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 Federal  Communications  Commission  DA  05-  767 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 
 In  the  Matter  of 
 Amendment  of  Section  73.  202(  b),  Table  of  Allotments, 
 FM  Broadcast  Stations.  (Norfolk  and  Windsor,  Virginia) 


 )  ) 
 )  ) 
 )  ) 
 MB  Docket  No.  05-  150  RM-  11214 


 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  Commissions  Rules,  which  permits  the  modification  of  a  stations  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 


 1  See  Amendment  of  the  Commissions  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)]. 
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 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  Windsors  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  Commissions  Rules,  for  the  communities  listed  below,  to  read  as 


 follows: 
 Channel 
 Community  Present  Proposed 
 Norfolk,  Virginia  239B,  254B,  259B,  239B,  254B,  259B  263B,  275B,  283B,  263B,  275B,  283B, 


 287B  299A  Windsor,  Virginia  299A  287B 


 7.  The  Commissions  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  Commissions  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 
 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. 
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 Federal  Communications  Commission  DA  05-  767 
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 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  Petitioners 
 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  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  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 


 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). 
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 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  05-  767 
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 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. 
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