Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Amendment of Section 73.202(b), ) MM Docket No. 90-176 Table of Allotments, ) RM-7053 FM Broadcast Stations. ) RM-8040 (Arnold and Columbia, California)) MEMORANDUM OPINION AND ORDER (Proceeding Terminated) Adopted: September 30, 1998 Released: October 2, 1998 By the Chief, Policy and Rules Division: 1. The Commission has before it a petition for partial reconsideration of the Memorandum Opinion and Order in the above-docketed proceeding, 7 FCC Rcd 6302 (1992) ("MO&O"), allotting new FM channels at Arnold and Columbia, California. The petition was filed by Clarke Broadcasting Corporation ("Clarke"). An opposition was filed by Clear Mountain Air Broadcasting Company ("Clear"), licensee of Station KKBN-FM, Twain Harte, California, and an applicant for the Arnold allotment. Clarke filed a reply. We will deny the petition for partial reconsideration. 2. Background. This proceeding originated with a rulemaking petition (RM-7053) filed by Eric R. Hilding ("Hilding"), seeking the allotment of Channel 255A to Columbia, California, as that community's first local aural service. In response to the petition, the Commission issued a Notice of Proposed Rulemaking, 5 FCC Rcd 2003 (1990) ("NPRM"), proposing the requested allotment and soliciting comment on whether Columbia was a community for allotment purposes. Thereafter, H-Group, Inc., predecessor in interest to Clarke, filed a timely counterproposal (RM- 8040), seeking a mutually exclusive allotment of Channel 256A at Arnold as that community's first local aural service. 3. The Report and Order, 6 FCC Rcd 3292 (1991) ("R&O"), denied Hilding's rulemaking petition and did not allot an FM channel to Columbia because the information provided by Hilding was deemed insufficient to show that Columbia was a community for allotment purposes. Likewise, the R&O dismissed H-Group's counterproposal and did not allot an FM channel to Arnold because the counterproposal was not acceptable for consideration. Specifically, H-Group had not submitted a technical study demonstrating that Channel 256A at Arnold complied with the Commission's minimum distance separation requirements. 4. Both Hilding and Clarke filed petitions for reconsideration of the R&O, arguing that their allotment requests should have been granted. The Commission staff agreed in its MO&O and found that it was unnecessary to consider comparatively these mutually exclusive proposals because an alternative channel was available for allotment at Arnold. As a result, the MO&O allotted Channel 255A to Columbia, as originally requested by Hilding, and Channel 240A to Arnold, in lieu of Channel 256A that had been counterproposed by Clarke. 5. With respect to Hilding's reconsideration petition, the Commission staff disregarded two procedural deficiencies: failures to verify the reconsideration petition and to serve the petition on Clarke. Even though these defects were not cured by Hilding, the staff concluded that it would be inappropriate to deny the community of Columbia its first aural service when acceptance of the defective pleading would not prejudice any party in the proceeding. Indeed, Clarke had responded to Hilding's petition even though Clarke had not been served with the petition. As to the substance of Hilding's petition, the staff agreed with Hilding that Columbia should have been found to constitute a community for allotment purposes because of its subsequent inclusion in the 1990 U.S. Census and the objective indicia of community status previously submitted. 6. Similarly, the MO&O concluded that Clarke's counterproposal should have been accepted. Although Clarke had not submitted an engineering study demonstrating that Channel 256A at Arnold would comply with the minimum distance separation requirements of the Commission's Rules, the staff determined that the information initially provided, i.e. the specific coordinates for the restricted transmitter site for Channel 256A at Arnold, was sufficient to enable Hilding to respond fully to Clarke's counterproposal. Furthermore, the MO&O rejected Clarke's argument that Channel 240A should not be allotted to Arnold because of line-of-sight coverage problems. 7. Petition for Partial Reconsideration. Clarke filed a petition for partial reconsideration of the MO&O, contending that Hilding's petition for reconsideration should not have been considered because the Bureau lacks the power to waive Hilding's obligations to serve Clarke with its reconsideration petition or to verify the petition under of Section 1.52 of the Commission's Rules. Citing Goldendale, Washington, 7 FCC Rcd 6483 (1992), Clarke contends that, while we may accept a late-filed cure of an improperly verified pleading, we may not accept an unverified pleading. Because Hilding never attempted to cure his defective submission, and the time for correcting the error has passed as well, Clarke argues that Hilding's petition for reconsideration was defective ab initio, that it should have been dismissed without consideration, and that the allotment of Channel 255A at Columbia should be deleted. 8. On a substantive basis, Clarke argues that the allotment of Channel 240A to Arnold should not be considered as an alternative to its counterproposal of Channel 256A. It claims that it had expressly "considered and rejected the possibility" of applying to operate on Channel 240A. Clarke, in making this claim, states that it recognizes the Commission's right to allot a different channel from the one requested, but of an equivalent class, in order to resolve competing allotment proposals. However, Clarke states that it cannot use Channel 240A for a fully spaced station from its preferred site if the necessarily restricted reference site is retained. Because no one else expressed an interest in applying for Channel 240A, if allotted, and Clarke justifiably rejected the use of that channel at Arnold, Clarke argues that it should be deleted in accord with Commission policy not to allot a channel for which an interest has not been expressed. Thus, Clarke urges that Channel 256A should be allotted to Arnold as requested in its original counterproposal. 9. In its opposition, Clear Mountain argues that Clarke's claim that there was not a valid expression of interest to allot Channel 240A to Arnold is moot because Clear Mountain filed a timely application for Channel 240A at Arnold. Citing several Commission cases, Clear Mountain argues that its application is a valid expression of interest and that the Commission will not delete a channel for which there has been an expression of interest. Clear Mountain also contends that the Commission properly allotted Channel 240A to Arnold and that the allotment should be retained. In this regard, Clear Mountain states that the Commission has the authority to substitute Channel 240A to Arnold, in lieu of Clarke's counterproposal to allot Channel 256A to that community, in order to satisfy Hilding's and Clarke's competing proposals for Channels 255A and 256A, respectively. Clear Mountain points out that the NPRM in this proceeding gave notice to Clarke that the Commission might allot channels different from those proposed for any of the subject communities. Clear Mountain further challenges Clarke's claim that Channel 240A is not an equivalent class channel for allotment to Arnold in lieu of Channel 256A. In support of this position, Clear Mountain contends that, under Commission precedent, channels are considered equivalent for allotment purposes if they are of the same class, would comply with the minimum distance separation requirements, and would enable a station to provide city-grade coverage to the community where the allotment would be made. Since Channel 240A fulfills these requirements, Clear Mountain concludes that it was appropriate for allotment. 10. In its reply, Clarke argues that the filing of an application for Channel 240A at Arnold does not moot Clarke's argument that there was no valid expression of interest for Channel 240A at Arnold because an expression of interest was not made during the rulemaking proceeding. Clarke contends that the cases cited by Clear Mountain on this issue are distinguishable because they involved the reallotment of vacant, but applied-for, channels and are not like the instant case where a new allotment is proposed for a community. Finally, Clarke contends that even if Channel 240A were equivalent to Channel 256A at Arnold, the Commission may not use its authority to allot this alternate channel where there is an express disavowal of any interest in that channel. 11. Discussion. After carefully reviewing the record in this case, we conclude that the MO&O properly allotted Channels 255A and 240A to Columbia and Arnold, respectively, and that Clarke's petition for partial reconsideration should be denied. As a threshold matter, we find that Clarke's procedural arguments do not warrant deleting the allotment of Channel 255A at Columbia. Although the MO&O determined that Hilding's petition was procedurally defective for failure to verify the petition and to serve the petition on Clarke and that these defects could be disregarded for public interest reasons, we find upon reexamination that these omissions do not violate the Commission's Rules. With respect to verification, Section 1.429(h) provides that "[p]etitions for reconsideration [in rulemaking proceedings], oppositions, and replies shall conform to the requirements of Sections 1.49 and 1.52, except that they need not be verified." Likewise, under Section 1.429(e), petitions for reconsideration in rulemaking proceedings need not be served on parties to the proceeding, although the Commission encourages service of petitions for reconsideration if the number of parties is small. Since Hilding was not required to verify the reconsideration petition or to serve it on Clarke and since the petition was timely filed, the petition was not procedurally defective; therefore, there is no procedural basis for deleting the allotment of Channel 255A at Columbia. 12. We also believe that Clarke has not set forth a sufficient substantive basis for deleting or modifying the allotment of Channel 240A at Arnold. Although Clarke contends that there was not a valid expression of interest to allot Channel 240A to Arnold, we agree with Clear Mountain that this argument is moot. In this regard, it is well established that the Commission will not allot an FM or TV channel in the absence of an expression of interest in the allotment. The reason for this policy is that: [a]bsent an expression of interest, a newly allotted channel could lie vacant after the Commission had expended limited resources conducting a rule making proceeding and after parties had submitted comments regarding a proposed channel. . . . A further allotment under these circumstances would not only waste Commission and participants' resources, it could preclude additional or improved service elsewhere with no countervailing service benefit to the public. Santa Isabel, Puerto Rico, and Christiansted, Virgin Islands, 3 FCC Rcd 2336, 2337 (1988). In the instant case, we believe that the purpose of this policy has been fulfilled because Clear Mountain filed a timely application for Channel 240A during the filing window. In addition, this application was subsequently granted, and the station is operating. Under these circumstances, we see no public interest reason for disturbing this allotment merely because the expression of interest was not made during the rulemaking proceeding. 13. Furthermore, we properly allotted Channel 240A to Arnold in accord with our authority to resolve conflicts among mutually exclusive proposals. The NPRM placed all parties on notice that the filing of a counterproposal may lead the Commission to allot a channel different from that requested for any of the communities involved. Channel 240A was selected for just that purpose -- to resolve the conflict between Hilding's original rulemaking proposal and Clarke's counterproposal by enabling the contending communities of Arnold and Columbia to be awarded new local aural services. 14. It is also well established that an alternate channel may be allotted, provided it is equivalent, i.e. it is of the same class, meets the minimum distance separation requirements, and provides a 70 dBu signal over the entirety of the community. Channel 240A at Arnold meets all three of these requirements and thus is an appropriate alternate channel. Like Channel 256A that was counterproposed by Clarke's predecessor, Channel 240A is a Class A channel and complies with the minimum distance separation requirements. Furthermore, as we explained in the MO&O, our engineering analysis indicates that Channel 240A can be allotted to Arnold at a site that would provide line-of-sight coverage to the community, enabling a station to place a city-grade signal (i.e., of 70 dBu field strength) over Arnold. While Clarke claims that the site restriction utilized by the Commission for Channel 240A may preclude Clarke's use of its preferred site, this argument does not negate our finding that Channel 240A is an appropriate alternate channel for allotment because at the allotment stage there is no guarantee that any particular party will be awarded a construction permit and because there was a sufficient area for transmitter sites for this channel. Indeed, Clear Mountain currently holds a construction permit (File No. BPH- 921214MG) at such site to operate on Channel 240A at Arnold. 15. Finally, the remedy Clarke advances for the alleged defective allotment of Channel 240A -- the deletion of Channel 255A at Columbia and the allotment of Channel 256A at Arnold -- cannot be granted. If only one allotment were to be made, we would allot on a comparative basis Channel 255A to Columbia under the Commission's FM allotment priorities. Channel 255A would be allotted to Columbia as a first local service, which is a higher priority (3) than that of allotting a second aural service to Arnold (Priority 4 -- other public interest matters). Such an outcome would preclude Arnold from having a second local aural service. We do not believe that such a result is as desirable as having made new allotments at both Columbia and Arnold. 16. Accordingly, IT IS ORDERED That the petition for partial reconsideration in MM Docket 90-176 filed by Clarke Broadcasting Corporation is DENIED. 17. IT IS FURTHER ORDERED, That this proceeding IS TERMINATED. 18. For further information concerning the above, contact J. Bertron Withers, Jr., Mass Media Bureau (202) 418-2180. FEDERAL COMMUNICATIONS COMMISSION Charles W. Logan Chief, Policy and Rules Division Mass Media Bureau