*Pages 1--5 from Microsoft Word - 27854.doc* Federal Communications Commission DA 03- 1545 Before the Federal Communications Commission Washington, D. C. 20554 ) In the Matter of ) ) Amendment of Section 73.622( b), ) MB Docket No. 03- 118 Table of Allotments, ) RM- 10585 Digital Television Broadcast Stations. ) (Butte, Montana) ) ) ) NOTICE OF PROPOSED RULE MAKING Adopted: May 8, 2003 Released: May 15, 2003 Comment Date: July 7, 2003 Reply Comment Date: July 22, 2003 By the Chief, Video Division: 1. The Commission has before it a petition for rule making filed by KXLF Communications, Inc. (“ KXLF”), licensee of KXLF- TV, NTSC channel 4, Butte, Montana. KXLF requests the substitution of DTV channel 5 for station KXLF- TV’s paired DTV channel 15. 1 2. KXLF states that the adoption of the proposed channel substitution will permit KXLF to reduce it build- out and operating costs by permitting the sharing of certain transmission equipment and facilities with KXLF’s current NTSC operations. This sharing, according to KXLF, will also facilitate the anticipated transfer of digital operations to KXLF’s traditional channel 4 at the close of the DTV transition. KXLF contends that operation on the VHF channel would improve signal coverage for the viewers in the Butt- Bozeman DMA. 3. We believe KXLF's proposal warrants consideration. DTV Channel 5 can be substituted for DTV Channel 15 at Butte, Montana, as proposed, in compliance with the principle community coverage requirements of Section 73.625( a) at coordinates 46- 00- 27 N. and 112- 26- 30 W. However, since the community of Butte is located within 400 kilometers of the U. S.- Canadian border, concurrence from the Canadian government must be obtained for this allotment. In addition, we find 1 Eagle Communications, Inc., permittee of station KECI- DT, Missoula, Montana, filed a “Request to Deny KXLF Communications, Inc. Petition for Rule Making” to which KXLF filed a “Motion to Strike Eagle Communications, Inc. Request to Deny Petition for Rule Making.” In response, Eagle filed a “Motion for Extension of Time in Which to Respond to KXLF Communications, Inc. Motion to Strike.” We will not consider Eagle or KXLF’s comments as Section 1.405 of the Commission’s rules do not contemplate the filing of comments to petitions for rule making to amend the Television Table of Allotment prior to the issuance of a Notice of Proposed Rule Making. Eagle and KXLF’s comments are hereby dismissed. 1 Federal Communications Commission DA 03- 1545 2 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 5 for DTV Channel 15 for station KXLF- DT at Butte with the following specifications: State & City DTV Channel DTV power (kW) Antenna HAAT (m) MT Butte 5 10.7 588 4. 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 Butte, Montana 15, 19c, 33 5, 19c, 33 5. 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. 6. Interested parties may file comments on or before July 7, 2003, and reply comments on or before July 22, 2003, 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: Scott Patrick Dow, Lohnes & Albertson, PLLC 1200 New Hampshire Avenue, NW Suite 800 Washington, DC 20036- 6802 (Counsel for KXLF Communications, Inc.) 7. 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. 2 Federal Communications Commission DA 03- 1545 3 8. 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 Attachment: Appendix 3 Federal Communications Commission DA 03- 1545 4 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 Service mail (although we continue to experience delays in receiving U. S. Postal Service mail). The 4 Federal Communications Commission DA 03- 1545 5 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. 5