**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the matter of                 | *  | MB Docket No. 04-220         |
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| Amendment of Section 73.202(b)   | ** | RM-10861                     |
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| FM Table of Allotments,          | *  |                              |
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| FM Broadcast Stations.           | ** |                              |
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| (Clayton, New Mexico)            | *  |                              |
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**NOTICE OF PROPOSED RULEMAKING**

**Adopted: June 8, 2004 Released: June 10, 2004**

**Comments Date: August 2, 2004**

**Reply comments Date: August 17, 2004**

By the Assistant Chief, Audio Division:

1\. The Audio Division has before it a petition for rule making filed by
Clayton Community Broadcasters ("CCB"), proposing the allotment of
Channel 248C1 at Clayton, New Mexico, and deletion of vacant Channel
248C1 at Raton, New Mexico.[^1] CCB stated its intention to file an
application for Channel 248C1 at Clayton.

2\. In support of its request, CCB states that Channel 248C1 at Clayton
will provide a first local FM service to 15,650 people. Clayton is the
County Seat of Union County, New Mexico and is listed in the 2000 U.S.
census with a population of 2,524 people. Clayton has its own post
office, fire and police departments, local school system, Tourist
Information Center and numerous organizations such as the American
Legion and Boy Scouts and Girl Scouts. The community has a weekly
newspaper, *The Union County Leader,* two banks, several restaurants and
a hospital. CCB, in support of its proposal to delete Channel 248C1 at
Raton, argues that a first FM service will be provided to Clayton while
Raton will retain one full-time AM service and two full-time commercial
FM services.

3\. We believe CCB's request warrants consideration because the proposed
allotment at Clayton would provide the community with its first local FM
service. Channel 248C1 can be allotted to Clayton in compliance with the
Commission's spacing requirements without a site restriction at
coordinates 36-27-00 and 103-10-54. To accommodate the allotment at
Clayton, it is necessary to delete vacant Channel 248C1 at Raton, New
Mexico.[^2] We shall seek comments as to whether we should delete
Channel 248C1 at Raton, New Mexico. If an expression of interest is
filed during the comment cycle in this proceeding, we would retain
Channel 248C1 at Raton. It is Commission policy not to delete a channel
in which interest has been expressed. However, if no interest is
expressed for retention of Channel 248C1 in Raton during the initial
comment cycle, we shall delete the Channel to accommodate the allotment
at Clayton.

4\. In view of the fact that the proposed allotment could provide a
first local FM broadcast service to Clayton, the Commission believes it
would serve the public interest to solicit comments on the proposal to
allot Channel 248C1 at Clayton and delete Channel 248C1 at Raton.
Therefore, we will seek comments on the proposed amendment to the FM
Table of Allotments, Section 73.202(b) of the Commission's Rules, with
respect to Clayton and Raton, New Mexico:

Channel No.

Community Present Proposed

Raton, New Mexico 230C1, 243A, 248C1 230C1, 243A

Clayton, New Mexico \-\-\-\-\-\-\-- 248C1

5\. 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.

6\. Interested parties may file comments on or before August 2, 2004,
and reply comments on or before August 17, 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 such comments should be served on CCB's counsel, as follows:

Richard J. Hayes, Jr.

8404 Lee's Ridge Road

Warrenton, Virginia 20186

7\. Parties who choose to file by paper must 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, 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 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.

8\. 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.[^3]

9\. For further information concerning this proceeding, contact Rolanda
F. Smith, (202) 418-2180. 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 petitioners 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

John A. Karousos

Assistant Chief, Audio Division

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* to which this *Appendix* is attached.

2\. Showings Required. 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. 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. 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. The person filing the comments shall serve
comments on the petitioners. Reply comments shall be served on the
person(s) who filed comments to which the reply is directed. A
certificate of service shall accompany such comments and reply comments.
(*See* Section 1.420(a), (b) and (c) of the Commission\'s Rules.)
Comments should be filed with the Secretary, Federal Communications
Commission, Washington, D.C. 20554.

5\. Number of Copies. 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. 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, at its
headquarters, 445 12th Street, S.W., Washington, D.C.

[^1]: On June 10, 2003, by letter, the FCC dismissed N'Joy
    Broadcasting's application for Channel 248C1 and deleted the call
    sign KGOY at Raton, New Mexico. *See* BMPH-20011217AAI.

[^2]: Channel 249A was allotted to Raton, New Mexico, with cut-off
    protection, at the request of N'Joy Broadcasting in MM Docket 96-206
    to remove a conflict between two mutually exclusive applicants for
    Channel 243A at Raton. *See* 12 FCC Rcd 7657 (MM 1997). N'Joy
    Broadcasting filed an application for Channel 248C1 at Raton and was
    granted a construction permit for Channel 248C1. That application
    has been dismissed. *See* Note 1.

[^3]: *See Certification that Section 603 and 604 of the Regulatory
    Flexibility Act Do Not Apply to Rule Makings to Amend Sections
    73.202(b), 73.504 and 73.606(b) of the Commission\'s Rules*. 46 FR
    11549 (February 9, 1981).