**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | MM Docket No. 01-131         |
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| Amendment of Section 73.202(b),  | ** | RM-10148                     |
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| Table of Allotments,             | *  | MM Docket No. 01-133         |
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| FM Broadcast Stations.           | ** | RM-10143                     |
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| (Benjamin, Texas)                | *  | RM-10150                     |
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| (Mason, Texas)                   | ** |                              |
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**MEMORANDUM OPINION AND ORDER**

(Proceedings Terminated)

**Adopted: January 15, 2003 Released: January 17, 2003**

By the Assistant Chief, Audio Division:

1\. The Audio Division has before it a Petition for Reconsideration
filed by Charles Crawford directed to the *Report and Order* in two
separate proceedings.[^1] Maurice Salsa filed a pleading titled "Support
for Petition for Reconsideration." Rawhide Radio, LLC filed an
Opposition to Petition for Reconsideration and Charles Crawford filed a
Reply to Opposition. In view of the fact that Charles Crawford filed a
single Petition for Reconsideration raising identical arguments against
each *Report and Order,* we will consider this matter in a single
*Memorandum Opinion and Order.* For the reasons discussed below, we deny
the Petition for Reconsideration.

[Background]{.underline}

2\. At the request of NationWide Radio Stations, the *Notice of Proposed
Rule Making* in MM Docket No. 00-148 proposed the allotment of 233C3 to
Quanah, Texas.[^2] In response to that *Notice,* First Broadcasting
Company, LP, Next Media Licensing, Inc., Rawhide Radio, LLC, Capstar TX
Limited Partnership and Clear Channel Broadcasting Licenses, Inc.
("Joint Parties") jointly filed a Counterproposal setting forth
interrelated allotment proposals and channel substitutions involving 22
communities in Texas and Oklahoma. Included in that Counterproposal was
the proposed substitution of Channel 257A for vacant Channel 297A at
Knox City, Texas, and a reallotment of Channel 249C1 from McQueeney to
Converse, Texas. The Counterproposal was timely filed on the October 10,
2000, comment date in MM Docket No. 00-148.

[MM Docket No. 01-133]{.underline}

3.  On May 25, 2001, Charles Crawford filed a Petition for Rule Making
    proposing the

allotment of Channel 249C3 to Mason, Texas, as a sixth local FM service.
This proposal was short-spaced to the proposed reallotment of Channel
249C3 to Converse, Texas, as set forth in the Joint Parties
Counterproposal in MM Docket No. 00-148. In view of the fact that we did
not promptly enter the Counterproposal into the Commission data base, we
did not identify this short-spacing and inadvertently issued a *Notice
of Proposed Rule Making* in MM Docket 01-133 proposing the allotment of
Channel 249C3 to Mason, Texas. The *Report and Order* dismissed the
proposed Channel 249C3 allotment at Mason due to the short-spacing with
the proposed Channel 249C1 reallotment to Converse. As part of a timely
filed Counterproposal in MM Docket No. 00-148, a Channel 249C1 allotment
at Converse was entitled to protection from competing proposals filed
after the October 10, 2000, comment date in MM Docket No. 00-148. For
this reason, the Charles Crawford proposal for a Channel 249C3 was
untimely with respect to the earlier filed Channel 249C1 reallotment
proposal at Converse and therefore dismissed.

> [MM Docket No. 01-131]{.underline}

4\. On May 18, 2001, Charles Crawford filed a Petition for Rule Making
proposing the allotment of Channel 257C2 to Benjamin, Texas. This
proposal was short-spaced to the proposed Channel 257A allotment at Knox
City, Texas, as set forth by the Joint Parties Counterproposal in MM
Docket No. 00-148. Since the Counterproposal was not entered into the
Commission data base, we again did identify the short-spacing and issued
a *Notice of Proposed Rule Making* in MM Docket 01-131 proposing the
allotment of Channel 257C2 to Benjamin, Texas. As did the *Report and
Order* in MM Docket No. 01-133, the *Report and Order* in MM Docket No.
01-131 dismissed the proposed Channel 257C2 allotment at Benjamin. As
part of a timely filed Counterproposal in MM Docket No. 00-148, the
Channel 257A proposal at Knox City was likewise entitled to protection
from competing proposals filed after the October 10, 2000, comment date
in MM Docket No. 00-148. The Charles Crawford proposal for a Channel
257C2 allotment at Benjamin was untimely with respect to the earlier
filed Channel 257A proposal at Knox City and therefore dismissed.

5\. In support of his Petition for Reconsideration, Charles Crawford
contends that he could not have "reasonably foreseen" that a
Counterproposal filed in response to a *Notice* proposing the allotment
of Channel 233C3 to Quannah, Texas, would elicit a Counterproposal
involving 22 communities and preclude his proposal for Channel 257C2 at
Benjamin located 60 miles from Quannah, and his proposal for Channel
249C3 at Mason located 200 miles from Quannah. As such, this is a
"labyrinthine trail" that does meet the "logical outgrowth" test for
adequate notice and opportunity for public participation.

6\. We deny the Petition for Reconsideration. Consistent with the notice
provisions of the Administrative Procedure Act, possible allotments at
Converse and Knox City were within the scope of the *Notice* in MM
Docket No. 00-148, and the Charles Crawford proposals for Mason and
Benjamin, Texas, were properly dismissed.[^3] The *Notice* in MM Docket
No. 00-148 specifically elicited timely counterproposals involving other
communities and even announced the possibility of allotting alternate
channels to any community in that proceeding. The fact that the Joint
Parties Counterproposal included proposals at Converse and Knox City
which caused the exclusion of the subsequent Charles Crawford proposals
as untimely conflicting proposals was merely doing what which we
announced that we could do. As such, this procedure meets the "logical
outgrowth" test applied by the Court of Appeals to determine whether a
rulemaking action was based upon adequate notice and opportunity for
public participation.[^4]

7\. In this instance, Charles Crawford contends that the "humongous"
nature of the Counterproposal involving 22 communities precludes
adequate notice to public. We disagree. As stated above, a notice of
proposed rule making specifically alerts interested parties of the
possible filing of a counterproposal involving new communities and the
possibly of allotting alternate channels. Any counterproposal can have a
significant preclusive effect. Even a counterproposal involving a single
community near the community set forth in a *Notice* potentially
involves the alternate allotment of one of 79 other non-reserved FM
channels. The *Notice* invited counterproposals and alerted interested
parties of this possibility. Depending upon the class of stations
proposed, the potential preclusion can involve a significant
geographical area.[^5] Similarly, interested parties are on notice that
an FM allotment proceeding can involve a significant number of
interrelated communities resulting in substantial preclusion.[^6] In
view of the above, interested parties are on notice that a
counterproposal can involve a substantial preclusion based upon a
significant number of channels, a large geographical area and/or a
significant number of communities. The notice provision of the
Administrative Procedure Act does not require a separate *Notice* for
every allotment under consideration in a docket and permits the
establishment of cut-off procedures.[^7] The untimeliness of the Chares
Crawford proposals now requires that he await the outcome of MM Docket
No. 00-148.

8\. Charles Crawford relies on three Court decisions to support his view
that we did not afford adequate notice in these proceedings. However,
these cases are distinguishable. In *Owensboro on the Air v. United
States*[^8]*,* the Commission proposed removing all VHF channels from
Evansville, Indiana. The *Notice* identified the one VHF channel to be
removed from Evansville. The *Report and Order* removed a VHF channel
from Hatfield, which was located in the Evansville market but not
identified in the *Notice.* The Court determined that there was
sufficient notice to alert interested parties even though the VHF
channel at Hatfield was not identified in the *Notice* and Hatfield is
located 21 miles from Evansville. In *Weyerhaeuser Company v. Costle,*
the Court determined that there was not adequate notice because the
agency based its decision upon data and calculations submitted after the
record closed which did not afford opportunity for public comment.[^9]
In contrast, the *Notice* in this proceeding specifically alerted
parties of the potential filing of counterproposals and afforded
interested parties the opportunity to submit their own counterproposal
or comment on any submitted counterproposal. The challenged *Notice* in
*National Black Media Coalition v. FCC*[^10] proposed adoption of a
minority preference with respect to AM applications on foreign clear
channels. Instead, the ultimate *Report and Order* did not adopt a
minority preference. The Court determined that since the *Report and
Order* did the opposite of what was originally proposed, there was not
adequate notice to the public. Thus, this case is inapposite.

9\. Charles Crawford also speculates that the Joint Parties may have
been involved in the filing of the original filing of the NationWide
Radio Stations Petition for Rule Making proposing the allotment of
Channel 233C3 to Quannah. The Joint Parties deny any involvement in the
filing of that Petition for Rule Making. In the absence of any
documentation to support the Charles Crawford speculation, there is no
basis for further inquiry in the context of this proceeding.

10\. Accordingly, IT IS ORDERED, That the aforementioned Petition for
Reconsideration filed by Charles Crawford IS DENIED.

11\. IT IS FURTHER ORDERED, That MM Docket No. 01-131 and MM Docket
No.01-133 ARE HEREBY TERMINATED.

12. For further information concerning these proceedings, contact Robert
    Hayne, Media Bureau, (202) 418-2177.

> FEDERAL COMMUNICATIONS COMMISSION
>
> John A. Karousos
>
> Assistant Chief, Audio Division
>
> Media Bureau

[^1]: *Benjamin, Texas,* 17 FCC Rcd 10994 (MM Bur. 2002); *Mason,
    Texas,* 17 FCC Rcd 11038 (MM Bur. 2002).

[^2]: *Quanah,Texas,* 15 FCC Rcd 15809 (MM Bur. 2000).

[^3]: 5 U.S.C. § 553

[^4]: *Weyerhaeuser Company v. Costle,* 590 F. 2d 1011, 1031 (D.C. Cir.
    1978); *Owensboro on the Air v. United States,* 262 F.2d 702 (D.C.
    Cir. 1958).

[^5]: *See* Section 73.207(b) of the Commission's Rules. For instance,
    Section 73.207(b) requires a minimum separation between two Class C
    allotments of 290 kilometers.

[^6]: *See e.g. Cross Plains, Texas, et al.,* 15 FCC Rcd 5506 (MM Bur.
    2000) (a counterproposal involving 36 communities)*; Ardmore,
    Alabama, et al.,* 17 FCC Rcd 18101 (MM Bur. 2002) (a petition for
    rule making involving 19 communities)*; Farmersville, Texas, et
    al.,* 12 FCC Rcd 12056 (MM Bur. 1997) (a counterproposal involving
    15 communities).

[^7]: *See Implementation of BC Docket No. 80-90 to Increase the
    Availability of FM Broadcast Assignments,* 62 RR 2d 535 (1987).

[^8]: 262 F.2d 702 (D.C. Cir. 1958).

[^9]: 590 F. 2d 1011 (D.C. Cir. 1978).

[^10]: 791 F. 2d 1016 (2d Cir. 1986).