Federal Communications Commission DA 07-3158 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. (Live Oak, Florida) ) ) ) ) ) ) ) MB Docket No. 07-131 RM-11377 NOTICE OF PROPOSED RULE MAKING Adopted: July 11, 2007 Released: July 13, 2007 Comment Date: September 3, 2007 Reply Comment Date: September 18, 2007 By the Assistant Chief, Audio Division, Media Bureau: 1. The Audio Division has before it a Petition for Rule Making filed by RTG Radio, LLC (“Petitioner”), licensee of Station WKAA(FM), Willacoochee, Georgia. Petitioner proposes to amend the FM Table of Allotments, Section 73.202(b) of the Commission’s rules,1 to substitute Channel *261A for vacant and unapplied for Channel *259A at Live Oak, Florida, and to reserve the substituted channel for noncommercial educational (“NCE”) use.2 Petitioner proposes the channel substitution to accommodate its pending construction permit application to increase WKAA’s operating facilities.3 2. In the Reexamination of the Comparative Standards for Noncommercial Educational Applicants,4 the Commission established revised criteria by which a rulemaking proponent may reserve an FM allotment for NCE use. Under the expanded criteria, a proponent must demonstrate that it is technically precluded from using a reserved channel (Channels 200 through 220) and the proposal would provide a first and/or second NCE radio service to at least 10 percent of the population within the 1 mV/m contour of the proposed station, and that such population is at least 2,000 persons.5 3. Petitioner proposes new reference coordinates for Channel *261A at Live Oak which it states would provide first and second NCE service to 16,620 persons out of 42,813 persons within the station’s proposed 1 mV/m contour. In addition, Petitioner states the proposed channel substitution will 1 47 C.F.R. § 73.202. 2 Channels on the nonreserved FM band that are reserved for NCE use are denoted with an asterisk preceding the channel listing on the FM Table of Allotments. The FM Table is amended to reflect only vacant allotments that do not correspond to an authorized station or reserved assignment. Assignments for licensed, permitted, and reserved facilities (those for which applications are pending) are reflected solely in CDBS. Revision of Procedures Governing Amendments to FM Table of Allotments and Changes of Community of License in the Radio Broadcast Services, Report and Order, 21 FCC Rcd 14212, at ____, ¶ 15 (2006) (footnote omitted). 3 WKAA’s application will be reviewed separately. See File No. BPH-20070413AAB. 4 Report and Order, 15 FCC Rcd 7386 (2000). Previously, the Commission would only reserve a channel in the nonreserved FM band (Channels 221 through 300) if the petitioner demonstrated that no reserved channel could be used without causing prohibited interference to a Channel 6 TV station or a foreign broadcast station. 5 Reexamination of the Comparative Standards for Noncommercial Educational Applicants, Second Report and Order, 18 FCC Rcd 6691 (2003). Federal Communications Commission DA 07-3158 2 retain the reservation of a channel for NCE use at Live Oak and will enable WKAA, Channel 258C1, Willacoochee, Georgia to increase its maximum effective radiated power to expand service for a net gain of 50,353 persons over 1,913.7 square kilometers. Petitioner states that an updated non-commercial preclusion study is not necessary as the original analysis was sufficient.6 4. We believe the proposal warrants consideration because the proposed substitution would retain a potential first NCE station at Live Oak while enabling WKAA to expand service. Our staff engineering analysis indicates that Channel *261A can be substituted for Channel *259A at Live Oak, consistent with the minimum distance separation requirements of the Commission’s rules, at coordinates 30-12-26 NL and 83-01-26 WL with a site restriction of 10.4 Km (6.5 miles) south of city reference. Our engineering confirms that at least 10% of the population within the proposed 1 mV/m contour, in excess of 2,000 persons, would receive first and/or second NCE radio service. Additionally, our engineering confirms that the use of reserved Channels 200 through 220 is technically precluded. 5. Accordingly, we seek comment on the proposed amendment of the FM Table of Allotments, Section 73.202(b), as follows: Community Present Proposed Live Oak, Florida *259A *261A 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 1.419,7 interested parties may file comments on or before September 3, 2007 and reply comments on or before September 18, 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 such comments should be served on Petitioner’s counsel, as follows: David G. O’Neil, Esq. Rini Coran, PC 1615 L Street, N.W. Suite 1325 Washington, D.C. 20005 8. Parties 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 6 See Anniston, Alabama, et al., Report and Order, 19 FCC Rcd 13115 (MB 2004) (reserving Channel *259A at Live Oak for NCE use). 7 47 C.F.R. §§ 1.415 and 1.419. Federal Communications Commission DA 07-3158 3 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 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. Section 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).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, see Section 3506(c)(4).9 10. For further information concerning a proceeding listed above, contact Helen McLean, Media Bureau (202) 418-2738. 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 a 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 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 (Feb. 9, 1981). 9 44 U.S.C. § 3506(c)(4). Federal Communications Commission DA 07-3158 4 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.