*Pages 1--4 from Microsoft Word - 26542* Federal Communications Commission DA 03- 967 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. (Okeechobee, Florida) ) ) ) ) ) ) MB Docket No. 03- 89 RM- 10689 NOTICE OF PROPOSED RULEMAKING Adopted: April 2, 2003 Released: April 4, 2003 Comment Date: May 27, 2003 Reply Comment Date: June 10, 2003 By the Assistant Chief, Audio Division: 1. The Audio Division has before it a Petition for Rule Making filed by George S. Kalman (“ Petitioner”), proposing the allotment of Channel 291A at Okeechobee, Florida, as the community’s first FM commercial service. 1 Petitioner has stated that he will file an application to operate a FM station at Okeechobee, if the requested channel is allotted. 2. The proposal warrants consideration since it could provide a first FM commercial service to the community of Okeechobee, Florida. In support of the proposal, Petitioner states that Okeechobee is located in Okeechobee County, with a 2000 U. S. Census population of 5,375 persons. Okeechobee has its own city government, police department, fire department, school system, and chamber of commerce. A staff engineering analysis indicates that Channel 291A can be allotted to Okeechobee, consistent with the minimum distance separation requirements of the Commission’s Rules, provided there is a site restriction 13 kilometers (8.1 miles) northwest of the community. 2 3. In compliance with § 1.52 of the Commission’s rules, Petitioner is requested to include with its comments verification that the statements contained in the petition are accurate to the best of its knowledge. Although the Petitioner’s request was signed, it failed to include an affidavit verifying that the statements contained in the petition were accurate to the best of its knowledge. Section 1.52 of the Commission’s Rules require that the original of any document filed with the Commission by a party not represented by counsel be signed and verified by the party and his/ her address stated. In the absence of such verification, the petition may be dismissed. Section 1.401( b) of the Commission’s Rules concerning rule making proceedings places petitioners on notice that their proposal must conform with the requirements of Section 1 Station WOKC( AM) and noncommercial Channel 208A is currently assigned to Okeechobee. 2 The reference coordinates for Channel 291A at Okeechobee are 27- 20- 30 North Latitude and 80- 54- 08 West Longitude. 1 Federal Communications Commission DA 03- 967 2 1.52 regarding subscription and verification. 3 The Petitioner is requested to rectify this omission in its comments. 4. 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 Okeechobee, Florida. Community Present Proposed Okeechobee, Florida -------- 291A 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 in paragraph 2 of the Appendix before a channel will be allotted. 6. Pursuant to Sections 1.415 and 1.419 of the Commission’s Rules, interested parties may file comments on or before May 27, 2003, and reply comments on or before June 10, 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: George S. Kalman 100 Ocean Trail Way Apt. 909 Jupiter, Florida 33477 7. 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. 8. 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 See Amendment of Sections 1.420 and 73. 3584 of the Commission’s Rules Concerning Abuses of the Commission’s Processes, 5 FCC Rcd 3911, 3919, n. 41 (1990). 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). 2 Federal Communications Commission DA 03- 967 3 9. 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- 967 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