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 Federal  Communications  Commission  FCC  00-  285 
 Before  the 
 Federal  Communications  Commission 
 Washington,  D.  C.  20554 

 In  the  Matter  of 
 Application  of  State  of  Oregon,  Acting  By  and 
 Through  the  State  Board  of  Higher  Education  for 
 the  Benefit  of  Southern  Oregon  University 

 For  a  New  AM  Radio  Station, 
 Mountain  Gate,  California 

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 File  No.  BP-  971212AB 

 MEMORANDUM  OPINION  AND  ORDER 
 Adopted:  August  1,  2000  Released:  August  11,  2000 
 By  the  Commission: 
 1.  The  Commission  has  before  it  a  Petition  for  Reconsideration  filed  November  29,  1999,  by 
 the  State  of  Oregon,  Acting  By  and  Through  the  State  Board  of  Higher  Education  for  the  Benefit  of 
 Southern  Oregon  University  (  Oregon).  Oregon  seeks  reconsideration  of  the  October  28,  1999,  action  of 
 the  Commission  denying  Oregons  application  for  review  of  a  decision  of  the  Mass  Media  Bureau  returning 
 as  unacceptable  for  filing  Oregons  application  for  a  new  AM  station  at  Mountain  Gate,  California. 
 Southern  Oregon  University,  FCC  99-  315  (released  Oct.  28,  1999)  (  Southern  Oregon  Order). 

 2.  The  narrow  standards  for  reconsideration  of  a  Commission  denial  of  an  application  for 
 review  are  set  forth  in  47  C.  F.  R.  1.106.  The  Commission  will  only  entertain  a  petition  for  reconsideration 
 when  the  petition  relies  on  facts  which:  (1)  relate  to  events  that  have  occurred  or  circumstances  which  have 
 changed  since  the  last  opportunity  to  present  such  matters;  or  (2)  were  unknown  to  the  petitioner  until  after 
 his  last  opportunity  to  present  such  matters,  which  could  not,  through  the  exercise  of  ordinary  diligence, 
 have  been  learned  prior  to  such  opportunity.  47  C.  F.  R.  1.106(  b)(  2)(  i)-(  ii).  Although  Oregon  has 
 presented  new  facts,  they  do  not  warrant  grant  of  its  Petition  for  Reconsideration.  47  C.  F.  R.  1.106(  c)(  2). 

 3.  Background.  In  December  1997,  Oregon  filed  the  captioned  application  for  a  new  AM 
 station  at  Mountain  Gate,  California  (the  Mountain  Gate  Application).  At  the  time  it  was  filed,  the 
 application  was  mutually  exclusive  with  a  then-  pending  application  filed  by  M.  C.  Allen  Productions 
 (  MCAP),  licensee  of  KMCA(  AM),  to  change  its  community  of  license  from  Burney  to  Shasta, 
 California.  1  The  staff  returned  Oregons  Mountain  Gate  Application  as  unacceptable  for  filing  because  it 
 failed  to  adequately  protect  the  licensed  facilities  of  KMCA(  AM)  at  Burney,  California,  as  required  by  47 
 C.  F.  R.    73.37(  a).  2  The  staff  denied  reconsideration,  noting  that  Oregons  redundant  petition  failed  to 

 1  See  Cutoff  Report  A-  220,  released  November  14,  1997,  listing  December  15,  1997,  as  cut  off  date  for  filing 
 competing  applications  to  KMCAs  application  to  change  community  of  license  to  Shasta  from  Burney,  CA  (FCC 
 File  No.  BP-  970903AA).  Oregons  Mountain  Gate  Application  was  filed  December  12,  1997,  prior  to  the 
 KMCA  cut  off  date. 

 2  Letter  from  Dennis  Williams,  Assistant  Chief,  Audio  Services  Division,  Mass  Media  Bureau,  to  Ernest  T. 

 Sanchez,  Esq.  and  Christopher  D.  Imlay,  Esq.  (collectively  referred  to  herein  as  Counsel),  dated  May  1,  1998. 
 (continued.) 
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 Federal  Communications  Commission  FCC  00-  285 
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 contain  a  curative  amendment  to  eliminate  the  prohibited  overlap  to  KMCAs  licensed  facilities  in  Burney.  3  In  its  Application  for  Review,  Oregon  argued  that  73.37(  a)  was  misapplied  with  regard  to  the 
 Mountain  Gate  Application.  In  the  Application  for  Review,  Oregon  stated  that  the  purpose  of  73.73(  a)  is 
 to  require  that  new  proposed  AM  applications  not  create  prohibited  levels  of  interference  to  already 
 licensed  facilities,  and  noted  that  it  had  no  basic  quarrel  with  the  purposes  of  this  rule  or  its  general 
 application.  4  However,  Oregon  asserted  that  in  this  case,  the  staffs  reliance  on  the  rule  had  denied 
 Oregon  the  opportunity  to  have  its  application  considered  comparatively  against  KMCAs  proposed  new 
 Shasta  station.  By  this  misapplication  of  73.  37(  a)  to  Oregons  application,  the  Commission  staff  totally 
 eviscerates  (sic)  the  requirements  of  its  own  rules  as  well  as  the  requirements  of  Ashbacker.  5  Oregon 
 questioned  why  the  Commission  issued  a  Public  Notice  on  November  14,  1997  inviting  competing 
 applications  against  KMCAs  Shasta  proposal  if  offering  technical  protection  to  KMCAs  Burney  facilities 
 was  proper  and  intended  from  the  outset.  6  In  the  Southern  Oregon  Order,  we  denied  review,  concluding 
 that  the  Mass  Media  Bureau  properly  interpreted  73.37(  a)  to  preclude  acceptance  of  an  application  that 
 does  not  protect  the  contours  of  an  existing  facility  .  .  ..  We  held  that  this  rule  applies  even  when  the 
 licensee  of  the  existing  facility  has  a  construction  permit,  or,  as  here,  has  filed  an  application  for  a  permit, 
 which,  if  implemented,  would  eliminate  contour  overlap  between  the  licensees  existing  facility  and  the 
 other  applicants  proposed  facility.  Southern  Oregon  Order  at  1. 

 4.  Oregon  asserts  its  Petition  for  Reconsideration  is  based  on  facts  which  relate  to  events 
 which  have  occurred  since  Oregon  filed  its  Application  for  Review,  and  therefore,  is  not  repetitious. 
 Oregon  also  claims  reconsideration  is  required  because  the  Commissions  adherence  to  47  C.  F.  R.   
 73.  37(  a)  is  misplaced  in  the  instant  case,  given  the  fact  that  M.  C.  Allen  Productions  (  MCAP)  has 
 abandoned  its  licensed  facility  in  Burney  and,  according  to  Oregon,  is  not  going  to  apply  for  a  license  at  its 
 new  location  until  the  very  last  minute.  7  Oregon  insists  MCAP  does  not  play  by  the  same  set  of  rules 
 as  other  typical  applicants  and  thus  73.37(  a)  should  not  apply.  8  It  also  claims  the  facts  are  not  as  the 
 Commission  believed  them  to  be  at  the  time  of  the  Southern  Oregon  Order.  Specifically,  Oregon  claims 
 that  MCAP  has  moved  its  studio  and  transmitter  site  several  times  since  December  1997,  most  recently  to 
 yet  another    unauthorized  and  undisclosed    location  entirely.  9  Oregon  claims  that  MCAP  has  failed  to 
 apply  for  a  license  for  the  new  Shasta  location,  and  suggests  that  MCAP  is  engaged  in  some  sort  of  shell 
 game  or  a  game  of  hide  the  ball,    a  game  in  which  the  licensee  continually  shifts  its  location  in  order  to 
 prevent  the  unwary  observer    or  regulator    from  pinning  it  down.  10  Oregon  contends  that  it  is  apparent  (Continued  from  previous  page) 

 47  CFR  73.37(  a)  states:  No  application  will  be  accepted  for  a  new  station  if  the  proposed  operation  would 
 involve  overlap  of  signal  strength  contours  with  any  other  station  as  set  forth  below  in  this  paragraph  .  .  . 

 3  Letter  dated  May  28,  1998,  from  Dennis  Williams  to  Counsel. 

 4  Application  for  Review  at  5. 
 5  Id.  See  Ashbacker  Radio  Corp.  v.  FCC,  326  U.  S.  327  (1945)  (comparative  hearing  required  when  competing 
 applicants  file  conflicting  license  or  construction  permit  applications  for  the  same  license). 
 6  Application  for  Review  at  5. 

 7  Petition  for  Reconsideration  at  7. 
 8  Id.  at  6. 
 9  Id.  at  2. 
 10  Id.  at  5-  6. 
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 the  Southern  Oregon  Order  is  based  upon  a  record  which  gives  the  false  impression  that  MCAP  has  not 
 yet  moved  its  facilities  from  its  so-  called  existing  site  in  Burney,  CA.  Oregon  states  that  the 
 Commission  also  indicated  its  lack  of  knowledge  of  the  current  state  of  affairs  when  it  referred  to  MCAP 
 as  having  filed  an  application  for  a  construction  permit,  which,  if  implemented,  would  eliminate  contour 
 overlap.  .  ..  (emphasis  in  original).  Oregon  claims  that  the  existing  facility  which  the  staff  and 
 Commission  are  trying  to  protect  no  longer  exists  because  MCAP  has  initiated  operations  of  the  facilities 
 specified  in  the  construction  permit  that  authorized  KMCAs  move  to  Shasta  (  Shasta  Construction 
 Permit).  11  Oregon  urges  the  Commission  to  conduct  an  investigation  into  this  matter. 

 5.  Discussion.  We  find  that  Oregon  has  not  presented  any  facts  that  would  warrant  grant  of 
 its  Petition  for  Reconsideration.  We  have  closely  reviewed  MCAPs  efforts  to  find  a  new  transmitter  site 
 and  to  license  these  facility  modifications.  FCC  records  establish  that  MCAP  has  not  operated  its  licensed 
 Burney  station  since  January  1997  when  it  requested  Special  Temporary  Authorization  (  STA)  to  keep 
 KMCA  silent.  On  November  5,  1999  MCAP  filed  a  license  application  (File  No.  BL-  19991105AAZ)  to 
 cover  the  Shasta  Construction  Permit.  12  However,  MCAP  almost  immediately  thereafter  encountered 
 zoning  problems,  and  on  December  15,  1999  obtained  an  STA  to  operate  at  a  different  site.  On  March  24, 
 2000  MCAP  filed  an  application  (File  No.  BMP-  20000324AAT)  for  construction  permit  specifying  its 
 current  STA  transmitter  site.  We  fail  to  see  how  these  unremarkable  siting  difficulties  and  associated 
 Commission  filings  support  in  any  way  Oregons  contention  that  it  should  not  be  required  to  provide 
 section  73.  37(  a)  protection  to  the  licensed  Burney  facility.  13 

 6.  As  we  stated  in  the  Southern  Oregon  Order,  protecting  the  KMCA  license  site  in  Burney 
 ensures  both  that  the  licensed  facility  can  continue  to  operate  in  the  event  [the  licensee]  cannot  implement 
 its  construction  permit  and  an  orderly  transition  from  grant  of  the  permit  to  grant  of  a  license  for  the 
 modified  facility.  14  This  orderly  transition  is  promoted  by  the  requirement  that  other  applicants  continue 
 to  protect  KMCAs  licensed  facilities  as  MCAP  works  to  secure  a  new  site  and  a  license  to  broadcast  at 
 that  location.  Thus,  consistent  with  longstanding  policy,  Oregons  application  for  a  new  AM  station  was 
 required  either  to  protect  KMCAs  licensed  facility  in  Burney,  or  to  request  a  waiver  of  section  73.  37(  a). 
 Oregon  did  neither,  and  the  staff  properly  returned  the  Mountain  Gate  Application.  Moreover,  we  find  that 
 a  waiver  of  section  73.  37(  a)  is  particularly  unwarranted  where,  as  here,  a  licensee  has  experienced 
 difficulties  in  implementing  a  facilities  modification  and  is  currently  operating  from  a  temporary  site 
 pursuant  to  a  STA.  We  also  recognize  that  the  application  of  section  73.  37(  a)  in  conjunction  with  our 
 former  AM  station  new  and  major  change  A/  B  cut-  off  list  procedures  may  have  had  the  effect  of  limiting 
 the  ability  of  others  to  file  competing  applications  when  a  licensee  filed  an  application  to  change  its 
 stations  city  of  license.  For  the  reasons  stated  above,  we  find  that  this  approach  provides  important 
 flexibility  for  licensees  to  improve  facilities  and  undertake  necessary  site  relocations,  and  that  these 
 considerations  outweigh  the  preclusive  impact  on  proposals  that  may  be  favored  under  Section  307(  b)  of 
 the  Communications  Act,  as  amended.  Accordingly,  a  waiver  of  Section  73.  37(  a)  in  the  instant 
 circumstances  is  unwarranted. 

 11  Id.  at  2. 

 12  The  KMCA  application  for  license  to  cover  the  Shasta  Construction  Permit  remains  pending. 
 13  Oregons  allegations  regarding  the  location  of  KMCAs  main  studio  between  December  1997  and  the  present 
 do  not  justify  the  Section  73.37(  a)  waiver  relief  it  seeks.  However,  we  have  referred  this  potential  KMCA  rule 
 violation  to  the  Enforcement  Bureau  for  further  review. 

 14  Southern  Oregon  Order  at  2. 
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 7.  Accordingly,  for  the  reasons  set  forth  herein,  IT  IS  ORDERED,  that  the  Petition  for 
 Reconsideration  filed  by  State  of  Oregon,  State  Board  of  Higher  Education,  for  the  Benefit  of  Southern 
 Oregon  University  IS  DENIED.  47  C.  F.  R.  1.  106(  j). 

 FEDERAL  COMMUNICATIONS  COMMISSION 

 Magalie  Roman  Salas 
 Secretary 
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