DA 94-782 Federal Communications Commission Record 9 FCC Red No. 16

and the only construction permit issued has been subse Before the quently cancelled. Petitioner claims that although the dele Federal Communications Commission tion of Channel 283A would leave Gregory with no local Washington, D.C. 20554 service, the community will continue to receive aural re ception service from twenty stations located in the Corpus Christi, Texas, area. 3. We believe the proposal warrants further consider MM Docket No. 94-84 ation since it could provide Driscoll with its first local aural transmission service. However, since petitioner pro In the Matter of poses to relocate Station KMIQ-FM©s transmitter site, we request that petitioner provide information showing the Amendment of Section 73.202(b), RM-8478 areas and populations which will receive new service and Table of Allotments, the areas and populations which will lose existing service if Channel 283C3 is allotted to Driscoll. The study should FM Broadcast Stations. also indicate the number of reception services which are (Driscoll, Gregory and now available within the gains and loss areas. Robstown, Texas) 4. Channel 283C3 can be allotted to Driscoll in compli ance with the Commission©s minimum distance separation requirements with a site restriction of 10.8 kilometers (6.7 NOTICE OF PROPOSED RULE MAKING miles) south to accommodate petitioner©s desired site.2 As requested, we also propose to modify petitioner©s authoriza Adopted: July 14, 1994; Released: July 27, 1994 tion for Station KMIQ-FM at Robstown to specify Driscoll as its community of license. In accordance with Section Comment Date: September 19, 1994 1.420(i) of the Commission©s Rules, we will not accept Reply Comment Date: October 4, 1994 competing expressions of interest in the use of Channel 283C3 at Driscoll or require the petitioner to demonstrate By the Acting Chief, Allocations Branch: the availability of an additional equivalent class channel for use by such parties. 1. The Commission has before it the petition for rule 5. We will also propose the deletion of Channel 283A at making filed by Cotton Broadcasting ("petitioner"), licens Gregory, since it could enable Station KMIQ-FM to pro ee of Station KMIQ-FM, Channel 286A, Robstown, Texas, vide Driscoll with its first local aural transmission service proposing the substitution of Channel 283C3 for Channel and expand its service area.3 However, we note that the 286A, the reallotment of Channel 283C3 from Robstown to Commission does not delete achannel where an expression Driscoll, Texas and the modification of petitioner©s license of interest is demonstrated by the filing of an application. to specify Driscoll as Station KMIQ-FM©s community of Therefore, should the Commission receive an acceptable license. In order to accommodate the allotment of Channel application by the initial comment deadline specified here 283C3 to Driscoll, petitioner also requests the deletion of in for Channel 283A at Gregory, Texas, petitioner©s pro vacant Channel 283A at Gregory, Texas. posal to delete Channel 283A at Gregory may be dismissed. 2. Petitioner seeks modification of Station KMIQ-FM©s 6. Accordingly, we seek comments on the proposed license pursuant to the provisions of Section 1.420(i) of the amendment of the FM Table of Allotments. Section Commission©s Rules, which permits the licensee of an ex 73.202(b) of the Commission©s Rules, for the community isting station a higher class channel and/or a new commu listed below, to read as follows: nity of license without affording other interested parties an opportunity to file competing expressions of interest. Peti Channel No. tioner believes that the adoption of its proposal will result City Present Proposed in a preferential arrangement of allotments by providing a Driscoll, Texas 283C3 first local aural transmission service to the community of Robstown. Texas 260CL286A 260C1 Driscoll (population 688).© Petitioner adds that Robstown will continue to receive local aural transmission service Gregory, Texas 283A from Station KSAB-FM and Station KGLF-AM. Petitioner states that Driscoll is an incorporated municipality with its 7. The Commission©s authority to institute rule making own Mayor and city council, a police department and proceedings, showings required, cut-off procedures, and fil provides other services to its residents. Petitioner claims ing requirements are contained in the attached Appendix that the requested reallotment and upgrade of Station and are incorporated by reference herein. In particular, we KMIQ-FM at Driscoll will serve 315,184 persons in 4,798 note that a showing of continuing interest is required by square kilometers, which represents an increase of 443% in paragraph 2 of the Appendix before a channel will be population and a 284% increase in 60 dBu land area. In allotted. support of its proposal to delete Channel 283A at Gregory, 8. Interested parties may file comments on or before petitioner states that since the allotment of Channel 283A September 19, 1994, and reply comments on or before at Gregory in 1988, no station has ever been constructed October 4, 1994, and are advised to read the Appendix for

1 Population figures were taken from the 1990 U.S. Census. 3 Commission©s records indicate that SGBC, Inc.©s construction 2 The coordinates for Channel 283C3 at Driscoll are North permit for Channel 283A at Gregory, Texas, was forfeited and Latitude 27-34-45 and West Longitude 97-43-48. cancelled on December 16, 1992.

3580 9 FCC Red No. 16 Federal Communications Commission Record DA 94-782 the proper procedures. Comments should be filed with the mission©s Rules and Regulations, as set forth in the Notice Secretary, Federal Communications Commission, Washing of Proposed Rule Making to which this Appendix is at ton, D.C. 20554. Additionally, a copy of such comments tached. should be served on the petitioner, or its counsel or con 2. Showings Required. Comments are invited on the pro sultant, as follows: posal^) discussed in the Notice of Proposed Rule Making to which this Appendix is attached. Proponent(s) will be ex Lee J. Peltzman, Esq. pected to answer whatever questions are presented in initial comments. The proponent of a proposed allotment is also Shainis & Peltzman expected to file comments even if it only resubmits or Suite 200 incorporates by reference its former pleadings. It should 2000 L Street also restate its present intention to apply for the channel if it is allotted and, if authorized, to build a station promptly. Washington, D.C. 20036 Failure to file may lead to denial of the request. (Counsel for petitioner) 3. Cut-off Procedures. The following procedures will gov ern the consideration of filings in this proceeding. 9. The Commission has determined that the relevant provisions of the Regulatory Flexibility Act of 1980 do not (a) Counterproposals advanced in this proceeding apply to rule making proceedings to amend the FM Table itself will be considered if advanced in initial com of Allotments, Section 73.202(b) of the Commission©s ments, so that parties may comment on them in Rules. See Certification That Sections 603 and 604 of the reply comments. They will not be considered if ad Regulatory Flexibility Act Do Not Apply to Rule Making to vanced in reply comments. (See Section 1.420(d) of Amend Sections 73.202(b), 73.504 and 73.606(b) of the the Commission©s Rules.) Commission©s Rules, 46 FR 11549, February 9, 1981. (b) With respect to petitions for rule making which 10. For further information concerning this proceeding, conflict with the proposal(s) in this Notice, they will contact Pamela Blumenthal, Mass Media Bureau, be considered as comments in the proceeding, and (202)634-6530. For purposes of this restricted notice and Public Notice to this effect will be given as long as comment rule making proceeding, members of the public they are filed before the date for filing initial com are advised that no ex pane presentations are permitted ments herein. If they are filed later than that, they from the time the Commission adopts a Notice of Proposed will not be considered in connection with the de Rule Making until the proceeding has been decided and cision in this docket. such decision is no longer subject to reconsideration by the Commission or review by any court. An ex pane presenta (c) The filing of a counterproposal may lead the tion is not prohibited if specifically requested by the Com Commission to allot a different channel than was mission or staff for the clarification or adduction of requested for any of the communities involved. evidence or resolution of issues in the proceeding. How ever, any new written information elicited from such a 4. Comments and Reply Comments; Service. Pursuant to request or a summary of any new oral information shall be applicable procedures set out in Sections 1.415 and 1.420 served by the person making the presentation upon the of the Commission©s Rules and Regulations, interested par other parties to the proceeding unless the Commission ties may file comments and reply comments on or before specifically waives this service requirement. Any comment the dates set forth in the Notice of Proposed Rule Making to which has not been served on the petitioner constitutes an which this Appendix is attached. All submissions by parties ex pane presentation and shall not be considered in the to this proceeding or by persons acting on behalf of such proceeding. Any reply comment which has not been served parties must be made in written comments, reply com on the person(s) who filed the comment, to which the ments, or other appropriate pleadings. Comments shall be reply is directed, constitutes an ex pane presentation and served on the petitioner by the person filing the comments. shall not be considered in the proceeding. Reply comments shall be served on the person(s) who filed comments to which the reply is directed. Such comments FEDERAL COMMUNICATIONS COMMISSION and reply comments shall be accompanied by a certificate of service. (See Section 1.420(a), (b) and (c) of the Com mission©s Rules.) Comments should be filed with the Sec retary, Federal Communications Commission, Washington, D.C. 20554. John A. Karousos 5. Number of Copies. In accordance with the provisions Acting Chief, Allocations Branch of Section 1.420 of the Commission©s Rules and Regula tions, an original and four copies of all comments, reply Policy and Rules Division comments, pleadings, briefs, or other documents shall be Mass Media Bureau furnished the Commission. 6. Public Inspection of Filings. All filings made in this proceeding will be available for examination by interested APPENDIX parties during regular business hours in the Commission©s 1. Pursuant to authority found in Sections 4(i), 5(c)(l), Public Reference Room at its headquarters, 1919 M Street 303(g) and (r) and 307(b) of the Communications Act of N.W., Washington, D.C. 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 Com

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