*Pages 1--7 from Microsoft Word - 25112.doc* Federal Communications Commission DA 03- 437 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of ) ) Amendment of Section 73.202( b), ) MB Docket No. 03- 47 Table of Allotments, ) RM- 10592 FM Broadcast Stations. ) (Orange, Midlothian, and South Hill, ) Virginia, and Reidsville, North Carolina) ) NOTICE OF PROPOSED RULE MAKING Adopted: February 12, 2003 Released: February 18, 2003 Comment Date: April 11, 2003 Reply Date: April 28, 2003 By the Assistant Chief, Audio Division: 1. The Audio Division has before it for consideration a Petition for Rule Making filed by Piedmont Communications, Inc. (“ Piedmont”), licensee of WJMA- FM, Orange, Virginia, and Old Belt Broadcasting Corporation (“ Old Belt”), licensee of WKSK- FM, South Hill, Virginia (together, “Joint Petitioners”). Pursuant to Section 1.420( i) of the Commission’s Rules, Joint Petitioners propose to change the community of license for Station WJMA- FM from Orange to Midlothian, Virginia, and to change the corresponding channel allotment from Channel 255A to Channel 255B1. In order to permit the allotment of Channel 255B1 at Midlothian, Joint Petitioners propose to substitute Channel 270A for Channel 255C3 at South Hill, Virginia, and to modify the WKSK- FM license to specify operation on Channel 270A. To accommodate this proposal, Joint Petitioners also request substitution of Channel 271C0 for Channel 271C at Reidsville, North Carolina. 1 Joint Petitioners represent that if their requests are granted, they will file applications for Channel 255B1 at Midlothian and Channel 270A at South Hill, and will construct their respective facilities if their applications are granted. 2. The Joint Petitioners propose to change the community of license for Station WJMA- FM from Orange to Midlothian under the guidelines set forth in Modification of FM and TV Authorizations to Specify a New Community of License. 2 That decision establishes that, in evaluating a change of community proposal, 1 An “Order to Show Cause” addressing this reclassification was issued on October 25, 2002, to Entercom Greensboro License, LLC (“ Entrecom”), the licensee of WJMH- FM, currently operating on Channel 271C at Reidsville. Entrecom filed by letter a statement of its consent to the proposed reclassification. We therefore shall commence a rulemaking to consider Joint Petitioners’ proposals. We shall amend the FM Table of Allotments to reflect a Channel 271C0 allotment at Reidsville in the context of this proceeding. 2 4 FCC Rcd 4870 (1989), recon. granted in part,, 5 FCC Rcd 7094 (1990). 1 Federal Communications Commission DA 03- 437 2 we compare the existing versus the proposed arrangement of allotments using the FM allotment priorities set forth in Revision of FM Assignment Policies and Procedures. 3 3. In their Petition for Rule Making, Joint Petitioners state that the proposed use of Channel 255B1 at Midlothian is mutually exclusive with the current use of Channel 255A at Orange. Joint Petitioners note that Orange, the current community of license for WJMA- FM, would not be deprived of its only local service because it is currently served by Station WVCV( AM). Finally, Joint Petitioners state that the provision of a first local service at Midlothian (Priority 3) should be preferred over the retention of multiple local services at Orange (Priority 4). 4. Because Midlothian is not listed in the United States Census 2000, Joint Petitioners must establish that Midlothian is a community for purposes of our FM allotment policies. In support of their proposal, Joint Petitioners state that Midlothian has a population of 12,100 and is one of the fastest growing communities in Virginia. Joint Petitioners state that county governmental officials in Chesterfield County, where Midlothian is located, project the population of Midlothian to be 16,700 by 2008. Midlothian has three ZIP codes (23112, 23113, and 23114) and three post offices. Joint Petitioners state that Midlothian has a library, its own school system, a community college, several churches, numerous medical and dental clinics and practices, a volunteer fire department, and 753 businesses, including branch offices of several financial institutions. 5. This proposal warrants consideration because it would provide Midlothian with a first local broadcast transmission service. The proposed allotments could be made with the site restrictions and reference coordinates indicated below. Accordingly, we seek comment on the proposed amendment of the FM Table of Allotments, Section 73.202( b) of the Commission’s Rules, with respect to Orange, Midlothian, and South Hill, Virginia, and Reidsville, North Carolina: Community Present Proposed Orange, Virginia 255A --- Midlothian, Virginia --- 255B1 South Hill, Virginia 255C3 270A Reidsville, North Carolina 271C 271C0 Proposed Coordinates for Channel 255B1 at Midlothian, Virginia: 37- 35- 23 NL and 77- 44- 49 WL, at a site 12.7 km (7.9 miles) northwest of Midlothian. Proposed Coordinates for Channel 270A at South Hill, Virginia: 36- 46- 48 NL and 78- 15- 04 WL, at a site 12.4 km (7.7 miles) northwest of South Hill. Proposed Coordinates for Channel 271C0 at Reidsville, North Carolina: 36- 16- 33 NL and 79- 56- 26 WL (no change). 3 90 FCC2d 88, 91- 92 (1982). The FM allotment priorities are the following: (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). 2 Federal Communications Commission DA 03- 437 3 6. Commission staff analysis shows that the change of community from Orange to Midlothian would result in a net gain of 2,286.8 square kilometers and a net gain of 729,525 persons. In the loss area, adoption of the proposal would leave 2,470 persons in 135 square kilometers receiving two aural broadcast services, 10,720 persons in 77 square kilometers receiving three services, and 19,189 persons in 541 square kilometers receiving four services. In the gain area, the proposal would add a fifth reception service to 252 persons in 56 square kilometers. Substitution of Channel 270A for Channel 255C3 at South Hill would produce a net loss of 2,285.7 square kilometers and a net loss of 39,412 persons. 7. The existing 70 dBu signal for WJMA- FM at Orange does not cover any Urbanized Area. Joint Petitioners state that Midlothian is not located in an Urbanized Area and that the proposed 70 dBu contour of WJMA- FM will cover less than 50 percent of the Richmond Urbanized Area. Under the circumstances described in the petition, no Tuck analysis will be necessary to evaluate this change of community proposal. 4 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 in paragraph 2 of the Appendix before a channel will be allotted. 9. Pursuant to Sections 1.415 and1.419 of the Commission’s Rules, interested parties may file comments on or before April 11, 2003, and reply comments on or before April 28, 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, S. W., TW- A325, Washington, D. C. 20554. Additionally, a copy of any filing should be served on counsel for the petitioners and parties, as follows: Mark J. Prak Brooks Pierce McLendon Post Office Box 1800 Raleigh, NC 27602 Peter Gutmann Womble, Carlyle, Sandridge & Rice, PLLC 1401 Eye Street, N. W. Washington, D. C. 20005 4 See Faye and Richard Tuck, 3 FCC Rcd 5374 (1988), and Headland, Alabama and Chattahoochee, Florida, 10 FCC Rcd 10,352 (1995). 3 Federal Communications Commission DA 03- 437 4 Mark N. Lipp J. Thomas Nolan Shook, Hardy & Bacon 600 Fourteenth Street, N. W. Suite 800 Washington, D. C. 20005 Brian M. Madden Leventhal Senter & Lerman, PLLC 2000 K Street, N. W. Suite 600 Washington, D. C. 20006 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. An 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, S. W., 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 a rule making proceeding to amend the FM Table of Allotments, Section 73.202( b) of the Commission’s Rules. See Certification that Section 603 and 604 of the Regulatory Flexibility Do Not Apply to Rule Making to Amend Sections 73.202( b), 73.504 and 73.606( b) of the Commission’s Rules, 46 Fed. Reg. 11549 (February 9, 1981). 12. For further information concerning this proceeding, contact Deborah A. Dupont. Media Bureau, at (202) 418- 7072. 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 the 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 4 Federal Communications Commission DA 03- 437 5 which the reply is directed, constitutes an ex parte presentation and shall not be considered in this proceeding. FEDERAL COMMUNICATIONS COMMISSION John A. Karousos Assistant Chief, Audio Division Media Bureau 5 Federal Communications Commission DA 03- 437 6 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 (TV) Table of Allotments, Section 73.202( b) (73.606( 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. The 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( 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 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 Federal Communications Commission DA 03- 437 7 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. 7