**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | MB Docket No. 05-150         |
|                                  | *) |                              |
| Amendment of Section 73.202(b),  | ** | RM-11214                     |
|                                  |    |                              |
| Table of Allotments,             | *  |                              |
|                                  | *) |                              |
| FM Broadcast Stations.           | ** |                              |
|                                  |    |                              |
| (Norfolk and Windsor, Virginia)  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
+----------------------------------+----+------------------------------+

**NOTICE OF PROPOSED RULE MAKING**

**Adopted: March 23, 2005 Released: March 25, 2005**

**Comment Date: May 12, 2005**

**Reply Comment Date: May 27, 2005**

By the Assistant Chief, Audio Division, Media Bureau:

1.  The Audio Division has before it a petition for rule making in which
    Clear Channel Broadcasting, Licenses, Inc., licensee of Stations
    WKUS(FM), Norfolk, Virginia and WJCD, Windsor, Virginia
    ("Petitioner"), proposes the reallotment of Channel 299A from
    Windsor to Norfolk, Virginia and the reallotment of Channel 287B
    from Norfolk to Windsor, Virginia, and the modification of the
    license for Station WKUS(FM) to reflect Windsor as its community of
    license and the modification of the license of Station WJCD(FM) to
    reflect Norfolk as its community of license. Petitioner pledges to
    file applications for each channel and to construct the facilities
    if the applications are granted.

2.  Petitioner filed these proposals for reallotment in accordance with
    the provisions of Section 1.420(i) of the Commission's Rules, which
    permits the modification of a station's license to specify a new
    community of license while not affording other interested parties
    the opportunity to file competing expressions of interest in the
    proposed allotment.[^1] In considering a reallotment proposal, we
    compare the existing allotment to the proposed allotment to
    determine whether the reallotment will result in a preferential
    arrangement of allotments. This determination is based upon the FM
    Allotment priorities.[^2]

3.  In support of the petition, Petitioner states that its proposal will
    serve the public interest, it would result in a preferential
    arrangement of allotments, and meets the requirements for
    reallotment set forth in *Change of Community R&*O. First, the
    proposed allotment of Channel 299A at Norfolk is mutually exclusive
    with the current use of Channel 299A at Windsor. Second, the
    proposed allotment of Channel 287B at Windsor is mutually exclusive
    with the current use of Channel 287B at Norfolk. Third, neither
    community would be deprived of its sole local aural transmission
    service. The community of Norfolk, 2000 U.S. Census population
    234,403 persons, would continue to be served by 9 FM stations and 5
    AM stations.[^3] The proposal would retain a first local aural
    transmission service at Windsor, under Priority (3). Finally,
    Petitioner states that the two reallotments would serve the public
    interest under Priority (4) because the overall gain in population
    from the proposed reallotment of Channel 299A from Windsor to
    Norfolk would be 1,023,941 persons. They argue that while the
    reallotment of Channel 287B from Norfolk to Windsor would result in
    a net loss in population of 37,417 persons within the WKUS(FM) 60dBu
    contour, this loss is more than overcome by the substantial gains of
    the proposal as a whole, and the entire area is well served by 5 or
    more other aural services. We seek comment on the public interest
    benefits of the change of communities.

4.  In further support of the reallotment, Petitioner claims that
    Windsor has been determined to be qualified as a community by virtue
    of the allotment of Channel 299A.[^4] Windsor is listed in the 2000
    U.S. Census with a population of 933 persons and therefore is
    presumed to have the status of a community for allotment
    purposes.[^5] We seek comment on the community status of Windsor,
    Virginia.

5.  We believe that the proposal warrants consideration because it would
    retain Windsor's sole local aural transmission service without
    depriving Norfolk of local transmission service.[^6] Channel 299A
    has been proposed to be reallotted at Norfolk at a site 9.3
    kilometers (5.8 miles) north of the community.[^7] Channel 287B has
    been proposed to be reallotted to Windsor at a site 12.7 kilometers
    (7.9 miles) east of the community.[^8]

6.  Accordingly, we seek comment on the proposed amendment of the FM
    Table of Allotments, Section 73.202(b) of the Commission's Rules,
    for the communities listed below, to read as follows:

    **[Channel]{.underline}**

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

    Norfolk, Virginia 239B, 254B,259B, 239B, 254B,259B

    263B, 275B, 283B, 263B, 275B, 283B,

    287B 299A

    Windsor, Virginia 299A 287B

7.  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.

8.  Pursuant to Sections 1.415 and 1.419 of the Commission's Rules,
    interested parties may file comments or counterproposals on or
    before May 12, 2005, and reply comments on or before May 27, 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 Petitioner's counsel, as follows:

    Mark N. Lipp, Esq.

    Scott Woodworth, Esq.

    Vinson & Elkins, L.L.P.

    1455 Pennsylvania Avenue, N.W.

    Suite 600

    Washington, DC 20004-1008

9.  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, 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.**

10. 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.[^9] 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* 44 U.S.C. 3506(c)(4).

11. For further information concerning this proceeding, contact
    Victoria M. McCauley (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

12. 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 Amendment of the Commission's Rules Regarding Modification of
    FM and TV Authorizations to Specify a New Community of License
    ("Change of Community R&O"),* 4 FCC Rcd 4870 (1989), *recon. granted
    in part*, 5 FCC Rcd 7094 (1990).

[^2]: *See Revision of FM Assignment Policies and Procedures*, 90 FCC2d
    88, 91 (1988). The FM Allotment priorities are (1) First full-time
    aural service. (2) Second full-time aural service. (3) First local
    service. (4) Other public interest matters. \[Co-equal weight is
    given to given to priorities (2) and (3)\].

[^3]: Stations WXMM(FM), WYFI(FM), WVKL(FM), WOWI(FM), WNSB(FM),
    WHRV(FM), WHRO-FM, WNOR(FM), WNVZ(FM), and AM Stations WNIS(AM),
    WTAR(AM) WVXX(AM), WYRM(AM), and WJOI(AM) will remain in Norfolk.

[^4]: *See Windsor, Virginia,* 2 FCC Rcd 4229 (1987).

[^5]: *See Arnold and Columbia, California,* 7 FCC Rcd 6302 (1992),
    *rec. den.* 13 FCC Rcd 18894 (1998).

[^6]: We note that grant of the reallotment of Channel 299A from Windsor
    to Norfolk will be conditioned on the commencement of operation of
    Station WKUS on Channel 287B at Windsor.

[^7]: The coordinates for Channel 299A at Norfolk are 36-55-26 NL and
    76-15-05 WL.

[^8]: The coordinates for Channel 287B at Windsor are 36-48-47 NL and
    76-35-57 WL.

[^9]: *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).