Federal Communications Commission DA 07-4129 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. (Butte Falls and Netarts, Oregon) ) ) ) ) ) ) ) MB Docket No. 07-210 RM-11399 NOTICE OF PROPOSED RULE MAKING Adopted: October 3, 2007 Released: October 5, 2007 Comment Date: November 26, 2007 Reply Comment Date: December 11, 2007 By the Assistant Chief, Audio Division, Media Bureau: 1. The Audio Division has before it a Petition for Rule Making filed by Oregon Radio Partners, LLC (“Petitioner”), proposing to allot Channel 290A at Butte Falls and Channel 232C3 at Netarts, Oregon. Petitioner has concurrently filed FCC Form 301 new station applications1 for each of the proposed allotments, and required filing fees pursuant to Revision of Procedures Governing Amendments to FM Table of Allotments and Changes of Community of License in the Radio Broadcast Services.2 Petitioner certifies in each application that, if the FM channel allotment requested is allotted, it will participate in the auction for the channel allotment requested and specified in the application. 2. The Petition for Rule Making is filed as part of a “hybrid”3 contingent proposal that involves two pending applications to change the communities of license for Station KTIL-FM at Tillamook, Oregon, and an unbuilt construction permit at Butte Falls. To accommodate the proposed allotment at Netarts, Oregon Eagle, Inc. (“Oregon Eagle”), licensee of Station KTIL-FM, filed an application to change the station’s channel and community of license from Channel 232C3 at Tillamook, Oregon to Channel 232C2 at Government Camp, Oregon.4 To accommodate the Station KTIL-FM application and at Oregon Eagle’s request, we issued Orders to Show Cause (“OTSC”) directed to the licensee of Station KXIX to show cause why its license should not be modified to specify operation on Channel 225C0 in lieu of Channel 231C0 at Bend, Oregon, and to the licensee of Station KRXF to show cause why its license should not be modified to specify operation on Channel 231C2 in lieu of Channel 224C2 at Sunriver, Oregon.5 Since the licensees of Station KXIX and Station KRXF failed to respond to 1 See File Nos. BNPH-20070125ADP and BNPH-20070125ADQ for Butte Falls and Netarts, respectively. 2 Report and Order, 21 FCC Rcd 14212 (2006) (“Revised Allotment Procedures R&O”) 3 Id. at 14223. 4 KTIL-FM’s application for a change of community to Government Camp will be reviewed separately. See File No. BPH-20070125ADO. 5 47 U.S.C. § 316(a); Modification of FM and Television Licenses Pursuant to Section 316 of the Communications Act, Order, 2 FCC Rcd 3327 (1987); 47 C.F.R. § 1.87. See also Letter to GCC Bend, LLC, Ref. No. 1800B3-HC (MB May 23, 2007) (OTSC to Station KXIX licensee) and Letter to Fields Pond Group, Ref. No. 1800B3-HC (MB May 23, 2007) (OTSC to Station KRXF licensee). Federal Communications Commission DA 07-4129 2 the OTSC, they are deemed to have consented to the channel substitutions.6 In addition, to accommodate the channel substitution at Bend, James D. McDaniel, the auction winner for Channel 225A at Butte Falls, Oregon, filed an application to modify the pending construction permit application of its unbuilt station to change the community of license to Talent, Oregon.7 Petitioner states that its proposal to allot Channel 290A at Butte Falls will ensure that the community will retain a first local service. 3. We believe the instant proposal warrants consideration because it may provide a first local service to Butte Falls and Netarts under Priority 3.8 A staff engineering analysis indicates that Channel 290A can be allotted to Butte Falls, consistent with the minimum distance separation requirements of the Commission’s rules, at coordinates 42-36-19 NL and 122-24-38 WL with a site restriction of 14.7 km (9.1 miles) northeast of city reference. A staff engineering analysis also indicates that Channel 232C3 can be allotted to Netarts at coordinates 45-27-56 NL and 123-58-11 WL with a site restriction of 4.0 km (2.5 miles) northwest of city reference. Canadian concurrence has been requested for the proposed allotment at Netarts. Petitioner states the community has zip code 97143 assigned to it by U.S. Postal Service and has numerous local businesses. Netarts is a Census Designated Place, located in Tillamook County, and listed in the 2000 U.S. Census with a population of 744 persons. 4. Accordingly, we seek comment on the proposed amendment of the FM Table of Allotments, Section 73.202(b),9 as follows: Community Proposed Butte Falls, Oregon 290A Netarts, Oregon 232C3 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 to allot these channels. 6. Pursuant to Sections 1.415 and 1.419,10 interested parties may file comments on or before November 26, 2007 and reply comments on or before December 11, 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: Oregon Radio Partners, LLC c/o Lee J. Peltzman, Esquire Shainis & Peltzman, Chartered 1850 M Street, N.W. Washington, D.C. 20036 6 See 47 C.F.R. § 1.87. See also Circleville, Ohio, Second Report and Order, 8 FCC 2d 159 (1967). 7 The application for a change of community to Talent will be reviewed separately. See File No. BNPH- 20060310ACD. 8 The FM allotment priorities are: (1) First full-time aural service; (2) Second full-time aural service; (3) First local service; and (4) Other public interest matters. Co-equal weight is given to Priorities (2) and (3). See Revision of FM Assignment Policies and Procedures, Second Report and Order, 90 FCC 2d 88 (1988). 9 47 C.F.R. § 73.202(b). 10 47 C.F.R. §§ 1.415 and 1.419. Federal Communications Commission DA 07-4129 3 7. 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 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. 8. 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).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 Section 3506(c)(4).12 9. For further information concerning a proceeding listed above, contact Rolanda F. Smith, 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 11 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). 12 44 U.S.C. § 3506(c)(4). Federal Communications Commission DA 07-4129 4 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 Federal Communications Commission DA 07-4129 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.