D0CKET FiLE COpy ORIGINAL
MM Docket No. 95-14
By the Chief, Allocations Branch:
NOTICE OF PROPOSED RULE MAKING
AND ORDER TO SHOW CAUSE
DA 95-107
modified from Channel 249A to Channel 266A in East
Wenatchee to accommodate the upgrade. However, peti
tioner claims that the upgrade was never effectuated and
that Station KYSN(FM) has not received reimbursement
for costs in changing frequency. In fact, petitioner asserts
that although Station KZLN-FM's permittee, P-N-P Broad
casting, Inc. ("P_N_P"), requested and was granted authority
to operate on Channel 248C1, effective December 23, 1991,
it did not file an FCC Form 301 for a construction permit
for the channel.
3
As a result, on June 10, 1993, the Com
mission sent P-N-P a letter advising that unless it filed an
FCC Form 301 application for a construction permit for
Class C1 facilities within 30 days, it could result in P-N-P
being made a party to an allocation rule making seeking to
downgrade the allotment. P-N-P was also notified that the
application would take precedent if filed before any
conflicting rule making was initiated. If filed after a rule
making petition, P-N-P was informed that the application
would be subject to the outcome of the rule making pro
ceeding. P-N-P did not file a Form 301 to upgrade Station
KZLN-FM to Class C1 facilities. Therefore, petitioner
deems that P-N-P has abandoned its interest in the Class C1
allotment at Othello. Furthermore, petitioner claims that
although Station KYSN(FM)'s license was modified to
specify operation on Channel 266A at East Wenatchee, the
station is still operating on Channel 249A, thereby preclud
ing petitioner from conducting program tests on Channel
249A at Leavenworth. Petitioner alleges that Station
KYSN(FM)'s has not moved to the new channel because of
P-N-P's failure to reimburse the station for changing fre
quency. Therefore, in order to resolve the conflict, peti
tioner urges the Commission to adopt its proposal.
3. Generally, whenever an existing licensee or permittee
is ordered to change frequencies to accommodate a new
channel allotment, Commission policy requires the benefit
ting party, or parties, to reimburse the affected station for
costs incurred. See Circleville, Ohio, 8 FCC 2d 159 (1967).
Here, petitioner asserts that Station KYSN(FM) has not
changed to Channel 266A and is still operating on Channel
249A. Therefore, petitioner states that it is not required to
reimburse Station KYSN(FM) for any costs incurred in
changing frequency. However, if Station KYSN(FM) can
establish costs that directly concern the frequency change,
then it could claim reimbursement and petitioner must
state its willingness to do so. See Burkesville and Russell
Springs, Kentucky, Cookeville and Spencer, Tennessee, 5
FCC Red 677 (1990). Petitioner requests that the FM Table
of Allotments be amended to accurately reflect Channel
249A in lieu of Channel 266A at East Wenatchee.
4. We believe the public interest would be served by
proposing the substitution of Channel 266A for Channel
249A at Leavenworth, Washington, and the modification of
Station KLVH(FM)'s construction permit accordingly, in
order to eliminate the conflict with Station KYSN(FM) at
East Wenatchee; and to enable Station KLVH(FM) to com
mence operation. The Class A station would provide the
RM-85S2
Federal Communications Commission
Released: January 30, 1995
Amendment of Section 73.202(b)
Table of Allotments,
FM Broadcast Stations.
(Leavenworth, Othello and
East Wenatchee, Washington)
In the Matter of
Adopted: January 24, 1995;
~lfLt)?lfeMte'~
}~!O'lComtnfintc'dttons Commission
?., Washington, D.C. 20554
Comment Date: March 24, 1995
Reply Comment Date: April 10, 1995
1. The Commission has before it the petition for rule
making filed by Ronald A. Murray, d/b/a Murray Broad
casting ("petitioner"), permittee of Channel 249A, leaven
worth, Washington, proposing the substitution of Channel
266A for Channel 249A at Leavenworth and the modifica
tion of Station KLVH(FM)'s construction permit accord
ingly.1 To accommodate the substitution, petitioner also
proposes the downgrade of Channel 248C1 to Channel
248C3 at Othello, Washington, and the substitution of
Channel 249A for Channel 266A at East Wenatchee Wash
ington.
2
Petitioner states his intention to apply for the
channel, if allotted.
2. In support of its proposal, petitioner states that pursu
ant to Report and Order (MM Docket No. 92-242, 8 FCC
Red 850 (1993», Station KLVH(FM) was issued a construc
tion permit (File No. BPH-930423MF) for Channel 249A
at leavenworth, Washington. Petitioner also states that pur
suant to Report and Order (MM Docket 91-114; 6 FCC Red
6476(1991», Station KYSN(FM)'s license was modified to
sp~cifyChan~el266A at. East Wenatchee, Washington. Pe
tItIoner submIts that StatIOn KLVH(FM)'s construction per
mit for Channel 249A at Leavenworth was granted on the
assumption that Station KZLN-FM would be upgraded
from Channel 248C3 to Channel 248C1 at Othello Wash
ington, and that Station KYSN(FM)'s licensew~uldbe
I On September 7, 1994, Station KLVH(FM) was granted special
temporary authority ("STA") (File No. 940822WW) to operate
on Channel 266A on program test authority until resolution of
the instant rule making proceeding. The STA expires on March
7, 1995.
2 An application for the assignment of the license for Station
KYSN(FM) at East Wenatchee, from Sunbrook Wenatchee, L.P.
to Sunbrook Communications has been accepted for filing (File
No. BALH-941116GT).
3 We note that by letter dated March 26, 1992, Station KZLN
FM informed the Commission that it was in the process of
gathering information and preparing an application to imple
ment the class C1 upgrade. However; Station KZLN-FM was
cautioned that although the letter indicates a continuing inter
est in upgrading, such letters are informational only and do not
exempt Station KZLN-FM from the possible consequences of
continued delay in filing its Form 301 application.
1
DA 95-107 Federal Communications Commission
nished, the Commission may grant the modification, deny
the modification, or set the matter of modification for
hearing. If no written statement is filed by the date referred
to above, P-N-P Broadcasting, Inc. and Sunbrook
Wenatchee, L.P., will be deemed to have consented to the
modification as proposed in the Order to Show Cause and a
final Order will be issued by the Commission, if the above
mentioned channel modification is ultimately found to be
in the public interest.
8. IT IS FURTHER ORDERED, That the Secretary
SHALL SEND, BY CERTIFIED MAIL, RETURN RE
CEIPT REQUESTED, a copy of this Notice of Proposed
Rule Making and Order to Show Cause to the following:
9. The Commission's authority to institute rule making
proceedings, showings required, cut-off procedures, and fil
ing 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.
10. Interested parties may file comments on or before
March 24, 1995, and reply comments on or before April
10, 1995, and are advised to read the Appendix for the
proper procedures. Comments should be filed with the
Secretary, Federal Communications Commission, Washing
ton, D.C. 20554. Additionally, a copy of such comments
should be served on the petitioner, or its counselor con
sultant, as follows:
community with its first local aural transmission service. In
order to accommodate the substitution, we also propose the
downgrade of Channel 248C1 to Channel 248C3 at Othel
lo, Washington, and the modification of Station KZLN
FM's construction permit accordingly; the substitution of
Channel 249A for Channel 266A at East Wenatchee, Wash
ington, and the modification of Station KYSN(FM)'s li
cense accordingly. An engineering analysis has determined
that Channel 266A can be allotted at Leavenworth in com
pliance with the Commission's minimum distance separa
tion requirements without the imposition of a site
restriction at petitioner's presently authorized site.
4
Addi
tionally, Channel 248C3 can be allotted to Othello in
compliance with the Commission's minimum distance sep
aration requirements without the imposition of a site re
striction.
s
Channel 249A can be allotted to East Wenatchee
in compliance with the Commission's minimum distance
separation requirements without the imposition of a site
restriction.
6
Since Leavenworth, Othello and East
Wenatchee are located within 320 kilometers (200 'miles) of
the U.S.-Canadian border, concurrence by the Canadian
government has been requested.
5. Accordingly, we will seek comments on the proposed
amendment of the FM Table of Allotments, Section
73.202(b) of the Commission's Rules, for the communities
listed below, to read as follows:
Channel No.
City Present Proposed
Leavenworth,
Washington 249A 266A
Othello,
Washington 248Cl 248C3
East Wenatchee,
Washington 266A 249A
Duane J. Polich, President
P-N-P Broadcasting, Inc.
P.O. Box 2869
Othello, Washington
99344-2869
(Permittee of Station KZLN
FM)
Larry Roberts, President
Sunbrook Wenatchee, L.P.
N. 1212 Washington St.,
Suite 124
Spokane, Washington 99201
(Licensee of Station
KYSN(FM»
6. Accordingly, IT IS ORDERED, That pursuant to Sec
tion 316(a) of the Communications Act of 1934, as amend
ed, P-N-P Broadcasting, Inc, permittee of Station
KZLN-FM, Othello, Washington. and Sunbrook
Wenatchee, L.P., licensee of Station KYSN(FM), East
Wenatchee, Washington, SHALL SHOW CAUSE why Sta
tion KZLN-FM's construction permit and Station
KYSN(FM)'s license SHOULD NOT BE MODIFIED to
specify operation on Channels 248C3 and 249A, respec
tively, as proposed herein instead of the present Channels
248Cl and 266A, respectively.
7. Pursuant to Section 1.87 of the Commission's Rules,
P-N-P Broadcasting, Inc. and Sunbrook Wenatchee, L.P.,
may, not later than March 24, 1995, file a written state
ment showing with particularity why their license or con
struction permit should not be modified as proposed in the
Order to Show Cause. The Commission may call on P-N-P
Broadcasting, Inc. and/or Sunbrook Wenatchee, L.P., to
furnish additional information. If P-N-P Broadcasting
and/or Sunbrook Wenatchee., L.P., raise a substantial and
material question of fact, a hearing may be required to
resolve such a question pursuant to Section 1.87. Upon
review of the statements and/or additional information fur-
4 The coordinates for Channel 266A at Leavenworth are North
Latitude 47-35-32 and West Longitude 120-38-35.
5 The coordinates for Channel 248C3 at Othello are North
Melodie A. Virtue
Haley, Bader & Potts
4350 North Fairfax Drive, Suite 900
Arlington, Virginia 22203-2633
(Counsel for Petitioner)
11. 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.
12. For further information concerning this proceeding,
contact Sharon P. McDonald, Mass Media Bureau, (202)
634-6530. For purposes of this restricted notice and com
ment 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
Latitude 46-45-55 and West Longitude 119-16-49.
6 The coordinates for Channel 249A at East Wenatchee are
North Latitude 47-22-52 and West Longitude 120-17-16.
i
J
Federal Communications Commission DA 95-107
dec'ision is no longer sUbject to reconsideration by the
Commission orrevie~by any court. An ex parte presenta
tion is not prohibited if specifically requested by the Com
mission or staff for the clarification or adduction of
evidence or resolution of issues in the proceeding. How
ever, 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
APPENDIX
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 pro
posal(s) discussed in the Notice of Proposed Rule Making to
which this Appendix is attached. Proponent(s) will be ex
pected 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 gov
ern the consideration of filings in this proceeding.
(a) Counterproposals advanced in this proceeding
itself will be considered if advanced in initial com
ments, so that parties may comment on them in
reply comments. They will not be considered if ad
vanced 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(s) 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 com
ments herein. If they are filed later than· that, they
will not be considered in connection with the de
cision in this docket.
3
(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 par
ties 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 com·
ments, 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 Com
mission's Rules.) Comments should be filed with the Sec
retary, 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 Regula
tions, 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
Public Reference Room at its headquarters, 1919 M Street
N.W., Washington, D.C.