**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the matter of                 | *  | MB Docket No. 05-54          |
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| Amendment of Section 73.202(b)   | ** | RM-11151                     |
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| Table of Allotments,             | *  |                              |
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| FM Broadcast Stations.           | ** |                              |
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| (Otter Creek, Florida)           | *  |                              |
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**NOTICE OF PROPOSED RULEMAKING**

**Adopted: February 16, 2005 Released: February 18, 2005**

**Comment Date: April 11, 2005**

**Reply Comment Date: April 26, 2005**

By the Assistant Chief, Audio Division, Media Bureau:

1\. The Audio Division has before it for consideration a Petition for
Rule Making filed by Living Proof, Inc. ("Petitioner"), requesting the
reservation of vacant Channel 240A at Otter Creek, Florida for
noncommercial educational ("NCE") use. Petitioner states that it will
file an application for Channel 240A at Otter Creek, if reserved for NCE
use.

2\. In the *Reexamination of the Comparative Standards for Noncommercial
Educational Applicants* ("*NCE Report and Order"*)*,* the Commission
established revised criteria by which a rulemaking proponent may reserve
an FM allotment for NCE use.[^1] Under the expanded criteria, a
proponent must demonstrate that it is technically precluded from using a
reserved channel (Channels 200 through 220) and the proposal would
provide a first and/or second NCE radio service to at least 10 percent
of the population within the 1 mV/m contour of the proposed station.
Originally, the Commission limited this expanded reservation criteria to
future allotment proceedings. Thereafter, the Commission extended the
expanded criteria to existing vacant FM allotments for which a *Notice
of Proposed Rule Making* had been released prior to August 7, 2000, the
effective date of the *NCE Report and Order*.[^2] In a Public Notice
released September 30, 2003, we invited petitions for rule making to
reserve vacant FM allotments for NCE use pursuant to the *NCE Second
Report and Order.*[^3] In response to the Public Notice, we received 129
petitions for the reservation of 91 allotments.

3.  Based upon our preliminary study, the Petitioner has demonstrated
    compliance with the expanded criteria set forth in the *NCE Report
    and Order.* We find that the public interest could be served by
    proposing the reservation of the Channel 240A at Otter Creek for NCE
    use.[^4] As such, we will not entertain counterproposals or any
    proposal to modify the underlying allotment other than reserving the
    allotment for NCE use. Instead, a party may file rebuttal comments
    identifying a site at which a reserved channel could be assigned
    with facilities fully equivalent to the proposed reserved allotment.
    Such an alternate reserved channel proposal also must satisfy the
    first and/or second NCE radio service criterion. In addition, a
    party may file comments demonstrating that the reservation proposal
    would not, in fact, provide a first and/or second NCE radio service
    to ten percent of the population within the 1 mV/m contour of the
    proposed station.

4\. Accordingly, we seek comment on the proposed amendment of the FM
Table of Allotments, Section 73.202(b) of the Commission's Rules, with
respect to Otter Creek, Florida.

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

Otter Creek, Florida 240A \*240A

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 in paragraph 2 of the Appendix before a channel will be
allotted.

6\. Pursuant to Sections 1.415 and 1.419 of the Commission's Rules,
interested parties may file comments on or before April 11, 2005, and
reply comments on or before April 26, 2005, 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 the petitioner, as follows:

Harry C. Martin, Esq.

Lee G. Petro, Esq.

Counsel for Living Proof, Inc.

Fletcher, Heald & Hildreth PLC

1300 North 17^th^ Street, 11^th^ Floor

Arlington, Virginia 22209

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, 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 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. *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.[^5] 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, *[see]{.underline}* 44
U.S.C. 3506(c)(4).

9\. For further information concerning a proceeding listed above,
contact Rolanda F. Smith, 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 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 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

John A. Karousos

Assistant Chief

Audio Division

Media Bureau

Attachment: Appendix

[APPENDIX]{.underline}

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]{.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* 47 C.F.R. Section 1.420(d).)

\(b\) 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 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. Comments shall
be served on the petitioner by the person filing the comments. Reply
comments shall be served 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* 47 C.F.R. Section
1.420(a), (b) and (c).) Comments should be filed with the Office of the
Secretary, Federal Communications Commission, 445 12th Street, S.W.,
TW-A325, Washington, D.C. 20554.

5\. [Number of Copies]{.underline}. 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]{.underline}. 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 (Room CY-A257) at its headquarters, 445 12^th^ Street, S.W,
Washington, D.C.

[^1]: 15 FCC Rcd 7386 (2000). Previously, the Commission would only
    reserve a channel in the non-reserved FM band (Channels 221 through
    300) if the petitioner demonstrated that no reserved channel, not
    technically precluded by domestic FM broadcast stations, could be
    used without causing prohibited interference to Channel 6 TV
    station(s) and to foreign allotments.

[^2]: *Reexamination of the Comparative Standards for Noncommercial
    Educational Applicants* ("*NCE Second Report and Order*")*,* 18 FCC
    Rcd 6691 (2003).

[^3]: *Media Bureau Opens Window to Permit Noncommercial Educational
    Reservation Showings for Certain Vacant FM Allotments,* 18 FCC Rcd
    19600 (MB 2003).

[^4]: The reference coordinates for Channel \*240A at Otter Creek are
    29-16-52 North Latitude and 82-51-42 West Longitude.

[^5]: *See Certification that Section 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).