DA 95-1157 Federal Communications Commission Record 10 FCC Red No. 12 will provide service to 1,960,358 persons, as compared to Before the the present service to 1,760,191 persons at Homestead©s Federal Communications Commission currently licensed Class Cl facility. There will be a net Washington, D.C. 20554 population gain of 200,167 persons within the city grade service contour, and 34,037 persons will lose service. Peti tioner further notes that it has not operated with its li censed facility since Hurricane Andrew destroyed its tower MM Docket No. 95-76 in August 1992, WXDJ has been operating from temporary facilities since the hurricane. Therefore, the people losing In the Matter of service have not actually received service from Station WXDJ(FM) for two years, since the temporary facility does Amendment of Section 73.202(b), RM-8611 not provide service to any of the 34,037 persons theoreti cally losing service. Petitioner also claims that all of the Table of Allotments, area losing service from WXDJ will receive at least two FM FM Broadcast Stations. signals, because the entire area served by Station WXDJ is (Homestead and North Miami also served by Station WMCU(FM), Miami, Florida and Beach, Florida) Station WRTO(FM), Goulds, Florida. 3. In further support of its proposal petitioner states that North Miami Beach is an incorporated community with a NOTICE OF PROPOSED RULE MAKING 1990 U.S. Census population of 35,359 persons. North Miami Beach is an independent community with its own Adopted: May 30,1995; Released: June 9,1995 unique needs and attributes. It has its own mayor, city council, daily newspaper, and chamber of commerce. Its By the Chief, Allocations Branch: local government is responsible for providing many of the city©s civil services, including its own local police and Comment Date: July 31, 1995 library services. Whereas, Homestead is interdependent with the Miami-Hialeah Urbanized Area because its relies Reply Comment Date: August 15, 1995 on central Miami for most of its goods and services. 4. Based on the information before us, we are unable to 1. The Commission has before it for consideration a determine whether petitioner©s proposal would result in a petition for rule making filed by New Age Broadcasting, preferential arrangement of allotments. However, we be Inc., ("petitioner"), licensee of Station WXDJ(FM), Chan lieve the proposal warrants consideration since, it would nel 239C1, Homestead, Florida, proposing the downgrade not deprive Homestead of its only local aural transmission of its station from Channel 239C1 to Channel 239C2, the service, and its use is mutually exclusive with that of North reallotment of Channel 239C2 from Homestead to North Miami Beach. Since Homestead and North Miami Beach Miami Beach, Florida, and the modification of Station are both located in the Miami Hialeah Urbanized Area, we WXDJ(FM)©s license to specify North Miami Beach as its question whether North Miami Beach is deserving of a community of license. local service preference, or whether it should be credited 2. Petitioner seeks to invoke the provisions of Section with all of the aural services licensed to the Miami Hialeah 1.420(i) of the Commission©s Rules, which permit the Urbanized Area. See RKO General (KFRC), 5 FCC Red modification of a station©s authorization to specify a new 3222 (1990) and Faye and Richard Tuck, 3 FCC Red 5374 community of license without affording other interested (1988). In addition, we acknowledge petitioner©s claim that parties an opportunity to file competing expressions of its proposal will provide service to a larger population, we interest. See Modification of FM and TV Authorizations to must take into account the fact that existing service will be Specify a New Community of License ("Modification"), 4 deleted from a community. With respect to evaluating pro FCC Red 4870 (1989), recon. granted in part, 5 FCC Red posals to change the community of license, the Commis 7094 (1990). Petitioner states that the requested reallotment sion has stated, "The public has a legitimate expectation to North Miami Beach is mutually exclusive with the that existing service will continue, and this expectation is a existing allotment of Channel 239C1 at Homestead. In factor we must weigh independently against the service support of its proposal petitioner states that the reallotment benefits that may result from reallotting a channel from of Channel 239C2 from Homestead (population 26,866)© to one community to another." See Modifications, supra., 5 North Miami Beach (population 35,359) would provide FCC Red at 7097 (1990); see also, Report and Order North Miami Beach with its first local transmission service, (Eatonton and Sandy Springs, Georgia; Anniston and and would not deprive Homestead of its sole local aural Lineville, Alabama), 6 FCC Red 6580 (1991), App. for rev. transmission service.2 Petitioner notes that Station WXDJ pend. Since we are concerned with the loss of service to the will not be moving into an Urbanized Area, as both Home community of Homestead, we request petitioner to submit stead and North Miami Beach, Florida are currently lo any additional information as the overall public interest cated within the Miami-Hialeah Urbanized Area, and there benefits that would be advanced from a grant of this pro will be no impact on the number of transmission services posal. We also request that the petitioner provide informa currently available to Homestead or North Miami Beach. tion showing the areas and populations which will lose Petitioner also claim that the reallotment of Station existing service if Station WXDJ(FM) is. downgraded to WXDJ(FM) as a Class C2 facility at North Miami Beach 1 Population figures taken from the 1990 U.S. Census. WOIR(AM), and there is a pending application for a new educa 2 Homestead will continue to receive service from Station tional FM station on file (BPED-931213MS). 6148 10 FCC Red No. 12 Federal Communications Commission Record DA 95-1157 Channel 239C2 and reailotted to North Miami Beach. The 9. The Commission has determined that the relevant study should also indicate the number of reception services provisions of the Regulatory Flexibility Act of 1980 do not which are now available within the gain and loss areas.3 apply to rule making proceedings to amend the FM Table 5. We believe petitioner©s proposal warrants consider of Allotments, Section 73.202(b) of the Commission©s ation. Channel 239C2 at Homestead could be reailotted to Rules. See Certification that Sections 603 and 604 of the North Miami Beach, Florida, since it would provide the Regulatory Flexibility Act Do Not Apply to Rule Making to com-munity of North Miami Beach with its first local aural Amend Sections 73.202(b), 73.504 and 73.606(b) of the transmission service. A staff engineering analysis has deter Commission©s Rules, 46 FR 11549, February 9, 1981. mined that Channel 239C2 can beallotted to North Miami 10. For further information concerning this proceeding, Beach in compliance with the Commission©s minimum contact Nancy J. Walls, Mass Media Bureau, (202) distance separation requirements with a site restriction of 418-2180. For purposes of this restricted notice and com 23.8 kilometers (14.8 miles) south of the community.4 In ment rule making proceeding, members of the public are accordance with Section 1.420(i) of the Commission©s advised that no ex pane presentations are permitted from Rules, we will not accept competing expressions of interest the time the Commission adopts a Notice of Proposed Rule in the use of Channel 239C2 at North Miami Beach. Making until the proceeding has been decided and such 6. The Commission believes it would be in the public decision is no longer subject to reconsideration by the interest to seek comments on the proposal to amend the Commission or review by any court. An ex pane presenta FM Table of Allotments. Section 73.202(b) of the Commis tion is not prohibited if specifically requested by the Com sion©s Rules, with respect to the following communities: mission or staff for the clarification or adduction of evidence or resolution of issues in the proceeding. How Channel No. ever, any new written information elicited from such a request or a summary City of any new oral information shall be Present Proposed served by the person making the presentation upon the Homestead, Florida 239C1 other parties to the proceeding unless the Commission North Miami Beach, 239C2 specifically waives this service requirement. Any comment Florida which has not been served on the petitioner constitutes an ex pane presentation and shall not be considered in the 7. The Commission©s authority to institute rule making proceeding. Any reply comment which has not been served proceedings, showings required, cut-off procedures, and fil on the person(s) who filed the comment, to which the ing requirements are contained in the attached Appendix reply is directed, constitutes an ex pane presentation and and are incorporated by reference herein. In particular, we shall not be considered in the proceeding. note that a showing of continuing interest is required by paragraph 2 of the Appendix before a channel will be FEDERAL COMMUNICATIONS COMMISSION allotted. 8. Interested parties may file comments on or before July 31, 1995, and reply comments on or before August 15, 1995, and are advised to read the Appendix for the proper procedures. Comments should be filed with the Secretary, John A. Karousos Federal Communications Commission, Washington, D.C. Chief, Allocations Branch 20554. Additionally, a copy of such comments should be Policy and Rules Division served on the petitioner, or its counsel or consultant, as follows: Mass Media Bureau Carl R.