*Pages 1--11 from Microsoft Word - 37487* Federal Communications Commission DA 04- 910 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. (Canton, Illinois) (Cedarville, Illinois) (Clifton, Illinois) (Freeport, Illinois) (Pinckneyville, Illinois) (Farmersburg, Indiana) (Fowler, Indiana) (Madison, Indiana) (Terre Haute, Indiana) (Council Grove, Kansas) (Smith Mills, Kentucky) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) MB Docket No. 04- 97 RM- 10897 RM- 10898 MB Docket No. 04- 98 RM- 10899 MB Docket No. 04- 99 RM- 10900 MB Docket No. 04- 100 RM- 10901 MB Docket No. 04- 101 RM- 10902 RM- 10903 MB Docket No. 04- 102 RM- 10904 RM- 10905 RM- 10906 MB Docket No. 04- 103 RM- 10907 MB Docket No. 04- 104 RM- 10908 MB Docket No. 04- 105 RM- 10909 RM- 10910 RM- 10911 MB Docket No. 04- 106 RM- 10912 MB Docket No. 04- 107 RM- 10913 RM- 10914 1 Federal Communications Commission DA 04- 910 2 (Golden Meadow, Louisiana) (Homer, Louisiana) (Ringgold, Louisiana) ) ) ) ) ) ) ) ) ) ) ) ) ) ) MB Docket No. 04- 108 RM- 10915 RM- 10916 RM- 10917 RM- 10918 MB Docket No. 04- 109 RM- 10919 MB Docket No. 04- 110 RM- 10920 RM- 10921 RM- 10922 NOTICE OF PROPOSED RULE MAKING Adopted: April 2, 2004 Released: April 5, 2004 By the Chief, Audio Division: Comment Date: May 27, 2004 Reply Comment Date: June 11, 2004 1. The Audio Division has before it a multiple docket Notice of Proposed Rule Making setting forth fourteen Petitions for Rule Making to amend the FM Table of Allotments, Section 73.202( b) of the rules, to reserve certain vacant FM allotments for noncommercial educational (“ NCE”) use. 2. In the Reexamination of the Comparative Standards for Noncommercial Educational Applicants (“ NCE Report and Order”), the Commission established revised criteria by which a rulemaking proponent may reserve an FM allotment for NCE use. 1 Under the expanded criteria, a proponent must demonstrate that it is technically precluded from using a reserved channel (Channels 200 through 220) and the proposal would provide a first and/ or second NCE radio service to at least 10 percent of the population within the 1 mV/ m contour of the proposed station. Originally, the Commission limited this expanded reservation criteria to future allotment proceedings. Thereafter, the Commission extended the expanded criteria to existing vacant FM allotments for which a Notice of Proposed Rule Making had been released prior to August 7, 2000, the effective date of the NCE Report and Order. 2 3. In a Public Notice released September 30, 2003, we invited petitions for rule making to reserve vacant FM allotments for NCE use pursuant to the NCE Second Report and Order. 3 In response to the 1 15 FCC Rcd 7386 (2000). Previously, the Commission would only reserve a channel in the nonreserved FM band (Channels 221 through 300) if the petitioner demonstrated that no reserved channel could be used without causing prohibited interference to a Channel 6 TV station a foreign broadcast station. 2 Reexamination of the Comparative Standards for Noncommercial Educational Applicants (“ NCE Second Report and Order”), 18 FCC Rcd 6691 (2003). 3 Media Bureau Opens Window to Permit Noncommercial Educational Reservation Showings for Certain Vacant FM Allotments, 18 FCC Rcd 19600 (MB 2003). 2 Federal Communications Commission DA 04- 910 3 Public Notice, we received 129 petitions for the reservation of 91 allotments. We believe that the public interest would be served by proposing the reservation of the above- captioned allotments for NCE use. Based upon our preliminary study, each petitioner has expressed an interest in applying for an FM allotment reserved for NCE use, is eligible to do so, and has demonstrated compliance with the expanded criteria set forth in the NCE Report and Order. We are combining the separate NCE reservation proposals into a single Notice of Proposed Rule Making. Each proposal has its own docket and rulemaking number, and the Commission’s Reference Center will maintain a file for each docket. This procedure will conserve Commission resources and expedite the processing of the FM allotment reservation petitions by avoiding duplicative actions. 4 We will not entertain counterproposals or any proposal to modify the underlying allotment other than reserving the allotment for NCE use. Instead, a party may file rebuttal comments identifying a site at which a reserved channel could be assigned with facilities fully equivalent to the proposed reserved allotment. Such an alternate reserved channel proposal must satisfy also the first and/ or second NCE radio service criterion. In addition, a party may file comments demonstrating that the reservation proposal would not, in fact, provide a first and/ or second NCE radio service to ten percent of the population within the 1 mV/ m contour of the proposed station. 4. We request comment on the following reservation proposals. A. MB Docket No. 04- 97; RM- 10897, RM- 10898 Proposal: Reserve Channel 277A at Canton, Illinois for non- commercial use. Petitioners: Todd D. Gray, Esq. Margaret L. Miller, Esq. Barry S. Persh, Esq. c/ o Illinois State University Dow, Lohnes, & Albertson, PLLC 1200 New Hampshire Avenue, Suite 800 Washington DC 20036 Mark Follett Starboard Media Foundation, Inc. 2300 Riverside Drive Green Bay, WI 54301 Community Present Proposed Canton, Illinois 277A *277A Coordinates: 40- 28- 27 NL and 90- 03- 01 WL B. MB Docket No. 04- 98; RM- 10899 Proposal: Reserve Channel 258A at Cedarville, Illinois for non- commercial use. Petitioner: Dennis J. Kelly, Esq. c/ o The Catholic Diocese of Rockford 4 The staff will release additional multiple docket notices of rulemakings during the next several weeks. 3 Federal Communications Commission DA 04- 910 4 Law Office of Dennis J. Kelly Post Office Box 41177 Washington, DC 20018 Community Present Proposed Cedarville, Illinois 258A *258A Coordinates: 42- 21- 50 NL and 89- 40- 59 WL C. MB Docket No. 04- 99; RM- 10900 Proposal: Reserve Channel 297A at Clifton, Illinois for non- commercial use. Petitioner: Mark Follett Starboard Media Foundation, Inc. 2300 Riverside Drive Green Bay, WI 54301 Community Present Proposed Clifton, Illinois 297A *297A Coordinates: 40- 52- 0 NL and 87- 58- 0 WL D. MB Docket No. 04- 100; RM- 10901 Proposal: Reserve Channel 295A at Freeport, Illinois for non- commercial use. Petitioner: Mark Follett Starboard Media Foundation, Inc. 2300 Riverside Drive Green Bay, WI 54301 Community Present Proposed Freeport, Illinois 295A *295A Coordinates: 42- 19- 28 NL and 89- 35- 13 WL E. MB Docket No. 04- 101; RM- 10902, RM- 10903 Proposal: Reserve Channel 282A at Pinckneyville, Illinois for non- commercial use. Petitioners: Mark Follett Starboard Media Foundation, Inc. 4 Federal Communications Commission DA 04- 910 5 2300 Riverside Drive Green Bay, WI 54301 James Miller Miller Media 115 Bobbie Drive Swansea, IL 62226 Community Present Proposed Pinckneyville, Illinois 282A *282A Coordinates: 38- 5- 30 NL and 89- 22- 46 WL F. MB Docket No. 04- 102; RM- 10904, RM- 10905, RM- 10906 Proposal: Reserve Channel 242A at Farmersburg, Indiana for non- commercial use. Petitioners: Patrick J. Vaughn, General Counsel American Family Association Post Office Drawer 2440 Tupelo, MS 38803 Mark Follett Starboard Media Foundation, Inc. 2300 Riverside Drive Green Bay, WI 54301 Mark N. Lipp, Esq. c/ o Word Power, Inc. Vinson & Elkins, LLP. The Willard Office Building 1455 Pennsylvania Avenue, NW Washington, DC 20004- 1008 Community Present Proposed Farmersburg, Indiana 242A *242A Coordinates: 39- 15- 18 NL and 87- 23- 0 WL G. MB Docket No. 04- 103; RM- 10907 Proposal: Reserve Channel 291A at Fowler, Indiana for non- commercial use. Petitioner: Mark Follett Starboard Media Foundation, Inc. 5 Federal Communications Commission DA 04- 910 6 2300 Riverside Drive Green Bay, WI 54301 Community Present Proposed Fowler, Indiana 291A *291A Coordinates: 40- 38- 5 NL and 87- 18- 46 WL H. MB Docket No. 04- 104; RM- 10908 Proposal: Reserve Channel 266A at Madison, Indiana for non- commercial use. Petitioner: Patrick J. Vaughn, General Counsel American Family Association Post Office Drawer 2440 Tupelo, MS 38803 Community Present Proposed Madison, Indiana 266A *266A Coordinates: 38- 49- 15 NL and 85- 18- 46 WL I. MB Docket No. 04- 105; RM- 10909, RM- 10910, RM- 10911 Proposal: Reserve Channel 298B at Terre Haute, Indiana for noncommercial use. Petitioners: Harry C. Martin, Esq. Lee G. Petro, Esq. c/ o Living Proof, Inc. Fletcher, Heald & Hildreth PLC 1300 North 17 th Street, 11 th Floor Arlington, VA 22209 Mark N. Lipp, Esq. c/ o Word Power, Inc. Vinson & Elkins, LLP. The Willard Office Building 1455 Pennsylvania Avenue, NW Washington, DC 20004- 1008 William D. Wallace, Esq. c/ o The Trustees of Indiana University Crowell & Moring LLP 1001 Pennsylvania Avenue, NW Washington, DC 20004 Community Present Proposed 6 Federal Communications Commission DA 04- 910 7 Terre Haute, Indiana 298B *298B Coordinates: 39- 30- 14 NL and 87- 26- 37 WL J. MB Docket No. 04- 106; RM- 10912 Proposal: Reserve Channel 281C3 at Council Grove, Kansas for non- commercial use. Petitioner: Russell C. Powell, Esq. c/ o Great Plains Christian Radio, Inc. Taylor & Powell, LLC 908 King Street, Suite 300 Alexandria, VA 22314 Community Present Proposed Council Grove, Kansas 281C3 *281C3 Coordinates: 38- 39- 42 NL and 96- 29- 18 WL K. MB Docket No. 04- 107; RM- 10913, RM- 10914 Proposal: Reserve Channel 233A at Smith Mills, Kentucky for non- commercial use. Petitioner: Patrick J. Vaughn, General Counsel American Family Association Post Office Drawer 2440 Tupelo, MS 38803 Mark Follett Starboard Media Foundation, Inc. 2300 Riverside Drive Green Bay, WI 54301 Community Present Proposed Smith Mills, Kentucky 233A *233A Coordinates: 37- 47- 26 NL and 87- 55- 23 WL L. MB Docket No. 04- 108; RM- 10915, RM- 10916, RM- 10917, RM- 10918 Proposal: Reserve Channel 289C2 at Golden Meadow, Louisiana for non- commercial use. Petitioners: Patrick J. Vaughn, General Counsel American Family Association 7 Federal Communications Commission DA 04- 910 8 Post Office Drawer 2440 Tupelo, MS 38803 Mark Follett Starboard Media Foundation, Inc. 2300 Riverside Drive Green Bay, WI 54301 Joseph C. Chautin, III, Esq. c/ o Providence Educational Foundation Hardy, Carey & Chautin, L. L. P. 110 Veterans Blvd., Suite 300 Metairie, Louisiana 70005 David A. O’Connor, Esq. c/ o Calvary of New Orleans Holland & Knight LLP 2099 Pennsylvania Avenue, NW, Suite 100 Washington, DC 20006 Community Present Proposed Golden Meadow, Louisiana 289C2 *289C2 Coordinates: 29- 14- 0 NL and 90- 15- 0 WL M. MB Docket No. 04- 109; RM- 10919 Proposal: Reserve Channel 272A at Homer, Louisiana for non- commercial use. Petitioner: Patrick J. Vaughn, General Counsel American Family Association Post Office Drawer 2440 Tupelo, MS 38803 Community Present Proposed Homer, Louisiana 272A *272A Coordinates: 32- 42- 41 NL and 92- 56- 35 WL N. MB Docket No. 04- 110; RM- 10920, RM- 10921, RM- 10922 8 Federal Communications Commission DA 04- 910 9 Proposal: Reserve Channel 253C3 at Ringgold, Louisiana for non- commercial use. Petitioners: Patrick J. Vaughn, General Counsel American Family Association Post Office Drawer 2440 Tupelo, MS 38803 Mark Follett Starboard Media Foundation, Inc. 2300 Riverside Drive Green Bay, WI 54301 David A. O’Connor, Esq. c/ o Southern Cultural Outreach Association, Inc. Holland & Knight LLP 2099 Pennsylvania Avenue, NW, Suite 100 Washington, DC 20006 Community Present Proposed Ringgold, Louisiana 253C3 *253C3 Coordinates: 32- 19- 49 NL and 93- 12- 33 WL 5. Comments, reply comments and other pleadings filed in response to this Notice of Proposed Rule Making should reference the docket to which the pleading pertains. The Commission’s authority to institute rulemaking 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 reserved. 6. Pursuant to Sections 1.415 and 1.419 of the Commission’s Rules, interested parties may file comments on or before May 27, 2004 and reply comments on or before June 11, 2004, 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 or its counsel. 7. Parties who choose to file by paper must file an original and four copies of each filing. Filings can be sent by hand or messeger 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, Vistronix, Inc., will receive hand- delivered or messinger- delivered paper filings for the Commission’s Secretary at 236 Massachusetts Avenue, NE, Suite 110, Washington, D. C. 20002. The filing hours at this location are 8: 00 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 445 12 th Street, SW, Washington, D. C. 20554. All filings must be addressed to the Commission’s Secretary, Office of the Secretary, Federal Communications Commission. 9 Federal Communications Commission DA 04- 910 10 8. The Commission has determined that the relevant provisions of the Regulatory Flexibility Act of 1980 do not apply to rulemaking proceedings to amend the FM Table of Allotments, Section 73.202( b) of the Commission’s Rules. 5 9. For further information concerning a proceeding listed above, contact Rolanda F. Smith, (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 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 its staff for the clarification or adduction of evidence or resolution of issues in this 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 any 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 that 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 Peter H. Doyle, Chief Audio Division Media Bureau APPENDIX 5 See Certification that Sections 603 and 604 of the Regulatory Flexibility Act Do Not Apply to Rule Makings to Amend Sections 73.202( b), 73.504 and 73.606( b) of the Commission’s Rules, 46 Fed. Reg. 11549 (February 9, 1981). 10 Federal Communications Commission DA 04- 910 11 1. Pursuant to authority contained in Sections 4( i), 5( c)( 1), 303( g) and (r), and 307( b) of the Communications act of 1934, as amended, and sections0.61, 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 discussed in the Notice of Proposed Rule Making to which this Appendix is attached. Proponent will be expected to answer whatever questions are presented in initial comments. The proponent of the 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 reserved and, if authorized, to build a station promptly. Failure to file may lead to denial of the request. 3. 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 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 who filed the 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 Commission’s Rules). Comments should be filed with the Secretary, Federal Communications Commission, Washington, D. C. 20554. 4. Number of Copies. In accordance with the provisions of Section 1.420 of the Commission’s rules and regulations, an original and four copies of all comments, reply comments, pleadings, briefs or other documents shall be furnished the Commission. 5. 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 Twelfth Street, SW, Washington, D. C. 11