Federal Communications Commission Record DA 89-1596

5 FCC Red No. 1 Federal Communications Commission Record DA 89-1596

their coverage areas. Channel 290C2 can be allotted to Before the Omaha, Nebraska, with a site restriction of 24.8 Federal Communications Commission kilometers (15.4 miles) southeast to accommodate peti Washington, D.C. 20554 tioner's desired transmitter site. Channel 246C3 can be allotted to Maryville, Missouri, and can be used at Station KNIM-FM's present transmitter site. Channel 258Cl can be allotted to Fairbury, Nebraska, with a site restriction of MM Docket No. 89-595 15.9 kilometers (9.9 miles) northeast to avoid a short spacing to Station KHAZ, Channel 258Cl, Hays, Kansas, In the Matter of and avoid a conflict with the proposed allotment of Chan nel 257C2 at Clarinda, Iowa. 2 Channel 295A can be allot Amendment of Section 73.202(b), RM-7042 ted to Plattsmouth, Nebraska, with a site restriction of 5.1 kilometers (3.2 miles) east to avoid a short-spacing to Table of Allotments, RM-7094 Stations KTPK, Channel 295C, Topeka, Kansas, and FM Broadcast Stations. KEZG, Channel 297Cl, Lincoln, Nebraska. Channel (Clarinda, Iowa, Maryville, Missouri, 257C2 can be allotted to Clarinda, Iowa, and can be used Omaha, Plattsmouth and Fairbury, at Station KMA-FM's present transmitter site. Channel Nebraska) 246C3 can be allotted to Maryville, Missouri, and can be used at Station KNIM-FM's present transmitter site. 3 3. As requested, we also propose to modify Landen's NOTICE OF PROPOSED RULE MAKING AND construction permit to specify Channel 290C2, if allotted ORDERS TO SHOW CAUSE to Omaha, and Nodaway's license for Station KNIM-FM to specify Channel 246C3, if allotted to Maryville. In Adopted: December 7, 1989; Released: January 2, 1990 accordance with Section 1.420 of the Commission's Rules, we will not accept competing expressions of interest in By the Chief, Allocations Branch: use of either channel. Although the allotment of Channel 246C3 to Maryville represents a non-adjacent channel upgrade, we have confirmed that Channel 291C3 can also 1. The Commission has before it two inter-related peti be allotted to Maryville for use by other interested parties. tions for rule making. Nodaway Broadcasting Corp. Channel 291C3 can be allotted to Maryville without the ("Nodaway"), licensee of Station KNIM-FM, requests the 4 imposition of a site restriction. If Channel 295A is substi substitution of Channel 257C3 for Channel 257A at tuted for Channel 293A at Plattsmouth, the applicants for Maryville, Missouri, and the modification of its license the channel will be permitted to amend their applications accordingly. Diane N. Landen ("Landen"), permittee of a without loss of cut-off protection. Finally, Landen states new FM station on Channel 290A at Omaha, Nebraska, that she will reimburse the licensees of Stations KMA-FM requests the substitution of Channel 290C2 for Channel at Clarinda, Iowa; KUTT at Fairbury, Nebraska, and 290A and the modification of her construction permit KNIM-FM at Maryville. Missouri, for the reasonable and (BPH-870918MP) to specify the higher powered channel. prudent expenses associated with their change of channel. In order to accomplish the upgrade at Omaha, Landen further requests the following substitutions: (1) Channel 4. Accordingly, we seek comments on the proposed 295A for unoccupied but applied for Channel 293A at amendment of the FM Table of Allotments, Section Plattsmouth, Nebraska;1 (2) Channel 257C2 for Channel 73.202(b) of the Commission's Rules, for the communities 291C2 at Clarinda, Iowa, and the modification of Station listed below, to read as follows: KMA-FM's license; (3) Channel 258C1 for Channel 257C1 at Fairbury, Nebraska, and the modification of Channel No. Station KUTT's license accordingly; and ( 4) Channel City Present Proposed 246C3 for Channel 257A at Maryville, Missouri, in lieu of Clarinda, Iowa 257C2 291C2 Nodaway's proposed Channel 257C3. Landen states that Maryville, Steven C. Mickelson, President of Nodaway, has autho rized Landen to state its support for the allotment of Missouri 257A 246C3 Channel 246C3 in lieu of Channel 257C3 at Maryville. Fairbury, Landen states that the allotment of Channel 290C2 to Nebraska 257Cl 258Cl Omaha would enable the station to substantially expand Omaha, Nebraska 222C, 231C, 222C, 231C, its coverage area, thereby improving service to the public 241C, 260C, 241C, 260C, and promoting spectrum efficiency while also permitting the Maryville station to upgrade to Class C3 operation. 264C, 283C, 264C, 283C, Therefore, she requests that her petition be consolidated 290A 290C2 with, and substituted for, Nodaway's pending request. Plattsmouth, 2. We believe the public interest would be served by Nebraska 293A 295A proposing the substitution of Channel 290C2 for Channel 290A at Omaha, Nebraska, Channel 295A for Channel 5. Accordingly, IT IS ORDERED, That pursuant to 293A at Plattsmouth, Nebraska, Channel 257C2 for Chan Section 316(a) of the Communications Act of 1934, as nel 291C2 at Clarinda, Iowa, Channel 258C1 for Channel amended, KMA Broadcasting, L.P. ("KMA"), licensee of 257Cl at Fairbury, Nebraska, and Channel 246C3 for Station KMA-FM, Channel 291C2, Clarinda, Iowa, and Channel 257 A at Maryville, Missouri, since it could en Siebert Communications, Inc. ("Siebert"), licensee of Sta able Station KNIM-FM at Maryville, Missouri, and the tion KUTT, Channel 257Cl, Fairbury, Nebraska, SHALL newly authorized station at Omaha, Nebraska, to expand

1 DA 89-1596 Federal Communications Commission Record 5 FCC Red No. 1

SHOW CAUSE why their licenses SHOULD NOT BE Making to Amend Sections 73. 202 (b), 73. 504 and 73. 606 MODIFIED to specify operation on Channels 257C2 and (b) of the Commission's Rules, 46 FR 11549, February 9, 258Cl, respectively, as proposed herein. 1981. 6. Pursuant to Section 1.87 of the Commission's Rules, 11. For further information concerning this proceeding, KMA and Siebert may, not later than February 23, 1990, contact Leslie K. Shapiro, Mass Media Bureau, (202) file a written statement showing with particularity why 634-6530. For purposes of this restricted notice and com their licenses should not be modified as proposed in the ment rule making proceeding, members of the public are Order to Show Cause. The Commission may call on KMA advised that no ex parte presentations are permitted from and/or Siebert to furnish additional information. If KMA the time the Commission adopts a Notice of Proposed and/or Siebert raise a substantial and material question of Rule Making until the proceeding has been decided and fact, a hearing may be required to resolve such a question such decision is no longer subject to reconsideration by pursuant to Section 1.87. Upon review of the statements the Commission or review by any court. An ex parte and/or additional information furnished, the Commission presentation is not prohibited if specifically requested by may grant the modification, deny the modification, or set the Commission or staff for the clarification or adduction the matter of modification for hearing. If no written of evidence or resolution of issues in the proceeding. statement is filed by the date refered to above, KMA and However, any new written information elicited from such Siebert will be deemed to have consented to the modifica a request or a summary of any new oral information shall tion as proposed in the Order to Show Cause and a final be served by the person making the presentation upon the Order will be issued by the Commission, if the above other parties to the proceeding unless the Commission mentioned channel modifications are ultimately found to specifically waives this service requirement. Any comment be in the public interest. which has not been served on the petitioner constitutes an 7. IT IS FURTHER ORDERED, That the Secretary ex parte presentation and shall not be considered in the SHALL SEND, BY CERTIFIED MAIL, RETURN RE proceeding. Any reply comment which has not been CEIPT REQUESTED, a copy of this Notice of Proposed served on the person(s) who filed the comment, to which Rule Making and Order to Show Cause to the following: the reply is directed, constitutes an ex parte presentation and shall not be considered in the proceeding. KMA Broadcasting, Siebert Communications, L.P. Inc. FEDERAL COMMUNICATIONS COMMISSION Station KMA-FM Station KUTT 209 N. Elm Street 414 Fourth Shenandoah, Iowa 51601 Fairbury, Nebraska 68352 Platte Broadcasting Communications Ventures Company, Inc. Ltd. Partnership Karl A. Kensinger 625 First Avenue 12906 S. 30th Street Chief, Allocations Branch Plattsmouth, Nebraska 68048 Bellevue, Nebraska 68123 (ARN-880714NY) (ARN-880714MF) Policy and Rules Division Mass Media Bureau 8. The Commission's authority to institute rule making proceedings, showings required, cut-off procedures, and filing requirements are contained in the attached Appen APPENDIX dix and are incorporated by reference herein. In particu 1. Pursuant to authority found in Sections 4(i), 5(c)(1), lar, we note that a showing of continuing interest is 303(g) and (r)and 307(b) of the Communications Act of required by paragraph 2 of the Appendix before a chan 1934, as amended, and Sections 0.61 0.204(b) and 0.283 of nel will be allotted. the Commission's Rules, IT IS PROPOSED TO AMEND 9. Interested parties may file comments on or before the FM Table of Allotments, Section 73.202(b) of the February 23, 1990, and reply comments on or before Commission's Rules and Regulations, as set forth in the March 12, 1990, and are advised to read the Appendix for Notice of Proposed Rule Making to which this Appendix is the proper procedures. Additionally, a copy of such com attached. ments should be served on the petitioner, or its counsel 2. Showings Required. Comments are invited on the or consultant, as follows: proposal(s) discussed in the Notice of Proposed Rule Mak ing to which this Appendix is attached. Proponent(s) will Steve Mickelson, President Dennis P. Corbett, Esq. be expected to answer whatever questions are presented in Nodaway Broadcasting Corp. Stephen D. Baruch, Esq. initial comments. The proponent of a proposed allotment Box 278 Leventhal, Senter & Lerman is also expected to file comments even if it only resubmits Maryville, Missouri 64468 2000 K Street, N.W., Suite 600 or incorporates by reference its former pleadings. It (Petitioner for Maryville) Washington, D.C. 20006-1809 should also restate its present intention to apply for the (Counsel to Landen) channel if it is allotted and, if authorized, to build a station promptly. Failure to file may lead to denial of the 10. The Commission has determined that the relevant request. provisions of the Regulatory Flexibility Act of 1980 do 3. Cut - off Procedures. The following procedures will not apply to rule making proceedings to amend the FM govern the consideration of filings in this proceeding. Table of Allotments, Section 73.202(b) of the Commis sion's Rules. See, Certification That Sections 603 and 604 of the Regulatory Flexibility Act Do Not Apply to Rule (a) Counterproposals advanced in this proceeding itself will be considered if advanced in initial com ments, so that parties may comment on them in

2 5 FCC Red No. 1 Federal Communications Commission Record DA 89-1596

reply comments. They will not be considered if nel 257C2 at Clarinda, Iowa, are 40-33-12 and 95-07-18. The advanced in reply comments. (See Section 1.420(d) coordinates for Channel 246C3 at Maryville, Missouri, are of the Commission's Rules.) 40-19-41 and 94-52-31. (b) With respect to petitions for rule making which 4 The coordinates for this allotment are North Latitude conflict with the proposal(s) in this Notice, they will 40-20-42 and West Longitude 94-52-24. 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 com ments herein. If they are filed later than that, they will not be considered in connection with the de-· cision 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 submis sions 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. Com ments 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 l.420(a), (b) and (c) of the Commission's Rules.) 5. Number of Copies. In accordance with the provisions of Section 1.420 of the Commission's Rules and Regula tions, 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 Public Reference Room at its headquarters, 1919 M Street N.W., Washington, D.C.

FOOTNOTES 1 Two applications have been filed for Channel 293A at Plattsmouth, one by Platte Broadcasting Co. (ARN-880714NY) and the other by Communications Ventures Ltd. (ARN- 880714MF). We note that Channel 295A cannot be used at either of the sites proposed by the applicants. Therefore, we will serve a copy of this Notice of Proposed Rule Making on the applicants. 2 KUTT, in its pending application for Channel 257Cl at Fairbury, specified coordinates of North Latitude 40-09-37 and West Longitude 97-16-12 (BPH-890721IF). These coordinates re present a move from its licensed site on Channel 257 A. Channel 257Cl at KUTT's licensed site would be short-spaced to Class A Station KNIM at Maryville. Thus, the allotment of Channel 258Cl in lieu of Channel 257Cl at Fairbury, with the need to relocate its transmitter from its presently licensed site, does not constitute a forced relocation of an existing station's transmitter. 3 The coordinates for Channel 290C2 at Omaha, Nebraska, are North Latitude 41-08-39 and West Longitude 95-46-38. The co ordinates for Channel 258Cl at Fairbury, Nebraska, are 40-14-41 and 97-03-16. The coordinates for Channel 295A at Plattsmouth, Nebraska are 41-01-28 and 95-49-34. The coordinates for Chan-