Federal Communications Commission DA 06-2566 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Amendment of Section 73.202(b), ) MB Docket No. 06-193 Table of Allotments, ) RM-11345 FM Broadcast Stations. ) (Port Chester, New York, and ) Stamford, Connecticut) ) NOTICE OF PROPOSED RULE MAKING Adopted: December 20, 2006 Released: December 22, 2006 Comment Date: February 12, 2007 Reply Date: February 27, 2007 By the Assistant Chief, Audio Division, Media Bureau: 1. The Audio Division has before it for consideration a Petition for Rule Making filed by Cox Radio, Inc. (“Cox”), licensee of Station WKHL(FM), Channel 244A, Stamford, Connecticut.1 Pursuant to Sections 1.420(g) and (i) of the Commission’s rules,2 Cox proposes to change the community of license for Station WKHL(FM) from Stamford, Connecticut, to Port Chester, New York. Cox represents that the proposed allotment of Channel 244A at Port Chester is mutually exclusive with the current allotment of Channel 244A at Stamford. Cox states that the proposal would not remove the sole local service from Stamford, which would continue to be served by full-time Station WSTC(AM), Stamford, Connecticut, and by noncommercial educational Station WEDW-FM. In addition, because Cox does not propose to change its transmitter site, Cox states that the proposal will not result in any gain or loss of service or any change in Station WKHL(FM)’s current city-grade service to Stamford. 2. Station WKHL(FM) is a pre-1964 station with grandfathered short-spacings. Because Cox does not propose any technical changes or relocation of its transmitter site, the existing short-spacings would not increase with 1 Cox’s Petition for Rule Making was returned on July 6, 2005, based on a determination that Station WKHL(FM) could not provide the entire community of Port Chester with the requisite 70 dBu city-grade service contour. Cox sought reconsideration of the return of its petition, demonstrating the appropriateness of using actual facilities and terrain data to show that the 70 dBu city-grade contour of WKHL(FM) would cover the community of Port Chester. We are persuaded by the arguments in Cox’s petition for reconsideration. Because Cox does not propose to change the transmitter site of Station WKHL(FM), it is appropriate to use actual facilities and terrain in determining that the existing 70 dBu contour covers the entire community of Port Chester, New York. See Woodstock and Broadway, Virginia, Memorandum Opinion and Order, 3 FCC Rcd 6398 (1988), and Freemont and Sunnyvale, California, Notice of Proposed Rulemaking, 16 FCC Rcd 20,530 (MMB 2001). We therefore issue this Notice of Proposed Rule Making. 2 47 C.F.R. §§ 1.420(g) and (i). Federal Communications Commission DA 06-2566 2 the proposed change of community and the reallotment of Channel 244A at Port Chester, New York.3 Under these circumstances, where no technical change is proposed and where no short spacing would be created and no existing short-spacing would be exacerbated, our policy permits Station WKHL(FM) to change its community of license, although doing so would replace one short-spaced allotment with another.4 Should we grant Cox’s proposal, the requested allotment change will, of course, be conditioned upon Cox applying for and implementing its proposed change of community at Station WKHL(FM)’s existing transmitter site.5 3. Modification of FM and TV Authorizations to Specify a New Community of License6 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.7 Under those priorities, the existing allotment of Channel 244A at Stamford would, at best, satisfy priority four, “other public interest matters.” The proposed allotment of Channel 244A at Port Chester, an incorporated village of 27,867 persons, therefore should be preferred, because it would satisfy priority three, “first local service.” 4. Both Stamford and Port Chester are located within the Bridgeport/Stamford Urbanized Area, and there would be no increase in the signal coverage of that urbanized area, because Cox does not propose to change its transmitter site.8 Under these circumstances, we tentatively conclude that no Tuck analysis is necessary.9 3 The following existing approved short-spacings would not change: Grandfathered pre-1964 short-spacings to Stations WQXR-FM, Channel 242B, New York, New York; WTIC-FM, Channel 243B, Hartford, Connecticut; and WTSX(FM), Channel 244A, Port Jervis, New York; and a grandfathered, pre-1989 short-spacing to WQHT(FM), Channel 246B, New York, New York. See Section 73.213 of the Commission’s rules, 47 C.F.R. §73.213(a) and (c). In addition, there is an approved short-spacing requested by FM Station WHBE, Channel 244A, East Hampton, New York, pursuant to section 73.215 of the Commission’s rules, 47 C.F.R. §73.215. 4 See Killeen and Cedar Park, Texas, Report and Order, 15 FCC Rcd 1945 (MMB 2000), and cases cited therein. 5 See Glasgow and Bowling Green, Kentucky, Report and Order, 19 FCC Rcd 8477 (MB 2004) (grandfathered station required to specify current licensed site in applications for construction permit and license at new community). 6 4 FCC Rcd 4870 (1989), recon.granted in part,, 5 FCC Rcd 7094 (1990). 7 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). 8 Station WKHL(FM)’s existing 70 dBu contour encompasses 340 square kilometers, or 28 percent, and 335,000 persons, or 38 percent, of the Bridgeport/Stamford Urbanized Area. Station WKHL(FM)’s 70 dBu contour also covers 20 square kilometers, or 0.2 percent, and 14,200 persons, or 0.08 percent, of the New York/Newark Urbanized Area and population. 9 See Faye and Richard Tuck, Memorandum Opinion and Order, 3 FCC Rcd 5374 (1988) (“Tuck”), and East Los Angeles, Long Beach, and Frazier Park, California, Report and Order, 10 FCC Rcd 2864 (MMB 1995) (changing a community of license within the same urbanized area does not require a Tuck showing). Federal Communications Commission DA 06-2566 3 5. The proposed allotment at Port Chester 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 Port Chester and Stamford, Massachusetts: Community Present Proposed Stamford, Connecticut 244A ---- Port Chester, New York ------ 244A The Proposed Coordinates for Channel 244A at Port Chester, New York: 41-02-49 NL and 73-31-36 WL, at a site 12.8 km (7.9 miles) northeast of Port Chester. 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,10 interested parties may file comments on or before February 12, 2007, and reply comments on or before February 27, 2007, 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 any filing should be served on counsel for Cox, as follows: Kevin F. Reed, Esq. Christina H. Burrow, Esq. Dow, Lohnes & Albertson, PLLC 1200 New Hampshire Avenue, N.W. Suite 800 Washington, D.C. 20036 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 12th Street, SW, Washington, D.C. 20554. All filings must be addressed to the Office of the Secretary, Federal 10 See 47 C.F.R. §§1.415 and 1.419. Federal Communications Commission DA 06-2566 4 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 a rule making proceeding to amend the FM Table of Allotments, Section 73.202(b) of the Commission’s Rules.11 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).12 10. For further information concerning this proceeding, contact Deborah A. Dupont, Media Bureau, at (202)418-7072. For purposes of 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 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 11 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). 12 See 44 U.S.C. 3506(c)(4). Federal Communications Commission DA 06-2566 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 Coxs. 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 Federal Communications Commission DA 06-2566 6 interested parties during regular business hours in the Commission's Reference Information Center, at its headquarters, 445 12th Street, S.W., Washington, D.C.