**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | MB Docket No. 08-227         |
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| Amendment of Section 73.202(b)   | ** | RM-11493                     |
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| FM Table of Allotments,          | *  |                              |
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| FM Broadcast Stations.           | ** |                              |
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| (Batesville, Texas)              | *  |                              |
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**NOTICE OF PROPOSED RULEMAKING**

**Adopted: November 26, 2008 Released: November 28, 2008**

**Comments Date: January 21, 2009**

**Reply Comments Date: February 5, 2009**

By the Assistant Chief, Audio Division, Media Bureau:

1\. The Audio Division has before it a petition for rule making filed by
Katherine Pyeatt ("Petitioner"), proposing the allotment of Channel 250A
at Batesville, Texas, as its first local FM transmission service.
Petitioner states her intention to file an application for Channel 250A
at Batesville, if allotted. In this regard, Petitioner has concurrently
filed a FCC Form 301 new station application for Channel 250A at
Batesville,[^1] and the necessary filing fee in accordance with the
Commission\'s new procedures.[^2]

2\. Petitioner states that Batesville is a census designated place (CDP)
in Zavala County with a 2000 U.S. Census population of 1,298 persons.
Batesville has its own zip code (78829), post office, volunteer fire
department, elementary school, and local church. Additionally,
Petitioner states that the 2004-2005 Texas Almanac lists Batesville as
having twenty businesses, receiving a credit rating by Dun & Bradstreet.
Petitioner concludes that Batesville is a community that is certainly
deserving of a first FM local service.

3\. A staff engineering analysis indicates that Channel 250A can be
allotted to Batesville consistent with the minimum distance separation
requirements of the Commission's Rules (the "Rules) with the imposition
of a site restriction located 11.4 kilometers (7.1 miles) east of the
community at reference coordinates 28-58-27 NL and 99-30-12 WL.
Consistent with *Auburn,*[^3] this allotment is contingent on the
outcome of MM Docket Nos. 00-148[^4] and 01-130[^5] and MB Docket No.
05-112.[^6] Moreover, the proposed allotment of Channel 250A at
Batesville is located 320 kilometers from the Mexican Border. Therefore,
Mexican concurrence has been requested.

4\. We find that the Petitioner's proposal warrants consideration
because it could provide the community of Batesville with its first
local FM transmission service. Therefore, we will solicit comments on
the proposed amendment to the FM Table of Allotments, Section 73.202(b)
of the Rules, with respect to Batesville, Texas:

Channel No.

Community Present Proposed

Batesville, Texas \-\-\-\-\-\-\-\-\-- 250A

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 January 21, 2009,
and reply comments on or before February 5, 2009, 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, as follows:

Katherine Pyeatt

2215 Cedar Springs Rd. #1910

Dallas, Texas 75201

Gene A. Bechtel, Esq.

Law Office of Gene Bechtel

1050 17^th^ Street, N.W.

Suite 600

Washington, D.C. 20036

7\. 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. **All filings must be addressed to the Office of the
Secretary, Federal Communications Commission. Any filing that is not
addressed to the Office of the Secretary will be treated as filed on the
day it is received in the Office of the Secretary. *See* 47 C.F.R. §
1.7. Accordingly, failure to follow the specified requirements may
result in the treatment of a filing as untimely.**

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.[^7] 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(c)(4).

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]: *See* File No. BNPH-20080812AAI.

[^2]: *See* *Revision* *of* *Procedures* *Governing* *Amendments* *to*
    *FM* *Table* *of* *Allotments* *and* *Changes* *of* *Community* *of*
    *License* *in* *the* *Radio* *Broadcast* *Services*, Report and
    Order, 21 FCC Rcd 14212 (2006).

[^3]: *See Auburn, Alabama, et al,* Memorandum Opinion and Order, 18 FCC
    Rcd 10333 (MB 2003) (stating that parties may rely on actions taken
    in earlier rule making proceedings that are effective but not yet
    final ) (*"Auburn")*

[^4]: *See Quanah, Texas et al.,* Memorandum Opinion and Order, 19 FCC
    Rcd 7159 (MB 2004) (dismissing a counterproposal requesting the
    proposed allotment of Channel 249C1 at Converse, Texas) *app. for
    review pending.*

[^5]: *See Batesville, Texas,* Memorandum Opinion and Order, 23 FCC Rcd
    640 (2008) (affirming the dismissal of a proposal requesting the
    allotment of Channel 250A at Batesville, Texas) *appeal pending, sub
    nom Charles Crawford v. FCC & USA,* No. 08-1059 (D.C. Circuit)

[^6]: ^?^ *See Fredericksburg, Texas et al.,* Memorandum Opinion and
    Order, 22 FCC Rcd 10883 (MB 2007) (dismissing a counterproposal
    requesting the proposed allotment of Channel 249C1 at Converse,
    Texas) *app. for review pending.*

[^7]: *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).