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FM Table of Allotments, Tohatchi, New Mexico

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Released: November 1, 2013
Federal Communications Commission

DA 13-2105

Before the

Federal Communications Commission

Washington, D.C. 20554


In the Matter of
)
)
Amendment of Section 73.202(b),
)
MB Docket No. 13-250
Table of Allotments,
)
RM-11705
FM Broadcast Stations.
)
(Tohatchi, New Mexico)
)

NOTICE OF PROPOSED RULE MAKING

Adopted: October 31, 2013

Released: November 1, 2013

Comment Date: December 23, 2013

Reply Date: January 7, 2014

By the Assistant Chief, Audio Division, Media Bureau:

1. The Audio Division has before it a Petition for Rule Making filed by Navajo Nation (“Petitioner”),
and an associated FCC Form 301 application.1 Petitioner proposes to amend the FM Table of Allotments,
Section 73.202(b) of the Commission’s Rules, by allotting FM Channel 268C2, Tohatchi, New Mexico,
as a first local service. Petitioner seeks a Tribal Priority for the proposed allotment. In this Notice of
Proposed Rule Making, we seek comment on that proposal.
2. Background. In Rural Radio,2 the Commission concluded that it would serve the public interest
to establish a Section 307(b) priority in favor of Tribal Entities proposing the allotment of FM radio
channels to serve Tribal lands.3 The rationale for this determination was that “the establishment of an
allocation priority for the provision of radio service to tribal lands by Indian tribal government-owned
stations will advance our Section 307(b) goals and serve the public interest by enabling Indian tribal
governments to provide radio service tailored to the needs and interests of their local communities that
they are uniquely capable of providing.”4

1 See FCC File No. BNPH-20130710ACW.
2 See Policies to Promote Rural Radio Service and to Streamline Allotment and Assignment Procedures, Notice of
Proposed Rule Making, 24 FCC Rcd 5239 (2009) (“Rural NPRM”); First Report and Order, 25 FCC Rcd 1583
(2010) (“Rural First R&O”); Second Report and Order, 26 FCC Rcd 2556 (2011) (“Rural Second R&O”); and Third
Report and Order, 26 FCC Rcd 17642 (2011) (“Rural Third R&O”) (collectively, “Rural Radio”).
3 Rural First R&O, 25 FCC Rcd at 1596-97. See also Rural NPRM, 24 FCC Rcd at 5248 n.29 (defining “Indian
Tribe[s]” and “Federally Recognized Indian Tribes”), and n.30 (defining “tribal lands”).
4 Rural Third R&O, 26 FCC Rcd at 1588.

Federal Communications Commission

DA 13-2105

3. The Commission established several requirements for a Tribal Allotment. Those requirements
pertain to the identity of the applicant, the land and population covered by the principal community
contour, the location of the proposed community, and the availability of radio services, especially Tribally
owned or Tribal Entity owned radio services, at the proposed community.5 Upon award of a Tribal
Allotment, within a reasonable period of time the Commission will release a public notice announcing a
Threshold Qualifications Window, during which any qualifying applicant will be afforded the opportunity
to file FCC Form 301 for the channel allotted as a Tribal Allotment.6
4. Petitioner states that Navajo Nation is a federally recognized Tribe, and it meets the requirements
established in Rural Radio for the Tribal Priority.7 Petitioner further states that Tohatchi is a community
for allotment purposes. Tohatchi is a census-designated place (CDP) with a 2010 census population of
808 persons that has its own ZIP code (87325), a post office, and numerous local businesses and
churches. Tohatchi is a political subdivision known as a Chapter of the Navajo Nation, with a local
government headed by a locally-elected Chapter President. Tohatchi is the site of one of the Navajo Area
Health Service’s newest medical facilities, which provides ambulatory care to approximately 8,000
residents of the area. The Navajo Nation Division of Public Safety maintains a youth detention facility in
Tohatchi. Tohatchi also has three public schools: Tohatchi Elementary School, Tohatchi Middle School
and Tohatchi High School, as well as the Ch’Ooshgai Community School, which is a Grant School for
students from kindergarten through eighth grade.
5. Discussion. The facts presented by Petitioner are sufficient to support consideration of the
allotment of FM Channel 268C2 at Tohatchi, New Mexico, as a Tribal Allotment. The proposed Tribal
Allotment of FM Channel 268C2 could serve the public interest by providing vital radio service to

5 In order to satisfy the prerequisites for a Tribal Allotment, the following requirements must be met: “(A) The
applicant is either a federally recognized Tribe or Tribal consortium, or an entity 51 percent or more of which is
owned or controlled by a Tribe or Tribes…; (b)(1)At least 50 percent of the area within the proposed principal
community contour is over that Tribe’s Tribal Lands, or (2) the proposed principal community contour (a)
encompasses 50 percent or more of that Tribe’s Tribal Lands, (b) serves at least 2,000 people living on Tribal Lands,
and (c) the total population on Tribal Lands residing within the proposed station’s service contour constitutes at least
50 percent of the total covered population…; (C) The proposed community of license must be located on Tribal
Lands; and (D) The proposed service must constitute first or second aural (reception) service, or first local Tribal-
owned commercial transmission service at the proposed community of license.” Rural Third R&O, 26 FCC Rcd at
17646-47. See also Rural First R&O, 25 FCC Rcd at 1596-97; and Rural Second R&O, 26 FCC Rcd at 2585-87.
6 See Rural Third R&O, 26 FCC Rcd at 17645-46. See also Rural Second R&O, 26 FCC Rcd at 2588-90. Should
no applicant meeting threshold qualifications file FCC Form 301 during the Threshold Qualifications Window (and
should the proponent request that its already-filed Form 301 application not be immediately processed), the Tribal
Allotment will be included in the inventory for a broadcast auction at a later date. In that event, only threshold
qualified applicants, including the original proponent, may specify the Tribal Allotment in their applications to
participate in the auction (FCC Form 175). Rural Third R&O, 26 FCC Rcd at 17649.
7 Petitioner provides evidence that: more than fifty percent of the area within the proposed principal community
contour is over the Navajo Reservation; Tohatchi, the proposed community of license, is located on tribal lands and
has been since it was included as part of the Navajo Reservation in the Treaty of 1868; and the proposed facility will
be the first local Tribally-owned service (and the first local full-power transmission service) at Tohatchi, New
Mexico.
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Federal Communications Commission

DA 13-2105

Tohatchi and surrounding Navajo Nation Tribal lands, and by enabling the Petitioner to set its own
communications priorities and goals with respect to such service. Moreover, the allotment could further
the public interest by providing a first local service at Tohatchi. Finally, the proposed change in the FM
Table of Allotments complies with the technical requirements of the Commission’s Rules.
6. Accordingly, we seek comment on the proposed amendment of the FM Table of Allotments, 47
C.F.R. Section 73.202(b), by the allocation of FM Channel 268C2 at Tohatchi, New Mexico, as a Tribal
Allotment, as set forth below:

Community


Present


Proposed

Tohatchi, New Mexico
----
268C2

Proposed Coordinates for Channel 268C2 at Tohatchi, New Mexico:

35-54-37 NL and 108-46-
26 WL, with no imposition of a site restriction.
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 in 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,8 interested parties may file
comments on or before December 23, 2013, and reply comments on or before January 7, 2014, and are
advised to read the Appendix for the proper procedures. Comments should be filed with the Federal
Communications Commission. Additionally, a copy of any filing should be served on counsel for
Petitioner, as follows:
Lauren Lynch Flick, Esq.
Pillsbury, Winthrop, Shaw, & Pittman LLP
2300 N Street, N.W.
Washington, D.C. 20037
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
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 12th Street, SW, Washington, D.C. 20554.

All filings must be
addressed to Marlene H. Dortch, Secretary, Federal Communications Commission, Office of the


8 47 C.F.R. §§1.415 and 1.419.
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Federal Communications Commission

DA 13-2105

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.9 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.10 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 107-198.11
11. For further information concerning these proceedings, contact Rolanda F. Smith, Media Bureau,
at (202) 418-2700. For purposes of these restricted notice and comment rule making proceedings,
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 in the applicable docket 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 any summary of any new information shall be served
by the person making the presentation upon the other parties to the proceeding in the particular docket
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 this proceeding.
FEDERAL COMMUNICATIONS COMMISSION
Nazifa Sawez
Assistant Chief
Audio Division
Media Bureau

9 See 47 C.F.R. § 1.7.
10 See Certification that Section 603 and 604 of the Regulatory Flexibility 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).
11 See 44 U.S.C. 3506(c)(4).
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Federal Communications Commission

DA 13-2105

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 required to file
comments expressing the proponent’s continuing interest in the proposed allotment and restating 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 Petitioner. 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.
5

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