-DA 92-43 Federal Communications Commission Record 7 FCC Red No. 3 
Before the 
Federal Communications Commission 
Washington, D.C. 20554 
MM Docket No. 92-10 
In the Matter of 
Amendment of Section 73.202(b), 
Table of Allotments. 
FM Broadcast Stations. 
(Sanibel and San Carlos 
Park, Florida) 
RM-7865 
NOTICE OF PROPOSED RULE MAKING 
Adopted: January 15, 1992; Released: January 28, 1992 
Comment Date: March 20, 1992 
Reply Comment Date: April 6, 1992 
By the Assistant Chief, Allocations Branch: 
I. The Commission has before it the petition for rule 
making filed by Ruth Communications Corporation ("pe­
titioner"), permittee of Station WRWX(FM), Channel 
253A, Sanibel. Florida, requesting the reallotment of 
Channel 253A from Sanibel to San Carlos Park, Florida, 
as that community's first local transmission service. and 
the modification of its construction permit to specify San 
Carlos Park as its community of license. Petitioner states 
that it will apply for Channel 253A at San Carlos Park. if 
allotted. 
2. Petitioner seeks to invoke the provisions of Section 
l.420(i) of the Commission's Rules. which permits the 
modification of a station's license to specify a new com­
munity of license without affording other interested par­
ties an opportunity to file competing expressions of 
interest. See Modification of FM License ("Change of Com­
munity R&O "), 4 FCC Red 4870 (1989). recon. granted in 
part ("Change of Community MO&O"!, 5 FCC Red 7094 
( 1990). Petitioner recognizes that the Commission prohib­
its the removal of a community's sole local transmission 
service, except "in rare circumstances where removal of a 
local service might serve the public interest." 5 FCC Red 
at 7096. Petitioner claims that removal of Sanibel"s sole 
local transmission service is warranted here. 
3. Petitioner states that the reallotment of Channel 
253A would provide San Carlos Park. a community of 
11,785 persons, 1 with its first local transmission service. 
whereas it is currently impossible to provide any service 
at Sanibel. a community of 5.468. Petitioner notes that it 
1 Population figures are taken from the 1990 Census. 
2 The coordinates for Channel 253A at San Carlos Park are 
North Latitude 26-30-02 and West Longitude 81-54-16. This site 
is currently short-spaced to Station WCOO(FM), Channel 252A, 
lmmokalee, Florida. Station WCOO was ordered to operate on 
Channel 22\A in lieu of Channel 252A in MM Docket No. 
850 
has been attempting to construct and operate Station 
WRWX(FM) at Sanibel since September 1988. However, 
petitioner argues, various federal, state and local 
authorities have objected to petitioner's proposed trans­
mitter sites. Petitioner states that local zoning ordinances 
prohibit construction of a tower on Sanibel Island, where 
Sanibel is located. The site petitioner originally specified 
in a 1983 application (BPH-830217 AI) for the Sanibel 
allotment has been declared as environmentally sensitive 
wetlands and is no longer available, and the city of 
Sanibel has purchased surrounding property as a con­
servation area. No other site is available on Sanibel Islal)d 
or nearby Pine Island for construction of a new tower. 
Operation from an existing tower on Pine Island or the 
mainland is not possible because of short-spacing or other 
technical concerns. Petitioner states that she attempted to 
use a directional antenna for a site on Pine Island to 
avoid the short-spacing, but the proposed tower would be 
located near a bald eagle ·s nest. As a result, the Florida 
Game and Fresh Water Commission rejected the proposed 
tower. Petitioner claims that attempts to reach a com­
promise were unsuccessful. As a consequence, petitioner 
has never operated Station WRWX(FM) at Sanibel. On 
the other hand, petitioner claims that if the channel was 
reallotted to San Carlos Park. it could operate Station 
WRWX(FM) from an existing tower. 
4. Petitioner states that San Carlos Park is a Census 
Designated Place located in Lee County, Florida. Peti­
tioner states that San Carlos Park has its own fire depart­
ment, sheriff's department. and two elementary schools. 
San Carlos Park has numerous community and civic or­
ganizations, including the San Carlos Civic Association, 
Kiwanis, Optimist and Rotary Clubs. and a VFW Post and 
Auxiliary. There are churches, child care centers, physi­
cians. dentists, accountants, insurance. a real estate ser­
vice, several banks. and other retail stores and restaurants. 
San Carlos Park is also served by three newspapers. Peti­
tioner submits that a number of businesses identify them­
selves with the name of San Carlos Park. Petitioner states 
that all the indicia support a conclusion that San Carlos 
Park is a community. 
5. An engineering analysis has determined that Channel 
253A can be allotted to San Carlos Park in compliance 
with the Commission's minimum distance separation re­
quirements with a site restriction of 10.9 kilometers (6.8 
miles) west.2 in order to avoid a short spacing to Station 
WKGR(FM), Channel 254C, Fort Pierce, Florida. 
6. We do not generally believe that the public interest is 
served by removing a community's sole local service 
merely to provide a first local transmission service to 
another community. While the removal of Channel 253A 
from Sanibel would remove that community's only local 
service. and provide a first local transmission service to 
San Carlos Park. petitioner has shown that it is unable to 
operate the station at Sanibel despite diligent efforts. Since 
Station WRWX(FM) has never been on the air. a change 
in community will not cause any disruption to existing 
service. Therefore. we believe the public interest would be. 
88-608. In the event that petitioner's proposal is granted, we 
may withhold the grant of an authorization for petitioner to 
operate at the new community until Station WCOO is au­
thorized to operate on Channel 22 IA. We will serve the licensee 
of Station WCOO with a copy of this Notice. 
7 FCC Red No. 3 Federal Communications Commission Record DA 92-43 
served by seeking comments on this proposal. We request 
comments on our tentative conclusion that a waiver of 
our restriction on removal of sole existing local transmis­
sion service is warranted in this instance. 
7. As requested, we will propose to modify petitioner's 
construction permit for Station WRWX(FM) to specify 
San Carlos Park as its community of license. In accor­
dance with Section 1.420(i) of the Commission's Rules, 
we will not accept competing expressions of interest in 
use of Channel 253A at San Carlos Park or require the 
petitioner to demonstrate the availability of an additional 
equivalent class channel for use by such parties. 
8. Accordingly, the Commission believes it would be in 
the public interest to seek comments on the proposal to 
amend the FM Table of Allotments, Section 73.202(b) of 
the Commission's Rules, with respect to the following 
community: 
City 
Sanibel. Florida 
San Carlos Park, 
Florida 
Present 
253A 
Channel No. 
Proposed 
253A 
9. The Commission's authority to institute rule making 
proceedings, showings required, cut-off procedures. and 
filing requirements are contained in the attached Appen­
dix and are incorporated hy reference herein. In particu­
lar, we note that a showing of continuing interest is 
required by paragraph 2 of the Appendix before a chan­
nel will be allotted. 
10. Interested parties may file comments on or before 
March 20, 1992, and reply comments on or before April 
6, 1992, and are advised to read the Appendix for the 
proper procedures. Comments should be filed with the 
Secretary, Federal Communications Commission. Wash­
ington, D.C. 20554. Additionally, a copy of such com­
ments should be served on the petitioner. or its counsel 
or consultant, as follows: 
David G. O'Neil 
Haley, Bader & Potts 
2000 M Street. N.W .. Suite 600 
Washington, D.C. 20036-3374 
11. IT IS FURTHER ORDERED That the Secretary of 
the Commission shall send a copy of this Report and 
Order by Certified Mail, Return Receipt Requested, to the 
licensee of Station WCOO. (FM), as follows: Naples Radio 
Partners, Ltd. 21010 Center Ridge Road, Rocky River, 
OH 44116. 
12. The Commission has determined that the relevant 
provisions of the Regulatory Flexibility Act of 1980 do 
not apply to rule making proceedings to amend the FM 
Tahle of Allotments, Section 73.202(b) of the Commis­
sion's Rules. See Certification that Sections 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. 
13. For further information concerning this proceeding, 
contact Nancy J. Walls. Mass Media Bureau, (202) 
634-6530. For purposes of this restricted notice and com­
ment rule making proceeding, members of the public are 
851 
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 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 a summary of any new oral 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 pane 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 
Michael C. Ruger 
Assistant Chief. Allocations Branch 
Policy and Rules Division 
Mass Media Bureau 
APPENDIX 
1. Pursuant to authority found in Sections 4(i ). 5(c )( 1 ). 
303(g) and (r) and 307(bl of the Communications Act of 
1934, as amended. and Sections 0.61 0.204(b) and 0,283 of 
the Commission's Rules, IT IS PROPOSED TO AMEND 
the FM Table of Allotments, Section 73.202(b) of the 
Commission's Rules and Regulations. 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 Mak­
ing 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 Procedures. 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 com­
ments. 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.) 
(b) With respect to petitions for rule making which 
conflict with the proposal(s) in this Notice, they will 
be considered as comments in the proceeding, and 
Public Notice to this effect will be given as long as 
DA 92-43 Federal Communications Commission Record 
they are filed before the date for filing initial com­
ments herein. If they are filed later than that. they 
will not be considered in connection with the de­
cision 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 Sections 1.415 and 1.420 
of the Commission's Rules and Regulations. 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 submis­
sions 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. Com­
ments 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 Section 
l.420(a), (b) and (c) of the Commission's Rules.) 
5. Number of Copies. In accordance with the provisions 
of Section 1.420 of the Commission's Rules and Regula­
tions. 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 
Public Reference Room at its headquarters, 1919 M Street 
N.W., Washington, D.C. 
852 
7 FCC Red No. 3