*Pages 1--6 from Microsoft Word - 47121.doc* Federal Communications Commission DA 05- 713 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of ) ) Amendment of Section 73.202( b), ) MB Docket No. 05- 120 Table of Allotments, ) RM- 11194 FM Broadcast Stations. ) (Prospect, Kentucky, and ) Salem, Indiana) ) NOTICE OF PROPOSED RULE MAKING Adopted: March 16, 2005 Released: March 18, 2005 Comment Date: May 9, 2005 Reply Date: May 24, 2005 By the Assistant Chief, Audio Division, Media Bureau: 1. The Audio Division has before it for consideration a Petition for Rule Making filed by Clear Channel Broadcasting Licenses, Inc. (“ Clear Channel”), licensee of Station WZKF( FM), Channel 255B, Salem, Indiana. Pursuant to Sections 1.420( g) and (i) of the Commission’s rules, 1 Clear Channel proposes to change the community of license for Station WZKF( FM) from Salem, Indiana, to Prospect, Kentucky, and to allot Channel 255B at Prospect as that community’s first local service. Clear Channel represents that the proposed allotment of Channel 255B at Prospect is mutually exclusive with the current allotment of Channel 255B at Salem. Clear Channel states that the proposal would not remove the sole local service from Salem, which would continue to be served by Stations WSLM( AM) and WSLM- FM, Salem, Indiana. If its petition is granted, Clear Channel states that it will file an application for Channel 255B at Prospect, Kentucky, and construct the facilities as authorized. 2. Modification of FM and TV Authorizations to Specify a New Community of License 2 establishes that, in evaluating a change of community proposal, we compare the existing versus the proposed arrangement of allotments using the FM allotment priorities set forth in Revision of FM Assignment Policies and Procedures. 3 Under those priorities, the existing allotment of Channel 255B at Salem would, at best, satisfy priority four, “other public interest matters.” The proposed reallotment of Channel 255B at Prospect should, therefore, be preferred, because it would satisfy priority three, “first local service.” Both 1 47 C. F. R. §§ 1.420( g) and (i). 2 4 FCC Rcd 4870 (1989), recon. granted in part,, 5 FCC Rcd 7094 (1990). 3 90 FCC2d 88, 91- 92 (1982). The FM allotment priorities are the following: (1) First full- time aural service; (2) Second full- time aural service; (3) First local service; and (4) Other public interest matters. Equal weight is given to priorities (2) and (3). 1 Federal Communications Commission DA 05- 713 2 Salem and Prospect are well- served with five or more aural broadcast transmission services. 3. Salem, Indiana, is not located within an urbanized area, but Prospect, Kentucky, is located within the Louisville Urbanized Area. For that reason, a Tuck analysis is necessary to determine whether the proposed reallotment of Channel 255B at Prospect is entitled to consideration as a first local service. 4 4. The population of Prospect, Kentucky, at 4,657 persons, is approximately 18 percent that of Louisville (256,231). Prospect is located 17 kilometers from Louisville. Clear Channel represents that the percentage of Prospect residents who work at their place of residence (13.5 percent) compares favorably with other independent communities. Prospect is served by a monthy publication, the Prospect City Newsletter, and a bi- monthly magazine, Kentuckiana Family, based in Prospect. Clear Channel states that community leaders and residents view Prospect, one of the fastest growing cities in Jefferson County, as separate from Louisville. Prospect has its own zip code (40059), and its commercial and residential telephone numbers are listed in the Oldham County telephone directory, which does not include telephone numbers for Louisville. Clear Channel states that Prospect has its own local government and elected officials, as well as its own library, police protection, and elementary school. Finally, Clear Channel states that Prospect is home to a variety of businesses and commercial establishments, including a number of local businesses that identify themselves by using “Prospect” in their names. We invite comment on these representations and on any subsequent Tuck showing in Clear Channel’s comments. 5. The proposed allotment at Prospect could be made with the site restrictions and reference coordinates indicated below. Accordingly, we seek comment on the proposed amendment of the FM Table of Allotments, 47 C. F. R. Section 73.202( b), with respect to Salem, Indiana, and Prospect, Kentucky: Community Present Proposed Salem, Indiana 250A, 255B 250A Prospect, Kentucky ----- 255B Proposed Coordinates for Channel 255B at Prospect, Kentucky: 38- 25- 59 NL and 85- 50- 01 WL, at a site 21.4 km (13.3 miles) northwest of Prospect. 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, 5 interested parties may file comments on or before May 9, 2005, and reply comments on or before May 24, 2005, and are advised to read the Appendix for the proper procedures. Comments should be filed with the Federal 4 See Faye and Richard Tuck, 3 FCC Rcd 5374 (1988). 5 See 47 C. F. R. §§ 1.415 and 1.419. 2 Federal Communications Commission DA 05- 713 3 Communications Commission. Additionally, a copy of any filing should be served on counsel for Clear Channel, as follows: Mark N. Lipp, Esq. Scott Woodworth, Esq. Vinson & Elkins L. L. P. 1455 Pennsylvania Avenue, N. W. Suite 600 Washington, D. C. 20004- 1008 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 Pennsylvania 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 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. 9. 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. 6 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. 7 10. For further information concerning any of these proceedings, contact Deborah A. Dupont, Media Bureau, at (202) 418- 7072. For purposes of these restricted notice and comment rule making proceedings, 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 6 See Certification that Section 603 and 604 of the Regulatory Flexibility Do Not Apply to Rule Making to Amend Sections 73.202( b), 73.504 and 73.606( b) of the Commission’s Rules, 46 Fed. Reg. 11549 (February 9, 1981). 7 See 44 U. S. C. 3506( c)( 4). 3 Federal Communications Commission DA 05- 713 4 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 the 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 this proceeding. FEDERAL COMMUNICATIONS COMMISSION John A. Karousos Assistant Chief Audio Division Media Bureau 4 Federal Communications Commission DA 05- 713 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 Clear Channels. 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. 5 Federal Communications Commission DA 05- 713 6 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. 6