*Pages 1--4 from Microsoft Word - 14664.doc* Federal Communications Commission DA 02- 242 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of ) ) Amendment of Section 73.622( b), ) MM Docket No. 00- 117 Table of Allotments, ) RM- 9810 Digit al Television Broadcast St at ions. ) (Salem, Oregon) ) REPORT AND ORDER (Proceeding Terminated) Adopted: February 1, 2002 Released: February 6, 2002 By the Chief, Video Services Division: 1. At the request of Paxson Salem License, Inc. (" Paxson"), licensee of station KPXG( TV), NTSC channel 22, Salem, Oregon, the Commission has before it the Notice of Proposed Rule Making, 15 FCC Rcd 11362 (2000), proposing the substitution of DTV channel 4 for its assigned DTV channel 20. Paxson filed comments restating its intention to construct and operate station KPXG- DT on channel 4. ACME Television Licenses of Oregon, LLC (" ACME"), licensee of KWBP( TV), Salem, Oregon, and licensee of low power television st at ion KWBP- LP, channel 4, Reedville, Oregon, filed comment s in opposit ion. Paxson filed responsive comment s. 2. ACME states that the Paxson proposal fails to provide a 55 dBu city grade field strength contour over all of Salem, Oregon, and fails to replicate the existing NTSC service area of KPXG( TV). ACME also claims that adoption of the Paxson proposal would displace the service of KWBP- LP locat ed in Reedville, Oregon. It not es that Paxson proposes to change sit e and moved toward KWBP-LP, which is only 12.4 kilometers from the DTV site specified in Paxson's proposal. ACME states that it s low power st at ion provides WB Net work, syndicat ed and local programming to persons residing in the City of Portland, Oregon, and the surrounding area, who are unable to satisfactorily receive that programming over the air from KWBP( TV). ACME submits that it acquired KWBP- LP based on the Commission's original formulation of the DTV Table of Allotments, which preserved the service provided by KWBP- LP. ACME claims it invested considerable resources, in excess of $250,000, in improving KWBP- LP's service to the public. It also argues that Paxson has failed to explain how the public int erest will be served by t he loss of service current ly provided by bot h KPXG( TV) and KWBP-LP. Finally, ACME suggests that if the Commission considers Paxson's proposal, its adoption ought to be conditioned on location and assignment of a equivalent replacement channel for KWBP- LP and reimbursement by Paxson to ACME of all the associated costs resulting from the modification of KWBP- LP. 3. In response, Paxson states that its proposal would permit KPXG- DT to improve over- the-air DTV service by permitting its station to co- locate with KOIN- TV, a move that is precluded by the use DTV channel 20. Paxson argues that the other digital station allotted to Salem, ACME's KWBP- 1 Federal Communications Commission DA 02- 242 2 DT, is not precluded and similarly has applied to relocat e to the KOIN- TV tower. 1 Paxson notes that in it s pet it ion it claimed t hat t he grant of it s channel change would result in no net loss of lower power stations. KPXG- DT's proposed allotment, according to Paxson, would displace ACME's recently acquired low power st at ion (KWBP- LP), but KPXG- DT's init ial allot ment on channel 20 would displace K20DD located at Albany, Oregon. To this end, its states that whether or not the Commission grant s its proposal, one secondary st at ion will be displaced, either KWBP- LP or K20DD, a result the Commission approved when it init ially allot t ing channel 20 to KPXG- DT. Furt her, Paxson maint ains t hat t he Commission when implement ing digit al television, has "explicit ly, cont inuously, and notoriously affirmed the secondary status of LPTV and TV translator stations." 2 Nevertheless, Paxson argues, that the Commission adopted numerous mitigating administrative and technical measures designed to create additional vacancies to which displaced stations could relocate, noting that ACME has not avail itself of such a remedy. 3 It also refutes ACME's claim that the Commission should condition Paxson's grant upon AMCE finding a replacement channel as well as, reimbursement for the associated costs. It states that AMCE has failed to cite any authority for the imposition of such a burden on Paxson, arguing that the Commission has explicitly addressed the issue of reimbursement, stating it that was not "appropriate to require broadcaster to implement DTV and at the same time require them to compensate secondary low power stations that are affected by this required implement at ion." Finally, Paxson disput es ACME's claim that its proposed channel change will not satisfy the Commission's principal community coverage requirement. Paxson states that its technical study shows that 55 dBu service is provided to all of KPXG- DT's community of license. And, the proposed operation of KPXG- DT on channel 4 would provide better replication than the proposed facilit ies of KWBP- DT, which would be locat ed at the same sit e. Paxson finally argues that the adopt ion of it s proposal will serve t he public int erest and result in a more efficient us of the broadcast spectrum. 4. We believe the public interest would be served by adopting Paxson's proposal since it would permit st at ion KPXG( TV) to co- locat e its digit al facilit y wit h st at ion KOIN- TV as t he Commission has encouraged DTV applicants to do for a variety of reasons. Moreover, we find that ACME has not raised an reason for denying Paxson's request. In essence, ACME raises the same concerns that were addressed in the Commission's Sixth Report and Order and Review of the Commission's Rules and Policies Affecting the Conversion Digital Television (" DTV Biennial Review") Report and Order and Further Notice of Proposed Rule Making 4 . There, the Commission decided that it will not require replicat ion in order to give broadcast ers flexibilit y to collocat e their ant ennas at common sit es in order 1 Paxson cites FCC File No. BPCDT- 19981007KE. 2 Citing, Advanced Television Systems and Their Impact Upon the Existing Television Broadcast Service, Sixth Report and Order (" Sixth Report and Order"), MM Docket No. 87- 268, 12 FCC Rcd 14588( 1997), Memorandum Opinion and Order on Reconsideration of the Sixth Report and Order, 13 FCC Rcd 7418 (1998), and Second Memorandum Opinion and Order on Reconsideration of the Fifth and Sixth Report and Orders, 14 FCC Rcd 1348 (1998). 3 Paxson also notes that the Commission ruled that KWBP- LP did not qualify for Class A status pursuant to Public Notice, DA 00- 1227, released June 9, 2000. 4 See 16 FCC Rcd 5946 (2001). 2 Federal Communications Commission DA 02- 242 3 t o minimize pot ent ial local difficult ies in locat ing towers and eliminat ing the cost of building new towers. Furthermore, ACME's reliance on 55 dBu city grade coverage requirement is misplaced. The Commission's city grade requirement as set forth in Section 73.625 requires a 28 dBu F( 50,90) field strength contour to cover the principle city, for channels between 2- 6. In the Notice of Proposed Rule Making in MM Docket No. 00- 39, the Commission did propose a 55 dBu contour requirement for a station's community of license, however, in the DTV Biennial Review the Commission adopted a 35 dBu requirement instead, effective December 31, 2004, for commercial stations and December 31, 2005, for non- commercial stations. Thus, contrary to ACME's claims, Paxson's proposal does provide city grade coverage to the community of Salem and station KWBP- LP is not entitled to any preferential treatment other than what it normally afforded to all secondary services. We find that Paxson's justification for its channel substitution serves the Commission's goal of allowing broadcasters some flexibilit y so t hat t hey may expedit iously cont inue to build out and met the DTV const ruct ion deadlines. 5. DTV channel 4 can be allot t ed to Salem, Oregon, in compliance wit h the principle community coverage requirements of Section 73.625( a) at coordinates (45- 30- 58 N. and 122- 43- 59 W.). Since the community Salem is located within 400 kilometers of the U. S.- Canadian border, concurrence by the Canadian government has been obtained for this allotment. In addition, we find that this channel is acceptable under the 2 percent criterion for de minimis impact that is applied in evaluating requests for modification of initial DTV allotments under Section 73.623( c)( 2) for Station KPXG- DT with the following specifications: DTV DTV power Antenna DTV Service State & City Channel (kW) HAAT (m) Pop. (thous.) OR Salem 4 17.0 455 2040 6. Accordingly, pursuant to the authority contained 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 ORDERED, That effective March 25, 2002, the DTV Table of Allotments, Section 73.622( b) of the Commission's Rules, IS AMENDED, with respect to the community listed below, to read as follows: City Channel No. Salem, Oregon 4, 33c 7. IT IS FURTHER ORDERED, That within 45 days of the effective date of this Order, Paxson Salem License, Inc. shall submit to the Commission a minor change applicat ion for a construction permit (FCC Form 301) specifying DTV Channel 4 in lieu of DTV Channel 20 for station KPXG( TV). 8. IT IS FURTHER ORDERED, That this proceeding IS TERMINATED. 9. For further information concerning this proceeding, contact Pam Blumenthal, Mass Media 3 Federal Communications Commission DA 02- 242 4 Bureau, (202) 418- 1600. FEDERAL COMMUNICATIONS COMMISSION Barbara A. Kreisman Chief, Video Services Division Mass Media Bureau 4