Federal Communications Commission DA 08-1485 Before the Federal Communications Commission Washington, D.C. 20554 ) In the Matter of ) ) Amendment of Section 73.622(i), ) MB Docket No. 08-98 Final DTV Table of Allotments, ) RM-11435 Television Broadcast Stations. ) (Honolulu and Waimanalo, Hawaii) ) NOTICE OF PROPOSED RULE MAKING Adopted: July 18, 2008 Released: July 21, 2008 Comment Date: [30 days after date of publication in the Federal Register] Reply Comment Date: [45 days after date of publication in the Federal Register] By the Chief, Video Division, Media Bureau: 1. The Commission has before it a Joint Petition for Rulemaking (Joint Petition) filed by Pacifica Broadcasting Company (PBC) and Oceania Christian Church (OCC). PBC is the licensee of KALO(TV), channel *38, Honolulu, Hawaii, and permittee of KALO-DT, DTV channel *10, Honolulu, Hawaii. OCC is the licensee of single-channel station KUPU(TV), channel 56, Waimanalo, Hawaii, and has been assigned channel 38 for its post-transition DTV operations. PBC and OCC request the substitution of DTV channel *38 for channel *10 at Honolulu, Hawaii, and channel 15 for channel 38 at Waimanalo, Hawaii. 2. PBC states that it has had difficulty obtaining authorization for its DTV facility on Channel *10 due to the proximity of the Commission’s monitoring station at Waipahu, Hawaii.1 PBC believes that a better course of action would be for it to return to its analog channel *38. Since the station is already operating on that channel in analog, PBC believes that there should be no greater potential for interference to the monitoring station.2 In order to accomplish this substitution, KUPU(TV) must also change its post- transition DTV channel. OCC has yet to complete construction and begin operating its post-transition DTV facilities on Channel 38. OCC has agreed to accept channel 15 as its substitute channel for post-transition DTV operations.3 3. We believe that the Joint Petition warrants consideration. DTV channel *38 can be substituted for DTV channel *10 at Honolulu, Hawaii, in compliance with the principal community coverage requirements of Section 73.625(a) of the Commission’s rules,4 at coordinates 21-23-45 N. and 1 Joint Petition at 2. 2 Id. at 3. PBC’s proposed facility is 10.6 kilometers from the monitoring station. 3 Id. at 4. 4 47 C.F.R. § 73.625(a). Federal Communications Commission DA 08-1485 2 158-05-58 W. and DTV channel 15 for channel 38 at Waimanalo, Hawaii at coordinates 21-19-23 N. and 157-40-53 W. Therefore, we propose to substitute DTV channel *38 for channel *10 at Honolulu, Hawaii, for station KALO(TV), and channel 15 for channel 38 at Waimanalo, Hawaii, for station KUPU(TV) with the following specifications: State and City DTV Channel DTV Power (kW) Antenna HAAT (m) Honolulu, Hawaii *38 262 577 Waimanalo, Hawaii 15 12 373 4. Accordingly, we seek comments on the proposed amendment of the DTV Table of Allotments, Section 73.622(i) of the Commission’s rules,5 for the community listed below, to read as follows: Channel No. City and State Present Proposed Honolulu, Hawaii 8, 9, *10, *11, 19, 8, 9, *11, 19, 23, 23, 27, 31, 33, 35, 27, 31, 33, 35, *38, 40, *43 40, *43 Waimanalo, Hawaii 38 15 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 addition, when the Commission lifted the freeze on the filing of DTV maximization applications and petitions for digital channel substitutions,6 it announced that until the end of the statutory DTV transition on February 17, 2009, mutually-exclusive applicants would be provided a 30-day period of time, from the date of a public notice identifying mutually-exclusive proposals, to resolve their mutual- exclusivity via engineering amendment or settlement, rather than the 90-day period afforded by Section 73.623(h) of the rules.7 Similarly, we will also shorten the settlement period for rulemaking petitions and mutually exclusive maximization applications. If we receive a maximization application on or before the date for filing initial comments in this proceeding that proposes a facility that is mutually exclusive with the proposal set forth herein, we will issue a public notice and the parties will have 30 days within which to resolve their mutual exclusivity. If the parties resolve their mutual-exclusivity, we will complete the rulemaking process by issuing the appropriate order. If the parties are unable to resolve their mutual- exclusivity, we will terminate this proceeding and dismiss the maximization application. 5 47 C.F.R. § 73.622(i). 6 See “Commission Lifts the Freeze on the Filing of Maximization Applications and Petitions for Digital Channel Substitutions, Effective Immediately,” Public Notice, DA 08-1213 (released May 30, 2008). 7 47 C.F.R. § 73.623(h)(3). Federal Communications Commission DA 08-1485 3 6. Pursuant to Sections 1.415 and 1.419 of the Commission’s rules, interested parties may file comments on or before [30 days after publication in the Federal Register] and reply comments on or before [45 days after publication in the Federal Register], 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 12th Street, S.W., TW-A325, Washington, D.C. 20554. Additionally, a copy of such comments should be served on the petitioner, or its counsel or consultant, as follows: Harry F. Cole, Esq. Fletcher, Heald & Hildreth, PLC 11th Floor 1300 North 17th Street Arlington, Virginia 22209 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, Maryland 20743. U.S. Postal Service first-class mail, Express Mail, and Priority Mail should be addressed to 445 12th Street, S.W., 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.8 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 DTV Table of Allotments, Section 73.622(i). 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, § 3506(c)(4). 9. For further information concerning the proceeding listed above, contact Shaun A. Maher, Video Division, Media Bureau, at (202) 418-2324 or Shaun.Maher@fcc.gov, TTY: (202) 418-0432. 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 8 See 47 C.F.R. § 1.7. Federal Communications Commission DA 08-1485 4 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 Barbara A. Kreisman Chief, Video Division Media Bureau Federal Communications Commission DA 08-1485 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) of the Communications Act of 1934, as amended, and 47 C.F.R. Sections 0.61, 0.204(b) and 0.283, IT IS PROPOSED TO AMEND the DTV Table of Allotments, 47 C.F.R. Section 73.622(i), 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 the 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 Section 1.420(d) of the Commission’s Rules.) Because the Commission has not yet lifted its freeze on the filing of petitions for rulemaking to establish new DTV channel allotments and for changes in community of license,9 we will not consider counterproposals which propose new allotments or changes in community of license. (b) With respect to petitions for rule making which conflict with the proposal in this Notice, they 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 9 See Public Notice, “Freeze on the Filing of Certain TV and DTV Requests for Allotment or Service Area Changes,” 19 FCC Rcd 14810 (MB 2004). Federal Communications Commission DA 08-1485 6 furnished the Commission. An electronic copy should also be sent to shaun.maher@fcc.gov. 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. 20554.