**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File No. BP-971212AB         |
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| Application of State of Oregon,  | ) |                              |
| Acting By and Through the State  | * |                              |
| Board of Higher Education for    | * |                              |
| the Benefit of Southern Oregon   |   |                              |
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| For a New AM Radio Station,      | ) |                              |
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| Mountain Gate, California        | * |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: August 1, 2000 Released: August 11, 2000**

By the Commission:

1\. The Commission has before it a Petition for Reconsideration filed
November 29, 1999, by the State of Oregon, Acting By and Through the
State Board of Higher Education for the Benefit of Southern Oregon
University ("Oregon"). Oregon seeks reconsideration of the October 28,
1999, action of the Commission denying Oregon's application for review
of a decision of the Mass Media Bureau returning as unacceptable for
filing Oregon's application for a new AM station at Mountain Gate,
California. *Southern Oregon University*, FCC 99-315 (released Oct. 28,
1999) ("*Southern Oregon Order*").

2\. The narrow standards for reconsideration of a Commission denial of
an application for review are set forth in 47 C.F.R. §1.106. 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. 47 C.F.R. §1.106(b)(2)(i)-(ii). Although Oregon has
presented new facts, they do not warrant grant of its Petition for
Reconsideration. 47 C.F.R. §1.106(c)(2).

3\. **Background**. In December 1997, Oregon filed the captioned
application for a new AM station at Mountain Gate, California (the
"*Mountain Gate Application*"). At the time it was filed, the
application was mutually exclusive with a then-pending application filed
by M.C. Allen Productions ("MCAP"), licensee of KMCA(AM), to change its
community of license from Burney to Shasta, California.[^1] The staff
returned Oregon's Mountain Gate Application as unacceptable for filing
because it failed to adequately protect the licensed facilities of
KMCA(AM) at Burney, California, as required by 47 C.F.R. § 73.37(a).[^2]
The staff denied reconsideration, noting that "Oregon's redundant
petition failed to contain a curative amendment to eliminate the
prohibited overlap" to KMCA's licensed facilities in Burney.[^3] In its
Application for Review, Oregon argued that §73.37(a) was misapplied with
regard to the Mountain Gate Application. In the Application for Review,
Oregon stated that the purpose of §73.73(a) is to require that new
proposed AM applications not create prohibited levels of interference to
already licensed facilities, and noted that it had "no basic quarrel
with the purposes of this rule or its general application."[^4] However,
Oregon asserted that in this case, the staff's reliance on the rule had
denied Oregon the opportunity to have its application considered
comparatively against KMCA's proposed new Shasta station. "By this
misapplication of 73.37(a) to Oregon's application, the Commission staff
totally eviscerate's (sic) the requirements of its own rules as well as
the requirements of Ashbacker."[^5] Oregon questioned why the Commission
issued a Public Notice on November 14, 1997 inviting competing
applications against KMCA's Shasta proposal if offering technical
protection to KMCA's Burney facilities was proper and intended from the
outset.[^6] In the *Southern Oregon Order*, we denied review, concluding
that the Mass Media Bureau "properly interpreted §73.37(a) to preclude
acceptance of an application that does not protect the contours of an
existing facility . . .." We held that this rule applies "even when the
licensee of the existing facility has a construction permit, or, as
here, has filed an application for a permit, which, if implemented,
would eliminate contour overlap between the licensee's existing facility
and the other applicant's proposed facility." *Southern Oregon Order* at
1.

4\. Oregon asserts its Petition for Reconsideration is based "on facts
which relate to events which have occurred" since Oregon filed its
Application for Review, and therefore, is not repetitious. Oregon also
claims reconsideration is required because the Commission's adherence to
47 C.F.R. § 73.37(a) is misplaced in the instant case, given the fact
that M.C. Allen Productions ("MCAP") has abandoned its licensed facility
in Burney and, according to Oregon, is not going to apply for a license
at its new location "until the very last minute."[^7] Oregon insists
MCAP "does not play by the same set of rules" as other typical
applicants and thus §73.37(a) should not apply.[^8] It also claims the
facts are not as the Commission believed them to be at the time of the
*Southern Oregon Order*. Specifically, Oregon claims that MCAP has moved
its studio and transmitter site several times since December 1997, most
recently to "yet another -- unauthorized and undisclosed -- location
entirely."[^9] Oregon claims that MCAP has failed to apply for a license
for the new Shasta location, and suggests that MCAP is engaged in some
sort of "shell game or a game of 'hide the ball,' a game in which the
licensee continually shifts its location in order to prevent the unwary
observer -- or regulator -- from pinning it down."[^10] Oregon contends
that it is apparent the *Southern Oregon Order* is "based upon a record
which gives the false impression that MCAP has not yet moved its
facilities from its so-called 'existing' site in Burney, CA." Oregon
states that the "Commission also indicated its lack of knowledge of the
current state of affairs when it referred to MCAP as having 'filed an
application for a construction permit, which, ***if implemented, would
eliminate contour overlap.*** . .." (emphasis in original). Oregon
claims that the "'existing facility' which the staff and Commission are
trying to protect no longer exists" because MCAP has initiated
operations of the facilities specified in the construction permit that
authorized KMCA's move to Shasta ("*Shasta Construction Permit")*.[^11]
Oregon urges the Commission to conduct an investigation into this
matter.

5\. **Discussion.** We find that Oregon has not presented any facts that
would warrant grant of its Petition for Reconsideration. We have closely
reviewed MCAP's efforts to find a new transmitter site and to license
these facility modifications. FCC records establish that MCAP has not
operated its licensed Burney station since January 1997 when it
requested Special Temporary Authorization ("STA") to keep KMCA silent.
On November 5, 1999 MCAP filed a license application (File No.
BL-19991105AAZ) to cover the *Shasta Construction Permit.*[^12] However,
MCAP almost immediately thereafter encountered zoning problems, and on
December 15, 1999 obtained an STA to operate at a different site. On
March 24, 2000 MCAP filed an application (File No. BMP-20000324AAT) for
construction permit specifying its current STA transmitter site. We fail
to see how these unremarkable siting difficulties and associated
Commission filings support in any way Oregon's contention that it should
not be required to provide section 73.37(a) protection to the licensed
Burney facility.[^13]

6\. As we stated in the *Southern Oregon Order*, protecting the KMCA
license site in Burney "ensures both that the licensed facility can
continue to operate in the event \[the licensee\] cannot implement its
construction permit and an orderly transition from grant of the permit
to grant of a license for the modified facility."[^14] This "orderly
transition" is promoted by the requirement that other applicants
continue to protect KMCA's licensed facilities as MCAP works to secure a
new site and a license to broadcast at that location. Thus, consistent
with longstanding policy, Oregon's application for a new AM station was
required either to protect KMCA's licensed facility in Burney, or to
request a waiver of section 73.37(a). Oregon did neither, and the staff
properly returned the Mountain Gate Application. Moreover, we find that
a waiver of section 73.37(a) is particularly unwarranted where, as here,
a licensee has experienced difficulties in implementing a facilities
modification and is currently operating from a temporary site pursuant
to a STA. We also recognize that the application of section 73.37(a) in
conjunction with our former AM station new and major change A/B cut-off
list procedures may have had the effect of limiting the ability of
others to file competing applications when a licensee filed an
application to change its station's city of license. For the reasons
stated above, we find that this approach provides important flexibility
for licensees to improve facilities and undertake necessary site
relocations, and that these considerations outweigh the preclusive
impact on proposals that may be favored under Section 307(b) of the
Communications Act, as amended. Accordingly, a waiver of Section
73.37(a) in the instant circumstances is unwarranted.

7\. Accordingly, for the reasons set forth herein, IT IS ORDERED, that
the Petition for Reconsideration filed by State of Oregon, State Board
of Higher Education, for the Benefit of Southern Oregon University IS
DENIED. 47 C.F.R. §1.106(j).

> FEDERAL COMMUNICATIONS COMMISSION
>
> Magalie Roman Salas
>
> Secretary

[^1]: See Cutoff Report A-220, released November 14, 1997, listing
    December 15, 1997, as cut off date for filing competing applications
    to KMCA's application to change community of license to Shasta from
    Burney, CA (FCC File No. BP-970903AA). Oregon's Mountain Gate
    Application was filed December 12, 1997, prior to the KMCA cut off
    date.

[^2]: Letter from Dennis Williams, Assistant Chief, Audio Services
    Division, Mass Media Bureau, to Ernest T. Sanchez, Esq. and
    Christopher D. Imlay, Esq. (collectively referred to herein as
    "Counsel"), dated May 1, 1998. 47 CFR §73.37(a) states: "No
    application will be accepted for a new station if the proposed
    operation would involve overlap of signal strength contours with any
    other station as set forth below in this paragraph . . ."

[^3]: Letter dated May 28, 1998, from Dennis Williams to Counsel.

[^4]: Application for Review at 5.

[^5]: *Id.* *See Ashbacker Radio Corp. v. FCC*, 326 U.S. 327 (1945)
    (comparative hearing required when competing applicants file
    conflicting license or construction permit applications for the same
    license).

[^6]: Application for Review at 5.

[^7]: Petition for Reconsideration at 7.

[^8]: *Id.* at 6.

[^9]: *Id*. at 2.

[^10]: *Id*. at 5-6.

[^11]: *Id*. at 2.

[^12]: The KMCA application for license to cover the *Shasta
    Construction Permit* remains pending.

[^13]: Oregon's allegations regarding the location of KMCA's main studio
    between December 1997 and the present do not justify the Section
    73.37(a) waiver relief it seeks. However, we have referred this
    potential KMCA rule violation to the Enforcement Bureau for further
    review.

[^14]: *Southern Oregon Order* at 2.