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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Amendment of Section 73.202(b) MM Docket No. 97-236) Table of Allotments, ) RM-9186 FM Broadcast Stations. ) (Point Arena, California) ) NOTICE OF PROPOSED RULE MAKING Adopted: November 19, 1997 Released: December 5, 1997 Comment Date: January 26, 1998 Reply Comment Date: February 10, 1998 By the Chief, Allocations Branch: 1. Before the Commission for consideration is a petition for rule making filed on behalf of Point Broadcasting ("petitioner") seeking the allotment of Channel 296B1 to Point Arena, California, as that community's second local FM service. Petitioner requests that Channel 296B1 be allotted to Point Arena with cut-off protection and that it be allowed to amend its application to specify operation on Channel 296B1 in lieu of Channel 272B1. Petitioner states its intention to promptly amend its application for a construction permit to specify Channel 296B1 if its proposal is granted. 2. In support of its proposal, petitioner states that as one of two applicants for Channel 272B1 at Point Arena, its application (File No. BPH-940223MC) is mutually exclusive with that of Del Mar Trust (File No. BPH-950206MK). As a means of eliminating the conflict between the two cut-off applicants at Point Arena, petitioner states that the additional allotment of Channel 296B1 to Point Arena would accommodate each applicants' request for a Class B1 channel. Further, petitioner remarks that its proposal is in conformity with Commission policy to resolve mutually- exclusive applications through the allotment of an additional channel, citing Neguanee, Michigan, 11 FCC Rcd 12833 (1996) and Casper, Wyoming, 11 FCC Rcd 1071 (1996). In the event other expressions of interest for a Class B1 channel at Point Arena are filed in this proceeding, petitioner advises that Channel 286B1 is also available to the community. 3. In view of the above, we believe the petitioner's proposal merits consideration since it could provide a second local FM service to the community, if granted. Additionally, the proposed allotment of Channel 296B1 to Point Arena would accommodate each applicants' request for a Class B1 channel, thereby resolving the existing mutual exclusivity for Channel 272B1. Channel 296B1 can be allotted to Point Arena in conformity with the minimum distance separation requirements of Section 73.207(b)(1) of the Commission's Rules without the imposition of a site restriction at coordinates 38-54-42 and 123-41-24. We note that Channel 296B1 may also be utilized at the petitioner's currently specified site for Channel 272B1 at coordinates 39-01-22 and 123-31-17. Since an additional equivalent channel is presently available for other expressions of interest at Point Arena (see n. 1, supra), we will propose to permit petitioner to amend its application (File No. BPH- 940223MC) to specify operation on Channel 296B1 with cut-off protection. 4. Accordingly, we seek comments on the proposed amendment to the FM Table of Allotments, Section 73.202(b) of the Commission's Rules, with respect to Point Arena, California, as follows: Channel No. City Present Proposed Point Arena, California 272B1 272B1, 296B1 5. 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 by paragraph 2 of the Appendix before a channel will be allotted. 6. Interested parties may file comments on or before January 26, 1998, and reply comments on or before February 10, 1998, 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's counsel, as follows: Jerrold Miller, Esq. Miller & Miller, P.C. P.O. Box 33003 Washington, DC 20033 7. 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),and 73.606(b) of the Commission's Rules, 46 FR 11549, February 9, 1981. 8. For further information concerning this proceeding, contact Nancy Joyner, Mass Media Bureau, (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 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 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 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 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 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 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 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 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 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, 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 Reference Center (Room 239), at its headquarters, 1919 M Street, N.W., Washington, D.C.