(n1)(n2)(n3) DA 95-74

Before the
Federal Communications Commission
Washington, D.C.

In the matter of:

Amendment of Section 73.202(b

,
NOTICE OF PROPOSED RULE MAKING

MM Docket No.95-12
Table of Allotments,
RM-8559
FM Broadcast Stations.
(Hudson, Texas
Adopted: January 18, 1995 ; Released:January 27, 1995
Comment Date:March 20, 1995
Reply Comment Date:April 4, 1995
By the Chief, Allocations Branch:
1. The Commission has before it the petition for rule making filed
by Phil Parr ("petitioner"
, requesting the allotment of Channel 242A to Hudson, Texas, as the community's first local aural transmission service. Petitioner states he will apply for the channel, if allotted.
2. In support of his proposal, petitioner states that Hudson has a city government comprised of an elected mayor and city council. In addition, petitioner notes that Hudson has a fire department, a public school system and numerous businesses.
3. We believe the public interest would be served by proposing the allotment of Channel 242A to Hudson
since it could provide the community with its first local FM service. Channel 242A can be allotted to Hudson in compliance with the Commission's minimum distance separation requirementswithout the imposition of a site restriction
4. 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 community listed below, to read as follows:
City
Channel No.
Present
Proposed
Hudson, Texas -- 242A
5. 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.
6. Interested parties may file comments on or before March 20, 1995,
and reply comments on or before April 4, 1995, 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:
Phil Parr
1604 Southwood
Lufkin, Texas 75904
(Petitioner
7. 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.
8. For further information concerning this proceeding, contact
Pam Blumenthal, Mass Media Bureau, (202
634-6530. 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 prohibitedif 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

MM Docket No.95-12
RM-8559

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 pleading. 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 pleading. 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 copiesof all comments, reply comments, pleading, briefs, or other documents shall befurnished 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 Public Reference Room at its headquarters, 1919 M Street, N.W., Washington, D.C.


APPENDIX

Footnote 1 Although petitioner's request indicates that the original copy of his proposal was signed, petitioner failed to include an affidavit verifying that the statements contained in his petition were accurate to the best of his knowledge. Section 1.52 of the Commission's Rules requires that the original of any document filed with the Commission by a party not represented by counsel be signed and verified by the party and his/her address stated. In the absence of such verification, the petition may be dismissed. Section 1.40(b) of the Commission's Rules concerning rule making proceedings places petitioners on notice that their proposal must conform with the requirements of Section 1.52 regarding subscription and certification. See also Amendment of Section 1.420 and 73.3584 of the Commission's Rules Concerning Abuses of the Commission's Processes, 5 FCC Rcd 3911, n.42 (1990). Petitioner is requested to rectify this omission in his comments.

Footnote 2 According to the 1990 U.S. Census, Hudson has a population of 2,374 persons.

Footnote 3 The coordinates for Channel 242A at Hudson are North Latitude 31-23-50 and West Longitude 94-46-15. Petitioner proposed coordinates North Latitude 31-20-30 and West Longitude 94-48-30 with a site restriction of 7.12 kilometers (4.42 miles). However, the Commission generally does not protect a prospective applicant's desired transmitter site for a new allotment if a less restrictive is available, as there is no guarantee that the petitioner will ultimately become the licensee. Therefore, we will not consider petitioner's site, and advance a less restrictive site for the allotment of Channel 242A at Hudson, Texas.