Before the Federal Communications Commission Washington, D.C. 20554 ) In the Matter of ) ) Amendment of Section 73.202(b), ) MM Docket No. 99-342 Table of Allotments, ) RM-9773 FM Broadcast Stations. ) (George West and Pearsall, Texas) ) NOTICE OF PROPOSED RULE MAKING AND ORDER TO SHOW CAUSE Adopted: November 24, 1999 Released: December 3, 1999 Comment Date: January 24, 2000 Reply Date: February 8, 2000 By the Chief, Allocations Branch 1. Before the Commission for consideration is a Petition for Rule Making filed on behalf of John R. Furr ("Furr"), permittee of Channel 281A at Pearsall, Texas. Furr requests the substitution of Channel 281C1 for Channel 281A at Pearsall, Texas, and modification of his authorization for Channel 281A to specify operation on the higher class channel. To accommodate the upgrade at Pearsall, Furr also requests the substitution of Channel 265A for Channel 281A at George West, Texas. Furr stated that he will promptly file the appropriate application for Channel 281C1 at Pearsall. 2. In support of the proposal, Furr states that he holds a recently issued construction permit, BPH- 960926MF, for Channel 281A which authorizes him to serve the community of Pearsall, Texas, with a Class A facility. Furr states that he can upgrade the Class A channel to Class C1 status, representing a more efficient use of FM broadcast spectrum. To accommodate the C1 facility at Pearsall, Furr requests the substitution of Channel 265A for Channel 281A at George West, Texas, and modification of the construction permit for Channel 281A to specify operation on Channel 265A. Furr states his intent to reimburse the permittee for Channel 265A at George West for the reasonable and prudent expenses associated with the channel substitution in accordance with Commission policy described in Circleville, Ohio. Furr contends that grant of the channel substitutions and modifications requested will permit expanded service at both communities with the allotment of a C1 facility at Pearsall and a six kilowatt Class A facility at George West. 3. We believe the public interest would be served by proposing the substitution of Channel 281C1 for Channel 281A at Pearsall, Texas, and modification of the authorization for Channel 281A to specify Channel 281C1. To accommodate the allotment at Pearsall, we shall also propose the substitution of Channel 265A for Channel 281A at George West, Texas, and modification of the authorization for Channel 281A to specify operation on Channel 265A. A staff engineering analysis indicates that the proposed allotments can be made in compliance with the Commission's spacing requirements. Since Pearsall and George West are located within 320 kilometers of the U.S.-Mexican border, concurrence of the Mexican Government will be requested for the allotment of Channel 281C1 at Pearsall and Channel 265A at George West. In accordance with Section 1.420(g) of the Commission's Rules, we will not accept competing expressions of interest for the use of Channel 281C1 at Pearsall. With respect to Channel 265A at George West, the Commission's Rules do not contemplate the filing of expressions of interest in proceedings, such as this one, which seek to make equivalent channel substitutions. 4. We shall direct an Order to Show Cause to Four M.L. Broadcasting, permittee of Channel 281A at George West, Texas, as to why its authorization should not be modified to specify operation on Channel 265A in lieu of Channel 281A. 5. Whenever an existing licensee or permittee is ordered to change frequency to accommodate a new channel allotment, Commission policy requires the benefitting party, or parties, to reimburse the affect station for costs incurred. See Circleville, Ohio, 8 FCC 2d 159 (1967). Furr has stated his willingness to reimburse the permittee of Channel 281A, George West, for reasonable costs associated with moving to Channel 265A. 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. Community Present Proposed George West, Texas 228C3, 281A 228C3, 265A Pearsall, Texas 237A, 281A 237A, 281C1 7. Accordingly, IT IS ORDERED, That pursuant to Section 316(a) of the Communications Act of 1934, as amended, Four M. L. Broadcasting, permittee of Channel 281A, George West, Texas, SHALL SHOW CAUSE why its permit SHOULD NOT BE MODIFIED to specify operation on Channel 265A as proposed herein instead of the present Channel 281A. 8. Pursuant to Section 1.87 of the Commission's Rules, Four M. L. Broadcasting, may not later than January 24, 2000, file a written statement showing with particularity why its permit should not be modified as proposed in the Order to Show Cause. The Commission may call on Four M. L. Broadcasting to furnish additional information. If Four M. L. Broadcasting raises a substantial and material question of fact, a hearing may be required to resolve such a question pursuant to Section 1.87. Upon review of the statements and/or additional information furnished, the Commission may grant the modification, deny the modification, or set the matter of modification for hearing. If no written statement is filed by the date referred to above, Four M. L. Broadcasting 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, if the above-mentioned channel modification is ultimately found to be in the public interest. 9. IT IS FURTHER ORDERED, That the Secretary Shall Send, by Certified Mail, Return Receipt Requested, a copy of this Notice of Proposed Rule Making to the following: Four M. L. Broadcasting 115 West Avenue "D" Robstown, Texas 78380 (permittee for Channel 281A, George West, TX) 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 January 24, 2000, and reply comments on or before February 8, 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 petitioner's counsel, as follows: John J. McVeigh 1201 Blue Paper Trail Columbia, Maryland 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 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. 13. For further information concerning this proceeding contact Kathleen Scheuerle, 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 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 this proceeding. FEDERAL COMMUNICATIONS COMMISSION John A. Karousos Chief, Allocations Branch Policy and Rules Division Mass Media Bureau 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 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, 445 Twelfth Street, S.W., 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 at its headquarters, 445 Twelfth Street, S.W., Washington, D. C.