*Pages 1--4 from Microsoft Word - 25862.doc* Federal Communications Commission DA 03- 777 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. (Fort Stockton and Sanderson, Texas) ) ) ) ) ) ) ) ) MB Docket No. 03- 68 RM- 10654 RM- 10656 NOTICE OF PROPOSED RULEMAKING Adopted: March 12, 2003 Released: March 14, 2003 Comment Date: May 5, 2003 Reply Comment Date: May 20, 2003 By the Assistant Chief, Audio Division: 1. The Audio Division has before it for consideration two mutually exclusive Petitions for Rule Making. The first proposal, filed by Linda Crawford (“ Crawford”), requests the allotment of Channel 263C at Fort Stockton, Texas, as that community’s second FM commercial service. 1 The second proposal, filed by Katherine Pyeatt (“ Pyeatt”), seeks the allotment of Channel 261C3 at Sanderson, Texas, as that community’s first local FM commercial service. 2 The petitioners stated their intentions to apply for the requested channels, if allotted. 2. A staff engineering analysis has determined that Channel 263C can be allotted to Fort Stockton, Texas, in conformity with the Commission’s Rules, provided there is a site restriction of 13.8 kilometers (8.6 miles) southeast of the community. 3 Alternatively, Channel 261C3 can be allotted to Sanderson, consistent with the minimum distance separation requirements of Section 73.207( b) of the Commission’s Rules, provided there is a site restriction of 12.3 kilometers (7.6 miles) north of the community. 4 However, both proposals cannot be accommodated in conformity with the minimum distance separation requirements of Section 73.207( b) of the Commission’s Rules. The proposals are located 73.7 kilometers apart whereas the minimum distance separation requirement is 96 kilometers. Therefore, we shall provide each proponent an opportunity to demonstrate in its comments why its community should receive the requested allotment. 1 Station KFST- FM and Station KFST (AM) is currently assigned to the community. 2 Channel 207A is a vacant noncommercial channel assigned to the community. 3 The reference coordinates for Channel 263C at Fort Stockton are 30- 50- 06 North Latitude and 102- 45- 06 West Longitude. 4 The reference coordinates for Channel 261C3 at Sanderson are 30- 15- 08 North Latitude and 102- 22- 53 West Longitude. 1 Federal Communications Commission DA 03- 777 2 In this regard, the parties should be guided by the allotment criteria for FM allotment priorities. 5 Additionally, the proponents may wish to determine if other channels may be available to resolve the existing conflict. 3. Both proposals warrant consideration because the proposed allotments would provide Fort Stockton with an additional FM broadcast service and Sanderson with a first FM commercial service. Accordingly, we seek comments on the proposed amendment of the FM Table of Allotments, Section 73.202( b) of the Commission’s Rules, with respect to the communities listed below, as follows: Community Present Proposed Fort Stockton, Texas 257C2 257C2, 263C Sanderson, Texas -------- 261C3 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 May 5, 2003, and reply comments on or before May 20, 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: Linda Crawford Katherine Pyeatt 3500 Maple Avenue #1320 6655 Aintree Circle Dallas, Texas 75219 Dallas, Texas 75214 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. 6 5 See Revision of FM Assignment Policies and Procedures, 90 FCC 2d 88 (1982). 6 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). 2 Federal Communications Commission DA 03- 777 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 3 Federal Communications Commission DA 03- 777 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