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 Federal  Communications  Commission  FCC  04-  154 
 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.  (Lincoln,  Osage  Beach, 
 Steelville,  and  Warsaw,  Missouri). 


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 MM  Docket  No.  90-  66  RM-  7139 
 RM-  7368  RM-  7369 


 MEMORANDUM  OPINION  AND  ORDER 
 Adopted:  June  30,  2004  Released:  July  8,  2004 
 By  the  Commission: 


 1.  The  Commission  has  before  it  a  petition  for  reconsideration  of  its  prior  order  in  this  proceeding,  1  filed  by  Twenty-  One  Sound  Communications  (  Twenty-  One  Sound),  licensee  of  Station 
 KNSX(  FM),  Steelville,  Missouri.  No  oppositions  or  replies  were  filed. 
 BACKGROUND 
 2.  This  proceeding  commenced  with  the  filing  of  a  rulemaking  petition  by  KRMS-  KYLC,  Inc.  (  KRMS),  the  former  licensee  of  Station  KRMS-  FM,  2  Channel  228A,  Osage  Beach,  Missouri.  The 


 petition  requested  an  upgrade  of  Station  KRMS-  FM  to  Channel  228C3  and  a  modification  of  its  license  in  accordance  with  Section  1.420(  g)(  3)  of  the  Commissions  rules.  To  accommodate  this  upgrade,  KRMS 
 also  proposed  the  substitution  of  Channel  253A  for  vacant  but  applied  for  Channel  229A  at  Warsaw,  Missouri.  In  response  to  a  Notice  of  Proposed  Rule  Making,  3  Twenty-  One  Sound  counter  proposed  the 
 upgrade  of  its  Station  KNSX(  FM),  Steelville,  Missouri,  from  Channel  227C2  to  Channel  227C1. 
 3.  The  staff  Report  and  Order  4  dismissed  Twenty-  One  Sounds  counterproposal  and  granted  the  upgrade  for  Station  KRMS-  FM.  Twenty-  One  Sounds  counterproposal  was  dismissed  for  failure  to 


 comply  with  Section  1.52  of  the  rules,  which  requires  that  the  original  of  any  document  filed  with  the  Commission  by  a  party  not  represented  by  counsel  be  signed  and  verified  by  the  party  and  his  or  her 
 address  stated.  Specifically,  Twenty-  One  Sound  had  failed  to  include  either  a  notarized  affidavit  or  an  unsworn  verification  that  the  statements  contained  in  its  counterproposal  were  accurate  to  the  best  of  its 
 principals  knowledge.  The  R&  O  also  reasoned  that  this  dismissal  was  in  accord  with  Commission 


 1  Lincoln,  Osage  Beach,  Steelville,  and  Warsaw,  MO,  17  FCC  Rcd  6119  (2002)  (  MO&  O  III). 
 2  The  call  letters  for  this  station  were  changed  from  KLYC(  FM)  to  KRMS-  FM,  effective  January  9,  1998. 
 3  5  FCC  Rcd  1119  (MMB  1990). 
 4  Lincoln,  Osage  Beach,  Steelville,  and  Warsaw,  MO,  7  FCC  Rcd  3015  (MMB  1992)  (  R&  O). 
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 precedent.  5 
 4.  Thereafter,  Twenty-  One  Sound  filed  two  petitions  for  reconsideration  and  one  application  for  review  in  this  proceeding.  6  The  staff  denied  Twenty-  One  Sounds  first  petition  for  reconsideration 


 and  rejected  its  argument  that  the  Commission  had  not  consistently  applied  Section  1.52  to  allotment  rulemakings.  7  The  staff  dismissed  a  second  petition  for  reconsideration  as  repetitious  under  Section 
 1.429(  i)  of  the  rules  to  the  extent  that  it  questioned  the  dismissal  of  the  counterproposal  for  lack  of  verification.  8 


 5.  Subsequently,  the  Commission  denied  Twenty-  One  Sounds  application  for  review.  9  Therein,  the  Commission  acknowledged  that,  while  Section  1.52  has  been  strictly  enforced  in  FM 
 allotment  proceedings  after  October  4,  1990,  the  effective  date  of  the  Abuse  of  Process  R&  O,  the  rule  had  been  applied  on  a  discretionary  basis  prior  to  that  date.  Since  Twenty-  One  Sounds  counterproposal  was 
 filed  prior  to  October  4,  1990,  the  Commission  reviewed  the  proposal  in  light  of  those  earlier  cases  and  rejected  Twenty-  One  Sounds  argument  that  the  staff  unfairly  applied  the  rule  to  Twenty-  One  Sounds 
 counterproposal  but  did  not  do  so  in  other  cases  where  the  counterproposals  were  filed  prior  to  October  4,  1990.  On  the  contrary,  the  Commission  found  that  it  had  exercised  this  discretion  prior  to  October  4, 
 1990,  only  in  cases  that  would  not  cause  prejudice  to  other  non-  defective  allotment  proposals.  Because  Twenty-  One  Sounds  counterproposal  was  unverified  and  would  prejudice  KRMS,  which  had  filed  a 
 timely  proposal  that  complied  with  our  technical  and  legal  requirements,  the  Commission  concluded  that  Twenty-  One  Sounds  proposal  was  properly  dismissed  by  the  staff. 


 PETITION  FOR  RECONSIDERATION 
 6.  Twenty-  One  Sound  again  argues  on  reconsideration  that  the  Commission  has  not  treated  similarly  situated  parties  in  the  same  manner  or  clearly  explained  the  reasons  for  the  differing  treatment  as 


 required  by  Melody  Music.,  Inc.  v.  FCC.  10  In  support  of  this  position,  Twenty-  One  Sound  reargues  that  it  should  be  treated  like  the  parties  in  Brooksville  or  Quitman,  MS,  11  in  which  two  unverified  rulemaking 
 proposals  filed  before  October  4,  1990,  were  accepted.  Since  the  stated  reason  in  that  case  was  an  apparent  lack  of  notice  to  the  petitioners  of  the  new  strict  enforcement  policy  for  Section  1.52,  Twenty-One 
 Sound  argues  that  its  counterproposal  should  be  likewise  accepted  without  regard  to  fairness  to  other  parties  because  fairness  was  not  a  stated  reason  in  the  Brooksville  and  Quitman  case.  Twenty-  One 
 Sound  also  contends  that  the  Commission  inadequately  distinguished  the  cases  of  Canton,  Illinois  12  and  Lake  City,  South  Carolina,  13  in  which  unverified  proposals  filed  before  October  4,  1990,  were  accepted 
 for  public  interest  reasons,  such  as  the  provision  of  a  first  local  service,  and  requests  that  it  be  accorded  similar  treatment  in  the  instant  proceeding. 


 5  See  7  FCC  Rcd  at  3015  n.  2,  citing  inter  alia,  Amendment  of  Sections  1.420  and  73.  3584  Concerning  Abuses  of  the 
 Commissions  Processes  (  Abuse  of  Process  R&  O),  5  FCC  Rcd  3910,  n.  41  (1990).  6 
 For  a  more  detailed  background  of  this  proceeding,  see  MO&  O  III,  17  FCC  Rcd  at  6119-  6120.  7 
 11  FCC  Rcd  6372  (MMB  1996)  (  MO&  O  I).  8 
 12  FCC  Rcd  4987  (MMB  1997)  (  MO&  O  II).  9 
 17  FCC  Rcd  at  6125.  10 
 345  F.  2d  730,  733  (D.  C.  Cir.  1965).  11 
 8  FCC  Rcd  3537  (MMB  1993).  12 
 3  FCC  Rcd  5824  (MMB  1988).  13 
 47  FCC  2d  1067  (1974). 
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 DISCUSSION 
 7.  A  petition  requesting  reconsideration  of  an  order  denying  an  application  for  review  may  be  allowed  only  if  the  petitioner  relies  on  new  facts  or  changed  circumstances.  14  Petitions  that  fail  to 


 satisfy  this  requirement  are  subject  to  dismissal.  The  rationale  for  this  limitation  is  that  [  o]  therwise,  the  Commission  would  be  forced  to  spend  its  limited  resources  reviewing  arguments  it  has  already  considered 
 and  rejected.  15  Twenty-  One  Sound  raised  the  issue  of  inequitable  treatment  in  its  application  for  review  in  MO&  O  III.  The  Commission  fully  considered  this  issue.  16  It  recognized  the  differences  in  approaches 
 that  had  been  taken  before  and  after  the  adoption  of  the  Abuse  of  Process  R&  O  and  distinguished  the  cases  relied  upon  by  Twenty-  One  Sound,  as  well  as  other  cases  not  mentioned  by  that  party.  17  Finally,  we 
 note  that  on  reconsideration  Twenty-  One  Sound  has  failed  to  cite  a  single  pre-  October  4,  1990  Commission-  level  case  in  which  a  non-  verified  proposal  was  accepted  and  granted  in  spite  of  prejudice  to 
 other  non-  defective  allotment  proposals.  18 
 8.  Accordingly,  IT  IS  ORDERED  That  pursuant  to  Section  1.429,  the  petition  for  reconsideration  filed  by  Twenty-  One  Sound  IS  DISMISSED. 


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


 FEDERAL  COMMUNICATIONS  COMMISSION 
 Marlene  H.  Dortch  Secretary 


 14  47  C.  F.  R.    1.115(  g)(  1)  and  (2). 
 15  Amendment  of  Sections  0.  251,  0.281,  0.  371,  1.  104,  1.106,  and  1.115  of  the  Commissions  Rules  of  Practices  and 
 Procedures,  46  R.  R.  2d  524,  526  (1979).  16 
 See  17  FCC  Rcd  at  6122-  23.  17 
 Id.  at  6123-  24.  18 
 Although  Twenty-  One  Sound  continues  to  rely  upon  Scottsboro,  AL,  4  FCC  Rcd  6473  (MMB  1989)  to  support  its  position,  MO&  O  III  acknowledged  that  a  non-  verified  proposal  had  been  granted  by  mistake  in  a  mutually  exclusive 


 context,  distinguished  that  case  from  the  instant  proceeding,  and  overruled  Scottsboro.  See  17  FCC  Rcd  at  6124  n.  18.  In  these  circumstances,  Twenty-  One  Sounds  reliance  on  Scottsboro  is  misplaced. 
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