******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect or Word to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. 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), FM Table of Allotments, FM Broadcast Stations. (Point Arena, Cloverdale, California) ) ) ) ) ) ) MM Docket No. 00-59 RM-9734 NOTICE OF PROPOSED RULE MAKING Adopted: March 22, 2000 Released: March 31, 2000 Comment Date: May 22, 2000 Reply Comment Date: June 6, 2000 By the Chief, Allocations Branch: 1. The Allocations Branch has before it a petition for rule making filed by Point Broadcasting ("petitioner"), permittee of an FM station on Channel 296B1 at Point Arena, California, requesting to substitute Channel 296A for 296B1 at Point Arena, reallot Channel 296A to Cloverdale, California, as the community's first local aural transmission service, and modify petitioner's authorization accordingly. Cloverdale is also the subject of a rule making proceeding in MM Docket No. 99-180 in which Mountain West Broadcasting requests that the Commission allot Channel 274A at Cloverdale. See Notice of Proposed Rule Making in MM Docket No. 99-180, DA No. 99-971 64 FR 30291 (1999). Petitioner filed a counterproposal in that docket requesting that Channel 274A be allotted to Cazadero, California, in lieu of Cloverdale. In view of the fact that our resolution of this proceeding may affect the outcome of MM Docket No. 99-180, it may be necessary ultimately to combine these dockets into a single Report and Order. 2. In support of its proposal herein, petitioner states that the reallotment of Channel 296A from Point Arena to Cloverdale would result in a preferential arrangement of allotments because Point Arena (1990 population 407 persons) is a smaller community than Cloverdale (1990 population 4,924 persons), and that Point Arena has another FM channel allotted, Channel 272B1, with an application, filed by Del Mar Trust, pending. In further support of its proposal, petitioner states that Cloverdale is an incorporated community, and it attaches to its petition a listing from the Cloverdale Chamber of Commerce which shows businesses, organizations, churches schools, and an auxiliary fire department, located in Cloverdale. 3. Petitioner argues that the Commission should consider its proposal herein because it will result in a preferential arrangement of allotments regardless of the outcome in MM Docket 99-180. Petitioner states that if its counterproposal in MM Docket No. 99-180 for Cazadero is successful, its proposal for Cloverdale in this proceeding will provide the first local aural transmission service at Cloverdale, which would serve priority three of the FM Allotment priorities, and thus be preferred. On the other hand, it notes, in the event its counterproposal for Cazadero is unsuccessful, and the Commission grants the petition to allot Channel 274A at Cloverdale, its petition herein should also be granted because Cloverdale, as the larger, more established community, is more deserving of a first competitive service than Point Arena. 4. We believe that petitioner's proposal warrants consideration since the proposal could provide the community of Cloverdale with its firstor second local aural transmission service. An engineering analysis shows that Channel 296A can be allotted at Cloverdale at the petitioner's requested site 0.8 kilometers (0.5 miles) south of the community. 5. Accordingly, we seek comment of 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. City Present Proposed Point Arena 296B1, 298B1 298B1 Cloverdale --- 296A 6. 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. 7. Interested parties may file comments on or before May 22, 2000, and reply comments on or before June 6, 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, or its counsel or consultant, as follows: Jerrold Miller Miller & Miller, P.C. P.O. Box 33003 Washington, D.C. 20033 And Victor A. Michael, Jr. Mountain West Broadcasting 6807 Foxglove Drive Cheyenne, WY 82009 (Petitioner in MM Docket 99-180) 8. 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. 9. For further information concerning this proceeding, contact Victoria M. McCauley, 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 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, at its headquarters, 445 12th Street, S.W., Washington, D.C.