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 Federal  Communications  Commission  DA  04-  3331
 Before  the  Federal  Communications  Commission
 Washington,  D.  C.  20554
 In  the  Matter  of  )  )
 Amendment  of  Section  73.202(  b),  )  MB  Docket  No.  04-  402  Table  of  Allotments,  )  RM-  11087
 FM  Broadcast  Stations.  )  (Cheyenne  and  Encampment,  Wyoming)  )
 NOTICE  OF  PROPOSED  RULE  MAKING
 Adopted:  October  20,  2004  Released:  October  25,  2004
 Comment  Date:  December  16,  2004  Reply  Comment  Date:  December  31,  2004
 By  the  Assistant  Chief,  Audio  Division,  Media  Bureau:
 1.  The  Audio  Division  has  before  it  a  petition  for  rule  making  filed  by  Mountain  States  Radio,  Inc.  (  Petitioner),  licensee  of  Station  KRRR,  Channel  285C2,  Cheyenne,  Wyoming.  Petitioner  seeks  to  amend
 the  FM  Table  of  Allotments  by  allotting  Channel  285C2  to  Encampment,  Wyoming,  as  that  communitys  first  local  aural  transmission  service.  In  order  to  accommodate  the  foregoing  new  allotment,  Petitioner  requests
 that  Channel  229C2  be  substituted  for  Station  KRRRs  Channel  285C2  allotment  at  Cheyenne,  Wyoming.  To  accommodate  this  channel  substitution,  Petitioner  asks  that  Channel  285C2  be  substituted  for  vacant  Channel
 229A  at  Cheyenne  at  a  new  reference  site  that  would,  in  turn,  also  accommodate  the  allotment  of  Channel  285C2  at  Encampment.  Petitioner  states  that,  if  the  proposed  amendments  to  the  FM  Table  of  Allotments  are
 made,  Petitioner  will  file  an  application  to  specify  Station  KRRRs  operation  on  Channel  229C2  and  will  expeditiously  construct  such  facilities.  Further,  Petitioner  states  that  if  the  new  channel  for  Encampment  is
 allotted,  Petitioner  will  file  an  application  to  operate  on  that  channel  and  will  expeditiously  construct  a  station.
 2.  Petitioner  asserts  that  the  adoption  of  its  proposal  will  result  in  a  preferential  arrangement  of  FM  allotments  consistent  with  the  FM  allotment  priorities  set  forth  in  Revision  of  FM  Assignment  Policies  and
 Procedures.  1  First,  Petitioners  proposal  will  result  in  the  provision  of  first  local  aural  transmission  service  to  Encampment,  Wyoming.  Petitioner  observes  that  Encampment  is  an  incorporated  community  located  in  south
 central  Wyoming  with  a  2000  U.  S.  Census  population  of  443  persons  and  that  it  has  its  own  post  office,  zip  code,  and  many  retail  businesses.  Second,  Petitioner  states  that  its  proposal  to  substitute  Channel  229C2  for
 its  current  operation  of  Station  KRRR  on  Channel  285C2  will  result  in  improved  service  to  Cheyenne  because  Station  KRRR  will  operate  from  a  new  location  that  allows  it  to  operate  with  full  Class
 1  90  FCC  2d  88  (1982).  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.  Equal  weight  is  given  to  priorities  (2)  and  (3).
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 Federal  Communications  Commission  DA  04-  3331
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 C2  facilities,  unlike  its  current  operation  at  less  than  maximum  Class  C2  facilities.  2  Third,  Petitioner  asserts  that  its  request  to  substitute  Channel  285C2  for  vacant  and  unapplied  for  Channel  229A  will  allow  Cheyenne
 to  receive  upgraded  and  improved  service.
 3.  We  request  Petitioner  to  provide  us  with  specific  data  comparing  the  areas  and  populations  served  by  Station  KRRRs  current  operation  on  Channel  285C2  with  the  areas  and  populations  to  be  served  by
 Station  KRRRs  proposal  to  operate  at  a  new  transmitter  site  on  Channel  229C2,  assuming  the  use  of  maximum  allowable  facilities  by  both  operations.  In  addition,  we  request  Petitioner  to  provide  specific  data
 comparing  the  areas  and  populations  that  would  be  served  by  the  current  allotment  of  Channel  229A  at  Cheyenne  with  the  areas  and  populations  to  be  served  by  the  proposed  Channel  285C2  at  Cheyenne,  assuming
 the  use  of  maximum  allowable  facilities  by  both  allotments.
 4.  This  proposal  complies  with  the  Commissions  technical  rules  and  warrants  consideration  because  it  could  provide  a  first  local  aural  transmission  service  to  Encampment,  Wyoming,  and  improved
 aural  service  to  Cheyenne,  Wyoming.  Consistent  with  the  technical  requirements  of  the  Commissions  rules,  Channel  285C2  can  be  allotted  to  Encampment,  Wyoming,  utilizing  coordinates  of  41-  14-  00  NL
 and  106-  56-  46  WL,  with  a  site  restriction  of  13.4  kilometers  (8.3  miles)  west  of  Encampment;  Channel  229C2  can  be  allotted  to  Cheyenne  utilizing  coordinates  of  41-  08-  32  NL  and  104-  32-  21  WL,  with  a  site
 restriction  of  23.0  kilometers  (14.3  miles)  east  of  Cheyenne;  and  Channel  285C2  can  be  allotted  to  Cheyenne  utilizing  coordinates  of  41-  21-  25  NL  and  104-  40-  55  WL,  with  a  site  restriction  of  26.7
 kilometers  (16.6  miles)  northeast  of  Cheyenne.
 5.  Accordingly,  we  seek  comments  on  the  proposed  amendment  of  the  FM  Table  of  Allotments,  47  C.  F.  R.  Section  202(  b),  with  respect  to  the  communities  listed  below,  as  follows:
 Channel  Nos.
 City  Present  Proposed
 Cheyenne,  Wyoming  229A,  250C1,  260C2,  264C1  229C2,  250C1,  260C2,  264C1  280C2,  285C2,  292A  280C2,  285C2,  292A
 Encampment,  Wyoming  -----------  285C2
 6.  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.
 7.  Pursuant  to  47  C.  F.  R.  Sections  1.415  and  1.419,  interested  parties  may  file  comments  on  or  before  December  16,  2004,  and  reply  comments  on  or  before  December  31,  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,  SW,  TW-  A325,  Washington,  D.  C.  20554.
 2  Petitioner  notes  that  its  current  facilities  are  25.  5  kilowatts  of  effective  radiated  power  (  ERP)  and  35  meters  in
 antenna  height  above  average  terrain  (  HAAT).  Maximum  facilities  for  a  Class  C2  FM  station  are  50  kilowatts  ERP  and  150  meters  of  antenna  HAAT.  See  47  C.  F.  R.    73.211(  b).
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 Federal  Communications  Commission  DA  04-  3331
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 Additionally,  a  copy  of  such  comments  should  be  served  on  Petitioners  counsel,  as  follows:
 A.  Wray  Fitch,  Esq.  Gammon  &  Grange,  P.  C.
 8280  Greensboro  Drive,  7  th  Floor  McLean,  Virginia  22102-  3807
 8.  Parties  must  file  an  original  and  four  paper  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  Commissions  contractor,  Natek,  Inc.,  will  receive  hand-  delivered  or  messenger-  delivered  paper  filings
 for  the  Commissions  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  Commissions  Secretary,  Office  of  the  Secretary,  Federal  Communications  Commission.
 9.  The  Commission  has  determined  that  the  relevant  provisions  of  the  Regulatory  Flexibility  Act  of  1980  do  not  apply  to  rule  making  proceedings  to  amend  the  FM  Table  of  Allotments,  Section  73.202(  b)  of  the
 Commission's  Rules.  3  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(  4).
 10.  For  further  information  concerning  this  proceeding,  contact  R.  Barthen  Gorman,  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  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.
 3  See  Certification  that  Sections  603  and  604  of  the  Regulatory  Flexibility  Act  Do  Not  Apply  to  Rule  Making  to
 Amend  Sections  73.202(  b)  and  73.606(  b)  of  the  Commissions  Rules,  46  FR  11549,  February  9,  1981.
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 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  that  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
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 Federal  Communications  Commission  DA  04-  3331
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 APPENDIX
 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.  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  47  C.  F.  R.  Section  1.420(  d).)
 (b)  Petitions  for  rule  making  which  conflict  with  the  proposals  in  this  Notice  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.
 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.
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