*Pages 1--6 from Microsoft Word - 14416.doc* Federal Communications Commission DA 02- 207 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of ) ) Amendment of Section 73.202( b), ) MM Docket No. 02- 15 Table of Allotments, ) RM- 10364 FM Broadcast Stations. ) (Okmulgee and Glenpool, Oklahoma) ) ) NOTICE OF PROPOSED RULE MAKING Adopted: January 16, 2002 Released: January 25, 2002 Comment Date: March 18, 2002 Reply Comment Date: April 2, 2002 By the Chief, Allocations Branch: 1. The Allocations Branch has before it a petition for rule making filed by Shamrock Communications, Inc. (“ petitioner”), licensee of Station KTSO( FM), Channel 231C1, Okmulgee, Oklahoma, proposing the reallotment of Channel 231C1 from Oklahoma to Glenpool, Oklahoma. Petitioner also requests the modification of Station KTSO( FM) ’s license to reflect Glenpool as its new community of license. Petitioner states its intention to apply for the channel, if reallotted to Glenpool. 2. The proposal is filed pursuant to 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. See Modification of FM and TVAuthorizations to Specify a New Community of License, 4 FCC Rcd 4870 (1989), recon. granted in part, 5 FCC Rcd 7094 (1990). Revision of FM Assignment Policies and Procedures, 90 FCC 2d 88, 91 (1982). 1 In support of its proposal, petitioner states that Glenpool is an incorporated community with a 2000 U. S. Census population of 8,123 persons. It has its own post office and zip code. Glenpool has its own city government, including a police department and volunteer fire depart ment . Glenpool also has a school dist rict (Glenpool Public School Dist rict ), public library, churches, and businesses that identify themselves as part of the community of Glenpool, including “Glenpool Eyecare,” “Glenpool Auto Sales, “Glenpool Furniture,” Glenpool Building and Realty,” “Glenpool Health Care Center,” Glenpool Chiropractic Clinic,” and “Glenpool Flowers and Gifts.” Since petitioner does not seek to relocate its transmitter 3 The FM 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 given to priorities (2) and (3).] 1 Federal Communications Commission DA 02- 207 2 site, a gain and loss area study is not required. Additionally, petitioner advises that 70 dBu signal of St at ion WTSO( FM) current ly covers more than 69% of the Tulsa Urbanized Area and will cont inue to do so since a site change is not requested. Therefore, a Tuck analysis is not applicable. 2 Moreover, Okmulgee (population 13,022) has more than five reception services and is considered to be well-served. Petitioner is requested to provide the overall public interest benefits that would be derived from the reallotment. 3. We believe this proposal warrants consideration since the reallotment would provide a first local aural t ransmission service to Glenpool wit hout depriving Okmulgee of its sole local service. 3 An engineering analysis has determined that Channel 231C1 can be reallotted to Glenpool in compliance wit h the Commission’s minimum dist ance separat ion requirement s wit hout t he imposit ion of a sit e restriction at petitioner’s presently licensed site 4 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 231C1 at Glenpool, Oklahoma. 4. 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: City Channel No. Present Proposed Okmulgee, Oklahoma 231C1 -- -Glenpool, Oklahoma -- 231C1 5. IT IS ORDERED, That the Secretary shall send a copy of this Notice of Proposed Rule Making by Certified Mail, Return Receipt Requested, to the following: William R. Lynet t , President Shamrock Communications, Inc. 149 Penn Avenue Scranton, Pennsylvania 18503 (Pet it ioner) 2 See Headland, Alabama and Chattahoochee, Florida, 10 FCC Rcd 10352 (1995); Huntington Broadcasting Co. v. FCC , 192 F. 2d 33 (D. C. Cir. 1951); RKO General, Inc., 5 FCC Rcd 3222 (1990); and Faye and Richard Tuck, 3 FCC Rcd 5374 (1988). 3 Station KTSO( AM) (day and nightime service) would remain licensed to the community. 4 The coordinates for Channel 231C1 at Glenpool are 35- 50- 02 North Latitude and 96- 07- 28 West Longitude. 2 Federal Communications Commission DA 02- 207 3 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. 7. Interested parties may file comments on or before March 18, 2002, and reply comments on or before April 2, 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 petitioners, or their counsel or consultants, as follows: Christopher D. Ornelas, Esq. Wilkinson, Barker, Knauer, LLP 2300 N Street, N. W, Suite 700 Washington, D. C. 20037 (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 02- 207 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 02- 207 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, Federal Communications Commission, 445 12 th Street, S. W., Room TW- A325, Washington, D. C. 20554. 5 Federal Communications Commission DA 02- 207 6 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 12 th Street, S. W., Washington, D. C. 6