Federal Communications Commission DA 23-209 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 (Tecopa, California) Application for Construction Permit to Modify Station KRZQ(FM), Amargosa Valley, Nevada ) ) ) ) ) ) ) ) ) MB Docket No. 23-86 RM-11948 File No. 0000112756 Facility ID No. 170180 NOTICE OF PROPOSED RULEMAKING Adopted: March 14, 2023 Released: March 14, 2023 Comment Date: May 5, 2023 Reply Comment Date: May 22, 2023 By the Assistant Chief, Audio Division, Media Bureau: I. INTRODUCTION 1. The Audio Division has before it the Petition for Rulemaking (Petition) filed by Shamrock Communications, Inc. (Petitioner), proposing the substitution of Channel 256A for vacant Channel 288A at Tecopa, California.On June 30, 2015, the Audio Division cancelled the license of Station DKMKK-FM, Fac. ID No. 189543, Channel 288A, Tecopa, California. See Broadcast Actions, Report No. 48524, released July 6, 2015. Channel 288A at Tecopa, California is, therefore, considered a vacant allotment resulting from the license cancellation of FM station DKMKK-FM. See Various Locations, Order, DA 23-111, rel. February 9, 2023 (MB 2023)(reinstating Channel 288A at Tecopa, California as a vacant FM allotment). The Petition is intended to accommodate the above-captioned hybrid modification application (Application) for Station KRZQ(FM) that proposes to upgrade from Channel 290C1 to Channel 291C at Amargosa Valley, Nevada. See Application File No. 0000112756 (Filed on January 30, 2023, as amended.) (Application). II. BACKGROUND 2. Petitioner requests the substitution of Channel 256A for vacant Channel 288A at Tecopa, California in order to accommodate the hybrid Application seeking modification of Station KRZQ(FM)’s license facilities to Channel 291C at Amargosa Valley, Nevada. Petitioner states that although it was the original proponent of the Tecopa allotment, it was not the successful high bidder in the FM auction. Petitioner claims that after the station was built, DKMKK-FM operated for less than a year before it went dark due to a shortfall in revenue. Petitioner asserts that DKMKK-FM only covered 192 persons within its 60 dBu contour, whereas the proposed Channel 256A at Tecopa would cover over 7,700 persons within the proposed 60 dBu contour. See Petition at 2. Petitioner contends that its hybrid Application would permit Station KRZQ(FM) to enhance service to the community of Amargosa Valley, Nevada and the surrounding areas by increasing from 1,831 covered persons to 1,336,857 covered persons within its proposed 60 dBu contour. Petitioner commits to filing comments for any necessary expression of interest and pledges to expeditiously implement its new facility for Station KRZQ(FM) on Channel 291C at Amargosa Valley, Nevada upon issuance of a construction permit. Id. Petitioner concludes that its proposal would result in a preferential arrangement of allotments by providing a first local service at Tecopa, California on Channel 256A. III. DISCUSSION 3. We believe that the proposed substitution of Channel 256A for vacant Channel 288A at Tecopa, California warrants consideration. A staff engineering analysis indicates that Channel 256A can be allotted to Tecopa, California, consistent with the minimum distance separation requirements of the Commission’s rules (Rules), with a site restriction of 2.3 km (1.4 miles) northwest of the community. The reference coordinates are 35-50-48 NL and 116-13-27 WL. Accordingly, we seek comment on the proposed amendment to the FM Table of Allotments, section 73.202(b) of the Rules, 47 C.F.R. § 73.202(b). as follows: Community Present Proposed Tecopa, California 288A 256A IV. PROCEDURAL MATTERS 4. Showings Required. Comments are invited on the proposal discussed in this Notice of Proposed Rulemaking (NPRM). Petitioner or any party that expresses interest in the allotment will be expected to answer whatever questions are presented in initial comments. The petitioner of a proposed allotment is required to file comments even if it only resubmits or incorporates by reference its former pleadings. The petitioner must 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. Any requests by a proponent for withdrawal or dismissal of an allotment request must be filed with the Commission in accordance with section 1.420(j) of the Rules. 47 C.F.R. § 1.420(d). 5. 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. 47 C.F.R. § 1.420(j). (b) The filing of a counterproposal may lead the Commission to allot a different channel than was requested in the Petition. 47 C.F.R. § 1.420(g)(2). 6. Comments and Reply Comments. Pursuant to sections 1.415, 1.419, and 1.420 of the Rules, 47 C.F.R. §§ 1.415, 1.419, and 1.420. interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission’s Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998). · Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://apps.fcc.gov/ecfs/. Parties that choose to file electronically only need to submit one copy of each filing so long as the submission conforms to all procedural and filing requirements. Online filing is optional. · Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission’s Secretary, Office of the Secretary, Federal Communications Commission. o Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701. o U.S. Postal Service first-class, Express, and Priority mail must be addressed to 45 L Street, NE, Washington DC 20554. o Currently, the Commission does not accept any hand or messenger delivered filings. This is a temporary measure taken to help protect the health and safety of individuals, and to mitigate the transmission of COVID-19. In the event that the Commission announces the lifting of COVID-19 restrictions, a filing window will be opened at the Commission's office located at 9050 Junction Drive, Annapolis Junction, MD 20701. See FCC Announces Closure of FCC Headquarters Open Window and Change in Hand-Delivery Policy, Public Notice, 35 FCC Rcd 2788 (2020). 7. Service. Pursuant section 1.420 of the Rules, 47 C.F.R. § 1.420. 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. 47 C.F.R. §1.420(a), (b) and (c). Additionally, a copy of such comments should be served on counsel for petitioner, as follows: James M Lewandowski SHAMROCK COMMUNICATIONS, INC. 149 PENN AVENUE SCRANTON, PA 18503 David A O'Connor, Esq. c/o SHAMROCK COMMUNICATIONS, INC. WILKINSON BARKER KNAUER, LLP 1800 M STREET, NW SUITE 800N WASHINGTON, DC 20036 8. Ex Parte Notices– Restricted. The proceeding this Notice initiates shall be treated as a “restricted” proceeding in accordance with the Commission’s ex parte rules. 47 C.F.R. §§ 1.1200 et seq. For purposes of this restricted notice and comment rulemaking proceeding, members of the public are advised that no ex parte presentations are permitted from the time the Commission adopts a notice of proposed rulemaking 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. 47 C.F.R. § 1.1208. 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. 47 C.F.R. § 1.1204(a)(10). 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. 47 C.F.R. § 1.1204(a)(10)(ii). In addition, an oral presentation in a restricted proceeding not designated for hearing requesting action by a particular date or giving reasons that a proceeding should be expedited other than the need to avoid administrative delay is permitted. A detailed summary of the presentation must be filed in the record and served by the person making the presentation on the other parties to the proceeding, who may respond in support or opposition to the request for expedition, including by oral ex parte presentation, subject to the same service requirement. 47 C.F.R. § 1.1204(a)(11). Any comment that 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. 9. Availability of Documents. Comments, reply comments, and ex parte submissions will be available for public inspection via ECFS (http://apps.fcc.gov/ecfs/). Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat. 10. Paperwork Reduction and Regulatory Flexibility. The Commission has determined that the relevant provisions of the Regulatory Flexibility Act of 1980, as amended, 5 U.S.C. § 603. The RFA, see 5 U.S.C. § 601 et seq., has been amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), Pub. L. No. 104-121, Title II, 110 Stat. 857 (1996). The SBREFA was enacted as Title II of the Contract with America Advancement Act of 1996 (CWAAA). do not apply to a rulemaking proceeding to amend the FM Table of Allotments, section 73.202(b) of the Rules. 47 C.F.R. § 73.202(b). This document does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995. 44 U.S.C. §§ 3501-3520. 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. 44 U.S.C. § 3506(c)(4). 11. People with Disabilities. To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice). 12. Additional Information. For further information concerning this proceeding, contact Rolanda F. Smith, Audio Division, Media Bureau, at (202) 418-2054, Rolanda-Faye.Smith@fcc.gov. FEDERAL COMMUNICATIONS COMMISSION Nazifa Sawez Assistant Chief, Audio Division Media Bureau 2