*Pages 1--5 from Microsoft Word - 8187.doc* Federal Communications Commission DA 01- 863 Before the Federal Communications Commission Washington, D. C. 20554 ) In the Matter of ) ) Amendment of Section 73.606( b), ) MM Docket No. 01- 85 Table of Allotments, ) RM- 9039 Television Broadcast Stations. ) (Boise, Idaho) ) ) ) NOTICE OF PROPOSED RULE MAKING Adopted: April 6, 2001 Released: April 9, 2001 Comment Date: May 31, 2001 Reply Comment Date: June 15, 2001 By the Chief, Video Services Division: 1. The Commission has before it a petition for rule making filed by KM Communications, Inc. (" KM"), an applicant for a construction permit for a new television station to operate on channel 14 at Boise, Idaho. 1 KM requests the substitution of channel 39 for channel 14 at Boise, Idaho. 2 2. In support of its proposal, KM states that the adoption of its proposal could provide Boise, Idaho, with its third local television service. KM further states that the proposed substitution would resolve the potential land mobile radio interference concerns and speed the resolution of the mutually exclusivit y bet ween the compet ing applicant s for channel 14, by eliminat ing the obst acle to approval of 1 KM states that it and International Television Network, Inc. (" ITN"), filed competing, mutually- exclusive applications for channel 14 at Boise. Idaho. However, KM notes that, the parties have entered into a settlement agreement. KM states that the Joint Request for Approval of Universal Settlement as well as an amendment to the original settlement agreement remains pending before the Commission. 2 KM originally requested that channel 21 be substituted for channel 14, but amended its petition for rule making to request that channel 33 be substituted for channel 14 after channel 21 was reserved as the DTV channel to be paired with NTSC channel 4 at Boise. See Advanced Television Systems and Their Impact Upon the Existing Television Broadcasting Service, MM Docket No. 87- 268, Sixth Report and Order, 12 FCC Rcd 14588 (1997). On July 17, 2000, KM amended its petition for rule making to invoke the provisions outlined in the Commission's Public Notice (Public Notice) released on November 22, 1999, DA 99- 2605. In that Public Notice the Commission announced a window filing opportunity to allow persons with certain pending requests for new analog (NTSC) television stations to modify their requests to eliminate technical conflicts with digital television (DTV) stations and/ or to move from channels 60 through 69. KM states that it subsequently changed its requested channel from channel 33 to channel 39 so as not to displace an existing LPTV station from channel 33. 1 Federal Communications Commission DA 01- 863 2 the settlement agreement and the Joint Request that have been pending before the Commission since 1995. 3. We believe KM's proposal warrants consideration since the channel substitution would permit KM t o provide t he communit y of Boise wit h its third commercial television service. A st aff engineering analysis indicates that channel 39 can be allotted to Boise 3 with a zero offset consistent with the criteria set forth in the Commission's Public Notice for evaluating requests to change an NTSC allot ment . Pursuant to the Commission's policy as not ed in its Public Notice, we will not accept competing expressions of interest in the use of television channel 39 at Boise. 4 4. Accordingly, we seek comments on the proposed amendment of the TV Table of Allotments, Section 73.606( b) of the Commission's Rules, for the community listed below, to read as follows: Channel No. City Present Proposed Boise, Idaho 2, *4+, 2, *4+, 7, 14 7, 39 5. 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. 6. Interested parties may file comments on or before May, 2001, and reply comments on or before June 15, 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: Jeffrey L Timmons Irwin, Campbell & Tannenwald, P. C. 3 The coordinates for channel 39 at Boise are North Latitude 43- 45- 18 and West Longitude 116- 05- 52. 4 New and amended rulemakings petitions submitted during the noted window filing opportunity will be subject to the Commission's normal notice and comment procedures. However, the Commission indicated in the Sixth Further Notice of Proposed Rule Making, 11 FCC Rcd 10968 (1996), that new proposals for additional NTSC channel allotments will not be accepted. Furthermore, new parties may not counterproposal a new NTSC allotment in the same or nearby communities. The opportunity for filing counterproposals is limited to those parties with existing petitions and applications that are the subject of the announced filling window indicated in the Commission's Public Notice. 2 Federal Communications Commission DA 01- 863 3 1730 Rhode Island Avenue, NW Suite 200 Washington, DC 20036- 3101 (Counsel for KM Communications, Inc.) 7. 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 TV Table of Allotments, Section 73.606( b). See Certification That Sections 603 and 604 of the Regulatory Flexibilit y 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. The Regulatory Flexibilit y Act of 1980 would also not apply to rule making proceedings to amend the DTV Table of Allotments, Section 73.622( b) of the Commission's Rules. 8. For further information concerning this proceeding, contact Pam Blumenthal, Mass Media Bureau, (202) 418- 1600. 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 t his 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 Barbara A. Kreisman Chief, Video Services Division Mass Media Bureau Attachment: Appendix 3 Federal Communications Commission DA 01- 863 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 DTV Table of Allotments, Section 73.622( 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 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 t he Commission's Rules.) Comment s should be filed wit h the 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, 4 Federal Communications Commission DA 01- 863 5 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 CY- A257) at its headquarters, 445 12th Street, S. W., Washington, D. C. 5