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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), ) Table of Allotments, ) FM Broadcast Stations. ) (Hershey, Nebraska) ) MM Docket No. 99-161 ) RM-9565 ) (Sutherland, Nebraska ) ) MM Docket No. 99-162 ) RM-9566 ) (Jackpot, Nevada ) ) MM Docket No. 99-163 ) RM-9595 ) (Mitchell, Nebraska) ) MM Docket No. 99-164 ) RM-9598 ) (Lovelock, Nevada), ) MM Docket No. 99-165 ) RM-9599 ) (Elko, Nevada) ) MM Docket No. 99-166 ) RM-9600 ) NOTICE OF PROPOSED RULE MAKING Adopted: May 5, 1999 ; Released: May 14, 1999 Comment Date: July 6, 1999 Reply Comment Date: July 21, 1999 By the Chief, Allocations Branch: 1. Before the Commission for consideration is a multiple docket Notice of Proposed Rule Making setting forth separate proposals to amend the FM Table of Allotments, Section 73.202(b) of the Rules. Each petitioner has stated that it will apply for its requested channel, if allotted. We believe that each proposal warrants consideration because it complies with our technical requirements and would serve the public interest. 2. This is a multiple docket Notice of Proposed Rule Making issued in response to a Commission Public Notice released October 2, 1998 (DA 98-1987). We are combining separate FM allotment proposals into a single Notice of Proposed Rule Making. Each proposal has its own docket and rule making number and the Commission's Reference Center will maintain a separate file for each docket. As discussed in the Public Notice, this procedure will conserve Commission resources and expedite the processing of FM allotment petitions for rule making by avoiding duplicative actions. We request comments and/or counterproposals to the following proposals: A. MM Docket No. 99-161, RM-9565 Petitioner: Mountain West Broadcasting Victor A. Michael, Jr. President, Mountain West Broadcasting 6807 Foxglove Drive Cheyenne, WY 82009 Proposal: Allot Channel 297C1 to Hershey, Nebraska, as the community's first local aural transmission service. Community Present Proposed Hershey, Nebraska -- 297C1 Coordinates: 41-09-30 NL and 101-00-00 WL Additional Information: This allotment does not require a site restriction. FCC Contact: Leslie K. Shapiro, (202) 418-2180 B. MM Docket No. 99-162, RM-9566 Petitioner: Mountain West Broadcasting Victor A. Michael, Jr. President, Mountain West Broadcasting 6807 Foxglove Drive Cheyenne, WY 82009 Proposal: Allot Channel 264C1 to Sutherland, Nebraska, as the community's first local aural service. Community Present Proposed Sutherland, Nebraska -- 264C1 Coordinates 41-09-30 NL and 101-07-36 WL Additional Information: This allotment does not require a site restriction. FCC Contact: Leslie K. Shapiro, (202) 418-2180 C. MM Docket No. 99-163, RM-9595 Petitioner: Mountain West Broadcasting Victor A. Michael, Jr. President, Mountain West Broadcasting 6807 Foxglove Drive Cheyenne, WY 82009 Proposal: Allot Channel 287C1 to Jackpot, Nevada, as the community's first local aural service. Community Present Proposed Jackpot, Nevada -- 287C1 Coordinates: 41-59-06 NL; 114-40-18 WL Additional Information: This allotment does not require a site restriction. Section 307(b) of the Communications Act of 1934, as amended, mandates that the Commission fairly, equitably, and efficiently distribute frequencies " . . . among the several States and communities." The Commission has defined "communities" as geographically identifiable population groupings. Generally, if a community is incorporated or is listed in the U.S. Census, that is sufficient to satisfy its status. Absent such recognizable community factors, the proponent of a channel allotment must demonstrate the place to be a geographically identifiable population grouping. Revision of FM Assignment Policies and Procedures, 90 FCC 2d 88, 101 (1982). Although the proponent of the allotment does not need to show that the borders of the locality are precisely delineated, it must show that residents of the locality are commonly regarded as a distinct group. This can be proven by the testimony of local residents or by objective or subjective evidence indicating the existence of a community. Beacon Broadcasting, 2 FCC Rcd 3469 (1987), aff'd. 2 FCC Rcd 7562 (1987). Some examples of objective indications of community status include the existence of political, social, economic, commercial, cultural or religious organizations and services in the community. See Kenansville, Florida, 5 FCC Rcd 2663 (Policy & Rules Div. 1990), aff'd 10 FCC Rcd 9831 (1995). While "Jackpot Division," which the U.S. Census defines as a county subdivision, is listed in the Census and attributed with a population of 1,159 persons, there is no listing for Jackpot itself as a community. We note that the 1998 Rand McNally Commercial Atlas does have a listing for Jackpot and attributes it with a population of 570 people. Therefore, since Jackpot is not listed in the Census, and based upon the petitioner's initial presentation, we cannot determine its community status under the Beacon Broadcasting or Kenansville test. Therefore, petitioner is requested to provide additional information regarding the attributes of Jackpot consistent with the above guidelines. Failure to provide the requested information will result in a denial of the proposal. FCC Contact: Leslie K. Shapiro, (202) 418-2180 D. MM Docket No. 99-164, RM-9598 Petitioner: Mountain West Broadcasting Victor A. Michael, Jr. President, Mountain West Broadcasting 6807 Foxglove Drive Cheyenne, WY 82009 Proposal: Allot Channel 257A to Mitchell, Nebraska, as the community's first local aural service. Community Present Proposed Mitchell, Nebraska -- 257A Coordinates: 41-56-36 NL; 103-48-30 WL. Additional Information: This allotment does not require a site restriction. FCC Contact: Leslie K. Shapiro, (202) 418-2180 E. MM Docket No. 99-165, RM-9599 Petitioner: Mountain West Broadcasting Victor A. Michael, Jr. President, Mountain West Broadcasting 6807 Foxglove Drive Cheyenne, WY 82009 Proposal: Allot Channel 292C1 to Lovelock, Nevada, as the community's first local aural service. Community Present Proposed Lovelock, Nevada -- 292C1 Coordinates: 40-10-48 NL; 118-28-24 WL. Additional Information: This allotment does not require a site restriction. FCC Contact: Leslie K. Shapiro, (202) 418-2180 F. MM Docket No. 99-166, RM-9600 Petitioner: Mountain West Broadcasting Victor A. Michael, Jr. President, Mountain West Broadcasting 6807 Foxglove Drive Cheyenne, WY 82009 Proposal: Allot Channel 248C1 to Elko, Nevada, as the community's fifth local aural service. Community Present Proposed Elko, Nevada 229C2, 233C3, 237C1 229C2, 233C3, 237C1, 248C1 Coordinates: 40-49-48 NL; 115-45-36 WL. Additional Information: This allotment does not require a site restriction. FCC Contact: Leslie K. Shapiro, (202) 418-2180 3. Comments, reply comments, counterproposals and other pleadings filed in response to this multiple docket Notice of Proposed Rule Making should reference only the specific docket to which the filing pertains. 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 in paragraph 2 of the Appendix before a channel will be allotted. 4. Interested parties may file comments on or before February 8, 1999, and reply comments on or before February 23, 1999, and are advised to read the Appendix for the proper procedure. Additionally, a copy of any filing should be served on the petitioner listed for the particular docket. 5. The Commission has determined that the relevant provisions of the Regulatory Flexibility Act of 1980 do not apply to a rule making proceeding to amend the FM Table of Allotments, Section 73.202(b) of the Commission's Rules. See Certification that Section 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). 6. For further information concerning a proceeding listed above, contact the FCC contact listed for that proceeding. 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 in the applicable docket 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 any summary of any new information shall be served by the person making the presentation upon the other parties to the proceeding in particular docket 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 Office of the Secretary, Federal Communications Commission, 445 12th Street, S.W.; TW-A325, 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.