**Before the**

Federal Communications Commission

**Washington, DC 20554**

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| In the Matter of                 | * | MB Docket No. 02-376         |
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| Amendment of Section 73.202(b),  | ) | RM-10617                     |
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| FM Table of Allotments,          | * | RM-10690                     |
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| Sells, Willcox, and              | ) |                              |
| Davis-Monthan                    | * |                              |
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MEMORANDUM OPINION AND ORDER

(Proceeding Terminated)

Adopted: January 30, 2008 Released: February 1, 2008

By the Assistant Chief, Audio Division, Media Bureau:

1.  The Audio Division has before it: (1) a Petition for Reconsideration
    (the "Petition") of the *Report and Order*[^2] in this proceeding
    filed by Lakeshore Media, LLC ("Lakeshore"), licensee of Station
    KWCX-FM, Willcox, Arizona; (2) an Opposition filed by REC Networks
    ("REC"); (3) an Opposition filed by Journal Broadcast Corporation
    ("Journal"); (4) a Reply to Oppositions to Petition for
    Reconsideration filed by Lakeshore; and (5) various related
    pleadings.[^3] For the reasons discussed below, we deny the
    Petition.

2.  **Background.** At the request of Rural Pima Broadcasting ("Rural
    Pima"), the *Notice of Proposed Rule Making*[^4] in this proceeding
    proposed the allotment of Channel 285A at Sells, Arizona, as the
    community's first local transmission service. In response to the
    *NPRM*, Lakeshore filed a timely counterproposal, proposing the
    downgrade of Channel 285C2 to Channel 285C3 at Willcox, the
    reallotment of Channel 285C3 to Davis-Monthan AFB, and the
    associated modification of the license for Station KWCX-FM pursuant
    to the provisions of Section 1.420(i) of the Commission's rules.[^5]
    To accommodate this allotment, Lakeshore proposed to modify the
    transmitter site for Station KZZP(FM), Channel 284C, Mesa, Arizona,
    with the consent of the licensee, and agreed to reimburse the
    licensee for the reasonable costs of changing its transmitter site.
    Further, because the relocation of Station KWCX-FM would create
    "white area,"[^6] Lakeshore proposed two "backfill" allotments,[^7]
    Channels 282C2 and 254C2, at Willcox, which would provide service to
    this area. Finally, Lakeshore proposed the allotment of alternate
    Channel 249A at Sells in lieu of Channel 285A as requested by Rural
    Pima, in order to remove the conflict between the two proposals.[^8]

3.  The *R&O* granted Rural Pima's rulemaking petition, allotting
    Channel 285A to Sells,[^9] and denied Lakeshore's counterproposal,
    finding that the rationale of *Pacific Broadcasting of Missouri,
    LLC,*[^10] applies equally the facts of this proceeding. In
    *Refugio*, the Commission discontinued the practice of permitting
    the "backfill" of new allotments to prevent the removal of a
    community's sole local transmission service because a vacant
    allotment is not an adequate substitute for the removal of a
    community's only operating radio station. The *R&O* reasoned that
    because the "backfill" of a new allotment is no longer permitted in
    instances involving the removal of a community's first local
    transmission service under Priority (3) of the FM Allotment
    Priorities, it should also not be allowed in a case involving the
    removal of a first fulltime reception service under higher allotment
    Priority (1) or a second fulltime reception service under Priority
    (2), which is co-equal to Priority (3). [^11] In this case, the
    *R&O* found that the downgrade and relocation of Station KWCX-FM
    would create a "white" loss area under Priority (1) because 2,846
    persons would be reduced from one full-time aural reception service
    to none, and a "gray" loss area[^12] under Priority (2) because
    1,022 persons would be reduced from two full-time aural reception
    services to one. Lakeshore's counterproposal was denied because this
    loss of first and second full-time reception service to over 4,000
    persons would not be adequately replaced by "backfill" service
    provided by two new vacant allotments at Willcox or outweighed by
    the provision of a first local transmission service under
    Priority (3) at Davis-Monthan AFB.

4.  In the Petition, Lakeshore argues that its counterproposal should
    not have been denied and sets forth four reasons in support of this
    position.[^13] First, Lakeshore argues that, although the Commission
    has a strong policy against the creation of "white" area, the
    counterproposal does not create "white" area, as a matter of law,
    because the Commission considers a vacant allotment to prevent the
    creation of "white" area.[^14] Lakeshore states that the Commission
    has taken this approach because it assumes that service will be
    provided on existing vacant allotments and that under *Greenup*, it
    does not matter when this service is actually provided. Second,
    Lakeshore argues that the loss of existing service by the relocation
    of Station KWCX-FM should have been considered under Priority (4)
    instead of Priorities (1) and (2) because the Commission has held
    that disruption in or loss of existing service where unserved areas
    are covered by potential service falls under Priority (4).[^15] When
    the loss of service in this case is considered under Priority (4),
    Lakeshore asserts that it cannot overcome the provision of a first
    local service to Davis-Monthan AFB under higher allotment Priority
    (3).[^16] Third, Lakeshore contends that the *R&O* should not have
    reversed the Commission's precedent of allowing the use of vacant
    allotments to prevent the creation of "white" or "gray" area on an
    *ad hoc* basis because (1) the Bureau gave no notice that it
    intended to address this particular policy and (2) the new policy
    was retroactively applied to the parties in this proceeding without
    an affirmative finding on the record that the retroactive
    application of such a policy is appropriate.[^17] Fourth, Lakeshore
    alleges that changed circumstances have occurred that eliminate all
    of the "white" area and most of the "gray" area and, therefore,
    warrant grant of the counterproposal.[^18]

5.  In its Opposition, Journal contends that the Petition should be
    denied because the staff correctly concluded that the new allotments
    proposed by Lakeshore cannot be used as "backfill" for the "white"
    and "gray" that would be created by Lakeshore's counterproposal
    based upon the Commission's decision in *Refugio*. Additionally,
    Journal claims that Lakeshore's reliance on two pending applications
    that would provide service to the "white" area is misplaced inasmuch
    as the applications have not been granted. Finally, both Journal and
    REC assert that Davis-Monthan AFB is not a community for allotment
    purposes and is located entirely within the city limits of Tucson,
    Arizona.

6.  In a Reply to Oppositions, Lakeshore disagrees with Journal that the
    *R&O* properly relied upon *Refugio*. On the contrary, Lakeshore
    argues that *Refugio* does not literally apply to this proceeding
    because this case involves the loss of reception service, not the
    loss of transmission service. In addition, Lakeshore contends that
    its reliance on two pending applications is not misplaced because
    one of them has been granted.[^19] Last, Lakeshore states that it
    previously submitted extensive evidence on the community status of
    Davis-Monthan AFB and believes that the evidence supports a
    determination that it is both a community and independent of
    Tucson.[^20]

7.  **Discussion.** As a threshold matter, we will grant the motions
    filed by Journal and Lakeshore to supplement their pleadings.[^21]
    Consideration of these pleadings will enable us to resolve this
    proceeding on a full record and to take into account changed
    circumstances that have occurred since release of the *R&O.*[^22]
    However, as explained below, we do not find that the arguments
    raised in the Petition or the changed circumstances warrant any
    modifications to the *R&O*.

8.  Foremost, we continue to believe that the *R&O* properly applied the
    Commission's rationale in *Refugio* to the facts of this case and
    denied Lakeshore's counterproposal because the proposed "backfill"
    allotments at Willcox are not adequate substitutes for the creation
    of sizeable "white" and "gray" service loss areas. Indeed, it is
    undisputed that the relocation of Station KWCX-FM would result in
    the loss of all radio service for 2,846 persons and the reduction
    from two to one full-time reception service for 1,022 persons.
    Because the Commission no longer permits the "backfill" of a new
    allotment where there would be the removal of a community's sole
    local transmission service under Priority (3), it is likewise in the
    public interest to apply this policy to situations involving loss of
    first and second full-time reception services under Priorities (1)
    and (2). In all three instances, ". . . the licensing of vacant
    allotments is too remote and too contingent to justify the filing of
    move-out proposals premised on such replacement services."[^23]

9.  Next, to the extent that Lakeshore argues that, as a matter of law,
    its counterproposal does not create "white" or "gray" loss areas
    because the Commission considers a vacant allotment to prevent the
    creation of "white" or "gray" areas, we disagree. Although the *R&O*
    distinguished the issues involved in *Greenup* and the instant
    proceeding,[^24] we recognize that *Greenup* did establish a single
    test for calculating "white" or "gray" gain or loss areas under
    Priorities (1) and (2) that has been used in FM allotment
    proceedings. Under this test, if a proposed reallotment of an FM
    station would create gain or loss areas, we would consider whether
    the existing or proposed 60 dBu service contours of the reallotted
    station are covered by actual service (*e.g.,* operating AM or FM
    stations) or potential service (*e.g.,* unbuilt construction permits
    or vacant allotments)[^25] before determining whether there would be
    a gain or loss of first or second full-time reception service.
    However, the extension of the Commission's *Refugio* policy to the
    facts of the instant proceeding has necessarily modified, to some
    extent, the calculation of "white" or "gray" areas for operating, as
    opposed to unbuilt, stations. Under the former approach, the
    potential service from a concurrently proposed "backfill" allotment
    or an existing vacant allotment would negate the creation of "white"
    or "gray" areas.[^26] But, in the wake of the *Refugio* case, we
    will no longer consider the potential service from a "backfill"
    allotment as an adequate substitute for the removal of first or
    second full-time reception service by an operating station and will
    deny a proposal relying on a "backfill" allotment on Priority (1)
    and (2) grounds.[^27] By way of contrast, the traditional *Greenup*
    test of considering the potential service from "backfill" or
    existing vacant allotments would continue to apply in cases
    involving reallotments and changes of community of license for
    unbuilt stations because existing on-air service is not being
    lost.[^28] Likewise, we would apply the traditional *Greenup* test
    to rulemaking proposals seeking new allotments and claiming the
    applicability of Priorities (1), (2), or (3) because new service is
    being proposed and no actual service is being subtracted.
    Accordingly, Lakeshore's argument that, "as a matter of law," there
    are no "white" or "gray" areas in this proceeding has no merit.[^29]

10. Although the Petition points out that two construction permits[^30]
    have been granted to stations in Tombstone, Arizona, and Lordsburg,
    New Mexico, since the release of the *R&O*, we do not believe that
    these changed circumstances, as well as more recent ones,[^31]
    warrant reversing the result of this proceeding because these newly
    authorized facilities have not been built and are not currently
    providing service to the "white" and "gray" loss areas that would be
    created by the reallotment of Lakeshore's station. As a result,
    these unbuilt construction permits are not adequate replacements for
    the loss of first and second full-time reception service to
    approximately four thousand people that would occur in this case.
    This approach is similar to *Refugio* in which the move-out was
    conditioned on the initiation of broadcast operations by the
    replacement station.[^32]

11. Contrary to Lakeshore's assertion, extending *Refugio* on an *ad
    hoc* basis to this proceeding and not notifying the parties in
    advance that the Commission may rule on this issue does not violate
    basic administrative procedure. This policy change occurred within a
    rulemaking proceeding conducted pursuant to Section 553 of the
    Administrative Procedure Act ("APA")[^33] under which Lakeshore had
    actual notice and opportunity to address this issue. Indeed, the
    applicability of the *Refugio* policy was specifically raised by
    Journal and was responded to by Lakeshore, giving the staff the
    benefit of a record on this issue before applying that policy.
    Further, it is well established that the Commission has broad
    authority to change its processing rules or policies at any time and
    parties do not have a vested right that a particular rule or policy
    will continue to be applied.[^34] The policy of permitting the
    "backfill" of new allotments was discontinued in *Refugio* and in
    the present proceeding because it was determined that it was
    contrary to the public interest to replace the actual loss of sole
    local transmission service or first or second fulltime reception
    service with the potential service of vacant "backfill"
    allotments.[^35] Applying this change of policy in this proceeding
    does not constitute an unlawful retroactive application of policy
    because the Commission is not required to follow a policy or
    procedure that has been determined not to be in the public
    interest.[^36]

12. **Conclusion and Ordering Clauses.** For the reasons stated above,
    and pursuant to the Communications Act of 1934, as amended, and our
    rules,[^37] Lakeshore's Petition for Reconsideration IS DENIED.

13. IT IS FURTHER ORDERED, That a copy of this *Memorandum Opinion and
    Order* be sent by Certified Mail, Return Receipt Requested , to
    Scott Cinnamon, Esq., Law Offices of Scott Cinnamon, PLLC, 1250
    Connecticut Avenue, N.W., Suite 200, #144, Washington, D.C. 20036
    (Counsel for Rural Pima Broadcasting); Mark N. Lipp, Esq., Wiley
    Rein LLP, 1776 K Street, N.W., Washington, D.C. 20006 (Counsel for
    Lakeshore Media, LLC); Aaron P. Shainis, Esq., Shainis & Peltzman,
    Chartered, 1850 M Street, N.W., Suite 240, Washington, D.C. 20036
    (Counsel for Lakeshore Media, LLC); Gregory Masters, Esq., Wiley
    Rein LLP, 1776 K Street, N.W., Washington, D.C. 20006 (Counsel for
    Citicasters Licenses, L.P.); Mr. Andy Laird, Journal Broadcast
    Group, Inc., 720 E. Capitol Drive, Milwaukee, Wisconsin 53212;
    Joseph M. DiScipio, Esq., Fletcher, Heald & Hildreth, P.L.C.,
    1300 N. 17^th^ Sreet, 11^th^ Floor, Arlington, Virginia 22209
    (Counsel for Journal Broadcast Group, Inc.); Lawrence N. Cohn, Esq.,
    Cohn and Marks LLP, 1920 N Street, N.W., Suite 300, Washington, D.C.
    20036-1622 (Counsel for Journal Broadcast Group, Inc.); and Mr. Rich
    Eyre, REC Networks, P.O. Box 40816, Mesa, Arizona 85274.

14. IT IS FURTHER ORDERED, That this proceeding is terminated.

15. For further information concerning this proceeding, contact
    Andrew J. Rhodes, Media Bureau, (202) 418-2180.

    FEDERAL COMMUNICATIONS COMMISSION

    John A. Karousos

    Assistant Chief

    Audio Division

    Media Bureau

[^1]: The communities of Willcox and Davis-Monthan AFB, Arizona, have
    been added to the caption.

[^2]: *Sells, Arizona,* Report and Order, 19 FCC Rcd 22459 (MB 2004)
    ("*R&O*").

[^3]: These pleadings include: (1) a Motion for Leave to File Supplement
    to Opposition and Supplement to Opposition filed by Journal on July
    15, 2005; (2) an Opposition to Motion and Reply to Supplement filed
    by Lakeshore on July 28, 2005; (3) a Motion for Leave to File Second
    Supplement to Opposition and a Second Supplement to Opposition filed
    by Journal on November 18, 2005; (4) an Opposition to Motion and
    Reply to Second Supplement filed by Lakeshore on December 7, 2005;
    and (5) a Petition for Leave to File Supplement and Supplement to
    Petition for Reconsideration filed by Lakeshore on June 19, 2007.

[^4]: *Sells, Arizona,* Notice of Proposed Rulemaking, 17 FCC Rcd 24575
    (MB 2002) ("*NPRM*").

[^5]: 47 C.F.R. § 1.420(i). This rule permits the modification of a
    station's authorization to specify a new community of license on a
    mutually exclusive co-channel or adjacent channel without affording
    other interested parties an opportunity to file competing
    expressions of interest.

[^6]: A "white" area is an area in which there are no full-time aural
    reception services. *See Cheyenne, Wyoming, and Gerring, Nebraska,*
    Report and Order, 15 FCC Rcd 7528, 7530 n.8 (MMB 2000)
    ("*Cheyenne*").

[^7]: A "backfill" allotment is one made to replace an allotment that is
    being modified or relocated in connection with the change of
    community of license of an authorized station. *See, e.g.,
    Cheboygan, et al., Michigan,* Request for Supplemental Information,
    17 FCC Rcd 20491 (MB 2002).

[^8]: Lakeshore's counterproposal is mutually exclusive with Rural
    Pima's rulemaking petition because Channel 285C3 at Davis-Monthan
    AFB is short-spaced to Channel 285A at Sells under the Commission's
    minimum distance separation requirements. *See* 47 C.F.R. § 73.207.

[^9]: We clarify that the reference coordinates for Channel 285A at
    Sells, Arizona, concurred to by the government of Mexico are
    31-51-28 NL and 111-53-23 WL as a specially negotiated restricted
    allotment limited to 1.1 kW ERP and 100 meters HAAT or the
    equivalent along the 123.2 degree azimuth toward Station XHNI(FM),
    Channel 286B, Nogales, Sonora, Mexico.

[^10]: *Letter to Pacific Broadcasting of Missouri LLC,* Ref. No.
    1800B3-LAS (MMB, Dec. 21, 2001), *app for rev. denied,* Memorandum
    Opinion and Order, 18 FCC Rcd 2291 (2003), *recon. denied,*
    Memorandum Opinion and Order, 19 FCC Rcd 10950 (2004) ("*Refugio*").

[^11]: The FM allotment priorities are: (1) first full-time aural
    service; (2) second full-time aural service; (3) first local
    service; and (4) other public interest matters. \[Co-equal weight is
    given to priorities (2) and (3).\] *See Revision of FM Assignment
    Policies and Procedures,* Second Report and Order, 90 FCC 2d 88
    (1982).

[^12]: A "gray" area is an area in which there is only one full-time
    aural reception service. *See* *Cheyenne,* 15 FCC Rcd at 7530.

[^13]: *Public Notice* of the Petition was given in Report No. 2694,
    February 28, 2005.

[^14]: *See Greenup, Kentucky, and Athens, Ohio,* Memorandum Opinion and
    Order, 6 FCC Rcd 1493 (1991) ("*Greenup*").

[^15]: *See Nogales, Vail, and Patagonia, Arizona,* Report and Order, 16
    FCC Rcd 20515, 20519 (MMB 2001) ("*Nogales*").

[^16]: Alternatively, Lakeshore requests that, if the potential service
    from proposed "backfill" allotments will no longer be considered in
    gain and loss calculations, the staff should clarify whether other
    types of potential service will be considered in gain and loss
    calculations (*e.g.,* existing vacant allotments, unbuilt
    construction permits, and the assumption of maximum, as opposed to
    actual, facilities for all FM stations, except for Class C.
    Lakeshore also questions why concurrently proposed "backfill"
    allotments are not considered but other types of potential service
    apparently are taken into account. *See* Lakeshore Petition at 6-8.

[^17]: *See Yakima Valley Cablevision, Inc. v. FCC,* 794 F.2d 737 (D.C.
    Cir. 1986).

[^18]: Lakeshore refers to the filing of an application (File No.
    BPH-20010525AAX) by Station KCDQ(FM), Tombstone, Arizona, which was
    amended on January 28, 2004. Lakeshore contends that, when this
    application is granted, it will cover most of the "white" area;
    Lakeshore contends that the small area left unserved contains 40
    people and should be considered *de minimis*. Likewise, Cochise
    Broadcasting LLC, the high bidder in FM Auction 37, filed an
    application (File BNPH-20041201CAN) for a new FM station on Channel
    279C at Lordsburg, New Mexico, which would cover all of the "white"
    area and most of the "gray" area.

[^19]: *See* File No. BPH-20010525AAX, granted on March 22, 2005. *See*
    *supra* note 18.

[^20]: On July 15, 2005, Journal supplemented its Opposition, stating
    that the application (File No. BNPH-20041201CAN) filed by the
    successful bidder in FM Auction #37 for a new station on Channel
    279C at Lordsburg, New Mexico, was modified by a second application
    to downgrade the channel to Class C1 and to change the transmitter
    site. *See* File No. BNPH-20050607ABD. As a result, Journal contends
    that the Lordsburg station would not provide 60 dBu service to any
    of the "white" area. On July 28, 2005, Lakeshore responded that the
    modified Lordsburg application is of no decisional significance
    because under *Greenup*, FM stations other than class C stations are
    analyzed as if they were constructed with maximum facilities for
    their class, and not based upon the actual facilities proposed. On
    November 18, 2005, Journal reported the grant of the Lordsburg
    application (File No. BNPH-20050607ABD). On June 19, 2007, Lakeshore
    submitted an engineering supplement to the Petition, reporting that
    if all currently licensed facilities and construction permits are
    considered, there would no longer be "white" area loss but would be
    a "gray" area loss of 2,070 people.

[^21]: *See* note 3 *supra*.

[^22]: *See, e.g., Greenup*, 6 FCC Rcd at 1494 (reversing the grant of a
    proposal that originally claimed benefits under Priority 2 because
    intervening allotment actions had removed the Priority 2 gains); and
    *Columbus and Monona, Wisconsin,* Memorandum Opinion and Order, 21
    FCC Rcd 10012 (MB 2006) (granting a motion to supplement a petition
    for reconsideration to provide information on facts that have
    changed since the release of the *Report and Order* in an FM
    allotment proceeding).

[^23]: *Refugio*, Memorandum Opinion and Order, 19 FCC Rcd at 10956.

[^24]: *See R&O,* 19 FCC Rcd at 22461-62, ¶ 9. The *R&O* distinguished
    *Greenup* on the ground that it permits taking into account vacant
    allotments in determining whether an allotment proposal should
    receive Priority (1) or (2) credit, such as between the mutually
    exclusive upgrade proposals in that case. By way of contrast, the
    *R&O* explained that Lakeshore's counterproposal involves whether a
    vacant allotment is sufficient to offset the removal of actual first
    or second reception service.

[^25]: The *Greenup* test also assumes maximum, as opposed to actual,
    facilities for all FM stations and allotments, except for Class C,
    regardless of whether these maximum facilities are ever realized.
    *See Greenup,* Memorandum Opinion and Order, 6 FCC Rcd at 1495, ¶
    15.

[^26]: *See, e.g., Nogales, supra* note 15 (taking into account, *inter
    alia,* the potential service from vacant allotments in determining
    that loss of service from the proposed reallotment of an FM station
    should be considered under Priority 4 as opposed to Priority 2);
    *Meeker and Craig, Colorado,* Report and Order, 15 FCC Rcd 23858
    (MMB 2000) (including the potential service from 5 vacant FM
    allotments in determining the absence of "white" or "gray" loss
    areas and the creation of a "gray" gain area of 802 people but
    denying the proposed reallotment of an unbuilt construction permit
    on other grounds) ("*Meeker*"); *Eatonton and Sandy Springs,
    Georgia, and Anniston and Lineville, Alabama,* Report and Order*,* 6
    FCC Rcd 6580, 6584 n.30 (MMB 1991) (looking favorably upon two
    proposed "backfill" allotments to replace the loss of first and
    second aural reception service but denying the proposed reallotment
    on other grounds) ("*Anniston*"); and *Caliente, Nevada, et al.,*
    Report and Order, 20 FCC Rcd 893, 896 (MB 2004) (recognizing that
    two "backfill" allotments were concurrently proposed to prevent the
    creation of a "gray" loss area but finding it unnecessary to allot
    the "backfill" channels because the "gray" area was unpopulated)
    ("*Caliente*"). We further note that the *R&O* distinguished both
    *Meeker* and *Nogales* from the present proceeding on the ground
    that neither case granted a vacant allotment to fill "white" or
    "gray" areas. *See R&*O, 19 FCC Rcd at 22461 n.8 Specifically, in
    *Meeker,* the proposal was denied for other reasons, and in
    *Nogales,* consideration of the station as a grandfathered 3kW, as
    opposed to a 6 kW, Class A FM station, virtually eliminated the
    "gray" loss area at issue in that case. However, we acknowledge and
    clarify that, while no "backfill" allotments were made to eliminate
    "white" or "gray" areas, these cases did follow the *Greenup* test
    and took into account potential service from vacant allotments in
    calculating gains or losses of service. Because these cases were
    decided before the Commission's decision in *Refugio*, they contain
    no language indicating that potential service from vacant allotments
    could not have been relied upon.

[^27]: Indeed, the *Refugio* rationale was recently extended so that the
    potential service from a vacant allotment will not be considered
    where an operating station is changing its community of license.
    *See Eldorado, Mason, Mertzon, and Fort Stockton, Texas,* Report and
    Order, 21 FCC Rcd 3572 (MB 2006), *recon denied,* Memorandum Opinion
    and Order, 22 FCC Rcd 280 (MB 2007), *app. for rev. pending*
    (denying reallotment of an on-air FM station because it would create
    a "gray" area containing 7,372 persons and not taking into account
    potential service from vacant allotments in the loss area)
    ("*Eldorado Proceeding*").

[^28]: *See, e.g., Meatiest et al., Wyoming,* Report and Order, DA
    08-126 at ¶ 7 and n.40 (realloting an unbuilt FM station from
    Marbleton, Wyoming, to Ballard, Utah, and relying upon a vacant
    "backfill" FM allotment at Marbleton to prevent the creation of a
    "white" loss area of 759 persons caused by the reallotment ).

[^29]: To the extent that Lakeshore argues that, under *Nogales,*
    disruption in or loss of "on-air" service where unserved areas are
    covered by potential service falls under Priority (4), this case was
    decided before the Commission's *Refugio* decision and, like the
    *dicta* in *Anniston*, is no longer controlling in light of that
    decision. By way of contrast, *Meeker* is still valid because it did
    not involve the loss of "on-air" service.

[^30]: *See* File Nos. BPH-20010525AAX for Station KCDQ(FM), Tombstone,
    Arizona, and BPNPH-20050607ABD for a new FM station on Channel
    279C1, Lordsburg, New Mexico.

[^31]: Subsequent to the filing of Lakeshore's Supplement to Petition
    for Reconsideration, the unbuilt construction permit (File No.
    BNPH-20050607ABD) for Channel 279C1, Lordsburg, New Mexico, which
    was relied upon as a replacement service for the "white" or "gray"
    loss area was downgraded, reallotted, and modified to specify
    operation on Channel 279A at Vail, Arizona. *See Corona de Tucson,
    et al., New Mexico,* Report and Order, 22 FCC Rcd 13933 (MB 2007),
    *recon. pending*. We also note that a construction permit
    application (File No. BPH-20051228AEC) was granted on July 26, 2007,
    to upgrade Station KPSA-FM, Channel 249A, Lordsburg, New Mexico, to
    Channel 250C, but this upgraded facility is not built.

[^32]: *See Refugio*, Memorandum Opinion and Order, 19 FCC Rcd at 10956,
    ¶ 14. We will, however, continue to assume maximum facilities for
    all FM stations, except for Class C, in calculating the gain or loss
    areas created by the proposed reallotment of FM stations and in
    determining the coverage of other FM stations in the gain or loss
    areas. First, assuming maximum facilities enables us to take into
    account the areas or populations that FM stations are protected from
    interference and entitled to service. Second, the consistent use of
    maximum facilities promotes uniformity in gain or loss calculations.
    Third, the FM Table of Allotments and the minimum distance
    separation requirements of Section 73.207 are based upon the maximum
    permissible facilities for all classes of FM stations.

[^33]: 5 U.S.C. § 553.

[^34]: *See, e.g., Chadmoore Comm., Inc. v. FCC*, 113 F.3d 235, 240-41
    (D.C. Cir 1997) (filing of upgrade applications did not vest
    petitioners with a legally cognizable expectation that criteria for
    considering their applications would remain unchanged); *Letter to
    Pamela C. Cooper, Esq., et al.,* 16 FCC Rcd 12668, 12672 (MMB 2001)
    (changes in processing rules may be applied in cases arising before
    their promulgation); and *Eldorado*, Memorandum Opinion and Order,
    22 FCC Rcd at 282, ¶ 7 (applying the *Refugio* policy to the parties
    in this case does not constitute an unlawful retroactive rulemaking
    because a filer does not have a vested right in the continued
    application of processing policies in effect at the time of filing).

[^35]: *See Refugio,* Memorandum Opinion and Order, 19 FCC Rcd at
    2295-96; and *R&O*, 19 FCC Rcd at 22461.

[^36]: *See, e.g., Washington Association for Television and Children v.
    FCC,* 655 F. 2d 1264, 1268 (D.C. Cir. 1981). In view of the denial
    of Lakeshore's Petition, it is not necessary to address the issue of
    the community status of Davis-Monthan AFB raised by both Journal and
    REC.

[^37]: *See* 47 U.S.C. § 405; 47 C.F.R. § 1.429.