$/NPRM, FM B/C STAS. (Charlotte Amalie, VI), DA 95-13 /$ $// 73.202 FM Table of Allotments //$ /// newjob /// Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of ) Amendment of Section 73.202(b) ) MM Docket No. Table of Allotments, ) RM-8502 FM Broadcast Stations. ) (Charlotte Amalie, Virgin Islands) ) NOTICE OF PROPOSED RULE MAKING Adopted: January 4, 1995 ; Released: January 12, 1995 Comment Date: Reply Comment Date: By the Chief, Allocations Branch: 1. The Commission has before it the petition for rule making filed by Virgin Islands Youth Development Radio, Inc., permittee of Station WIUJ(FM), Channel 275D, Charlotte Amalie, Virgin Islands ("petitioner"), proposing the allotment of Channel 275A at Charlotte Amalie and its reservation for noncommercial educational use, and the modification of its construction permit accordingly. Although petitioner failed to state its intention to apply for the channel if allotted, petitioner rectified this omission in an amendment to the petition. 2. In support of its proposal, petitioner states that the allotment of Channel 275A for noncommercial educational use at Charlotte Amalie would allow Station WIUJ(FM) to operate without interference to Station WIPR-TV, Channel 6, San Juan, Puerto Rico. According to petitioner, in 1977 its initial permit for Channel 205D was granted on the basis that the transmitter power output would not exceed 10 watts. However, terrain factors were not considered. In 1990, WIUJ(FM) requested a Special Temporary Authorization to operate on Channel 275D because of interference, which was denied. On March 5, 1992, Station WIUJ(FM)'s construction permit application (BPED-910506MI) for permanent operation on Channel 275D was granted. Station WIUJ(FM) began operating on program test authority on Channel 275D and on March 1, 1993, filed a license application (BLED-930301KG), which is pending. By operating on Channel 275D, the interference was eliminated. However, petitioner claims that Station WIUJ(FM) cannot move back to the noncommercial educational band to achieve Class A status without causing excessive interference to Station WIPR-TV, which is in violation of Section 73.525 of the Commission's Rules. Moreover, petitioner contends that the very high HAAT of its site precludes reducing power to levels which would comply with the Commission's Rules. Petitioner states that there are no Class A channels available in the noncommercial educational band that would provide sufficient elevation in order to provide city grade coverage and also comply with the interference limitations of Section 73.525. Petitioner asserts that since Station WIPR-TV is reluctant to grant Station WIUJ(FM) an interference waiver, it can now only achieve Class A status in the commercial portion of the FM band. Petitioner further claims that the allotment of Channel 275A meets all technical requirements and the reservation of the channel for noncommercial educational use would permanently reserve Station WIUJ(FM)'s existing operation and would continue to provide effective Class A service to Charlotte Amalie and the island of St. Thomas. 3. Generally, noncommercial educational stations operate within the reserved portion of the FM band (Channels 201-220). However, exceptions have been made where channels in the noncommercial educational band are not available because of foreign allotments or potential interference to operation on VHF Television Channel 6. Here, potential interference to Station WIPR-TV, Channel 6, San Juan, Puerto Rico, appears to justify the reservation of a channel in the nonreserved band (Channels 221-300) for noncommercial educational use. An engineering analysis has confirmed that there are no Class A channels available in the noncommercial educational band. Therefore, the allotment and reservation of a commercial channel appears to be the only way to provide a full Class A noncommercial educational channel to Charlotte Amalie. 4. We believe the public interest would be served by proposing the allotment of Channel 275A at Charlotte Amalie and to reserve the channel for noncommercial educational use, since it would provide the community with educational service. An engineering analysis has determined that Channel 275A can be allotted to Charlotte Amalie in compliance with the Commission's minimum distance separation requirements with a site restriction of 10. 6 kilometers (6.6 miles) west. 5. Accordingly, we seek comments on the proposed amendment of the FM Table of Allotments, Section 73.202(b) of the Commission's Rules, for the community listed below, to read as follows: Channel No. City Present Proposed Charlotte Amalie, 241B1, 246B, 250B, *226A, 241B1, 246B, Virgin Islands 271B, 282B, 287B 250B, 271B, *275A 282B, 287B 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. Interested parties may file comments on or before , 1995, and reply comments on or before , 1995, and are advised to read the Appendix for the proper procedures. Comments should be filed with the Secretary, Federal Communications Commission, Washington, D.C. 20554. Additionally, a copy of such comments should be served on the petitioner, or its counsel or consultant, as follows: Leo Morone, President Virgin Islands Youth Development Radio, Inc. P.O. Box 2477 St. Thomas, Virgin Islands 00803 (Petitioner) 8. 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. See Certification That Sections 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. 9. For further information concerning this proceeding, contact Sharon P. McDonald, Mass Media Bureau, (202) 634-6530. 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 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 the proceeding. FEDERAL COMMUNICATIONS COMMISSION John A. Karousos Chief, Allocations Branch Policy and Rules Division Mass Media Bureau Attachment: Appendix APPENDIX MM Docket No. RM-8502 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. 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. 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 Center (Room 239) at its headquarters, 1919 M Street, N.W., Washington, D.C.