*Pages 1--6 from Microsoft Word - 9890.doc* Federal Communications Commission DA 01- 1539 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of ) ) Amendment of Section 73.202( b) ) MM Docket No. 01- 141 Table of Allotments, ) RM- 10146 FM Broadcast Stations. ) (Las Vegas and Pecos, New Mexico) ) NOTICE OF PROPOSED RULE MAKING Adopted: June 20, 2001 Released: June 29, 2001 Comment Date: August 20, 2001 Reply Comment Date: September 4, 2001 By the Chief, Allocations Branch: 1. The Commission considers herein a petition for rule making filed on behalf of Meadows Media, LLC (“ petitioner”), permittee of FM Station KTRL, Channel 275C2, Las Vegas, New Mexico, requesting the substitution of Channel 275C3 for Channel 275C2 at Las Vegas, the reallotment of Channel 275C3 to Pecos, New Mexico, as that community’s second local FM service, and the modification of Station KTRL’s authorization accordingly. Additionally, petitioner requests the allotment of Channel 283C2 at Las Vegas as a replacement for Channel 275C2. 1 Petitioner states that it will apply for Channel 275C3 if allotted to Pecos, and Channel 283C2 if allotted to Las Vegas, New Mexico. 2. Petitioner filed its rule making request pursuant to the provisions of Section 1.420( i) of the Commission’s Rules which permits the modificat ion of a st at ion aut horizat ion to specify a new community of license without affording other interested parties an opportunity to file competing expressions of interest. See, Modification of FM and TV Authorizations to Specify a New Community of License (“ Change of Community R& O”), 4 FCC Rcd 4870 (1989), recon. granted in part (“ Change of Community MO& O”), 5 FCC Rcd 7094 (1990). In support of its proposal, petitioner states that the proposed changes will furt her the Commission’s allot ment priorit ies and will result in a preferent ial arrangement of allot ment s since it will provide a first compet it ive FM service Pecos wit hout depriving Las Vegas of its sole local aural service, and will provide a replacement for Channel 275C2 at Las 1 As the Commission expressed concern that an earlier proposal in MM Docket No. 00- 155, to remove Channel 275C2 at Las Vegas would deprive 974 people within an area of 1,529 square kilometers of a potential second full time aural service, petitioner avers that the requested allotment of Channel 283C2 at Las Vegas will provide such service to the underserved area. 1 Federal Communications Commission DA 01- 1539 2 Vegas. 2 , 3 Pet it ioner st at es that it will apply for bot h Channel 275C3 at Pecos and Channel 283C2 at Las Vegas, if allotted. 3. In further support of its proposal, petitioner advises that the proposed allotment of Channel 275C3 at Pecos is mutually exclusive with the current allotment of Channel 275C2 at Las Vegas. 4 Addit ionally, pet it ioner st at es Pecos is not locat ed wit hin any urbanized area, nor will the reallot ment result in the provision of a 70 dBu signal to 50% or more of any urbanized area. Moreover, petitioner states that the reallotment of Channel 275C3 to Pecos will enable it to provide service to 97, 398 persons within an area of 5,278 square kilometers, representing an increase of 77,199 persons over its present ly aut horized facilit ies. Pet it ioner also advises that as St at ion KTRL has not begun operat ion on Channel 275C2 at Las Vegas, its reallotment request will not result in the loss of service to Las Vegas upon which the public has become reliant, citing Long Beach and Shallotte, North Carolina, 14 FCC Rcd 3832 (1999), Chatom and Grove Hill, Alabama, 12 FCC Rcd 7664; Douglas, Tifton and Unionville, Georgia, 10 FCC Rcd 7706 (1995); Sanibel and San Carlos Park, Florida, 10 FCC Rcd 7215 (1995). Lastly, petitioner remarks that as indicated above, the allotment of Channel 283C2 at Las Vegas will cont inue the availabilit y of an addit ional service at that communit y. 4. We believe the petitioner’s proposal warrants consideration as the reallotment request could provide Pecos with its first competitive local FM service without depriving Las Vegas of local aural transmission service, 5 and enable Station KTRL to increase its potential service area. A staff engineering study has determined that the 60 dBu coverage for Channel 275C3 at Pecos contains 78,862 persons and covers 4,803 square kilometers. Moreover, the projected 70 dBu contour at Pecos does not cover any urbanized area. The entire gain area is already well served with five or more fullt ime aural services. Addit ionally, the proposal will not result in a loss area at Las Vegas as requested Channel 283C2 at that community will provide a new service to 53, 945 persons and an area of 1,286 square kilometers. As petitioner’s modification request is consistent with the provisions of 2 The Commission’s allotment priorities are: (1) first fulltime aural service; (2) second fulltime aural service; (3) first local service; and (4) other public interest matters. (Co- equal weight is given to priorities (2) and (3).) See, Revision of FM Allotment Policies and Procedures, 90 FCC 2d 88 (1982). 3 Petitioner advises that as the Commission recently expressed concern that a proposal to remove Channel 275C2 from Las Vegas would result in 974 people within an area of 1,591 square kilometers being deprived of a potential second fulltime aural reception service, the allotment of Channel 283C2 at Las Vegas will provide such service to those people. 4 The distance between the two communities is 32.5 kilometers (20 miles) whereas a distance of 177 kilometers (110 miles) is required in this instance. 5 Las Vegas will continue to receive local aural service from AM Stations KNMX and KFUN, as well as noncommercial educational FM Station KEDP, Channel 216A, and commercial FM Stations KMDZ, Channel 244A, KBAC, Channel 251C, and KLVF, Channel 274C3. Additionally, Channel 224A was allotted to Las Vegas in MM Docket No. 00- 85, and remains subject to the opening of a filing window. See 15 FCC Rcd 17321 (2000). 2 Federal Communications Commission DA 01- 1539 3 Section 1.420( i) of the Commission’s Rules, we will not accept competing expressions of interest in the use of Channel 275C3 at Pecos, New Mexico. 5. Channel 275C3 can be allotted to Pecos at the petitioner’s specified site located 15.5 kilomet ers (9. 6 miles) sout hwest of the communit y, at coordinat es 35- 40- 15 NL and 105- 33- 06 WL. Additionally, Channel 283C2 can be allotted to Las Vegas, New Mexico at a site located .36 kilomet ers (. 2 miles) nort heast of the communit y at coordinat es 35- 35- 57 NL and 105- 12- 12 WL, representing the currently authorized site of Station KTRL. 6. Accordingly, we seek comments on the proposed amendment to the FM Table of Allotments, Section 73.202( b) of the Commission’s Rules, wit h respect to the communit ies list ed below, as follows: Channel No. City Present Proposed Las Vegas, New Mexico 224A, 244A, 251C, 224A, 244A, 251C, 264C3, 275C2 264C3, 283C2 Pecos, New Mexico 268C3 268C3, 275C3 7. 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. 8. Interested parties may file comments on or before August 20, 2001, and reply comments on or before September 4, 2001, and are advised to read the Appendix for the proper procedures. Comment s should be filed wit h the Federal Communicat ions Commission, Office of the Secret ary, 445 Twelfth Street, SW; TW- A325, Washington, D. C. 20554. Additionally, a copy of such comments should be served on the petitioner’s counsel, as follows: Barry D. Wood, Esq. Paul H. Brown, Esq. Wood, Maines & Brown, Chartered 1827 Jefferson Place, N. W. Washington, DC 20036 9. 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 FM Table of Allotments, Section 73.202( b) of the Commission's Rules. See Certification that Sections 603 and 604 of the Regulatory 3 Federal Communications Commission DA 01- 1539 4 Flexibilit y Act Do Not Apply to Rule Making t o Amend Sect ions 73. 202( b), and 73.606( b) of the Commission's Rules, 46 FR 11549, February 9, 1981. 10. For further information concerning this proceeding, contact Nancy Joyner, 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 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 that 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 4 Federal Communications Commission DA 01- 1539 5 APPENDIX 1. Pursuant to authority contained 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 discussed in the Notice of Proposed Rule Making to which this Appendix is at t ached. Proponent will be expect ed t o answer what ever 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 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 in this Notice, they will be considered as comment s in t he 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 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. Comment s and Reply Comment s; Service. Pursuant t o applicable procedures set out in Sect ions 1.415 and 1.420 of the Commission's Rules and Regulat ions, int erest ed part ies may file comment s 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 t he comment s. Reply comment s shall be served on the person 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 the Secret ary, Federal Communicat ions Commission, Washington, D. C. 20554. 5 Federal Communications Commission DA 01- 1539 6 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 (Room CY- A257), at its headquarters, 445 Twelfth Street, SW., Washington, D. C. 6