Confusion Over Texas FM Allocation Battle Results In New FCC Test
July 12, 2013 at 4:12 PM (PT)
The FCC has granted a proposal to change the channel for an allotment for a new FM at MIDWAY, TX and has also granted a counterproposal for a new FM allotment at OAKWOOD, TX.
The matter began with the proposed allotment of FM Channel 267A at MIDWAY and the substitution of Channel 232A for vacant Channel 267A at CENTERVILLE, TX. ROY E. HENDERSON, licensee of KTWL/HEMPSTEAD, TX and KLTR/BRENHAM, TX timely filed counterproposals to allot Channel 233A at OAKWOOD, change the community of license for KTWL to TODD MISSION, TX at a new site, and an upgrade and move of KLTR from BRENHAM to HEMPSTEAD as a "backfill," and the substitution of Channel 232A for vacant Channel 288A at LOVELADY, TX.
The counterproposals/applications conflicted with the CENTERVILLE substitution. Just prior to that filing, a conflicting minor modification application was made to upgrade and move KAGZ/LUFKIN, TX from Channel 230A to Channel 230C2 at BURKE, TX. HENDERSON said he was, at the time of his filing, unaware of the BURKE application. The FCC issued a public notice to allow HENDERSON an opportunity to amend his Counterproposal within 15 days, which he did by changing the reference coordinates of vacant Channel 288A at LOVELADY rather than substituting Channel 232A for Channel 288A there.
KATHERINE PYEATT, who filed the initial MIDWAY proposal, objected to the HENDERSON amendment, claiming that HENDERSON had failed to do proper due diligence. Since HENDERSON had only five days between the BURKE filing and his own amendment deadline, and under public interest analysis, the Commission allowed the amendment. The Commission, on its own accord, found an alternate channel for PYEATT's MIDWAY proposal and granted the allocation at Channel 251A, allowing the HENDERSON proposal to also be approved.
As a result of the confusion, the Commission established a three-pronged test for similar conflicts: prospective counterpronents in FM allotment rule making proceedings must take into account all FM application filings “released” by Broadcast Actions Public Notices more than 15 days from the counterproposal deadline; applicants are required to confirm the acceptability of their engineering no more than five business days prior to the counterproposal deadline, and if changes to the FCC database occur between 5 and 15 days from the counterproposal deadline and result in a conflict, the counterproposal must note the conflict and request release of a Public Notice starting a 15-day cure period; and conflicting applications announced by Broadcast Actions Public Notices less than five business days from the counterproposal deadline do not have to be noted or accounted for in an otherwise timely filed counterproposal.