*Pages 1--5 from Microsoft Word - 21001.doc* Federal Communications Commission DA 02- 2100 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of ) ) Amendment of Section 73.202( b), ) MB Docket No. 02- 266 Table of Allotments, ) RM- 10557 FM Broadcast Stations. ) (Chillicothe, Dublin, Hillsboro ) and Marion, Ohio) ) NOTICE OF PROPOSED RULE MAKING Adopted: August 21, 2002 Released: August 30, 2002 Comment Date: October 21, 2002 Reply Comment Date: November 5, 2002 By the Assistant Chief, Audio Division: 1. The Audio Division has before it a petition for rule making filed jointly by Citicasters Licenses, Inc., licensee of Station WMRN- FM, Marion Ohio and Citicasters Company, licensee of Station WSRW- FM, Hillsboro, Ohio. (“ Joint Parties”) 1 The Joint Parties seek to amend the FM Table of Allotments by changing Station WMRN- FM’s community of license from Marion to Dublin, Ohio, downgrade Station WMRN- FM’s channel from Channel 295B to Channel 294B1, and provide Dublin with its first local aural transmission service. To achieve compliance with the Commission’s spacing rules, the Joint Parties also request permission to change Station WSRW- FM’s community of license from Hillsboro to Chillicothe, Ohio, and to downgrade Station WSRW- FM’s channel from Channel 294B to Channel 293A. If the Commission grants the Joint Parties’ petition for rule making, they will file applications to modify the license of Station WMRN-FM to specify operation on Channel 294B1 at Dublin and to modify the license of Station WSRW- FM to specify operation on Channel 293A at Chillicothe. 2. The Joint Parties seek 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. 2 The Dublin and Chillicothe relocations of Stations WMRN- FM and WSRW- FM are each mutually exclusive with their existing allotments. 3. The Joint Parties assert that the adoption of its proposal will result in a preferential arrangement of allotments consistent with the Revision of FM Assignment Policies and Procedures, 3 by providing Dublin, 1 Citicasters Licenses, Inc. and Citicasters Company are indirect wholly owned subsidiaries of Clear Channel Communications, Inc. 2 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). 3 Revision of FM Assignment Policies and Procedures, 90 FCC 2d 88 (1982). 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 1 Federal Communications Commission DA 02- 2100 2 Ohio (population 31,392), 4 with its first local aural transmission service. The allotments of Channel 294B1 to Dublin and Channel 293A to Chillicothe would not deprive Marion (population 35,318) or Hillsboro (population 6,368) of their sole local transmission outlets, because Marion will retain local service from Stations WDIF( FM) and WMRN( AM) and Hillsboro will retain local service from Station WSRW( AM). 4. Although Dublin is located outside of any Urbanized Area, Station WMRN- FM would place a 70 dBu contour over 71 percent of the Columbus, Ohio, Urbanized Area from its proposed location serving Dublin. In accordance with Commission policy, the rulemaking proponent must demonstrate that the intended city of license is sufficiently independent of the central city to justify a first local service preference. 5 The Joint Parties have provided a Tuck analysis to demonstrate that Dublin is sufficiently independent of Columbus to merit a first local service preference. 6 We believe that their proposal warrants consideration since the allotment of Channel 294B1 to Dublin, Ohio, could provide a first local aural transmission service to Dublin. 5. Since the Joint Parties’ reallotment requests are consistent with the provisions of Section 1.420( i) of the Commission’s Rules, we shall propose to modify the authorizations of Stations WMRN-FM and WSRW- FM without entertaining competing expressions of interest in the use of Channel 294B1 at Dublin, Ohio or Channel 293A at Chillicothe, Ohio, or requiring the Joint Parties to demonstrate the availability of an additional equivalent channel at each location for use by other parties. 6. Consistent with the technical requirements of the Commission’s Rules, Channel 294B1 can be allotted to Dublin, Ohio, at the Joint Parties’ specified site, utilizing coordinates 40- 09- 20 NL and 82- 54- 12 WL, with a site restriction 19.0 kilometers (11.8 miles) east of Dublin, Ohio. Channel 293A can be allotted to Chillicothe, Ohio, at the Joint Parties’ specified site, utilizing coordinates 39- 17- 31 NL and 82- 51- 38 WL, with a site restriction of 11.5 kilometers (7.1 miles) southeast of Chillicothe. 7. 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: matters [co- equal weight is given to priorities (2) and (3)]. 4 Population figures for Dublin, Marion and Hillsboro are taken from the 2000 U. S. Census. Dublin is an incorporated city that has two branch post offices and three zip codes, its own local government and police department, and numerous businesses and churches. 5 See Headland, Alabama and Chattahoochee, Florida, 10 FCC Rcd 10352 (1995). 6 See Huntington Broadcasting Co. v. F. C. C., 192 F. 2d 33 (D. C. Cir 1951), RKO General, Inc. (“ KFRC”), 5 FCC Rcd 3222 (1990), and Faye and Richard Tuck (“ Tuck”), 3 FCC Rcd 5374 (1988). 2 Federal Communications Commission DA 02- 2100 3 Channel Nos. City Present Proposed Chillocothe, Ohio 227B, 232B1 227B, 232B1, 293A Dublin, Ohio ----------- 294B1 Hillsboro, Ohio 294B ----------- Marion, Ohio 232A, 295B 232A 8. 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. 9. Pursuant to Sections 1.415 and 1.419 of the Commission’s Rules, interested parties may file comments on or before October 21, 2002, and reply comments on or before November 5, 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 the Joint Parties’ counsel, as follows: Mark N. Lipp, Esq. J. Thomas Nolan, Esq. Tamara Y. Brown Shook, Hardy & Bacon 600 14 th Street, N. W., Suite 800 Washington, D. C. 20005- 2004 10. Parties who choose to file by paper must file an original and four copies of each filing. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first- class or overnight U. S. Postal 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 or 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. 11. 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 3 Federal Communications Commission DA 02- 2100 4 Commission's Rules. 7 12. 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 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 7 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. 4 Federal Communications Commission DA 02- 2100 5 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. 5