(n1) DA 95-394

Before the
Federal Communications Commission
Washington, D.C.

In the matter of:

Amendment of Section 73.202(b

,
FURTHER NOTICE OF PROPOSED RULE MAKING

MM Docket No. 94-84
Table of Allotments,
RM-8478
FM Broadcast Stations.
(Driscoll, Gregory and
Robstown, Texas
Adopted: March 1, 1995 Released: May 4, 1994
Comment Date:May 4, 1995
Reply Comment Date: May 19, 1995
By the Chief, Allocations Branch:
1. The Commission has before it the
Notice of Proposed Rule Making
, 9 FCC Rcd 3580, (1994
, requesting comments on the petition for rule making filed by Cotton Broadcasting ("petitioner"
, licensee of Station KMIQ(FM
, Channel 286A, Robstown, Texas. Petitioner sought the substitution of Channel 283C3 for Channel 286A, the reallotment of Channel 283C3 from Robstown to Driscoll, Texas, and the modification of petitioner's license to specify Driscoll as Station KMIQ(FM
's community of license. In order to accommodate the reallotment to Driscoll, petitioner also requested the deletion of vacant Channel 283A at Gregory, Texas.
2. In regard to the deletion of the vacant and unoccupied channel at Gregory, the
Notice
stated that we would not delete a channel where an expression of interest is demonstrated by the filing of an application. Therefore, we stated if we received an acceptable application by the initial comment period specified in the
Notice
, which in this case was September 19, 1994, petitioner's proposal to delete Channel 283A at Gregory would be dismissed. However since that time, the Commission had imposed a freeze for both new application proceedings and comparative renewal proceedings.
Since the application filing windows were frozen during the comment period of this proceeding, parties were unable to file an application for Channel 283A at Gregory. In order to address this inconsistency, we are issuing the
Further Notice
to set forth a comment period by which an expression of interest for Channel 283A at Gregory can be filed.
3. Parties may comment on the proposal to delete Channel 283A at Gregory, Texas. However, we will not accept counterproposals with regard to the allotment of Channel 283C3 at Driscoll, Texas.
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 byparagraph 2 of the Appendix before a channel will be allotted.
5. Interested parties may file comments on or before May 4, 1995, and
reply comments on or before May 19, 1995, and are advised to read the Appendix for the proper procedures. Comments should be filed with the Secretary, Federal Communications Commission, Washington, D.C. 20554. Additionally, a copy of such comments should be served on the petitioner, or its counsel or consultant, as follows:
Lee J. Peltzman, Esq.
Shainis & Peltzman
Suite 200
2000 L Street
Washington, D.C. 20036
(Counsel for petitioner
6. 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.
7. For further information concerning this proceeding, contact
Pam Blumenthal, Mass Media Bureau, (202
634-6530. 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 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 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.

FEDERAL COMMUNICATIONS COMMISSION

John A. Karousos
Chief, Allocations Branch
Policy and Rules Division
Mass Media Bureau

Attachment: Appendix

APPENDIX
MM Docket No. 94-84
RM-8478

1. Pursuant to authority found in Sections 4(i), 5(c)(1), 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 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 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 pleading. 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 Section 1.420(d) of the Commission's Rules).

(b) With respect to petitions for rule making which conflict with the
proposals 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 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 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 pleading. 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 Commission's Rules.) Comments should be filed with the Secretary, 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 Regulations, an original and four copies of all comments, reply comments, pleading, 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.


APPENDIX

Footnote 1 See FCC Freezes Comparative Proceedings, FCC 94-41, February 25, 1994.