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Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Amendment of Section 73.202(b), ) MM Docket No. 99-330 Table of Allotments, ) RM-9677 FM Broadcast Stations. ) (Kankakee and Park Forest, Illinois) ) NOTICE OF PROPOSED RULE MAKING Adopted: December 8, 1999; Released: December 15, 1999 Comment Date: February 7, 2000 Reply Comment Date: February 22, 2000 By the Chief, Allocations Branch: 1. The Commission has before it the petition for rule making filed by Gene Milner Broadcasting Company, Inc. ("petitioner"), licensee of Station WRZA(FM), Channel 260B, Kankakee, Illinois, proposing the reallotment of Channel 260B from Kankakee to Park Forest, Illinois, and the modification of Station WRZA(FM)'s license accordingly. Petitioner states its intention to apply for the channel, if reallotted to Park Forest. 2. Petitioner seeks to invoke 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 Modification of FM and TV Authorizations to Specify a New Community of License, 4 FCC Rcd 4870 (1989), recon. granted in part, 5 FCC Rcd 7094 (1990). In support of the proposal, petitioner states that Park Forest is an incorporated village in northeastern Illinois with a 1990 U.S. Census population of 24,656. It has a full complement of schools, churches and parks. 3. We note that Station WRZA(FM) is a pre-1964-grandfathered short-spaced station and that this grandfathered short-spacing should not preclude the proposed community switch. Petitioner contends that its proposed reallotment does not involve the relocation of WRZA(FM)'s transmitter, and therefore, no new short-spacings will be created or exacerbated. While the petitioner does not propose to change the transmitter site for Station WRZA(FM), we note that this proposed reallotment and change of community of license from Kankakee to Park Forest will continue six pre- existing, short-spacings under the minimum distance separation requirements. Six of these short- spacings are to other pre-1964 grandfathered stations as follows: Station WUSN(FM), Channel 258B, Chicago, Illinois, Station WSHW(FM), Channel 259B, Frankfort, Indiana, Station WHFB-FM,. Channel 260B, Benton Harbor, Michigan, Station WTHI-FM, Channel 260B, Terre Haute, Indiana, Station WJVL(FM), Channel 260B1, Janesville, Wisconsin, and Station WNND(FM), Channel 262B, Chicago, Illinois. The remaining two-short-spacings are to stations with authorizations under Section 73.215 that are permitted to be short-spaced to WRZA(FM) provided that they provide contour protection or use directional antennas. These stations are Station WIXO(FM), Channel 260A, Bartonville, Illinois, and Station WGLC(FM), Channel 261A, Mendota, Illinois. 4. In Newnan and Peachtree City, Georgia, 7 FCC Rcd 6307 (1992), the Commission reallotted Channel 244A from Newnan to Peachtree City and modified the license of Station WJKJ(FM) to specify Peachtree City as the new community of license. Station WJKJ(FM) was a "grandfathered" station (pre- 1964, before the new spacing requirements) that did not meet the current spacing requirements set forth in Section 73.207 of the Commission's Rules. The proposal in Newnan and Peachtree, supra, did not involve any change in the technical facilities of Station WJKJ(FM). In taking that action, we recognize that we were creating a new short-spaced allotment in the contravention of Section 73.207 of the Commission's Rules. Our rationale for that action was that "grandfathered" FM stations were in compliance with our Rules when authorized and should be afforded the same opportunity to change their community of license as other stations authorized in conformity with our Rules. Recently, we decided to sustain this policy. We held that pre-1964 "grandfathered" short-spaced stations should be afforded the opportunity to change their communities of license. See Oceanside and Encinitas, California, MM Docket No. 99-170, (released September 10, 1999); 64 FR 54224, October 6, 1999. Consistent with Oceanside and Encinitas, we will propose to reallot and change the community of license for Station WRZA(FM) from Kankakee to Park Forest in spite of these short-spacings where there was no transmitter site change and the short-spacings were "grandfathered" before 1964. In conformance with Oceanside and Encinitas, we believe that the pre-1964 short-spacings do not present technical impediments to the acceptability of this proposal because the proposed reallotment does not involve the relocation of Station WRZA(FM), transmitter site and, therefore, no new short-spacings will be created. Nevertheless, we request that the petitioner document that each of the six short-spacings referenced existed prior to 1964. In addition, we solicit comments regarding the remaining short-spacings involving stations that appear to have moved on a short-spaced basis toward Station WRZA(FM) using Section 73.215 of the Rules. This identical issue was recently raised in Killeen and Cedar Park, Texas, in MM Docket No. 98-176. See 13 FCC Rcd 18790 (1998). Accordingly, we request that the petitioner submit comments addressing the nature and extent of these remaining short-spacings. We specifically request comments on whether these short-spacings arose entirely under Section 73.215 and/or occurred in part prior to 1989 under the 3kW-spacing rules. Comments are solicited as to why these remaining short-spacings should be treated like the pre-1964 grandfathered short-spacings. 5. Channel 260B can be allotted to Park Forest, Illinois, at petitioner's current licensed site. At this site, Station WRZA(FM) will remain short-spaced to Station WUSN(FM), Channel 258B, Chicago, Illinois, Station WSHW(FM), Channel 259B, Frankfort, Indiana, Station WHFB-FM, Channel 260B, Benton Harbor, Michigan, Station WTHI-FM, Channel 260B, Terre Haute, Indiana, Station WJVL(FM), Channel 260B1, Janesville, Wisconsin, Station WIXO(FM), Channel 260A, Bartonville, Illinois, and Station WNND(FM), Channel 262B, Chicago, Illinois, and Station WGLC(FM), Channel 261A, Mendota, Illinois. As requested, we shall propose to modify Station WRZA(FM)'s license to specify Park Forest, Illinois, as its new community of license. In accordance with Section 1.420(i) of the Commission's Rules, we shall not accept competing expressions of interest in the use of Channel 260B at Park Forest, Illinois. 6. While the petitioner claims that its proposal will result in a preferential arrangement of allotments as a first local transmission service to Park Forest, we note that the petitioner is proposing to reallot and change its community of license for Station WZRA(FM) from Kankakee, a community located outside of the Chicago, Illinois Urbanized Area and the central city of its own Urbanized Area, to Park Forest, a community located within the Chicago, Illinois Urbanized Area. We also recognize that the petitioner is not planning to change its transmitter site and will continue to provide a city-grade signal to 100% of the Kankakee, Illinois Urbanized Area, 10% of the Chicago, Illinois Urbanized Area, and less than 40% of the Joliet, Illinois Urbanized Area. Nevertheless, we will require the petitioner to submit a Huntington-Tuck showing that Park Forest is sufficiently independent of the Chicago, Illinois Urbanized Area to warrant a first local service preference. The reason for this approach is that, even though no facility change is involved, where a proposed community is either 100% within an Urbanized Area or only partially within such area, we have applied the Huntington-Tuck doctrine to the proposal. See e.g., Malvern and Bryant, Arkansas, 14 FCC Rcd 3576 (1999) (Tuck showing required where proposed community is partially within the relevant Urbanized Area even though the station would only provide a city grade signal to less than 1% of the Urbanized Area). By way of contrast, no Tuck showing will be required regarding the Joliet, Illinois Urbanized Area because Park Forest is located outside of this Urbanized Area and because the station's city-grade signal will cover less than 50% of this Urbanized Area. See Headland, Alabama and Chattahoochee, Florida, 10 FCC Rcd 10352 (1995). Likewise, even though Park Forest is located outside the Kankakee, Illinois Urbanized Area and the level of city-grade coverage is 100%, we will not require a Tuck showing with respect to the Kankakee, Illinois Urbanized Area because the station is not changing its transmitter site and because it is not a migration to this Urbanized Area. Indeed, the station is currently licensed to the central city of this Urbanized Area. Finally, in view of the fact that no facility change is planned and that the level of city- grade coverage over the Chicago, Illinois Urbanized Area is low, the petitioner may also submit arguments as to why the Huntington-Tuck policies should not be applicable in this case. 7. In view of the fact that the proposed allotment would provide a first local service to Park Forest without depriving Kankakee of its sole local service, the Commission believes it would serve the public interest to solicit comments on the proposal to allot Channel 260B to Park Forest, Illinois. Therefore, 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: City Channel No. Present Proposed Kankakee, Illinois 224A, 236A, 260B 224A, 236A Park Forest, Illinois --- 260B 8. 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. 9. Interested parties may file comments on or before February 7, 2000, and reply comments on or before February 22, 2000, 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 petitioners, or their counsel or consultants, as follows: Dennis J. Kelly, Esq., Post Office Box 6658, Annapolis, Maryland 21401 (Counsel for Petitioner). 10. 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. 11. For further information concerning this proceeding, contact Sharon P. McDonald, 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 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 Information Center (Room CY-A257) at its headquarters, 445 12th Street, S.W., Washington, D.C.