*Pages 1--12 from Microsoft Word - 36980* Federal Communications Commission DA 04- 780 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. (Anniston, Alabama) (St. Florian, Alabama) (Patagonia, Arizona) (Pima, Arizona) (Somerton, Arizona) (Willcox, Arizona) (Sutter Creek, California) (Westley, California) (Olathe, Colorado) (Olathe, Colorado) (Horseshoe Beach, Florida) (Live Oak, Florida) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) MB Docket No. 04- 79 RM- 10873 RM- 10874 MB Docket No. 04- 80 RM- 10875 MB Docket No. 04- 81 RM- 10876 MB Docket No. 04- 82 RM- 10877 MB Docket No. 04- 83 RM- 10878 MB Docket No. 04- 84 RM- 10879 MB Docket No. 04- 85 RM- 10880 RM- 10881 MB Docket No. 04- 86 RM- 10882 RM- 10883 RM- 10884 RM- 10885 MB Docket No. 04- 87 RM- 10886 MB Docket No. 04- 88 RM- 10887 MB Docket No. 04- 89 RM- 10888 MB Docket No. 04- 90 RM- 10889 1 Federal Communications Commission DA 04- 780 2 (Asbury, Iowa) (Keosauqua, Iowa) (Moville, Iowa) (Rudd, Iowa) (Weiser, Idaho) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) MB Docket No. 04- 91 RM- 10890 RM- 10891 MB Docket No. 04- 92 RM- 10892 RM- 10893 MB Docket No. 04- 93 RM- 10894 MB Docket No. 04- 94 RM- 10895 MB Docket No. 04- 95 RM- 10896 NOTICE OF PROPOSED RULE MAKING Adopted: March 24, 2004 Released: March 26, 2004 By the Chief, Audio Division: Comment Date: May 17, 2004 Reply Comment Date: June 1, 2004 1. The Audio Division has before it a multiple docket Notice of Proposed Rule Making setting forth seventeen Petitions for Rule Making to amend the FM Table of Allotments, Section 73.202( b) of the rules, to reserve certain vacant FM allotments for noncommercial educational (“ NCE”) use. 2. In the Reexamination of the Comparative Standards for Noncommercial Educational Applicants (“ NCE Report and Order”), the Commission established revised criteria by which a rulemaking proponent may reserve an FM allotment for NCE use. 1 Under the expanded criteria, a proponent must demonstrate that it is technically precluded from using a reserved channel (Channels 200 through 220) and the proposal would provide a first and/ or second NCE radio service to at least 10 percent of the population within the 1 mV/ m contour of the proposed station. Originally, the Commission limited this expanded reservation criteria to future allotment proceedings. Thereafter, the Commission extended the expanded criteria to existing vacant FM allotments for which a Notice of Proposed Rule Making had been released prior to August 7, 2000, the effective date of the NCE Report and Order. 2 3. In a Public Notice released September 30, 2003, we invited petitions for rule making to reserve 1 15 FCC Rcd 7386 (2000). Previously, the Commission would only reserve a channel in the nonreserved FM band (Channels 221 through 300) if the petitioner demonstrated that no reserved channel could be used without causing prohibited interference to a Channel 6 TV station a foreign broadcast station. 2 Reexamination of the Comparative Standards for Noncommercial Educational Applicants (“ NCE Second Report and Order”), 18 FCC Rcd 6691 (2003). 2 Federal Communications Commission DA 04- 780 3 vacant FM allotments for NCE use pursuant to the NCE Second Report and Order. 3 In response to the Public Notice, we received 129 petitions for the reservation of 91 allotments. We believe that the public interest would be served by proposing the reservation of the above- captioned allotments for NCE use. Based upon our preliminary study, each petitioner has expressed an interest in applying for an FM allotment reserved for NCE use, is eligible to do so, and has demonstrated compliance with the expanded criteria set forth in the NCE Report and Order. We are combining the separate NCE reservation proposals into a single Notice of Proposed Rule Making. Each proposal has its own docket and rulemaking number, and the Commission’s Reference Center will maintain a file for each docket. This procedure will conserve Commission resources and expedite the processing of the FM allotment reservation petitions by avoiding duplicative actions. 4 We will not entertain counterproposals or any proposal to modify the underlying allotment other than reserving the allotment for NCE use. Instead, a party may file rebuttal comments identifying a site at which a reserved channel could be assigned with facilities fully equivalent to the proposed reserved allotment. Such an alternate reserved channel proposal also must satisfy the first and/ or second NCE radio service criterion. In addition, a party may file comments demonstrating that the reservation proposal would not, in fact, provide a first and/ or second NCE radio service to ten percent of the population within the 1 mV/ m contour of the proposed station. 4. We request comment on the following reservation proposals. A. MB Docket No. 04- 79; RM- 10873, RM- 10874 Proposal: Reserve Channel 261C3 at Anniston, Alabama for non- commercial use. Petitioner: Patrick J. Vaughn, General Counsel American Family Association Post Office Drawer 2440 Tupelo, MS 38803 Community Present Proposed Anniston, Alabama 261C3 *261C3 Coordinates: 33- 40- 51 NL and 85- 48- 56 WL Additional Information: Jimmy Jarrell Communications Foundations Inc. (“ Petitioner”) also filed a petition for rule making requesting to reserve Channel 261C3 at Anniston, AL for non- commercial use. (RM- 10874) Petitioner failed to provide an address and contact number. B. MB Docket No. 04- 80; RM- 10875 3 Media Bureau Opens Window to Permit Noncommercial Educational Reservation Showings for Certain Vacant FM Allotments, 18 FCC Rcd 19600 (MB 2003). 4 The staff will release additional multiple docket notices of rulemakings during the next several weeks. 3 Federal Communications Commission DA 04- 780 4 Proposal: Reserve Channel 274A at St. Florian, Alabama for non- commercial use. Petitioner: Patrick J. Vaughn, General Counsel American Family Association Post Office Drawer 2440 Tupelo, MS 38803 Community Present Proposed St. Florian, Alabama 274A *274A Coordinates: 34- 57- 8 NL and 87- 39- 30 WL C. MB Docket No. 04- 81; RM- 10876 Proposal: Reserve Channel 251A at Patagonia, Arizona for non- commercial use. Petitioner: David A. O’Connor, Esq. c/ o Calvary Chapel of Tucson Holland & Knight LLP 2099 Pennsylvania Avenue, NW, Suite 100 Washington, DC 20006 Community Present Proposed Patagonia, Arizona 251A *251A Coordinates: 31- 33- 05 NL and 110- 44- 45 WL D. MB Docket No. 04- 82; RM- 10877 Proposal: Reserve Channel 296A at Pima, Arizona for non- commercial use. Petitioner: David A. O’Connor, Esq. c/ o Calvary Chapel of Tucson Holland & Knight LLP 2099 Pennsylvania Avenue, NW, Suite 100 Washington, DC 20006 Community Present Proposed Pima, Arizona 296A *296A Coordinates: 32- 53- 36 NL and 109- 49- 42 WL E. MB Docket No. 04- 83; RM- 10878 4 Federal Communications Commission DA 04- 780 5 Proposal: Reserve Channel 260C3 at Somerton, Arizona for non- commercial use. Petitioner: William J. Byrnes, Esq. c/ o Radio Bilingue, Inc. 7921 Old Falls Road McLean, VA 22102 Community Present Proposed Somerton, Arizona 260C3 *260C3 Coordinates: 32- 35- 0 NL and 114- 35- 5 WL F. MB Docket No. 04- 84; RM- 10879 Proposal: Reserve Channel 223C3 at Willcox, Arizona for non- commercial use. Petitioner: David A. O’Connor, Esq. c/ o Calvary Chapel of Tucson Holland & Knight LLP 2099 Pennsylvania Avenue, NW, Suite 100 Washington, DC 20006 Community Present Proposed Willcox, Arizona 223C3 *223C3 Coordinates: 32- 16- 22 NL and 109- 48- 14 WL G. MB Docket No. 04- 85; RM- 10880, RM- 10881 Proposal: Reserve Channel 298A at Sutter Creek, California for non- commercial use. Petitioners: Patrick J. Vaughn, General Counsel American Family Association Post Office Drawer 2440 Tupelo, MS 38803 David A. O’Connor, Esq. c/ o Calvary Chapel of Amador County Holland & Knight LLP 2099 Pennsylvania Avenue, NW, Suite 100 Washington, DC 20006 Community Present Proposed Sutter Creek, California 298A *298A Coordinates: 38- 23- 30 NL and 120- 48- 06 WL 5 Federal Communications Commission DA 04- 780 6 H. MB Docket No. 04- 86; RM- 10882, RM- 10883, RM- 10884, RM- 10885 Proposal: Reserve Channel 238A at Westley, California for non- commercial use. Petitioners: Patrick J. Vaughn, General Counsel American Family Association Post Office Drawer 2440 Tupelo, MS 38803 William J. Byrnes, Esq. c/ o Radio Bilingue, Inc. 7921 Old Falls Road McLean, VA 22102 Mark Follett Starboard Media Foundation, Inc. 2300 Riverside Drive Green Bay, WI 54301 Theodore D. Frank, Esq. Maureen R. Jeffreys, Esq. c/ o KQED, Inc. Arnold & Porter 555 12 th Street, N. W. Washington, DC Community Present Proposed Westley, California 238A *238A Coordinates: 37- 28- 13 NL and 121- 11- 14 WL I. MB Docket No. 04- 87; RM- 10886 Proposal: Reserve Channel 270C2 at Olathe, Colorado for noncommercial use. Petitioner: Harry C. Martin, Esq. Lee G. Petro, Esq. c/ o Calvary Chapel of Montrose Fletcher, Heald & Hildreth PLC 1300 North 17 th Street, 11 th Floor Arlington, VA 22209 Community Present Proposed Olathe, Colorado 270C2 *270C2 Coordinates: 38- 36- 18 NL and 107- 58- 54 WL 6 Federal Communications Commission DA 04- 780 7 J. MB Docket No. 04- 88; RM- 10887 Proposal: Reserve Channel 293C at Olathe, Colorado for non- commercial use. Petitioner: Harry C. Martin, Esq. Lee G. Petro, Esq. c/ o Calvary Chapel of Montrose Fletcher, Heald & Hildreth PLC 1300 North 17 th Street, 11 th Floor Arlington, VA 22209 Community Present Proposed Olathe, Colorado 293C *293C Coordinates: 38- 37- 3 NL and 107- 58- 33 WL K. MB Docket No. 04- 89; RM- 10888 Proposal: Reserve Channel 234C3 at Horseshoe Beach, Florida for non- commercial use. Petitioner: Harry C. Martin, Esq. Lee G. Petro, Esq. c/ o Living Proof, Inc. Fletcher, Heald & Hildreth PLC 1300 North 17 th Street, 11 th Floor Arlington, VA 22209 Community Present Proposed Horseshoe Beach, Florida 234C3 *234C3 Coordinates: 29- 26- 28 NL and 83- 17- 15 WL L. MB Docket No. 04- 90; RM- 10889 Proposal: Reserve Channel 259A at Live Oak, Florida for non- commercial use. Petitioner: Mark Follett Starboard Media Foundation, Inc. 2300 Riverside Drive Green Bay, WI 54301 Community Present Proposed Live Oak, Florida 259A *259A Coordinates: 30- 13- 12 NL and 82- 54- 0 WL 7 Federal Communications Commission DA 04- 780 8 M. MB Docket No. 04- 91; RM- 10890, RM- 10891 Proposal: Reserve Channel 238A at Asbury, Iowa for non- commercial use. Petitioners: Patrick J. Vaughn, General Counsel American Family Association Post Office Drawer 2440 Tupelo, MS 38803 Mark Follett Starboard Media Foundation, Inc. 2300 Riverside Drive Green Bay, WI 54301 Community Present Proposed Asbury, Iowa 238A *238A Coordinates: 42- 30- 18 NL and 90- 40- 46 WL N. MB Docket No. 04- 92; RM- 10892, RM- 10893 Proposal: Reserve Channel 271C3 at Keosauqua, Iowa for non- commercial use. Petitioner: Todd D. Gray, Esq. Margaret L. Miller, Esq. Barry S. Persh, Esq. c/ o University of Iowa Dow, Lohnes, & Albertson, PLLC 1200 New Hampshire Avenue, Suite 800 Washington DC 20036 Mark Follett Starboard Media Foundation, Inc. 2300 Riverside Drive Green Bay, WI 54301 Community Present Proposed Keosauqua, Iowa 271C3 *271C3 Coordinates: 40- 43- 48 NL and 91- 57- 48 WL O. MB Docket No. 04- 93; RM- 10894 8 Federal Communications Commission DA 04- 780 9 Proposal: Reserve Channel 246A at Moville, Iowa for non- commercial use. Petitioner: Mark Follett Starboard Media Foundation, Inc. 2300 Riverside Drive Green Bay, WI 54301 Community Present Proposed Moville, Iowa 246A *246A Coordinates: 42- 29- 11 NL and 96- 0- 36 WL P. MB Docket No. 04- 94; RM- 10895 Proposal: Reserve Channel 268A at Rudd, Iowa for non- commercial use. Petitioner: Patrick J. Vaughn, General Counsel American Family Association Post Office Drawer 2440 Tupelo, MS 38803 Community Present Proposed Rudd, Iowa 268A *268A Coordinates: 43- 7- 34 NL and 92- 54- 20 WL Q. MB Docket No. 04- 95; RM- 10896 Proposal: Reserve Channel 280C1 at Weiser, Idaho for non- commercial use. Petitioner: Jeff Abrams, Chairman Boise Community Radio Project, Inc. 4370 Kitsap Way Boise, ID 83703 Community Present Proposed Weiser, Idaho 280C1 *280C1 Coordinates: 44- 20- 39 NL and 117- 7- 14 WL Additional Information: In compliance with § 1.52 of the Commission’s rules, Boise Community Radio Project, Inc. is requested to include with its comments verification that the statements contained in the petition are accurate to the best of its knowledge. 5 5 Although the request was signed, it failed to include an affidavit verifying that the statements contained in the petition were accurate to the best of its knowledge. Section 1.52 of the Commission’s Rules require that the original (continued….) 9 Federal Communications Commission DA 04- 780 10 5. Comments, reply comments and other pleadings filed in response to this Notice of Proposed Rule Making should reference the docket to which the pleading pertains. The Commission’s authority to institute rulemaking 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 reserved. 6. Pursuant to Sections 1.415 and 1.419 of the Commission’s Rules, interested parties may file comments on or before May 17, 2004 and reply comments on or before June 1, 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 the petitioner or its counsel. 7. Parties who choose to file by paper must file an original and four copies of each filing. Filings can be sent by hand or messeger 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 messinger- delivered paper filings for the Commission’s Secretary at 236 Massachusetts Avenue, NE, Suite 110, Washington, D. C. 20002. The filing hours at this location are 8: 00 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 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. 8. The Commission has determined that the relevant provisions of the Regulatory Flexibility Act of 1980 do not apply to rulemaking proceedings to amend the FM Table of Allotments, Section 73.202( b) of the Commission’s Rules. 6 9. For further information concerning a proceeding listed above, contact Rolanda F. Smith, (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 its staff for the clarification or adduction of (Continued from previous page) of any document filed with the Commission by a party not represented by counsel 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 with the requirements of Section 1.52 regarding subscription and verification. See also Amendment of Sections 1.420 and 73.3584 of the Commission’s Rules Concerning Abuses of the Commission’s Processes, 5 FCC Rcd 3911, 3919, n. 41 (1990). Boise Community Radio Project, Inc. is requested to rectify this omission in its comments. 6 See Certification that Sections 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 Fed. Reg. 11549 (February 9, 1981). 10 Federal Communications Commission DA 04- 780 11 evidence or resolution of issues in this 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 any 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 that 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 this proceeding. FEDERAL COMMUNICATIONS COMMISSION Peter H. Doyle, Chief Audio Division Media Bureau APPENDIX 11 Federal Communications Commission DA 04- 780 12 1. Pursuant to authority contained in Sections 4( i), 5( c)( 1), 303( g) and (r), and 307( b) of the Communications act of 1934, as amended, and sections0.61, 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 discussed in the Notice of Proposed Rule Making to which this Appendix is attached. Proponent will be expected to answer whatever questions are presented in initial comments. The proponent of the 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 reserved and, if authorized, to build a station promptly. Failure to file may lead to denial of the request. 3. 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 who filed the 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). Comments should be filed with the Secretary, Federal Communications Commission, Washington, D. C. 20554. 4. 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. 5. 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 (Room CY- A257), at its headquarters, 445 Twelfth Street, SW, Washington, D. C. 12