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Peach Springs, AZ, FM Channel 265A Tribal Allotment

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Released: December 21, 2012
Federal Communications Commission

DA 12-2072

Before the

Federal Communications Commission

Washington, D.C. 20554


In the Matter of
)
)
Amendment of Section 73.202(b),
)
MB Docket No. 12-374
Table of Allotments,
)
RM-11687
FM Broadcast Stations.
)
(Peach Springs, Arizona)
)

NOTICE OF PROPOSED RULE MAKING

Adopted: December 20, 2012

Released: December 21, 2012

Comment Date: February 11, 2013
Reply Date: February 26, 2013

By the Assistant Chief, Audio Division, Media Bureau:

1. The Audio Division has before it a Petition for Rule Making filed by the Hualapai
Tribe (“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 265A at Peach Springs, Arizona. Petitioner seeks a Tribal Priority for the proposed
allotment, which would constitute a potential second local service and first local Tribal Allotment
at Peach Springs. 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-20121010AAO.
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) (“NPRM”); First Report and Order, 25 FCC Rcd
1583 (2010) (“First R&O”); Second Report and Order, 26 FCC Rcd 2556 (2011) (“Second R&O”); and
Third Report and Order, 26 FCC Rcd 17642 (2011) (“Third R&O”) (collectively, “Rural Radio”).
3 Rural Radio, First R&O, 25 FCC Rcd at 1596-97. See also 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 Radio, Third R&O, 26 FCC Rcd at 1588.

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DA 12-2072

3. The Commission instituted 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 it is “a recognized Native American entity.” The Hualapai Tribe
is located in northern Arizona on a reservation covering 1,142 square miles. The reservation was
established in 1883 by Presidential Executive Order, and the Tribe adopted the Hualapai
Constitution in 1937. Petitioner further states that Peach Springs, the headquarters for the
Hualapai Tribe, had a 2010 population of 1,090 persons, of which 1,057 (or 97 percent) are Tribal
in character. Petitioner certifies that its proposal meets the requirements established in Rural
Radio
for a Tribal Priority.7 The principal community contour would cover an area of 997.6
square kilometers, of which 796.7 square kilometers (or 79.9 percent) are Tribal Lands.
5. In addition, Petitioner states that Peach Springs is a community for allotment purposes,
having one commercial channel already assigned to it. Petitioner represents that there are


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 Radio, Third R&O, 26 FCC Rcd at 17646-47. See also First R&O, 25 FCC
Rcd at 1596-97; and Second R&O, 26 FCC Rcd at 2585-87.
6 See Third R&O, 26 FCC Rcd at 17645-46. See also 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). Third R&O, 26 FCC Rcd at 17649.
7 Specifically, Petitioner provides evidence that: at least 50 percent of the proposed principal community
contour consists of Hualapai Tribal land; Peach Springs, the proposed community of license, is located on
Hualapai Tribal Land; and the proposed facility will be the first local Tribally-owned commercial
transmission service at the proposed community of license. Petitioner further states that it is eligible for a
Tribal Priority at Peach Springs, because it is “a recognized Native American entity.”
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DA 12-2072

numerous businesses located in Peach Springs, which has its own zip code and Post Office, as well
as its own schools, Health Department, and other governmental entities.
6.

Discussion.

The facts presented by Petitioner are sufficient to support consideration of
the allotment of FM Channel 265A at Peach Springs, Arizona, as a Tribal Allotment. The
proposed Tribal Allotment of FM Channel 265A could serve the public interest by providing vital
radio service to Peach Springs and surrounding Hualapai Tribal Lands, and by enabling the
Hualapai Tribe to set its own communications priorities and goals with respect to such service.
Moreover, the allotment could further the public interest by providing a second potential local
service at Peach Springs, as well as a first Tribal Allotment. Finally, the proposed change in the
FM Table of Allotments complies with the technical requirements of the Commission’s rules.
7. 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 297A at Peach Springs,
Arizona, as a Tribal Allotment, as set forth below:

Community


Present


Proposed

Peach Springs, Arizona

281C3
281C3, 265A

Proposed Coordinates for Channel 265A at Peach Springs, Arizona:

35-33-17 NL and
113-23-41 WL.
8. 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.
9. Pursuant to Sections 1.415 and 1.419 of the Commission’s Rules,8 interested parties
may file comments on or before February 11, 2013, and reply comments on or before February 26,
2013, 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 representatives of Petitioner, as follows:
F. W. Hannel & Associates
10733 East Butherus Drive
Scottsdale, Arizona 85255
Philbert Watahomigie, Vice Chairman
Hualapai Tribe
Post Office Box 179
Peach Springs, Arizona 86434


8 See 47 C.F.R. §§1.415 and 1.419.
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10. 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 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.

11. 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 107-198.10
12. For further information concerning these proceedings, contact Deborah A. Dupont,
Media Bureau, at (202) 418-7072. 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


9 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 Fed.Reg. 11549 (February
9, 1981).
10 See 44 U.S.C. 3506(c)(4).
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DA 12-2072

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
5

Federal Communications Commission

DA 12-2072



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 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.
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DA 12-2072

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.
7

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