*Pages 1--6 from Microsoft Word - 18064.doc* Federal Communications Commission DA 02- 1280 Before the Federal Communications Commission Washington, D. C. 20554 ) In the Matter of ) ) Amendment of Section 73.606( b), ) MB Docket No. 02- 130 Table of Allotments, ) RM- 10438 Television Broadcast Stations; and ) Section 73.622( b), Table of Allotments, ) Digital Broadcast Television Stations. ) (Des Moines, Iowa) ) NOTICE OF PROPOSED RULE MAKING Adopted: May 29, 2002 Released: June 5, 2002 Comment Date: July 29, 2002 Reply Comment Date: August 13, 2002 By the Chief, Video Division: 1. The Commission has before it a petition for rule making filed by Frank Duross, Kaleidoscope Partners, Caroline K. Powley, JJJH, LLP, Stead Communications, and ValueVision International, Inc. (collectively, the "Joint Petitioners"), applicants for a new television station to operate on analog channel 69 at Des Moines, Iowa. The Joint Petitioners request the substitution of DTV channel 56 for channel 69. 2. The Joint Petitioners state that their petition is being filed pursuant to the provisions outlined in the Commission's Public Notice (" Public Notice") released on February 6, 2002. 1 In that Pubic Notice the Commission announced a window filing opportunity to allow applicants with certain pending requests for new analog television stations on channels 52- 59 to modify their requests. The Joint Petitioners indicate that initially they had filed a petition for rule making seeking the allotment of NTSC channel 56 in lieu of channel 69. 2 However, the Joint Petitioners submit that because of the Commission's decision to reallocate channels 52- 59 3 , they filed a new 1 See Mass Media Bureau Announces Window Filing Opportunity for Certain Pending Requests for New NTSC Television Stations on Channels 52- 59, DA 02- 270. 2 On July 17, 2000, the Joint Petitioners filed a Joint Request for Approval of Settlement Agreement requesting approval of their settlement agreement and a petition for rule making pursuant to the guidelines noted in the Commission's Public Notice released on November 22, 1999, DA 99- 2605. In that Public Notice, the Commission announced a window filing opportunity to allow applicants for new NTSC stations on channels 60- 69 to move from those channels. 3 See Reallocation and Service Rules for the 698- 746 MHz Spectrum Band (Television Channels 52- 59), Report 1 Federal Communications Commission DA 02- 1280 2 petition for rule making to specify a new DTV allotment on channel 56. The Joint Petitioners state that they are interested in bringing a new television service to the Des Moines and thereby propose the substitution of DTV channel 56 for channel 69. 3. We believe Joint Petitioners' proposal warrants consideration. DTV Channel 56 can be substituted for Channel 69 at Des Moines, Iowa, as proposed, in compliance with the principle community coverage requirements of Section 73.625( a) at coordinates 41- 38- 05 N. and 93- 34- 46 W. In addition, we find that this channel change is acceptable under the 2 percent criterion for de minimis impact that is applied in evaluating requests for modification of initial DTV allotments under Section 73.623( c)( 2). We propose to substitute DTV Channel 56 for Channel 69 at Des Moines with the following specifications: State & City DTV Channel DTV power (kW) Antenna HAAT (m) IA Des Moines 56 1000 151 5. Accordingly, we seek comments on the proposed amendment of the Television 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 Des Moines, Iowa 8-, *11+, 13-, 8-, *11+, 13-, 17+, *43-, 63-, 17+, *43-, 63- 69 6. Accordingly, we seek comments on the proposed amendment of the DTV Table of Allotments, Section 73.622( b) of the Commission's Rules, for the community listed below, to read as follows: Channel No. City Present Proposed Des Moines, Iowa 16, 19, 26, 16, 19, 26, 31, *50 31, *50, 56 7. 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 by paragraph 2 of the Appendix before a channel will be allotted. and Order in GN Docket No. 01- 74, 17 FCC Rcd 1022 (2002). 2 Federal Communications Commission DA 02- 1280 3 8. Interested parties may file comments on or before July 29, 2002, and reply comments on or before August 13, 2002, 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: Lee G. Petro, Esquire Fletcher, Heald & Hildreth, PLC 11 th Floor, 1300 North 17 th Street Arlington, Virginia 22209- 3801 9. The Commission has determined that the relevant provisions of the Regulatory Flexibility Act of 1980 do not apply to rule making proceedings to amend the TV Table of Allotments, Section 73.606( b) and 73.622( b) of the Commission's Rules. See Certification That Sections 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. The Regulatory Flexibility 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. 10. For further information concerning this proceeding, contact Pam Blumenthal, 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 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 Barbara A. Kreisman Chief, Video Division Media Bureau 3 Federal Communications Commission DA 02- 1280 4 Attachment: Appendix 4 Federal Communications Commission DA 02- 1280 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 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 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. Comments shall be served on the petitioner by the person filing the comments. 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.). The Commission permits the electronic filing of all pleadings and comments in proceeding involving petitions for rule making (except in broadcast allotment proceedings). See Electronic Filing of Documents in Rule Making Proceedings, GC Docket No. 97- 113 (rel. April 6, 1998). Filings by paper can be sent by hand or messenger delivery, by commercial overnight courier, or by first- class or overnight U. S. Postal 5 Federal Communications Commission DA 02- 1280 6 Service mail (although we continue to experience delays in receiving U. S. Postal Service mail). The Commission's contractor, Vistronix, Inc., will receive hand- delivered or messenger- delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, N. E., Suite 110, Washington, D. C. 20002. The filing hours at this location are 8: 00 a. m. to 7: 00 p. m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building. Commercial overnight mail (other than U. S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U. S. Postal Service first- class mail, Express Mail, and Priority Mail should be addressed to 445 12 th Street, SW, Washington, D. C. 20554. All filings must be addressed to the Commission's Secretary, Office of 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 Center (Room CY- A257) at its headquarters, 445 12th Street, S. W., Washington, D. C. 6