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A. 1. a.(1)(a) i) a) 1. 1. 1. a.(1)(a) i) a)23@@) @i Times New Roman (TT)Times New Roman (Bold) (TT)"5@^*7]SS.77S_*7*.SSSSSSSSSS77___SxoxxofASoxfx]oxxxxo7.7aS7S]J]J7S].7].]S]]JA7]SxSSJB%BW*7777CE7S]xSxSxSxSxSxxJoJoJoJoJA.A.A.A.x]SSSSx]x]x]x]xSxSx]SSxSxSf]xSxSxSxJxJxJoJoJoJSSSS]]C]A]A7A]S]o.oEx]x]SxxJxJ]A]AN:*ZS7SSSSSS27}}S2}}S}277SSS77SS7S72t7[[[[_ee*C`_.wRSSn[Cfx`xWlRx[][ceIfIs`Wx[rriwge*7]SS.77S_*7*.SSSSSSSSSS77___SxoxxofASoxfx]oxxxxo7.7aS7S]J]J7S].7].]S]]JA7]SxSSJB%BW7SSSS7]777SS:S7A7xx*7SSSS%S7}2S_7}SC[227`Z*727S}}}SxxxxxxxooooAAAAxx_xxxxxf]SSSSSSxJJJJJ....S]SSSSS[S]]]]S]"5@^2CRdd$CCdq2C28dddddddddd88qqqYzoCNzoozzC8C^dCYdYdYCdd88d8ddddCN8ddddY`(`l2CC!CCPRCddYYYYYYzYzYzYzYC8C8C8C8ddddddddddYdddddoddYYYYYzYzYzYddddddPdCdCCCdNdz8zRdddCRoNoNNF2[dCYddddd7>d<d<CCYYdCCddCYCdYzzzzCCCCqodYYYYYYYYYYY8888dddddddnddddddd"5@^2Coddȧ8CCdr2C28ddddddddddCCrrrdzNdzoȐC8CtdCdoYoYCdo8Co8odooYNCodddYO,Oh2CC!CCPRCdodddddȐYYYYYN8N8N8N8oddddooooddoddddzodddYYYYYYddddooPoNoNCNodo8RoodȐYYoNoNNF2ldCddddddThe second counterproposal was filed by Henderson. That counterproposal proposed the  xsubstitution of Channel 236C2 for Channel 236A at Caldwell, and reallotment of the upgraded channel to Gause, Texas.   x3. After a review of the proposals, the staff was unable to determine whether Henderson's  x=proposed upgrade at Caldwell would provide a 70 dBu service to all of Caldwell as required by  XH- xSection 73.315(a) of the Rules.RXH yO - xԍIn order to comply with the minimum separation requirements set forth in Section 73.207(b) of the Rules, the  xproposed upgrade at Caldwell from Class A to Class C2 requires a new site. The proposed Class C2 site is 32.7 kilometers (20.3 miles) northeast of Caldwell.R For this reason, the staff issued a Request for Supplemental  X1- xLInformation, 7 FCC Rcd 1905 (1992), requesting specific information from both parties as to the  xZactual and current city boundaries of Caldwell. In response, Bryan Broadcasting submitted a map  xdepicting the city boundaries of Caldwell along with a separate statement from the Caldwell City  xEngineer confirming that the depicted city boundaries are accurate and current. Bryan  xBroadcasting also stated that the city map of Caldwell submitted by Henderson corresponds to  x=the 1954 city map of Caldwell, and therefore was outdated. In response, Henderson submitted  xa recent map of Caldwell indicating that less than 4% of the area of Caldwell is outside of the 70 dBu contour containing a maximum of 25 persons.  Xb-  x4. In addition, the staff released an Order to Show Cause directed to Henderson to show  xKcause why his construction permit should not be modified to specify operation on Channel 297A.  X4- x9 FCC Rcd 4425 (1994). That Order stated that the action was necessary in order to select between the competing Caldwell and College Station upgrade proposals.   x5. Based upon the initial pleadings as well as information provided by the parties in  X- xresponse to the Request for Supplemental Information and the Order to Show Cause, the staff  X- xissued a Report and Order. In the Report and Order, the staff substituted Channel 236C2 for  xChannel 297C3 at College Station, and modified the Station KTSR license to specify operation  xon Channel 236C2. 10 FCC Rcd 7285 (1995). In order to accommodate this upgrade, the staff  xalso substituted Channel 297A for Channel 236A at Caldwell and modified the Station KHEN  xconstruction permit to specify operation on Channel 297A. The staff decision assumed that  xHenderson was correct in asserting that his proposal would provide a 70 dBu signal covering  xy96% of Caldwell, but determined that Henderson's proposed upgrade at Caldwell was defective  xjbecause it would not provide a 70 dBu signal to all of Caldwell as required by Section 73.315(a)  xof the Rules. The staff concluded that it would not be in the public interest to prefer a defective  xupgrade over a competing upgrade that complies with all technical requirements. In a related  xvein, the staff did not consider the Henderson counterproposal for a Channel 236C2 allotment  xat Gause. The reason for this was that Henderson appeared to have abandoned his Gause  xcounterproposal by specifically stating in Reply Comments that it would "be the better course to  xremain with the original proposal" for a Channel 236C2 upgrade at Caldwell. In addition, the"",N(N(ZZ!"  xstaff noted that the proposed reallotment from Caldwell to Gause would have removed the only  xbroadcast facility from a community of 3,181 persons to an unincorporated community of  xapproximately 500 persons. In such a situation, the staff stated that it would not have been able  x[to make the requisite finding that this would have been a preferential arrangement of channels.  X- x>See Modification of FM and TV Authorizations to Specify a New Community of License, 4  X- xFCC Rcd 4870 (1989); recon, 5 FCC Rcd 7094 (1990). In the Memorandum Opinion and Order,  Xv- xthe staff denied a Petition for Reconsideration filed by Henderson directed to that Report and  X_-Order.   x6. In his Application for Review, Henderson sets forth four arguments. First, Henderson  xKcontends that his proposed upgrade at Caldwell should not have been denied because of Section  x73.315(a) of the Rules. Second, Henderson states that the staff failure to consider his Gause  X - xcounterproposal was without basis. Third, Henderson argues that the Order to Show Cause was  x "deficient and misleading." Fourth, Henderson contends that a Channel 297A allotment at Caldwell was, in fact, a shortspaced allotment. We will consider each of these arguments.  X- . City Coverageă   x7. We affirm the staff's finding that Henderson's upgrade proposal does not comply with  xSection 73.315(a) of the Rules and should not be favorably considered over the competing  xyCollege Station proposal. Section 73.315(a) requires a licensee or permittee of an FM station to  x locate the station's transmitter at a site that will provide a minimum field strength of 70 dBu  x="over the entire principal community to be served." In his Application for Review, Henderson  x=advances several arguments regarding compliance with Section 73.315(a), many of which raise  x-technical issues concerning how a 70 dBu contour should be measured given possible variations  x.in the terrain of the area in question. For the reasons described below, we reject each of these arguments.   x8. Section 307(b) of the Communications Act requires us to distribute broadcast licenses  xand frequencies "among the several States and communities" in a "fair, efficient, and equitable"  xmanner. Consistent with this statutory mandate and to help ensure that broadcasters provide  xsufficient service to their local communities, Section 73.315(a) requires that stations transmit a  X - x.sufficiently strong signal, i. e., 70 dBu, that encompasses their entire community of license. In  xorder to make this determination, we employ our standard propagation methodology, which uses  xthe F(50,50) curves to predict the distance from the station's transmitter (given its power and  xantenna height above average terrain) to a given signal contour, that is, to all points around the  X - xZtransmitter receiving the same signal strength.  The F(50,50) curves are based on the propagation  xlcharacteristics of radio signals in the FM band and assume average or "uniform terrain."  xUniform terrain is the average terrain found in all areas of the United States, excluding sharp variations such as ridges and valleys.   !x9. Based on the Commission's presumption of uniform terrain and maximum permissible  xfacilities (a maximum transmitter power of 50 kilowatts at an antenna height above average  x>terrain of 150 meters), the 70 dBu contour of a Class C2 facility extends 32.6 kilometers from"#',N(N(ZZ%"  xLthe proposed reference site. Because the site is 32.7 kilometers from the city limits of Caldwell,  X- x=the 70 dBu contour of Henderson's proposed facility would not cover any portion of Caldwell.  xThus, based on uniform terrain assumptions, Henderson's proposal clearly falls short of Section 73.315(a)'s requirement that the 70 dBu contour cover the entire community of license.   x10. In the proceeding below and the Application for Review, Henderson has argued that  Xv- xwe should factor in the actual terrain characteristics in calculating the coverage of the 70 dBu  x=contour of his proposed Caldwell facility. He asserts that using these actual conditions rather  xkthan uniform terrain assumptions, his proposed contour would extend far enough to satisfy  xSection 73.315(a). In particular, Henderson contended in the proceeding before the staff that, on  xthe basis of actual terrain, the 70 dBu contour would extend 34.9 kilometers and, therefore, encompasses 96% of Caldwell.   nx11. We reject this contention. To facilitate predictable and efficient allotment and  xlicensing procedures, we generally assume uniform terrain in determining compliance with  X - xLSection 73.315(a) except in circumstances as set forth in Woodstock and Broadway, Virginia, 3  xNFCC Rcd 6398 (1988). Under this exception, a rulemaking proponent must, in addition to  xdepicting actual terrain, demonstrate a reasonable assurance of the availability of the proposed  Xb- xitransmitter site and that FAA approval of the tower has been obtained. In this regard, Henderson  xnotes that the owner of the site, W.B. Dryden, has submitted a statement affirming the  xavailability of the property to Henderson. This statement from the site owner does not by itself  X- x=meet the requirements of the Woodstock exception because there is no indication that a tower  xof sufficient height could be erected with FAA approval and, if so, at what location on the  xDryden property. The exact location of the tower is crucial because of the need to know the  x>actual distance from the tower to Caldwell along the radial between the tower and Caldwell.  xWithout knowing the relevant radial, it is not possible to examine the actual terrain on the radial  x[and thus predict the 70 dBu coverage of the station's signal. It is also critical that the tower be  xLat least 150 meters in height above average terrain in order for the 70 dBu contour to extend its  x maximum distance toward Caldwell. The only tower available on the Dryden site is only 59  xmeters in height above average terrain. Moreover, there is no indication that the FAA would  x<approve an increase in this height even if this tower were available to Henderson. Consequently,  X7- xat this juncture, there is no basis under Woodstock to support a conclusion that the 70 dBu signal  xwill, given actual terrain, extend more than the 32.6 kilometers normally presumed for a Class C2 FM facility.  X-  x12. In any event, even if we were to assume that Henderson qualifies for the Woodstock  xexception and that his proposed 70 dBu would reach 96% of Caldwell, we are reluctant in this  x<comparative rulemaking proceeding involving competing upgrade proposals to prefer an upgrade  X"- xproposal failing to provide the requisite 70 dbu signal to 100% of its community of license, as  xSection 73.315(a) requires. We recognize that, where all else is the same, there would appear  xto be a preference for the proposed upgrade at Caldwell because it would serve an additional  xj48,755 persons while the upgrade at College Station will provide service to an additional 22,908  xpersons. All else is not the same, however, for the College Station upgrade proposal fully  xsatisfies Section 73.315(a) while Henderson's Caldwell proposal does not. Henderson's Caldwell"#',N(N(ZZ%"  X- xproposal is therefore defective because of failing to comply with Section 73.315(a). See Terrell  X- xand Daingerfield, Texas, 5 FCC Rcd 556 (1990); see also Clemson, South Carolina, 2 FCC Rcd  X- x 3583 (1987); Wadley and Dadeville, Alabama, 60 RR2d 1462 (1986). Except for our decision  X- xin Bayshore, New York, 2 FCC Rcd 1293 (1987), and a distinguishable situation involving six  xcommunities in the implementation of BC Docket 8090, we have not waived Section 73.315(a)  X- xat the allotment stage.h  yO- xLԍOur action in Bay Shore is distinguishable from the Caldwell upgrade proposal. In Bay Shore, we allotted  xJChannel 276A to Bay Shore, New York, as a first local service even though it would provide a 70 dBu signal to only  x45% of Bay Shore. That action was premised on the fact that this was the only possible use of the channel because  xof spacing restrictions imposed by our minimum separation requirements. We also noted that the only site complying  xwith our minimum separation requirements was Fire Island and the only available location on Fire Island was atop  xthe historic Fire Island Lighthouse. Due to the fact that the National Park Service restricted a tower to a height to 25 feet, it was not possible to provide 70 dBu coverage to all of Bay Shore.  yOF - xKIn Implementation of BC Docket No.8090, 59 RR2d 679 (1985), we reconsidered sua sponte the principal city  xicoverage requirement regarding six of the 689 allotments initially made possible by our action in BC Docket No.  x8090. In that action, we recognized the need to provide FM allotments to six larger communities where the demand  xfor FM allotments is the greatest. Inasmuch as only Class A channels were available, we "for [that] proceeding only"  xYallotted these Class A channels even though they could not provide the requisite principal city coverage to an entire community. h Even if we were to characterize the shortfall in principal city coverage  Xv- xto be de minimis, we do not believe that waiver in this situation would be appropriate because  x.it would prejudice a competing proposal in full compliance with Section 73.315(a) of the Rules.  x>We do not believe the public interest is best served by allowing the only broadcast station  xassigned to Caldwell to provide the requisite 70 dBu signal to less than the entire community of  xKlicense. Moreover, the case for a waiver is further weakened by the fact that, as described above,  xHenderson failed to demonstrate that he could construct a tower at the proposed site that was 150  xmeters above average terrain and that had FAA approval. This not only undermines his argument  X - xthat we should measure his 70 dBu contour using actual terrain under Woodstock, it also throws  xinto doubt his claim that his proposed facility would reach an additional 48,755 people, since this additional coverage is premised on the construction of such a tower.   x13. Having failed in his initial pleadings to demonstrate 70 dBu coverage of his  Xb- xcommunity of license based on uniform terrain assumptions as well under the Woodstock  xexception, Henderson argues that an additional engineering submission he filed with his Petition  xyfor Reconsideration shows that he complies with Section 73.315(a). In particular, he states that  xthis submission provides "further analyses using the more accurate determinations of a procedure  X- xMdeveloped by the National Bureau of Standards (commonly referred to as Tech Note 101)"  yO7"- xyԍP.L. Rice, A.G. Longley, D.A. Norton and A.P. Barsis, "Transmission Loss Predictions for Tropospheric Communications Circuits," NBS Technical Note 101, first published in 1965 by the National Bureau of Standards.  xAccording to Henderson, this recent submission "verifies complete compliance" with Section 73.315(a) of the Rules.   x14. Henderson did not file this engineering submission with his initial pleadings in this",N(N(ZZ"  xproceeding, nor has he demonstrated under our Rules why we should consider these new facts  xat this stage of the proceeding. Section 1.115(c) of our Rules states that "[n]o application for  xyreview will be granted if it relies on questions of fact or law which the designated authority has  x-been afforded no opportunity to pass," and section 1.106(c) of the Rules states that a petition for  xxreconsideration which relies on facts not previously presented to the Commission or the staff may  xjbe granted only in limited circumstances. Henderson has not shown that he falls within any of  xthese limited circumstances, and we believe that, with the exercise of ordinary diligence, he had  x[full opportunity to present this engineering submission to the staff prior to the issuance of the  XH- xReport and Order in this proceeding. Having foregone this opportunity, Henderson may not  X1- xsubsequently rely on this submission in seeking to overturn the Report and Order. See 47 C.F.R.  1.106(c), 1.115(c).   x15. Henderson advances still another argument that he complies with Section 73.315(a)  x=in a Supplement to Application for Review filed June 16, 1997. In that Supplement, Henderson  xreferred to a recent action involving Hempstead, Texas, in which the staff permitted an applicant  xfor a construction permit to use the terrain roughness correction formula set forth in Section  x73.313(j) of the Rules. According to Henderson, use of the terrain roughness correction formula  xdemonstrates that his proposal will, in fact, provide a 70 dBu signal to all Caldwell. Bryan Broadcasting filed an Opposition and Henderson filed a Reply to that Opposition.   !x16. We have reviewed the Supplement and its engineering exhibit and have determined  xKthat this submission does not warrant a conclusion that the Henderson proposal will comply with  xSection 73.315(a) of the Rules. According to our calculations, the data in the Supplement would  xextend the 70 dBu signal one tenth of a kilometer. In reaching this conclusion, we first examined  xthe terrain profile of the path from the proposed transmitter site to Caldwell. In accordance with  xSection 73.313(f) of the Rules, we used the profile segment 10 to 32 kilometers from the  xtransmitter site to determine the terrain roughness factor or deltah. This is the difference in  x<elevation between the highest and the lowest elevations at certain points along the path between  x/the antenna and the community, in this case Caldwell. Deltah is a measure of the extent to  x which the terrain varies from normal terrain along that path. In this instance, we calculated  xLdeltah as approximately 48 meters. The deltah is then used in the formula set forth in Section  x73.313 for terrain roughness correction to determine how far, if any, the 70 dBu signal would  xextend beyond the distance predicted by the F(50,50) curves which assumes uniform terrain.  xUsing a deltah value of 48 meters, the terrain roughness correction is 0.004 dBu, which  X- xKrepresents the amount by which the signal would be enhanced.q yOk!- xԍThis negligible enhancement of the signal is attributable to the fact that the deltah of 48 meters is not  x,significantly different from 50 meters. The F(50,50) field strength chart used in determining FM coverage assumes  xa deltah terrain roughness factor of 50 meters. Only where the terrain roughness "varies appreciably" from 50  xmeters should the terrain roughness correction be applied to the signal strengths predicted by the F(50,50) curves.  yO$-See Section 73.313(i) of the Rules. q This would extend the predicted 70 dBu signal less than one tenth of a kilometer and would not reach any portion of Caldwell.   x17. Moreover, in his Supplement Henderson again has failed to demonstrate the"!x,N(N(ZZ "  x.availability of a specific transmitter site and that FAA approval of that site has been obtained.  X- xAs explained in paragraph 11, supra, this information is a prerequisite to permitting an exception  X- xunder Woodstock from the presumption of uniform terrain; without it, it is not possible to know  xwith assurance that the proposal, using actual terrain, will provide 70 dBu coverage to the  xKcommunity of license in question. While Henderson has submitted a statement from the property  x=owner affirming the availability of a transmitter site, there continues to be no FAA approval of  x<any specific antenna structure on this property. A reference in the Supplement to a conversation  xibetween Henderson's consulting engineer and an FAA official does not constitute FAA approval  XH- xunder Woodstock. In view of the above, the Supplement does not demonstrate that the proposed  xClass C2 facility at Caldwell will provide the requisite 70 dBu signal to Caldwell as required by Section 73.315(a) of the Rules.   x18. The final argument advanced by Henderson concerning principal city coverage  X - xinvolves the Request for Supplemental Information and the Order to Show Cause. As stated  X - x0earlier, the Request for Supplemental Information requested both Henderson and Bryan  xBroadcasting to submit the current boundaries of Caldwell in order to determine whether the  x{Henderson Class C2 proposal complies with Section 73.315(a) of the Rules. In response,  xHenderson supplied a current map of Caldwell indicating that 96% of Caldwell would be covered  Xb- xby the 70 dBu contour. Thereafter, the staff adopted the Order to Show Cause directed to  xHenderson to show cause why his construction permit should not be modified to specify  x[operation on Channel 297A in order to accommodate the proposed upgrade at College Station.  X- x Henderson refers to the statement in the Order to Show Cause that "both proposals in this  x.proceeding would provide significant public interest benefits." According to Henderson, this  xlanguage suggested that noncompliance with Section 73.315(a) was no longer an issue in this  X- xproceeding. As such, Henderson alleged that the Order to Show Cause was "grossly misleading  X- xand deficient" in not disclosing this fact. This argument is without merit. The Order to Show  X- xLCause was limited in scope to the proposed substitution of Channel 297A for Channel 236A at  xCaldwell. While this substitution would only be necessary if the proposed allotment of Channel  x[236C2 at College Station were approved, that underlying decision was not at issue in the show  xcause proceeding. Rather, the appropriate allotment of Channel 236C2 as between Caldwell and  xzCollege Station was separately considered in proceedings in which Henderson participated.  xHenderson had been afforded the opportunity to demonstrate compliance with Section 73.315(a)  X - x.in his original proposal, his comments, his reply comments and in his response to the Request  X - xfor Supplemental Information. The Order to Show Cause was not the appropriate mechanism to  xresolve this issue or request still further information from Henderson regarding Section 73.315(a)  X- xof the Rules, nor do we believe that the statement in the Order to Show Cause that "both  x?proposals" would provide public interest benefits can be said to have unfairly misled or  X!- xprejudiced Henderson. As stated in the Report and Order, Henderson's Caldwell upgrade  xkproposal would have provided service to an additional 48,755 persons. This is a significant  xypublic interest benefit. However, this does not support, in any way, a conclusion that the staff  xhad made a finding that the Caldwell upgrade proposal was in compliance with Section 73.315(a)  xior that the staff would prefer that proposal over the competing College Station proposal that does comply with Section 73.315(a) of the Rules. "#',N(N(ZZ%"Ԍ X-ԙ&Nolanville, Texasă  X-  x19. The Report and Order substituted Channel 297A for Channel 236A at Caldwell and  xmodified the Station KHEN construction permit to specify operation on Channel 297A. In turn,  xthis channel substitution at Caldwell permitted the proposed Channel 236C2 upgrade at College  xStation. According to Henderson, a Channel 297A allotment at Caldwell was shortspaced to the  x^Channel 297A allotment at Nolanville, Texas. This argument is not persuasive. In its  xcounterproposal, Bryan Broadcasting proposed a site restriction on the vacant Channel 297A  x>allotment at Nolanville in order to accommodate its proposed Channel 297A substitution at  xCaldwell. In view of the request for a site restriction on a then vacant allotment at Nolanville,  xthis was an acceptable counterproposal at the time it was filed. In similar situations, a  x.rulemaking proponent could also propose an alternate channel or deletion of the allotment. In  xKall of these situations, the appropriate forum for resolution, if ultimately necessary, of an alternate  X -channel, site restriction or deletion is the Report and Order in this proceeding.   X -1Gause, Texasă  Xy-  x20. The Report and Order did not consider the Henderson counterproposal for a Channel  xj236C2 allotment at Gause, Texas. The reason for not doing so was the Henderson statement in  x=Reply Comments that it would be "the better course to remain with the original proposal" for a  xChannel 236C2 upgrade at Caldwell. In his Application for Review, however, Henderson argues  xthat it was never his intention to withdraw the Gause counterproposal or have it not considered.  xIt is our view that the staff reasonably interpreted Henderson's statement in his Reply Comments  xZin the proceeding below as indicating that he wished to abandon his Gause counterproposal. We  xnevertheless note that, even assuming that Henderson had not abandoned the Gause  x?counterproposal, the staff did evaluate the Gause counterproposal in the context of this  X- xproceeding in both its Report and Order and Memorandum Opinion and Order and found that it  X-could not be favorably considered. We concur with that conclusion.   "x21. In order for the Gause counterproposal to be considered in conjunction with the  x{College Station upgrade proposal, it would first be necessary to reallot Channel 236 from  xCaldwell to Gause. To do so, we must make a finding that this would have resulted in a  X - x<preferential arrangement of allotments. See Modification of FM and TV Authorizations to Specify  X - x/a New Community of License, supra. In comparing Caldwell and Gause, we could not have  xymade such a finding. This proposal would have removed the only FM allotment from Caldwell,  xa community of 3,181 persons, to Gause, an unincorporated community of approximately 500  X - x<persons.{  yO=#- xԍIt is important to note that the only mention of Gause in the 1990 U.S. Census is a listing of "GauseMilano"  xas a Census County Division. A Census County Division is delineated by the Census Bureau and used for statistical  xxpurposes where there are no established minor civil divisions. A Census County Division has no legal function or  xgovernmental function. In view of the above, any reallotment proceeding would have necessitated a detailed analysis to determine whether Gause is a community for allotment purposes. { Under the FM allotment priorities set forth in Revision of FM Assignment Policies and  X!- xProcedures, 90 FCC 2d 88 (1982), we concur with the staff that an FM allotment at Caldwell"!x,N(N(ZZ "  xwould be preferred over an allotment at Gause and such a proposal would not have been  X-favorably considered.X yOb- xxԍThe FM allotment priorities are as follows: 1) First fulltime aural service; 2) Second fulltime aural service; 3)  xFirst local service; and 4) Other public interest matters. Coequal weight is given to Priorities 2 and 3. Regarding two competing proposals for a first local service, the community with the larger population would be favored.    x22. We note that Henderson, in his counterproposal, suggested that Channel 274A could  x.be allotted to Caldwell as a replacement allotment. However, neither Henderson nor any other  x.party expressed an interest in applying for this channel. In the absence of such an expression  Xv- x of interest, we will not allot a channel. See Murray, Kentucky, 3 FCC Rcd 3016 (1988); Pine,  X_- xArizona, 3 FCC Rcd 1010 (1988). On May 4, 1992, one year after the filing of his  xZcounterproposal not containing an expression of interest in a Channel 274A allotment at Caldwell,  X1- xHenderson filed a "Supplemental Information Response" responding to the staff Request for  X - x[Supplemental Information. In that Response, Henderson stated: "It is further noted that to the  xextent that the Commission's duopoly rules have been relaxed and to the extent that those rules  xzwould allow him to do so, while at the same time owning and operating a station on channel  xK236C2 in Gause, Henderson would also commit here to apply to construct and operate on channel  x274A or any replacement channel allocated to Caldwell as part of that reallocation." This  xcommitment was contingent on multiple ownership rules being in effect at the time the  x!applications would be filed which would permit such common ownership. As such, the  xHenderson commitment was equivocal and did not constitute a valid expression of interest. We  xalso note that this expression of interest was untimely and could not be accepted in a contested  XK- xproceeding. See Amor Family Broadcasting Group v. FCC, 918 F2d 960 (D.C. Cir. 1990); cf.  X4-Waldron, Arkansas, 6 FCC Rcd 2590 (1991).   {x23. Accordingly, IT IS ORDERED, That the aforementioned Application for Review filed by Roy E. Henderson IS DENIED. x24. IT IS FURTHER ORDERED, That this proceeding IS TERMINATED.   ^x25. For further information concerning this proceeding, contact Robert Hayne, Mass Media Bureau, (202) 4182177. x` `  hh@FEDERAL COMMUNICATIONS COMMISSION x` `  hh@Magalie Roman Salas x` `  hh@Secretary