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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. 95-83 Table of Allotments, ) RM-8634 FM Broadcast Stations ) (Littlefield, Wolfforth and Tahoka, Texas) ) MEMORANDUM OPINION AND ORDER (Proceeding Terminated) Adopted: March 8, 2000 Released: March 20, 2000 By the Chief, Allocations Branch: 1. The Commission has before it a Petition for Partial Reconsideration filed by 21st Century Radio Ventures, Inc. ("21st Century") directed to the Report and Order in this proceeding 12 FCC Rcd 3215 (1997) which denied a proposal to reallot a channel from Littlefield to Wolfforth, Texas. Comments were filed by Albert Benavides, ("Benavides"). An Opposition was filed by El Paso and Lubbock, Inc. 21st Century filed a Reply. We will grant the Petition for Partial Reconsideration. 2. Background. At the request of 21st Century, permittee of Station KAIQ, Littlefield, Texas, we adopted a Notice of Proposed Rulemaking, 10 FCC Rcd 6598 (1995)("Notice"), proposing the reallotment of Channel 238C3 from Littlefield to Wolfforth, Texas and modification of the Station KAIQ construction permit to specify Wolfforth as its community of license. In order to accommodate this reallotment, the Notice also proposed either the deletion of Channel 237A at Tahoka, Texas or the substitution of Channel 278A for Channel 237A at Tahoka. The Report & Order denied 21st Century's request to reallot Channel 238C3 from Littlefield to Wolfforth and took no action on the issue of the deletion or substitution of Channel 237A at Tahoka, TX. 3. Petition for Partial Reconsideration. 21st Century filed a Partial Petition for Reconsideration of the Report & Order requesting that the Commission reconsider its decision not to take action with respect to the deletion or substitution of Channel 237A at Tahoka. Specifically, 21st Century argues that by substituting Channel 278A for Channel 237A, it will be able to specify a new transmitter site at Littlefield for Channel 238C3 that will permit it to maximize its facilities and bring service to the greatest number of people possible. In addition, a preferential arrangement of allotments will occur, as a second local service will be brought to Tahoka. 21st Century contends that granting its request on reconsideration will conserve Commission resources since the public has already received notice of the proposed action and had an opportunity to comment. 21st Century maintains that the Commission should substitute Channel 278A for Channel 237A because, together with its proposed relocation of its transmitter site this will result in a greater public interest benefit. 4. Benavides does not object to the proposed channel substitution inasmuch as it would provide a preferential arrangement of allotments. Benavides does object to any proposal to entirely delete Tahoka from the FM Table of Allotments which would prejudice his pending application (File No. BPH-950824MC). Benavides requests that the Commission immediately process his application and grant a construction permit for the channel at Tahoka. 5. Opposition. EPL argues that the Petition for Partial Reconsideration should be denied because it is an untimely counterproposal seeking to substitute Channel 278A for Channel 237A. EPL further argues that neither the Petition for Rule Making, nor comments in the proceeding proposed the channel substitution now sought by 21st Century petitioner. EPL claims that the Notice leaves no doubt that any channel substitution was to be contingent on an expression of interest in Channel 237A and the reallotment of Channel 283C3 to Wolfforth. Finally, EPL states that the Commission's Rules and the Notice make clear that counterproposals may only be considered if raised in initial comments, 47 C.F.R.1.420(d) and the Appendix to the Notice. As such, the petition should be denied because it introduces new facts into the proceeding without any attempt to satisfy the requirements of Section 1.429(b) of the Commission's Rules. 6. Reply. 21st Century disagrees that this is a late-filed counterproposal. 21st Century argues that the issue was presented in the Notice. 21st Century points out that Section 553 of the Administrative Procedure Act demands only that reasonable and fair notice be given of a proposed action in an NPRM.. Such notice was clearly given in the Notice in this proceeding and a decision on the issue may be said to be the "logical outgrowth" of the proposed substitution set forth in the Notice. See, Pinewood, South Carolina, 4 FCC Rcd 8536 (1989). 21st Century argues that in the Notice the Commission sought expressions of interest in Channel 237A and noted that if there were expressions of interest the Commission proposed to substitute Channel 278A for Channel 237A. Thus the public had ample opportunity to comment on the merits of the substitution of Channel 278A for Channel 237A. 7. Discussion. We will grant 21st Century's Petition for Partial Reconsideration. We disagree that a channel substitution constituted an untimely counterproposal and should therefore be dismissed. The original Notice specifically requested comments regarding either the deletion of Channel 237A at Tahoka or the substitution of Channel 278A for Channel 237A. Parties had full opportunity to address the issue of retention of the channel, or the substitution of another channel and relevant reasons to support their arguments. We believe that the Notice adopted in this proceeding complied with the Administrative Procedure Act because it gave interested parties an opportunity to comment on the merits of the substitution of Channel 278A for Channel 237A in Tahoka. The fact that we initially decided not to make a change in Tahoka in light of our decision to keep Channel 238C3 in Littlefield does not diminish the effect of the Notice nor preclude our ability to make further changes before the action becomes final. 8. Regarding 21st Century's proposal, an application to change a transmitter site is generally regarded as a benefit to the licensee rather than the public unless the licensee can demonstrate an overriding public interest justification. See Andalusia, Alabama, 49 FR 32201 (1984). However, we believe in this case 21st Century has made a sufficient public interest justification to warrant grant of its request. Our staff has confirmed petitioner's showing that at its new site it will be able to provide additional service to over 229,000 persons versus a maximum of 35,000 persons at its current site. Although there will be a "loss" in service to over 17,600 persons, since the authorized station is unbuilt and has never been on the air. As such, the loss is theoretical and does not represent an actual loss of service. 9. We believe the public interest would be served by substituting Channel 278A for Channel 237A at Tahoka. Channel 278A can be allotted to Tahoka, in compliance with the minimum distance separation requirements of the Commission's Rules, provided there is a site restriction of 5.6 kilometers (3.5 miles) northeast of the community. 10. Accordingly, pursuant to the authority contained in Sections 4(i), 5(c)(1), 303(g) and (r) and 307(b) of the Communications Act of 1934, as amended, and Sections 0.61, 0.204(b) and 0.283 of the Commission's Rules, IT IS ORDERED, That effective May 3, 2000 the FM Table of Allotments, Section 73.202(b) of the Commission's Rules, IS AMENDED for the community listed below, as follows: Community Channel Number Tahoka, Texas 278A 11. In view of the above, IT IS ORDERED, That the Petition for Partial Reconsideration filed by 21st Century Radio Ventures, Inc. IS GRANTED. 12. IT IS FURTHER ORDERED, That this proceeding is TERMINATED. 13. For further information concerning this proceeding, contact Arthur D. Scrutchins, Mass Media Bureau, (202) 418-2180. FEDERAL COMMUNICATIONS COMMISSION John A. Karousos Chief, Allocations Branch Mass Media Bureau