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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Amendment of Section 73.202(b), MM Docket No. 95-135) Table of Allotments, ) RM-8681 FM Broadcast Stations. ) (Bear Lake and Honor, ) Michigan) ) MEMORANDUM OPINION AND ORDER Adopted: April 16, 1997 Released: April 25, 1997 By the Chief, Policy and Rules Division: 1. The Commission has before it for consideration a Petition for Reconsideration ("reconsideration") filed by Roger L. Hoppe, II ("Hoppe") of the Report and Order ("R&O"), 11 FCC Rcd 5301 (1996), in the above-captioned docket. The R&O denied consideration of the counterproposal filed by Hoppe. Xavier University ("Xavier") filed an opposition and a motion for late acceptance. Hoppe filed a response to the motion. 2. Jacqueline F. Bourgard ("Bourgard") requested the allotment of Channel 264A at Honor, Michigan, as that community's first local service. A Notice of Proposed Rule Making ("Notice") was issued requesting that comments on the proposal be filed on or before October 19, 1995 and reply comments on or before November 3, 1995. Bourgard filed supporting comments. Hoppe filed a one-step application with the Commission and requested that the application also be accepted as a counterproposal in this proceeding. Hoppe requested the substitution of Channel 264C2 for Channel 261A at Bear Lake, Michigan. The one-step application was given the incorrect file number of 951020ID which indicated that it was received on October 20, 1995, one day after the time for filing counterproposals in this proceeding, and was therefore, not accepted for consideration in this proceeding. 3. Hoppe now seeks reconsideration of the R&O on the grounds that the Commission failed to consider his counterproposal as being timely filed and ignored his argument that there is no usable site for Channel 264A at Honor, Michigan. Hoppe contends that the site specified in the rule making proceeding is in the Pere Marquette State Forest and is close to a new airport, making it unavailable. Hoppe requests that the action taken in the Report and Order be reconsidered and reversed, with proper consideration being given to his timely filed application and the proponent's failure to specify a usable transmitter site. 4. We agree that the R&O did not accept Hoppe's counterproposal as being timely filed. Commission records reflected a file date of October 20, 1995, rather than October 18, 1995, for the application at the time final action was taken in MM Docket 95-135. We have reviewed this argument and believe that the counterproposal should have been accepted as timely filed. 5. Although we did not accept Hoppe's counterproposal, we acknowledged the short spacing between Channel 264A at Honor, Michigan, and Channel 264C2 at Bear Lake, Michigan. The R&O recognized that had the application been timely filed as a counterproposal, the conflicting proposals would have been comparatively considered under the guidelines set forth in Revision of FM Assignments and Procedures, 90 FCC 2d 88 (1982). The R&O further stated that the allotment at Honor constituted a first local service under priority (3) while the upgrade at Bear Lake fell under priority (4), Other public interest matters and that it is Commission policy that a modification of a license to upgrade facilities to a superior channel does not provide as great a public service benefit as that of a new primary service. See Andalusia, Alabama, 49 Fed. Reg. 32201, published August 13, 1984, and Queensbury, New York, 5 FCC Rcd 3243 (1990). 6. We continue to believe the that R&O correctly concluded that Channel 264A should be allotted to Honor, Michigan, as a first local service. Hoppe has failed to provide any conclusive evidence that no sites exist for Channel 264A at Honor. In that respect, we note that two applications have been filed for Channel 264A at Honor. As stated above, the R&O addressed Hoppe's counterproposal even though it had not been accepted. The allotment at Honor provides a first local service under priority (3) while the upgrade at Bear Lake is examined under priority (4) Other public interest matters. No information has been provided by Hoppe showing that expanded service at Bear Lake will better serve the public interest than a first local service at Honor. 7. In view of the above, IT IS ORDERED, That the petition for reconsideration filed by Roger L. Hoppe, II IS DENIED. 8. IT IS FURTHER ORDERED, That this proceeding IS TERMINATED. 9. For further information concerning this proceeding, contact Kathleen Scheuerle, Mass Media Bureau, (202) 418-2180. FEDERAL COMMUNICATIONS COMMISSION Douglas W. Webbink Chief, Policy and Rules Division Mass Media Bureau