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I  yO%- xԍ Under such circumstances, the Commission will not afford other interested parties an opportunity to file competing expressions of interest in the proposed new channel. Since Tichenor was in effect requesting the reallotment of its Station KLTP(FM)  x>from Channel 285A at Galveston to Menard on nonmutually exclusive Channel 242C2, this" ` ,l(l(,,["  X- x|proposal could not be considered. The R&O also interpreted the wording in the joint  xxcounterproposal as proposing a change in community of license for the Galveston station and not  X- xzsimply a "dropin" allotment at Menard that is, a new FM allotment that would be open to  X- xZcompeting applications. The R&O further found that the other part of the joint counterproposal  x=involving the reallotment of Henderson's Station KLTO(FM) from Rosenberg to Missouri City  xon Channel 285C3 was untimely and should have been submitted in response to the original  Xv-NPRM.  XH-  >x7. Having dismissed the two counterproposals, the R&O then substituted Channel 285C3  xLfor Channel 284C3 at Llano, reallotted Channel 285C3 to Marble Falls, and modified Maxagrid's  xlicense for Station KBAE(FM) accordingly because this would result in a first local aural service  X - x]to Marble Falls (population 4,007). In addition, the R&O allotted Channel 242A to Llano  x(population 2,962) to ensure that the community's sole local service is retained and conditioned  xthe grant of operating authority for the Marble Falls station until a construction permit has been  X -issued for Channel 242A at Llano and service has been initiated on that channel. I  yO7- x\ԍ After the R&O was released, three applications were filed for Channel 242A at Llano, of which one application had been submitted by Maxagrid. x  X-s Petition for Reconsiderationă  Xy- x- Ð Xb-  !x8. The petitioners argue that the R&O erred in dismissing the joint counterproposal in  XK- xtwo respects. First, they contend that the R&O incorrectly concluded that the portion of the  x[counterproposal involving the reallotment of upgraded Channel 285C3 to Missouri City, Texas  X- xwas untimely and should have been filed by the comment deadline in the NPRM. In support  xof this position, they contend that Channel 285C3 at Missouri City is not mutually exclusive with  xiChannel 285C3 at Marble Falls and could not, therefore, have been accepted as a counterproposal  X- xto the allotment proposed in the NPRM. Rather, they argue that the entire joint counterproposal  X- xwas properly filed in response to the FNPRM, proposing the allotment of Channel 242A at Llano.  xPetitioners note that their joint counterproposal requires that Channel 285A at Galveston, TX, be  xrelocated and requested that it be reassigned as Channel 242C2 at Menard, TX. Since Channel  X|- x242C2 at Menard is mutually exclusive with Channel 242A at Llano as proposed in the FNPRM,  xthey claim it meets the requirement that a counterproposal be in conflict with a proposal made  XN- xin the proceeding. In addition, they argue that it was timely filed in response to the FNPRM and  x{complied with the Commission's technical requirements, thereby making it acceptable for consideration.  X-  @x9. Second, the petitioners maintain that the R&O erred in holding that the Tichenor  xportion of the counterproposal violated Section 1.420(i) of the Commission's by proposing a  x[reallotment and change in community of license for Station KLTP(FM) on a channel that is not  x/mutually exclusive with its current channel at Galveston. While they acknowledge that the"! ,l(l(,, "  X- xycounterproposal did contemplate the use of Section 1.420(i) for the Missouri City reallotment,@I  yOy-ԍ The petitioners point to the following language as indicating an intent to apply Section 1.420(i): Since the assignment of channel 285C3 to Missouri City could not be made without deletion of that channel as presently assigned to KLTO in Rosen berg, the allotment of that channel to Missouri City would not be subject to outside expressions of interest. Joint Counterproposal at 3.  xKthey contend that "corresponding" language was not used with respect to the Menard portion of  xthe counterproposal. Rather, they claim that the counterproposal contemplated the deletion of  xChannel 285A at Galveston, which is currently being used by Tichenor's Station KLTP(FM),  xand the allotment of Channel 242C2 at Menard as a "dropin" allotment open to general  xapplication. In support of this position, they cite the following language from the joint counterproposal as indicating such an intent:   hXxX` ` X Both Henderson and Tichenor are fully committed to the counterproposals set forth herein.   h-XxX` ` X [And Tichenor commits to] . . . take all necessary  hactions to build and operate the station in Menard as requested.   X - x-They assert that the language "take all necessary actions" includes applying for Channel 242C at  X- xMenard along with other applicants. Since the R&O recognized that a "dropin" allotment of  xChannel 242C2 could have been accepted as a counterproposal, they conclude that the joint  Xb-counterproposal should have been accepted on that basis.   x-  X4-4 Discussionă     X-  x 10. After carefully reviewing the record in this case, we will deny the petition for  X- xreconsideration. As a preliminary matter, we agree with the petitioners that the R&O erred in  xjconcluding that the portion of the joint counterproposal involving the reallotment of upgraded  xNChannel 285C3 to Missouri City, Texas, was untimely and should have been filed by the  X- x>comment deadline in the NPRM. As correctly noted by the petitioners, the Channel 285C3  X- x>proposal at Missouri City was not mutually exclusive with the original NPRM's proposal to  xxreallot Channel 285C3 to Llano and, therefore, could not have been accepted as a counterproposal  Xe- xwith respect to the NPRM.sXeI  yO#- xԍ This conclusion follows from the fact that the actual spacing between Channel 285C3 at Marble Falls and  xChannel 285C3 at Missouri City (283.2 kilometers) exceeds the required spacing (153 kilometers) for cochannel Class C3 stations under Section 73.207(a), Table A of the Commission's Rules. s However, we believe that this mistake constitutes harmless error  xbecause, as will be discussed below, the joint counterproposal was defective in another key  X7-respect and was properly dismissed by the R&O. "7 ,l(l(,,{"Ԍ X-  |ԙx 11. In particular, we do not agree with the petitioners' contention that the R&O erred  xin dismissing the other portion of the counterproposal on the grounds that it violated Section  xL1.420(i) of the Rules and did not constitute a request for a "dropin" allotment at Menard. We  xhave reviewed the joint counterproposal in light of the language cited by the petitioners and  X- xconclude that the R&O reasonably interpreted their counterproposal as requesting a reallotment  xand change of community of license that would trigger Section 1.420(i) of the Rules. Our review  xreveals five instances in the counterproposal in which the petitioners explicitly requested or  xreferred to their proposal as involving the modification of Station KLTP(FM)'s license to specify  XH-operation on Channel 242C2 at Menard.HI  yO - xԍ Three of these statements are in the legal portion of the counterproposal at pages 3, 45, and 67. In addition, two statements are in the engineering section of the counterproposal at pages 4 and 5. For example, Tichenor stated that:   hXxX` ` X [i]t affirms and commits that upon adoption of this   hentire counterproposal and the deletion of channel   h285A from Galveston and the reallocation of that   hfacility to KLTP as channel 242C2 in Menard,  hTexas, it will proceed to take all necessary actions   hto build and operate the station in Menard as  X-requested.G  I  yOa-ԍ Joint Counterproposal at 67.G   Xb- xThe R&O cited this language and correctly concluded that it could not be construed as a  xcommitment to apply for Channel 242C2 as a new allotment for Menard subject to competing  X4- x@applications.F 4I  yO-ԍ 12 FCC Rcd at 6811, para. 4.F Likewise, the two statements proffered by petitioners regarding their  x=commitments to implement the counterproposal do not support their position that a "dropin"  xiallotment was requested for Menard because they are not specific enough and because they both  xappear in the same paragraph as the above cited language requesting a modification in the  x KLTP(FM) license from Galveston to Menard. While we acknowledge that the petitioners  x<intended to use Section 1.420(i) for the Missouri City reallotment and that certain "corresponding  xlanguage" was not used with respect to the Menard reallotment, we believe that the vast weight  X- x>of the evidence supports the R&O's conclusion that a change of community of license was  x=envisioned for the Galveston station. Since the proposed change of community of license for  xStation KLTP(FM) on Channel 242C2 at Menard is not mutually exclusive with its present use  xof Channel 285A at Galveston, the proposal was properly dismissed as violating Section 1.420(i)  X7-of the Rules.R 7@I  yO($- xԍ As a related matter, the petitioners contend that any defect with respect to their counterproposal has been  xcured by their subsequent statement in the reconsideration petition that they would accept a new allotment at Menard  yO%- x[with a filing window open to competing applications. Petitioners' Joint Reply of August 13, 1997 at 6. We  xdisagree. This new language materially changes the nature of their counterproposal from a change of community  yOH'- xKproposal to a "dropin" allotment after the R&O was adopted in this proceeding and will not be considered. See,"H' ,l(l('"  yO- xe.g., Rosendale, New York, FCC 98237 (Comm., released October 6, 1998) (it is not in the public interest to permit  xa rulemaking proponent to request that its license be modified to a commercial allotment, without entertaining  xcompeting expressions of interest, and once an unfavorable decision has been rendered, to submit an untimely  xzalternative request to have its license modified subject to the condition that its operations be restricted to noncommercial educational use). R"7x ,l(l(,,"Ԍ X-  ԙx 12. Having made this determination with respect to the GalvestonMenard portion of the  xcounterproposal, we also find that the remainder of the counterproposal involving Henderson's  x<proposed upgrade and reallotment of Station KLTO(FM) from Rosenberg to Missouri City, Texas  xon Channel 285C3 cannot be entertained in this proceeding for two reasons. First, it was  xMpredicated upon the defective proposal to delete Channel 285A at Galveston and to modify  xyStation KLTP's license on Channel 242C2 at Menard. Second, Henderson's proposed upgrade  x[and modification of its Station KLTO(FM) license on Channel 285C3 at Missouri City does not  X_- xconflict under the minimum distance separation requirements with the FNPRM's proposal to allot  XH- xChannel 242A at Llano and is thus not mutually exclusive with the FNPRM. As a result, it  X1-cannot qualify as a counterproposal to the FNPRM. X1xI  yOZ- xxԍ In its opposition, Maxagrid contends that there are some other defects with the joint counterproposal that  xwwarrant its dismissal, and the petitioners argue to the contrary in their reply. In view of our affirming the dismissal of the joint counterproposal for the reasons set forth above, we need not reach these issues.   X -  {x 13. Request for Global Resolution. Approximately a year after the pleading cycle ended  xin this proceeding, Tichenor filed a pleading, suggesting a global resolution that would  xaccommodate the parties to this proceeding and the three applicants for Channel 242A at Llano.  xySpecifically, Tichenor proposes the simultaneous allotment of Channels 271A, 275A, and 293A  xto Llano in lieu of Channel 242A and the assignment of these channels to the three Llano  xapplicants with cutoff protection. Since this allotment scheme would eliminate the conflict  xNwith Channel 242C2 at Menard, Tichenor also requests the grant of its counterproposal.  x<Maxagrid opposes Tichenor's global resolution, claiming that it would require the commencement of a new rulemaking proceeding.  X-  m x 14. We cannot adopt this global resolution. Since the joint counterproposal was not  xaccepted in this proceeding, it is not possible to make the allotments requested by Henderson and  xTichenor at Missouri City, Galveston, and Menard. Further, we cannot allot additional channels  xat Llano at this stage of the proceeding because such an action would be beyond the scope of the  X- xFNPRM, which had proposed only one replacement channel at Llano. Although the R&O  xrecognized the possibility that multiple applications could be filed for Channel 242A at Llano,  xit noted that three additional channels are available to accommodate such interests and that the  X|- xCommission would entertain rulemaking petitions to allot additional channels as it did in Albion,  Xe- xkNebraska, 10 FCC Rcd 11927 (Comm. 1995). Indeed, one of the applicants for Channel 242A  x>at Llano, Elgin FM, has filed a rulemaking petition to allot two additional channels at Llano,  xwhich could be considered in a separate rulemaking proceeding. Finally, contrary to Tichenor's  X - xclaim, the Commission's decision in Churubusco, Indiana, 5 FCC Rcd 916 (Comm. 1990), does  x\not obviate the need for notice and comment rulemaking for additional Llano allotments. In"  ,l(l(,,"  X- xChurubusco, the Commission allotted alternate channels only to accommodate the proposals made in the NPRM and in timely filed and acceptable counterproposals.  X-  !x15. As a final matter, we affirm the R&O's other actions taken with respect to Llano and  X-Marble Falls as in the public interest for the reasons stated therein.   Xv- k e s 16. In view of the above, IT IS ORDERED, That the Joint Petition for Reconsideration filed by Roy E. Henderson and Tichenor License Corporation IS DENIED.  X1- ks 17. IT IS FURTHER ORDERED, That the Motion for Stay filed by Roy E. Henderson and Tichenor License Corporation IS DISMISSED.  X - ks 18. IT IS FURTHER ORDERED, That this proceeding IS TERMINATED.  X - "K- }}-- +""S""  X - ks 19. For further information concerning this proceeding, contact Arthur D. Scrutchins, Mass Media Bureau, (202) 4182180. s  m m  uu;FEDERAL COMMUNICATIONS COMMISSION s  m m  uu;Charles W. Logan s  m m  uu;Chief, Policy and Rules Division s  m m  uu;Mass Media Bureau