DA 95-1236 Federal Communications Commission Record 10 FCC Red No. 13

REPORT AND ORDER Before the (Proceeding Terminated) Federal Communications Commission Washington, D.C. 20554 Adopted: June 5, 1995; Released: June 13,1995

By the Chief, Allocations Branch:

MM Docket No. 91-129 1. Before the Commission for consideration is the Notice of Proposed Rule Making, 6 FCC Red 2456 (1991), issued In the Matter of in response to a petition filed on behalf of Bridge Broad casting ("petitioner"), proposing the allotment of FM Amendment of Section 73.202(b), RM-7664 Channel 244C2 to Lake Havasu City, Arizona, as that Table of Allotments, community©s fourth local FM service. Petitioner filed sup FM Broadcast Stations. porting comments in response to the Notice reiterating its intention to apply for Channel 244C2, if allotted to Lake (Lake Havasu City, Arizona) Havasu City. 1 London Bridge Broadcasting, Inc.2 ("LBB"), filed opposing comments. Claire B. Benezra ("Benezra"), permittee of Station KPXC(FM), Channel 257A, Indian Springs, Nevada, filed comments and a counterproposal.3

1 Although the certificate of service accompanying petitioner©s Arizona. (Although Lake Havasu City is located in Zone II, the comments indicates they were mailed one week prior to the transmitter site suggested for Channel 248B at Lake Havasu City initial comment deadline, they were filed with the Commission is located in Zone I where the maximum FM facilities au at the Secretary©s Office after the deadline specified for their thorized are for Class B stations.) receipt. It is the actual filing date and not the date of service of Benezra©s proposal is technically and procedurally defective and a document that constitutes its official filing, and it is the was not placed on public notice. The counterproposal did not responsibility of the party submitting comments to ensure that include a certificate of service indicating service of the docu documents are delivered to the Commission on time. The Com ment on the licensees and permittees whose channel assign mission will not accept late-filed comments which contain ex ments would be changed by a grant of the proposal. See Sections pressions of continuing interest in an allotment proposal unless 1.401(d) and 1.420 of the Commission©s Rules, as well as para there is no opposition to the proposal and the acceptance would graph 4 of the Appendix to the Notice. Moreover, although not have an adverse impact on another pending, acceptable Benezra signed the counterproposal, it was not verified, nor was proposal. Although there is opposition to the proposal by LBB an address provided. Section 1.52 of the Commission©s Rules and a counterproposal has been filed by Benezra, as indicated requires that an original of any document filed with the Com infra, we dispose of LBB©s opposition and Benezra©s counter mission by a party not represented by counsel be signed and proposal is unacceptable for consideration. Thus, our acceptance verified by the party and his/her address stated. In the absence of petitioner©s comments to entertain its continuing expression of such verification, a pleading may be returned as of interest will not prejudice any party. However, our deter unacceptable. See Moscow, Ohio, 5 FCC Red 927 (1988). Section mination here should not be interpreted as a relaxation of the 1.40l(b) of the Rules places petitioners on notice that their Commission©s Rules with respect to cut-off dates, and we advise proposal must conform with the requirements of Section 1.52 potential parties that failure to comply with the Commission©s regarding subscription and verification. procedural rules may result in the dismissal of a request. In Additionally, Benezra©s requested modification of Station fact, had Benezra©s counterproposal been acceptable, we may not KXVR(FM), Kingman, Arizona, from Channel 260C1 to have entertained petitioner©s late filed comments. nonadjacent Channel 244C, as well as the requested substitution 2 LBB is the licensee of Stations KFWJ(AM) and KBBC(FM), of nonadjacent Channel 280C3 for Channel 244A at Williams, Lake Havasu City, and was one of five applicants for Channel Arizona (for which a construction permit has been issued to 224C2 at that community. See File No. BPH-920610MB. (A Station KVTF(FM) (File No. BPH-900807MH)), cannot be con construction permit was subsequently issued to Steven M. Gree- sidered as Benezra did not identify the availability of an addi ley for Station KJCC(FM) to operate on Channel 224C2 at Lake tional equivalent channel at either community. Therefore, Havasu City. See File No. BPH-920610MG.) neither Station KXVR(FM) nor Station KVTF(FM) could have J Benezra requests the substitution of Channel 257C1 for Chan been modified as suggested, in the event competing expressions nel 257A at Indian Springs, Nevada, and modification of the of interest were received for Channel 244C at Kingman or construction permit (File No. BPH-891002ML) for Station Channel 280C3 at Williams, Arizona. See Fort Bragg, California, KPXC(FM) accordingly. In order to accommodate the proposal 6 FCC Red 5812 (1991). in conformity with the minimum distance separation require ments of the Commission©s Rules, Benezra also requests the Furthermore, Benezra©s requested Indian Springs, Nevada, following substitutions and modifications: substitute Channel channel upgrade would require the substitution of channels at 259B for Channel 258B at Mountain Pass, California, and modi four communities, for which a reimbursement pledge to the fy the license for Station KHYZ(FM); substitute Channel 244C affected stations was given. However, the Commission will not for Channel 260C1 at Kingman. Arizona, and modify the license entertain proposals which involve more than two channel sub of Station KGMN(FM) (the license for Station KGMN(FM) has stitutions at communities that are occupied by existing stations since been modified to specify operation on Channel 260C2 at in the absence of a showing demonstrating that special factors Kingman; see File No. BLH-901120KG); substitute Channel are present that involve significant public interest benefits, or 284C for Channel 259C at St. George, Utah, and modify the that an assurance of agreement among the affected stations to construction permit issued for Station KCLG(FM) to specify the proposal are reached in advance of the filing of the petition. operation on Channel 284C; substitute Channel 280C3 for Chan See Columbus, Nebraska, 51 FR 4926, published February 10, nel 244A at Williams, Arizona, and modify the construction 1986. The noted deficiencies are adequate grounds to reject permit for Station KVTF(FM) accordingly; and substitute Chan nel 248B for proposed Channel 244C2 at Lake Havasu City,

6522 10 FCC Red No. 13 Federal Communications Commission Record DA 95-1236

2. LBB acknowledges that the Commission in recent 24, 1995. FCC Red 4803 (1991).6 Consequently there is no years has not considered economic competition in consid basis under the current state of Commission precedent for ering proposed amendments to the FM Table of Allot consideration of those issues. In a related context, there is ments, but argues that the allotment of an additional FM no Commission requirement for petitioner or any other channel to a community as small as Lake Havasu City party to demonstrate a "demand" or need for an allotment would be devastating to local radio services.4 In this regard, aside from the already stated willingness of petitioner to LBB expressed its concern that the allotment of an addi apply for the Channel 244C2 allotment at Lake Havasu tional FM service to Lake Havasu City could result in an City and construct the proposed facilities. inadequate revenue base for the provision of quality radio 6. In light of the foregoing, we conclude that the public service by the local community outlets, and may result in a interest would be served by allotting Channel 244C2 to cessation of operations by others in the community. Thus, Lake Havasu City, Arizona, as that community©s fourth LBB urges that a general policy favoring competition local FM service. As stated in the Notice, Channel 244C2 should be weighed against the economic impact of allotting can be allotted to Lake Havasu City, Arizona, consistent a new FM channel to Lake Havasu City.5 with the minimum distance separation requirements of 3. LBB also alleges that petitioner has not provided any Section 73.207(b)(l) and (3) of the Commission©s Rules indication it is aware of other channels which have been without a site restriction.7 Additionally, as Lake Havasu allotted to Lake Havasu City since its proposal was filed. City is located within 320 kilometers (199 miles) of the LLB therefore questions the sufficiency of petitioner©s ex Mexican border, concurrence of the Mexican government pression of interest and questions whether petitioner can to this allotment was obtained. realistically be expected to honor its commitment to file an 7. Accordingly, pursuant to the authority contained in application for Channel 244C2 in light of the market envi Sections 4(i), 5(c)(l), 303(g) and (r) and 307(b) of the ronment in Lake Havasu City. Communications Act of 1934, as amended, and Sections 4. In responsive comments, petitioner disputes LBB©s 0.61, 0.204(b) and 0.283 of the Commission©s Rules. IT IS allegation concerning the sufficiency of its previous expres ORDERED, That effective July 28, 1995, the FM Table of sions of interest in applying for Channel 244C2 at Lake Allotments, Section 73.202(b) of the Commission©s Rules, Havasu City, and reaffirms its intention to apply for a IS AMENDED for the community listed below, as follows: construction permit on that channel, or any other channel the Commission may allot to satisfy its stated interest in City Channel No. providing a new FM service to the community. Lake Havasu City, Arizona 224C2,8 244C2, 5. Based upon the information presented, we conclude 266C3, 283C29 that LBB©s arguments are not persuasive. Contrary to the sufficiency of petitioner©s com LBB©s claim concerning period for filing applications on Channel construct a station on 8. The window mitment to apply for and promptly Havasu City, Arizona, will open on July 28, if it is allotted to Lake Havasu City, peti 244C2 at Lake Channel 244C2 on August 28, 1995. tioner has stated and reaffirmed its intention in that regard, 1995, and close and LBB has not presented evidence to discredit the bona 9. IT IS FURTHER ORDERED, That this proceeding IS fides of those statements. Secondly, LBB©s argument that TERMINATED. Lake Havasu City©s economy cannot support an additional 10. For further information concerning the above, con local radio station does not justify denying this rule making tact Nancy Joyner, Mass Media Bureau, (202) 418-2180. proposal. As the Commission has previously determined, Questions related to the window application filing process issues related to economic impact are not relevant in either for Channel 244C2 at Lake Havasu City, Arizona, should a licensing or allotment context. See Policies Regarding be addressed to the Mass Media Bureau, Audio Services Detrimental Effects of Proposed New Broadcast Stations on Division, FM Branch, (202) 418-2700. Existing Stations, 3 FCC Red 638 (1988), aff©d. 4 FCC Red 2276 (1989); Cheyenne, Wyoming, 8 FCC Red 4473 (1993). See also Albion, Nebraska, MM Docket No. 94-143, 10 FCC Red 3183 (adopted March 13, 1995), 65 FR 15496, March

Benezra©s counterproposal. Therefore, it is hereby dismissed, Moreover, we note that, in any event. Channel 244B1 could and no responsive comments to Benezra©s counterproposal will have been allotted to Baker at a restricted site in conjunction be considered. with the instant proposal. Therefore, LBB©s comments in this 4 LBB advises that in addition to its Stations KBBC(FM) and regard are moot, and we need not consider the petitioner©s KFWJ(AM), additional primary service is provided to Lake responsive comments related thereto. Havasu City by Station KZUL-FM, Channel 283C2. Moreover, " LBB©s contentions in this regard are particularly perplexing, LLB states that noncommercial educational Station KNLB(FM) given that it filed a competing application for Channel 224C2 at also operates in Lake Havasu City. Additionally, five applica Lake Havasu City. See footnote 2, supra. tions were filed for Channel 224C2, which was allotted to Lake 1 Coordinates used for Channel 244C2 at Lake Havasu City are Havasu. City in MM Docket No. 88-490. See 1 FCC Red 2091 34-29-02 and 114-19-18. (1992). 8 As indicated supra, Channel 224C2 was allotted to Lake 5 LBB also opposes the requested allotment of FM Channel Havasu City in MM Docket No. 88-490. See 7 FCC Red 2091 244C2 to Lake Havasu, alleging that at the time of filing, the (1992). petition constituted an untimely counterproposal in MM Docket © Channel 283C2 was substituted for Channel 286C2 at Lake No. 90-530. Although Channel 244B1 was identified as one of Havasu City in MM Docket No. 90-468 and the license of three possible alternate allotments at Baker, California, in the Station KZUL-FM modified accordingly to accommodate the context of MM Docket No. 90-530, Channel 235B1 was ulti upgrade of Station KRDS-FM to Channel 287C1 at Wickenburg, mately allotted to that community. See 6 FCC Red 5785 (1991). Arizona. See 6 FCC Red 5140 (1991).

6523 DA 95-1236 Federal Communications Commission Record 10 FCC Red NO. 13

FEDERAL COMMUNICATIONS COMMISSION

John A. Karousos Chief, Allocations Branch Policy and Rules Division Mass Media Bureau

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