**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | MB Docket No. 04-375         |
|                                  | *) |                              |
| Amendment of Section 73.202(b),  | ** | RM-11038                     |
|                                  |    |                              |
| FM Table of Allotments,          | *  | MB Docket No. 04-376         |
|                                  | *) |                              |
| FM Broadcast Stations.           | ** | RM-11039                     |
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| (Louisburg and Hillsborough,     | *  | MB Docket No. 04-377         |
| North Carolina)                  | *) |                              |
|                                  | ** | RM-11077                     |
| (Hutchinson and Haven, Kansas)   |    |                              |
|                                  | *  | MB Docket No. 04-378         |
| (Dover and North Canton, Ohio)   | *) |                              |
|                                  | ** | RM-11079                     |
| (Lake Charles, Louisiana and     |    |                              |
| West Orange, Texas)              | *  | MB Docket No. 04-379         |
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| (Eatonton and Lexington,         | ** | RM-11086                     |
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**NOTICE OF PROPOSED RULEMAKING**

**Adopted: September 23, 2004 Released: September 27, 2004**

**Comments Date: November 18, 2004**

**Reply Comment Date: December 3, 2004**

By the Assistant Chief, Audio Division:

1.  The Audio Division has before it a multiple docket *Notice of
    Proposed Rule Making* setting forth five separate proposals to amend
    the FM Table of Allotments, Section 73.202(b) of the Rules. Each
    proposal involves a change of community of license. Each petitioner
    states that it will file an application for construction permit to
    effectuate the change of community if granted. We believe that each
    proposal warrants consideration because it complies with our
    technical requirements and would serve the public interest.

2.  Each of the petitioners filed its proposal for reallotment in
    accordance with the provisions of Section 1.420(i) of the
    Commission's Rules, which permits the modification of a station's
    license to specify a new community of license while not affording
    other interested parties the opportunity to file competing
    expressions of interest in the proposed allotment.[^1] In each case,
    the amended allotment would be mutually exclusive with the station's
    present allotment. In considering a reallotment proposal, we

    compare the existing allotment to the proposed allotment to
    determine whether the reallotment will result in a preferential
    arrangement of allotments. This determination is based upon the *FM
    Allotment Priorities*.[^2]

3\. This is a multiple docket *Notice of Proposed Rule Making* issued in
response to a Commission *Public Notice* released October 2, 1998 (DA
98-1987). We are combining five separate FM allotment proposals into a
single *Notice of Proposed Rule Making*. Each proposal has its own
docket and rulemaking number and the Commission's Reference Center will
maintain a separate file for each docket. As discussed in the *Public
Notice,* this procedure will conserve Commission resources and expedite
the processing of FM allotment petitions by avoiding duplicative
actions. We seek comments on the following proposals:

**A. [MB Docket No. 04-375; RM-11038]{.underline}**

**Petitioner:** New Century Media Group, LLC

c/o David Kushner, Esq.

Brooks, Pierce, McClendon, Humphrey

& Leonard, L.L.P.

First Union Capitol Center, Suite 1600

150 Fayetteville Street Mall

Raleigh, North Carolina 27602

**Proposal:** New Century Media Group, LLC, proposes the reallotment of
Channel 273A from Louisburg to Hillsborough, North Carolina, and the
modification of Station WHLQ(FM)'s license accordingly.[^3]

**[Channel No.]{.underline}**

**[Community]{.underline} [Present]{.underline} [Proposed]{.underline}**

Louisburg, North Carolina 273A \-\--

Hillsborough, North Carolina \-\-- 273A

**Coordinates:** The reference coordinates for Channel 273A at
Hillsborough are 36-06-49 NL and 79-00-20 WL. This allotment requires a
site restriction of 9.51 kilometers (5.91 mile) northeast to avoid a
short-spacing to the licensed site of Station WJMH(FM), Channel 271C,
Reidsville, North Carolina, and to Station WIOZ-FM, Channel 273A,
Southern Pines, North Carolina.

**Additional Information:** The reallotment of Channel 273A to
Hillsborough, North Carolina, will provide the community with its first
local aural transmission service, without depriving Louisburg of its
sole local service. Station WYRN(AM) (1480 kHz) will remain licensed to
the community. An engineering analysis has determined that Hillsborough
is located within the Durham Urbanized Area, and the proposed 70 dBu
signal encompasses 39.5% of that Urbanized Area. Since the community is
located within the Durham Urbanized Area, petitioner has provided the
required *Tuck* analysis.[^4] Petitioner seeks to change its transmitter
site and must provide the required gain and loss area data.

**FCC Contact:** Sharon P. McDonald, Media Bureau, 202-418-2180.

**B. [MB No. 04-376; RM-11039]{.underline}**

**Petitioner:** Ad Astra per Aspera Broadcasting, Inc.

c/o Joseph P. Benkert, Esq., P.C.

P.O. Box 620308

Littleton, Colorado 80162-0308

**Proposal:** Ad Astra per Aspera Broadcasting, Inc., proposes the
reallotment of Channel 246C2 from Hutchinson to Haven, Kansas, and the
modification of Station KSKU(FM)'s construction permit accordingly.[^5]

**[Channel No.]{.underline}**

**[Community]{.underline} [Present]{.underline} [Proposed]{.underline}**

Hutchinson, Kansas 240A, 246C2, 271C, 275C 240A, 271C, 275C

Haven, Kansas \-\-- 246C2

**Coordinates:** The reference coordinates for Channel 246C2 at Haven
are 37-47-47 NL and 97-31-59 WL. This allotment requires a site
restriction of 24.9 kilometers (15.5 miles) southeast to avoid a
short-spacing the proposed site for Channel 247C3, Howard, Kansas.

**Additional Information:** The reallotment of Channel 246C at Haven,
Kansas, will provide the community with its first local aural
transmission service, without depriving Hutchinson of its sole local
service. Stations KWBW(AM), KHCC-FM, KZSN(FM) and KHUT(FM) will remain
licensed to the community. Since the proposed 70 dBu signal encompasses
86.1% of the Wichita, Kansas Urbanized Area, Petitioner has provided the
required *Tuck* analysis.[^6] Petitioner seeks to change its transmitter
site and must provide the required gain and loss area data.

.

**FCC Contact:** Sharon P. McDonald, Media Bureau, 202-418-2180.

**C. [MB Docket No. 04-377; RM- 11077]{.underline}**

**Petitioner:** Clear Channel Broadcasting Licenses, Inc**.**

c/o Mark N. Lipp, Esq.

Vinson & Elkins, L.L.P.

1455 Pennsylvania Ave., N.W., Suite 600

Washington, D.C. 20004-1008

**Proposal:** Clear Channel Broadcasting Licenses, Inc., proposes the
reallotment of Channel 269A from Dover to North Canton, Ohio, and the
modification of Station WJER-FM's license accordingly.[^7]

**[Channel No.]{.underline}**

**[Community]{.underline} [Present]{.underline} [Proposed]{.underline}**

Dover, Ohio 269A \-\--

North Canton, Ohio \-- 269A

C**oordinates:** The reference coordinates for Channel 269A at North
Canton are 40-48-30 NL ad 81-23-31 WL. This allotment requires a site
restriction of 7.5 kilometers (4.7 miles) south to avoid short-spacings
to the licensed sites of Station WHOT-FM, Channel 266B, Youngstown,
Ohio, and Station WDOK(FM), Channel 271B, Cleveland, Ohio. Since North
Canton is located within 320 kilometers (200 miles) of the U.S.-Canadian
border, concurrence of the Canadian government has been requested.

**Additional Information:** The reallotment of Channel 269A to North
Canton, Oho, will provide the community with its first local aural
transmission service, without depriving Dover of its sole local service.
Station WJER(AM) will remain licensed to the community.[^8] Moreover,
the reallotment will allow Station WJER-FM to increase its power from 3
to 6 kilowatts, and will eliminate the preexisting short-spacing with
Station WNKO(FM), Channel 269A, Newark, Ohio. Since the proposed 70 dBu
signal encompasses 100% of the Canton, Ohio Urbanized Area, petitioner
has provided the required *Tuck* analysis.[^9] Petitioner seeks to
change its transmitter site and has also provided the required gain and
loss area data.

**FCC Contact**: Sharon P. McDonald, Media Bureau, 202-418-2180.

**D. [MB Docket No. 04-378; RM- 11079]{.underline}**

**Petitioner:** Apex Broadcasting, Inc**.**

c/o Mark N. Lipp, Esq.

Vinson & Elkins, L.L.P.

1455 Pennsylvania Ave., N.W.

Suite 600

Washington, D.C. 20004-1008

**Proposal:** Apex Broadcasting, Inc. proposes the reallotment of
Channel 258C0 from Lake Charles, Louisiana to West Orange, Texas, and
the modification of Station KBXG(FM)'s construction permit
accordingly.[^10]

**[Channel No.]{.underline}**

**[Community]{.underline} [Present]{.underline} [Proposed]{.underline}**

Lake Charles, Louisiana 241C1, 258C0, 277C2 241C1, 277C2,

West Orange, Texas \-\-- 258C0

**Coordinates:** The reference coordinates for Channel 258C0 at West
Orange are 30-07-21 NL and 93-36-21 WL. This allotment requires a site
restriction of 15.4 kilometers (9.5 miles) east to avoid a short-spacing
to the licensed site of Station KSHN(FM), Channel 260C2, Liberty, Texas.

**Additional Information:** The reallotment of Channel 258C0 at West
Orange, Texas, will provide the community with its first local aural
transmission service, without depriving Lake Charles of its sole local
service. Stations KYLC(FM), KOJO(FM), KYKZ(FM) and KBIU(FM) will remain
licensed to the community. We note that Station KBXG(FM)'s current 70
dBu signal encompasses 100% of the Lake Charles, Louisiana Urbanized
Area and will continue to do so at the proposed transmitter site. In
addition, the proposed 70 dBu signal encompasses 100% of the Port
Arthur, Texas Urbanized Area, and 92% of the Beaumont, Texas Urbanized
Area. As a result, Petitioner has provided the required *Tuck*
analysis.[^11] Petitioner seeks to change its transmitter site and has
also provided the required gain and loss area data.

**FCC Contact:** Sharon P. McDonald, Media Bureau, 202-418-2180.

**E. [MB Docket No. 04-379 ; RM-11086]{.underline}**

**Petitioner:** Middle Georgia Communications, Inc.

c/o Lauren A. Colby, Esq.

10 E. Fourth Street

P.O. Box 113

Frederick, Maryland 21705-0113

**Proposal:** Middle Georgia Communications, Inc., proposes the
substitution of Channel 249C2 for Channel 249C3, the reallotment of
Channel 249C2 from Eatonton to Lexington, Georgia, and the modification
of Station WMGZ(FM)'s license accordingly.[^12]

**[Channel No.]{.underline}**

**[Community]{.underline} [Present]{.underline} [Proposed]{.underline}**

Eatonton, Georgia 249C3 \-\--

Lexington, Georgia \-- 249C2

**Coordinates:** The reference coordinates for Channel 249C2 at
Lexington are 33-45-03 NL and 82-48-53 WL. This allotment requires a
site restriction of 30.5 kilometers (19.0 miles) southeast to avoid
short-spacings to the licensed sites of Station WFOX(FM), Channel 246C,
Gainesville, Georgia and Station WHZT(FM), Channel 251C, Seneca, South
Carolina.

**Additional Information:** The reallotment of Channel 249C2 at
Lexington, Georgia, will provide the community with its first local
aural transmission service, without depriving Eatonton of its sole local
service, whereas Station WKVQ(AM) (1520 KHz) will remain licensed to the
community. Since the proposed 70 dBu signal is neither in nor near an
Urbanized Area, a *Tuck* analysis is not necessary.[^13] However, since
the petitioner seeks to change its transmitter site, the required gain
and loss area data must be provided.

**FCC Contact:** Sharon P. McDonald, Media Bureau, 202-418-2180.

3\. Comments, reply comments, counterproposals and other pleadings filed
in response to this multiple docket *Notice of Proposed Rule Making*
should reference ***only*** the specific docket to which the filing
pertains. 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 in paragraph 2 of the Appendix before
a channel will be allotted.

4\. Pursuant to Sections 1.415 and 1.419 of the Commission's Rules, (47
C.F.R. §§ 1.415, 1.419) interested parties may file comments on or
before November 18, 2004, and reply comments on or December 3, 2004, and
are advised to read the *Appendix* for the proper procedures. Comments
should be filed with the Federal Communications Commission, Office of
the Secretary, 445 Twelfth Street, SW, TW-A325, Washington, D.C. 20554.
Additionally, a copy of any filing should be served on the petitioner
listed for the particular docket.

5\. The Commission has determined that the relevant provisions of the
Regulatory Flexibility Act of 1980 do not apply to a rule making
proceeding to amend the FM Table of Allotments, Section 73.202(b) of the
Commission\'s Rules.[^14] This document does not contain \[new or
modified\] information collection requirements subject to the Paperwork
Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore,
it does not contain any new or modified "information collection burden
for small business concerns with fewer than 25 employees," pursuant to
the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
*see* Section 3506(c)(4).[^15]

6\. Parties are required to file an original and four copies of each
filing. Filings can be sent by hand or messenger delivery, by commercial
overnight courier, or by first-class or overnight U.S. Postal Service
mail (although we continue to experience delays in receiving U.S. Postal
Service mail). The Commission's contractor, Natek, Inc., will receive
hand-delivered or messenger-delivered paper filings for the Commission's
Secretary at 236 Massachusetts Avenue, N.E., Suite 110, Washington, D.C.
20002. The filing hours at this location are 8:00 a.m. to 7:00 p.m. All
hand deliveries must be held together with rubber bands or fasteners.
Any envelopes must be disposed of before entering the building.
Commercial overnight mail (other than U.S. Postal Service Express Mail
or Priority Mail) must be sent to 9300 East Hampton Drive, Capitol
Heights, MD 20743. U.S. Postal Service first-class mail, Express Mail,
and Priority Mail should be addressed to 445 12^th^ Street, SW,
Washington, D.C. 20554. All filings must be addressed to the
Commission's Secretary, Office of the Secretary, Federal Communications
Commission.

7\. For further information concerning this proceeding, contact the FCC
contact listed for that proceeding. 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 prohibited if 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 that 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

Assistant Chief, Audio Division

Media Bureau

Attachment: Appendix

*APPENDIX*

1\. Pursuant to authority found in Sections 47 U.S.C. Sections 4(i),
5(c)(1), 303(g) and (r), and 47 C.F.R. Sections 0.61, 0.204(b) and
0.283, IT IS PROPOSED TO AMEND the M 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]{.underline}. 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 pleadings. 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]{.underline}. 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* 47 C.F.R. Section 1.420(d)).

\(b\) 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]{.underline}. 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 pleadings. 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 (s*ee 47 C.F.R.* Section 1.420(a), (b) and (c)).
Comments should be filed with the Office of the Secretary, Federal
Communications Commission, 445 12^th^ Street, S.W., Room TW-A325,
Washington, D.C. 20554.

5\. [Number of Copies]{.underline}. In accordance with the provisions of
47 C.F.R. Section 1.420, 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]{.underline}. All filings made in this
proceeding will be available for examination by interested parties
during regular business hours in the Commission\'s Information Reference
Center (Room CY-A257) at its headquarters, 445 12^th^ Street, S.W.,
Washington, D.C. 20554.

[^1]: *See Modification of FM and TV Authorizations to Specify a New
    Community of License*, 4 FCC Rcd 4870 (1989), *recon. granted in
    part*, 5 FCC Rcd 7094 (1990).

[^2]: The FM Allotment priorities are: (1) First full-time aural
    service; (2) Second full-time aural service; (3) First local
    service; (4) Other public interest matters. \[Co-equal weight is
    given to given to priorities (2) and (3)\]. See *Revision of FM
    Assignment Policies and Procedures,* 90 FCC2d 88 (1982).

[^3]: In support of its proposal, Petitioner states that Hillsborough is
    a Census Designated Place with a 2000 U.S. Census population of
    5,446 persons. It is the county seat of Orange County (population
    118,227). It contains the county's government offices and the county
    courthouse. Hillsborough has no broadcast stations licensed to it,
    making it the largest county seat in North Carolina without a radio
    station. During the 1990's, Hillsborough grew by nearly 28%.
    Hillsborough is governed by a mayor and town council, together with
    a town manager. The town provides water and sewer service to its
    residents and operates police and fire departments.

[^4]: *Headland, Alabama and Chattahoochee, Florida*, 10 FCC Rcd 10352
    (1995); *Huntington Broadcasting Co. v. FCC*, 192 F.2d 33 (D.C. Cir.
    1951) *RKO General , Inc. (KFRC) (\"KFRC\"), 5* FCC Rcd 3222 (1990),
    and *Faye and Richard Tuck (\"Tuck\"),* 3 FCC Rcd 5374 (1988).

[^5]: In support of its proposal, Petitioner states that Haven is
    located in Reno County and has a 2000 U.S. Census population of
    1,175 persons. Haven has its own city government, with a city
    council, mayor and city administrator. Haven has its own post office
    and zip code. It also has its own police and fire departments, a
    well as parks and recreation department. Haven has a grade school,
    middle school, high school and public library. Haven is the home to
    over 50 businesses. The city provides electricity, and water sewer
    and refuse disposal services to the residences and businesses.

[^6]: See Footnote 4, *supra*.

[^7]: In support is its proposal, Petitioner states that North Canton is
    incorporated and has a 2000 U.S. Census population of 16,369
    persons. North Canton has mayor and a city council composed of seven
    members. It has three zip codes (44799, 44720, 44709) and two U.S.
    Post Offices. North Canton also has police, fire and EMS
    departments, schools and library. Petitioner further states that
    North Canton is home to a variety of businesses and commercial
    establishments, with a number of the businesses using "North Canton"
    in their names.

[^8]: Station WJER(AM) is operated pursuant to a "dual city" license,
    and is licensed to Dover and New Philadelphia Ohio. Clear Channel is
    the licensee of WJER(AM) and currently provides local serve to Dover
    and New Philadelphia.

[^9]: *See* Footnote 4, *supra.*

[^10]: In support of the proposal, Petitioner states that West Orange is
    an incorporated community with a 2000 U.S. Census population of
    4,111 persons. It has a mayor and five city council members. It has
    its own zip code (77630) and post office. West Orange as its own
    schools, and police and fire departments.

[^11]: *See* Footnote 4, *supra*.

[^12]: Petitioner originally filed a petition for rule making requesting
    the substitution of Channel 249C2 for Channel 249C3 at Eatonton, the
    reallotment of Channel 249C2 from Eatonton to Lincolnton, and the
    modification of Station WMGZ(FM)'s license accordingly. Petitioner
    subsequently filed a "supplement" to that petition requesting the
    reallotment of Channel 249C2 to Lexington instead of Lincolnton.
    However, since the Petitioner is no longer interested in the
    Lincolnton allotment, we will treat the "supplement" as a new
    petition for rule making.

    In support of its proposal, Petitioner states that Lexington is an
    incorporated community with a 2000 U. S. Census population of 239
    persons. It is the county seat of Oglethorpe County (12,635
    persons). The city is governed by a mayor and five-person council.
    Lexington has its own post office and zip code (30648) Lexington
    provides city services which include city water, city trash pickup,
    and fire protection. There are also courthouse offices, a city hall,
    and sheriff's offices. Lexington is home to offices of the Board of
    Commissioners, Magistrate Judge, Tax Commissioner, Health
    Department, and Department of Family and Children Services.

[^13]: See Footnote 4, supra*.*

[^14]: *See Certification that Section 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*).

[^15]: 44 U.S.C. § 3506(c)(4).