*Pages 1--6 from Microsoft Word - 55760.doc* Federal Communications Commission DA 06- 611 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of ) ) Amendment of Section 73.202( b), ) MB Docket No. 06- 59 Table of Allotments, ) RM- 11319 FM Broadcast Stations. ) (Southwest City, Missouri, and ) Gravette, Arkansas) ) NOTICE OF PROPOSED RULE MAKING Adopted: March 15, 2006 Released: March 17, 2006 Comment Date: May 8, 2006 Reply Date: May 23, 2006 By the Assistant Chief, Audio Division, Media Bureau: 1. The Audio Division has before it for consideration a Petition for Rule Making filed by KERM, Inc. (“ KERM”), licensee of Station KURM- FM, Channel 262A, Southwest City, Missouri. Pursuant to Section 1.420( i) of the Commission’s rules, 1 KERM proposes to change the community of license for Station KURM- FM from Southwest City to Gravette, Arkansas, providing a first local service to Gravette. KERM represents that the proposed allotment of Channel 262A at Gravette is mutually exclusive with the current allotment of Channel 262A at Southwest City. If its petition is granted, KERM states that it will file an application for Channel 262A at Gravette, and will use its existing facilities at current reference coordinates to provide service to Gravette. 2. KERM states that Gravette is a town of 1,810 persons, as reported in the 2000 Census. Gravette is an incorporated city with its own post office and zip code (72736). Gravette has its own mayor and six-member city council, who together oversee a planning commission and parks, recreation, and public works departments. Gravette also has a professional police force and fire department, and its own school system. 3. 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 262A at Southwest City would, at 1 47 C. F. R. § 1.420( 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 06- 611 2 best, satisfy priority four, “other public interest matters.” 4 The proposed reallotment of Channel 262A at Gravette should, therefore, be preferred, because it would satisfy priority three, “first local service.” Both Southwest City and Gravette are well- served with five or more aural broadcast transmission services. 4. Neither Southwest City nor Gravette is located within an urbanized area, nor will the change in community, which does not involve a change in transmitter site, cause Station KURM- FM to place a 70 dBu signal contour over any portion of an urbanized area. We therefore tentatively conclude that no Tuck analysis is necessary. 5 Interested parties may, nevertheless, demonstrate the feasibility of locating the Station KURM transmitter at a site that would enable the station to provide a 70 dBu signal to more than 50 percent of an urbanized area. Should such information be presented in this proceeding, we reserve the right to require KERM to provide a Tuck analysis. 6 5. The proposed allotment at Gravette could be made at its current reference coordinates, with the site restriction 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 Southwest City, Missouri, and Gravette, Arkansas: Community Present Proposed Gravette, Arkansas ----- 262A Southwest City, Missouri 262A ----- Proposed Coordinates for Channel 262A at Gravette, Arkansas: 36- 25- 54 NL and 94- 30- 46 WL, at a site 5.4 km (3.4 miles) west of Gravette. 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, 7 interested parties may file comments on or before May 8, 2006, and reply comments on or before May 23, 2006, 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, 4 If this proposal is adopted, Southwest City will continue to be served by Station KLTK( AM), Southwest City, Missouri. 5 See Faye and Richard Tuck, 3 FCC Rcd 5374 (1988). See also Headland, Alabama, and Chattahoochee, Florida, 10 FCC Rcd 10,352 (MM 1995) (requires a Tuck showing when reallotment proposed to a community outside an urbanized area would provide a 70 dBu signal to more than 50 percent of the urbanized area). 6 See Chillicothe and Ashville, Ohio, 18 FCC Rcd 11,230 (MB 2003). 7 See 47 C. F. R. §§ 1.415 and 1.419. 2 Federal Communications Commission DA 06- 611 3 D. C. 20554. Additionally, a copy of any filing should be served on counsel for KERM, as follows: Dan J. Alpert, Esq. The Law Office of Dan J. Alpert 2120 N. 21 st Road Arlington, Virginia 22201 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 Louisiana 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 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 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 than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107- 198. 9 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 8 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). 9 See 44 U. S. C. 3506( c)( 4). 3 Federal Communications Commission DA 06- 611 4 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 06- 611 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 KERMs. 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 06- 611 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