Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | MM Docket No. 00-148         |
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| Amendment of Section 73.202(b),  | ** | RM-9939                      |
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| Table of Allotments,             | *  | RM-10198                     |
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| FM Broadcast Stations.           | ** |                              |
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| (Quanah, Archer City, Converse,  | *  |                              |
| Flatonia,                        | *) |                              |
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| Georgetown, Ingram, Keller, Knox |    |                              |
| City,                            | *  |                              |
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| Lakeway, Lago Vista, Llano,      | ** |                              |
| McQueeney,                       |    |                              |
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| Nolanville, San Antonio,         | *) |                              |
| Seymour, Waco and Wellington,    | ** |                              |
| Texas, and Ardmore, Durant,      |    |                              |
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| Elk City, Healdton, Lawton and   | *) |                              |
| Purcell, Oklahoma.)              | ** |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: April 22, 2004 Released: April 27, 2004**

By the Assistant Chief, Audio Division:

1\. The Audio Division has before it a Petition for Partial
Reconsideration and Request for Expedited Action filed by Rawhide Radio,
LLC, Capstar TX Limited Partnership, and Clear Channel Broadcasting
Licenses, Inc. ("Joint Petitioners") directed to the *Report and Order*
in this proceeding.[^1] Texas Grace Communications, Charles Crawford
filed Oppositions and Comments. Fritz Broadcasting Co., Inc. and M&M
Broadcasters, Ltd. filed a Joint Opposition. The Joint Petitioners filed
a Reply to Oppositions and related pleadings in response to Comments
filed by Charles Crawford. For the reasons discussed below, we deny the
Petition for Reconsideration and Request for Expedited Action.

[Background]{.underline}

2\. At the request of Nation Wide Radio Stations, the *Notice* in this
proceeding proposed the allotment of Channel 233C3 to Quanah, Texas.[^2]
In response to the *Notice*, the Joint Petitioners filed a
Counterproposal involving twenty-two communities in Texas and Oklahoma.
In one aspect of this Counterproposal, the Joint Petitioners proposed
the substitution of Channel 248C for Channel 248C2 at Durant, Oklahoma,
reallotment of Channel 248C to Keller, Texas, and modification of the
Station KLAK license to specify operation on Channel 248C at Keller,
Texas. In order to accommodate this allotment, the Joint Petitioners
proposed three channel substitutions. Included among those substitutions
was the substitution of Channel 230C1 for Channel 248C1 at Archer City,
Texas, and the modification of the Station KRZB license to specify
operation on Channel 230C1. On the basis of our own engineering review,
Joint Reply Comments filed by Fritz Broadcasting Co., Inc. and M&M
Broadcasters, Ltd., and Reply Comments filed by Maurice Salsa, the
proposed transmitter site (33-36-58 and 98-51-42) for the Channel 230C1
allotment at Archer City is short-spaced to an application filed by AM &
FM Broadcasters, LLC, licensee of Station KICM, Channel 229C2, Krum,
Texas, to upgrade to Channel 229C1 (File No. BMPH-20000725AAZ).

3\. Counterproposals that are in conflict with a previously filed
application can be considered if the counterproposal is amended to
remove the conflict within 15 days from the date the counterpropsal
appears on public notice.[^3] To this end, the Joint Petitioners and AM
& FM Broadcasters submitted Reply Comments addressing this issue. Under
the agreement between these parties, the parties recognized the pending
Station KICM application and AM & FM Broadcasters agreed to file an
application to downgrade Station KICM back to Channel 229C2 in the event
the application is granted and the channel changes proposed in this
proceeding are allotted. Pursuant to the agreement, the Joint Petitoners
would "compensate" AM & FM Broadcasters for the downgrade of Station
KICM.

4\. In response to that submission, we issued a *Request for
Supplemental Information*.[^4] The *Request* found that the agreement
was, in effect, a withdrawal of an expression of interest within the
ambit of Section 1.420(j) of the rules which limits reimbursement to
actual expenses. Accordingly, the Joint Petitioners were requested to
submit the underlying agreement in order to determine compliance with
Section 1.420(j) of the rules. The Joint Petitioners did not submit any
agreement. Instead, the Joint Petitioners, as well as AM & FM
Broadcasters, contended that Section 1.420(j) of the Rules applies only
to a dismissal, modification or withdrawal of an expression of interest
and not to an agreement to file a subsequent application to downgrade an
allotment. We disagreed. The pending Station KICM application was an
expression of interest and an impediment to the channel allotments
proposed by the Joint Petitioners. Pursuant to an agreement in this
proceeding, AM & FM Broadcasters has agreed to remove this impediment
and forego Class C1 facilities as set forth in its application.[^5] In
the *Report and Order,* we stated that the agreement by AM & FM
Broadcasters in exchange for compensation was tantamount to a withdrawal
of this expression of interest. In view of this noncompliance with
Section 1.420(j) of the rules, the Joint Petitioners Counterproposal
could not be favorably entertained in the context of this proceeding.

5\. The fact that the Station KICM application has now been granted did
not warrant favorable action on the Counterproposal or alter our
determination with respect to the applicability of Section 1.420(j) of
the Rules. The application was pending during this proceeding. With
regard to the Station KICM Class C1 construction permit, the fact that
AM & FM Broadcasters has agreed to file an application to downgrade its
allotment back to Class C2 only after Channel 230C1 is allotted to
Archer City is also fatal to the Joint Petitioners Counterproposal. We
would, in fact, be allotting a short-spaced allotment at Archer City
contingent upon AM & FM Broadcasters filing an application after the
*Report and Order,* the application being granted and the Station KICM
Class C2 facilities being licensed. It is our policy not to consider
such a contingent proposal based upon an action outside of this
proceeding.[^6]

6\. At that juncture, we stated that the appropriate procedure would be
for the Joint Petitioners and AM & FM Broadcasters to file a Petition
for Rule Making proposing the channel substitution at Archer City along
with the downgrade of the Station KICM Class C1 allotment. This would be
consistent with the procedure used in the cases cited by the Joint
Petitioners in their Response to Request for Supplemental
Information.[^7] The *Report and Order* also rejected a contingent
application procedure under Section 73.3517(e) of the rules suggested by
the Joint Petitioners as a means of implementing a Class C2 downgrade
for Station KICM and a Channel 230C1 allotment at Archer City. Section
73.3517(e) permits the simultaneous acceptance of contingent
applications. This is not the procedure proposed by the Joint Parties
and AM & FM Broadcasters. In this instance, the procedure would require
a separate *Report and Order* allotting a short-spaced allotment at
Archer City contingent upon the promise of AM & FM Broadcasters to
subsequently file and implement an application that would bring the
respective allotments into compliance with our separation requirements.

7\. The *Report and Order* dismissed the entire Joint Petitioners
Counterproposal. As discussed above, we could not make the requested
Channel 230C1 substitution at Archer City because it would be
short-spaced to the Channel 229C1 application at Krum, Texas. The Archer
City substitution would have required the substitution of Channel 232C2
for Channel 231C2 at Lawton, Oklahoma. In turn, the Lawton substitution
would have required the substitution of Channel 233C3 for Channel 232C3
at Elk City, Oklahoma. The proposed Channel 233C3 substitution at Elk
City conflicted with the originally proposed Channel 233C3 allotment at
Quanah, Texas. No other proposal in the Joint Petitioners
Counterproposal conflicted with the underlying Quanah proposal set forth
in the *Notice*.

8\. The initial proposal set forth in the Joint Petitioners
Counterproposal proposed the substitution of Channel 248C for Channel
248C2 at Durant, Oklahoma, reallotment of Channel 248C to Keller, Texas,
and modification of the Station KLAK license to specify operation on
Channel 248C at Keller. This proposal could not be implemented because
it required the substitution of Channel 230C1 for Channel 248C1 at
Archer City. Similarly, the Keller proposal would have also required
channel substitutions at Healdton, Oklahoma, and Waco, Texas. To
accommodate these proposals, the Joint Petitioners proposed a series of
channel substitutions involving 12 communities in Texas and Oklahoma. A
counterproposal must conflict with the proposal set forth in the
*Notice.*[^8] In this instance, none of these proposals conflicted with
the underlying Channel 233C3 proposed allotment at Quanah. As such, we
would not bifurcate the Counterproposal or otherwise consider any of
these proposals in the context of the *Report and Order* in this
proceeding.[^9]

[Alternative Proposals]{.underline}

9\. In the event that its Counterproposal could not be favorably
entertained, the Joint Petitioners advanced two alternative
proposals.[^10] The first was a proposal to reallot Channel 248C to
Keller, Texas, and modify the Station KLAK license to specify operation
on Channel 248C at Keller. Except for the necessary changes in channel
at Waco and Marlin, Texas, this proposal was the same as advanced in the
Counterproposal. For the same reasons discussed above, we would not
consider this alternative. A Channel 248C allotment at Keller requires
the same substitution at Archer City. The second alternative only
proposes the substitution of Channel 247C1 for Channel 248C at Waco,
Texas, reallotment of Channel 247C1 to Lakeway, Texas, and modification
of the Station KWTX license to specify operation on Channel 247C1 at
Lakeway. The Joint Petitioners also proposed related channel
substitutions necessary to accommodate this reallotment. However, none
of these proposed channel substitutions conflicted with the underlying
Channel 233C3 allotment at Quanah, Texas, proposed in the *Notice*. As
such, we would not consider this proposal in the context of this
proceeding.

10\. In support of its Petition for Partial Reconsideration, the Joint
Petitioners did not dispute our determination that we could not make a
required Channel 231C1 at Archer City due to the Station KICM
application and the resulting Channel 229C1 allotment at Krum. Instead,
the Joint Petitioners argue that we erred in dismissing the entire
Counterproposal. Specifically, the Joint Petitioners contend that we
should have considered the portion of its Counterproposal which was not
defective and not in conflict with the Quanah proposal as a "separate"
proposal. For this reason, the Joint Petitioners request that we now
issue a *Notice of Proposed Rule Making nunc pro tunc* to the time its
Counterproposal was originally filed.

11\. We deny the Petition for Partial Reconsideration. As discussed
above, the Counterproposal was and continues to be defective due to
Channel 229C1 at Krum, Texas. The Joint Petitioners combined a defective
allotment proposal with an allotment proposal not in conflict with the
underlying Quanah proposal into a single Counterproposal. It was not
"facially acceptable" as suggested by the Joint Petitioners. In this
proceeding, the Joint Petitioners pursued this entire Counterproposal
through the *Report and Order.* During the course of this proceeding, it
was not incumbent upon the staff to determine which portion of the
Counterproposal could be considered in a separate *Notice of Proposed
Rule Making* or, on its own motion, bifurcate the Counterproposal.

12\. In its Petition for Partial Reconsideration, the Joint Petitioners
refer to earlier proceedings in which a counterproposal not in conflict
with the original proposal was considered in the context of a separate
proceeding. These cases do not support the relief requested by the Joint
Petitioners or suggest that we should now process a portion of the Joint
Petitioners Counterproposal on a *nunc pro tunc* basis in a new
proceeding. Unlike the Joint Petitioners defective counterproposal in
this proceeding, the counterproposals in those cases involved proposals
in technical compliance with our rules. We did not have to determine
which portion of the counterproposal was technically acceptable and if
the counterproponent wished to pursue a portion of its counterproposal.
In *Noblesville, Indianapolis and Fishers, Indiana,* we did not consider
an otherwise technically acceptable counterproposal in a proceeding in
which the counterproponent modified the original proposal to create a
mutual exclusivity.[^11] Instead, this nonconflicting proposal was
considered in a separate proceeding. In *Saratoga, Green River, Big
Piney and La Barge, Wyoming,* we inadvertently accepted a
counterproposal into a rulemaking proceeding even though it was untimely
with respect to a conflicting proposal in a earlier proceeding.[^12]
Therefore, we dismissed the subsequent proposal and terminated the
proceeding. Since the ultimate resolution of the earlier proceeding did
not preclude that proposal, we treated the proposal as a new petition
for rule making and initiated a new proceeding. In *Alva, Bartlesville
and Ponca City, Oklahoma, and Deerfield, Missouri,* we merely proposed
in a new proceeding a technically acceptable proposal for Deerfield,
Missouri, which had been filed as a nonconflicting counterproposal in an
earlier proceeding.[^13] We also followed this procedure in *Kingston,
Tennessee,*[^14] and *Oakdale and Campti, Louisiana.*[^15]

13\. We will not, on a *nunc pro tunc* basis, issue a Notice of Proposed
Rule Making setting forth a portion of the Joint Petitioners
Counterproposal. The Joint Petitioners request this relief in order that
proposals contained in the Counterproposal not be precluded by eight
conflicting petitions for rule making that we accepted after the comment
date in this proceeding. We recognize that we did not promptly enter the
Counterproposal into the FM data base. As a consequence, we
inadvertently accepted eight untimely rulemaking petitions in conflict
with proposals in the Counterproposal. We have addressed this matter and
have dismissed all eight petitions. These dismissals are now on appeal.
In the event the appeals are denied, there would be no impediment that
would preclude the Joint Petitioners from filing a petition for rule
making setting forth the technically acceptable allotment proposals
originally contained in the Counterproposal as well as any related
allotment proposals.[^16] If the dismissals are reversed, we note that
the Joint Petitioners filed comments in response to the respective
*Notices of Proposed Rule Making.* In each instance, the Joint
Petitioners referenced their conflicting proposal already on file and
expressed a continuing interest in that proposal. To the extent a Joint
Petitioner's conflicting proposal is technically acceptable, it will be
considered in connection with that particular proceeding.

14\. Accordingly, IT ORDERED, That the aforementioned Petition for
Partial Reconsideration and Request for Expedited Action filed by
Rawhide Radio, LLC, Capstar TX Limited Partnership and Clear Channel
Broadcasting Licenses, Inc. IS DENIED.

15\. IT IS FURTHER ORDERED, That this proceeding IS TERMINATED.

16\. For further information concerning this proceeding, contact Robert
Hayne, Media Bureau, (202) 418-2177.

FEDERAL COMMUNICATIONS COMMISSION

John A. Karousos

Assistant Chief, Audio Division

Media Bureau

[^1]: *Quanah, Texas et al.* 18 FCC Rcd 9495 (MB 2003).

[^2]: Nation Wide Radio Stations withdrew its expression of interest in
    this allotment, and in accordance with Section 1.420(j) of the
    Rules, this proposal was dismissed in the *Report and Order.*

[^3]: S*ee* Note to Section 73.208 of the Rules; *see also Conflicts
    Between Applications and Petitions for Rule Making to Amend the FM
    Table of Allotments,* 8 FCC Rcd 4743 (1993).

[^4]: 17 FCC Rcd 994 (MMB 2002) (the "*Request*").

[^5]: An application on file by the comment date in a rulemaking
    proceeding is an "expression of interest" functionally equivalent to
    a counterproposal. *See Detroit, Texas, et al.,* 13 FCC Rcd 15591
    (MMB 1998).

[^6]: *See Oxford and New Albany, Mississippi,* 3 FCC Rcd 615 (MMB
    1988), *recon.* 3 FCC Rcd 6626 (MMB 1988); *see also Cut and Shoot,
    Texas,* 11 FCC Rcd 16383 (MMB 1996).

[^7]: *Pauls Valley, Oklahoma, et al.,* 13 FCC Rcd 13458 (MMB 1998);
    *Farmersville, Texas, et al.,* 12 FCC Rcd 4099 (MMB 1997).

[^8]: *See Implementation of BC Docket No. 80-90 to Increase the
    Availability of FM Broadcast Assignments,* 5 FCC Rcd 931, n. 5
    (1990).

[^9]: *See also Broken Arrow and Bixby, Oklahoma, Coffeyville, Kansas,*
    3 FCC Rcd 6507 (MMB 1988).

[^10]: In *Winslow, Camp Verde, Mayer and Sun City West, Arizona*, 16
    FCC Rcd 9551 (MMB 2001), we announced our policy that we would no
    longer consider alternative proposals in the context of either a
    single petition for rule making or counterproposal. In this
    instance, the Joint Petitioners Counterproposal was filed before the
    announcement of this new policy.

[^11]: *Noblesville, Indianapolis and Fishers, Indiana,* 18 FCC Rcd
    11039 (MB 2003).

[^12]: *Saratoga, Green River, Big Piney and La Barge, Wyoming, 15 FCC
    Rcd 10358 (MMB 2000).*

[^13]: *Alva, Bartlesville and Ponca City, Oklahoma, and Deerfield,
    Missouri,* 11 FCC RCd 20915 (MMB 1996).

[^14]: *Kingston, Tennessee,* 2 FCC Rcd 3589 (MMB 1987).

[^15]: *Oakdale and Campti, Louisiana,* 7 FCC Rcd 1033 (MMB 1992).

[^16]: In its Petition for Reconsideration, the Joint Petitioners refer
    to the "unconscionable length of time" between the issuance of the
    *Notice of Proposed Rule Making* and the *Report and Order.* In
    addition to the fact that the Joint Petitioners filed a complex
    Counterproposal involving twenty-two communities, we note that
    during this two and one half year period, we received fifty-six
    pleadings. Included among those pleadings was a "Withdrawal of
    Interest" and a "Reinstatement of Interest," both filed by the Joint
    Petitioners.