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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. 90-66 Table of Allotments, ) RM-7139 FM Broadcast Stations. ) RM-7368 (Lincoln, Osage Beach, ) RM-7369 Steelville and Warsaw, ) Missouri) ) MEMORANDUM OPINION AND ORDER Adopted: April 23, 1997 Released: May 2, 1997 By the Chief, Policy and Rules Division: 1. The Commission has before it for consideration a Petition for Reconsideration filed by Twenty One Sound Communications, Inc. ("petitioner"), licensee of Station KNSX(FM), Steelville, Missouri, directed against the Memorandum Opinion and Order, ("MO&O"), 11 FCC Rcd 6372 (1996), in this proceeding. An opposition to the petition for reconsideration was filed by KRMS- KYLC, Inc. ("KYLC"), licensee of Station KYLC(FM), Osage Beach, Missouri. 2. Background. In response to a rulemaking petition filed by KRMS-KYLC, Inc., the Notice of Proposed Rule Making, ("NPRM"), 5 FCC Rcd 1119 (1990), in this proceeding proposed the substitution of Channel 228C3 for Channel 228A at Osage Beach, Missouri, and the modification of the license for Station KYLC(FM) accordingly. To accommodate this upgrade, the NPRM also proposed the substitution of Channel 253A for Channel 229A at Warsaw, Missouri. Thereafter, two parties -- Twenty One Sound and Dennis J. Klautzer -- filed counterproposals. Twenty One Sound counterproposed the substitution of Channel 227C1 for Channel 227C2 at Steelville, Missouri, and the modification of Twenty One Sound's construction permit for Station KNSX(FM), Steelville to specify Channel 227C1. To accommodate its proposed upgrade, Twenty One Sound also proposed the substitution of Channel 265A for Channel 228A at Osage Beach, Missouri, and the substitution of vacant Channel 283A for Channel 264A at Doolittle, Missouri. Klautzer counterproposed the allotment of Channel 253A to Lincoln, Missouri, as that community's first local service. 3. The Report and Order ("R&O"), 7 FCC Rcd 3015 (1992), in this proceeding granted KRMS-KYLC's rulemaking petition by upgrading its Station KYLC(FM) on Channel 228C3 at Osage Beach and by substituting Channel 253A for Channel 229A at Warsaw to accommodate the upgrade. The R&O also dismissed the counterproposals filed by Twenty One Sound and Klautzer for failure to include affidavits verifying that the statements contained in their respective counterproposals were accurate to the best of their knowledge as required by Section 1.52 of the Commission's Rules. 4. Twenty One Sound filed a petition for reconsideration, arguing that, as a Commission permittee, it should not be penalized for lack of verification of its counterproposal as required by Section 1.52 of the Commission's Rules. It also contended that the Commission has not consistently applied this rule in past proceedings. The MO&O rejected these arguments and affirmed the R&O. Specifically, the MO&O found that there are no exceptions in Section 1.52 that exclude Commission permittees or licensees from the verification requirement. The MO&O also disagreed that the Commission had not consistently applied 1.52 of the Commission's Rules to rulemakings in allotment proceedings. In addition to the lack of verification, the MO&O also noted that Twenty One Sound's counterproposal was also defective for failing to submit pertinent geographical and population data necessary to do a comparison between two mutually exclusive upgrades. 5. Petition for Reconsideration. Twenty One Sound ("petitioner") again questions the dismissal of its counterproposal for lack of verification and reiterates its argument that, as a Commission licensee, it should not be required to verify its counterproposal. In addition, petitioner argues that, although its original counterproposal and comments filed on April 17, 1990, did not contain the requisite geographical and population data, the information was included in its reply comments filed on May 18, 1990. As a result, the petitioner contends that Commission had the requisite information in the record to compare the competing upgrade proposals on the merits. 6. Opposition. KYLC argues that Twenty One Sound's petition is a second petition for reconsideration and should be dismissed as repetitious under Section 1.429(i) of the Commission's Rules. KYLC also argues that Twenty One Sound's earlier petition for reconsideration was correctly denied for the reasons set forth in the Commission's MO&O. 7. Discussion. After careful review of the pleadings filed in this proceeding, we agree, that, to the extent this second reconsideration petition seeks to question the dismissal of Twenty One Sound's counterproposal for lack of verification, it is a repetitious reconsideration petition which is not permitted under Section 1.429(i) of the Commission's Rules. This section provides in pertinent part: Any order disposing of a petition for reconsideration which modifies rules adopted by the original order is, to the extent of of such modification, subject to reconsideration in the same manner as the original order. Except in such circumstances, a second petition for reconsideration may be dismissed by the staff as repetitious. Inasmuch as the MO&O affirmed the R&O's dismissal of petitioner's couterproposal for lack of verification and did not modify this result in any way, further reconsideration on the verification issue is clearly not warranted. See, e.g., Third Order on Reconsideration, Calling Card Validation Practices of Local Exchange Carriers, 2 Communications Regulation 331, 336 para. 10 (1996); Seealso VHF Drop-Ins, 3 R.R. 2d 1549 (1964). However, we acknowledge that the MO&O further noted that Twenty One Sound's counterproposal did not contain certain pertinent geographical and population data necessary to compare the mutually exclusive upgrade proposals in this case. While the petitioner contends that this information could have been considered because it was subsequently filed on May 22, 1990, there was no need to compare the proposals substantively because of the verification defect. 8. Accordingly, IT IS ORDERED, That the Petition for Reconsideration filed by Twenty One Sound Communications, Inc. IS DISMISSED in part as repetitious and IS DENIED in all other respects. 9. IT IS FURTHER ORDERED, THAT this proceeding IS TERMINATED. 10. For further information concerning this proceeding, contact Arthur D. Scrutchins, Mass Media Bureau, (202) 418-2180. FEDERAL COMMUNICATIONS COMMISSION Douglas W. Webbink Chief, Policy and Rules Division Mass Media Bureau