**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | MB Docket No. 02-223         |
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| Amendment of Section 73.622(b),  | ** | RM-10520                     |
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| Table of Allotments,             | *  |                              |
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| Digital Television Broadcast     | ** |                              |
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| (Avalon, California)             | *) |                              |
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**NOTICE OF PROPOSED RULEMAKING**

**Adopted: August 5, 2002 Released: August 7, 2002**

Comment Date: August 15, 2002

Reply Comment Date: August 23, 2002

By the Chief, Video Division:

1\. The Commission has before it a petition for rulemaking filed by
Pappas Southern California License, LLC (Pappas), licensee of analog
television station KAZA-TV, NTSC Channel 54, Avalon, California. Avalon
does not presently have a paired DTV channel allotment[^1] and Pappas
requests that the Commission initiate a rulemaking proceeding to amend
the Table of Allotments for Digital Television Stations, 47 C.F.R. §
73.622(b)(2001), to allot either DTV Channel 29 or DTV Channel 47 to
Avalon. Pappas proposes to operate at its currently authorized analog
site on Mt. Wilson, with a mazimum ERP of 500 kw and HAAT of 963 meters.

2\. Pappas' petition is filed pursuant to Section 531 of the Public
Health, Security, and Bioterrorism Preparedness and Response Act of 2002
(the Act),[^2] which provides that:

> \(a\) PAIR ASSIGNMENT REQUIRED. -- In order to further promote the
> orderly transition to digital television, and to promote the equitable
> allocation and use of digital channels by television broadcast
> permittees and licensees, the Federal Communications Commission, at
> the request of an eligible licensee or permittee, shall, within 90
> days after the date of enactment of this Act, allot, if necessary, and
> assign a paired digital television channel to that licensee or
> permittee, provided that --
>
> \(1\) such channel can be allotted and assigned without further
> modification of the tables of allotments as set forth in sections
> 73.606 and 73.622 of the Commission regulations; and
>
> \(2\) such allotment and assignment is otherwise consistent with the
> Commission' rules (47 CFR part 73.)

The Act further defines an eligible licensee or permittee as one that
had an application pending for an analog television station construction
permit as of October 24, 1991, which application was granted after April
3, 1997, and continued to hold a permit or license for the station as of
June 12, 2002, the date of enactment of the Act. Thus, Pappas is within
the class of parties defined as being eligible for a paired DTV channel
allotment and assignment.

3\. According to Pappas, either DTV Channel 29 or DTV Channel 47 is
available for allotment to Avalon. At the request of USA Station Group
Partnership of Southern California (USA), the former licensee of station
KFTR-TV, NTSC Channel 46, Ontario, California, the Commission issued a
*Notice of Proposed Rule Making* proposing the substitution of DTV
Channel 29 for station KFTR-TV's assigned DTV Channel 47c.[^3] Pappas,
which opposed USA's requested channel substitution, states that should
the Commission decline to substitute a new allotment on DTV Channel 29
for the existing allotment of DTV Channel 47 to Ontario, then DTV
Channel 29 will be available for allotment to Avalon pursuant to the
Act. Alternatively, if the Commission adopts the proposed DTV channel
substitution, then KTFR-DT's currently allotted DTV Channel 47 will be
available for allotment to Avalon.

4\. With respect to Pappas' request that the Commission initiate a rule
making proceeding to allot DTV Channel 29 to Avalon, by *Report and
Order* adopted July 23, 2002 (DA 02-1077), the Commission amended the
DTV Table of Allotments to substitute DTV Channel 29c for Channel 47 at
Ontario, California. Thus, DTV Channel 29 is not available for allotment
to Avalon.

5\. With respect to Pappas' request that the Commission initiate a rule
making proceeding to allot DTV Channel 47 to Avalon, that request is
contingent upon the licensing of the facilities specified in the
outstanding construction permit for KOCE-DT, channel \*48, Huntington
Beach, California. In the context of rule making proceedings, the
Commission has concluded that "processing petitions for rule making
which would rely on other events by third parties to effect the
compliance of the proposal with the separation requirements is not
conducive to the efficient transaction of Commission business and
imposes unnecessary burdens on the administrative resources" of the
Commission.[^4] Accordingly, the Commission has a policy of not
accepting petitions for rulemaking contingent on the licensing of
facilities set forth in an outstanding construction permit.[^5] However,
we believe it appropriate to waive this processing standard in this
limited circumstance, where Congress has directed the Commission to
allot a DTV channel to Avalon, if technically feasible, no later than
September 12, 2002, and Pappas represents that the licensee of KOCE-TV
has indicated that it intends to proceed with the construction of
KOCE-DT's facilities on Mount Wilson in accordance with the terms of its
construction permit.

6\. Accordingly, we seek comments on the proposal to amend the DTV Table
of Allotments, Section 73.622 of the Commission's rules, in the
following manner:

  ----------------------- ----------------------- -----------------------
  City and State of       Present Channel(s)      Proposed Channel(s)
  License                                         

  Avalon, California      \--                     47c
  ----------------------- ----------------------- -----------------------

7\. Since the proposed site is within 275 kilometers of the US-Mexican
border, concurrence by the Mexican government must be obtained for this
allotment.

8\. The Commission's authority to institute rule making proceedings,
showing required, cut-off procedures, and filing requirements are
contained in the attached Appendix and are incorporated by reference
herein.

9\. Interested parties may file comments on or before August 15, 2002,
and reply comments on or before August 23, 2002, 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 hand-served on
the petitioner, as follows:

John Griffith Johnson, Jr., Esq.

Paul, Hastings, Janofsky & Walker, LLP

1299 Pennsylvania Avenue, N.W.

10^th^ Floor

Washington, D.C. 20004-2400

(Counsel for Pappas Southern California License, LLC)

10\. The Commission has determined that the relevant provision of the
Regulatory Flexibility Act of 1980 do not apply to rule making
proceedings to amend the TV Table of Allotments, Section 73.606(b) and
73.622(b) of the Commission's rules. *See 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 and 73.606(b) of the
Commission's Rules*, 46 FR 11549, February 9, 1981. The Regulatory
Flexibility Act of 1980 would also not apply to rule making proceedings
to amend the DTV Table of Allotments, Section 73.622(b) of the
Commission's rules.

11\. For further information concerning this proceeding, contact Joyce
Bernstein, Media Bureau, (202) 418-1600. 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 Rulemaking 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 this 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 was not served on the
petitioner constitutes an *ex parte* 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* presentation and shall not be
considered in the proceeding.

FEDERAL COMMUNICATIONS COMMISSION

Barbara A. Kreisman

Chief, Video Division

Media Bureau

Attachment: Appendix

[APPENDIX]{.underline}

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, the
Commission seeks comment on whether to amend the DTV Table of
Allotments, Section 73.622(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* 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*, 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 by hand on the
petitioner by the person filing the comments. Reply comments shall be
served by hand 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 1.420(a), (b) and (c) of the
Commission\'s Rules.) The Commission permits the electronic filing of
all pleadings and comments in proceeding involving petitions for rule
making (*except in broadcast allotment proceedings*). *See Electronic
Filing of Documents in Rule Making Proceedings*, GC Docket No. 97-113
(rel. April 6, 1998). Filings by paper 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, Vistronix, 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 and 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, S.W., Washington, D.C.
20554. All filings must be addressed to the Commission\'s Secretary,
Office of the Secretary, Federal Communications Commission, 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 Center
(Room CY-A257) at its headquarters, 445 12th Street, S.W., Washington,
D.C.

[^1]: The 1996 Telecommunications Act limited initial eligibility for
    DTV licenses to persons that, as of the date of the issuance of the
    license, held either a construction permit or license for a
    television broadcast station. Consistent with the statutory
    provision, the Commission issued initial DTV licenses simultaneously
    to all eligible permittees and licensees on April 3, 1997. *See
    Fifth Report and Order* in MM Docket No. 87-268, 12 FCC Rcd 12809
    (1997). Because Pappas' application for a construction permit for a
    new station on Channel 54 (File No. BPCT-19860210KM) was not granted
    until June 2, 1998, it did not receive a paired DTV channel or
    license.

[^2]: Public Law No. 107-188, 116 Stat. 594, enacted June 12, 2002.

[^3]: *Amendment of Section 73.622(b), Table of Allotments, Digital
    Television Broadcast Stations (Ontario, California),* 16 FCC Rcd
    2276 (2001).

[^4]: *Amendment of Section 73.202(b), Table of Allotments, FM Broadcast
    Stations (Cut and Shoot, Texas*), 11 FCC Rcd 16383 (P&R 1996).

[^5]: *Id.*