*Pages 1--7 from Microsoft Word - 8002.doc* Federal Communications Commission DA 01- 804 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of ) ) Amendment of Section 73.202( b), ) Table of Allotments, ) FM Broadcast Stations. ) (Eagle Lake, Texas) ) MM Docket No. 01- 80 ) RM- 10089 ) (Montana City, Montana) ) MM Docket No. 01- 81 ) RM- 10090 ) NOTICE OF PROPOSED RULE MAKING Adopted: March 21, 2001 Released: March 30, 2001 Comment Date: May 21, 2001 Reply Comment Date: June 5, 2001 By the Chief, Allocations Branch: 1. Before the Commission for consideration is a multiple docket Notice of Proposed Rule Making setting forth separate proposals to amend the FM Table of Allotments, Section 73.202( b) of t he Rules. Each pet it ioner has st at ed that it will apply for its request ed channel, if allot t ed. We believe that each proposal warrants consideration because it complies with our technical requirements and would serve the public interest. 2. This is a mult iple docket Not ice of Proposed Rule Making issued in response t o 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 Not ice, 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: 1 Federal Communications Commission DA 01- 804 2 A. MM Docket No. 01- 80; RM- 10089 Petitioner: Stargazer Broadcasting, Inc. David P. Garland, President Stargazer Broadcasting, Inc. P. O. Box 519 Woodville, Texas 75979 Proposal: Allot Channel 237C3 at Eagle Lake, Texas, as the community’s first local aural transmission service. 1 Community Present Proposed Eagle Lake, Texas -- 237C3 Coordinates: 29- 35- 15 NL and 96- 30- 03 WL Additional Information: This allot ment requires a sit e rest rict ion 16. 4 kilomet ers (10. 2 miles) west to avoid short- spacings to the licensed sites of Station KVIC( FM), Channel 236C3, Victoria, Texas, and Station KIKK- FM, Channel 239C, Houston, Texas. FCC Contact: Sharon P. McDonald (202) 418- 2180 1 Eagle Lake is an incorporated community located in Colorado County and has a 1990 U. S. Census population of 3,551person, and a 1996 estimated population of 3,774 persons. Petitioner states that Eagle Lake is a Class A General Law City with a City Manager- Council form of government. It has a post office and a zip code (77434). Although the petitioner's request was signed, it failed to include an affidavit verifying that the statements contained in the petition were accurate to the best of his knowledge. Section 1. 52 of the Commission's Rules requires that the original of any document filed with the Commission by a party not represented by counsel be signed and verified by the party and his/ her address stated. In the absence of such verification, the petition may be dismissed. Section 1.401( b) of the Commission's Rules concerning rule making proceedings places petitioners on notice that their proposal must conform with the requirements of Section 1. 52 regarding subscription and verification. See also Amendment of Sections 1.420 and 73.3584 of the Commission's Rules Concerning Abuses of the Commission's Processes, 5 FCC Rcd 3911, 3919 n. 41 (1990). The petitioner is requested to rectify this omission in his comments. 2 Federal Communications Commission DA 01- 804 3 B. MM Docket No. 01- 81; RM- 10090 Petitioner: Montana Magic Investments, Inc. Roger Lonnquist Montana Magic Investments, Inc. Post Office Box 4218 Helena, Montana 59604 Proposal: Allot Channel 293A at Montana City, Montana, as the community’s first local aural transmission service. 2 Community Present Proposed Montana City, Montana --- 293A Coordinates: 46- 33- 43 NL and 111- 57- 39 WL 2 Section 307( b) of the Communications Act of 1934, as amended, mandates that the Commission fairly, equitably, and efficiently distribute frequencies " . . . among the several States and communities." The Commission has defined "communities" as geographically identifiable population groupings. Generally, if a community is incorporated or is listed in the U. S. Census, that is sufficient to demonstrate its status. Montana City is not listed in the U. S. Census. Therefore, the petitioner should present the Commission with sufficient information to demonstrate that Montana City is incorporated, or that it has social, economic, cultural, or governmental indicia to qualify it as a "community" for allotment purposes. See, e. g., Beaver Springs, Pennsylvania, 4 FCC Rcd 5373 (1989), Sargent, Nebraska, 4 FCC Rcd 3933 (1989), Bartow, Georgia, et al., 4 FCC Rcd 6876 (1989), East Hemet, California, et al., 4 FCC Rcd 7895 (1989), and Ellwood, California, 50 Fed. Reg. 13031, published April 2, 1985. We note that Montana City is listed in the 2000 Rand McNally Commercial Atlas and attributed with a population of 300 persons. However, mere geographical location is not sufficient to establish "community" status. See, Vimville, Mississippi, 48 FR 5974 (1983). Although the petitioner's request was signed, it failed to include an affidavit verifying that the statements contained in the petition were accurate to the best of his knowledge. Section 1. 52 of the Commission's Rules requires that the original of any document filed with the Commission by a party not represented by counsel be signed and verified by the party and his/ her address stated. In the absence of such verification, the petition may be dismissed. Section 1.401( b) of the Commission's Rules concerning rule making proceedings places petitioners on notice that their proposal must conform with the requirements of Section 1. 52 regarding subscription and verification. See also Amendment of Sections 1.420 and 73.3584 of the Commission's Rules Concerning Abuses of the Commission's Processes, 5 FCC Rcd 3911, 3919 n. 41 (1990). The petitioner is requested to rectify this omission in his comments. 3 Federal Communications Commission DA 01- 804 4 Additional Information: This allot ment requires a sit e rest rict ion of 3. 8 kilomet ers (2. 4 miles) nort h to avoid a short- spacing to the licensed site of Station KWYS- FM, Channel 293C, Island Park, Idaho. Since Montana City is located within 320 kilometers (200 miles) of the U. S.- Canadian border, concurrence of the Canadian government has been requested. FCC Contact: Sharon P. McDonald (202) 418- 2180 3. Comment s, reply comment s, count erproposals and ot her pleadings filed in response to this multiple docket Notice of Proposed Rule Making should reference only the specific docket to which t he filing pert ains. The Commission's aut horit y to inst it ut e 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. 4. Interested parties may file comments on or before May 21, 2001, and reply comments on or before June 5, 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. 5. 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 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). 6. 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 in the applicable docket 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 any summary of any new information shall be served by the person making the presentation upon the other parties to the proceeding in particular docket unless the Commission specifically 4 Federal Communications Commission DA 01- 804 5 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 5 Federal Communications Commission DA 01- 804 6 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 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 comment s shall be served on the person( s) who filed comment s to which the reply is direct ed. Such comments and reply comments shall 6 Federal Communications Commission DA 01- 804 7 be accompanied by a certificate of service. (See Section 1.420( a), (b) and (c) of the Commission's Rules.) Comments should be filed with the Office of the Secretary, Federal Communications Commission, 445 12th Street, S. W.; TW- A325, 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 Center (Room 239) at its headquarters, 1919 M Street, N. W., Washington, D. C. 7