OOCKET FILE COpy ORIGINAl Before the ORIGINAL FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of ) ) Amendment ofSection 73.202(b) ) Table ofAllotments ) FM Broadcast Stations ) (West Hurley, Rosendale, and ) Rhinebeck, New York, and ) North Canaan and Sharon, Connecticut) ) To: Chief, Allocations Branch Policy and Rules Division Mass Media Bureau PETITION FOR RECONSIDERATION Sacred Heart University, Inc. ("SHU"), by its counsel, hereby submits a Petition for Reconsideration pursuant to Section 1.429 of the Commission's Rules, of the Report and Order ("RO&O"), DA 01-1735 released July 20, 2001 in the above captioned proceeding. l The RO&O adopted the Counterproposal of State University of New York ("SUNY") and allotted Channel *273A to Rhinebeck, New Yark and substituted Channel 255A for Channel 273A at Rosendale, New Yark. The RO&O denied the Petition ofSHU to allot Channel *277A at North Canaan, Connecticut which included the substitution ofChannel 255A for Channel 273A at Rosendale, New York. As will be explained herein, the SUNY proposal is defective and should not have been adopted. In addition, North Canaan should be preferred for a first local service. In support hereof, SHU states as follows: 1. The Petition for Reconsideration is timely filed within 30 days ofthepublication oftheR&O in the Federal Register. See 66 FR 39454 (July 31, 2001)and 1.429(d) ofthe Commission's Rules. 66567.1 ~ :" _ t ,"" , '.. ~." ' I. DEFECTIVE COUNTERPROPOSAL 1. On December 1, 1995, SHU filed a Petition for Rule Making to allot Channel *277A to North Canaan as its first local service and, inter alia, substitute Channel 255A for 273A at Rosendale. The Commissionhad previously allotted Channel 273A at Rosendale, NewYork inMM Docket 93-1 72 but no applications had been submitted at the time SHU filed its Petition. The NPRM in this proceeding was not issued until August 15, 1997. By then, nine applications for Channel 273A at Rosendale had been filed. 3 In the RO&O in this proceeding at paragraph 5 the Commission noted that "the Sacred Heart Petition for Rule Making proposing the Channel 255A substitution at Rosendale was filed prior to the filing ofthe Rosendale applications. In accordance with Section 73.208 of the Rules, these applicants are not entitled to have their individual transmitter site preferences protected by an earlier rule making proposal". See Conflicts Between Applications and Petitions for Rule Making to Amend the FM Table ofAllotments, 6 FCC Rcd 7346 (1991), recons. granted in part, 8 FCC Rcd 4743 (1993). That statement provided the basis for issuing the NPRM and the processing ofSHU's petition. However, SUNY's Counterproposal was not filed earlier than the nine applications for Rosendale. Thus under Conflicts, the SUNY proposal must protect the transmitter sites of every prior filed application in order to have the Commission consider a substitute channel at Rosendale. SUNY's proposal failed to protect these applications and failed to request a waiver ofSection 73.208 ofthe Rules. There was no channel study for Channel 255A at Rosendale and no argument in SUNY's pleading that Channel 255A could be substituted at 2. R&O, 10 FCC Rcd 11471 (1995), recons. denied, 11 FCC Rcd 3607 (1996) application for review denied, 12 FCC Rcd 10020 (1997). 3. The nine applications which remain pending were filed on January 11, 1996, 19 months earlier then SUNY's proposal. 66567.1 2 Rosendale as a part ofits Counterproposal which did not protect the transmitter sites ofthe prior filed applications under Section 73.208 ofthe Commission's Rules. Instead SUNY attempted to "piggyback"on SHU's earlier filed Petition for Rule Making. 2. However, the Commission's procedural and technical rules do not permit a Counterproposal to be defective. Counterproposals must be acceptable when filed. See Detroit. Texas, et aI, 13 FCC Rcd 15591 (1998). Counterproposals which adversely affect the acceptable proposals in the same proceeding can not be cured. These rules are a matter of procedural due process and fairness. The Commissionhas consistentlyrefused to accept defective Counterproposals when as a result, an acceptable proposal would be denied.4 3. In Conflicts, the Commission gave a good reason for treating two proposals for an allotment differently based on when they were filed. In considering a situation where an application was filed before the close ofa comment window period, ifthe Counterproposal is filed before the conflicting application, then the Counterproposal is protected. Ifthe Counterproposal is filed after the application, but before the close ofthe Comment period, then the application is protected and the Counterproposal is given a period oftime to cure. The Commission stated: "we do not believe that this is inequitable because potential petitioners do not have to wait to the end of the comment period to file their Counterproposals. While parties may desire to file on the last day of a comment period to minimize the 4. This situation is akin to that faced by the Commission in Lancaster. Wisconsin, et aI., 6 FCC Rcd 6113 (1991) where in MM Docket 88-375, 4 FCC Rcd 6375 (1989), the Commission had changed the spacing requirements for Class A channels. Ifa petition or Counterproposal were filed before October 2, 1989, the proposal was considered under the Section 73.207 spacing requirements applicable at the time offiling. Ifa Counterproposal were filed after October 2, 1989, it could not "piggyback" on the original filing, but must meet the revised spacing rules. See also LaFayette. Georgia, 6 FCC Rcd 7427 (1991); Greenwood. South Carolina and Gibson. Georgia, 5 FCC Rcd 7022 (1990); Quincy. Shingle Springs. and Sutter Creek. South Carolina, 7 FCC Rcd 937 (1992). 66567.1 3 possibility that other Counterproposals may be filed, or other tactical reasons, they do so at a risk that an application could be filed earlier. This risk could in large part be minimized by filing a Counterproposal at the earliest possible time, rather than waiting for the comment period to expire. Indeed, rule making petitions could protect themselves by filing their proposals as initial petitions for rule making in lieu ofwaiting for a proceeding in which to file them as Counterproposals. We see no public interest reason to alter the rule adopted simply to preserve potential tactical ploys by petitioners. MO&O 8 FCC Rcd 4743, 4745 4. SHU does not know why SUNY chose to wait until the last day for filing its Counterproposal. SHU does not mean to suggest or imply in any way that there was anything improper in its intent. However, SUNY did wait to file and must suffer the consequences. It is clear that SUNY's Counterproposal was required to have been acceptable when filed. SUNY could have filed its proposal before January 11, 1996. It chose to wait and, as a result, took the risk that Commission rules or circumstances surrounding a case would change in a way which adversely affected the acceptability of its proposal. In fact, the nine Rosendale applications were filed, rendering SUNY's later-filed Counterproposal defective. II. RHINEBECK VILLAGE 5. In its Counterproposal, SUNY requests that the Commission allot Channel *273A to the Town ofRhinebeck and community indicia was shown for that geographic entity. However, SUNY used the wrong community entity. New York State uses the term "Town" to define a larger subdivision in a county. See attached Census information in Exhibit A. There is also the Village of Rhinebeck, which has all of the indicia of a community including its own local government, business and cultural and civic activities. See Exhibit A. The 2000 U.S. Census population ofthe Village ofRhinebeck is 3,077 persons. SHU asserts that the proper community to be considered here is the Village of Rhinebeck. A review of SUNY's Counterproposal reveals no supporting documents to demonstrate the relationship between the Village and the Town. The burden was on 66567.1 4 SUNY to demonstrate that the Town was the proper community entity in this instance and it did not properly do so. 6. Comparing the Village ofRhinebeck (population 3,077) to North Canaan, Connecticut (2000 Census population of3,350), North Canaan should be preferred for a first local service under the priorities set forth in Revision ofFM Assignment Policies and Procedures 90 FCC 2d 88 (1982). See Exhibit B. See also West Liberty and Richwood, Ohio, 6 FC Rcd 6068 (1991) and cases cited in paragraph 4 ofthe RO&O. 7. Accordingly, SHU believes that the Commission can not ignore its own strict procedural and technical rules or waive them in this instance. Such treatment would create a precedent which could open the opportunity for any defective Counterproposal to be processed regardless of the impact on other acceptable proposals. In addition, North Canaan is larger than Rhinebeck and should receive the allotment. Thus, the Commission must dismiss SUNY's Counterproposal as defective when filed and reconsider SHU's petition for a first local service at North Canaan, Connecticut, with channel substitutions at Sharon, Connecticut and Rosendale, New York. Respectfully submitted, SACRED HEART UNIVERSITY, INC. By: 1t~f4p Shook Hardy & Bacon LLP 600 14th Street, NW Suite 800 Washington, DC 20005 Its Counsel August 30, 2001 66567.1 5 EXHIBIT A ._. - .... !!!:!!!!!'!!'!!!!!!'!~--=--~o====~=~=~~~~---;--~-- .. - --...-..------.- 0: Table 8. Population and Housing Units, 1970 to 1990; Area Measurements and Density: 1990-con. z [for information concerning historical counts. see "User Holts." Density is computed using land CIllO. for definitions of Ienn$ ond meanings of symbols, see text] i State Populotion Housing units 1990 CIn!O rneasuremenl1 1990 density ~ County Tolol oreo lond oreo Populotion per- County Subdivision Housing units per- Place 1990 1980 = 1970 1990 1980 1970 Squore kilometers Squoremiles Squore kilometers Squore miles Squore kilometer Squore mile Squore kbneIer Squore mile y t-Con.