*Pages 1--5 from Microsoft Word - 38562* Federal Communications Commission DA 04- 1348 Before the Federal Communications Commission Washington, D. C. 20554 ) In the Matter of ) ) Amendment of Section 73.622( b), ) MB Docket No. 04- 188 Table of Allotments, ) RM- 9880 Digital Television Broadcast Stations. ) (Glendive, Montana) ) ) ) NOTICE OF PROPOSED RULE MAKING Adopted: May 13, 2004 Released: May 24, 2004 Comment Date: July 15, 2004 Reply Comment Date: July 30, 2004 By the Chief, Video Division: 1. The Commission has before it a petition for rule making filed by Glendive Broadcasting Corporation (“ Glendive”), licensee of station KXGN- TV, NTSC channel 5, Glendive, Montana. Glendive requests the substitution of DTV channel 10 for station KXGN- TV’s paired DTV channel 15. 1 Glendive states that the adoption of its proposal will enable station KXGN- DT to reduce its costs and improve its service. 2. We believe Glendive's proposal warrants consideration. DTV channel 10 can be substituted for DTV channel 15 at Glendive, Montana, as proposed, in compliance with the principle community coverage requirements of Section 73.625( a) at coordinates 47- 03- 15 N. and 104- 40- 45 W. In addition, we find that this channel change is acceptable under the 2 percent criterion for de minimis impact that is applied in evaluating requests for modification of initial DTV allotments under Section 73.623( c)( 2). Since the community of Glendive is located within 400 kilometers of the U. S.- Canadian border, concurrence from the Canadian government was obtained for this allotment. We propose to substitute DTV Channel 10 for DTV Channel 15 for station KXGN- DT at 1 Although petitioner’s request indicates that the original copy of his proposal was signed, petitioner failed to include an affidavit verifying that the statements contained in his petition were accurate to the best of his knowledge. Section 1.52 of the Commission’s rules requires that the original of any document filed with the Commission by a party not represented by counsel must 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 to the requirements of Section 1.52 regarding subscription and verification. See also Amendment of Section 1.420 and 73.3584 of the Commission’s Rules Concerning Abuses of the Commission’s Processes, 5 FCC Rcd 3911, n. 41 (1990). Petitioner is requested to rectify this omission in his comments. 1 Federal Communications Commission DA 04- 1348 2 Glendive with the following specifications: State & City DTV Channel DTV power (kW) Antenna HAAT (m) MT Glendive 10 30 152 4. Accordingly, we seek comments on the proposed amendment of the DTV Table of Allotments, Section 73.622( b) of the Commission's Rules, for the community listed below, to read as follows: Channel No. City Present Proposed Glendive, Montana 15 10 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 by paragraph 2 of the Appendix before a channel will be allotted. 6. Interested parties may file comments on or before July 15, 2004, and reply comments on or before July 30, 2004, and are advised to read the Appendix for the proper procedures. Comments should be filed with the Secretary, Federal Communications Commission, Washington, D. C. 20554. Additionally, a copy of such comments should be served on the petitioner, or its counsel or consultant, as follows: Dan Frenzel, Vice President Glendive Broadcasting Corporation 210 S. Douglas Glendive, Montana 59330 (Petitioner) 7. 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 TV Table of Allotments, Section 73.606( b) and 73.622( 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), 73.504 and 73.606( b) of the Commission's Rules, 46 FR 11549, February 9, 1981. The Regulatory Flexibility Act of 1980 would also not apply to rule making proceedings to amend the DTV Table of Allotments, Section 73.622( b) of the Commission's Rules. 8. For further information concerning this proceeding, contact Pam Blumenthal, Media Bureau, (202) 418- 1600. For purposes of this restricted notice and comment rule making 2 Federal Communications Commission DA 04- 1348 3 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. 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 Barbara A. Kreisman Chief, Video Division Media Bureau Attachment: Appendix 3 Federal Communications Commission DA 04- 1348 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 DTV Table of Allotments, Section 73.622( 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.). The Commission permits the electronic filing of all pleadings and comments in proceeding involving petitions for rule making (except in broadcast allotment proceedings). See Electronic Filing of Documents in Rule Making Proceedings, GC Docket No. 97- 113 (rel. April 6, 1998). Filings by paper can be sent by hand or messenger delivery, by commercial overnight courier, or by first- class or overnight U. S. Postal 4 Federal Communications Commission DA 04- 1348 5 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 and 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, 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 Center (Room CY- A257) at its headquarters, 445 12th Street, S. W., Washington, D. C. 5