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Morris, and) Oregon, Illinois))  y_ '#&J\  P6Qb;&P#   y_ '  NOTICE OF PROPOSED RULE MAKING Đc  y_ ' Adopted: February 3, 1999 hh]ppReleased: February 12, 1999   y_M' Comment Date: April 5, 1999   y_' Reply Date: April 20, 1999hh]   e4#XP\  P6QpXP#By the Chief, Allocations Branch  en4 x1. Before the Commission for consideration is a petition for rule making filed by Farm  !Belt Radio, Inc. ("petitioner"), permittee of unbuilt FM Stations WOXM, Channel 291A  e(4 !("WOXM"), Oregon, Illinois9(n nZ'ԍSee, BPH930604MD9 and WSEY, Channel 239A, ("WSEY"), Mt. Morris, Illinois9(Xn nZ1'ԍSee, BPH960830JD9.  e4 !Petitioner seeks two simultaneous amendments to the FM Table of Allotments.=Xn nZ' ! ԍFarm Belt's pleading was a petition for reconsideration of the Commission's dismissal of a prior rule making  ! request. Inasmuch as we are treating it as a new petition for rule making, the petition for reconsideration will be dismissed as moot.= First, petitioner  !proposes to change WOXM's community of license to Genoa, Illinois on Channel 292A, and the  !hmodification of its construction permit accordingly. Second, petitioner proposes to change  !=WSEY's community of license to Oregon, Illinois, with no change of channel, and the  ey4modification of WSEY's construction permit accordingly.pp  e34 xzX` hp x (#%'0*,.8135@8: ,**88 "  e4the transmitter site for Station WSEY is proposed. nZy'ԍThe coordinates for Channel 292A at Genoa are North Latitude 420100 and West Longitude 884900. The coordinates for Channel 239A at Oregon are North Latitude 415904 and West Longitude 892952.  e4 x3. Petitioner, also claims with respect to Genoa, that it is a community for allotment  !purposes. Petitioner states that Genoa is an incorporated community with its own local  !government consisting of a fulltime city manager, as well as its own police, fire and water/sewer  !departments. Genoa has its own post office and zip code. It is home to its own public schools  !serving over 1200 students, six churches, scouting programs, a Lion's Club, and over 20 other  !"clubs and civic organizations, recreational facilities, a Chamber of Commerce, a museum and a full complement of businesses and other services consistent with a community of its size.  e4 x4. Additionally, petitioner claims that adoption of its proposal will result in a preferential  e 4 !arrangement of allotments consistent with the Revision of FM Assignment Policies and  e\ 4 !Procedures, 90 FCC 2d 88 (1982). In support of this position, petitioner asserts that the proposed  !substitutions will result in a first local service being moved from the smaller community of Mt.  !Morris (2,919 people) to the larger communities of Genoa (3,038 people) and Oregon (pop.  !3,891). Although Channel 239A also represents the only aural service to Mt. Morris, petitioner  !remarks that as its Station WSEY is unbuilt at Mt. Morris, its reallotment request will not deprive  e4 !the community of an "existing service".@  nZ~' ! ԍPetitioner notes that the Commission recognized at paragraph 19 and footnote 16 of its Modification of FM  nZF' ! and TV Authorizations to Specify New Community of License, 4 FCC Rcd 4870 (1989) recon. granted in part, 5  ! FCC Rcd 7094 (1990) that for purposes of changing a community of license the phrase "existing service" excludes  nZ' ! bare construction permits. See also, Midway, Panacea and Quincy, Florida, 10 FCC Rcd 6112 (1995). Petitioner  !. notes that there will only be theoretical areas and populations which will lose reception service, as well as areas and  ! populations which will receive new service. No white or gray area will be created by the proposed modification of  !; WSEY's facilities authorized in its construction permit and Mt. Morris will continue to receive service from a number of stations. Rather, petitioner asserts, the communities of Mt. Morris  !and Oregon will continue to receive an adequate number of aural broadcast services, as both communities presently receive at least five fulltime aural broadcast services.  e!4 x#5. #XP\  P6QpXP#We believe that the proposal warrants consideration. In seeking comment on this  !proposal, we recognize that the proposed reallotment of Station WQXM(FM) from Oregon to  !Genoa on Channel 292A would result in the smaller community of Genoa (pop.3,083) obtaining  !a first local service and the larger community of Oregon (pop. 3891) not having a first local  !/service. However, viewed as a whole, both change of community proposals appear to result in  !a preferential arrangement of allotments because, of the three communities involved, the two  !largest (Genoa and Oregon) would have first local transmission services and the smallest (Mt.  e,4 !Morris) would not. See, e.g., Blanchard, LA, 10 FCC Rcd 9828 (Comm. 1995)(in comparing  !mutually exclusive allotment proposals that would provide first local transmission services, the  e4 !more populated community is favored).>X(  nZ%' ! ԍAs noted above, both Oregon and Mt. Morris currently receive at least five fulltime reception services and are  ! thus considered to be well served. We request that petitioner provide a showing as to the number of reception services at Genoa. > Further, although the proposal would technically remove"H ,`(`(884"  !the only allotment from Mt. Morris, Station WSEY remains unbuilt. Therefore, we do not  !uconsider its removal from Mt. Morris to present the parallel concerns with loss of service  !/represented by the removal of an operating station, as it does not constitute a service the public  e4 !has become reliant upon. See Sanibel and San Carlos Park, Florida, 10 FCC Rcd 7215 (1995);  et4 !/Pawley's Island and Atlantic Beach, South Carolina, 8 FCC Rcd 8657 (1993), and Glencoe and  eQ4LeSueur, Minnesota, 7 FCC Rcd 7651 (1992).  e 4 x6. In view of the above we will seek comments on the proposed amendment to the FM Table of Allotments, Section 73.202(b) of the Commission's Rules, as follows:  e4CommunityppppppppppppChannel No.  e 4ppppppppPresent Proposedpppppppp  e\ 4Genoa, Illinoispppppp 292A  e9 4Mt. Morris, Illinoispppppp239A,,,,,,  e 4Oregon, Illinoispppppp291A,,,,,, 239A  e 4 x7. The Commission's authority to institute rule making proceedings , showings required,  !cutoff procedures, and filing requirements are contained in the attached Appendix and are  !Iincorporated 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.  e!4 x48. Interested parties may file comments on or before April 5, 1999, and reply comments  !on or before April 20, 1999, 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's counsel, as follows: John S. Neely kMiller & Miller, P.C. xWP.O. Box 33003 `Washington, D.C. 20033     eZ4 x9c9. 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  e4 !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  e 473.202(b), 73.504 and 73.606(b) of the Commission's Rules, 46 FR 11549, February 9, 1981.  e"4 x= 10. For further information concerning this proceeding contact Arthur D. Scrutchins,  !Mass Media Bureau, (202) 4182180. For purposes of the this restricted notice and comment rule  eB$4 !Nmaking 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  !lproceeding has been decided and such decision is no longer subject to reconsideration by the  e&4 !Commission or review by any court. An ex parte presentation is not prohibited if specifically"&,`(`(88&"  !Vrequested by the Commission or staff for the clarification or adduction of evidence or resolution  !pof 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 other parties to the proceeding unless the Commission specifically waives this service  et4 !crequirement. 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  e 4an ex parte presentation and shall not be considered in this proceeding.  FEDERAL COMMUNICATIONS COMMISSION ppJohn A. Karousos ppppppppppChief, Allocations Branch ppppppppppPolicy and Rules Division ppppppppppMass Media Bureau