*Pages 1--6 from Microsoft Word - 34043* Federal Communications Commission DA 03- 3870 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of ) ) Amendment of Section 73.202( b), ) MB Docket No. 03- 245 Table of Allotments, ) RM- 10826 FM Broadcast Stations. ) (Durant, Oklahoma and Whitewright, Texas) ) NOTICE OF PROPOSED RULE MAKING Adopted: December 3, 2003 Released: December 8, 2003 Comment Date: January 30, 2004 Reply Comment Date: February 17, 2004 By the Assistant Chief, Audio Division: 1. The Audio Division has before it a petition for rule making filed by NM Licensing LLC (“ Petitioner”), licensee of Station KLAK( FM) (“ KLAK”), Channel 248C2, Durant, Oklahoma. Petitioner seeks to amend the FM Table of Allotments by changing Station KLAK’s community of license from Durant, Oklahoma, to Whitewright, Texas, thus providing Whitewright with its first local aural transmission service. Petitioner states that if the Commission grants its petition for rule making, Petitioner will file an application to permit operation of the station on Channel 248C2 as a Whitewright station. 2. Petitioner 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, Petitioner explains that the proposed use of Channel 248C2 at Whitewright, Texas, is mutually exclusive with Station KLAK’s existing authorization at Durant, Oklahoma. 3. Petitioner 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, 2 by providing Whitewright, Texas, (2000 U. S. Census population of 1,740), with its first local aural transmission service. The allotment of Channel 248C2 to Whitewright would not deprive Durant of its sole local transmission outlet, because Durant (2000 U. S. Census population of 13,549) will retain local service from four other radio stations. 3 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 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 matters. Equal weight is given to priorities (2) and (3). 3 Those stations are: KAYC( FM), Channel 216A; KLBC( FM), Channel 292C3; KSSU( FM), Channel 220A; and KSEO( AM), 750 kHz. 1 Federal Communications Commission DA 03- 3870 2 4. Station KLAK’s current 70 dBu contour encompasses 100 percent of the Sherman Urbanized Area. At its new location near Whitewright, Station KLAK’s proposed 70 dBu contour would cover about 70 percent of that urbanized area. Petitioner has submitted a Tuck 4 showing in order to demonstrate Whitewright’s independence from the Sherman Urbanized Area. We believe that Petitioner’s proposal warrants consideration since the allotment of Channel 248C2 to Whitewright, Texas, could provide a first local aural transmission service to Whitewright. 5. The transmitter site for Station KLAK will be relocated to accommodate Petitioner’s request to reallot Station KLAK from Durant to Whitewright. Petitioner claims that the reallotment of Channel 248C2, Station KLAK, to Whitewright will result in a net gain in population served of 267,728 persons. Our engineering studies indicate that both the loss and gain areas will be well served with 5 or more reception services. Since Petitioner’s proposal is consistent with the provisions of Section 1.420( i) of the Commission’s Rules, we shall propose to modify the authorization of Station KLAK without entertaining competing expressions of interest in the use of Channel 248C2 at Whitewright, Texas, or requiring Petitioner to demonstrate the availability of an additional equivalent channel for use by other parties. 6. Consistent with the technical requirements of the Commission’s Rules, Channel 248C2 can be allotted to Whitewright, Texas, utilizing coordinates of 33- 30- 55 NL and 96- 24- 16 WL, with a site restriction of 1.2 kilometers (0.7 mile) west of Whitewright. 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: Channel Nos. City Present Proposed Durant, Oklahoma 248C2, 292C3 292C3 Whitewright, Texas ------ 248C2 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 January 30, 2004, and reply comments on or before February 17, 2004, 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, 4 Faye and Richard Tuck, 3 FCC Rcd 5374 (1988) (“ Tuck”). . 2 Federal Communications Commission DA 03- 3870 3 D. C. 20554. Additionally, a copy of such comments should be served on Petitioner’s counsel, as follows: Joseph A. Belisle, Esq. Leibowitz & Associates, PA One Southeast Third Avenue, Suite 1450 Miami, Florida 33131 Mark N. Lipp, Esq. J. Thomas Nolan, Esq. Vinson & Elkins, LLP 1455 Pennsylvania Ave., N. W. Washington, D. C. 20004 10. Parties must file an original and four paper 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, Natek, 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 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. 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. 3 Federal Communications Commission DA 03- 3870 4 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 4 Federal Communications Commission DA 03- 3870 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. 5 Federal Communications Commission DA 03- 3870 6 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. 6