*Pages 1--4 from Microsoft Word - 9198.doc* Federal Communications Commission DA 01- 1296 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of Amendment of Section 73.202( b), FM Table of Allotments, FM Broadcast Stations. (Big Piney and La Barge, Wyoming) ) ) ) ) ) ) MM Docket No. 01- 113 RM- 9655 NOTICE OF PROPOSED RULE MAKING Adopted: May 16, 2001 Released: May 25, 2001 Comments Date: July 16, 2001 Reply Comments Date: July 31, 2001 By the Chief, Allocations Branch: 1. The Allocations Branch has before it a petition for rulemaking filed by Mount Rushmore Broadcasting, Inc. (petitioner) requesting the allotment of Channel 259A at Big Piney, Wyoming, and Channel 261A at La Barge, Wyoming. Petitioner states that it will file applications to construct and operate stations at both communities. 2. In support of its proposal, petitioner states that both communities are communities for allotment purposes. We note that petitioner originally filed this request as a counterproposal in MM Docket 99- 56. 1 At the conclusion of that proceeding we stated that we would institute a separate proceeding to consider the allotment of channels at these two communities. 2 Our engineering analysis shows that consistent with the minimum distance separation requirements of Section 73.207( b) and the principal community coverage requirements of Section 73.315( a) of the Commission’s Rules, Channel 259A can not be allotted at Big Piney, and Channel 261A can not be allotted at LaBarge. However, alternate channels can be allotted at both communities. Channel 224A can be allotted at Big Piney and Channel 231A can be allotted at La Barge, Wyoming. 3. We believe that the proposed allotments at Big Piney and LaBarge could serve the public interest because each community would be a receiving a first local transmission service. Channel 224A can be allotted at Big Piney consistent with the minimum distance separation requirements of Section 73.207( b) and the principal community coverage requirements of Section 73.315( a) of the Commission’s Rules 1 In this pleading, Mount Rushmore also includes a proposal to institute a proceeding to reevaluate the Commission’s FM allotment priorities, claiming that the current allotment scheme discriminates against minorities. Such a proposal is not appropriately filed in an adjudicatory proceeding such as this and will not be considered further. 2 See 15 FCC Rcd 10,358 (2000). 1 Federal Communications Commission DA 01- 1296 2 without a site restriction. 3 Likewise, Channel 231A can be allotted at La Barge consistent with the minimum distance separation requirements of Section 73.207( b) and the principal community coverage requirements of Section 73.315( a) of the Commission’s Rules without the imposition of a site restriction. 4 4. 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 community listed below, to read as follows: Channel Number Community Present Proposed Big Piney, Wyoming --- 224A LaBarge, Wyoming --- 231A 5. The Commission's authority to institute rule making proceedings, showings required, cut-off procedures, and filing requirements are contained in the attached Appendix and are incorporated 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 July 16, 2001, and reply comments on or before July 31, 2001, 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, or its counsel or consultant, as follows: Thomas J. Hutton Holland & Knight 2100 Pennsylvania Ave., N. W. Washington, D. C. 20037- 5564 (Counsel to petitioner) 7. The Commission has determined that the relevant provisions of the Regulatory Flexibility 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 Flexibility Act Do Not Apply to Rule Making to Amend Sections 73.202( b), 73.504 and 73.606( b) of the Commission's Rules, 46 FR 11549, February 9, 1981. 8. For further information concerning this proceeding, contact Victoria M. McCauley, 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 3 The coordinates for Channel 224A at Big Piney are 42- 32- 24 NL and 110- 06- 42 WL. 4 The coordinates for Channel 231A at LaBarge are 42- 15- 42 NL and 110- 11- 36 WL. 2 Federal Communications Commission DA 01- 1296 3 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 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 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 John A. Karousos Chief, Allocations Branch Policy and Rules Division Mass Media Bureau Attachment: Appendix 3 Federal Communications Commission DA 01- 1296 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 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 attached. 2. Showings Required. Comments are invited on the proposal( s) discussed in the Notice of Proposed Rule Making to which this Appendix is attached. Proponent( s) will be expected to 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 station promptly. 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 initial comments, so that parties may comment on them in reply comments. 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, they will be considered as comments 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 Regulations, interested parties 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 parties must be made in written comments, reply comments, or other appropriate pleadings. The person filing the comments shall serve comments on the petitioner. Reply comments shall be served on the person( s) who filed comments to which the reply is directed. A certificate of service shall accompany such comments and reply comments. (See Section 1.420( a), (b) and (c) of the Commission's Rules.) Comments should be filed with the Secretary, 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. 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 Information Center, at its headquarters, 445 12th Street, S. W., Washington, D. C. 4