WPC6 2BJ Z Courier#|x px6X@KX@HP LaserJet 4 PostScript_230_1HPLA4POS.PRSx  @UQhhhhWpT@26FZN#|xCourierHP LaserJet 4MP (PCL)HPLA4MPC.PRSx  @UQ\+Dd@2XFZ4T?xxxpx6X@KX@TR&HHH0H6X@Kh@'''=@``6nN@ Courier New 3'3'Standard3'3'StandardHPLA4POS.PRSx   Ђ  $//MO&O, FM B/C STAS. (Perry, Cross City, Holiday, Avon Park, Sarasota and Live Oak, FL; Thomasville, GA) DA 96478 //$ $/73.202, FM Table of Allotments/$ ///new job/// [Before the 0 FEDERAL COMMUNICATIONS COMMISSION %Washington, D.C. 20554 In the Matter of ) ) Amendment of Section 73.202(b), ) MM Docket No. 87455 Table of Allotments, ) RM5899 FM Broadcast Stations. ) RM6223 (Perry, Cross City, Holiday, Avon ) RM6224 Park, Sarasota and Live Oak, ) RM6225 Florida; Thomasville, Georgia) ) RM6226  ?4\  MEMORANDUM OPINION AND ORDERă  (Proceeding Terminated)  ?4Adopted: March 29, 1996 hhCqReleased: March 29, 1996 By the Chief, Policy and Rules Division: 1. The Commission has before it the Application for Review filed by Sarasota FM, Inc.("Sarasota FM"), licensee of Station  ?4WSRZ, Channel 292A, Sarasota, Florida, directed to the Memorandum  ?X4Opinion and Order in this proceeding, 7 FCC Rcd 2557 (1992).iXK ?4ԂIn this proceeding we have also issued an Order to Show  ?x4Cause, 7 FCC Rcd 2642 (1992), directed against Sarasota FM, Inc. looking toward a Channel 293A substitution at Sarasota, Florida, in order to accommodate a Channel 292C2 upgrade for Station WLVU, Channel 292A, Holiday, Florida. In view of our separate final actions in MM Docket 92195 upgrading Station WLVU to specify operation on Channel 246C2 and Station WSRZ to specify operation  ?(#4on Channel 293C2, the Order to Show Cause is now moot and need not be considered. i Highlands Media Company, Inc. ("Highlands"), licensee of Station WWOJ, Channel 292A, Avon Park, Florida, filed a Petition to Accept Comments and also filed Comments in this proceeding. "@0*((""Ԍ } M For the reasons discussed below, we dismiss the Sarasota FM Application for Review, and deny the Highlands Petition to Accept Comments.  ?<,Backgroundă 2. In this proceeding, Sarasota FM sought to substitute Channel 293C2 for Channel 292A at Sarasota, and modify its Station WSRZ license to specify operation on Channel 293C2. The  ?<Report and Order in this proceeding, 4 FCC Rcd 5599 (1989), dismissed Sarasota FM's proposed Class C2 upgrade as an untimely counterproposal in contravention of Section 1.420(d) of the  ?( <Commission's Rules. The Memorandum Opinion and Order denied the Sarasota FM Petition for Reconsideration directed against that action. 3. In a separate action in MM Docket No. 92195, we upgraded Station WSRZ to specify operation on Channel 293C2, 8  ?<FCC Rcd 2197 (1993), recon denied 8 FCC Rcd 8515(1993). On March 21, 1996, we dismissed an Application for Review filed by Dickerson Broadcasting, Inc. directed to that proceeding. In view of that action terminating MM Docket No. 92195 and finalizing the Station WSRZ upgrade, the Sarasota FM Application  ?<for Review directed to the Memorandum Opinion and Order in this proceeding dismissing its counterproposal for a Class C2 upgrade is now moot and will be dismissed.  ?< Avon Park, Floridaă 4. On April 19, 1993, Highlands filed a Petition to Accept Comments and Comments. In these pleadings, Highlands notes that in this proceeding, we had originally proposed a Channel 292C2 upgrade for Station WLVU at Holiday, Florida, which required the substitution of Channel 256A for Channel 292A at Avon Park, and modification of its Station WWOJ license accordingly. However,  ? <the Report and Order in MM Docket No. 92195, supra, upgraded Station WLVU to specify operation on Channel 246C2 which obviated the need for a channel substitution at Avon Park. 5. In its Petition to Accept Comments, Highlands argues that it "could not have foreseen" that in MM Docket No. 92195, we would upgrade Station WLVU in Holiday on an alternate channel. Therefore, Highlands now requests that it be permitted to set forth the independent public interest benefits of the uncontested channel substitution in Avon Park which would allow Station WWOJ to operate at six kilowatts. In view of the public interest benefits of a sixkilowatt operation in rural Florida, Highlands contends that we should substitute Channel 256A for Channel 292A at Avon Park in this proceeding irrespective of the fact that the substitution is no longer necessary to accommodate the upgrade at Holiday."'0*((/"Ԍ 6. After careful consideration of this matter, we believe that there is no justification to accept the untimely Comments. Highlands did not file timely comments in either this proceeding or in MM Docket No. 92195 addressing the independent public interest benefits of a channel substitution at Avon Park. In both proceedings, Highlands had adequate notice and the opportunity to submit such comments. In regard to the arguments advanced in support of the Petition to Accept Comments, we note  ?@<that the Notice of Proposed Rule Making in MM Docket No. 92195, 7 FCC Rcd 5910 (1992), specifically advised interested parties that "the filing of a counterproposal may lead the Commission to allot a different channel than was requested for any of the  ?` <communities involved." A synopsis of the Notice was published in the Federal Register on September 15, 1992, thereby affording all interested parties notice of the proposed upgrade in Beverly  ? <Hills, Florida. In response to the Notice, Sarasota FM, Inc. and Gator Broadcasting Corporation filed a counterproposal proposing an alternate upgrade for Beverly Hills in order to accommodate three other upgrades, including a Channel 246C2 upgrade for Station WLVU in Holiday. Public Notice of this counterproposal was given on November 20, 1992 (Report No. 1918). The fact that  ?h<the Report and Order allotted an alternate channel to Beverly Hills and a Channel 246C2 upgrade for Holiday, which obviated the need for a channel substitution at Avon Park, was merely doing that which we announced that we could do. For this reason, this procedure meets the "logical outgrowth" test applied to determine whether a rule making action is based on adequate notice and opportunity for Highlands to participate in MM Docket No. 92195.  ?<See Weyerhaeuser Company v. Costle, 590 F.2d 1011, 1031 (D.C.  ?<Cir. 1978); Owensboro on the Air v. United States, 262 F.2d 702 (D.C. Cir. 1958). As such, there is no basis to conclude that Highlands could not have "foreseen" the possibility of allotting  ?<Channel 246C2 to Holiday. ?X< x;<ԍWe also note that Highlands has filed a counterproposal in MM  x<Docket No. 89455 for a Channel 256C3 upgrade for Station WWOJ.  x<The site proposed for this upgrade would meet the minimum  x<separation requirements for a Channel 256A allotment. At this  x<juncture, we believe that it would be most conducive to the  x <efficient transaction of Commission business to consider the  x <comparative public interest benefits of both a Channel 256C3  xh<upgrade and a Channel 256A channel substitution for Station WWOJ in MM Docket No. 89455.  7. Accordingly, IT IS ORDERED, That the aforementioned Application for Review filed by Sarasota FM, Inc. IS HEREBY DISMISSED. 8. IT IS FURTHER ORDERED, That the aforementioned Petition to Accept Comments filed by Highlands Media Company, Inc. IS DENIED. "@0*((%"Ԍ 9. IT IS FURTHER ORDERED, That this proceeding IS TERMINATED. 10. For further information concerning this proceeding contact Robert Hayne, Mass Media Bureau, (202) 7761654. FEDERAL COMMUNICATIONS COMMISSION Douglas W. Webbink Chief, Policy and Rules Division Mass Media Bureau