**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

)

In the Matter of )

)

Amendment of Section 73.622(i), ) MB Docket No. 08-155

Final DTV Table of Allotments, ) RM-11479

Television Broadcast Stations. )

(Honolulu, Hawaii) )

**NOTICE OF PROPOSED RULE MAKING**

**Adopted: July 24, 2008 Released: July 28, 2008**

**Comment Date: \[30 days after date of publication in the Federal
Register\]**

**Reply Comment Date: \[45 days after date of publication in the Federal
Register\]**

By the Chief, Video Division, Media Bureau:

1.  The Commission has before it a petition for rulemaking filed by HITV
    License Subsidiary, Inc. ("HITV"), the licensee of stations
    KGMB(TV), analog channel 9 and KGMB-DT, DTV channel 22, Honolulu,
    Hawaii. The previous licensee of the station had elected channel 9
    as its post-transition DTV channel and HITV now requests the
    substitution of the station's pre-transition DTV channel 22 for
    channel 9 at Honolulu.

2.  HITV states that after it acquired the station, it determined that
    replication of the existing service area on channel 9 may not be
    possible, given the fact that two other stations in the market have
    elected channels 8 and 10 for post-transition use at a different
    site than KGMB-DT. According to HITV, unlike operations on channel
    9, operation on channel 22 will have only one adjacent-channel
    station in the market, on channel 23, and HITV intends to co-locate
    with that station, which will minimize interference.

3.  We believe that HITV's proposal warrants consideration. DTV channel
    22 can be substituted for DTV channel 9 for post-transition use at
    Honolulu, Hawaii as proposed, in compliance with the principle
    community coverage requirements of Section 73.625(a) of the
    Commission's rules,[^1] at coordinates 21-24-3 N. and 158-06-10
    W.[^2] In addition, we find that this channel change meets the
    technical requirements set forth in Sections 73.616 and 73.623 of
    the Commission's rules.[^3] We propose to substitute DTV channel 22
    for DTV channel 9 for station KGMB-DT at Honolulu with the following
    specifications:

    City and State DTV Channel DTV Power (kW) Antenna HAAT (m)

Honolulu, Hawaii 22 40 666

4.  Accordingly, we seek comments on the proposed amendment of the DTV
    Table of Allotments, Section 73.622(i) of the Commission's
    rules,[^4] for the community listed below, to read as follows:

    [Channel No.]{.underline}

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

    Honolulu, Hawaii 8, 9, \*10, \*11, 19, 23, 27 8, \*10, \*11, 19, 22,
    23, 27 31, 35, 40, \*43 31, 35, 40, \*43

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 addition, when the Commission lifted the freeze on the
    filing of DTV maximization applications and petitions for digital
    channel substitutions,[^5] it announced that until the end of the
    statutory DTV transition on February 17, 2009, mutually-exclusive
    applicants would be provided a 30-day period of time, from the date
    of a public notice identifying mutually-exclusive proposals, to
    resolve their mutual-exclusivity via engineering amendment or
    settlement, rather than the 90-day period afforded by Section
    73.623(h) of the rules.[^6] Similarly, we will also shorten the
    settlement period for rulemaking petitions and mutually-exclusive
    maximization applications. If we receive a maximization application
    on or before the date for filing initial comments in this
    proceeding, which proposes a facility which is mutually-exclusive
    with the proposal set forth herein, we will issue a public notice
    and the parties will have 30 days within which to resolve their
    mutual-exclusivity. If the parties resolve their mutual-exclusivity,
    we will complete the rulemaking process by issuing the appropriate
    order. If the parties are unable to resolve their
    mutual-exclusivity, we will terminate this proceeding and dismiss
    the maximization application.

6.  Pursuant to Sections 1.415 and 1.419 of the Commission's rules,
    interested parties may file comments on or before \[30 days after
    publication in the Federal Register\] and reply comments on or
    before \[45 days after publication in the Federal Register\], 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 12th Street, S.W., TW-A325, Washington,
    D.C. 20554. Additionally, a copy of such comments should be served
    on the petitioner, or its counsel or consultant, as follows:

    Patrick S. Scott, Esq.

    Dow Lohnes PLLC

    1200 New Hampshire Avenue, N.W.

    Suite 800

    Washington, D.C. 20036-6802

7.  Parties 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, 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, Maryland 20743. U.S.
    Postal Service first-class mail, Express Mail, and Priority Mail
    should be addressed to 445 12th Street, S.W., Washington,
    D.C. 20554. All filings must be addressed to Marlene H. Dortch,
    Secretary, Federal Communications Commission, Office of the
    Secretary. 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.[^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 DTV Table of Allotments, Section 73.622(i).
    This document does not contain proposed information collection
    requirements subject to the Paperwork Reduction Act of 1995, Public
    Law 104-13. In addition, therefore, it does not contain any proposed
    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, § 3506(c)(4).

9.  For further information concerning the proceeding listed above,
    contact Joyce L. 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 Rule Making until the proceeding has been decided
    and such decision in the applicable docket 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 any summary of
    any new information shall be served by the person making the
    presentation upon the other parties to the proceeding in a
    particular docket 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 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

**APPENDIX**

1\. Pursuant to authority found in 47 U.S.C. Sections 4(i), 5(c)(1),
303(g) and (r), and 307(b) of the Communications Act of 1934, as
amended, and 47 C.F.R. Sections 0.61, 0.204(b) and 0.283, IT IS PROPOSED
TO AMEND the DTV Table of Allotments, 47 C.F.R. Section 73.622(i), 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 the 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.)
Because the Commission has not yet lifted its freeze on the filing of
petitions for rulemaking to establish new DTV channel allotments and for
changes in community of license,[^8] we will not consider
counterproposals which propose new allotments or changes in community of
license.

\(b\) With respect to petitions for rule making which conflict with the
proposal 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 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. An electronic copy should also be sent to
<joyce.bernstein@fcc.gov>.

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. 20554.

[^1]: 47 C.F.R. § 73.625(a).

[^2]: HITV's proposed facility is 11.1 kilometers from the Commission's
    monitoring station at Waipahu, Hawaii. See 47 C.F.R. § 73.1030(c).

[^3]: 47 C.F.R. §§ 73.616, 73.623.

[^4]: 47 C.F.R. § 73.622(i).

[^5]: *See* Commission Lifts the Freeze on the Filing of Maximization
    Applications and Petitions for Digital Channel Substitutions,
    Effective Immediately, DA 08-1213 (released May 30, 2008).

[^6]: 47 C.F.R. § 73.623(h)(3).

[^7]: See 47 C.F.R. § 1.7.

[^8]: *See* Public Notice, "Freeze on the Filing of Certain TV and DTV
    Requests for Allotment or Service Area Changes," 19 FCC Rcd 14810
    (MB 2004).