*Pages 1--6 from Microsoft Word - 1032.doc* Federal Communications Commission DA 00- 916 Before the Federal Communications Commission Washington, D. C. 20554 ) In the Matter of ) ) Amendment of Section 73.202( b), ) MM Docket No. 00- 69 Table of Allotments, ) RM- 9850 FM Broadcast Stations. ) (Cheboygan and ) Rogers City, Michigan) ) NOTICE OF PROPOSED RULE MAKING AND ORDER TO SHOW CAUSE Adopted: April 12, 2000 Released: April 25, 2000 Comment Date: June 16, 2000 Reply Date: July 3, 2000 By the Chief, Allocations Branch 1. Before the Commission for consideration is a Petition for Rule Making filed by Escanaba License Corp. (“ Escanaba”), proposing the allotment of Channel 260C2 at Cheboygan, Michigan, as a second local FM service. Escanaba also requests the substitution of Channel 292C2 for Channel 260C2 at Rogers City, Michigan. Escanaba indicated that it would file an application for Channel 260C2 at Cheboygan if the channel is allotted to the community. 2. We believe Escanaba’s proposal warrants consideration because the proposed allotment would provide Cheboygan with an additional FM service. Escanaba notes that Channel 260C2 can be allot t ed to Cheboygan, Michigan, in compliance wit h the minimum dist ance separat ion requirement s of the Commission's Rules provided Channel 292C2 is substituted for Channel 260C2 at Rogers City, Michigan. 1 Station WHAK operates on Channel 260C2 at Rogers City. The proposed substitution at Rogers City can be accomplished in compliance with the minimum distance separation requirements of the Commission's Rules at the current site of Station WHAK. 2 Since Cheboygan and Rogers City are located within 320 kilometers (200 miles) of the U. S.- Canadian border, concurrence of the Canadian Government will be requested for the allotments at both communities. 1 The coordinates for Channel 260C2 at Cheboygan are 45- 33- 53 and 84- 07- 54. There is a site restriction 28.7 kilometers (17.8 miles) east of the community. 2 The coordinates for Channel 292C2 at Rogers City are 45- 23- 53 and 83- 55- 19. 1 Federal Communications Commission DA 00- 916 2 3. Whenever an existing licensee is ordered to switch frequencies in order to accommodate a new channel allot ment , we require the proponent of a new allot ment t o make a commitment t hat it would reimburse the affected station for the costs incurred in changing frequencies. Escanaba has acknowledged it s responsibilit y t o reimburse St at ion WHAK, Rogers Cit y, Michigan, for the reasonable costs in changing frequency. 4. In view of the above, we believe the public interest would be served by proposing the allotment of Channel 260C2 at Cheboygan, Michigan, since it would provide the community with an additional FM service. Accordingly, we seek comments on the proposed amendment of the FM Table of Allotments, Section 73.202( b) of the Commission's Rules, for the communities listed below, to read as follows: Channel No. Community Present Proposed Cheboygan, Michigan 286C1 260C2, 286C1 Rogers City, Michigan 244C2, 260C2 244C2, 292C2 5. IT IS FURTHER ORDERED, pursuant to section 316( a) of the Communications Act of 1934, as amended, Ives Broadcasting, Inc., the licensee of Station WHAK, Rogers City, Michigan, SHALL SHOW CAUSE why its license should not be modified to specify operation on Channel 292C2 in lieu of Channel 260C2. 6. Pursuant to Section 1.87 of the Commission's Rules, Ives Broadcasting, Inc., may not later than June 16, 2000, file a written statement showing with particularity why their respective authorization should not be modified as proposed in the Order to Show Cause. The Commission may call on Ives Broadcasting, Inc. to furnish additional information. If Ives Broadcasting, Inc. raises a substantial and material question of fact, a hearing may be required to resolve such a question pursuant to Section 1.87. Upon review of the statements and/ or additional information furnished, the Commission may grant the modification, deny the modification, or set the matter of modification for hearing. If no written statement is filed by the date referred to above, Ives Broadcasting, Inc. will be deemed to have consented to the modification as proposed in the Order to Show Cause and a final Order will be issued by the Commission, if the above- ment ioned channel allot ment is ult imat ely found t o be in the public int erest . 2 Federal Communications Commission DA 00- 916 3 7. IT IS FURTHER ORDERED, That the Secretary Shall Send by Certified Mail, Return Receipt Requested, a copy of this Notice of Proposed Rule Making and Order to Show Cause to the following: Ives Broadcasting, Inc. 1491 M- 32 West Alpena, Michigan 49707 8. 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. 9. Interested parties may file comments on or before June 16, 2000, and reply comments on or before July 3, 2000, and are advised to read the Appendix for the proper procedures. Comments should be filed with the Secretary, Federal Communications Commission, Washington, D. C., 20554. Additionally, a copy of such comments should be served on the petitioner's counsel, as follows: Lyle Robert Evans, President Escanaba License Corp. 1101 Ludington Street Escanaba, Michigan 49829 10. The Commission has det ermined that the relevant provisions of t he Regulat ory Flexibilit y Act of 1980 do not apply to rule making proceedings to amend the FM Table of Allotments, Section 73.202( b) of the Commission's Rules. See Certification that Sections 603 and 604 of the Regulatory 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. 11. For further information concerning this proceeding contact Kathleen Scheuerle, Mass Media Bureau, (202) 418- 2180. 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 other parties to the proceeding unless the Commission specifically waives this 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 3 Federal Communications Commission DA 00- 916 4 person( s) who filed the comment, to which the reply is directed, constitutes an ex parte presentation and shall not be considered in this proceeding. FEDERAL COMMUNICATIONS COMMISSION John A. Karousos Chief, Allocations Branch Policy and Rules Division Mass Media Bureau APPENDIX 1.Pursuant to authority found in Sections 4( i), 5( c)( 1), 303( g) and (r) and 307( b) of the 4 Federal Communications Commission DA 00- 916 5 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 FM Table of Allotments, Section 73.202( b) of the Commission's Rules and Regulations, as set forth in the Notice of Proposed Rule Making to which this Appendix is at t ached. 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 Procedures. 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 proposal( s) in this Not ice, they 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, they will not be considered in connection with 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 the Commission's Rules.) Comment s should be filed wit h t he 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, or other documents shall be furnished the Commission. 5 Federal Communications Commission DA 00- 916 6 6. Public Inspect ion of Filings. All filings made in t his proceeding will be available for examination by interested parties during regular business hours in the Commission's Public Reference Room at its headquarters, 445 Twelfth Street, SW, Washington, D. C. 20554. 6