Federal Communications Commission DA 12-328 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Amendment of Section 73.202(b), ) MB Docket No. 12-53 Table of Allotments, ) RM-11658 FM Broadcast Stations. ) (Dermott, Arkansas, and Cleveland, Mississippi) ) NOTICE OF PROPOSED RULE MAKING Adopted: March 1, 2012 Released: March 2, 2012 Comment Date: April 23, 2012 Reply Date: May 8, 2012 By the Assistant Chief, Audio Division, Media Bureau: 1. The Audio Division has before it a Petition for Rule Making filed by Delta Radio Network, LLC (“Petitioner”), licensee of WIBT-FM, Indianola, Mississippi.1 Petitioner proposes to amend the FM Table of Allotments, Section 73.202(b) of the Commission’s rules, by substituting Channel 224A for vacant Channel 289A at Dermott, Arkansas, and substituting Channel 226C2 for vacant Channel 225C2 at Cleveland, Mississippi. This proposal is part of a contingently filed “hybrid” application and rule making petition. 2. Background. In its contingent application, Petitioner proposes that Station WIBT-FM be upgraded to operate on FM Channel 289C2 rather than FM Channel 288A.2 Correspondingly, Petitioner proposes to amend the FM Table of Allotments by substituting Channel 224A for vacant Channel 289A, at Dermott, Arkansas, and substituting Channel 226C2 for vacant Channel 225C2 at Cleveland, Mississippi. Petitioner asserts that the proposed changes would serve the public interest because the communities of Dermott, Arkansas, and Cleveland, Mississippi, would continue to receive competing FM service, while the upgrade of Station WIBT-FM at Indianola, Mississippi, would result in an increase in the number of people served, from 24,915 persons to 151,888 persons, for a net increase of 126,973 persons. In addition, Petitioner states that the changes proposed in its petition for rule making would eliminate the grandfathered short-spacing that exists between Channel 289A at Dermott, Arkansas, and Channel 288A at Indianola, Mississippi. 3. Discussion. The proposed change in the FM Table of Allotments warrants consideration because it complies with our technical requirements and could serve the public 1 In the petition for rule making, Petitioner refers to the station as WNLA-FM, the station’s previous call sign. 2 See File No. BPH-20110913AAK. The proposed new reference coordinates for Channel 289C2 at Indianola, Mississippi, are: 33-33-14 NL and 90-54-43 WL, at a site 26.5 km (16.5 miles) northwest of Indianola. Federal Communications Commission DA 12-328 2 interest. This channel substitution will allow WIBT-FM to increase service by implementing an upgrade that would increase the number of the station’s potential listeners significantly. Moreover, the proposed changes in the Table of Allotments would eliminate the need for the current restriction on the transmission power of vacant Channel 289A at Dermott, Arkansas. Accordingly, we seek comment on the proposed amendment of the FM Table of Allotments, 47 C.F.R. Section 73.202(b), with respect to Dermott, Arkansas, and Cleveland, Mississippi, as set forth below: Community Present Proposed Dermott, Arkansas 289A 224A Cleveland, Mississippi 225C2 226C2 Proposed Coordinates for Channel 224A at Dermott, Arkansas: 33-30-23 NL and 91-24 19 WL, at a site 3.5 km (2.2 miles) southeast of Dermott. Proposed Coordinates for Channel 226C2 at Cleveland, Mississippi: 33-55-25 NL and 90-53-40 WL, at a site 25.4 km (15.8 miles) northwest of Cleveland. 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 of the Commission’s Rules,3 interested parties may file comments on or before April 23, 2012, and reply comments on or before May 8, 2012, and are advised to read the Appendix for the proper procedures. Comments should be filed with the Federal Communications Commission. Additionally, a copy of any filing should be served on Petitioner, as follows: Larry G. Fuss, President Delta Radio Network, LLC 9408 Grand Gate Street Las Vegas, NV 89143-1397 6. Parties must file an original and four paper 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 3 See 47 C.F.R. §§1.415 and 1.419. Federal Communications Commission DA 12-328 3 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.4 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 107-198.5 8. For further information concerning these proceedings, contact Deborah A. Dupont, Media Bureau, at (202) 418-7072. For purposes of these restricted notice and comment rule making proceedings, 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 the 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 this proceeding. FEDERAL COMMUNICATIONS COMMISSION Nazifa Sawez Assistant Chief Audio Division Media Bureau 4 See Certification that Section 603 and 604 of the Regulatory Flexibility Do Not Apply to Rule Making to Amend Sections 73.202(b), 73.504 and 73.606(b) of the Commission’s Rules, 46 Fed.Reg. 11549 (February 9, 1981). 5 See 44 U.S.C. 3506(c)(4). Federal Communications Commission DA 12-328 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 Puopolos. 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. Federal Communications Commission DA 12-328 5 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.