Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Amendment of Section 73.606(b) MM Docket No. 99-45) Table of Allotments, ) RM-9401 TV Broadcast Stations. ) (El Dorado and Camden, Arkansas) ) NOTICE OF PROPOSED RULE MAKING Adopted: January 27, 1999 Released: February 5, 1999 Comment Date: March 29, 1999 Reply Comment Date: April 13, 1999 By the Chief, Allocations Branch: 1. Before the Commission for consideration is a petition for rule making filed on behalf of Equity Broadcasting Corporation ("petitioner"), permittee for Station KKYK-TV, Channel 49, El Dorado, Arkansas, seeking the reallotment of Channel 49 from El Dorado to Camden, Arkansas, as that community's first local television service. Petitioner stated its intention to file an application to specify the new community of license if Channel 49 is reallotted to Camden, as requested. 2. Petitioner seeks to invoke the provisions of 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 (1989), recon. granted in part "Change of Community MO&O"), 5 FCC Rcd 7094 (1990). In support of its proposal, petitioner states that the requested reallotment of Channel 49 to Camden is mutually exclusive with its existing authorization at El Dorado as it does not intend to relocated from its currently authorized site. 3. In further support of the proposal, petitioner states that the requested reallotment of Channel 49 to Camden would result in a preferential arrangement of allotments (Change of Community R&O at 4873), as it would provide a first local television transmission facility to Camden while retaining television service at El Dorado. See Johnstown and Jeannette, Pennsylvania, 12 FCC Rcd 10300 (1997). 4. Additionally, petitioner advises that Camden is not part of any urbanized area and is a bona fide community for allotment purposes. In support of its assertion of community status, petitioner advises that Camden (population 14,380), the seat of Ouachita County, has a mayor and city manager form of government. Moreover, Camden has its police and fire department, post office, zip code and library. Further, Camden has two newspapers, its own public school system, churches, a Chamber of Commerce, and numerous civic and community groups. Camden was also designated as a Primary Business Center by Rand McNally in 1995. 5. As this proposal does not contemplate a change in the authorized site for Station KKYK- TV, the predicted community contour (80 dBu) of the proposed station at Camden will remain the same, and there will be no change in the area or population served. Therefore, the requested reallotment of Channel 49 from El Dorado to Camden will not create any white or grey area or any change in service. 6. Petitioner also advises that as the construction permit for Station KKYK-TV was issued after the cut-off date established in the Commission's Sixth Report and Order on Digital Television Service, 12 FCC Rcd 14588, 14593 (1997), it did not qualify for a pre-designated DTV allotment. Therefore the DTV Table contained in Section 73.622(b) of the Commission's Rules will not be affected by this proposal since those allotments were made protecting Channel 49 at its current site, and petitioner is not requesting herein the allotment of a paired DTV channel for Camden. Rather, we need only consider an analysis of the Channel 49 NTSC allotment vs. those set forth in Section 73.606(b) of the Commission's Rules. 7. Based upon the information presented, we believe the proposal warrants consideration since the reallotment of Channel 49 from El Dorado to Camden could provide the latter community with its first local television transmission facility without depriving El Dorado of local television service. As Station KKYK-TV does not seek to relocate its transmitter site, the reallotment proposal will not result in any gain or loss areas. Therefore, since the petitioner's proposal is consistent with the provisions of Section 1.420(i) of the Commission's Rules, we shall propose to modify the authorization of Equity Broadcasting Corporation for Station KKYK-TV (File No. BPCT-970331LJ) to specify its operation on Channel 49 at Camden, Arkansas, without entertaining other expressions of interest. 8. A staff engineering study has confirmed that Channel 49 can be allotted to Camden, Arkansas, consistent with the minimum distance separations specified in Sections 73.610 and 73.698 of the Commission's Rules, and meets the city grade contour coverage requirement set forth in Section 73.685, utilizing the petitioner's currently authorized transmitter site located 36.8 kilometers (22.9 miles) south of Camden at coordinates 33-16-19 NL and 92-42-11 WL. Moreover, the proposal will not impact on the present DTV allotment table. 9. In light of the above, we shall solicit comments on the proposed amendment to the TV Table of Allotments, Section 73.606(b) of the Commission's Rules, with respect to the communities listed below, as follows: Channel No. City Present Proposed Camden, Arkansas -- 49- El Dorado, Arkansas 10-, *30+, 10-, *30+, 43- 43-, 49- 10. 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. 11. Interested parties may file comments on or before March 29, 1999, and reply comments on or before April 13, 1999, 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, S.W.; TW-A325, Washington, D.C. 20554. Additionally, a copy of such comments should be served on the petitioner's counsel, as follows: Mark N. Lipp, Esq. Scott C. Cinnamon, Esq. Shook, Hardy & Bacon 1850 K Street, N.W., Suite 900 Washington, DC 20036 12. 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 TV Table of Allotments, Section 73.606(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. 13. 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 TV Table of Allotments, Section 73.606(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.