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 Federal  Communications  Commission  DA  05-  2506 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of 
 Amendment  of  Section  73.  202(  b),  Table  of  Allotments, 
 FM  Broadcast  Stations.  (Mercedes,  San  Benito,  Brownsville, 
 Premont,  and  Falfurrias,  Texas) 


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 MEMORANDUM  OPINION  AND  ORDER 
 Adopted:  September  23,  2005  Released:  September  26,  2005 
 By  the  Assistant  Chief,  Audio  Division,  Media  Bureau: 
 1.  The  Audio  Division  has  before  it  a  Petition  for  Reconsideration  filed  by  Clear  Channel  Broadcasting  Licenses,  Inc.,  licensee  of  Station  KHKZ(  FM),  Mercedes,  Texas  and  Capstar  TX  Limited 
 Partnership,  licensee  of  Station  KTEX(  FM)  Brownsville,  Texas  (  Petitioners)  directed  to  the  letter  dated  June  10,  2005,  returning  their  joint  Petition  for  Rule  Making.  For  the  reasons  discussed  below,  we  deny 
 the  Petition  for  Reconsideration. 
 Background 
 2.  In  their  Petition  for  Rule  Making,  Petitioners  proposed:  (1)  the  substitution  of  Channel  292C3  for  Channel  292A  at  Mercedes,  Texas,  the  reallotment  of  Channel  292C3  to  San  Benito,  Texas  as 
 a  first  local  service,  and  the  modification  of  Station  KHKZs  license  to  reflect  the  upgrade  and  change  of  community,  and  (2)  the  reallotment  of  Channel  262C0  from  Brownsville  to  Mercedes,  Texas,  and  the 
 modification  of  Station  KTEXs  license  to  reflect  the  change  of  community.  To  accommodate  Channel  292C3  at  San  Benito,  Petitioners  proposed  the  substitution  of  Channel  287A  for  Channel  292A  at 
 Falfurrias,  Texas  and  modification  of  Station  KPSO-  FMs  license  to  reflect  the  channel  change.  To  accommodate  Channel  287A  at  Falfurrias,  Petitioners  proposed  the  substitution  of  Channel  292A  for 
 vacant  Channel  287A  at  Premont,  Texas    without  modifying  the  reference  coordinates  of  the  vacant  allotment.  Commission  staff  determined  that  the  Petition  for  Rule  Making  was  unacceptable  for 
 consideration  because  the  proposed  Channel  292C3  reallotment  to  San  Benito  is  short-  spaced  to  the  proposed  Channel  292A  substitution  of  the  vacant  allotment  at  Premont.  1 


 Petition  for  Reconsideration 
 3.  Petitioners  argue  that  the  dismissal  of  their  Petition  for  Rule  Making  should  be  reconsidered  because  the  only  defect  was  due  to  the  specification  of  incorrect  coordinates  [for  Channel 
 292A  at  Premont]  and  the  current  freeze  on  filing  new  petitions  [for  rule  makings]  necessitates  filing  this  [petition  for]  reconsideration.  2  They  now  propose  new  reference  coordinates  for  Channel  292A  at 
 Premont  to  eliminate  the  short  spacing,  and  state  that  there  is  Commission  precedent  for  modifying 
 1  47  C.  F.  R.    73.  207. 
 2  Petition  for  Reconsideration  at  1.  See  also  Revision  of  Procedures  Governing  Amendments  to  FM  Table  of 
 Allotments  and  Changes  of  Community  of  License  in  the  Radio  Broadcast  Services,  Notice  of  Proposed  Rule  Making,  20  FCC  Rcd  11142  (2005). 
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 Federal  Communications  Commission  DA  05-  2506 
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 reference  coordinates  of  vacant  allotments.  3  Petitioners  assert  that  there  is  also  precedent  for  the  Media  Bureau  to  modify  allotment  reference  coordinates  on  its  own  motion  when  such  modification  would  serve 
 the  public  interest,  citing  Bayboro,  North  Carolina  (  Bayboro).  4 
 Discussion 
 4.  Section  1.429  of  the  Commissions  rules  5  sets  forth  the  limited  provisions  under  which  the  Commission  will  reconsider  a  rulemaking  action.  Reconsideration  is  warranted  only  if  the  petitioner 
 cites  errors  of  fact  or  law,  or  presents  new  facts  or  changed  circumstances  which  raise  substantial  or  material  questions  of  fact  which  otherwise  warrant  Commission  review  of  its  prior  action.  Petitioners 
 have  not  set  forth  any  errors  of  law  or  facts,  nor  presented  new  facts  or  changed  circumstances  that  would  warrant  reconsideration.  Changes  in  reference  coordinates  of  vacant  allotments  are  permissible  in 
 petitions  for  rule  makings  or  counterproposals  to  amend  the  FM  Table  of  Allotments.  6  However,  Petitioners  failed  in  their  Petition  for  Rule  Making  to  propose  the  necessary  changes  in  reference 
 coordinates  for  the  vacant  allotment  at  Premont  that  would  comply  with  our  minimum  separation  requirements.  Nor  have  Petitioners  provided  any  basis  for  permitting  corrected  coordinates  on 
 reconsideration  to  outweigh  the  public  interest  concerns  for  technical  compliance  at  the  outset  to  ensure  fairness  to  other  parties  who  file  proposals  in  compliance  with  our  technical  rules  and  the  efficient 
 transaction  of  Commission  business.  7  Petitions  for  rule  making  and  counterproposals  must  be  technically  correct  at  the  time  they  are  filed.  8 


 5.  Bayboro  is  distinguishable  because  therein  petitioner  complied  with  the  Commissions  technical  rules  for  city  grade  coverage  9  and  minimum  distance  separation  requirements.  The  staff  sua 
 sponte  specified  an  alternate  site  in  the  notice  of  proposed  rule  making  because  the  petitioner  had  specified  a  site  located  in  a  wetlands  area.  The  alternate  site  for  an  otherwise  acceptable  proposal  avoided 
 the  necessity  of  resolving  any  site  suitability  issue.  In  allotment  proceedings,  the  Commission  generally  requires  a  petitioner  to  provide  a  theoretical  site  and  presumes  the  suitability  and  availability  of  a 
 proposed  site  unless  that  presumption  is  rebutted  10  by  a  sufficiently  compelling  showing.  11  In  Bayboro,  aside  form  a  preliminary  staff  determination  regarding  the  wetlands,  it  had  not  been  established  that  the 
 originally  proposed  site  was,  in  fact,  unsuitable.  In  this  instance,  site  suitability  was  not  at  issue.  Rather,  Petitioners  failed  to  comply  with  the  Commissions  minimum  distance  separation  requirements.  Thus,  we 
 affirm  the  dismissal  of  Petitioners  Petition  for  Rule  Making. 
 6.  Accordingly,  IT  IS  ORDERED,  That  the  Petition  for  Reconsideration  IS  DENIED. 
 3  Petitioners  cite  to  Eldorado,  Texas  et  al.,  19  FCC  Rcd  9179  (MMB  2000)  and  Fair  Bluff,  North  Carolina,  10  FCC 
 Rcd  9255  (MMB  1995).  4 
 Petitioners  cite  to  the  Notice  of  Proposed  Rule  Making  in  Bayboro,  North  Carolina,  6  FCC  Rcd  4850  (MMB  1991).  See  also  the  Report  and  Order  in  Bayboro,  North  Carolina,  7  FCC  Rcd  6305  (MMB  1992). 


 5  47  C.  F.  R.    1.429. 
 6  See  Note  3,  supra. 
 7  See  e.  g.  Shorter,  Alabama,  19  FCC  Rcd  6844  (MB  2004)  (affirming  on  reconsideration  the  dismissal  of  petition  for 
 rule  making  due  to  short  spacing  to  licensed  site).  8 
 See  Caldwell,  Texas,  et  al.,  15  FCC  Rcd  20641  (2000)  9 
 47  C.  F.  R.    73.315.  10 
 San  Clemente,  California,  3  FCC  Rcd  6728  (MMB  1988)  appeal  dismissed  sub.  nom.  Mount  Wilson  FM  Broadcasters,  Inc.  v.  FCC,  884  F.  2d  1462  (D.  C.  Cir.  1989).  See  also  San  Clemente,  California,  10  FCC  Rcd  8291 


 (1995).  11 
 Key  West,  Florida,  3  FCC  Rcd  6423  (MMB  1988). 
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 7.  This  document  is  not  subject  to  the  Congressional  Review  Act.  (The  Commission,  is,  therefore,  not  required  to  submit  a  copy  of  this  Memorandum  Opinion  and  Order  to  the  Government 
 Accountability  Office,  pursuant  to  the  Congressional  Review  Act,  see  5  U.  S.  C.  Section  801(  a)(  1)(  A),  because  the  proposed  petition  for  rule  reconsideration  was  denied.) 


 8.  For  further  information  concerning  this  proceeding,  contact  Helen  McLean,  Media  Bureau,  and  (202)  418-  2738. 


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