*Pages 1--4 from Microsoft Word - 39600* Federal Communications Commission DA 04- 1729 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. (Portage and Stoughton, Wisconsin) ) ) ) ) ) ) ) MB Docket No. 04- 239 RM- 10998 NOTICE OF PROPOSED RULE MAKING Adopted: June 23, 2004 Released: June 28, 2004 Comment Date: August 19, 2004 Reply Comment Date: September 3, 2004 By the Assistant Chief, Audio Division: 1. The Audio Division has before it a petition for rule making in which Magnum Communications, Inc., licensee of Station WBKY( FM), Portage, Wisconsin, (“ Petitioner”), proposes the reallotment of Channel 240A from Portage, Wisconsin to Stoughton, Wisconsin, as the community’s first local transmission service, and the modification of the license for Station WBKY( FM) to reflect the changes. Petitioner pledges to file an application for the channel and to construct the facilities if the application is granted. 2. Petitioner filed this proposal for reallotment in accordance with the provisions of Section 1.420( i) of the Commission’s Rules, which permits the modification of a station’s license to specify a new community of license while not affording other interested parties the opportunity to file competing expressions of interest in the proposed allotment. 1 In considering a reallotment proposal, we compare the existing allotment to the proposed allotment to determine whether the reallotment will result in a preferential arrangement of allotments. This determination is based upon the FM Allotment priorities. 2 3. In support of the petition, Petitioner states that its proposal will serve the public interest, it would result in a preferential arrangement of allotments, and meets the requirements for reallotment set forth in Change of Community R& O. First, the allotment of Channel 240A at Stoughton is mutually exclusive with the current use of Channel 240A at Portage. Second, the community of Portage, U. S. Census population 9,728 would not be deprived of its only local service. 3 Third, the proposal would provide a first local aural transmission service at Stoughton, under priority three, which will result in a preferential arrangement of allotments over the retention of a third local aural transmission service at Stoughton, which would serve Priority four. In addition, Petitioner includes information regarding the 1 See Amendment of the Commission’s Rules Regarding Modification of FM and TV Authorizations to Specify a New Community of License (“ Change of Community R& O”), 4 FCC Rcd 4870 (1989), recon. granted in part, 5 FCC Rcd 7094 (1990). 2 See Revision of FM Assignment Policies and Procedures, 90 FCC2d 88, 91 (1988). The FM Allotment priorities are (1) First full- time aural service. (2) Second full- time aural service. (3) First local service. (4) Other public interest matters. [Co- equal weight is given to given to priorities (2) and (3)]. 3 Stations WDDC( FM) and WPDR( AM) will remain in Portage. 1 Federal Communications Commission DA 04- 1729 2 relative gains and losses of the proposal. It shows that Station WBKY currently serves 62, 943 persons over 2371.4 square kilometers, and that the proposed 60 dBu contour would result in service to 233,071 persons. Petitioner claims that the relocation will result in a net gain of 170,128 persons and 175.6 square kilometers. Regarding loss area, Petitioner states that this area will "continue to be amply served at the very least by the remaining stations authorized to Portage, Wisconsin…." Our engineering analysis shows that the loss area will include 65,817 persons over 2,516 square kilometers. The proposed coverage to Stoughton will result in 282,442 persons over 2,516 square kilometers receiving a new service. There will be no overlap between the loss and gain area. Our analysis also shows that Stoughton is well served with five or more reception services, but that Portage is not well served, and that 3,221 persons will be reduced from five to four reception services, 1,856 persons will be reduced from four to three services, and 58 persons will be reduced from three to two services. We seek comment on the potential loss of service from this proposal and the public interest benefits of the change of community. 4. In further support of the reallotment, Petitioner states that Stoughton is a community for allotment purposes, that it is not in any urbanized area, and that its proposed 70dBu will cover 9 percent of the Madison, Wisconsin Urbanized Area, which does not trigger a Tuck analysis. 4 In support of its community status, Petitioner states that Stoughton is incorporated and is listed in the U. S. Census, with a 2000 population of 12,354 persons. Petitioner states that Stoughton has a substantial number of community indicia which we have used in the past to determine whether a community deserves to have its own local service, but names none. 5. We seek comment on the community status of Benton. Petitioner has included information which would confer presumptive community status, but if any party submits information sufficient to rebut this presumption, it will be considered. . 6. We believe that the proposal warrants consideration because it would provide Stoughton with a first local aural transmission service without depriving Portage of its sole local transmission service. Channel 240A has been proposed to be reallotted at Stoughton at a site 10.2 kilometers (6.3 miles) southwest of the community. 5 7. Accordingly, we seek comment on the proposed amendment of the FM Table of Allotments, Section 73.202( b) of the Commission’s Rules, for the communities listed below, to read as follows: Channel Community Present Proposed Portage, Wisconsin 240A, 261A 261A Stoughton, Wisconsin --- 240A 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 or counterproposals on or before August 19, 2004, and reply comments on or before September 3, 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, 4 See Headland, Alabama, and Chatahoochee, Florida, 10 FCC Rcd 10352 (1995). 5 The coordinates for Channel 240A at Stoughton are 42- 50- 21 NL and 89- 16- 59 WL. 2 Federal Communications Commission DA 04- 1729 3 TW- A325, Washington, D. C. 20554. Additionally, a copy of such comments should be served on Petitioners’ counsel, as follows: Denise B. Moline, Esq. PMB #215 1212 S. Naper Blvd., #119 Naperville, Illinois 60540 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. 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 a rule making proceeding to amend the FM Table of Allotments, Section 73.202( b) of the Commission's Rules. 6 12. For further information concerning this proceeding, contact Victoria M. McCauley (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. Any comment which has not been served on the petitioners 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 6 See Certification that Section 603 and 604 of the Regulatory Flexibility Act Do Not Apply to Rule Makings to Amend Sections 73. 202( b), 73.504 and 73. 606( b) of the Commission's Rules. 46 FR 11549 (February 9, 1981). 3 Federal Communications Commission DA 04- 1729 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. The person filing the comments shall serve comments on the petitioners. Reply comments shall be served on the person( s) who filed comments to which the reply is directed. A certificate of service shall accompany such comments and reply comments. (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. 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, at its headquarters, 445 12th Street, S. W., Washington, D. C. 4