*Pages 1--5 from Microsoft Word - 36208* Federal Communications Commission DA 04- 503 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. (Glasgow and Bowling Green, Kentucky) ) ) ) ) ) ) MB Docket No. 04- 42 RM- 10850 NOTICE OF PROPOSED RULEMAKING Adopted: February 25, 2004 Released: February 27, 2004 Comments Date: April 19, 2004 Reply comments Date: May 4, 2004 By the Assistant Chief, Audio Division: 1. The Audio Division has before it a petition for rule making filed by Heritage Communications, Inc. (“ Heritage”), licensee of Station WGGC, Glasgow, Kentucky, proposing the reallotment of Channel 236C0 from Glasgow, Kentucky, to Bowling Green, Kentucky, and the modification of the authorization for Station WGGC to reflect the changes. 1 Heritage stated its intention to file an application for Channel 236C0 at Bowling Green, Kentucky. 2. Heritage 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. 2 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. 3 3. In support of the petition, Heritage states that Channel 236C0 can be allotted to Bowling Green, Kentucky, at the current authorized site of Station WGGC and as a result, no gain or loss areas will be created and the requisite city grade coverage will be provided to Bowling Green. The allotment will provide Bowling Green with a second commercial FM service while Glasgow would remain served by five local FM and AM stations. 4 The reallotment will not serve any white or gray areas or establish a first local aural service. The proposal will restore the only competitive commercial nighttime service in 1 The license for Station WGGC, Glasgow, Kentucky, was modified to specify operation on Channel 236C0 in lieu of Channel 236C on October 28, 1999 (BMLH- 1990728KA). The FM Table of Allotments will be corrected to reflect the proper class upon termination of this proceeding. 2 See Modification of FM and TV Authorizations to Specify a New Community of License, 4 FCC Rcd 4870 (1989), recon. granted in part, 5 FCC Rcd 7094 (1990). 3 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)], See Revision of FM Assignment Policies and Procedures, 90 FCC2d 88, 91 (1988). 4 Stations WGVB( FM), Channel 231A, WOVO( FM), Channel 287C3, WSGP( FM), Channel 202C3, WCDS( AM), 1440kHz, and WCLU( AM), 1490 kHz. 1 Federal Communications Commission DA 04- 503 2 Bowling Green and replace the local service lost by Bowling Green when Station WBVR- FM relocated to Auburn, Kentucky. 5 Further, the reallotment will provide additional service to the larger community of Bowling Green (49,296 people) while not depriving Glasgow of local service (13,019 people). Heritage states that Station WGGC is currently short- spaced to Station WRTT, Huntsville, Alabama, which is licensed as a Section 73.215 facility and since the short spacing is not created by Station WGGC, the Commission will permit the change of community of license. 6 According to Heritage, the proposal will present a preferential arrangement of allotments. 4. We believe Heritage’s proposal warrants consideration since the reallotment could provide additional service to Bowling Green. Retention of Channel 236C0 at Glasgow triggers Priority No. 4, other public interest matters, as does the reallotment of Channel 236C0 to Bowling Green. However, the reallotment to Bowling Green will provide additional service to the larger community while not depriving Glasgow of local service, will restore competitive commercial nighttime service in Bowling Green and replace the local service lost when Station WBVR- FM moved from Bowling Green to Auburn, Kentucky. A staff engineering analysis shows that Channel 236C0 can be allotted to Bowling Green in compliance with the Commission’s spacing requirements at coordinates 36- 54- 43 and 86- 11- 21. 7 Our analysis also indicates that Station WGGC, Glasgow currently provides coverage to 100 percent of the Bowling Green, Kentucky Urbanized Area and would continue to serve the urbanized area if realloted to Bowling Green. Since no site change is anticipated, coverage to the urbanized area will remain unchanged. Consideration of Huntington and Tuck in these circumstances is unwarranted. 8 5. As an additional matter, Station WGGC is a pre- 1964 grandfathered station. We recognize that in proposing this action, we are creating a new short- spaced allotment in contravention of Section 73.207 of the Rules. However, we have held that grandfathered FM stations that were in compliance with our Rules when authorized should be afforded the same opportunity to change their community of license as other stations authorized in conformity with our rules, where there is no change in transmitter site. 9 We propose to apply the same approach to the instant case. Heritage will be required to specify its current licensed site for Station WGGC, Glasgow, Kentucky, for the applications for a construction permit and a license for Station WGGC, Bowling Green, Kentucky, since the change of community of license is protected as a grandfathered short- spaced station. Accordingly, as requested, we shall propose to modify the license for Station WGGC to specify operation on Channel 236C0 at Bowling Green, Kentucky, as its new community of license. In accordance with the provisions of Section 1.420( i) of the Commission’s Rules, we shall not accept competing expressions of interest in the use of Channel 236C0 at Bowling Green. 6. 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: 5 See Bowling Green, Kentucky, et. al., 16 FCC Rcd 4908 (MMB 2001). 6 See Newnan and Peachtree City, Georgia, 7 FCC Rcd 6307 (MMB 1992), Oceanside and Encinitas, California, 15 FCC Rcd 15032 (MMB 1999), and Fremont and Holton, Michigan, 14 FCC Rcd 17108 (MMB 1999). 7 Union County Broadcasting Co., Inc., licensee of Station WMSK- FM, Morganfield, Kentucky, filed an application for a minor modification which, although short spaced to Station WGGC, utilizes Section 73. 215 and will cause no actual interference to Station WGGC. See application BMPH- 20040116ADB. 8 See East Los Angeles, Long Beach, and Frazier Park, California, 10 FCC Rcd 2864 (MMB 1995). Heritage provided sufficient information in its Petition for Rule Making to satisfy a Tuck showing. 9 See cases cited in note 6. 2 Federal Communications Commission DA 04- 503 3 Channel Community Present Proposed Bowling Green, Kentucky 227C3 227C3, 236C0 Glasgow, Kentucky 231A, 236C0, 287C3 231A, 287C3 7. 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. 8. Pursuant to Sections 1.415 and 1.419 of the Commission’s Rules, interested parties may file comments or counterproposals on or before April 19, 2004, and reply comments on or before May 4, 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 Cox, as follows: Mark N. Lipp J. Thomas Nolan Vinson & Elkins, L. L. P. 1455 Pennsylvania Avenue Washington, D. C. 20004- 1008 9. 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. 10. 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. 10 11. For further information concerning this proceeding, contact Kathleen Scheuerle, (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 10 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- 503 4 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 4 Federal Communications Commission DA 04- 503 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 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. 5