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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. 98-185 Table of Allotments, ) RM-9355 FM Broadcast Stations. ) (Ely and Carlin, Nevada) ) NOTICE OF PROPOSED RULE MAKING Adopted: September 30, 1998 Released: October 9, 1998 Comment Date: November 30, 1998 Reply Comment Date: December 15, 1998 By the Chief, Allocations Branch: 1. The Commission has before it the petition for rule making filed by L. Topaz Enterprises, Inc. ("petitioner"), permittee of Station KHIX, Channel 244C1, Ely, Nevada, requesting the substitution of Channel 244C for Channel 244C1, the reallotment of Channel 244C from Ely to Carlin, Nevada, as the community's first local aural service, and the modification of Station KHIX's construction permit to specify Carlin as its community of license. Petitioner states that it will apply for the channel, if allotted to Carlin. 2. The proposed reallotment of Channel 244C from Ely to Carlin is filed pursuant to 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 community of license without affording other interested parties an opportunity to file competing expressions of interest. See Amendment of the Commission's Rules Regarding Modification of FM and TV Authorizations to Specify a New Community of License ("Change of Community R&O"), 4 FCC Rcd 4870 (1989), recon. granted in part ("Change of Community MO&O), 5 FCC Rcd 7094 (1990). According to petitioner, Carlin is an incorporated city, with a population of 2,710 persons, and its county, Elko, has a population of 33,530 people. It states that Carlin has a mayor-council form of government, a local planning board and an economic development committee. Carlin also has its own school system covering kindergarten through twelfth grade, its own police and fire departments, an ambulance service, and a public works department which provides water and sewage services to the community. The petitioner points out that Carlin also has a local library, senior citizens center, banks, local churches, restaurants, motels and various other retail establishments. Petitioner also states that while the allotment of Channel 244C to Carlin will provide the community with its first local aural service, Ely will retain local aural service from AM Station KELY and FM Stations KELY-FM and KDSS. 3. A staff engineering review of the proposal shows that Channel 244C can be allotted to Carlin in compliance with the Commission's minimum distance separation requirements with a site restriction of 1 kilometer (0.6 miles) west to accommodate petitioner's desired transmitter site. Further, the allotment at Carlin could provide a first fulltime aural service to 436 persons within a 9,006 square kilometer (3,479 square mile) area and a second fulltime aural service to 5,617 persons within a 7,131 square kilometers (2,755 square mile) area. We recognize that Station KHIX is unbuilt. However, if constructed at Ely, the staff engineering study shows that a first fulltime aural service would be provided to 1,253 persons within a 16,410 square kilometer (6.339 square mile) area. 4. We believe petitioner's proposal warrants consideration since the allotment of Channel 244C to Carlin could provide the community with its first local aural service. In accordance with Section 1.420(i) of the Commission's Rules, we will not accept competing expressions of interest in use of Channel 244C at Carlin or require the petitioner to demonstrate the availability of an additional equivalent class channel for use by such parties. Accordingly, we seek comments on the proposed amendment of the FM Table of Allotments, Section 73.202(b) of the Commission's Rules, for the communities listed below, to read as follows: Channel No. City Present Proposed Carlin, Nevada -- 244C Ely, Nevada 224C3, 244C1, 269C3 224C3, 269C3 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 November 30, 1998, and reply comments on or before December 15, 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, or its counsel or consultant, as follows: Dale A. Ganske, President L. Topaz Enterprises, Inc. 5546-3 Century Avenue Middleton, WI 53562 (Petitioner) 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), 73.504 and 73.606(b) of the Commission's Rules, 46 FR 11549, February 9, 1981. 8. For further information concerning this proceeding, contact Leslie K. Shapiro, 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 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 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 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 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.