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(Cushing and Cleveland, TX), DA 9593 //$ $/ 73.202 FM Table of Allotments /$ /// newjob /// $///DA 9593,1/23/95///$ DA 9593 7a  Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of ) ) Amendment of Section 73.202(b), ) MM Docket No. 91172 Table of Allotments, ) RM7726 FM Broadcast Stations. ) RM7800 (Cushing and Cleveland, ) RM7801  s4 - Texas)a 2 s4-ԍThe community of Cleveland has been added to the caption.a  s4- REPORT AND ORDER (Proceeding Terminated) Adopted: January 19, 1995 ; Released: 7a   7a January 31, 1995 By the Chief, Allocations Branch: x1. At the request of Cavalier Broadcasting ("petitioner"), the  s4-Commission has before it the Notice of Proposed Rule Making, 6 FCC Rcd 3630 (1991), proposing the allotment of Channel 245A to Cushing, Texas, as the community's first local FM service.  s4#-x2. In response to the Notice, Texas Classical Radio, Inc. ("Texas Classical"), permittee of Station KRTK(FM), Cleveland, Texas, and petitioner  s4q-filed counterproposals.q72 s4- x-ԍPublic Notice was given of these counterproposals on September 11, 1991,  x9!-Report No. 1860 (RM7797 and RM7798), as corrected by Public Notice of September 17, 1991, Report No. 1860 (RM7800 and RM7801).  Roy E. Henderson, Richard E. Foster, petitioner and Texas Classical filed responsive comments to the counterproposals. Petitioner and Texas Classical filed reply comments. Texas Classical filed further  s4f-comments.f2 s4!- x !-ԍTexas Classical filed a motion to accept the further comments, as they were  xg -untimely filed. We need not discuss these comments, in light of the outcome of this proceeding. After the close of the comment period, petitioner filed comments withdrawing it expressions of interest in both its original proposal and  s4-counterproposal.L2 s4%- x !-ԍ Petitioner withdrew its petition for rule making supporting the allotment  x-of Channel 245A, as well as its counterproposal requesting the allotment of  x-Channel 245C3, at Cushing. No other party expressed an intention to apply for  x-either channel. Therefore, the comments and responses relating to the Cushing  xM-allotments will not be discussed and the proposals will be dismissed.  xZ-Petitioner's request for dismissal of its proposals are in accordance with")0*0*0*)"  x-Section 1.420(j) of the Commission's Rules. We hereby grant the withdrawal  x-request and all pleadings relating to the petitioner's proposals are now moot. L After the close of the comment period, Texas Classical"0*0*0*$" filed a request for partial withdrawal of its documents and Roy E. Henderson"X0*0*0*!"  s4-filed a motion to withdraw its comments.82 s47- x-ԍ Texas Classical requested withdrawal of its comments and reply comments  x-to the extent that language in the pleadings contains factual or legal  xg -allegations of misconduct against the sole proprietor of Cavalier Broadcasting.  x,-Henderson and Texas Classical's motions to withdraw were filed pursuant to a  x-settlement agreement. Affidavits were filed by David W. Nichols, a corporate  x9!-officer of Texas Classical and Roy E. Henderson stating that no consideration was  x-received in exchange for their withdrawals pursuant to Section 1.420 of the Commission's Rules.  x3. In its counterproposal, Texas Classical requests the substitution of Channel 246C for Channel 246C1 at Cleveland, Texas, as the community's second  r5-aural transmission service.p C r5 - x-ԍ We note that this counterproposal was mutually exclusive with one  x-portion of a counterproposal filed by Fayette Broadcasting (RM7264) in MM  xg -Docket No. 89459, requesting the substitution of Channel 247A for Channel 222A  xZ-at New Ulm, Texas. However, the New Ulm portion of Fayette Broadcasting's  x9!-counterproposal was unaccepted for consideration when filed, and comment was not  r5- x-sought on the New Ulm channel substitution. See Public Notice dated February  x{-6, 1990 (Report No. 1807). The remainder of Fayette Broadcasting's  r5d- x-counterproposal was ultimately rejected by the Commission. See Report and  r5 -Order (MM Docket No. 89459), 8 FCC Rcd 1557 (1993).  xg -In addition, Classical's counterproposal to substitute Channel 246C for Channel  x-246C1 at Cleveland was also mutually exclusive with a portion of a  x -counterproposal filed in MM Docket 9090 by Fort Bend Broadcasting Company, Inc.  x-proposing to substitute Channel 247A for Channel 222A at New Ulm, Texas.  x-However, that counterproposal was withdrawn, thereby eliminating the conflict.  d  @Ys  Texas Classical submits that, as a Class C facility, KRTKFM's proposed l.0 mV/m contour would provide service to a larger population. x4. We believe the public interest would be served by the substitution of Channel 246C for Channel 246C1 at Cleveland, Texas, since it could provide the community with an additional wide coverage area FM service. In light of petitioner's withdrawal, we need not compare the benefits of a new allotment at Cushing against the benefits of improved service at Cleveland. Channel 246C can be allotted to Cleveland in compliance with the Commission's minimum distance separation requirements and can be used at the transmitter site  r5 -specified in Station KRTKFM's construction permit.N C r58- x: -ԍThe coordinates for Channel 246C at Cleveland are North Latitude 303206 and West Longitude 950105. As proposed, we will also modify Station KRTKFM's authorization to specify operation on Channel 246C in accordance with the provisions of Section 1.420(g) of the Commission's Rules. x5. Accordingly, pursuant to the authority contained in Sections 4(i), 5(c)(1), 303(g) and (r) and 307(b) of the Communications Act of 1934, as amended, and Sections 0.61, 0.204(b) and 0.283 of the Commission's Rules, IT IS ORDERED, That effective , 1995, the FM Table of Allotments, Section 73.202(b) of the Commission's Rules, IS AMENDED, with respect to the community listed below, to read as follows:  r5-x` ` City Channel No. Cleveland, Texas 246C  6. IT IS FURTHER ORDERED, pursuant to Section 316(a) of the Communications Act of 1934, as amended, that the construction permit of Texas"0*0*0*@" Classical Radio, Inc., for Station KRTKFM, Cleveland, Texas, IS MODIFIED to specify operation on Channel 246C, in lieu of Channel 246C1, subject to the following conditions:  r5-(a) Within 90 days of the effective date of this Order, the permittee shall submit to the Commission a minor change application for a construction permit (Form 301). (b) Upon grant of the construction permit, program tests may be conducted in accordance with Section 73.1620.  r5--(c) Nothing contained herein shall be construed to authorize a change (#(# in transmitter location or to avoid the 3H]ppnecessity of filing an environmental assessment pursuant to Section 1.1307 of the Commission's  3H]   3H] Rules. 7. Pursuant to Commission Rule Section 1.1104(1(k) and (2)(k), any party seeking a change of community of license of an FM or television allotment or an upgrade of an existing FM allotment, if the request is granted, must submit a rule making fee when filing its application to implement the change in community of license and /or upgrade. As a result of this proceeding, Texas Classical Radio, Inc., permittee of Station KRTKFM, is required to submit a rule making fee in addition to the fee required for the applications to effect the change in community of license and/or upgrade. 8. IT IS FURTHER ORDERED, That the petition for rule making of Cavalier Broadcasting, seeking the allotment of Channel 245A to Cushing, Texas, (RM7726), IS DISMISSED. 9. IT IS FURTHER ORDERED, That the counterproposal filed by Cavalier Broadcasting, seeking the allotment of Channel 245C3 to Cushing, Texas, (RM7800), IS DISMISSED. 10. IT IS FURTHER ORDERED, That this proceeding is TERMINATED. 11. For further information concerning this proceeding, contact Pam Blumenthal, Mass Media Bureau, (202) 4182173.  3H]   3H] FEDERAL COMMUNICATIONS COMMISSION  r5 -  John A. Karousos  r5- ` ` x Chief, Allocations Branch  r5[-  ` ` xPXX( xP Policy and Rules Division  r5- xP Mass Media Bureau