*Pages 1--5 from Microsoft Word - 50654.doc* Federal Communications Commission DA 05- 2202 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. (Fernandina Beach and Yulee, Florida) ) ) ) ) ) ) ) ) MB Docket No. 05- 240 RM- 11261 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 Tama Radio Licenses of Jacksonville, FL, Inc. (“ Petitioner”), licensee of Station WJSJ( FM), Channel 287A, Fernandina Beach, Florida, proposing the reallotment of Channel 287A from Fernandina Beach to Yulee, Florida, as its first local service and modification of the Station WJSJ( FM) license accordingly. To accommodate this proposed reallotment, Petitioner also requests the relocation of the transmitter site of co- owned Station WSJF( FM), Channel 288C3, St. Augustine Beach. 1 Petitioner stated its intentions to file an application for Station WJSJ( FM) at Yulee, if reallotted. 2. Petitioner proposes the reallotment of Channel 287A from Fernandina Beach to Yulee, Florida, as its first local service and modification of the Station WJSJ( FM) license accordingly. Petitioner states that Yulee is a Census Designated Place (“ CDP”) located in Nassau County with a 2000 U. S. Census population of 8,392 persons. In support of community status, Petitioner states that Yulee has its own zip code, fire department, library and a number of local churches and other community- based organizations. Yulee also has its own primary school, elementary school and middle school that are part of the Nassau County School system. The Betty P. Cook Nassau Center, a local education center, which is part of the state- wide Florida Community College system, is located in Yulee. In addition, Yulee has a substantial number of businesses that identify themselves with Yulee, such as Yulee Appliance Service, Yulee Auto Parts, Yulee Car Wash, Yulee Villas, and Vision Center of Yulee. Based on the foregoing, we tentatively conclude that Yulee is a community for allotment proposes. 2 1 Petitioner is also the licensee of FM Station WSJF. 2 A U. S. Census designation of an area as a CDP raises the presumption that an area is a “community” for allotment purposes, that presumption is rebuttable. See Stock Island, Florida, 8 FCC Rcd 343 (M. M. Bur. 1993); East Hemet, California, et al., 4 FCC Rcd 7895 (M. M. Bur. 1989); and Hannahs Mill and Milledgeville, Georgia, 7 FCC Rcd 3944 (M. M. Bur. 1992). 1 Federal Communications Commission DA 05- 2202 2 3. Petitioner filed its reallotment request pursuant to 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 without affording other interested parties an opportunity to file competing expressions of interest in the proposed allotment. 3 The proposed reallotment of Channel 287A at Yulee is mutually exclusive with the current authorized facilities of Station WJSJ( FM), Channel 287A, Fernandina Beach, Florida. 4. When considering a reallotment proposal, a comparison is made between the existing allotment and the proposed allotment to determine whether the reallotment would result in a preferential arrangement of allotments based upon the FM Allotment priorities. 4 To this end, the proposed Channel 287A reallotment at Yulee would provide a first local service, priority (3), whereas the retention of Station WJSJ( FM) at Fernandina Beach would attribute to a third local service, priority (4). 5 As such, the reallotment proposal results in a preferential arrangement of allotments based on priority (3), first local service. 5. In sum, Petitioner states that the proposed Yulee reallotment could serve the public interest because the reallotment results in a preferential arrangement of alloments by providing first local service at Yulee without depriving Fernandina Beach of its sole broadcast facility. The reallotment proposal would produce a net gain of 18, 255 persons, noting that the loss area of 245, 161 persons is considered well- served because it would continue to receive at least five aural services. Moreover, Yulee is not located in an urbanized area. The proposed Yulee reallotment would not cover more than fifty percent of the Jacksonville, Florida Urbanized Area. Therefore, a Tuck showing is not required. 6 6. We find that the reallotment proposal warrants consideration because it could provide the community of Yulee with a first local service. A staff engineering analysis has determined that Channel 287A can be allotted to Yulee in conformity with the Commission’s rules, provided there is a site restriction of 10.6 kilometers (6.6 miles) southeast at reference coordinates 30- 34- 00 NL and 81- 31- 30 WL. To facilitate the proposed Yulee reallotment, the transmitter site for FM Station WSJF can be relocated, consistent with the minimum distance separation requirements of Section 73.207( b) of the Commission’s rules, provided there is a site restriction of 7.0 kilometers (4.3 miles) south at reference coordinates 29- 46- 53 NL and 81- 15- 25 WL. 7 In accordance with the provisions of Section 1.420( i) of the Commission’s rules, we shall not accept competing expressions of interest pertaining to the use of Channel 287A at Yulee. 7. Accordingly, we seek comments on the proposed amendment of the FM Table of Allotments, Section 73. 202( b) of the Commission’s Rules, with respect to the communities listed below, as follows: 3 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 7394 (1990). 4 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 priorities (2) and (3)], See Revision of FM Assignment Policies and Procedures, 90 FCC 2d 88, 91 (1988). 5 Noncommercial educational Station WNLE and AM Station WVOJ are currently licensed to Fernandina Beach. 6 See Faye and Richard Tuck, 3 FCC Rcd 5374 (1998) (“ Tuck”) and RKO General, 5 FCC Rcd 3222 (1990) (“ KFRC”). 7 Gunnison, Crawford, and Olathe, Breckenridge, Eagle, Fort Morgan, Greenwood Village, Loveland, and Strasburg, Colorado, and Laramie, Wyoming, 20 FCC Rcd 5908 (MB 2005) (permitting licensees’ proffers to relocate their authorized site to accommodate an FM rulemaking petition to satisfy the spacing requirements of Section 73. 207 of the Commission’s rules). 2 Federal Communications Commission DA 05- 2202 3 Channel Number Community Present Proposed Fernandina Beach, Florida 287A ---------- Yulee, Florida --------- 287A 8. 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. 9. 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: Francisco R. Montero, Esq. Lee G. Petro, Esq. Counsel for Tama Radio Licenses of Jacksonville, FL, Inc. Fletcher, Heald & Hildreth, PLC 1300 North 17 th Street, 11 th Floor Arlington, Virginia 22209 10. 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 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. 11. 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. 8 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 8 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- 2202 4 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). 12. 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 Federal Communications Commission DA 05- 2202 5 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. 5