$// MO&O, KTSR(FM), College Station, TX, FCC 94-332 //$ $/ 1.115 Application for review of action taken pursuant to delagat /$ $/ 1.420 Additional procedures in proceedings for amendment of the /$ $FCC 94-332 1/12/95///$ ///newjob/// BEFORE THE FEDERAL C0MMUNICATIONS COMMISSION FCC 94-332 WASHINGTON, D.C. 20554 In the Matter of Application of ) ) Hicks Broadcasting Corporation ) To Make Changes in Authorized ) File No. BPH-900706IB Facilities of KTSR(FM), ) College Station, Texas ) MEMORANDUM OPINION AND ORDER Adopted: December 22, 1994 Released:January 17, 1995 By the Commission: 1. The Commission has under consideration an Application for Review filed on November 21, 1991 by Roy E. Henderson ("Henderson"). Henderson requests review of an action by the Chief, Audio Services Division by letter dated October 22, 1991. That decision denied Henderson's Petition for Reconsideration of the Commission's grant of the above-captioned application to Hicks Broadcasting Corp. ("Hicks"). 2. The circumstances surrounding Henderson's Application for Review arise from the Commission's rule making proceeding in Report and Order in MM Docket 88-48, 5 FCC Rcd 2660 (MMB 1990) ("Docket 88-48"). In Docket 88-48 the Mass Media Bureau, inter alia, granted Hicks' proposal to substitute Channel 297C3 for Channel 221A at College Station, Texas, and to modify Hicks' license for KTSR(FM) to specify Channel 297C3. Henderson had filed reply comments and a Petition for Rule Making in Docket 88- 48, proposing an upgrade of Channel 236C2 for Channel 236A at Caldwell, Texas. However, the Bureau declined to consider his proposal. On May 24, 1990, Henderson filed an Application for Review of the Bureau's decision. On April 3, 1991, the Commission denied Henderson's Application for Review, holding that the Bureau properly disregarded Henderson's filing because his proposal was not in compliance with the minimum spacing requirements and because, since "Henderson was not a permittee when he purportedly filed his petition for rule making . . . he was ineligible to request an upgrade pursuant to Section 1.420(g)(3) of the Rules." Memorandum Opinion and Order in MM Docket 88-48, 6 FCC Rcd 2050 (1991)("Memorandum Opinion and Order I"). On May 17, 1991, Henderson filed a Petition for Reconsideration of Memorandum Opinion and Order I. On June 14, 1993, the Commission denied Henderson's Petition for Reconsideration. Memorandum Opinion and Order, 8 FCC Rcd 4281 (1993). ("Memorandum Opinion and Order II"). There have been no further appeals of that matter. 3. On July 6, 1990, Hicks filed a construction permit application to implement the changes authorized in Docket 88-48. The staff granted that application on November 20, 1990. On December 28, 1990, Henderson filed a Petition for Reconsideration of that grant, noting that his Application for Review of the Commission's determination in Docket 88-48 was pending. Henderson requested that the Commission vacate the grant of the construction permit until "such time as the Commission's Report and Order in Docket 88-48 granting the essential authority and basis for that construction permit becomes final." By letter dated October 22, 1991 the Chief, Audio Services Division (Ref. 8920-CWH) denied Henderson's December 28, 1990 Petition for Reconsideration because the Commission had, by that time, denied Henderson's Application for Review concerning Docket 88-48 in Memorandum Opinion and Order I. 4. The instant Application for Review of the October 22, 1991 letter was filed on November 21, 1991. The Application for Review argues that, because Henderson had on May 17, 1991 filed a Petition for Reconsideration of Memorandum Opinion and Order I in Docket 88-48, the October 22, 1991 letter was improper. Henderson argues that the Petition for Reconsideration filed May 17, 1991 should have been disposed of first. 5. The relief that Henderson sought in his December 28, 1990 Petition for Reconsideration was, as noted, that action on the subject construction permit application be stayed until the Commission's action in Docket 88-48 is final. The Commission's Memorandum Opinion and Order II denied Henderson's Petition for Reconsideration in Docket 88-48 and terminated that proceeding. No judicial appeal of that decision has been filed. Thus, even assuming that grant of Hicks' construction permit prior to finality in Docket 88-48 was premature, the instant Application for Review is now moot to the extent that it rests on that argument. The Application for Review also argues that the October 22, 1991 letter from the Chief, Audio Services Division failed to note that on May 6, 1991, Hicks filed a counterproposal in MM Docket 91-58 wherein Hicks proposed to substitute Channel 236C2 for Channel 297C3 at College Station, Texas. Henderson asserts that Hicks' proposal to seek a further upgrade in Docket 91-58 demonstrates that Hicks was disingenuous in seeking Channel 297C3 in Docket 88-48. This argument is without merit. Hicks' effort to seek a further upgrade in Docket 91-58 does not provide any evidence of improper behavior or in any way negate the validity of the Commission's earlier authorization in Docket 88- 48. Thus we reject Henderson's contention that we should withhold action here until resolution of MM Docket 91-58. 6. ACCORDINGLY, IT IS ORDERED, That, pursuant to Section 1.115(g) of the Commission's Rules, the "Application for Review" filed on November 21, 1991 by Roy E. Henderson IS DENIED. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary