*Pages 1--4 from Microsoft Word - 50653.doc* Federal Communications Commission DA 05- 2201 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. (Columbus, Indiana) ) ) ) ) ) ) MB Docket No. 05- 238 RM- 11260 NOTICE OF PROPOSED RULEMAKING Adopted: July 27, 2005 Released: July 29, 2005 Comment Date: September 19, 2005 Reply Comment Date: October 4, 2005 By the Assistant Chief, Audio Division, Media Bureau: 1. The Audio Division has before it a Petition for Rule Making filed by Columbus Community Radio Corporation (“ Petitioner”), licensee of Station WHUM- LP, Channel 253L1, Columbus, Indiana, requesting allotment of Channel 228A at Columbus, Indiana, and its reservation for noncommercial educational (“ NCE”) use. Petitioner states that it will file an NCE application for Channel 228A at Columbus, if reserved for NCE use. 2. In support of the proposal, Petitioner advises that the proximity of Station WRTV- TV, Channel 6, Indianapolis, Indiana, precludes the availability of any noncommercial educational channels in the reserved band from which a full Class A channel could operate to serve Columbus. Petitioner asserts that the allotment and reservation of Channel 228A at Columbus could provide an NCE service to the community in full compliance with the technical requirements of the Commission's rules. 3. Commercial channels are generally not reserved for noncommercial use in allotment proceedings unless channels in the reserved portion of the FM band (Channels 201- 220) are unavailable due to prohibited interference to TV Channel 6 or to foreign allotments. 1 Alternatively, a proponent can demonstrate that it is technically precluded from using a reserved channel by existing stations or previously filed applications and the proposed station would provide a first and/ or second NCE radio service to at least 10 percent of the population within the 1 mV/ m (60 dBu) contour of the proposed station, such population must exceed 2,000 persons. 2 An engineering staff analysis has confirmed that the location of the Channel 6 station precludes the use of a reserved band channel at the proposed allotment’s reference coordinates. Therefore, the enumerated potential TV 6 interference from Station WRTV merits the proposed allotment and reservation of Channel 228A for NCE use at Columbus. 4. We find that the allotment of Channel 228A and its proposed NCE reservation could serve the public interest. A staff engineering review reveals that Channel 228A can be allotted and reserved for NCE use in compliance with the Commission’s minimum distance separation requirements, with the imposition of a site restriction of 7.9 kilometers (4.9 miles) southeast at reference coordinates 39- 1 See Butle, Montana, 9 FCC Rcd 2180 (MMB 1994); Buhl, Minnesota, 9 FCC Rcd 2606 (MMB 1994). 2 Reexamination of the Comparative Standards for Noncommercial Educational Applicants, 15 FCC Rcd 7386 (2000). 1 Federal Communications Commission DA 05- 2201 2 09- 06 NL and 85- 52- 09 WL. We note that the proposed Channel 228A is short- spaced to the licensed site of Station WQKC- FM, Channel 229B, Seymour, Indiana. However, Station WQKC- FM’s license was modified to specify operation on Channel 230A at Sellersburg, Indiana in MB Docket No. 03- 98. 3 Moreover, the FM Table of Allotments was amended to reflect this change. Therefore, no protection is afforded to this license site. As such, we are sending a copy of this Notice of Proposed Rule Making to S. C. I. Broadcasting, Inc., licensee of Station WQKC- FM. 5. Accordingly, we seek comment on the proposed amendment of the FM Table of Allotments, Section 73.202( b) of the Commission’s Rules, with respect to Columbus, Indiana. Community Present Proposed Columbus, Indiana 268B, 285A *228A, 268B, 285A 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 in paragraph 2 of the Appendix before a channel will be allotted. 7. Pursuant to Sections 1.415 and 1.419 of the Commission’s Rules, interested parties may file comments on or before September 19, 2005, and reply comments on or before October 4, 2005, 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, as follows: Mitzi Quinn, President Columbus Community Radio Corporation 1325 Washington Street Columbus, Indiana 47201 8. IT IS ORDERED, That the Commission’s Imaging Center shall send by Certified Mail, Return Receipt Requested, a copy of this Notice of Proposed Rulemaking to the following: Mark N. Lipp, Esq. Counsel, S. C. I. Broadcasting, Inc. Vinson & Elkins L. L. P. 1455 Pennsylvania Avenue, N. W., Suite 600 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, 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. 3 See Seymour and Sellersburg, Indiana, 19 FCC Rcd 15312 (MB 2004). 2 Federal Communications Commission DA 05- 2201 3 20554. All filings must be addressed to Marlene H. Dortch, Secretary, Federal Communications Commission, Office of the Secretary. Any filing that is not addressed to the Office of the Secretary will be treated as filed on the day it is received in the Office of the Secretary. See 47 C. F. R. § 1.7. Accordingly, failure to follow the specified requirements may result in the treatment of a filing as untimely. 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. 4 This document does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104- 13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107- 198, see 44 U. S. C. 3506( c)( 4). 11. For further information concerning a proceeding listed above, contact Rolanda F. Smith, Media Bureau (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 in the applicable docket 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 any summary of any new information shall be served by the person making the presentation upon the other parties to the proceeding in particular docket 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 John A. Karousos Assistant Chief Audio Division Media Bureau Attachment: Appendix 4 See Certification that Section 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). 3 Federal Communications Commission DA 05- 2201 4 APPENDIX 1. Pursuant to authority found in 47 U. S. C. Sections 4( i), 5( c)( 1), 303( g) and (r), and 307( b), and 47 C. F. R. Sections 0.61, 0.204( b) and 0. 283, IT IS PROPOSED TO AMEND the FM Table of Allotments, 47 C. F. R. Section 73.202( b), 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 47 C. F. R. Section 1.420( d).) (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 47 C. F. R. Sections 1.415 and 1.420, 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 47 C. F. R. Section 1.420( a), (b) and (c).) Comments should be filed with the Office of the Secretary, Federal Communications Commission, 445 12th Street, S. W., TW- A325, Washington, D. C. 20554. 5. Number of Copies. In accordance with the provisions of 47 C. F. R. Section 1.420, 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 (Room CY- A257) at its headquarters, 445 12 th Street, S. W, Washington, D. C. 4