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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. 99-141) Table of Allotments, ) RM-9339 FM Broadcast Stations. ) (Monticello, Arkansas, and ) Bastrop, Louisiana) ) NOTICE OF PROPOSED RULE MAKING AND ORDER TO SHOW CAUSE Adopted: April 21, 1999 Released: April 30, 1999 Comment Date: June 21, 1999 Reply Comment Date: July 6, 1999 By the Chief, Allocations Branch: 1. Before the Commission for consideration is the petition for rule making filed on behalf of Midway Broadcasting Company ("petitioner"), licensee of Station KHBM-FM, Monticello, Arkansas, requesting the substitution of Channel 229C2 for Channel 229C3 at Monticello and modification of its authorization accordingly. Additionally, in order to accommodate the modification, petitioner requests the substitution of Channel 230A for vacant Channel 230C3 at Bastrop, Louisiana, as well as a modification of the license for Station KTRY-FM, Bastrop, currently operating on Channel 232A, to specify operation on Channel 230A at that community. As an additional option, petitioner suggests that the placement of a site restriction on vacant Channel 230C3 at Bastrop would enable it to pursue its modification plans at Monticello while preserving the Channel 230C3 allotment. Petitioner stated its intention to apply for Channel 229C2 if it is allotted to Monticello, as requested. 2. In support of its proposal petitioner advises that it is precluded from pursuing its modification by filing a one-step application due to the existence of Channel 230C3 at Bastrop. Further, petitioner advises that the FM Table of Allotments reflects that Channels 230C3 and 232A are both allotted to Bastrop. In this instance, unless Channel 230C3 is site restricted, it prevents the petitioner from achieving an upgrade on Channel 229C2 at Monticello, Arkansas. The distance between petitioner's specified site for Channel 229C2 at Monticello at coordinates 33-43-44 and 91- 34-02 and vacant Channel 230C3 at Bastrop, Louisiana, is 103.8 kilometers (64.3 miles), whereas a distance of 117 kilometers (73 miles) is required between first adjacent Class C2-C3 channels. To eliminate the short spacing deficiency, petitioner suggests the placement of a site restriction on Channel 230C3 at a location 7.1 kilometers (4.4 miles) southwest of Bastrop at coordinates 32-43-25 and 91-56-56. Alternatively, petitioner advises that if the Channel 230C3 allotment is downgraded to Channel 230A, it could be utilized at the licensed site of Station KTRY-FM at coordinates 32-49- 10 and 91-54-29. Petitioner adds that in the event Station KTRY-FM is modified to Channel 230A, it is willing to reimburse the licensee for its reasonable costs associated with the channel change, if the Commission finds it is required to do so. Accordingly, petitioner requests the issuance of an Order to Show Cause to the licensee of Station KTRY-FM. 3. In further support of its proposal, petitioner advises that its modification request would enable Station KHBM-FM to provide 1.0 mV/m service to 71,651 persons in an area comprising 8,559.5 square kilometers, representing an increase of 17,522 persons in 3,789.4 square kilometers over its authorized Class C3 facility at Monticello. Further, petitioner asserts that if Channel 230A is substituted for Channel 230C3 at Bastrop, it would enable Station KTRY-FM to provide service to 40,426 persons in 2,671.9 square kilometers, representing an increase of 6,330 persons in 922.6 square kilometers. Alternatively, petitioner adds that if Channel 230C3 is retained at Bastrop, it would provide service to 180,307 persons in 4,808.6 square kilometers from the suggested reference site, representing an increase of 146,211 persons over Station KTRY-FM's current Class A authorization. 4. In light of the above, we believe the proposal warrants consideration since the allotment of Channel 229C2 at Monticello, Arkansas, would enable Station KHBM-FM to provide an expanded service to its community of license and surrounding areas. A staff engineering analysis has determined that Channel 229C2 can be allotted to Monticello at the petitioner's proposed site located 23.3 kilometers (14.5 miles) northeast of the community at coordinates 33-43-44 and 91-34-02, provided vacant Channel 230C3 at Bastrop, Louisiana, is site restricted 7.1 kilometers (4.4 miles) southwest at coordinates 32-43-25 and 91-56-56. We note that the petitioner's suggested reference location for vacant Channel 230C3 is at a different site than KTRY-FM's license authorization on Channel 232A at Bastrop. However, as Station KTRY-FM would be required to move in any event to implement an upgrade on Channel 230C3, we do not view this option as constituting a forced relocation . See Greenville, Texas, 6 FCC Rcd 6048 (1991). 5. Additionally, as Station KTRY-FM previously requested and was granted a modification to Channel 230C3, our tentative view is that we do not believe its default in complying with the terms of the construction permit should now place a reimbursement requirement on the petitioner herein under the principles of Circleville, Ohio, 8 FCC Rcd 159 (1967), in the event Station KTRY-FM chooses to renew this option. Although Station KTRY-FM must vacate Channel 232A in any event, it is undisputed that the petitioner will benefit from the change in frequency for the Bastrop station. In recognition thereof, the petitioner has expressed a willingness to reimburse Station KTRY-FM for the reasonable costs associated with relocating to Channel 230A at its currently authorized site, if that option is selected. See, Lonoke, Arkansas and Clarksdale, Mississippi, 6 FCC Rcd 4861 (1991). We solicit comments on this issue. 6. We shall also direct an Order to Show Cause to Jamie Patrick Broadcasting, Ltd., licensee of Station KTRY-FM, Channel 232A, Bastrop, Louisiana. However, this is not a traditional Order to Show Cause pursuant to Section 1.87 of the Commission's Rules. As recited above, in view of the background surrounding the Bastrop allotment, the licensee of Station KTRY-FM is required to vacate Channel 232A, as it must be deleted from the FM Table of Allotments. Therefore, Jamie Patrick Broadcasting, Ltd. is required to choose unequivocally now which option it will pursue in response to this Order to Show Cause. Failure to respond will result in a downgrade of the current vacant allotment of Channel 230C3 to Channel 230A at Bastrop to coincide with Station KTRY-FM's current operating facilities, and Station KTRY-FM's license will be modified accordingly. 7. In view of the above, we seek comments on the optional amendments to the FM Table of Allotments, Section 73.202(b) of the Commission's Rules, for the communities listed below, as follows: Option I Channel No. City Present Proposed Monticello, Arkansas 228A, 260C3 229C2,260C3 Bastrop, Louisiana 230C3, 232A, 230A, 247A, 261C2 247A, 261C2 Option II Monticello, Arkansas 228A, 260C3 229C2, 260C3 Bastrop, Louisiana 230C3, 232A, 230C3, 247A, 261C2 247A, 261C2 8. Accordingly, IT IS ORDERED, That pursuant to Section 316(a) of the Communications Act of 1934, as amended, Jamie Patrick Broadcasting, Ltd., licensee of Station KTRY-FM, Bastrop, Louisiana, SHALL SHOW CAUSE why its license should not be modified to specify operation on Channel 230A at Bastrop, Louisiana. 9. Jamie Patrick Broadcasting, Ltd. may, not later than June 21, 1999, file a written statement showing with particularity why its license should not be modified as proposed in the Order to Show Cause. If no written statement is filed by the date referred to above, Jamie Patrick Broadcasting, Ltd.. will be deemed to have consented to the modification as proposed in the Order to Show Cause and a final Order will be issued by the Commission to that effect. 10. IT IS FURTHER ORDERED, That the Commission's Office of Public Affairs, Reference Operations Division, SHALL SEND a copy of this Order by Certified Mail, Return Receipt Requested, to the following: Jamie Patrick Broadcasting, Ltd. Community Radio Network, Inc. 328 West Madison Avenue and 539 W. Gaines Bastrop, LA 71220 Monticello, AR 71655 (Licensee of Station KTRY-FM) (Proposed assignee of Station KHBM-FM) 11. 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. 12. Interested parties may file comments on or before June 21, 1999, and reply comments on or before July 6, 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's counsel, as follows: Gary S. Smithwick, Esq. Smithwick & Belendiuk, P.C. 1990 M Street, N.W. Suite 510 Washington, D.C. 20036 13. 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. 14. 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 Information Center (Room CY-A257), at its headquarters, 445 Twelfth Street, SW., Washington, D.C.