Federal Communications Commission DA 10-23 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. (Peach Springs, Arizona) ) ) ) ) ) ) ) ) ) MB Docket No. 09-204 RM-11580 NOTICE OF PROPOSED RULE MAKING Adopted: January 6, 2010 Released: January 8, 2010 Comment Date: March 1, 2010 Reply Comment Date: March 16, 2010 By the Assistant Chief, Audio Division, Media Bureau: 1. The Audio Division has before it a Petition for Rule Making filed by Cochise Media Licenses LLC (“Petitioner”), the tentative selectee in Auction 79 and applicant for a new FM station on Channel 268C3 at Peach Springs, Arizona. The Petitioner proposes the allotment of Channel 281C3 to Peach Springs. The Petitioner states that this proposed allotment is being filed as part of a hybrid application and rulemaking proposal involving the Petitioner’s long-form application to implement its auction facility.1 In this application, the Petitioner proposes a minor modification from Channel 268C3 at Peach Springs to Channel 267C2 at Oatman, Arizona, pursuant to the provisions of Section 73.3573 of the Commission’s Rules.2 The minor modification application is contingent upon the requested allotment at Peach Springs. 2. In support of its rulemaking request, the Petitioner contends that the allotment of Channel 281C3 at Peach Springs will maintain a first local service at Peach Springs. The Petitioner states that the loss of potential service does not raise the same level of concern as that of an existing service.3 In addition, the Petitioner alleges that the minor modification application will provide Oatman with its first local service, as well as a net gain in service to 99,489 persons. The Petitioner adds that the allotment of Channel 281C3 at Peach Springs will ensure that there is no loss of population associated with the minor modification application. Thus, contends the Petitioner, this hybrid proposal as a whole serves the public interest. 3. We propose to allot Channel 281C3 at Peach Springs, Arizona, to retain a first local service at Peach Springs and to accommodate a first local service at Oatman. A staff engineering analysis reveals that Channel 281C3 can be allotted to Peach Springs with no site change. The reference coordinates for 1 See File No. BNPH-20091016ADO. 2 47 C.F.R. § 73.3573. 3 See, e.g., Old Forge and Black River, New York, Report and Order, 21 FCC Rcd 2470 (MB 2006); and Chatom and Grove Hill, Alabama, Report and Order, 12 FCC Rcd 7664 (MMB 1997). Federal Communications Commission DA 10-23 2 Channel 281C3 at Peach Springs are 35-33-46 NL and 113-27-12 WL. The Petitioner has stated its intention to apply for the channel, if allotted. In compliance with the Commission’s new procedures, the Petitioner concurrently filed a construction permit application for the requested channel at Peach Springs, Arizona, and paid the necessary filing fee.4 Accordingly, we seek comment on the proposed amendment of the FM Table of Allotments, Section 73.202(b) of the Commission’s Rules, for the community listed below, to read as follows: Community Present Proposed Peach Springs, Arizona 268C3 281C3 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 by paragraph 2 of the Appendix before a channel will be allotted. 5. Pursuant to Sections 1.415 and 1.419 of the Commission’s Rules, interested parties may file comments on or before March 1, 2010, and reply comments on or before March 16, 2010, 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 the petitioner, as follows: Susan A. Marshall, Esq. Anne Goodwin Crump, Esq. Fletcher, Heald & Hildreth, PLC 1300 N. 17th Street – Eleventh Floor Arlington, Virginia 22209 (Counsel for Cochise Media Licenses, LLC) 6. Parties are requested to 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. § 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) of the Commission's Rules.5 This document does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, 4 See File No. BNPH-20091016ADP. 5 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 (February 9, 1981). Federal Communications Commission DA 10-23 3 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 44 U.S.C. § 3506(c)(4). 8. For further information concerning this proceeding, contact Andrew J. Rhodes, Media Bureau, (202) 418-2180. 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 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 10-23 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) With respect to petitions for rule making which conflict with the proposals 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. Comments shall be served on the petitioner by the person filing the comments. Reply comments shall be served on the person(s) who filed comments to which the reply is directed. Such comments and reply comments shall be accompanied by a certificate of service. (See 47 C.F.R. Section 1.420(a), (b) and (c).) Comments should be filed with the Office of the Secretary, Federal Communications Commission, 445 12th Street, S.W., TW-A325, 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 (Room CY-A257) at its headquarters, 445 12th Street, S.W, Washington, D.C.