DA 95-2202 Federal Communications Commission Record 10 FCC Red No. 23 2. The Notice proposed the substitution of Channel Before the 231C1 for Channel 231C2 at Okmulgee and the modifica Federal Communications Commission tion of Station KTHK(FM) to specify operation on the Washington, D.C. 20554 higher class channel. To accommodate the upgrade at Okmulgee, the Notice also optionally proposed the sub stitution of Channel 286C3 or Channel 285A for Channel 232A at Nowata, Oklahoma, and the modification of Sta MM Docket No. 94-100 tion KRIG(FM) to specify operation on either channel. To accommodate the allotment of Channel 286C3 to Nowata, In the Matter of we also proposed the deletion, without replacement, of vacant and unapplied-for Channel 285A at Pawhuska, Amendment of Section 73.202(b), RM-8509 Oklahoma, or the substitution of Channel 280A for Chan nel 285A at Pawhuska, if an interest in use of the channel Table of Allotments, RM-8549 were expressed during the pendency of the rule making. FM Broadcast Stations. RM-8550 3. Singer/KJMM opposes the substitution of Channel (Okmulgee, Nowata, Pawhuska, 286C3 for Channel 232A at Nowata. Instead, it requests the Bartlesville, Bixby, Oklahoma, Rogers, substitution of Channel 287C2 for Channel 287C3 at Bixby Arkansas) and the modification of Station KJMM©s (formerly KRMP- FM) construction permit to specify the higher powered channel. Singer/KJMM states that the allotment of Channel REPORT AND ORDER 287C2 to Bixby would allow Station KJMM to serve an additional 194,026 persons within an area of 3,796 square Adopted: October 20, 1995; Released: October 31, 1995 kilometers. In comparison, it states that the allotment of Channel 286C3 to Nowata will result in an increase of only By the Chief, Allocations Branch: 32,632 persons within a 2,234 square kilometer area. How ever, Singer/KJMM suggests that both upgrades can be accomplished if Station KRIG©s license is modified to 1. At the request of Integrated Broadcasting Company, Channel 285A in this proceeding and then KRIG applies Inc. ("Integrated"), licensee of Station KTHK(FM), for a co-channel upgrade through the Commission©s "one- Okmulgee, Oklahoma, and KRIG, Inc. ("KRIG"), licensee step" upgrade application procedure.4 The transmitter sites of Station KRIG(FM), Nowata, Oklahoma, the Commission for the Nowata and Bixby allotments are located approxi has before it the Notice of Proposed Rule Making, 9 FCC mately 102 kilometers apart while the Commission©s Rules Red 4882 (1994), and Order to Show Cause, 10 FCC Red stipulate a minimum distance separation of at least 117 7704 (1995), directed to KRIG, Inc. Comments in response kilometers for first adjacent Class C2 and Class C3 allot to the Notice of Proposed Rule Making were filed by Rhema ments. Therefore, the two proposals are mutually exclusive. Media ("Rhema"), KRIG and Integrated. Counterproposals were filed by Singer Broadcasting Group, Inc. ("Singer"). 1 4. Rhema opposes the deletion of Channel 285A from Johnson Communications, Inc. ("Johnson") and KYFM Pawhuska. It states that Pawhuska, as the seat of Osage Radio, Inc. ("KYFM").2 Reply comments were filed by County and the "heart" of the Osage Nation, needs its own Singer/KJMM,3 KRIG and Integrated. KRIG responded to local radio station to provide local news and emergency the Order to Show Cause. weather information, community calendars for local 1 KJMM, Inc. has submitted a "Notice of Appearance and contingent upon the migration of Station KRIG from Channel Statement for the Record" stating that, pursuant to Commission 232A to either Channel 286C3 or Channel 285A. Therefore, we approval, consummation of the transfer of control (File No. will accept Johnson©s pleading only as comments in support of BTCH-950418GH) from Singer to Perry Broadcasting Company, the deletion of Channel 232A from Nowata. Inc., 100% shareholder of KJMM, Inc., was effective July 17, 3 Singer/KJMM©s reply comments were accompanied by a "Mo 1995. KJMM, Inc. goes on to state its intention to apply for tion to Accept Late-Filed Reply Comments" because they were Channel 287C2 at Bixby, if allotted, and to promptly build the filed with the Commission on the day after the reply comment modified facilities. Therefore, we will refer to the pleadings deadline specified in the Notice of Proposed Rule Making. How submitted by Singer as Singer/KJMM. ever, we do riot consider these reply comments to be late-filed. 2 Public Notice of the filing of the counterproposals by KYFM In cases such as this, where the Public Notice announcing the and Singer/KJMM was given on November 18, 1994, Report No. filing of the counterproposal is issued prior to the close of the 2041. However, on November 17, 1994, KYFM withdrew its reply comment period set forth in the Notice of Proposed Rule counterproposal (RM-8549) which requested the upgrading of Making, the reply comment period is considered to have been Station KYFM(FM), Bartlesville, Oklahoma, from Channel extended to coincide with the response time specified in the 261A to either Channel 286C3 or Channel 261C1. In its request counterproposal Public © Notice. See Corinth, Hadley and for dismissal, KYFM, in compliance with Section 1.420(j) of the Queensbury, New-York, 2 FCC Red 3316 (1987). This informal Commission©s Rules, states that no consideration has been or extension of the reply comment period does not occur where will be received in exchange for the dismissal of its comments the Public Notice announcing the filing of counterproposals is and counterproposal. Therefore, no consideration of its com issued after the close of the reply comment period set forth in ments and counterproposal will be given and its proposal will the Notice of Proposed Rule Making. Rather, parties are then be dismissed. Johnson also filed comments and a counterpro limited to responding solely to the counterproposals themselves. posal requesting the substitution of Channel 232C2 for Channel 4 See Amendment of Commission©s Rules to Permit FM Channel 232C3 at Rogers, Arkansas, and the modification of Station and Class Modifications by Application, 8 FCC Red 4735 (1993). KAMO-FM©s license accordingly. However, there is no conflict with any of the proposals under consideration herein and thus is not a valid counterproposal. Rather, Johnson©s proposal is 12014 10 FCC Red No. 23 Federal Communications Commission Record DA 95-2202 church, school and civic organizations, news of particular KRIG for the costs involved in changing to Channel 285A interest to Native Americans, and live broadcasts of sports if the Commission declines to upgrade Station KRIG to events, church services, rodeos, and musical productions. It Channel 286C3. argues that a station licensed to any community other than 9. Singer/KJMM, in reply comments, reiterates its inten Pawhuska cannot provide this needed local service. Rhema tion to apply for Channel 287C2, if allotted to Bixby. It also states that it has filed an application (BPH-941122MV) again suggests that KRIG accept the modification or its to operate a station at Pawhuska. Further, it states that its license to Channel 285A in this proceeding and then apply intention was to file an application immediately following for an upgrade to Channel 286C3 under the Commission©s the suspension of Station KMYB in March 1991, but was "one-step" procedures. prevented from doing so until the Commission opened a 10. KRIG questions the service gains which Sing new application filing window. er/KJMM claims will occur if Station KJMM is upgraded to 5. Integrated filed comments reiterating its intention to Channel 287C2. It states that the figures are premised on apply for Channel 231C1, if allotted to Okmulgee, and to the use of a fully-spaced transmitter site which requires reimburse Station KRIG if its license is modified to specify that Station KJMM relocate to a new transmitter site. How Channel 28SA in lieu of its present Channel 232A. In ever, it argues that Singer/KJMM has not unequivocally response to Rhema©s comments, Integrated points out that stated that it will move from its present transmitter site. Rhema©s interest in providing Pawhuska with a local FM KRIG agrees that the allotment of Channel 287C2 to Bixby service can be accommodated without depriving either would result in greater total area/population gains (195,900 Okmulgee or Nowata of upgraded service since the Notice persons within a 3,742 square kilometers area) than would optionally proposed the allotment of Channel 280A to accrue from the allotment of Channel 286C3 to Nowata accommodate any such interest. Integrated points out that (25,894 persons within a 2,371 square kilometer area). while Rhema opposes the deletion of Channel 28SA from However, it argues that this increased service would occur Pawhuska, it provides no information as to why Channel exclusively to areas which are already very well served. 280A is an unacceptable substitute. Specifically, KRIG states that all of the people within the 6. KRIG supports the substitution of Channel 286C3 for gain area already receive at least nine fulltime aural ser Channel 232A at Nowata and the modification of Station vices with more than half of the gain area receiving at least KRIG©s license accordingly. It states that if both Station eighteen fulltime aural services. In contrast, it states that KRIG and KTHK(FM) are upgraded as proposed, a total of the allotment of Channel 286C3 to Nowata would provide 150,843 persons would receive a new service. KRIG notes a fourth or fifth fulltime service to 3,786 persons, a sixth that the reference coordinates proposed in the Notice for fulltime service to 17,682 persons and a seventh such ser Station KRIG on Channel 286C3 are short-spaced to the vice 3,644 persons.