**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Amendment of Section 73.202(b), ) MB Docket No. 03-231

Table of Allotments, ) RM-10818

FM Broadcast Stations. )

(Mt. Union, Huntingdon, Centre Hall, and )

South Williamsport, Pennsylvania) )

**NOTICE OF PROPOSED RULE MAKING**

**Adopted: November 12, 2003 Released: November 14, 2003**

**Comment Date: January 5, 2004**

**Reply Date: January 20, 2004**

By the Assistant Chief, Audio Division:

1\. The Audio Division has before it for consideration a Petition for
Rule Making filed by Megahertz Licenses, LLC ("Petitioner") requesting
the deletion of Channel 292A at Huntingdon, Pennsylvania, the allotment
of Channel 292A at Mount Union, Pennsylvania, and the modification of
the license of Station WWLY(FM) accordingly. Petitioner also requests
the substitution of Channel 258B1 for Channel 258A and the reallotment
of that channel from Mount Union to Centre Hall, Pennsylvania, and the
modification of the license of Station WXMJ(FM) accordingly. Petitioner
is the licensee of Station WXMJ(FM), Mount Union, Pennsylvania, and is
the licensee of Station WWLY(FM), Huntingdon, Pennsylvania. In order to
accomplish these allotment changes, Petitioner further proposes to
change the transmitter site for Station WZXR(FM), South Williamsport,
Pennsylvania, operating on Channel 257A. Petitioner includes with its
petition a letter of consent to that relocation.[^1]

2\. Petitioner states that the reallotment of Channel 258B1, Station
WXMJ(FM), from Mt. Union to Centre Hall would provide a first local
service to Centre Hall. Petitioner further states that a first local
service at Mt. Union could be preserved by reallotting Channel 292A,
Station WWLY(FM), from Huntingdon to Mt. Union. Finally, Petitioner
states that two full-service radio stations, WHUN(AM) and WLAK(FM),
Channel 278A, will remain licensed to Huntingdon and will continue to
serve that community.

3\. In determining whether to approve a change of community, we compare
the existing versus the proposed arrangement of allotments using the FM
allotment priorities set forth in *Revision of FM Assignment Policies
and Procedures*.[^2] 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. Co‑equal weight is
given to priorities (2) and (3).

4\. This proposal warrants consideration because the proposed allotment
would provide Centre Hall with a first local aural broadcast
transmission service and would prevent the removal of the sole local
service at Mt. Union. Centre Hall, which had a 2000 U.S. Census
population of 1,079 persons, is a borough located in Centre County,
Pennsylvania. Petitioner states that Centre Hall has an elected seven
member borough council presided over by an elected mayor. Petitioner
further states that Centre Hall provides fire, water, and sewage
services to the community, and has its own post office and zip code
(16828), its own elementary school, four churches, a Lions Club, a
Women's Club, a Garden Club, the Centre Hall Farmers and Businessmen's
Association, a branch facility of the county public library system, and
numerous retail establishments.

5\. Centre Hall is located within the State College, Pennsylvania,
Urbanized Area, and the proposed allotment of Channel 258B1 at Centre
Hall would allow the 70 dBu signal of Station WXMJ(FM) to cover 100
percent of that urbanized area. Mt. Union, the current allotment
community for Channel 258A, Station WXMJ(FM), is not part of the State
College Urbanized Area, nor does the existing 70 dBu signal of Station
WXMJ(FM) cover any portion of an urbanized area. Because Station
WXMJ(FM) would be moving into an urbanized area, we shall apply the
requirements of *Tuck* in determining whether Centre Hall is entitled to
preference as a first local service.[^3]

6\. In *Tuck*, the Commission specified the following three factors for
evaluating a community's independence, in order to establish an
allotment preference as a first local service: (1) signal population
coverage, *i.e*., the degree to which the proposed station will provide
service to both the suburban community and the larger metropolis; (2)
the size and proximity of the suburban community relative to the
metropolis; and (3) the interdependence of the suburban community with
the metropolis.[^4] Of these three factors, the most significant is the
third.[^5] In its comments, Petitioner should supply information to
establish that Centre Hall is sufficiently independent of State College
to qualify for a first local service preference, consistent with the
requirements set forth by the Commission in *Tuck*.

7\. Petitioner also should provide further information regarding the
gain and loss that each existing service area would experience if the
changes proposed in the petition were adopted. While Petitioner supplied
some gain and loss figures for the proposed allotment changes, we
believe that more specific information is necessary for full
consideration of the proposals. Petitioner should state both the gain
and loss in the area and population served for each of the stations
involved. In addition, as to the loss figures, Petitioner should state,
separately for each station's existing service area, the number of
persons who would be left with: (a) four aural broadcast services, (b)
three aural broadcast services, (c) two aural broadcast services, (d)
one aural broadcast service, and (e) no aural broadcast service.
Correspondingly, Petitioner should state, separately for each station's
proposed service area, the number of persons who would gain: (a) a first
aural broadcast service, (b) a second aural broadcast service, (c) a
third aural broadcast service, (d) a fourth aural broadcast service, and
(e) a fifth aural broadcast service. For Mt. Union, the existing service
area of Channel 258A should be compared with the service area of
proposed Channel 292A, in order to demonstrate the potential effects of
the proposals on service to Mt. Union and its surrounding areas.

8\. The proposed allotments could be made with the site restrictions and
reference coordinates indicated below. 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 Huntingdon, Mount Union, and
Centre Hall, Pennsylvania:

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

Huntingdon, Pennsylvania 278A, 292A 278A

Mount Union, Pennsylvania 258A 292A

Centre Hall, Pennsylvania \-\-- 258B1

> **Proposed Coordinates for Channel 292A at Mount Union,
> Pennsylvania:** 40-15-18 NL and 77-51-41 WL, with a site restriction
> of 14.5 km (9.0 miles) south of Mount Union.
>
> **Proposed Coordinates for Channel 258B1 at Centre Hall,
> Pennsylvania:** 40-46-39 NL and 77-49-26 WL, with a site restriction
> of 14.0 km (8.7 miles) southwest of Centre Hall.
>
> **Proposed New Coordinates for Channel 257A at South Williamsport,
> Pennsylvania:** 41-14-06 NL and 76-51-02 WL, with a site restriction
> of 12.5 km (7.8 miles) east of South Williamsport.

9\. 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.

10\. Pursuant to Sections 1.415 and1.419 of the Commission's Rules,
interested parties may file comments on or before January 5, 2004**,**
and reply comments on or before January 20, 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, S.W., TW-A325, Washington, D.C. 20554. Additionally, a
copy of any filing should be served on counsel for the Petitioner, as
follows:

#  Allen G. Moskowitz

Kaye Scholer LLP

901 Fifteenth Street, N.W., Suite 1100

#  Washington, D.C. 20005

(Counsel for Petitioner)

11\. 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 8:0 a.m. to 7:00 p.m. All hand
deliveries must be held together with rubber bands or fasteners. An
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, S.W., Washington, D.C.
20554. All filings must be addressed to the Commission's Secretary,
Office of the Secretary, Federal Communications Commission.

12\. 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. *See Certification that Section 603 and 604 of the
Regulatory Flexibility Do Not Apply to Rule Making to Amend Sections
73.202(b), 73.504 and 73.606(b) of the Commission's Rules*, 46 Fed.Reg.
11549 (February 9, 1981).

13\. For further information concerning this proceeding, contact Deborah
A. Dupont. Media Bureau, at (202)418-7072. 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 the 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 this proceeding.

FEDERAL COMMUNICATIONS COMMISSION

John A. Karousos

> Assistant Chief, Audio Division

Media Bureau

[APPENDIX]{.underline}

1\. Pursuant to authority contained 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 (TV) Table of Allotments, Section 73.202(b)
(73.606(b)) of the Commission\'s Rules and Regulations, as set forth in
the [Notice of Proposed Rule Making]{.underline} to which this Appendix
is attached.

2\. [Showings Required]{.underline}. Comments are invited on the
proposal discussed in the [Notice of Proposed Rule Making]{.underline}
to which this Appendix is attached. The proponent 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 Procedures]{.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 Section 1.420(d) of the Commission\'s Rules.)

\(b\) With respect to petitions for rule making which conflict with the
proposal in this [Notice]{.underline}, 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 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]{.underline} 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 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]{.underline}. 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.]{.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 Twelfth Street, SW.,
Washington, D.C.

[^1]: The letter was signed by Barry Drake, President of South
    Williamsport Sabrecom, Inc., licensee of Station WZXR(FM).

[^2]: 90 FCC 2d 88 (1982), *recon. denied*, 56 RR 2d 448 (1983).

[^3]: *Faye and Richard Tuck*, 3 FCC Rcd 5374 (1988) *("Tuck"). See also
    Huntington Broadcasting Co. v. FCC,* 192 F.2d 33 (D.C.Cir. 1951*).*

[^4]: In assessing the interdependence of the two communities, the
    Commission considers: (1) the extent to which community residents
    work in the larger metropolitan area, rather than the proposed
    allotment community; (2) whether the smaller community has its own
    newspaper or other media that covers the community's local needs and
    interests; (3) whether community leaders and residents perceive the
    specified community as being an integral part of, or separate from,
    the larger metropolitan area; (4) whether the specified community
    has its own local government and elected officials; (5) whether the
    smaller community has its own telephone book provided by the local
    telephone company, or its own zip code; (6) whether the community
    has its own commercial establishments, health facilities, and
    transportation systems; (7) the extent to which the specified
    community and the central city are part of the same advertising
    market; and (8) the extent to which the specified community relies
    on the larger metropolitan area for various municipal services such
    as police, fire protection, schools, and libraries. *Tuck* at 5378.

[^5]: *Id. See also Eatonton and Sandy Springs, Georgia, and Anniston
    and Lineville, Alabama*, 6 FCC Rcd 6,580 ¶23 (M.M.Bur. 1991), *app.
    for rev. dismissed*, 12 FCC Rcd 8392 (M.M.Bur. 1997).