*Pages 1--5 from Microsoft Word - 4971.doc* Federal Communications Commission DA 00- 2597 Before the Federal Communications Commission Washington, D. C. 20554 ) In the Matter of ) ) Amendment of Section 73.622( b), ) MM Docket No. 00- 235 Table of Allotments, ) RM- 9992 Digital Television Broadcast Stations. ) (Lead, South Dakota) ) ) ) NOTICE OF PROPOSED RULE MAKING Adopted: November 22, 2000 Released: November 24, 2000 Comment Date: January 16, 2001 Reply Comment Date: January 31, 2001 By the Chief, Video Services Division: 1. The Commission has before it a petition for rule making filed by Duhamel Broadcasting Enterprises (" Duhamel"), licensee of station KHSD- TV, NTSC Channel 11, Lead, South Dakota. Duhamel requests the substitution of DTV channel 10 for station KHSD- TV's assigned DTV channel 30. 2. In support of its proposal, Duhamel states that the allotment of a VHF channel, rather than a UHF channel, is necessary to facilit at e the int roduct ion of digit al television service to t he vast , sparsely populated, rural area served by KHSD- TV. Duhamel contends that in order to implement DTV channel 30 at Lead, it would require Duhamel to const ruct a new tower facilit y because KHSD-TV's current facilit y cannot support the weight of an additional UHF antenna. Duhamel states that eliminat ing the need to build a new tower would also avoid any local zoning and aeronaut ical controversies and viewer disruption due to antenna orientation problems. Duhamel argues that the increased cost involved in constructing the new tower to support a television UHF operation and the increased equipment cost s and sust ained operat ing cost s of operat ing an UHF DTV facilit y present s a real impediment to the implement at ion of digit al television in a small t elevision market , an impediment that be removed by adopting KHSD- TV's channel substitution. More importantly, Duhamel claims adopt ion of its proposal will result in service to a great er number of people. 3. We believe petitioner's proposal warrants consideration. DTV Channel 10 can be substituted for DTV Channel 30 at Lead, as proposed, in compliance with the principle community coverage requirements of Section 73.625( a) at coordinates (44- 19- 36 N. and 103- 50- 12 W.). In addition, we find that this channel change is acceptable under the 2 percent criterion for de minimis impact that is applied in evaluat ing request s for modificat ion of init ial DTV allot ment s under Sect ion 1 Federal Communications Commission DA 00- 2597 2 73.623( c)( 2). We propose to substitute DTV Channel 10 for DTV Channel 30 for station KHSD- TV at Lead with the following specifications: State & City DTV Channel DTV power (kW) Antenna HAAT (m) SD Lead 10 34. 8 576 4. Accordingly, we seek comments on the proposed amendment of the DTV Table of Allotments, Section 73.622( b) of the Commission's Rules, for the community listed below, to read as follows: Channel No. City Present Proposed Lead, South Dakota 29, 30 10, 29 5. The Commission's authority to institute rule making proceedings, showings required, cut- off procedures, and filing requirement s are cont ained in the at t ached Appendix and are incorporat ed by reference herein. In particular, we note that a showing of continuing interest is required by paragraph 2 of the Appendix before a channel will be allotted. 6. Interested parties may file comments on or before January 16, 2001, and reply comments on or before January 31, 2001, and are advised to read the Appendix for the proper procedures. Comment s should be filed wit h the Secret ary, Federal Communicat ions Commission, Washingt on, D. C. 20554. Additionally, a copy of such comments should be served on the petitioner, or its counsel or consultant, as follows: Colette M. Capretz Shaw Pittman 2300 N Street, NW Washington, DC 20037- 1128 (Counsel for Duhamel Broadcasting Enterprises_ 7. The Commission has det ermined that the relevant provisions of the Regulat ory Flexibilit y Act of 1980 do not apply to rule making proceedings to amend the TV Table of Allotments, Section 73.606( b) and 73.622( b) of the Commission's Rules. See Certification That Sections 603 and 604 of t he Regulat ory Flexibilit y Act Do Not Apply to Rule Making to Amend Sect ions 73. 202( b), 73.504 and 73.606( b) of the Commission's Rules, 46 FR 11549, February 9, 1981. The Regulatory Flexibilit y Act of 1980 would also not apply to rule making proceedings to amend the DTV Table of Allotments, Section 73.622( b) of the Commission's Rules. 8. For further information concerning this proceeding, contact Pam Blumenthal, Mass Media 2 Federal Communications Commission DA 00- 2597 3 Bureau, (202) 418- 1600. For purposes of this restricted notice and comment rule making proceeding, members of the public are advised that no ex parte presentations are permitted from the time the Commission adopts a Notice of Proposed Rule Making until the proceeding has been decided and such decision is no longer subject to reconsideration by the Commission or review by any court. An ex parte presentation is not prohibited if specifically requested by the Commission or staff for the clarification or adduction of evidence or resolution of issues in the proceeding. However, any new written information elicited from such a request or a summary of any new oral information shall be served by the person making the presentation upon the other parties to the proceeding unless the Commission specifically waives t his service requirement . Any comment which has not been served on the petitioner constitutes an ex parte presentation and shall not be considered in the proceeding. Any reply comment which has not been served on the person( s) who filed the comment, to which the reply is directed, constitutes an ex parte presentation and shall not be considered in the proceeding. FEDERAL COMMUNICATIONS COMMISSION Barbara A. Kreisman Chief, Video Services Division Mass Media Bureau Attachment: Appendix 3 Federal Communications Commission DA 00- 2597 4 APPENDIX 1. Pursuant to authority found 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 PROPOSED TO AMEND the DTV Table of Allotments, Section 73.622( b) of the Commission's Rules and Regulations, as set forth in the Notice of Proposed Rule Making to which this Appendix is attached. 2. Showings Required. Comments are invited on the proposal( s) discussed in the Notice of Proposed Rule Making to which this Appendix is at t ached. Proponent (s) will be expect ed t o answer whatever questions are presented in initial comments. The proponent of a proposed allotment is also expected to file comments even if it only resubmits or incorporates by reference its former pleadings. It should also restate its present intention to apply for the channel if it is allotted and, if authorized, to build a st at ion prompt ly. Failure to file may lead to denial of the request . 3. Cut- off protection. The following procedures will govern the consideration of filings in this proceeding. (a) Counterproposals advanced in this proceeding itself will be considered, if advanced in init ial comment s, so that part ies may comment on them in reply comment s. They will not be considered if advanced in reply comments. (See Section 1.420( d) of the Commission's Rules). (b) With respect to petitions for rule making which conflict with the proposals in this Notice, t hey will be considered as comment s in the proceeding, and Public Notice to this effect will be given as long as they are filed before the date for filing initial comments herein. If they are filed later than that, t hey will not be considered in connect ion wit h the decision in this docket . (c) The filing of a counterproposal may lead the Commission to allot a different channel than was requested for any of the communities involved. 4. Comments and Reply Comments; Service. Pursuant to applicable procedures set out in Sections 1.415 and 1.420 of the Commission's Rules and Regulat ions, int erest ed part ies may file comments and reply comments on or before the dates set forth in the Notice of Proposed Rule Making to which this Appendix is attached. All submissions by parties to this proceeding or by persons acting on behalf of such part ies must be made in writ t en comment s, reply comment s, or ot her appropriat e pleadings. Comment s shall be served on the pet it ioner by the person filing the comment s. Reply comments shall be served on the person( s) who filed comments to which the reply is directed. Such comments and reply comments shall be accompanied by a certificate of service. (See Section 1.420( a), (b) and (c) of t he Commission's Rules.) Comment s should be filed wit h the Secret ary, Federal Communications Commission, Washington, D. C. 20554. 5. Number of Copies. In accordance with the provisions of Section 1.420 of the Commission's Rules and Regulations, an original and four copies of all comments, reply comments, pleadings, briefs, 4 Federal Communications Commission DA 00- 2597 5 or other documents shall be furnished the Commission. 6. Public Inspection of Filings. All filings made in this proceeding will be available for examination by interested parties during regular business hours in the Commission's Reference Center (Room CY- A257) at its headquarters, 445 12th Street, S. W., Washington, D. C. 5