Federal Communications Commission DA 08-2274 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. (Crandon, Wisconsin) ) ) ) ) ) ) MB Docket No. 08-62 NOTICE OF PROPOSED RULE MAKING Adopted: October 8, 2008 Released: October 10, 2008 Comment Date: December 1, 2008 Reply Comment Date: December 16, 2008 By the Assistant Chief, Audio Division, Media Bureau: 1. The Audio Division, on its own motion, proposes the substitution of Channel 276A for vacant Channel 276C3 at Crandon, Wisconsin to accommodate a pending application for Station WGLX-FM, Channel 277C1, Wisconsin Rapids, Wisconsin.1 2. The proposed downgrade of vacant Channel 276C3 to Channel 276A will allow Station WGLX-FM to increase its current service area. Channel 276C3 is a vacant allotment resulting from the cancellation of an unbuilt station’s construction permit, Facility ID 76121.2 In this regard, the Channel 276C3 upgrade at Crandon became effective in the Federal Register after the filing of the Station WGLX- FM application.3 We believe that this proposal results in the public interest under priority (4)4 because it would enable Station WGLX-FM to improve its service area and eliminate the substandard spacing to the Crandon, Wisconsin allotment.5 Additionally, the proposed downgrade of this vacant allotment does not violate our new policy concerning downgrading a vacant allotment that has not yet been subject to auction.6 1 See File No. BPH-20050406ACK (the “WGLX Application”). In this instance, the required minimum distance separation between these two allotments is 144 kilometers. The reference site for vacant Channel 276C3 at Crandon is located 122.5 kilometers from the proposed site specified in this application. As such, the proposed site for the Station WGLX-FM application is short-spaced to the vacant Crandon allotment by 11.5 kilometers. 2 See File No. BPH-19950427MB. The cancellation of this construction permit for this unbuilt station was affirmed on January 25, 1999. 3 See Various Locations, Report and Order, 20 FCC Rcd 17931 (MB 2005); see also, Various Locations , 70 FR 70743, published November 23, 2005. 4 The FM Allotment priorities are (1) First full-time aural service. (2) Second full-time aural service. (3) First local service. (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, 91 (1988). 5 A staff engineering analysis indicates that Channel 276A can be allotted to Crandon consistent with the minimum distance separation requirements of the Commission’s rules at reference coordinates 45-34-18 NL and 88-53-54 WL. 6 See Grants and Church Rock, New Mexico, Report and Order, 22 FCC Rcd 9426 (MB 2007), recon pending. Federal Communications Commission DA 08-2274 2 3. Accordingly, we seek comment on the proposed amendment of the FM Table of Allotments, Section 73.202(b),7 as follows: Channel Community Present Proposed Crandon, Wisconsin 276C3 276A 4. 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. 5. Pursuant to Sections 1.415 and 1.419,8 interested parties may file comments on or before December 1, 2008 and reply comments on or before December 16, 2008, 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. 6. 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. 7. 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).9 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).10 8. For further information concerning a proceeding listed above, contact Rolanda F. Smith, Media Bureau (202) 418-2180. For purposes of this restricted notice and comment rule making 7 47 C.F.R. § 73.202(b). 8 47 C.F.R. §§ 1.415 and 1.419. 9 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). 10 44 U.S.C. § 3506(c)(4). Federal Communications Commission DA 08-2274 3 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 Federal Communications Commission DA 08-2274 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.