*Pages 1--6 from Microsoft Word - 8160.doc* Federal Communications Commission DA 01- 866 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of ) ) Amendment of Section 73.202( b), ) MM Docket No. 01- 86 Table of Allotments, ) RM- 10079 FM Broadcast Stations. ) (Lost Cabin and Arapahoe, Wyoming) ) NOTICE OF PROPOSED RULE MAKING Adopted: March 28, 2001 Released: April 6, 2001 Comment Date: May 28, 2001 Reply Comment Date: June 12, 2001 By the Chief, Allocations Branch: 1. The Allocations Branch has before it the petition for rule making filed by Idaho Broadcasting Corsortium, Inc. (" petitioner"), permittee of Station KSXZ- FM, Channel 256C, Lost Cabin, Wyoming, proposing the reallotment of Channel 256C from Lost Cabin to Arapahoe, Wyoming, and the modification of Station KSXZ- FM’s construction permit accordingly. Petitioner states its intention to apply for the channel, if reallotted to Arapahoe. 2. Petitioner files its proposal pursuant to the provisions of Section 1.420( i) of the Commission's Rules, which permit the modificat ion of a st at ion's 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, 4 FCC Rcd 4870 (1989), recon. granted in part, 5 FCC Rcd 7094 (1990). In support of its proposal, petitioner states that Arapahoe is governed by leaders of the Northern Arapahoe Tribe, a federally recognized Nation. Although Arapahoe is not listed in the U. S. Census, it is listed in the 2000 Rand McNally Commercial At las and ot her maps of Wyoming, and is a Census Designat ed Place attributed with a population of 393 persons. Arapahoe is located within the Wind River Reservation with a land area of 19,125 square kilometers. It has its own post office and zip code (82510). It also has a primary and middle school, a Head Start program, numerous municipal, commercial, and social organizations servicing the special needs and interests 1 Federal Communications Commission DA 01- 866 2 of its residents, including the Arapahoe Health Center, Black Coal Senior Citizens Center, American Indian Justice Center, Turtle Shelter, Boys and Girls Club, Arapahoe Social Service Center, Welcome House, 789 Bingo Truck Stop/ Store, Little Wind Feed Lot, and Flying Phoenix Fireworks. 3. We believe that the proposal warrants consideration since the reallotment of Channel 256C at Arapahoe, Wyoming, could provide the larger community with its first local aural transmission service. Since pet it ioner seeks t o change its transmitt er sit e, there will be pot ent ial gain and loss areas. Therefore, petitioner is requested to provide a gain and loss area study. Moreover, since Arapahoe is located within the Wind River Reservation, petitioner is also requested to provide documentation indicat ing it has permission to build a radio tower on the reservat ion. Alt hough St at ion KSXZ- FM is not on the air and petitioner states that reallotment would continue to provide service to Lost Cabin, petitioner is requested to demonstrate the overall public interest benefits that would derived from reallotting Channel 256C from Lost Cabin (population 30) to Arapahoe, since the allotment could potentially provide a first local service to either community. 4. An engineering analysis that has determined that Channel 256C can be reallotted to Arapahoe in compliance with the Commission's minimum distance with a site restriction of 1.5 kilomet ers (0. 9 miles) nort heast at pet it ioner’s request ed sit e. 1 As requested, we shall propose to modify Station KSXZ- FM's construction permit to specify operation on Channel 256C at Arapahoe, Wyoming, as its new community of license. In accordance with the provisions of Section 1.420( i) of the Commission's Rules, we shall not accept competing expressions of interest in the use of Channel 256C at Arapahoe, Wyoming. 5. 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 communities listed below, to read as follows: Channel No. City Present Proposed Lost Cabin, Wyoming 256C -- - Arapahoe, Wyoming ---- 256C 6. 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. 1 The coordinates for Channel 256C at Arapahoe are 42- 58- 13 North Latitude and 108- 28- 30 West Longitude. 2 Federal Communications Commission DA 01- 866 3 7. Interested parties may file comments on or before May 28, 2001, and reply comments on or before June 12, 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: Laura A. Otis Rosenman & Colin, LLP 805 15 th Street, N. W., 9 th Floor Washington, D. C. 20005- 2212 (Counsel for Petitioner) 8. 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 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. 9. For further information concerning this proceeding, contact Sharon P. McDonald, 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 3 Federal Communications Commission DA 01- 866 4 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 4 Federal Communications Commission DA 01- 866 5 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 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 the Commission's Rules.) Comments should be filed with the Office of the Secretary, 5 Federal Communications Commission DA 01- 866 6 Federal Communications Commission, 445 12th Street, S. W., TW A- 325, 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 (Room CY- A257) at its headquarters, 445 12th Street, S. W., Washington, D. C. 6