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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. 98-194 Table of Allotments, ) RM-9360 FM Broadcast Stations. ) (Jewett and Windham, New York) ) NOTICE OF PROPOSED RULE MAKING Adopted: November 4, 1998 Released: November 13, 1998 Comment Date: January 4, 1999 Reply Comment Date: January 19, 1999 By the Chief, Allocations Branch: 1. The Commission has before it the petition for rule making filed by the Ridgefield Broadcasting Corporation ("petitioner"), permittee of Station WAXK, Channel 250A, Jewett, New York, requesting the reallotment of Channel 250A to Windham, New York, as the community's first local aural service, and the modification of its construction permit for Station WAXK to specify Windham as its community of license. Petitioner states that it will apply for the channel, if allotted to Windham. 2. Petitioner filed its request pursuant to Section 1.420(i) of the Commission's Rules which permits the modification of a station's authorization to specify a new community 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 ("Change of Community R&O"), 4 FCC Rcd 4870, 4874 (1989), recon. granted in part ("Change of Community MO&O"), 5 FCC Rcd 7094 (1990). 3. In support of its proposal, petitioner states that Windham is listed in the 1990 U.S. Census and attributed with a population of 1,682 persons. Further, it states that Windham meets the Commission's definition of a community for allotment purposes in that it has its own municipal government consisting of a Town Board and Town Supervisor, with a full-time Town Clerk, its own police and fire departments and ambulance service, town hall, library, and Civic Center. Petitioner also points out that Windham has a Chamber of Commerce with 134 members, a Masonic Hall and Rotary Club, as well as several churches. Area children, according to petitioner, attend school at Windham-Ashland-Jewett School, which is located in Windham. Petitioner also relates that Windham has a number of businesses which refer to Windham in their names, such as Ski Windham, Windham Pharmacy, Windham Hardware, Windham Mountain Inn, the Windham Mini-Mall, Windham Mountain Outfitters, the Windham Theatre and Windham Mountain Arms Hotel. Windham also has a weekly newspaper, The Windham Journal, which has been published since 1857. Petitioner recognizes that the reallotment of Channel 250A to Windham will leave Jewett, with a population of 933 people, with no local aural service. However, it points out that Station WAXK has not been constructed and thus is not considered to be an existing service, citing Midway, Panacea and Quincy, Florida, 10 FCC Rcd 6112 (1995). Further, since it is not requesting a change in channel or transmitter site, petitioner states that Jewett will receive a reception service from the station once it goes on the air. Therefore, it states that the reallotment of Channel 250A to Windham will further the goals of Section 307(b) of the Communications Act by providing the larger community with its first local aural service. Technical Summary 4. Channel 250A can be allotted to Windham in compliance with the Commission's minimum distance separation requirements with a site restriction of 3.6 kilometers (2.3 miles) northwest to accommodate petitioner's desired transmitter site. Canadian concurrence in the allotment at Windham is required since the community is located within 320 kilometers (200 miles) of the U.S.-Canadian border. 5. We believe petitioner's proposal warrants consideration since the allotment of Channel 250A to Windham could provide the community with its first local aural service. We note that Windham is not located within any Urbanized Area and the station, if reallotted, will not provide service to any such area. 6. 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 Jewett, New York 250A -- Windham, New York -- 250A 7. 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. 8. Interested parties may file comments on or before January 4, 1999, and reply comments on or before January 19, 1999, 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: Dennis Jackson, President The Ridgefield Broadcasting Corp. 19 Boas Lane Wilton, CT 06897-1301 (Petitioner) 9. 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. 10. 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.