**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Amendment of Section 73.202(b), ) MB Docket No. 04-402

Table of Allotments, ) RM-11087

FM Broadcast Stations. )

(Cheyenne and Encampment, Wyoming) )

**NOTICE OF PROPOSED RULE MAKING**

**Adopted: October 20, 2004 Released: October 25, 2004**

**Comment Date: December 16, 2004**

**Reply Comment Date: December 31, 2004**

By the Assistant Chief, Audio Division, Media Bureau:

1\. The Audio Division has before it a petition for rule making filed by
Mountain States Radio, Inc. ("Petitioner"), licensee of Station KRRR,
Channel 285C2, Cheyenne, Wyoming. Petitioner seeks to amend the FM Table
of Allotments by allotting Channel 285C2 to Encampment, Wyoming, as that
community's first local aural transmission service. In order to
accommodate the foregoing new allotment, Petitioner requests that
Channel 229C2 be substituted for Station KRRR's Channel 285C2 allotment
at Cheyenne, Wyoming. To accommodate this channel substitution,
Petitioner asks that Channel 285C2 be substituted for vacant Channel
229A at Cheyenne at a new reference site that would, in turn, also
accommodate the allotment of Channel 285C2 at Encampment. Petitioner
states that, if the proposed amendments to the FM Table of Allotments
are made, Petitioner will file an application to specify Station KRRR's
operation on Channel 229C2 and will expeditiously construct such
facilities. Further, Petitioner states that if the new channel for
Encampment is allotted, Petitioner will file an application to operate
on that channel and will expeditiously construct a station.

2\. Petitioner asserts that the adoption of its proposal will result in
a preferential arrangement of FM allotments consistent with the FM
allotment priorities set forth in *Revision of FM Assignment Policies
and Procedures.*[^1] First, Petitioner's proposal will result in the
provision of first local aural transmission service to Encampment,
Wyoming. Petitioner observes that Encampment is an incorporated
community located in south central Wyoming with a 2000 U.S. Census
population of 443 persons and that it has its own post office, zip code,
and many retail businesses. Second, Petitioner states that its proposal
to substitute Channel 229C2 for its current operation of Station KRRR on
Channel 285C2 will result in improved service to Cheyenne because
Station KRRR will operate from a new location that allows it to operate
with full Class

C2 facilities, unlike its current operation at less than maximum Class
C2 facilities.[^2] Third, Petitioner asserts that its request to
substitute Channel 285C2 for vacant and unapplied for Channel 229A will
allow Cheyenne to receive upgraded and improved service.

3\. We request Petitioner to provide us with specific data comparing the
areas and populations served by Station KRRR's current operation on
Channel 285C2 with the areas and populations to be served by Station
KRRR's proposal to operate at a new transmitter site on Channel 229C2,
assuming the use of maximum allowable facilities by both operations. In
addition, we request Petitioner to provide specific data comparing the
areas and populations that would be served by the current allotment of
Channel 229A at Cheyenne with the areas and populations to be served by
the proposed Channel 285C2 at Cheyenne, assuming the use of maximum
allowable facilities by both allotments.

4\. This proposal complies with the Commission's technical rules and
warrants consideration because it could provide a first local aural
transmission service to Encampment, Wyoming, and improved aural service
to Cheyenne, Wyoming. Consistent with the technical requirements of the
Commission's rules, Channel 285C2 can be allotted to Encampment,
Wyoming, utilizing coordinates of 41-14-00 NL and 106-56-46 WL, with a
site restriction of 13.4 kilometers (8.3 miles) west of Encampment;
Channel 229C2 can be allotted to Cheyenne utilizing coordinates of
41-08-32 NL and 104-32-21 WL, with a site restriction of 23.0 kilometers
(14.3 miles) east of Cheyenne; and Channel 285C2 can be allotted to
Cheyenne utilizing coordinates of 41-21-25 NL and 104-40-55 WL, with a
site restriction of 26.7 kilometers (16.6 miles) northeast of Cheyenne.

5\. Accordingly, we seek comments on the proposed amendment of the FM
Table of Allotments, 47 C.F.R. Section 202(b), with respect to the
communities listed below, as follows:

[Channel Nos.]{.underline}

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

Cheyenne, Wyoming 229A, 250C1, 260C2, 264C1 229C2, 250C1, 260C2, 264C1

280C2, 285C2, 292A 280C2, 285C2, 292A

Encampment, Wyoming \-\-\-\-\-\-\-\-\-\-- 285C2

6\. 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.

7\. Pursuant to 47 C.F.R. Sections 1.415 and 1.419, interested parties
may file comments on or before December 16, 2004, and reply comments on
or before December 31, 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 Petitioner's
counsel, as follows:

A. Wray Fitch, Esq.

Gammon & Grange, P.C.

8280 Greensboro Drive, 7^th^ Floor

McLean, Virginia 22102-3807

8\. Parties must file an original and four paper 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.

9\. 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.[^3] 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
44 U.S.C. 3506©(4).

10\. For further information concerning this proceeding, contact R.
Barthen Gorman, 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* 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 47 U.S.C. Sections 4(i), 5(c)(1),
303(g) and (r), and 307(b), and 47 C.F.R. Sections 0.61, 0.204(b) and
0.283, IT IS PROPOSED TO AMEND the FM Table of Allotments, 47 C.F.R.
Section 73.202(b), 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* 47 C.F.R. Section 1.420(d).)

\(b\) Petitions for rule making which conflict with the proposals in
this *Notice* 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 47 C.F.R. Sections 1.415 and 1.420, 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* 47 C.F.R. Section 1.420(a), (b) and (c)). Comments should be
filed with the Secretary, Federal Communications Commission, Washington,
D.C. 20554.

5\. Number of Copies. 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. 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]: 90 FCC 2d 88 (1982)*.* The FM allotment priorities are: (1) first
    full-time aural service; (2) second full-time aural service; (3)
    first local service and (4) other public interest matters. Equal
    weight is given to priorities (2) and (3).

[^2]: Petitioner notes that its current facilities are 25.5 kilowatts of
    effective radiated power ("ERP") and 35 meters in antenna height
    above average terrain ("HAAT"). Maximum facilities for a Class C2 FM
    station are 50 kilowatts ERP and 150 meters of antenna HAAT. See 47
    C.F.R. § 73.211(b).

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