**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Amendment of Section 73.202(b), ) MM Docket No. 99-330

Table of Allotments, ) RM-9677

FM Broadcast Stations. )

(Kankakee and Park Forest, Illinois) )

**[NOTICE OF PROPOSED RULE MAKING]{.underline}**

**Adopted: December 8, 1999; Released: December 15, 1999**

**Comment Date: February 7, 2000**

**Reply Comment Date: February 22, 2000**

By the Chief, Allocations Branch:

1\. The Commission has before it the petition for rule making filed by
Gene Milner Broadcasting Company, Inc.[^1] (\"petitioner\"), licensee of
Station WRZA(FM), Channel 260B, Kankakee, Illinois, proposing the
reallotment of Channel 260B from Kankakee to Park Forest, Illinois, and
the modification of Station WRZA(FM)\'s license accordingly. Petitioner
states its intention to apply for the channel, if reallotted to Park
Forest.

2\. Petitioner seeks to invoke the provisions of Section 1.420(i) of the
Commission\'s Rules, which permit the modification of a station\'s
license to specify a new community of license without affording other
interested parties an opportunity to file competing expressions of
interest. [See]{.underline} [Modification of FM and TV Authorizations to
Specify a New Community of License]{.underline}, 4 FCC Rcd 4870 (1989),
[recon. granted in part]{.underline}, 5 FCC Rcd 7094 (1990). In support
of the proposal, petitioner states that Park Forest is an incorporated
village in northeastern Illinois with a 1990 U.S. Census population of
24,656. It has a full complement of schools, churches and parks.[^2]

3\. We note that Station WRZA(FM) is a pre-1964-grandfathered
short-spaced station and that this grandfathered short-spacing should
not preclude the proposed community switch.

Petitioner contends that its proposed reallotment does not involve the
relocation of WRZA(FM)\'s transmitter, and therefore, no new
short-spacings will be created or exacerbated. While the petitioner does
not propose to change the transmitter site for Station WRZA(FM), we note
that this proposed reallotment and change of community of license from
Kankakee to Park Forest will continue six pre-existing, short-spacings
under the minimum distance separation requirements. Six of these
short-spacings are to other pre-1964 grandfathered stations as follows:
Station WUSN(FM), Channel 258B, Chicago, Illinois, Station WSHW(FM),
Channel 259B, Frankfort, Indiana, Station WHFB-FM,. Channel 260B, Benton
Harbor, Michigan, Station WTHI-FM, Channel 260B, Terre Haute, Indiana,
Station WJVL(FM), Channel 260B1, Janesville, Wisconsin, and Station
WNND(FM), Channel 262B, Chicago, Illinois. The remaining
two-short-spacings are to stations with authorizations under Section
73.215 that are permitted to be short-spaced to WRZA(FM) provided that
they provide contour protection or use directional antennas. These
stations are Station WIXO(FM), Channel 260A, Bartonville, Illinois, and
Station WGLC(FM), Channel 261A, Mendota, Illinois.

4\. In [Newnan and Peachtree City, Georgia]{.underline}, 7 FCC Rcd 6307
(1992), the Commission reallotted Channel 244A from Newnan to Peachtree
City and modified the license of Station WJKJ(FM) to specify Peachtree
City as the new community of license. Station WJKJ(FM) was a
\"grandfathered\" station (pre-1964, before the new spacing
requirements) that did not meet the current spacing requirements set
forth in Section 73.207 of the Commission\'s Rules. The proposal in
[Newnan and Peachtree]{.underline}, [supra]{.underline}, did not involve
any change in the technical facilities of Station WJKJ(FM). In taking
that action, we recognize that we were creating a new short-spaced
allotment in the contravention of Section 73.207 of the Commission\'s
Rules. Our rationale for that action was that \"grandfathered\" FM
stations were in compliance with our Rules when authorized and should be
afforded the same opportunity to change their community of license as
other stations authorized in conformity with our Rules. Recently, we
decided to sustain this policy. We held that pre-1964 \"grandfathered\"
short-spaced stations should be afforded the opportunity to change their
communities of license. [See]{.underline} [Oceanside and Encinitas,
California]{.underline}, MM Docket No. 99-170, (released September 10,
1999); 64 FR 54224, October 6, 1999. Consistent with [Oceanside and
Encinitas]{.underline}, we will propose to reallot and change the
community of license for Station WRZA(FM) from Kankakee to Park Forest
in spite of these short-spacings where there was no transmitter site
change and the short-spacings were \"grandfathered\" before 1964. In
conformance with [Oceanside and Encinitas]{.underline}, we believe that
the pre-1964 short-spacings do not present technical impediments to the
acceptability of this proposal because the proposed reallotment does not
involve the relocation of Station WRZA(FM), transmitter site and,
therefore, no new short-spacings will be created. Nevertheless, we
request that the petitioner document that each of the six short-spacings
referenced existed prior to 1964. In addition, we solicit comments
regarding the remaining short-spacings involving stations that appear to
have moved on a short-spaced basis toward Station WRZA(FM) using Section
73.215 of the Rules. This identical issue was recently raised in
[Killeen and Cedar Park, Texas]{.underline}, in MM Docket No. 98-176.
[See]{.underline} 13 FCC Rcd 18790 (1998). Accordingly, we request that
the petitioner submit comments addressing the nature and extent of these
remaining short-spacings. We specifically request comments on whether
these short-spacings arose entirely under Section 73.215 and/or occurred
in part prior to 1989 under the 3kW-spacing rules. Comments are
solicited as to why these remaining short-spacings should be treated
like the pre-1964 grandfathered short-spacings.

5\. Channel 260B can be allotted to Park Forest, Illinois, at
petitioner\'s current licensed site.[^3] At this site, Station WRZA(FM)
will remain short-spaced to Station WUSN(FM), Channel 258B, Chicago,
Illinois, Station WSHW(FM), Channel 259B, Frankfort, Indiana, Station
WHFB-FM, Channel 260B, Benton Harbor, Michigan, Station WTHI-FM, Channel
260B, Terre Haute, Indiana, Station WJVL(FM), Channel 260B1, Janesville,
Wisconsin, Station WIXO(FM), Channel 260A, Bartonville, Illinois, and
Station WNND(FM), Channel 262B, Chicago, Illinois, and Station WGLC(FM),
Channel 261A, Mendota, Illinois. As requested, we shall propose to
modify Station WRZA(FM)\'s license to specify Park Forest, Illinois, as
its new community of license. In accordance with Section 1.420(i) of the
Commission\'s Rules, we shall not accept competing expressions of
interest in the use of Channel 260B at Park Forest, Illinois.

6\. While the petitioner claims that its proposal will result in a
preferential arrangement of allotments as a first local transmission
service to Park Forest, we note that the petitioner is proposing to
reallot and change its community of license for Station WZRA(FM) from
Kankakee, a community located outside of the Chicago, Illinois Urbanized
Area and the central city of its own Urbanized Area, to Park Forest, a
community located within the Chicago, Illinois Urbanized Area. We also
recognize that the petitioner is not planning to change its transmitter
site and will continue to provide a city-grade signal to 100% of the
Kankakee, Illinois Urbanized Area, 10% of the Chicago, Illinois
Urbanized Area, and less than 40% of the Joliet, Illinois Urbanized
Area. Nevertheless, we will require the petitioner to submit a
[Huntington-Tuck]{.underline} showing that Park Forest is sufficiently
independent of the Chicago, Illinois Urbanized Area to warrant a first
local service preference.[^4] The reason for this approach is that, even
though no facility change is involved, where a proposed community is
either 100% within an Urbanized Area or only partially within such area,
we have applied the [Huntington-Tuck]{.underline} doctrine to the
proposal. [See]{.underline} [e.g.,]{.underline} [Malvern and Bryant,
Arkansas]{.underline}, 14 FCC Rcd 3576 (1999) ([Tuck]{.underline}
showing required where proposed community is partially within the
relevant Urbanized Area even though the station would only provide a
city grade signal to less than 1% of the Urbanized Area). By way of
contrast, no [Tuck]{.underline} showing will be required regarding the
Joliet, Illinois Urbanized Area because Park Forest is located outside
of this Urbanized Area and because the station\'s city-grade signal will
cover less than 50% of this Urbanized Area. [See]{.underline} [Headland,
Alabama and Chattahoochee, Florida]{.underline}, 10 FCC Rcd 10352
(1995). Likewise, even though Park Forest is located outside the
Kankakee, Illinois Urbanized Area and the level of city-grade coverage
is 100%, we will not require a [Tuck]{.underline} showing with respect
to the Kankakee, Illinois Urbanized Area because the station is not
changing its transmitter site and because it is not a migration to this
Urbanized Area. Indeed, the station is currently licensed to the central
city of this Urbanized Area. Finally, in view of the fact that no
facility change is planned and that the level of city-grade coverage
over the Chicago, Illinois Urbanized Area is low, the petitioner may
also submit arguments as to why the [Huntington-Tuck]{.underline}
policies should not be applicable in this case.

7\. In view of the fact that the proposed allotment would provide a
first local service to Park Forest without depriving Kankakee of its
sole local service, the Commission believes it would serve the public
interest to solicit comments on the proposal to allot Channel 260B to
Park Forest, Illinois.[^5] Therefore, we seek comments on the proposed
amendment of the FM Table of Allotments, Section 73.202(b) of the
Commission\'s Rules, for the communities listed below, to read as
follows:

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

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

Kankakee, Illinois 224A, 236A, 260B 224A, 236A

Park Forest, Illinois \-\-- 260B

8\. 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 by paragraph 2 of the Appendix before a channel will be
allotted.

9\. Interested parties may file comments on or before **February 7,
2000**, and reply comments on or before **February 22, 2000**, and are
advised to read the Appendix for the proper procedures. Comments should
be filed with the Secretary, Federal Communications Commission,
Washington, D.C. 20554. Additionally, a copy of such comments should be
served on the petitioners, or their counsel or consultants, as follows:

Dennis J. Kelly, Esq.,

Post Office Box 6658,

Annapolis, Maryland 21401

(Counsel for Petitioner).

10\. The Commission has determined that the relevant provisions of the
Regulatory Flexibility Act of 1980 do not apply to rule making
proceedings to amend the FM Table of Allotments, Section 73.202(b) of
the Commission\'s Rules. [See]{.underline} [Certification That Sections
603 and 604 of the Regulatory Flexibility Act Do Not Apply to Rule
Making to Amend Sections 73.202(b), 73.504]{.underline} [and 73.606(b)
of the Commission\'s Rules]{.underline}, 46 FR 11549, February 9, 1981.

11\. For further information concerning this proceeding, contact Sharon
P. McDonald, Mass Media Bureau, (202) 418-2180. For purposes of this
restricted notice and comment rule making proceeding, members of the
public are advised that no [ex parte]{.underline} 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]{.underline} 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]{.underline} presentation and shall not be considered in the
proceeding. Any reply comment which has not been served on the person(s)
who filed the comment, to which the reply is directed, constitutes an
[ex parte]{.underline} presentation and shall not be considered in the
proceeding.

FEDERAL COMMUNICATIONS COMMISSION

John A. Karousos Chief, Allocations Branch

Policy and Rules Division

Mass Media Bureau

Attachment: Appendix

# APPENDIX

1\. Pursuant to authority found in Sections 4(i), 5(c)(1), 303(g) and
(r), and 307(b) of the Communications Act of 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
Commission\'s Rules and Regulations, as set forth in the [Notice of
Proposed Rule Making]{.underline} 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]{.underline} 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]{.underline} Section 1.420(d) of the Commission\'s
Rules).

\(b\) With respect to petitions for rule making which conflict with the
proposals in this [Notice]{.underline}, 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]{.underline} 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. ([See]{.underline} Section 1.420(a), (b) and (c)
of the Commission\'s Rules.) Comments should be filed with the Office of
the Secretary, Federal Communications Commission, 445 12th Street, S.W.,
TW-A325, Washington, D.C. 20554.

5\. [Number of Copies]{.underline}. In accordance with the provisions of
Section 1.420 of the Commission\'s Rules and Regulations, 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 Reference Information
Center (Room CY-A257) at its headquarters, 445 12th Street, S.W.,
Washington, D.C.

[^1]:     ^?^We note that on April 17, 1998, Station WZRA(FM) was
    assigned from Gene Milner Broadcasting Co., Inc. to WRZA License
    Company, L.L.C., and was consummated on August 26, 1998.

[^2]:     ^?^Park Forest also has a police department, banks,
    businesses, civic and social organizations.

[^3]:     ^?^The coordinates for Channel 260B at Park Forest are
    41-18-04 North Latitude and 87-49-35 West Longitude.

[^4]:     ^?^[See]{.underline} [Huntington Broadcasting co. v.
    FCC]{.underline}, 192 F.2d 33 (D.C. Cir. 1951) [RKO General , Inc.
    (KFRC) (\"KFRC\")]{.underline}, 5 FCC Rcd 3222 (1990), and [Faye and
    Richard Tuck]{.underline} (\"[Tuck]{.underline}\"), 3 FCC Rcd 5374
    (1988). [KFRC]{.underline} and [Tuck]{.underline} clarified the type
    of evidence considered in determining whether a suburban community
    should be denied a first local service preference. First, the
    Commission examines \"signal population coverage,\" that is, the
    degree to which the proposed station could provide service not only
    to the suburban community, but also to the adjacent metropolis.
    Second, the Commission examines the size and proximity of the
    suburban community relative to the adjacent city, and whether the
    suburban community is within the urbanized area of the city. Third,
    the Commission determines the interdependence of the suburban
    community with the central city. This third type of evidence
    involves eight additional factors set forth in [Tuck]{.underline}.

[^5]:     ^?^Stations WKAN(AM), WTKC(FM), WLRT(FM) and WVLI(FM) will
    remain licensed to the community.