*Pages 1--4 from Microsoft Word - 39601* Federal Communications Commission DA 04- 1733 Before the Federal Communications Commission Washington, D. C. 20554 In the matter of Amendment of Section 73. 202( b) FM Table of Allotments, FM Broadcast Stations. (Daytona Beach Shores, Florida) ) ) ) ) ) ) MB Docket No. 04- 240 RM- 10843 NOTICE OF PROPOSED RULEMAKING Adopted: June 23, 2004 Released: June 28, 2004 Comments Date: August 19, 2004 Reply comments Date: September 3, 2004 By the Assistant Chief, Audio Division: 1. The Audio Division has before it a petition for rule making filed by Carmine Tutera (“ Tutera”) proposing the allotment of Channel 258A at Daytona Beach Shores, Florida. 1 Tutera stated her intention to file an application for Channel 258A at Daytona Beach Shores, Florida. 2. We initially believe that Tutera’s proposal warrants consideration since the proposed allotment could provide the opportunity for first local broadcast service for Daytona Beach Shores. Tutera has provided an engineering study showing that Channel 258A can be allotted to Daytona Beach Shores and has committed to filing an application for the channel at the appropriate time. A staff engineering analysis confirms that the channel can be allotted to Daytona Beach Shores at coordinates 29- 15- 06 and 81- 02- 29. This site is 10.1 kilometers (6.3 miles) northwest of the Daytona Beach Shores. Site certification is generally not required in the context of a rule making proceeding. However, because of the proximity of the Atlantic Intracoastal Waterway (Halifax River), the Atlantic Ocean, and numerous hotels and beachside attractions, Tutera and any parties filing comments should address the issue of site availability. A showing should be made demonstrating that a suitable fully spaced area exists to locate a transmitter tower to accommodate the allotment of Channel 258A at Daytona Beach Shores. We further request Tutera and any parties filing comments to provide evidence showing that Daytona Beach Shores qualifies as a community for allotment purposes. 2 While Daytona Beach Shores can be located on maps, staff research failed to locate general information supporting community status. 3 1 On August 13, 2003, Tutera filed the same proposal for Daytona Beach Shores, Florida, which was found to be unacceptable and was returned by letter. Tutera refilled the petition on November, 24, 2003, correcting the deficiencies. 2 See Kenansville, Florida, 10 FCC Rcd 9831 (1995). 3 Generally, if a community is incorporated or located in the U. S. Census, that is sufficient to satisfy its status. Absent such recognizable community factors, the petitioner must present the Commission with sufficient information to demonstrate that such a place has social, economic, or cultural indicia to qualify it as a community for allotment purposes. Businesses should have addresses or be shown that they are intended to serve residents of Daytona Beach Shores as opposed to other areas. Also, Tutera did not show that there are any organizations, civic (continued....) 1 Federal Communications Commission DA 04- 1733 2 3. In view of the fact that the proposed allotment could provide a first local FM broadcast service to Daytona Beach Shores, Florida, the Commission solicits comments on the proposal to allot Channel 258A to Daytona Beach Shores. Therefore, we will seek comments on the proposed amendment to the FM Table of Allotments, Section 73.202( b) of the Commission’s Rules, with respect to Daytona Beach Shores, Florida: Channel No. Community Present Proposed Daytona Beach Shores, Florida ----- 258A 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 by paragraph 2 of the Appendix before a channel will be allotted. 5. Interested parties may file comments 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, TW- A325, Washington, D. C. 20554. Additionally, a copy of such comments should be served on Tutera, as follows: Carmine Tutera 1374 Stanfield Cove Heathrow, Florida 32746 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, Natek 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. 4 8. For further information concerning this proceeding, contact Rolanda F. Smith, (202) 418- 2180. For purposes of this restricted notice and comment rule making proceeding, members of the public are (... continued from previous page) groups, churches, schools, police, etc., that have a nexus with Daytona Beach Shores. Tutera neglected to provide any information to qualify Daytona Beach Shores as a community for allotment purposes. 4 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). 2 Federal Communications Commission DA 04- 1733 3 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 3 Federal Communications Commission DA 04- 1733 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