*Pages 1--5 from Microsoft Word - 45893.doc* Federal Communications Commission DA 05- 290 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. (Homerville, Georgia) Reclassification of License of Station WKQL( FM), Jacksonville, Florida ) ) ) ) ) ) ) ) ) MB Docket No. 05- 32 RM- 10988 NOTICE OF PROPOSED RULEMAKING Adopted: February 2, 2005 Released: February 4, 2005 Comment Date: March 28, 2005 Reply Comment Date: April 12, 2005 By the Assistant Chief, Audio Division, Media Bureau: 1. The Audio Division has before it a petition for rule making filed by Association for the Studies of American Heritage Corporation (“ Petitioner”), 1 seeking to amend the FM Table of Allotments by allotting Channel 246A at Homerville, Georgia, as the community’s second local aural transmission service. To accommodate the proposal consistent with the minimum distance separation requirements of the Commission’s Rules, 2 Petitioner’s proposal also requires the reclassification of Station WKQL( FM), Jacksonville, Florida, Channel 245C to specify operation on Channel 245C0. 3,4 1 The petition was signed by Clyde Scott, Jr., President, but not verified. The petition also included Petitioner’s address and the relevant engineering. However, as required by Section 1.52 of the rules, a party not represented by counsel must sign and verify the facts in the petition by including a sworn statement that the facts are true. Petitioner is requested to include this sworn statement with its comments in this proceeding. 2 See Section 73. 207( b)( 1). 3 The distance between the required site for requested Channel 246A at Homerville and the license site of Station WKQL( FM) is 152 kilometers. A minimum distance separation of 165 kilometers is required in this instance. However, if Station WKQL( FM) is reclassified to operate as a Class C0 facility, the short spacing issue will be eliminated. 4 Station WKQL( FM) operates on Channel 245C with an effective radiated power of 100 kilowatts at 309 meters height above average terrain (HAAT), which is below the minimum Class C antenna height of 451 meters HAAT. Therefore Station WKQL( FM) is subject to reclassification as a Class C0 facility. See 1998 Biennial Regulatory Review— Streamlining of Radio Technical Rules in Parts 73 and 74 of the Commission’s Rules, 15 FCC Rcd 21, 649 (2000). Pursuant to the requirements set forth in Note 4 of Section 73. 3573 of the rules, we issued an Order to Show Cause to Cox Radio, Inc., licensee of Station WKQL( FM), affording it 30 days to express in writing an intention to seek authority to upgrade its technical facilities to preserve Class C status, or otherwise challenge the proposed action. See In Re Reclassification of License of Station WKQL( FM), Jacksonville, Florida, 19 FCC Rcd 10970 (MB 2004). No response was received, and therefore, in accordance with the Commission’s reclassification procedures noted above, the license for Station WKQL( FM) will be reclassified in the context of this proceeding to specify operation on Channel 245C0 instead of Channel 245C at Jacksonville, Florida. 1 Federal Communications Commission DA 05- 290 2 2. Petitioner also advises that Channel 246A is the only Class A channel available for allotment at Homerville. 5 In further support of its proposal, Petitioner asserts that Homerville is a community for allotment purposes. Homerville already has one radio station and is an incorporated city with its own elected mayor/ council government. It has a 2000 U. S. Census population of 2,508 persons and its own post office and zip code. Petitioner states that 17,699 persons would gain a service by the addition of Channel 246A at Homerville, and that there would be no loss area from the reclassification of Station WKQL( FM). 3. Petitioner’s proposal warrants consideration because the allotment could provide Homerville with its second local aural transmission service. A staff engineering analysis of the proposal confirms the unavailability of any alternate Class A channel or antenna site to accommodate Petitioner’s proposal at Homerville. The staff analysis also shows that the reclassification of Station WKQL( FM), Jacksonville, Florida, to specify operation on Channel 245C0, will eliminate any short spacing to requested Channel 246A at Homerville, Georgia, by using Petitioner’s requested site 11.1 kilometers (6.9 miles) northwest of the community. 6,7 Operation on Channel 245A from the restricted site specified also will comply with the requirements of Section 73.315 of the Commission’s Rules to provide 70 dBu coverage over the entire community. 4. Accordingly, we seek comment on the proposed amendment to the FM Table of Allotments, Section 73.202( b) of the Commission’s Rules, with respect to the communities listed below, as follows: Channel No. City Present Proposed Homerville, Georgia 254A 246A, 254A Jacksonville, Florida 236C, 241C, 245C, 256C 236C, 241C, 245C0, 275C, 297C1 256C, 275C, 297C1 5. 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. 6. Pursuant to 47 C. F. R. Sections 1.415 and 1.419, interested parties may file comments or counterproposals on or before March 28, 2005, and reply comments on or before April 12, 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. Any counterproposal filed in this proceeding need only protect Station WKQL( FM), Jacksonville, Florida, as a Class C0 allotment. Additionally, a copy of such comments should be served on Petitioner, as follows: 5 See 47 C. F. R. §§ 73. 3573, n. 4 and 1. 420( g), n. 2. See also Second Report and Order, 15 FCC Rcd at 21,662, ¶ 26. 6 Coordinates for Channel 245A at Homerville are 31- 07- 16 NL and 82- 48- 51 WL. 7 As indicated above, the minimum distance separation requirements are met based on the reclassification of Station WKQL( FM) to specify operation on Channel 245C0 rather than Channel 245C, at Jacksonville, Florida at its license coordinates 30- 16- 34 NL and 81- 33- 53 WL. 2 Federal Communications Commission DA 05- 290 3 Clyde Scott, Jr. President Association for the Studies of American Heritage 293 JC Saunders Road Moultrie, Georgia 31768 7. In addition, a copy of this Notice of Proposed Rulemaking shall be sent to Cox Radio, Inc., as follows: WKQL Radio Kevin F. Reed, Esq. Cox Radio, Inc. Dow Lohnes & Albertson, PLLC 8000 Belfort Parkway Suite 800 Jacksonville, Florida 32256 1200 New Hampshire Ave., NW Washington, DC 20036 (Counsel to Cox Radio, Inc.) 8. Parties must file an original and four paper 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 the Commission’s Secretary, Office of the Secretary, Federal Communications Commission. All filings must be addressed to the Office of the Secretary, Federal Communications Commission. 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. 9. 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 FM Table of Allotments, Section 73.202( b) of the Commission's Rules. 8 This document does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104- 13. In addition, therefore, it does not contain any new or modified “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). 10. For further information concerning this proceeding, contact Victoria M. McCauley, 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 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 8 See Certification that Sections 603 and 604 of the Regulatory Flexibility Act Do Not Apply to Rule Making to Amend Sections 73. 202( b) and 73. 606( b) of the Commission’s Rules, 46 FR 11549, February 9, 1981. 3 Federal Communications Commission DA 05- 290 4 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 the proceeding. FEDERAL COMMUNICATIONS COMMISSION John A. Karousos Assistant Chief Audio Division Media Bureau Attachment: Appendix 4 Federal Communications Commission DA 05- 290 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) Petitions for rule making which conflict with the proposals in this Notice 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. 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 47 C. F. R. Section 1.420( a), (b) and (c).) Comments should be filed with the Secretary, Federal Communications Commission, 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, at its headquarters, 445 12th Street, S. W., Washington, D. C. 5