*Pages 1--4 from Microsoft Word - 24744.doc* Federal Communications Commission DA 03- 266 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of Amendment of Section 73. 202( b) Table of Allotments, FM Broadcast Stations. (Cotulla and Dilley, Texas) ) ) ) ) ) ) ) ) MB Docket No. 03- 27 RM- 10631 NOTICE OF PROPOSED RULEMAKING Adopted: January 29, 2003 Released: January 31, 2003 Comment Date: March 24, 2003 Reply Comment Date: April 8, 2003 By the Assistant Chief, Audio Division: 1. The Audio Division has before it for consideration a Petition for Rule Making filed by IH- 35 South Broadcasters (“ Petitioner”), proposing the allotment of Channel 264A to Cotulla, Texas, as a third local FM service. In order to accommodate this allotment, the Petitioner also proposes the substitution of Channel 229A for vacant Channel 264A at Dilley, Texas 1 . Petitioner has stated its intention to file an application for a new channel at Cotulla. 2. In support of the proposal, Petitioner states that Cotulla needs and can support a third radio station. Cotulla is an incorporated community with a 2000 U. S. Census population of 3,614 persons located in southeast Texas between San Antonio and Laredo on Interstate Highway 35. Cotulla has its own museum, school district, chamber of commerce, convention center, city and county government offices and services. It has libraries, churches, banks and numerous retail and service businesses. Petitioner states that the new station at Cotulla would service an area of 2,500 square kilometer with a population of 4,898 persons. The Petitioner received a statement from Jeraldine Anderson in support of the substitution of Channel 229A for vacant Channel 264A. 3. The proposal warrants consideration since the substitution at Dilley would not deprive the community of a second local service and would provide a third local FM commercial aural transmission service to Cotulla, Texas. A staff engineering analysis indicates that Channel 229A can be allotted to Dilley, Texas, consistent with the minimum distance separation requirements of the Commission’s Rules provided there is a site restriction 6.3 kilometers (3. 9 miles) south of the community. 2 Since Dilley is located within 320 kilometers (199 miles) of the U. S.- Mexican border, Mexican concurrence has been 1 Channel 264A was allotted to Dilley, Texas, in MM 01- 200 at the request of Jeraldine Anderson. The Report and Order allotting Channel 264A at Dilley stated that a filing window for applications would not be opened at this time but the issue of opening a window would be addressed by the Commission in a subsequent order. See Public Notice released February 25, 1994, FCC Freezes Comparative Proceedings, 9 FCC Rcd 1055 (1994) 2 The coordinates for Channel 229A at Dilley are 28- 36- 56 North Latitude and 99- 10- 48 West Longitude. 1 Federal Communications Commission DA 03- 266 2 requested. Channel 264A can also be allotted to Cotulla, Texas, consistent with the minimum distance separation requirement of the Commission’s Rules at city reference coordinates. 3 Since Cotulla is located within 320 kilometers (199 miles) of the U. S.- Mexican border, Mexican concurrence has been requested. 3. Accordingly, we seek comment on the proposed amendments of the FM Table of Allotments, Section 73. 202( b) of the Commission’s Rules, as follows: Community Present Proposed Cotulla, Texas 242A, 289A 242A, 264A, 289A Dilley, Texas 255C1, 264A 229A, 255C1 4. 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 in paragraph 2 of the Appendix before a channel will be allotted. 5. Pursuant to Sections 1.415 and 1.419 of the Commission’s Rules, interested parties may file comments on or before March 24, 2003, and reply comments on or before April 8, 2003, 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 petitioner, as follows: Harry C. Martin Fletcher, Heald & Hildreth, PLC 1300 North 17 th Street, 11 th Floor Arlington, Virginia 22209 6. 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. 7. The Commission has determined that the relevant provisions of the Regulatory Flexibility Act of 1980 do not apply to a rule making proceeding to amend the FM Table of Allotments, Section 73.202( b) of the Commission's Rules. 4 3 The coordinates for Channel 264A at Collulla are 28- 26- 12 North Latitude and 99- 14- 05 West Longitude. 4 See Certification that Section 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). (continued....) 2 Federal Communications Commission DA 03- 266 3 8. For further information concerning a proceeding listed above, contact Rolanda F. Smith, 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 in the applicable docket 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 any summary of any new information shall be served by the person making the presentation upon the other parties to the proceeding in particular docket 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 John A. Karousos Assistant Chief, Audio Division Media Bureau Attachment: Appendix (... continued from previous page) 3 Federal Communications Commission DA 03- 266 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 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 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.) Comments should be filed with the Office of the Secretary, Federal Communications Commission, 445 12th Street, S. W., TW-A325, 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 12 th Street, S. W, Washington, D. C. 4