*Pages 1--7 from Microsoft Word - 9572.doc* Federal Communications Commission DA 01- 1388 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. (Grants, Milan, and Shiprock, New Mexico) (Van Wert and Columbus Grove, Ohio) (Lincoln and Sherman, Illinois) (Manning and Moncks Corner, South Carolina) (Lebanon and Hamilton, Ohio and Fort Thomas, Kentucky) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) MM Docket No. 01- 118 RM- 10106 MM Docket No. 01- 119 RM- 10127 MM Docket No. 01- 120 RM- 10126 MM Docket No. 01- 121 RM- 10125 MM Docket No. 01- 122 RM- 10130 NOTICE OF PROPOSED RULE MAKING Adopted: May 30, 2001 Released: June 8, 2001 Comments due: July 30, 2001 Reply comments due: August 14, 2001 By the Chief, Allocations Branch: 1. The Allocations Branch has before it a multiple docket Notice of Proposed Rule Making setting forth four separate proposals to amend the FM Table of Allotments, Section 73.202( b) of the Rules. Each proposal involves a change of community of license. Each petitioner states that it will file an application for construction permit at each locality and effectuate the change of community if granted. We believe that each proposal warrants consideration because it complies with our technical requirements and would serve the public interest. 2. Each of the petitioners filed its proposal for reallotment in accordance with the provisions of Section 1.420( i) of the Commission’s Rules, which permits the modification of a station’s license to specify a new community of license while not affording other interested parties the opportunity to file competing expressions of interest in the proposed allotment. 1 1 See Report and Order in MM Docket No. 88- 526 (“ Change of Community R& O”), 4 FCC Rcd 4870 (1989), recon. granted in part, 5 FCC Rcd 7094 (1990) (“ Change of Community MO& O”). 1 Federal Communications Commission DA 01- 1388 2 3. This is a multiple docket Notice of Proposed Rule Making issued in response to a Commission Public Notice released October 2, 1998 (DA 98- 1987). We are combining separate FM allotment proposals into a single Notice of Proposed Rule Making. Each proposal has its own docket and rule making number and the Commission's Reference Center will maintain a separate file for each docket. As discussed in the Public Notice, this procedure will conserve Commission resources and expedite the processing of FM allotment petitions for rule making by avoiding duplicative actions. We request comments and/ or counterproposals to the following proposals: A. MM Docket No. [01- 118] RM- 10106 Petitioner: KXXQ Radio Partners, Inc. (“ KXXQ”) C/ O Robert Lewis Thompson Hiemann Aitken & Vohra, LLC 908 King Street, Suite 300 Alexandria, VA 22314 Proposal: KXXQ, licensee of Station KXXQ( FM), Grants, New Mexico, proposes to substitute Channel 264C0 for Channel 264A at Grants, New Mexico, reallot Channel 264C0 from Grants to Milan, New Mexico, and modify the license for Station KXXQ( FM) to reflect the changes. It also proposes to substitute Channel 299C1 for vacant Channel 265C1 at Shiprock, New Mexico to accommodate the changes. Channel Community Present Proposed Grants, New Mexico 224C2, 264A, 224C2, 279C, 279C, 288C 288C Milan, New Mexico ----- 264C0 Shiprock, New Mexico 265C1 299C1 Coordinates: Coordinates for Channel 264C0 at Milan are 35- 2- 19 NL and 107- 56- 52 WL. Coordinates for Channel 299C1 at Shiprock are 36- 46- 12 NL and 108- 42- 49 WL. Additional Information: KXXQ notes that the reallotment will not deprive Grants of its sole local aural transmission service and it will provide Milan with its second local aural transmission service and its first competitive service. No urbanized areas are involved. We seek comment on the relative population gains and losses resulting from the reallotment. Channel 264C0 can be allotted at Milan with a site restriction of 21.2 kilometers (13.2 miles) north of the community. Channel 299C1 can be allotted at Shiprock at the original allotment site. Petitioner pledges to reimburse the eventual permittee at Shiprock for any costs associated with substituting Channel 299C1 for Channel 265C1 at that community. FCC Contact: Victoria McCauley (202) 418- 2180 B. MM Docket No. [01- 119] RM- 10127 Petitioner: Clear Channel Broadcasting Licenses, Inc. (“ Clear Channel”) C/ O Marissa G. Repp F. William LeBeau Hogan & Hartson 555 Thirteen Street, NW Washington, DC 20004- 1109 2 Federal Communications Commission DA 01- 1388 3 Proposal: Clear Channel, permittee of an unconstructed FM station at Van Wert, Ohio, proposes to substitute Channel 230B1 for Channel 230A at Van Wert, reallot the channel to Columbus Grove, Ohio, as the community’s first local aural transmission service, and modify its construction permit to reflect the changes. Channel Community Present Proposed Van Wert, Ohio 230A, 255B 255B Columbus Grove, Ohio ----- 230B1 Coordinates: Coordinates for Channel 230B1 at Columbus Grove are 40- 57- 33 NL and 84- 08- 14 WL. Additional Information: This proposal will not deprive Van Wert of its only aural transmission service and will provide a first local service to Columbus Grove. In support of its petition, Clear Channel includes information regarding the independent community status of Columbus Grove, Ohio, in the context of Faye and Richard Tuck, 2 although it notes that Columbus Grove is not in any urbanized area. 3 It states that Columbus Grove has its own city government, with an elected mayor, village council and police department. It has a water and sewage department, a public affairs office, school district and library. In addition, it has its own zip code and post office. Finally, it has a weekly newspaper, medical establishments and businesses. We seek comment on the relative population gains and losses resulting from the reallotment. Channel 230B1 can be allotted at Columbus Grove with a site restriction of 8.1 kilometers (5. 0 miles) northwest of the community. This proposal is within 320 kilometers of the Canadian border. Therefore, Canadian concurrence will be requested for this allotment. FCC Contact: Victoria McCauley (202) 418- 2180 C. MM Docket No. [01- 120] RM- 10126 Petitioner: Saga Communications of Illinois, Inc. (“ Saga”) C/ O Gary S. Smithwick Smithwick and Belendiuk 5028 Wisconsin Ave., N. W. Suite 301 Washington, DC 20016 Proposal: Reallot Channel 230B1 from Lincoln, Illinois to Sherman, Illinois and modify the license of Station WMHX( FM) to reflect the change of community. Channel Community Present Proposed Lincoln, Illinois 230B1 ---- - Sherman, Illinois ----- 230B1 Coordinates: Coordinates for Channel 230B1 at Sherman, Illinois are 40- 00- 09 NL and 89- 39- 35 WL. 2 See 3 FCC Rcd 5374 (1988). 3 Our initial analysis shows that the proposed site for Channel 230A at Columbus Grove will provide a 70dBu signal to 22% of the Lima, Ohio Urbanized Area. 3 Federal Communications Commission DA 01- 1388 4 Additional Information: In support of its petition, Saga includes information regarding the community status of Sherman Illinois. It states that Sherman is listed in the U. S. Census and has a 1990 population of 2,080 persons. It has an elected mayor and board of trustees, its own post office and zip code, elementary school, local phone directory, police department, churches, medical professionals, and businesses. We seek comment on the relative population gains and losses resulting from the reallotment. Channel 230B1 can be allotted at Sherman, Illinois, at petitioner’s requested site 13 kilometers (8. 1 miles) north of the community. FCC Contact: Victoria McCauley (202) 418- 2180 D. MM Docket No. [01- 121] RM- 10125 Petitioner: Cumulus Licensing Corp. (“ Cumulus”) David D. Burns Kathrine L. Calderazzi Paul, Hastings, Janofsky & Walter 1299 Pennsylvania Ave., N. W. Tenth Floor Washington, DC 20004- 2400 Proposal: Reallot Channel 223C from Manning to Moncks Corner, South Carolina, and modify the license of Station WHLZ to reflect the change of community. Channel Community Present Proposed Manning, South Carolina 223C ---- - Moncks Corner, South Carolina ----- 223C Coordinates: Coordinates for Channel 223C at Monck’s Corner are 33- 32- 05 NL and 79- 59- 15 WL. Additional Information: In support of its petition, Cumulus states that the community of Moncks Corner is incorporated and has a 1990 U. S. Census population of 5,607 persons. Since Moncks Corner currently has an AM Daytime- only station, Cumulus notes that this reallotment would provide the community with its first full- time station and first FM station. Cumulus is requested to provide additional information on the community status of Moncks Corner. Since there is no change of transmitter site, there are no population gains or losses from this reallotment. Channel 223C can be allotted at Cumulus’s existing site 37.7 kilometers (23.4 miles) north of the community. We also note that this site is short spaced due to Station WMYB( FM) ’s (Channel 221C2, Myrtle Beach, South Carolina), use of Section 73.215 processing toward Station WHLZ. Cumulus states that since this cases involves no change of transmitter site and no increase of short spacing, the ruling in Report and Order in MM Docket No. 98- 176 (Killeen and Cedar Park, Texas) 4 allowing such a change of community should apply. We seek comment on this issue. FCC Contact: Victoria McCauley (202) 418- 2180 4 15 FCC Rcd 1945 (2000). 4 Federal Communications Commission DA 01- 1388 5 E. MM Docket No. [ 01- 122] RM- 10130 Petitioners: Infinity Radio License Inc. (“ Infinity”) Caron Broadcasting (“ Caron”) c/ o John D. Poutasse c/ o James P. Riley 2000 K Street, N. W. Suite 600 Fletcher, Heald and Hildreth Washington, DC 20006- 1809 1300 N. 17 th Street, 11 th Floor Arlington, VA 22209- 3801 Proposal: Infinity, licensee of Station WAQZ( FM), Lebanon, Ohio, requests the reallotment of Channel 247A from Lebanon, Ohio to Fort Thomas, Kentucky as the community’s first local aural transmission service, and the modification of Station WAQZ’s license to reflect the change. Caron, licensee of Station WYGY( FM), Hamilton, Ohio, requests the reallotment of Channel 243B from Hamilton to Lebanon and the modification of its license to reflect the change. Channel Community Present Proposed Hamilton, Ohio 243B, 278B 278B Lebanon, Ohio 247A 243B Fort Thomas, Kentucky ----- 247A Coordinates: Coordinates for Channel 247A at Fort Thomas, Kentucky, are 39- 11- 51 NL and 84- 22- 56 WL. Coordinates for Channel 243B at Lebanon, Ohio, are 39- 21- 11 NL and 84- 19- 30 WL. Additional Information: In support of the proposals, Infinity and Caron note that the result of this combination of reallotments will be that neither Hamilton nor Lebanon will be deprived of its sole local service and Fort Thomas will receive it first local aural transmission service. With respect to the community status of Fort Thomas, they state that it was incorporated in 1867 and had a 1990 U. S. Census population of 16,032 persons. They also claim that while Fort Thomas is wholly within the Urbanized Area of Cincinnati, Ohio, it is independent of the Cincinnati Urbanized Area and give information to show its independence based on the factors listed in Faye and Richard Tuck 5 They also give information on population gains and losses from the reallotment. We seek comment on these issues. With respect to the reallotment of Channel 243B from Hamilton to Lebanon and the modification of Station WYGY( FM), they note that no technical changes to the facility are proposed. They thus claim that the proposal is fully spaced based on Section 73.213( a) of the Commission’s Rules regarding “pre- 1964” grandfathered short- spaced stations under Section 73.207 of the rules. 6 We seek comment on this issue. Channel 247A can be allotted at Fort Thomas at petitioner’s requested site 14.7 kilometers (9. 1 miles) north of Fort Thomas. Channel 243B can be reallotted from Hamilton to Lebanon at Station WYGY( FM) ’s existing site 13.9 kilometers (8. 6 miles) southwest of the community. FCC Contact: Victoria McCauley (202) 418- 2180. 5 3 FCC Rcd 5374 (1988). 6 Citing Report and Order in MM Docket No. 90- 138 (Newnan and Peachtree City, Georgia), 7 FCC Rcd 6307 (1992); Report and Order in MM Docket No. 99- 216 (Oceanside and Encinitas, California, 14 FC Rcd 15303 (1999); Report and Order in MM Docket No. 99- 170 (Berlin and North Conway, New Hampshire), 14 FCC Rcd 15307 (1999). 5 Federal Communications Commission DA 01- 1388 6 4. Comments, reply comments, counterproposals and other pleadings filed in response to this multiple docket Notice of Proposed Rule Making should reference only the specific docket to which the filing pertains. 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 in paragraph 2 of the Appendix before a channel will be allotted. 5. Interested parties may file comments on or before July 30, 2001, and reply comments on or before August 14, 2001, and are advised to read the Appendix for the proper procedure. Additionally, a copy of any filing should be served on the petitioner listed for the particular docket. 6. The Commission has determined that the relevant provisions of the Regulatory Flexibility Act of 1980 do not apply to a rule making proceeding to amend the FM Table of Allotments, Section 73.202( b) of the Commission's Rules. See Certification that Section 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). 7. For further information concerning a proceeding listed above, contact the FCC contact listed for that proceeding. 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 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 6 Federal Communications Commission DA 01- 1388 7 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. 7