10 FCC Red No. 13 Federal Communications Commission Record DA 95-1263
Before the
Federal Communications Commission
Washington, D.C. 20554
MM Docket No. 95-82
In the Matter of
Amendment of Section 73.202(b), RM-8630
Table of Allotments,
FM Broadcast Stations.
(Monticello, Perry, Quincy,
and Woodville, Florida)
NOTICE OF PROPOSED RULE MAKING
Adopted: June 7,1995; Released: June 19,1995
By the Chief, Allocations Branch:
Comment Date: August 10, 1995
Reply Comment Date: August 25, 1995
1. Before the Commission for consideration is a petition
for rule making filed by Great South Broadcasting, Inc.
("petitioner"), licensee of WXSR(FM). Channel 268C2,
Quincy, Florida, requesting the reallotment of Channel
268C2 from Quincy, Florida to Woodville, Florida, and the
modification of its license for Station WXSR(FM) to speci
fy Woodville as its community of license. In order to
accomplish the reallotment from Quincy to Woodville,
petitioner also requests the substitution of Channel 289C3
for Channel 270C3 at Monticello, Florida, and the modi
fication of Station WJPH(FM)'s license to specify Channel
289C3, and the substitution of Channel 221A for Channel
288A at Perry, Florida, and the modification of Station
WNFK(FM)'s license to specify Channel 221 A. Petitioners
state their intentions to apply for the respective channels, if
allotted.
2. Petitioner seeks to invoke the provisions of Section
1.420(i) of the Commission's Rules, which permit the
modification of a station's license to specify a new commu
nity of license without affording other interested parties an
opportunity to file competing expressions of interest. See
Modification of FM and TV Authorizations to Specify a New
Community of License ("Modification"), 4 FCC Red 4870
(1989), recon. granted in part, 5 FCC Red 7094 (1990).
Petitioner states that the reallotment of Channel 268C2
from Quincy (population 7,444) to Woodville (population
2,760) L is mutually exclusive with the present allotment of
Channel 268C2 at Quincy. Petitioner claims that its pro
posal will result in a preferential arrangement of allotments
since it would provide Woodville with its first local aural
transmission service. Petitioner notes that Quincy would
not lose its sole local aural transmission service, since it
will continue to receive service from Station WWSD(AM),
and Station WTPS(FM) an outstanding construction permit
(currently off the air) at Quincy.J Petitioner notes that both
Quincy and Woodville are located outside the Tallahassee
Urbanized Area. Furthermore, in order to accommodate
the reallotment of Channel 268C2 from Quincy to
Woodville, petitioner has obtained the consent of the li
censees of Station WJPH(FM), Monticello, Florida, and
Station WNFK(FM), Perry, Florida, for the channel sub
stitutions. Petitioner has also agreed to reimburse each
licensee for the legitimate costs associated with the channel
changes.
3. In further support of its proposal, petitioner states that
Woodville is a Census Designated Place, located in Leon
County with a 1990 U. S. Census population of 2,760
persons, and has no local aural transmission service. Peti
tioner also states that Woodville has several civic organiza
tions, approximately 100 businesses, a bank, two hardware
stores, an automobile dealership, several auto parts stores, a
grocery store, two cabinet stores and various other retail
outlets. Woodville has its own post office, volunteer fire
department, recreational park, elementary school and two
voting precincts.
4. Based on the information before us, we are unable to
determine whether petitioner's proposal would result in a
preferential arrangement of allotments. However, we be
lieve the proposal warrants consideration, since it would
not deprive Quincy of its only local aural transmission
service, and would provide the community of Woodville
with its first local aural transmission service. Nonetheless,
we must take into account the fact that existing service will
be deleted from a community. With respect to evaluating
proposals to change the community of license, the Com
mission has stated, "The public has a legitimate expectation
that existing service will continue, and this expectation is a
factor we must weigh independently against the service
benefits that may result from reallotting a channel from
one community to another." See Modifications, supra., 5
FCC Red at 7097 (1990). Since we are concerned with the
loss of service to the community of Quincy, we request
petitioner to submit any additional information as the over
all public interest benefits that would be advanced from a
grant of this proposal. In addition, we request petitioner to
provide information showing the areas and populations
which will receive new service and the areas and popula
tions which will lose existing service if Station WXSR(FM),
Channel 268C2 is reallotted to Woodville. The study
should also indicate the number of reception services
which are now available with the gain and loss areas.
TECHNICAL SUMMARY
5. An engineering analysis has determined that Channel
268C2 can be reallotted from Quincy to Woodville in
compliance with the Commission's minimum distance sep
aration requirements with a site restriction of 1.7
kilometers (1.1 miles) west3 in order to avoid a short-
spacing to Station WHJX(FM), Channel 268C, Brunswick,
1 Population figures are taken from the 1990 U.S. Census.
2 We note the pendency of a proposal filed in MM Docket No.
93-229. 8 FCC Red 5257 (1993), on behalf of Bitner-James
Partnership, permittee of Station WTPS(FM), requesting the
substitution of Channel 264C3 for Channel 264A at Quincy and
the reallotment of Channel 264C3 from Quincy to Midway,
Florida.
3 The coordinates for Channel 268C2 at Woodville, Florida are
North Latitude 30-18-53 and West Longitude 84-15-57.
6595
DA 95-1263 Federal Communications Commission Record 10 FCC Red No. 13
Georgia; Channel 289C3 can be substituted for Channel
270C3 at Momicello, Florida, in compliance with the Com
mission's minimum distance separation requirements with
a site restriction of 14.2 kilometers (8.8 miles) south,4 in
order to avoid a short-spacing to Station WFFM(FM),
Channel 289A, Ashburn, Georgia; Channel 221A can be
substituted for Channel 288A at Perry, Florida, in compli
ance with the Commission's minimum distance separation
requirements with a site restriction of 1.6 kilometers (1.0
miles) southeast at the construction permit site (BPH-
940930IZ) for Station WNFK(FM).5
6. The Commission usually does not require a station to
change its transmitter site in order to accommodate a new
allotment, without the consent of the affected station. Peti
tioner has provided a copy of an agreement with Webster
Broadcasting, Inc., licensee of Station WJPH(FM),
Monticello, Florida, consenting to change its existing trans
mitter site in order to accommodate the proposed change
in community of license from Quincy, Florida, to
Woodville, Florida. In addition, petitioner has also pro
vided a copy of an agreement with RAHU Broadcasting
Co., licensee of Station WNFK(FM), Perry, Florida, con
senting to the proposed channel substitution for Station
WNFK(FM). Since the licensee of Station WJPH(FM),
Monticello, Florida, and the licensee of Station
WNFK(FM), Perry, Florida have consented to the proposed
change in transmitter site and channel substitutions, we
shall not issue Orders to Show Cause; however, we will
serve all parties with a copy of the Notice.
1. The Commission believes it would be in the public
interest toseek comments on the proposal to amend the
FM Table of Allotments, Section 73.202(b) of the Commis
sion's Rules, with respect to the following communities:
Channel No.
City
Quincy. Florida
Woodville, Florida
Monticello, Florida
Perry, Florida
Present
264A, 268C2
270C3
288A
Proposed
264A
268C2
289C3
221A
8. The Commission's authority to institute rule making
proceedings, showings required, cut-off procedures, and fil
ing 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.
9. Interested parties may file comments on or before
August 10, 1995, and reply comments on or before August
25, 1995, and are advised to read the Appendix for the
proper procedures. Comments should be filed with the
Secretary, Federal Communications Commission, Washing
ton, D.C. 20554. Additionally, a copy of such comments
should be served on the petitioner, or its counsel or con
sultant, as follows:
Gary S. Smithwick
Shaun A. Maher
Smithwick & Belendiuk, P.C.
1990 M Street, N.W., Suite 510
Washington, D.C. 20036
(Attorneys for Petitioner)
10. IT IS FURTHER ORDERED, That the Secretary of
the Commission SHALL SEND by Certified Mail, Return
Receipt Requested a copy of this Notice to:
RAHU Broadcasting, Inc.
P.O. Box 779
Perry, FL 32347
(Licensee of Station
WNFK(FM))
Webster Broadcasting, Inc.
400 N. Michigan Ave., #200
Chicago, IL60611
(Licensee of Station
WJPH(FM))
Joseph E. Doyle, Esq.
Jenner & Block
One IBM Plaza
Chicago, IL 60611
(Counsel for Station
WJPH(FM))
11. 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 Table
of Allotments, Section 73.202(b) of the Commission'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.
12. For further information concerning this proceeding,
contact Nancy J. Walls. Mass Media Bureau, (202)
418-2180. For purposes of this restricted notice and com
ment rule making proceeding, members of the public are
advised that no ex pane 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 pane presenta
tion is not prohibited if specifically requested by the Com
mission or staff for the clarification or adduction of
evidence or resolution of issues in the proceeding. How-
ever, 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 pane presentation and
shall not be considered in the proceeding.
4 The coordinates for Channel 289C3 at Monticello are North
Latitude 30-25-05 and West Longitude 83-50-18.
5 The coordinates for Channel 221A at Perry are North Lati
tude 30-06-27 and West Longitude 83-34-00.
6596
10 FCC Red No. 13 Federal Communications Commission Record DA 95-1263
FEDERAL COMMUNICATIONS COMMISSION
John A. Karousos
Chief, Allocations Branch
Policy and Rules Division
Mass Media Bureau
APPENDIX
1. Pursuant to authority found in Sections 4(i), 5(c)(l),
303(g) and (r) and 307(b) 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 Com
mission's Rules and Regulations, as set forth in the Notice
of Proposed Rule Making to which this Appendix is at
tached.
2. Showings Required. Comments are invited on the pro-
posal(s) discussed in the Notice of Proposed Rule Making to
which this Appendix is attached. Proponent(s) will be ex
pected 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 gov
ern 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 ad
vanced 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
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 par
ties 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 com
ments, 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 Section 1.420(a), (b) and (c) of the Com
mission's Rules.) Comments should be filed with the Sec
retary, Federal Communications Commission, Washington,
D.C. 20554.
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.
6597