*Pages 1--5 from  Microsoft Word - 46982.doc*
 Federal  Communications  Commission  DA  05-  650 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 
 In  the  Matter  of  )  ) 
 Amendment  of  Section  73.202(  b),  )  MB  Docket  No.  05-  99  Table  of  Allotments,  )  RM-  11180 
 FM  Broadcast  Stations.  )  (Lake  Charles,  Louisiana  and  Sour  Lake,  Texas  ) 

 NOTICE  OF  PROPOSED  RULE  MAKING 
 Adopted:  March  9,  2005  Released:  March  14,  2005 
 Comment  Date:  May  5,  2005  Reply  Comment  Date:  May  20,  2005 

 By  the  Assistant  Chief,  Audio  Division,  Media  Bureau: 
 1.  The  Audio  Division  has  before  it  a  Petition  for  Rule  Making  filed  by  Cumulus  Licensing  LLC  (  Petitioner),  licensee  of  FM  Station  KYKZ,  Channel  241C1,  Lake  Charles,  Louisiana.  Petitioner  proposes 
 the  reallotment  of  Channel  241C1  from  Lake  Charles,  Louisiana,  to  Sour  Lake,  Texas,  and  modification  of  its  Station  KYKZ  license  to  specify  Sour  Lake,  Texas,  as  the  community  of  license.  This  reallotment  will 
 provide  the  first  local  aural  transmission  service  to  Sour  Lake,  Texas.  If  the  petition  before  us  is  granted,  Petitioner  will  file  an  application  to  effectuate  its  proposal. 

 2.  Petitioner  invokes  the  provisions  of  Section  1.420(  i)  of  the  Commissions  rules  which  permits  the  modification  of  a  stations  authorization  to  specify  a  new  community  of  license  without  affording  other 
 interested  parties  an  opportunity  to  file  competing  expressions  of  interest.  1  The  proposed  use  of  Channel  241C1  at  Sour  Lake,  Texas,  is  mutually  exclusive  with  Station  KYKZs  existing  authorization  at  Lake 
 Charles,  Louisiana. 
 3.  Petitioner  asserts  that  the  allotment  of  Channel  241C1  to  Sour  Lake  would  not  deprive  Lake  Charles,  Louisiana,  of  its  sole  local  transmission  outlet,  because  Lake  Charles  would  continue  to  be  served  by 
 seven  local  radio  stations.  Petitioner  notes  that  the  Commissions  FM  allotment  priorities  set  forth  in  Revision  of  FM  Assignment  Policies  and  Procedures  2  would  be  served  because  Petitioner  would  provide  a  first  local 
 service  at  Sour  Lake,  Texas  (2000  U.  S.  Census  of  1,667  persons).  Because  Petitioners  proposal  is  consistent  with  the  provisions  of  Section  1.420(  i)  of  the  Commissions  rules,  we  shall  propose  to  modify 
 the  authorization  of  FM  Station  KYKZ  without  entertaining  competing  expressions  of  interest  in  the  use  of  Channel  241C1  at  Sour  Lake,  Texas,  or  requiring  Petitioner  to  demonstrate  the  availability  of  an 
 additional  equivalent  channel  for  use  by  other  parties. 

 1  See  Modification  of  FM  and  TV  Authorizations  to  Specify  a  New  Community  of  License,  4  FCC  Rcd  4870  (1989), 
 recon.  granted  in  part,  5  FCC  Rcd  7094  (1990). 
 2  90  FCC  2d  88  (1982).  The  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). 
1
 Federal  Communications  Commission  DA  05-  650 
 2 
 4.  Consistent  with  the  technical  requirements  of  the  Commissions  rules,  Channel  241C1  can  be  allotted  to  Sour  Lake,  Texas,  utilizing  coordinates  of  30-  04-  42  NL  and  93-  54-  35  WL,  with  a  site 
 restriction  of  48.8  kilometers  (30.3  miles)  east  of  Sour  Lake. 
 5.  Sour  Lake  is  not  located  in  an  Urbanized  Area.  The  proposed  70  dBu  contour  of  Station  KYKZ  at  Sour  Lake  will  cover  100  percent  of  the  Port  Arthur  and  Beaumont  Urbanized  Areas.  Petitioner 
 claims  that  since  Station  KYKZ  is  currently  located  within  the  Lake  Charles,  Louisiana  Urbanized  area,  the  relocation  to  Sour  Lake  does  not  implicate  the  Commissions  policy  regarding  the  migration  of 
 stations  into  urban  areas.  3  Nevertheless,  Petitioner  has  submitted  a  Tuck  showing  to  demonstrate  that  Petitioner  deserves  credit  for  providing  a  first  local  service  to  Sour  Lake,  because  Sour  Lake  is  a 
 community  independent  of  the  Port  Arthur  and  Beaumont  Urbanized  Areas.  We  find  that  the  Tuck  showing  is  necessary.  4  The  public  is  invited  to  comment  on  the  showing. 

 6.  Accordingly,  we  seek  comments  on  the  proposed  amendment  to  the  FM  Table  of  Allotments,  Section  73.202(  b)  of  the  Commissions  Rules,  with  respect  to  the  communities  listed  below,  as  follows: 

 Channel  Nos. 
 City  Present  Proposed 
 Lake  Charles,  Louisiana  241C1,  258C0,  258C0,  277C2  277C2 

 Sour  Lake,  Texas  --------  241C1 
 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  47  C.  F.  R.  Sections  1.415  and  1.419,  interested  parties  may  file  comments  on  or  before  May  5,  2005  reply  comments  on  or  before  May  20,  2005,  and  are  advised  to  read  the  Appendix  for 
 the  proper  procedures.  Comments  should  be  filed  with  the  Federal  Communications  Commission,  fice  of  the  Secretary,  445  Twelfth  Street,  SW,  TW-  A325,  Washington,  D.  C.  20554.  Additionally,  a 

 3  Petitioner  cites  the  following  cases  for  this  argument:  Headland,  Alabama  and  Chattahoochee,  Florida,  10  FCC 
 Rcd  10352  (1995)  (  Headland),  and  Faye  and  Richard  Tuck,  3  FCC  Rcd  5374  (1988).  (  Tuck). 

 4  See  Headland,  supra. 
2
 Federal  Communications  Commission  DA  05-  650 
 3 
 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  Ave.,  N.  W.,  Suite  600 
 Washington,  D.  C.  20004-  1008 
 9.  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  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. 

 10.  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.  5  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(  c)(  4). 
 11.  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. 

 5  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. 
3
 Federal  Communications  Commission  DA  05-  650 
 4 
 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 
4
 Federal  Communications  Commission  DA  05-  650 
 5 
 APPENDIX 
 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  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  discussed  in  the  Notice  of  Proposed  Rule  Making  to  which  this  Appendix  is  attached.  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.  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,  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.  Comments  shall  be  served  on  the  petitioner  by  the  person  filing  the  comments.  Reply  comments  shall  be  served  on  the  person  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.  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  (Room  CY-  A257),  at 
 its  headquarters,  445  Twelfth  Street,  SW,  Washington,  D.  C. 
5