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                            Before the
                Federal Communications Commission
                      Washington, D.C. 20554
     
     In the Matter of
     
Amendment of Section 73.202(b),   
 Table of Allotments             )MM Docket No. 95-126  
 FM Broadcast Stations.          )RM-8671
(Denison-Sherman, Paris, Jacksboro,)
Texas, and Madill, Oklahoma)    )
                                )
                                )
                                )
                                )


                  MEMORANDUM OPINION AND ORDER


            Adopted:  July 9, 1997 Released:  July 18, 1997 

By the Chief, Policy and Rules Division:

          1.  The Commission has before it for consideration a Petition for Reconsideration filed by
CarePhil Communications ("CarePhil"), licensee of Station KBUS(FM), Channel 270C2, Paris,
Texas, of the Report and Order ("R&O"), 11 FCC Rcd 5316 (1995), in this proceeding. Hunt
Broadcasting, Inc. ("Hunt"), licensee of Station KDVE(FM), Channel 269C3, Denison-Sherman,
Texas, and  permittee of Station KAIH(FM), Jacksboro, Texas filed an opposition.  Reply comments
were filed by CarePhil.  

     2.   Background.  The Notice of Proposed Rule Making and Order to Show Cause
("NPRM/OSC"), 10 FCC Rcd 8303 (1995), was issued in response to a petition filed by Hunt
requesting the substitution of Channel 269C1 for Channel 269C3 at Denison-Sherman, Texas, and
modification of Station KDVE(FM)'s license to specify the higher powered channel.  In order to
accommodate this proposal, Hunt also requested the substitution of Channel 282C2 for Channel
270C2 at Paris, TX, Channel 273A for Channel 272A at Madill, OK, and Channel 252A for Channel
269A, as well as a change of site, for Station KAIH(FM) at Jacksboro, TX.  Although the
NPRM/OSC was sent to the licensees of Station KBUS(FM) at Paris, TX and to Station
KMAD(FM) at Madill, Oklahoma, respectively, neither licensee responded. Consequently, pursuant
to Section 1.87 of the Commission's Rules, the licensees were deemed to have consented, and the
R&O granted the upgrade at Denison-Sherman and substituted channels at Jacksboro, Paris, and
Madill as proposed in the NPRM/OSC.  

     3.  Petition for Reconsideration.   CarePhil argues that it was not provided with proper notice of
the proposed change in channel for KBUS(FM), and that failure impinged upon its rights in this
proceeding.  CarePhil argues that since it did not receive proper notice as required by Section 1.87
of the Commission's Rules, it cannot be deemed to have consented to the change.  Notwithstanding
the above, CarePhil states that once it learned of  Hunt's proposal, it began in September 1995, to
negotiate the terms of the reimbursement which thus far remains unresolved.  CarePhil contends that
while it is willing to consent to the change, it is not willing, nor is it required to make a change at
its own expense.  CarePhil states that Hunt has failed to follow through on its commitment to
reimburse CarePhil for its reasonable expenses.  CarePhil concludes that until negotiations are
finished and an agreement for reimbursement is signed,  the R&O should not become final.           
           

     4.   Opposition.  Hunt contends that CarePhil's petition should be rendered moot and dismissed
since it has filed an application for Channel 269C1 which meets the spacing requirements to
KBUS(FM) on Channel 270C2, which will not require KBUS(FM) to change its channel.  Hunt also
requests that we amend the Table of Allotments for Paris, Texas, to specify Channel 270C2 instead
of Channel 282C2.  Hunt contends that, due to the filing of the petition for reconsideration, the
instant proceeding remains active and changes for any of the communities can still be made without
the issue of an Order to Show Cause.

     5.  In reply comments, CarePhil opposes the dismissal of its petition for reconsideration. 
CarePhil states that it generally supports Hunt's proposal to return its channel to status quo; 
however, it disagrees that its petition is moot merely due to the filing of Hunt's opposition and
application.  CarePhil argues that until the Commission acts to change the allotment for KBUS(FM)
back to Channel 270C2, an order still remains outstanding requiring it to change to Channel 282C2.


      6.  Discussion.  As a preliminary matter we agree that the NPRM/OSC was sent to the former
licensee.  Our records indicate that there is no return receipt from the existing licensee.  However,
we believe that the Commission's failure to serve a copy of the NPRM/OSC on CarePhil at best
constitutes harmless error.  Although CarePhil did not receive a certified copy of the NPRM/OSC,
CarePhil admits that it did have actual notice of the proposed channel change and, based on that
knowledge, in September 1995 entered into negotiations with Hunt to reach an agreement as to the
amount to be reimbursed.  CarePhil further acknowledged its willingness to consent to the change
but not at its own expense.  Furthermore, we believe that the Commission's failure to serve a copy
of the NPRM/OSC did not impinge upon any of CarePhil's rights because the objections previously
raised are being addressed in this proceeding.  

     7.  Secondly, we disagree that CarePhil's petition for reconsideration is rendered moot in light of
the application filed by Hunt for Channel 269C1.   Hunt's original rulemaking proposal required
three stations to change channels at Jacksboro and Paris, Texas, and Madill, Oklahoma, to
accommodate the upgrade at Denison-Sherman and that Hunt reimburse the affected stations for
their expenses.  After negotiations with the Paris station failed to produce a reimbursement
agreement, Hunt filed an application that is inconsistent with the rulemaking petition that was
granted by the R&O.  While the application still requires the Jacksboro and Madill stations to change
channels, it no longer requires the Paris station to change channels.  In addition, the application
creates a new short spacing of 4.2 kilometers to a Lawton, Oklahoma, station  which was not
included in the original rulemaking petition.  Although this short-spacing can be remedied at the
application stage by the use of a directional antenna or contour protection under Section 73.215 of
the Commission's Rules, these remedies are not available in a rulemaking proceeding.  See Chester
and Wedgefield, South Carolina, 4 FCC Rcd 4503 (Policy and Rules Div. 1989), aff'd mem., No.
90-1496, slip op. (D.C. Cir. June 6, 1991).  Consequently, if Hunt had specified its application site
in its rulemaking petition, then the Lawton station, rather than the Paris station, would have been
required to change channels and Hunt would have been required to reimburse the affected station
for  its reasonable costs associated with the channel change.  

     8.   Since Hunt had requested channel changes at Paris, Jacksboro, and Madill to
accommodate its upgrade at Denison-Sherman and pledged to reimburse the stations, both Hunt and
the stations are required under our guidelines set forth in Circleville, Ohio, 8 FCC 2d 159 (1967) to
negotiate in good faith to reach an agreement on the amount of reimbursable expenses. As we have
stated before, "Our experience indicates that parties generally enter into good faith negotiations and
resolve the amount of reimbursement well before a station actually changes channel."  Churchville
and Larry, VA, 6 FCC Rcd 1313 (1991).  In the event that the parties are unable to reach an
agreement, Commission review may be sought. See, e.g., Mayfield and Wickliff, KY, 48 RR 2d
1232 (1981).   In the instant proceeding, Hunt has stated its willingness to fully comply with the
reimbursement requirements.  Although the parties have not been able to reach agreement on the
amount of reimbursable expenses, there is no evidence that Hunt is unwilling nor unable to pay.  On
the other hand,  CarePhil has specifically stated that it is willing to consent to the change in channel
provided the parties can work out the reimbursement terms.  We continue to believe that these
matters are best left to resolution by good faith negotiations by Commission licensees.

     9.  In view of the above, IT IS ORDERED, That the Petition for Reconsideration filed by
CarePhil Broadcasting, IS DENIED.

      10.  IT IS FURTHER ORDERED, That this proceeding IS TERMINATED.

     11.  For further information concerning this proceeding, contact Arthur D. Scrutchins, Mass
Media Bureau, (202) 418-2180.

     FEDERAL  COMMUNICATIONS COMMISSION


     Douglas W. Webbink
     Policy and Rules Division
     Mass Media Bureau