**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | MM Docket No. 90-66          |
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| Amendment of Section 73.202(b),  | ** | RM-7139                      |
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| Table of Allotments,             | *  | RM-7368                      |
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| FM Broadcast Stations.           | ** | RM-7369                      |
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| (Lincoln, Osage Beach,           | *  |                              |
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| Steelville, and Warsaw,          | ** |                              |
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| Missouri).                       | *  |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: June 30, 2004 Released: July 8, 2004**

By the Commission:

1.  The Commission has before it a petition for reconsideration of its
    prior order in this proceeding,[^1] filed by Twenty-One Sound
    Communications ("Twenty-One Sound"), licensee of Station KNSX(FM),
    Steelville, Missouri. No oppositions or replies were filed.

    **BACKGROUND**

2.  This proceeding commenced with the filing of a rulemaking petition
    by KRMS-KYLC, Inc. ("KRMS"), the former licensee of Station
    KRMS-FM,[^2] Channel 228A, Osage Beach, Missouri. The petition
    requested an upgrade of Station KRMS-FM to Channel 228C3 and a
    modification of its license in accordance with Section 1.420(g)(3)
    of the Commission's rules. To accommodate this upgrade, KRMS also
    proposed the substitution of Channel 253A for vacant but applied for
    Channel 229A at Warsaw, Missouri. In response to a *Notice of
    Proposed Rule Making*,[^3] Twenty-One Sound counter proposed the
    upgrade of its Station KNSX(FM), Steelville, Missouri, from Channel
    227C2 to Channel 227C1.

3.  The staff *Report and Order*[^4] dismissed Twenty-One Sound's
    counterproposal and granted the upgrade for Station KRMS-FM.
    Twenty-One Sound's counterproposal was dismissed for failure to
    comply with Section 1.52 of the rules, which requires that the
    original of any document filed with the Commission by a party not
    represented by counsel be signed and verified by the party and his
    or her address stated. Specifically, Twenty-One Sound had failed to
    include either a notarized affidavit or an unsworn verification that
    the statements contained in its counterproposal were accurate to the
    best of its principals' knowledge. The *R&O* also reasoned that this
    dismissal was in accord with Commission precedent.[^5]

4.  Thereafter, Twenty-One Sound filed two petitions for reconsideration
    and one application for review in this proceeding.[^6] The staff
    denied Twenty-One Sound's first petition for reconsideration and
    rejected its argument that the Commission had not consistently
    applied Section 1.52 to allotment rulemakings.[^7] The staff
    dismissed a second petition for reconsideration as repetitious under
    Section 1.429(i) of the rules to the extent that it questioned the
    dismissal of the counterproposal for lack of verification.[^8]

5.  Subsequently, the Commission denied Twenty-One Sound's application
    for review.[^9] Therein, the Commission acknowledged that, while
    Section 1.52 has been strictly enforced in FM allotment proceedings
    after October 4, 1990, the effective date of the *Abuse of Process
    R&O*, the rule had been applied on a discretionary basis prior to
    that date. Since Twenty-One Sound's counterproposal was filed prior
    to October 4, 1990, the Commission reviewed the proposal in light of
    those earlier cases and rejected Twenty-One Sound's argument that
    the staff unfairly applied the rule to Twenty-One Sound's
    counterproposal but did not do so in other cases where the
    counterproposals were filed prior to October 4, 1990. On the
    contrary, the Commission found that it had exercised this discretion
    prior to October 4, 1990, only in cases that would not cause
    prejudice to other non-defective allotment proposals. Because
    Twenty-One Sound's counterproposal was unverified and would
    prejudice KRMS, which had filed a timely proposal that complied with
    our technical and legal requirements, the Commission concluded that
    Twenty-One Sound's proposal was properly dismissed by the staff.

    **PETITION FOR RECONSIDERATION**

6.  Twenty-One Sound again argues on reconsideration that the Commission
    has not treated similarly situated parties in the same manner or
    clearly explained the reasons for the differing treatment as
    required by *Melody Music., Inc. v. FCC*.[^10] In support of this
    position, Twenty-One Sound reargues that it should be treated like
    the parties in *Brooksville or Quitman, MS,*[^11] in which two
    unverified rulemaking proposals filed before October 4, 1990, were
    accepted. Since the stated reason in that case was an apparent lack
    of notice to the petitioners of the new strict enforcement policy
    for Section 1.52, Twenty-One Sound argues that its counterproposal
    should be likewise accepted without regard to fairness to other
    parties because fairness was not a stated reason in the *Brooksville
    and Quitman* case. Twenty-One Sound also contends that the
    Commission inadequately distinguished the cases of *Canton,
    Illinois*[^12]and *Lake City, South Carolina,*[^13] in which
    unverified proposals filed before October 4, 1990, were accepted for
    public interest reasons, such as the provision of a first local
    service, and requests that it be accorded similar treatment in the
    instant proceeding.

    **DISCUSSION**

7.  A petition requesting reconsideration of an order denying an
    application for review may be allowed only if the petitioner relies
    on new facts or changed circumstances.[^14] Petitions that fail to
    satisfy this requirement are subject to dismissal. The rationale for
    this limitation is that "\[o\]therwise, the Commission would be
    forced to spend its limited resources reviewing arguments it has
    already considered and rejected."[^15] Twenty-One Sound raised the
    issue of inequitable treatment in its application for review in
    *MO&O III.* The Commission fully considered this issue.[^16] It
    recognized the differences in approaches that had been taken before
    and after the adoption of the *Abuse of Process R&O* and
    distinguished the cases relied upon by Twenty-One Sound, as well as
    other cases not mentioned by that party.[^17] Finally, we note that
    on reconsideration Twenty-One Sound has failed to cite a single
    pre-October 4, 1990 Commission-level case in which a non-verified
    proposal was accepted and granted in spite of prejudice to other
    non-defective allotment proposals.[^18]

8.  Accordingly, IT IS ORDERED That pursuant to Section 1.429, the
    petition for reconsideration filed by Twenty-One Sound IS DISMISSED.

9.  IT IS FURTHER ORDERED, That this proceeding IS TERMINATED.

    FEDERAL COMMUNICATIONS COMMISSION

    Marlene H. Dortch

    Secretary

[^1]: *Lincoln, Osage Beach, Steelville, and Warsaw, MO*, 17 FCC Rcd
    6119 (2002) ("*MO&O III*").

[^2]: The call letters for this station were changed from KLYC(FM) to
    KRMS-FM, effective January 9, 1998.

[^3]: 5 FCC Rcd 1119 (MMB 1990).

[^4]: *Lincoln, Osage Beach, Steelville, and Warsaw, MO*, 7 FCC Rcd 3015
    (MMB 1992) ("*R&O*").

[^5]: *See* 7 FCC Rcd at 3015 n.2, *citing inter alia*, *Amendment of
    Sections 1.420 and 73.3584 Concerning Abuses of the Commission's
    Processes ("Abuse of Process R&O")*, 5 FCC Rcd 3910, n.41 (1990).

[^6]: For a more detailed background of this proceeding, *see MO&O III*,
    17 FCC Rcd at 6119-6120.

[^7]: 11 FCC Rcd 6372 (MMB 1996) ("*MO&O I*").

[^8]: 12 FCC Rcd 4987 (MMB 1997) ("*MO&O* II").

[^9]: 17 FCC Rcd at 6125.

[^10]: 345 F. 2d 730, 733 (D.C. Cir. 1965).

[^11]: 8 FCC Rcd 3537 (MMB 1993).

[^12]: 3 FCC Rcd 5824 (MMB 1988).

[^13]: 47 FCC 2d 1067 (1974).

[^14]: 47 C.F.R. § 1.115(g)(1) and (2).

[^15]: *Amendment of Sections 0.251, 0.281, 0.371, 1.104, 1.106, and
    1.115 of the Commission's Rules of Practices and Procedures,* 46
    R.R. 2d 524, 526 (1979).

[^16]: *See* 17 FCC Rcd at 6122-23.

[^17]: *Id.* at 6123-24.

[^18]: Although Twenty-One Sound continues to rely upon *Scottsboro,
    AL,* 4 FCC Rcd 6473 (MMB 1989) to support its position, *MO&O III*
    acknowledged that a non-verified proposal had been granted by
    mistake in a mutually exclusive context, distinguished that case
    from the instant proceeding, and overruled *Scottsboro*. *See* 17
    FCC Rcd at 6124 n.18. In these circumstances, Twenty-One Sound's
    reliance on *Scottsboro* is misplaced.