# **Before the**

## **Federal Communications Commission**

### **Washington, D.C. 20554**

In the Matter of )

)

Amendment of Section 73.202(b), ) MM Docket No. 93-28

Table of Allotments, ) RM-8172

FM Broadcast Stations. ) RM-8299

(Colonial Heights, Tennessee ) )

#### **[MEMORANDUM OPINION AND ORDER]{.underline}** 

(Proceeding Terminated)

**Adopted: January 6, 2000 Released: January 7, 2000**

By the Chief, Allocations Branch:

1.  Number range level0Number range level1Number range level2Number
    range level3Number range level4Number range level5Number range
    level6Number range level7The Commission has before it a petition for
    reconsideration of the *Memorandum Opinion and Order* ("*MO&O*") in
    the above-docketed proceeding, 11 FCC Rcd 18,079 (1996), filed by
    Newport Publishing Co. ("Newport"), licensee of Station WMXK(FM),
    Channel 240A (95.9 MHz), Morristown, Tennessee. An opposition was
    filed by Murray Communications ("Murray"), permittee of Station
    WRZK(FM), Channel 290A (105.9 MHz), Colonial Heights, Tennessee. We
    will deny Newport's petition for reconsideration.

2.  *Background.* The Commission issued a *Notice of Proposed Rule
    Making* in this proceeding, 8 FCC Rcd 1794 (1993), in response to a
    petition filed by Murray, proposing the substitution of Channel
    290C3 in lieu of Channel 290A at Colonial Heights. In filing a
    counterproposal to its initial request, Murray proposed that Channel
    240C2 be allotted to Colonial Heights, or, alternatively, that
    Channel 240C3 be allotted in lieu of Channel 290A, and that its
    permit be modified accordingly. In order to accommodate its
    counterproposal, Murray proposed the following channel
    substitutions: Channel 290A for Channel 231A (94.1 MHz) at Station
    WCTU(FM), Tazewell, Tennessee; Channel 231A for Channel 240A at
    Station WMXK(FM), Morristown, Tennessee; and Channel 252A (98.3 MHz)
    for Channel 290A at Station WHAY(FM), Whitley City, Kentucky. As a
    final accommodation, Murray proposed a relocation of the transmitter
    site for Station WAEY-FM, Channel 240A, Princeton, West Virginia.

3.  The Commission subsequently issued an *Order to Show Cause*, 8 FCC
    Rcd 7901 (1993), to WFSM, Inc. and to Newport's predecessor Franklin
    Communications, Inc. ("Franklin"), respective licensees of Stations
    WCTU(FM), Tazewell, and WMXK(FM), Morristown, directing them to show
    cause why their licenses should not be modified to specify operation
    on Channel 290A in lieu of Channel 231A and Channel 231A in lieu of
    Channel 240A, respectively. By *Report and Order*, 9 FCC Rcd
    6767 (1994) ("*R&O")*, we denied Murray's counterproposal[^1] but
    granted its initial proposal to substitute Channel 290C3 in lieu of
    Channel 290A at Colonial Heights. Grant of this proposal did not
    require any existing station to change either its frequency or its
    site. Therefore, the issues raised by Newport and WFSM, Inc. to the
    *Order to Show Cause* were not addressed.

4.  Murray filed a petition for reconsideration taking issue with our
    finding that its proposal was not an incompatible channel swap and
    did not qualify for treatment under Rule Section 1.420(g)(3). We
    issued an *MO&O* affirming our finding that Murray's proposal for a
    non-adjacent channel upgrade did not fall under that section. We
    determined that Murray's counterproposal did not possess all the
    required attributes of mutually exclusivity and therefore was not an
    incompatible channel swap. Nevertheless, we granted Murray's upgrade
    proposal as a non-adjacent channel upgrade under that section
    because no timely expressions of interest were filed.

5.  The non-adjacent channel upgrade, however, required a change in the
    operating frequency of Franklin's Station WMXK(FM), Morristown.
    Therefore, in the *MO&O* we addressed for the first time, in
    response to the *Order to Show Cause*, Franklin's questioning of
    Murray's financial viability to reimburse Franklin as well as the
    licensees of the three other stations that had to be modified. We
    restated our consistent policy under *Circleville, Ohio*, 8 FCC 2d
    159 (1967) ("*Circleville*"), that a party such as Murray, which
    would benefit from the change of frequency of another station, is
    required to reimburse that station for the reasonable costs
    associated with its channel change. We deemed Franklin's arguments
    as non-persuasive and refused to depart from the Commission's
    policy, Murray having stated it would reimburse Franklin's costs of
    changing all of its logos throughout the company, the equipment
    changes necessary for changing frequencies, and its other reasonable
    costs. Additionally, we stated that this policy incorporates a
    steadfast refusal to require demonstrations of financial ability in
    a rulemaking context.

6.  Accordingly, we concluded that the *R&O* was correct in adopting
    Murray's counterproposal to upgrade its station at Colonial Heights
    because it fell within the terms of Section 1.420(g) as no other
    timely expression of interest was filed. Therefore, the *MO&O*
    ordered that Channel 240C2 be substituted for Channel 290A at
    Colonial Heights including the substitution of Channel 231A in lieu
    of Channel 240A at Morristown, channel substitutions at two other
    communities, and a transmitter site relocation at still another
    community.

7.  *Petition for Reconsideration of MO&O.* Bruce G. Morrison, Chief
    Operating Officer ("COO") of Media Services Group ("Media
    Services"), on behalf of Newport, asks that we reconsider the
    involuntary channel substitution ordered for Station WMXK(FM) at
    Morristown. Newport questions Murray's commitment to reimburse
    Newport's reasonable costs. It claims that it has not been contacted
    regarding its reimbursement of the costs of changing its frequency
    and other other facets of its operation. Newport, therefore,
    requests that the channel substitution at its Station WMXK(FM) be
    reversed or delayed until it and Murray can reach agreement on
    reimbursement. Newport also complains that it does not know when
    Murray would effect its upgrade, thereby delaying Newport's
    promotion of the new frequency on which it would be required to
    operate. It requests that the Commission require Murray to negotiate
    with Newport the reasonable costs and timeliness of the channel
    substitution.

8.  Newport also contends that its "earlier filing met this requirement
    \[that is, the filing of a timely expression of interest\]." It
    further questions our statement in the *MO&O* that we deemed it
    unnecessary to address in the *R&O* the issues raised by Franklin.
    Newport asks that we address those issues here. Further, it argues
    that Murray should be required to meet its burden to demonstrate
    that Channel 290A was the only channel available at Tazewell "to
    protect the interests of Newport." Finally, Newport asks that the
    Commission recognize that it should be reimbursed, as reasonable
    costs, the attorney's fees it incurred.

9.  Murray filed an opposition to Newport's request, citing several
    alleged deficiencies of a procedural nature in addition to
    substantive ones. First, Murray argues that neither Media Services
    nor its COO may be heard by the Commission because neither qualifies
    as a party in this proceeding. Murray cites Rule Section 1.21(a) and
    1.23(a), which state that a party may appear before the Commission
    in person or through an attorney qualified to practice before it.
    Murray notes that neither Media Services nor its COO qualifies, and,
    therefore, neither is properly before the Commission as a
    representative for Newport. Second, Murray points out that the
    request is not verified and signed by either the party, Newport, or
    a qualified attorney. The filing is, therefore, subject to return
    and may be given no consideration.[^2]

10. With respect to Murray's alleged failure to obtain consent, Murray
    argues that if Newport is complaining that its consent was not
    sought for the channel changes, such complaint is not cognizable
    under Commission policy or case law. Therefore, it was not required
    to obtain the Newport's consent for a channel substitution at its
    Station WMXK(FM). Moreover, Murray points out, granting Newport's
    petition for reconsideration is contrary to the principle that
    substitution of an existing station's channel is in the public
    interest where it permits the provision of expanded service at
    another community, citing *Coleman, Sebewaing and Tuscola,
    Michigan,* 11 FCC Rcd 11286, 87-88 (1996).

11. Regarding the allegedly excess payments Murray made to Betap
    Broadcasting to relocate its Station WAEY(FM)'s transmitter site,
    Murray responds that there is no prohibition on the payment amount
    for the movement of the site in order to accommodate its upgrade of
    its station. Murray argues, in any event, in accord with Commission
    precedent prohibiting a transmitter site relocation without consent
    of the affected licensee, that it had to negotiate directly with
    Betap to obtain that consent. As to Newport's questioning Murray's
    commitment to reimburse Newport its reasonable costs of changing
    channels, Murray insists that the mail correspondence between them,
    as shown by copies attached to its opposition, indicates clearly
    that each party has been actively negotiating the level of
    reasonable costs. This obviates the Commission's taking any further
    action in this matter, argues Murray.

12. Finally, Murray disagrees that Franklin, Newport's predecessor, ever
    expressed any interest in utilizing the non-adjacent channel
    proposed to be allotted. Franklin had only expressed its concern
    with Murray's financial viability and the several adverse
    consequences of its changing the operating frequency of its Station
    WMXK(FM) in order for Channel 231A to be upgraded to Channel 240C2
    at Colonial Heights. Murray argues that neither this issue nor any
    other issue raised by Newport constitutes any substantive basis for
    reconsideration, particularly given that Murray has already
    committed itself to reimburse Newport its reasonable expenses for
    changing its channel.

13. *Discussion*. As a threshold matter, we find that Newport's petition
    is not procedurally defective. First, we accept Media Services as a
    valid representative of Newport, given Murray's apparent prior
    acceptance of that status. While it now argues that neither Media
    Services nor its COO is properly before the Commission, Murray
    apparently had accepted Media Services as a representative of
    Newport. This is demonstrated in the letters between Murray and
    Media Services, copies of which are attached to Murray's opposition
    pleading. The letters show that Media Services was indeed acting in
    a representative capacity for Newport and that Murray dealt with
    Media Services in that capacity. On this basis, we recognize it as a
    proper representative of Newport, as permitted by Section 1.22, and
    will not ask Media Services to show its authority to so act.
    Moreover, Section 1.21(a), cited by Murray as a basis for dismissing
    the petition, is not mandatory. It states that "any party *may*
    appear before the Commission in person or by an attorney. \[emphasis
    added\]" Second, we recognize that Section 1.52 requires that a
    party not represented by a qualified attorney *shall* sign and
    verify the original of any petition filed with the Commission. Here,
    Newport is the party and has neither signed nor verified its
    reconsideration request. However, Newport's representative, Media
    Services, signed the pleading, and Section 1.429(h) specifically
    exempts reconsideration petitions in FM and TV allotment rulemaking
    proceedings from the verification requirements of Section 1.52 of
    the Rules. Under these circumstances, Newport's reconsideration
    petition is procedurally acceptable.

14. With respect to the substantive issues raised by Newport, we believe
    that its reconsideration petition should be denied. It is
    well-settled that in addition to the obligations of the proponent of
    the frequency change to reimburse under *Circleville,* which include
    the payment of reasonable attorney's fees, a licensee like Newport,
    required to change its frequency to accommodate the new allotment,
    may continue to operate for a reasonable period of time after the
    effective date for modifying its operating frequency. *See Broken
    Arrow and Bixby, Oklahoma, and Coffeyville, Kansas*, 4 FCC Rcd 6981
    (1989). We have also stated that it is generally not necessary for
    the affected station to change its frequency until it "prevents a
    newly authorized station from inaugurating service." *See Orders to
    Show Cause (Albany, Buffalo, Ilion, and Utica, New York, and Boston,
    Massachusetts*, 2 FCC Rcd 4300, n. 12 (1987).

15. Here, on the contrary, the would-be newly upgraded station is not
    prevented from providing service on its new frequency and Newport's
    affected station may continue to operate without changing its
    frequency as long as Murray has not effected its upgrade. Therefore,
    Newport is not required to do anything to accommodate the change of
    channel until Murray seeks to implement the upgrade. While Newport
    may be subject to some uncertainty as to when it must change its
    frequency, continuing to operate on its current frequency unfettered
    appears to be far less burdensome than actually changing its channel
    and promoting the change in frequency. As to Newport's questioning
    of Murray's commitment to fully and timely reimburse Newport's
    reasonable expenses, there appears to be no basis for that claim. We
    take particular note of Murray's and Newport's efforts to coordinate
    the change of channels so that service disruptions would be
    minimized and reimbursement issues could be decided. It appears,
    therefore, that no further Commission involvement is necessary. To
    resolve such issues, it is expected that parties will negotiate in
    good faith. *See, for example, Dennison-Sherman, Paris, Jacksboro,
    Texas, and Madill, Oklahoma,* 14 Fed Rcd 122 (1999).[^3]

16. Accordingly, IT IS ORDERED, That the Request for Reconsideration
    filed by Newport Publishing Co IS DENIED.

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

18. For further information concerning the above, contact J. Bertron
    Withers, Jr., Mass Media Bureau, (202) 418-2180.

##### FEDERAL COMMUNICATIONS COMMISSION

> John A. Karousos
>
> Chief, Allocations Branch

Mass Media Bureau

[^1]: ^?^In doing so, we rejected its contention that the
    counterproposal constituted an incompatible channel swap. We
    concluded that the channel substitutions did not constitute a
    mutually exclusive relationship contemplated to comply with Section
    1.420(g)(3) of the Commission\'s Rules because all substitutions
    were not each mutually exclusive, which would qualify the proposal
    for an upgrade without consideration of competing proposals.

[^2]: Murray disputes Newport's allegation that it was not contacted
    prior to Murray's efforts to have the channel substitutions
    effected. In opposition, Murray notes that the Commission served
    Newport or its predecessor by certified mail, return receipt
    requested, copies of the two relevant documents at issue, the *Order
    to Show Cause*, *supra*, and the *MO&O.*

[^3]: As to other concerns raised by Newport, none warrants
    reconsideration. As noted by Murray, concerns raised by Newport's
    predecessor, Franklin, regarding the impact of the change of its
    frequency do not rise to the level of an expression of interest in
    applying for an allotment or pledging to operate a station on that
    allotment. Finally, Murray was not required to demonstrate that
    Channel 290A was the only channel available at Tazewell, even though
    it appears to have been. That showing was not necessary because
    Murray's proposal, we concluded in the *MO&O,* did not constitute an
    incompatible channel swap for other reasons.