**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In re Application of             | * | File No. BPH-980611IG        |
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| New Directions Media, Inc.       | ) |                              |
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| For Modification of Facilities   | * |                              |
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| KATR-FM, Otis, Colorado          | * |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: June 28, 2000 Released: July 10, 2000**

**By the Commission:**

1\. The Commission has under consideration an application for review
filed April 26, 1999, by Mt. Rushmore Broadcasting, Inc. ("Mt.
Rushmore"), licensee of station KERM(FM), Torrington, Wyoming. Mt.
Rushmore requests review of the March 24, 1999 ruling by the Assistant
Chief, Audio Services Division, Mass Media Bureau ("Letter Ruling"),
that denied Mt. Rushmore's August 14, 1998 informal objection and
granted the above-captioned application of New Directions Media, Inc.
("NDM") for modification of facilities of station KATR-FM, Wray,
Colorado. For the reasons set forth below, we reject Mt. Rushmore's
tardy Section 307(b) argument and conclude that grant of the captioned
application was proper.

2\. NDM filed a petition for rulemaking in January 1997, proposing the
substitution of Channel 252C1 for Channel 252C2 at Wray, the reallotment
of Channel 252C1 to Otis, Colorado, and the modification of the KATR-FM
authorization. The *Report and Order* in MM Docket 97-117, 13 FCC Rcd
2612 (1998), modified the license for KATR-FM to specify operation on
Channel 252C1 at Otis, Colorado, subject to the condition, *inter alia*,
that the licensee submit a minor change construction permit application
(Form 301) specifying the new facility, within 90 days of the effective
date of the *Report and Order*. NDM timely filed a Form 301 on June 11,
1998 for the modified licensed facilities.

3\. Mt. Rushmore's informal objection to NDM's June 11, 1998 application
for modification of facilities argued that grant of that application
would effectively preclude Mt. Rushmore from upgrading station KERM(FM)
from a Class C3 to a Class C2 facility. The Letter Ruling denied Mt.
Rushmore's informal objection, noting that the Commission had never
received any official expression of interest, either by way of petition
for rulemaking, counterproposal, or construction permit application,
requesting that KERM(FM)'s allotment be upgraded to Class C2. Absent any
such filing on KERM(FM)'s behalf, the Letter Ruling stated that the
Commission had no obligation to consider any potential conflicting
Channel 252C2 allotment proposal at Torrington, Wyoming when it modified
KATR-FM's allotment.

4\. We find no error in the Letter Ruling. The KATR-FM class and
community changes were properly authorized pursuant to a
notice-and-comment rulemaking process in which Mt. Rushmore could have
participated to protect its interest in upgrading KERM(FM)'s allotment
and to raise any Section 307(b) concerns that it might have had with
respect to the proposed allotment. Mt. Rushmore's justification for its
failure to participate in the rulemaking proceeding - that the proposed
reference coordinates for the allotment would not have restricted its
ability to upgrade - is without merit. A rulemaking petitioner is not
limited to the reference coordinates specified in its rulemaking
petition at the time it files its implementing application for a
construction permit. *See, e.g.*, *Report and Order in Amendment of the
Commission's Rules to Permit FM Channel and Class Modifications by
Application*, 8 FCC Rcd 4735, 4735 (1993) (instances where the applicant
uses a different site than proposed in the rulemaking proceeding);
*Order to Show Cause* in MM Docket No. 96-103, 12 FCC Rcd 3739, 3940 n.4
(MMB 1997) (in allotment proceeding, Bureau notes that proposed channel
"can be used" at reference coordinates specified by channel proponent;
if allotted, \[proponent\] may submit an application specifying its
preferred coordinates). Thus, the NDM application complies with the
Commission's rules. We reject Mt. Rushmore's tardy claim that grant of
the NDM application was in conflict with Section 307(b) of the Act.

5\. In its application for review, Mt. Rushmore raises essentially the
same arguments that were raised in its informal objection. We find that
those arguments were correctly resolved by the Letter Ruling.
Accordingly, IT IS ORDERED, That the application for review filed April
26, 1999 by Mt. Rushmore Broadcasting, Inc. IS DENIED.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary