzanne E. Rogers

455 Capitol Mall, Suite 210

Sacramento, CA 95814

**In re:** KNHT(FM), Rio Dell, CA

Facility ID No. 17412

State of Oregon Acting By and Through

The State Board of Higher Education on Behalf

of Southern Oregon University

> Dismissed Construction Permit Application

BPED-20070720ABF

> **Petition for Reconsideration**

KMDR(FM), McKinleyville, CA

Facility ID No. 170994

William W. McCutchen III

Construction permit BNPH-20070502AFH

> Modification application BMPH-20071123ADQ
>
> and Petition for Reconsideration
>
> **Motion for Stay**
>
> **Request for Special Temporary Authority**
>
> KZCC(FM), Trinidad, CA
>
> Facility ID No.164090
>
> Airen Broadcasting Company
>
> Construction Permit BMPH-20070523ADS
>
> License Application BLH-20071231AFD

Dear Applicants:

This letter decision addresses petitions for reconsideration and related
filings concerning the grant of a modification of construction permit
application of Airen Broadcasting Company ("Airen") for Station
KZCC(FM), Trinidad, California (the "KZCC Application"),[^1] as well as
the involuntary channel changes ordered for licensed Station KNHT(FM),
Rio Dell, California, and the unbuilt construction permit for KMDR(FM),
McKinleyville, California, as set forth in the staff's letter of
November 19, 2007.[^2] Specifically, we have before us the Petition for
Reconsideration ("Petition") of the *Letter Decision* filed by the State
of Oregon Acting by and Through the State Board of Higher Education on
Behalf of Southern Oregon University ("SOU"), licensee of Station
KNHT(FM), and the December 20, 2007, Motion for Stay ("Motion") and the
March 20, 2008, Motion for Special Temporary Authority or Other Relief
("STA Request") filed by William W. McCutchen III ("McCutchen"),
licensee of Station KMDR(FM).[^3] We also have before us a May 5, 2008,
Petition for Reconsideration of the staff's dismissal of McCutchen's
application to upgrade KMDR(FM) from Class C3 to Class C0 status.[^4]

For the reasons set forth below, we: (1) grant in part and deny in all
other respects SOU's Petition; (2) rescind the grant of the KZCC(FM)
construction permit application and reissue that permit, as modified
herein; (3) dismiss the KZCC(FM) license application; (3) affirm the
involuntary channel changes established for SOU's Station KNHT(FM) and
McCutchen's Station KMDR(FM); and (4) rescind the reissuance of
KMDR(FM)'s construction permit on its new channel. We also deny
McCutchen's Motion and deny his STA Request. Finally, we deny
reconsideration of the dismissal of McCutchen's Class C0 Application.

**Background***.* The KZCC Application sought to change the community of
license for unbuilt Station KZCC(FM) on Channel 238C3 from McCloud,
California, to Trinidad, California.[^5] Both the McCloud construction
permit and the KZCC Application specify Channel 238C3. This change
required two involuntary channel substitutions.[^6] First, the SOU
license for Station KNHT(FM) would be modified from Channel 297C2 to
Channel 273C2. Second, McCutchen's unbuilt construction permit for
KMDR(FM) would be modified from Channel 236C3 to Channel 299C3. In
compliance with the *2006 Community of License Order*, the KZCC
Application included "a detailed exhibit demonstrating that the proposed
change constitutes a preferential arrangement of allotments under the
Section 307(b) \[of the Communications Act of 1934, as amended\]
priorities and policies \[the Commission has\] used since 1982."[^7]

The staff issued a letter to both SOU and McCutchen on August 15, 2007,
regarding the proposed channel substitutions, directing them to show
cause why those channel substitutions should not be made.[^8] The letter
also asked the parties to comment on the potential impact of a
subsequently filed SOU application for Class C1 operations on SOU's
existing Channel 297C1.[^9]

In response to the *Show Cause Letter*, McCutchen argued that the
channel substitutions proposed by Airen did not result in a preferential
arrangement of allotments and could unduly restrict the commencement of
operations by his Station KMDR(FM) at McKinleyville. McCutchen contended
that it would not be "realistic" to expect KMDR(FM) to commence
operations on its original channel and then to move to its new channel a
few months later. Similarly, SOU argued that Airen had not met the
burden of proof required by Section 316 of the Communications Act of
1934, as amended (the "Act") for a "forced relocation" of a longstanding
licensee. SOU also asserted that its Class C1 upgrade application, filed
July 20, 2007, had been filed six days before an Airen July 26, 2007,
amendment. SOU contended that the Commission should treat this Airen
amendment as the filing which established the cut-off rights for the
proposed involuntary KNHT(FM) channel change to Channel 273C2.
Accordingly, SOU contended that its upgrade application cuts off Airen's
later-filed amendment and was therefore eligible for prior processing
under the Commission's "first-come/first-served" processing system for
minor change applications.

The *Letter Decision* concluded that SOU's contention was meritless.
There is no dispute that the Airen amendment proposing KNHT's
involuntary channel change to Channel 273C2 was filed on June 29, 2007,
prior to the July 20, 2007, filing of SOU's Class C1 upgrade
application.[^10] Under the "first-come/first-served" processing system,
Airen's amended proposal is considered first, and if found acceptable,
would be granted. At that point, subsequently filed applications in
"queue" -- here SOU's Class C1 upgrade application -- would be dismissed
without further consideration.[^11] The staff found that Airen's "lead
application" was acceptable. It concluded that Airen's proposal would
result in a preferential arrangement of allotments.[^12] The staff
granted Airen's application, modified McCutchen's unbuilt construction
permit to specify Channel 299C3, and reissued the KMDR(FM) construction
permit to reflect this channel change. The *Letter Decision* also
modified the KNHT(FM) license to specify Channel 273C2 in lieu of
Channel 297C2. It also required that SOU file an application on FCC Form
301 within 30 days, specifying operation on Channel 273C2.[^13] Finally,
the *Letter Decision* conditioned the initiation of program tests for
KMDR(FM) on Channel 299C3 upon the commencement of KNHT(FM) operations
on Channel 273C2. Airen was ordered to reimburse McCutchen and SOU for
the reasonable costs for the involuntary channel changes of Stations
KMDR(FM) and KNHT(FM), respectively.

In its Petition, SOU, *inter alia*, challenges the staff's conclusion
that the Airen amendment is entitled to "first-come/first-served"
processing rights over the later-filed SOU application. SOU also claims
that grant of Airen's application imperils proposed KNHT(FM) digital
operations, and challenges the finding that grant of Airen's proposal
would result in a preferential arrangement of allotments.

**Discussion.** The Commission will consider a petition for
reconsideration only when the petitioner shows either a material error
in the Commission's original order or raises additional facts not known
or existing at the time of petitioner's last opportunity to present such
matters.[^14] As more fully set forth below, SOU has not met this test.

*SOU Petition.* [SOU's Class C1 upgrade application File No.
BPED-20070720ABF for Station KNHT(FM)]{.underline}*.* As indicated
above, the *Letter Decision* determined that SOU's minor change
application was filed subsequent to Airen's June 29, 2007, amendment to
the application BMPH-20070523ADS, resulting in the KNHT(FM) application
being second in queue and therefore properly dismissed upon grant of the
earlier filed proposal. On reconsideration, SOU disputes the staff's
strict application of the "first-come/first-served" system as
"mechanical," suggesting that Airen was attempting to "game" the
processing system and that the "public interest factors" inherent in
SOU's proposal should be considered.

We agree with SOU's description of the "first-come/first-served" process
as "mechanical." In 1985, the Commission first adopted this processing
policy for FM non-reserved band minor change applications.[^15] This
system replaced the earlier "A/B" cutoff system, in which prior-filed
applications were subject to competing facility proposals. The
Commission decided that the public interest would be better served by a
system that afforded applicants certainty and facilitated efficient
application processing.[^16] SOU fails to explain why its Class C1
upgrade proposal should be uniquely exempt from a processing policy that
the Commission has consistently applied to thousands of applications for
more than two decades, a processing policy that SOU itself
inconsistently argued should apply to its July 20, 2007, application,
based on SOU's erroneous characterization of the July 26, 2007, Airen
amendment. Consequently, the staff's dismissal of Station KNHT(FM)'s
upgrade application (File No. BPED-20070720ABF) was correct.[^17]

[HD Radio Technology]{.underline}*.* SOU suggests that the grant of the
KZCC(FM) Application imperils KNHT(FM)'s initiation of HD digital radio
service, and that such service must be considered as a public interest
factor in support of SOU's Petition.[^18] It is clear from the pleadings
that Station KNHT(FM) has not implemented digital operation on its old
channel (297C2) and has offered no timetable for doing so. Moreover, HD
radio is designed to work on any channel. SOU has not presented any
evidence that would suggest the implementation of HD radio on its new
channel (273C2) would be technically less feasible and/or more
expensive.[^19] Consequently, this argument is not persuasive.

[SOU's characterization of KZCC(FM)'s programming]{.underline}*.* SOU
alleges that KZCC(FM) commenced operations by rebroadcasting the signal
of Educational Media Foundation station KLVG(FM), Garberville,
California, rather than by originating any programming specifically
targeted to Trinidad residents. It demands that Airen "disclose any and
all contracts, understandings and financial arrangements which exist
between Airen and Educational Media Foundation."[^20] SOU presented
these arguments for the first time in its Reply. Because replies are
limited to matters raised in the opposition,[^21] we need not further
consider these assertions.[^22]

[Preferential Arrangement of Allotments]{.underline}. SOU next contends
that the staff erred in concluding that grant of the KZCC(FM)
Application and the related channel changes for Stations KMDR(FM) and
KNHT(FM) would result in a preferential arrangement of allotments.
Specifically, SOU contends that the decision would result in the loss of
a community's sole local service, contravene the Commission's policy
against relocations that deprive a larger community of a first local
service, and disrupt existing services provided by SOU and McCutchen.
SOU claims that the *Letter Decision* does not constitute a reasoned
analysis. We grant reconsideration for the limited purpose of providing
a more detailed explanation of the basis on which the staff found that
grant of the KZCC Application is consistent with Section 307(b) of the
Act.

SOU's claim that grant of the KZCC Application would contravene the
policy prohibiting the relocation of a station that provides a
community's sole local radio service is without merit. As an initial
matter, the involuntary channel changes for Stations KNHT(FM) and
KMDR(FM) are not at issue here. The Bureau has long held that one fully
spaced channel is equivalent to another.[^23] Station KZCC(FM) had
neither constructed its facility nor commenced operation at McCloud,
California. Unbuilt stations are not considered to be "existing
services" under Section 307(b).[^24] As a result, the Commission has not
treated such reallotments as constituting the loss of a community's sole
local service.[^25] We reach this conclusion without taking into account
potential future service by SOU, which holds a construction permit for a
new NCE FM station in McCloud, California.[^26]

We also affirm the staff's determination that the KZCC(FM) application
proposed a preferential arrangement of allotments. In the KZCC
Application,[^27] Airen states that the relocation of KZCC(FM) from
McCloud to Trinidad would constitute a preferential arrangement of
allotments because: (1) McCloud (2000 Census population 1,343) currently
has two issued construction permits, while Trinidad (2000 Census
population 343)[^28] has none; (2) the relocation would bring the latter
community its first local transmission service under Priority 3 of the
Commission's FM Allotment priorities;[^29] and (3) the relocation will
leave McCloud with an authorized broadcast service. Airen argues that
providing Trinidad with its first local transmission service under
Priority 3 serves the public interest under Section 307(b) better than
maintaining two authorized services in McCloud under Priority 4.[^30]

In considering a reallotment proposal, we compare the existing allotment
to the proposed allotment to determine whether the reallotment will
result in a preferential arrangement of allotments for the reasons set
forth by Airen. We find that the reallotment would serve the public
interest because it would provide Trinidad with its first local service
under Priority 3, while the loss of a second McCloud construction permit
would implicate only Priority 4.[^31]

In its Petition, SOU argues that its unbuilt McCloud permit should not
be considered a "local service" to McCloud, because: (1) it was granted
authority to operate as a "satellite" facility of parent station and it
will not be offering a "local" service but merely transmitting its
network program service;[^32] and (2) Airen's claim that SOU can "take
over its responsibilities" to McCloud "disregards the possibility that
the State of Oregon's expansion plans may have changed since 1995, when
it first applied for McCloud, or that circumstances might prevent it
from building on its \[construction permit\] for that facility."[^33]
Moreover, we note that SOU's McCloud facility has been built and
assigned call sign KLDD(FM). It commenced operation on or about October
9, 2008, and its license application is pending (File No.
BLED-20081009AEO). Thus, SOU now does have an operational station at
McCloud.[^34] SOU's claim that, as a "satellite," it will not be
providing a local service to McCloud indicates a grave misunderstanding
of its obligations as a broadcast licensee. "Satellite" stations, no
less than those originating local programs, are required to serve the
needs and interests of their communities of license.[^35]

In light of the above discussion, we conclude that the staff correctly
determined that the change in community would result in a preferential
arrangement of allotments.[^36] Therefore, we direct SOU to file a
construction permit application specifying Channel 273C2 without delay
and no later than 30 days from the date of this Letter. Failure to do so
may result in the issuance of a *Notice of Apparent Liability for
Forfeiture* to SOU.[^37] The filing of a petition for reconsideration,
application for review, or any other challenge to this letter decision
shall not relieve SOU of its obligation to file the required minor
change application.[^38] Airen has committed itself to reimbursing both
McCutchen and SOU for the costs of changing channels, as is required for
involuntary channel change proposals. We expect that SOU and McCutchen
will negotiate with Airen in good faith for the reasonable costs of
changing channels.[^39]

*McCutchen's Motion for Stay and STA Request.* On December 20, 2007,
McCutchen filed the Motion, requesting that the effectiveness of the
*Letter* *Decision* be stayed. McCutchen subsequently filed a request
for Special Temporary Authority ("STA") on March 20, 2008, asking the
staff to grant an STA to allow it to operate on Channel 273 until SOU
completes its channel modification. McCutchen points out that Station
KNHT(FM)'s continued operation on Channel 297C2 precludes the
commencement of Station KMDR(FM)'s operations on Channel 299C3.
McCutchen complains that he has paid the U.S. Treasury \$283,000 for the
McKinleyville allotment in an FCC auction, and through no fault of his
own, now has *no* channel on which the station can be operated pending
the outcome of SOU's appeal. McCutchen argues that a stay or STA would
allow it to construct Station KMDR(FM) and initiate operations.
Additionally, McCutchen was informed by letter dated October 2, 2007,
(*i.e.,* prior to the *Letter Decision*) that Airen's proposal to change
the channels of Stations KMDR(FM) and KNHT(FM) would not constitute a
tolling event and, accordingly, does not prevent the KMDR(FM)
construction permit from expiring on July 3, 2010, at the end of the
three-year construction period.[^40]

For the reasons set forth below, we are rescinding the reissued KMDR(FM)
Channel 299C3 construction permit. Although ultimately KMDR(FM) will be
required to operate on Channel 299, as a result of our action in this
letter, McCutchen retains a valid authorization for the Station on
Channel 236C3, and he may complete construction and commence operation
of KMDR(FM) on that frequency. Moreover, we will, on our own motion,
extend the date of expiration on construction permit File No.
BNPH-20070502AFH to cover the period between November 19, 2007, and the
date of this letter, corresponding to the period during which McCutchen
held an authorization for Channel 299C3. Thus, McCutchen will not suffer
irreparable harm absent a stay.[^41] Accordingly, the *raison d'etre*
for McCutchen's request for stay has been satisfied, and we will deny
McCutchen's request on this basis.

*Other Matters*. Although we reject the substantive arguments raised in
SOU's Petition and McCutchen's Motion for Stay, we will on our own
motion reconsider certain aspects of the *Letter Decision*.[^42]

[McCutchen's Existing Construction Permit for KMDR(FM)]{.underline}*.*
We conclude that, although the staff was correct in modifying the
allotment for KMDR(FM) from Channel 236C3 to Channel 299C3, it
impermissibly reissued the construction permit of KMDR(FM) to reflect
this channel change. Under Section 308(a) of the Act, the Commission may
issue a construction permit "only upon written application therefor . .
. ."[^43] Consequently, we are rescinding the unlawfully issued KMDR(FM)
Channel 299C3 construction permit.[^44] Thus, McCutchen now holds the
originally issued Channel 236C3 construction permit. As noted above, we
are extending the date of expiration on the KMDR(FM) construction permit
to cover the period between November 19, 2007, and the date of this
letter, corresponding to the period during which McCutchen held an
authorization for Channel 299C3. By this action, we restore McCutchen's
ability to construct immediately on Channel 236C3 as originally
authorized, without waiting for SOU to implement the KNHT(FM) channel
change.[^45]

[The McCutchen Class C0 Application]{.underline}. On November 23, 2007,
McCutchen filed an application to modify the KMDR(FM) construction
permit, seeking to upgrade KMDR(FM) from Class C3 to Class C0 on Channel
299. The staff dismissed that application by letter dated April 3, 2008,
because the specified Class C0 reference site failed to provide the
required 100 percent coverage of the entire community of license with a
70 dBµ (3.16 mV/m) strength signal.[^46] In his petition for
reconsideration filed on May 5, 2008, McCutchen provides supplemental
information conclusively establishing that the boundaries of the
community of license did not extend as far as the staff's analysis
showed, such that all of the community of license (McKinleyville, CA)
would be covered by the proposed 70 dBµ signal.

Notwithstanding this showing, we conclude that the McCutchen C0
Application would not be found to be acceptable for filing and, thus,
would remain subject to dismissal. As stated above, we are rescinding
the reissuance of KMDR(FM)'s construction permit on Channel 299C3 and
reinstating the permit on its original channel, 236C3. In this
situation, the McCutchen C0 application proposes a non-adjacent channel
upgrade, *i.e.,* from Channel 263C3 to Channel 299C0, for KMDR(FM). Such
a request, however, must be proposed in accordance with our FM allotment
rulemaking procedures.[^47] We therefore will deny McCutchen's May 5,
2008, Petition for Reconsideration.[^48]

[The KZCC Application and the subsequent covering license application
(BLH-20071231AFD) for KZCC(FM)]{.underline}*.* On the basis of the
previous discussion regarding McCutchen's construction permit (and
reissuance thereof on Channel 236C3), we conclude that the staff's
November 19, 2007, grant of the KZCC Application also was erroneous.
Specifically, grant of the KZCC Application should have contained a
condition prohibiting that station from commencing program test
operations until KMDR(FM) had commenced operations on Channel 299C3.

To rectify this omission, we must reissue the KZCC(FM ) construction
permit and include the necessary condition. Therefore, the November 19,
2007, grant of the KZCC(FM) Application will be set aside. That
application will be granted and reissued as of the date of this letter
with a condition precluding KZCC(FM) from commencing operations on
Channel 238C3 until program test operations have commenced for KMDR(FM)
on Channel 299C3. As a result of these actions, KZCC(FM)'s pending
license application, File No. BLH-20071231AFD, which was filed to cover
this construction permit, must be dismissed, as KZCC(FM) cannot comply
with the revised terms and conditions of the reissued KZCC(FM)
construction permit. Additionally, we will toll the construction period
of the KZCC(FM) construction permit to account for the period between
November 19, 2007, and the present date, corresponding to the period
during which the construction permit was incorrectly issued.

Finally, we note that KZCC(FM) has completed construction and commenced
operations with the facilities specified in the KZCC Application. In
order to minimize disruption of service, we will not require that
KZCC(FM) immediately suspend operation, but will instead grant Special
Temporary Authority ("STA") allowing KZCC(FM) to continue operations on
Channel 238C3 for a period of 180 days from the date of this
letter.[^49] We will also entertain an STA request from Airen specifying
operation of KZCC(FM) on an alternate channel to the extent such STA
facilities would not interfere with the operation of any other station.

**Conclusions/Actions.** Based on the foregoing, IT IS ORDERED, that the
December 19, 2007, Petition for Reconsideration filed by the State of
Oregon Acting By and Through the State Board of Higher Education on
Behalf of Southern Oregon University IS GRANTED to the extent indicated
above and IS DENIED in all other respects. SOU must file a construction
permit application on FCC Form 301 specifying operation of KNHT(FM), Rio
Dell, California, on Channel 273C2 within 30 days of the date of this
letter.

IT IS FURTHER ORDERED, that the December 20, 2007, Motion for Stay and
March 21, 2008, Motion for Special Temporary Authority or Other Relief
filed by William W. McCutchen III ARE DENIED.

IT IS FURTHER ORDERED, that the reissuance of KMDR(FM)'s construction
permit, File No. BNPH-20070502AFH, on Channel 299C3 is rescinded, and
the permit reverts to specify the original channel and station class,
236C3, with a revised expiration date of July 22, 2011.

IT IS FURTHER ORDERED, that William W. McCutchen's May 5, 2008, petition
for reconsideration relating to construction permit, File No.
BNPH-20070502AFH, IS DENIED.

IT IS FURTHER ORDERED, that Airen Broadcasting Corporation's license
application, File No. BLH-20071231AFD, IS DISMISSED, that the November
19, 2008, grant of its construction permit, File No. BMPH-20070523ADS,
IS SET ASIDE, and that construction permit application, File No.
BMPH-20070523ADS, IS GRANTED as of the date of this letter, with the
inclusion of a condition precluding KZCC(FM) from commencing program
tests with the facilities authorized in its construction permit until
program tests commence for KMDR(FM) on Channel 299C3.

IT IS FURTHER ORDERED, that Special Temporary Authority IS GRANTED to
Airen Broadcasting Corporation to permit KZCC(FM) to operate with the
facilities specified in its construction permit, File No.
BMPH-20070523ADS, until such time as KMDR(FM) is ready to initiate
program tests on Channel 236C3, or 180 days from the date of this letter
has elapsed, whichever occurs first.

Sincerely,

Peter H. Doyle, Chief

Audio Division

Media Bureau

cc: Airen Broadcasting Company

State of Oregon Acting By and Through the State Board

of Higher Education on Behalf of Southern Oregon University

William W. McCutchen III

[^1]: File No. BMPH-20070523ADS. Airen completed construction of the
    KZCC(FM) modified facilities and filed an application for covering
    license on December 31, 2007. *See* File No. BLH-20071231AFD.

[^2]: *See Letter to Airen Broadcasting Company, State of Oregon Acting
    By and Through the State Board of Higher Education, and William W.
    McCutchen III from Dale E. Bickel, Senior Engineer, Audio Division,
    Media Bureau*, Reference 1800B3 (Nov. 19, 2007) ("*Letter
    Decision*").

[^3]: Additionally before us is SOU's Reply to Opposition to Petition
    for Reconsideration ("Reply") and Airen's Opposition to Motion for
    Stay.

[^4]: File No. BMPH-20071123ADQ (the "McCutchen Class C0 Application").

[^5]: *See Revision of Procedures Governing Amendments to FM Table of
    Allotment and Changes of Community of License in the Radio Broadcast
    Services,* Report and Order, 21 FCC Rcd 14212 (2006) ("*2006
    Community of License Order*").

[^6]: Initially, Airen proposed only the substitution of Channel 249C3
    for Channel 236C3 at McKinleyville for McCutchen's construction
    permit. However, based on a conflict with a prior-filed proposal at
    Ferndale, California, Airen amended its Application on June 29,
    2007, to propose channel substitutions for both McCutchen's
    McKinleyville construction permit and SOU's KNHT(FM). On July 26,
    2007, Airen amended its Application to state that, if its proposal
    was granted, it would reimburse SOU and McCutchen for the reasonable
    costs associated with their channel changes.

[^7]: KZCC(FM) Application, Attachment 32. *See 2006 Community of
    License Order,* 21 FCC Rcd at 14218. *See also* 47 U.S.C. § 307(b);
    *Revision of FM Assignment Policies and Procedures,* Second Report
    and Order, 90 FCC 2d 88 (1982).

[^8]: Letter to State of Oregon Acting By and Through the State Board of
    Higher Education and William W. McCutchen III, Reference 1800B3 (MB
    Aug. 15, 2007) (the "*Show Cause Letter*").

[^9]: File No. BPH-20070720ABF (the "SOU C1 Application").

[^10]: BPED-20070720ABF.

[^11]: *Letter Decision* at 3. *See also* 47 C.F.R. § 73.3573(f).

[^12]: The *Letter Decision* did not, however, provide a reasoned basis
    for this conclusion. As discussed in detail below, we grant
    reconsideration of the *Letter Decision* for the limited purpose of
    providing a more detailed explanation of the basis on which the
    staff found that grant of the KZCC Application is consistent with
    Section 307(b) of the Act.

[^13]: *Letter Decision* at 3.

[^14]: 47 C.F.R. § 1.106, and *WWIZ, Inc.*, Memorandum Opinion and
    Order, 37 FCC 685, 686 (1964), *aff'd sub nom.*, *Lorain Journal Co.
    v. FCC*, 351 F.2d 824 (D.C. Cir. 1965), *cert. denied*, 387 U.S. 967
    (1966).

[^15]: *See Amendment of Sections 73.3572 and 73.3573 Relating to
    Processing of FM and TV Broadcast Applications*, Report and Order,
    50 FR 19936 (May 13, 1985) ("*1985 Processing Order"*). All FM
    commercial minor change applications filed after the close of the
    "universal window" (June 13, 1985 to July 12, 1985) are treated on a
    first come/first served basis. The first come/first served system
    was later extended to include allotment rulemakings. *Conflicts
    Between Applications and Petition for Rulemaking to Amend the FM
    Table of Allotments,* Report and Order*,* FCC 92-329, 7 FCC Rcd 4917
    (1992).

[^16]: *1985 Processing Order*, 50 FR at 19938 ¶ 11.

[^17]: In its responsive pleadings, Airen suggests that KNHT(FM) could
    upgrade to Class C1 on its new Channel 273, while SOU counters that
    such an upgrade would require use of a directional antenna, thereby
    increasing the costs to SOU. As we have no viable Class C1
    application for Station KNHT(FM) before us, we conclude that these
    arguments are speculative and have no bearing on the present matter.

[^18]: Petition at 16-17.

[^19]: As Station KNHT(FM) has already been ordered to move from Channel
    297C2 to 273C2, any implementation of digital operations on the old
    channel will be at SOU's sole risk.

[^20]: Reply at 6.

[^21]: *See* 47 C.F.R. § 1.45(c).

[^22]: *See, e.g., Ponce Television Corporation¸* Memorandum Opinion and
    Order, 1 FCC Rcd 1167 n.42 (1986). Moreover, Airen counters that
    SOU's personnel and engineer were not hearing KZCC(FM) but were
    actually monitoring a translator station -- K238AD operating out of
    Eureka, CA -- which is licensed to Educational Media Foundation and
    which retransmits the programming of KLVG(FM). Airen states that it
    is not responsible for translator station K238AD operations. *Letter
    to Marlene H. Dortch from Suzanne E. Rogers, Esq.* (rec'd Feb. 6,
    2008).

[^23]: *See, e.g., Randolph and Brandon, Vermont,* Report and Order, 7
    FCC Rcd 1760, 1762 (MMB 1991) ("\[w\]hile we recognize that no two
    channels are ever entirely identical, we consider channels to be
    equivalent if they are of the same class, would comply with the
    minimum distance separation requirements, and would enable a station
    to provide city-grade coverage to the community where the allotment
    would be made.")

[^24]: *Humbolt and Pawnee City, Nebraska and Valley Falls, Kansas,*
    Notice of Proposed Rule Making, 20 FCC Rcd 17940, 17941 (MB 2005),
    *citing* *Pelham and Meigs, Georgia,* Report and Order, 18 FCC Rcd
    12187 (MB 2003).

[^25]: *See*, *e.g*., *Richard Dean Hodson and Shamrock Communications,
    Inc.,* Letter, 23 FCC Rcd 8767 (MB 2008) ("*Hodson & Shamrock
    Letter*") (commercial FM auction winner permitted to relocate
    unbuilt station); *Vernon Center and Eagle Lake, Minnesota*, Report
    and Order, 21 FCC Rcd 14714, 14715 (MB 2007) (reallotment of unbuilt
    station does not constitute removal of community's sole local
    service).

[^26]: *See* File. No. BPED-19950210MA, granted on March 27, 2007,
    pursuant to *Comparative Consideration of 76 Groups of Mutually
    Exclusive Applications for Permits to Construct New or Modified
    Noncommercial Educational FM Stations*, Memorandum Opinion and
    Order, 22 FCC Rcd 6101, 6125-29 (2007).

[^27]: *See* KZCC Application, Attachment 32, "Preferential Arrangement
    and Community Study Under Section 307(b).

[^28]: Airen states that Trinidad is an incorporated municipality listed
    in the U.S. Census, and therefore it is entitled to an allocation.
    It also states that cities similar in size to Trinidad are qualified
    for, and deserving of, allotments, citing *Christine, Texas*, Report
    and Order, 22 FCC Rcd 7604 (MB 2007) (channel allotted to Christine,
    Texas, 2000 Census population 436).

[^29]: The four priorities are: (1) first fulltime aural service; (2)
    second fulltime aural service; (3) first local service; and (4)
    other public interest matters. *Revision of FM Assignment Priorities
    and Procedures,* Second Report and Order, 90 FCC 2d 88 (1982) "*FM
    Allotment Priorities*").

[^30]: Airen cites *Arapaho, Edmond, Oklahoma City, Ponca City,
    Stillwater, The Village, and Woodward, Oklahoma,* Report and Order,
    22 FCC Rcd 9120 (MB 2007) ("*Arapaho*") .

[^31]: *See Santee Cooper Broadcasting Company of Hilton Head, Inc.,*
    Decision, 99 FCC 2d 781 (Rev. Bd. 1984) *recon. den*. Memorandum
    Opinion and Order, 100 FCC2d 469 (1985), *citing Daytona
    Broadcasting Co., Inc*, Decision, 55 RR2d 1326, 1336, n 29 (Rev. Bd.
    1984) (construction permits are cognizable as reception services for
    purposes of Section 307(b)of the Communications Act of 1934, as
    amended); *see also* *Greenup, Kentucky and Athens, Ohio*, Report
    and Order, 2 FCC Rcd 4319 (MMB 1987); *aff\'d in relevant part*,
    Memorandum Opinion and Order, 4 FCC Rcd 3843 (MMB 1989); *aff\'d in
    relevant part*, Memorandum Opinion and Order, 6 Rcd 1493 (1991);
    *appeal dismissed sub nom. WATH, Inc. v. FCC*, D.C. Cir. No. 91-1268
    (Sept. 16, 1991)(vacant allotment is considered an existing service
    for purposes of first and second aural service analysis under
    Section 307(b) of the Act). That Trinidad has only 311 persons as
    opposed to McCloud's 1,343 persons is not a relevant concern. One of
    the primary objectives of the Commission's FM allotment priorities
    is to provide service of local origin to as many communities as
    possible. *FM Allotment Priorities*, 90 FCC 2d at 88. Trinidad, an
    incorporated municipality, is a licenseable community. *Id.* at 101
    ("it is sufficient that the community is incorporated or is listed
    in the census").

[^32]: Petition at 9.

[^33]: Petition at 8.

[^34]: We also note that SOU's arguments about its future plans for the
    McCloud permit are unpersuasive. *See, e.g., Baker v. FCC*, 834 F.2d
    181 (D.C. Cir. 1987) (broadcasting company\'s construction permit to
    build AM radio station in community that did not have station
    required that the station be attributed to that community for
    purposes of statute requiring equitable distribution of radio
    service, although broadcasting company stated that it did not intend
    to construct station with frequency indicated on permit and, in
    fact, had attempted to abandon the permit).

[^35]: *See, e.g., Delmarva Educational Association*, Memorandum Opinion
    and Order, 19 FCC Rcd 6793, 6798 (2004).

[^36]: In challenging the relocation, SOU also argues that "Airen has
    also ignored, and the Audio Division has disregarded, the
    Commission's recent re-interpretation of the 'fair distribution'
    principles of Section 307(b) in the context of NCE stations."
    Petition at 9. SOU cites 47 C.F.R. § 73.7002(b), under which, to be
    credited, a first local NCE service must serve at least 2000 persons
    and, if a competitor also will provide a first NCE service, the
    winner must propose to cover at least 5000 more persons than its
    rivals to receive a dispositive preference. SOU is incorrect. The
    standards adopted to implement Section 307(b) in the context of
    mutually exclusive applications for noncommercial educational FM
    stations in the reserved band have no bearing in this proceeding.
    *See Reexamination of the Comparative Standards for Noncommercial
    Educational Applicants*, Report and Order, 15 FCC Rcd 7386 (2000).

[^37]: 47 C.F.R. § 1.80 establishes a base forfeiture amount of \$3,000
    for failure to file a required form or information. *See* 47 C.F.R.
    § 1.80(a)(4).

[^38]: *See, e.g.,* 47 C.F.R. §§ 1.106(n) ("without special order of the
    Commission, the filing of a petition for reconsideration will not
    excuse any person from complying with any decision, order, or
    requirement of the Commission . . . ."); 1.115(h)(2) (if the
    Commission grants an application for review and orders further
    proceedings, it may stay the effect of the order from which review
    is sought). S*ee also* *A-O Broadcasting Corporation*, Memorandum
    Opinion and Order 23 FCC Rcd 603, 615 n. 74 (2008) (the filing of a
    petition for reconsideration "had no impact" on the effectiveness of
    the actions); *Committee to Save WEAM v. FCC,* 808 F.3d 113 (D.C.
    Cir. 1986) (the filing of a petition for reconsideration or
    application for review does not stay or postpone the effectiveness
    of the dismissal of an application unless the designated authority
    or Commission, in its own discretion, grants a stay).

[^39]: *See Circleville, Ohio*, Second Report and Order, 8 FCC 2d 159
    (1967).

[^40]: *Letter from Peter H. Doyle, Chief, Audio Division to John M.
    Pelkey, Esq.,* dated Oct. 2, 2007.

[^41]: *See Virginia Petroleum Jobbers Association v. Federal Power
    Commission*, 259 F.2d 921, 925 (D.C. Cir. 1958); *Washington
    Metropolitan Area Transit Commission v. Holiday Tours, Inc.¸* 559
    F.2d 841, 842-43 (1977). *See also Alvin Lou Media, Inc.*,
    Memorandum Opinion and Order, 19 FCC Rcd 806, 812 n.44 (2004).

[^42]: *See, e.g., DTV Consumer Education Initiative*, Order on
    Reconsideration and Further Notice of Proposed Rule Making, 23 FCC
    Rcd 7272 (2008) (issuing *sua sponte* reconsideration order 50 days
    after initial decision in that proceeding); *Telecommunications
    Relay Services and Speech-to-Speech Services for Individuals with
    Hearing and Speech Disabilities*, Declaratory Ruling on
    Reconsideration, 21 FCC Rcd 5692 (CGB 2006). *See also Hispanic
    Information and Telecommunications Network, Inc.*, Memorandum
    Opinion and Order, 20 FCC Rcd 5471, 5477-78 (2005) ("In the absence
    of a timely petition for reconsideration . . . the Commission may
    not independently revisit the grant of the . . . Modification
    Application on our own motion").

[^43]: *See* 47 U.S.C. § 308(a) ("The Commission may grant construction
    permits and station licenses, or modifications or renewals thereof,
    only upon written application therefore . . . .").

[^44]: *See, e.g., Citizens for Jazz on WRVR, Inc. v.* FCC, 445 F.2d 392
    (D.C. Cir. 1987) (Commission failed to follow the statutory standard
    in denying a petition to deny alleging misrepresentation); Way *of
    Life Television Network, Inc. v. FCC,* 593 F.2d 1356, 1359 (D. C.
    Cir. 1979) ("an agency's failure to follow its own regulations is
    fatal to the deviant action").

[^45]: Ultimately, KMDR(FM) will be required to operate on Channel 299,
    and Airen will be responsible for all reasonable expenses incurred
    in changing to Channel 299.

[^46]: *Letter to William W. McCutchen III from James D. Bradshaw,
    Deputy Chief, Audio Division, Media Bureau,* reference 1800BE (Apr.
    3, 2008).

[^47]: *See Revision of Procedures Governing Amendments to FM Table of
    Allotments and Changes of Community of License in the Radio
    Broadcast Services*, Report and Order, 21 FCC Rcd 14212, 14222 ¶ 15
    (2006) ("we will permit an FM non-reserved band permittee or
    licensee to use notice and comment procedures to modify its current
    assignment to specify a non-adjacent class upgrade or downgrade in
    the same community of license"). *See also* Note 1 to 47 C.F.R. §
    73.3573(a).

[^48]: Any modification of the KMDR(FM) construction permit will
    necessarily have to specify Channel 299C3, as the allotment for
    KMDR(FM) has been changed to that channel by the *Letter Decision*.
    When KMDR(FM) has been constructed and filed a license application
    covering Channel 299C3 operations, McCutchen may immediately file an
    application requesting Class C0 facilities on Channel 299. *See,
    e.g., Media Bureau Offers Examples to Clarify the Treatment of
    Applications and Rulemaking Petitions Proposing Community of License
    Changes, Channel Substitutions, and New FM Allotments*, Public
    Notice, 22 FCC Rcd 6852, 6853 (MB 2007), Example 5 (Licensed Station
    Proposing a Non-adjacent Channel Upgrade).

[^49]: Airen may request extension of this Special Temporary Authority,
    as necessary and appropriate.