*Pages 1--6 from Microsoft Word - 40675* Federal Communications Commission DA 04- 2261 Before the Federal Communications Commission Washington, D. C. 20554 ) In the Matter of ) ) Amendment of Section 73.606( b), ) MB Docket No. 04- 281 Table of Allotments, ) RM- 11041 Television Broadcast Stations; and ) Section 73.622( b), Table of Allotments, ) Digital Broadcast Television Stations. ) (Mobile, Alabama) ) NOTICE OF PROPOSED RULE MAKING Adopted: July 22, 2004 Released: July 29, 2004 Comment Date: September 20, 2004 Reply Comment Date: October 5, 2004 By the Chief, Video Division: 1. The Commission has before it a petition for rule making filed by Paxson Communications Corporation (“ Paxson”), proposed surviving applicant for a new commercial television station to operate on Channel 61 at Mobile, Alabama, (the “Station”); and the dismissing applicants (collectively are the “Applicants”). 1 The Applicants propose to convert the current NTSC channel 61 allotment to digital and operate on DTV channel 18 at Mobile, Alabama. 2. In their original petition for rule making, the Applicants sought to substitute channel 50 for channel 61. However, after the petition was filed, the Commission adopted an Order reallocating the 698- 746 MHz Spectrum Band (television channels 52- 59) from use by television broadcasters to new uses. 2 In the Reallocation Report and Order, the Commission dismissed pending petitions for new NTSC channel allotments on channels 52- 59, but provided an opportunity 1 The Applicants include: Paxson, Television Capital Corporation of Mobile (“ TCCM”), the surviving but proposed substituted applicant for the Station, Fant Broadcast Development, L. L. C. (“ Fant”) and Marri Broadcasting, L. P., (( Marri”) the dismissing applicants for the Station. In 1996, three of the Applicants (TCCM, Fant and Marri) submitted mutually exclusive applications for a construction permit to operate on Channel 61 at Mobile. In 1998, pursuant to the Balanced Budget Act of 1997, the Applicants resolved the mutual exclusivities and filed, on January 30, 1998, a Joint Motion for Approval of Universal Settlement Agreement seeking the grant of TCCM application and the dismissal of the applications submitted by Fant and Marri. Concurrently, TCCM and Paxson submitted an amendment to the surviving application seeking the substitution of Paxson as the surviving applicant. 2 See Reallocation and Service Rules for 698- 746 MHz Spectrum Band (Television Channels 52- 59) (“ Reallocation Report and Order”), Report and Order in GN Docket No. 01- 74, 17 FCC Rcd 1022 (2002). 1 Federal Communications Commission DA 04- 2261 2 for parties to file a petition for rule making or amendment to their petitions to specify a new NTSC or a DTV channel on channels 2- 51 or to propose a new DTV allotment on any available channel between 52- 58. In response, the Applicants amended their proposal seeking the allotment of DTV channel 18 in lieu of Channel 61. 3. We believe the Applicants’ proposal warrants consideration. DTV Channel 18 can be substituted for TV Channel 61 at Mobile, Alabama, as proposed, in compliance with the principle community coverage requirements of Sections 73.622( a) and 73.625( a) at coordinates 30- 36- 45 N. and 87- 38- 43 W. We propose to substitute DTV Channel 18 for TV Channel 61 at Mobile with the following specifications: State & City DTV Channel DTV power (kW) Antenna HAAT (m) AL Mobile 18 396 552 4. Accordingly, we seek comments on the proposed amendment of the TV Table of Allotments, Section 73.606( b) of the Commission's Rules, for the community listed below, to read as follows: Channel No. City Present Proposed Mobile, Alabama 5+, 10+, 15+ 5+, 10+, 15+, 21+, *31, *42 21+, *31, *42 61 5. 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 Mobile, Alabama 9, 20, 27, 9, 18, 20, *41, 47 27, *41, 47 6. 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. 2 Federal Communications Commission DA 04- 2261 3 7. Interested parties may file comments on or before September 20, 2004, and reply comments on or before October 5, 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: Scott S. Patrick Dow, Lohnes & Albertson, PLLC 1200 New Hampshire Avenue, N. W. Suite 800 Washington, D. C. 20036- 6802 (Counsel for Paxson Communications Corporation) 8. 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). 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. 9. For further information concerning this proceeding, contact Pam Blumenthal, Media Bureau, (202) 418- 1600. 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 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 3 Federal Communications Commission DA 04- 2261 4 Media Bureau Attachment: Appendix 4 Federal Communications Commission DA 04- 2261 5 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 5 Federal Communications Commission DA 04- 2261 6 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. 6