*Pages 1--4 from Microsoft Word - 20332.doc* Federal Communications Commission DA 02- 1805 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of ) ) Amendment of Section 73.202( b), ) MB Docket No. 02- 197 Table of Allotments, ) RM- 10509 FM Broadcast Stations. ) (Bishopville and Lamar, South Carolina) ) NOTICE OF PROPOSED RULE MAKING Adopted: July 17, 2002 Released: August 2, 2002 Comment Date: September 23, 2002 Reply Comment Date: October 8, 2002 By the Assistant Chief, Audio Division: 1. The Audio Division has before it a petition for rule making filed on behalf of Miller Communications, Inc. (“ Miller”), licensee of StationWKHT( FM), Channel 229A, Bishopville, South Carolina. Miller seeks to amend the FM Table of Allotments by reallotting Channel 229A from Bishopville to Lamar, South Carolina, and modifying Station WKHT’s authorization accordingly. 2. Miller seeks to invoke the provisions of Section 1.420( i) of the Commission’s rules which permits the modification of a station’s authorization to specify a new community of license without affording other interested parties an opportunity to file competing expressions of interest. 1 In support of its proposal, Miller explains that the requested reallotment from Bishopville to Lamar is mutually exclusive with Station WKHT’s existing authorization. 3. Miller asserts that the adoption of its proposal will result in a preferential arrangement of allotments consistent with the Revision of FM Assignment Policies and Procedures, 90 FCC 2d 88 (1982), 2 by providing Lamar (population 1, 015) 3 with its first local aural transmission service. We note that the reallotment of Channel 229A to Lamar would not deprive Bishopville (population 3,670) of its sole local transmission outlet, because Bishopville would continue to be served by AM Station WAGS. Since Miller intends to utilize its present transmitter site for the reallotment of Channel 229A to Lamar, there are no gain or loss areas associated with this proposal. 1 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). 2 The allotment priorities are: (1) first full- time aural service; (2) second full- time aural service; (3) first local service and (4) other public interest matters [co- equal weight is given to priorities (2) and (3)]. 3 Population figures for Lamar and Bishopville are taken from the 2000 U. S. Census. Miller asserts that Lamar is an incorporated city that has its own post office and zip code, its own local government, and numerous businesses, churches, and residential areas. 1 Federal Communications Commission DA 02- 1805 2 4. Since Miller’s reallotment request is consistent with the provisions of Section 1.420( i) of the Commission’s Rules, we shall propose to modify the authorization of Station WKHT without entertaining competing expressions of interest in the use of Channel 229A at Lamar, South Carolina, or requiring Miller to demonstrate the availability of an additional equivalent channel for use by other parties. 5. Channel 229A can be allotted to Lamar, South Carolina, consistent with the technical engineering requirements of the Commission’s Rules, at Miller’s specified site, utilizing coordinates of 34- 07- 10 NL and 80- 08- 49 W, with a site restriction of 9.5 kilometers (5.9 miles) southwest of Lamar, South Carolina. 6. Accordingly, we seek comments on the proposed amendment to the FM Table of Allotments, Section 73.202( b) of the Commission’s Rules, with respect to the communities listed below, as follows: Channel Nos. City Present Proposed Bishopville, South Carolina 229A --------- Lamar, South Carolina ------ 229A 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. 8. Interested parties may file comments on or before September 23, 2002, and reply comments on or before October 8, 2002, and are advised to read the Appendix for the proper procedures. Comments should be filed with the Federal Communications Commission, Office of the Secretary, 445 Twelfth Street, SW; TW- A325, Washington, D. C. 20554. Additionally, a copy of such comments should be served on Petitioner’s counsel, as follows: Gary S. Smithwick, Esq. Smithwick & Belendiuk, P. C. 5028 Wisconsin Avenue, N. W., Suite 301 Washington, D. C. 20016 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 FM Table of Allotments, Section 73.202( 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), and 73.606( b) of the Commission's Rules, 46 FR 11549, February 9, 1981. 10. For further information concerning this proceeding, contact R. Barthen Gorman, 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 2 Federal Communications Commission DA 02- 1805 3 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 Assistant Chief, Audio Division Media Bureau Attachment: Appendix 3 Federal Communications Commission DA 02- 1805 4 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 attached. Proponent 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 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 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 proposal 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 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 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 Information Center (Room CY- A257), at its headquarters, 445 Twelfth Street, SW, Washington, D. C. 4