Federal Communications Commission Washington, D.C. 20554 January 31, 2007 DA 07-496 Released: February 1, 2007 MS Communications, Inc. c/o Vincent A. Pepper, Esq. Womble Carlyle Sandridge & Rice, PLLC 1401 Eye St., NW Washington, D.C. 20005 Kenneth E. Hardman 1015 18th St., NW, Suite 800 Washington, D.C. 20036 Re: Station W68DD, Traverse City, MI, ID No.57380 File No. BPTTL-20000327AAX, et al. Dear Counsel: This letter is in response to the petitions for reconsideration of our decisions dismissing 114 displacement applications for low power television stations filed by MS Communications, LLC (MS).1 For the reasons stated below, we deny the petitions for reconsideration and affirm our dismissal of the displacement applications. In its applications, MS laid out three criteria in choosing new channels. First, MS sought locations where there would be no unmanageable interference constraints on the channel and location chosen. Second, MS considered locations which would result in a market size of greater than 40,000 households, which it considered the minimal size for “economic viability.” Third, MS sought to allow for other displacements suffered by the same enterprise. Presumably, the third criterion was meant to allow for other displacements of stations licensed to MS. In our previous decisions dismissing the applications, we found that MS had failed to meet the requirement that its displacement application specify a location in the same area as its displaced facility. We found that MS’s failure to consider sites within 40 km of its displaced sites and its decision to only consider sites with more than 40,000 households were contrary to the rules governing displacement applications. For those reasons, we dismissed the applications. In its petitions for reconsideration, MS argues that: (1) the rules do not contain a geographic restriction with respect to Channel 52-69 licensees seeking to relocate to the core spectrum; (2) 1 A complete list of the stations and applications affected is attached as Exhibit A. MS filed multiple petitions for reconsideration, all of which recited similar facts and relied on the same arguments. In the interest of administrative efficiency, we are consolidating all of the listed proceedings here. 2 the Commission must take sustainability into account in reviewing displacement applications; (3) established policy governing technical modifications based on a showing of need should not be applied to MS; (4) MS should not be penalized for attempting to comply with our Rules; and (5) good cause exists for granting MS’s requests. First, MS argues that our Rules permit a licensee to file a displacement application either to avoid interference or to continue to serve its protected service area. Under MS’s argument, a party filing a displacement application to avoid interference does not have any additional obligation to continue serving its protected service area. However, such a conclusion would not only be at odds with the Commission’s previous requirements governing LPTV stations seeking modifications, but also would permit a displaced station to move virtually anywhere in the country. In its previous decisions, the Commission has made clear that LPTV stations seeking to move to a new location must still seek to serve the same area2 and it has not eliminated those requirements. Contrary to MS’s arguments, there is no evidence that the Commission contemplated eliminating the service area requirement with respect to displaced stations or to any other LPTV stations. Therefore, we find that MS was required to comply with the requirement that its stations serve their protected area following the proposed modifications. Second, MS claims that we must take the economic sustainability of its stations into account when deciding whether to authorize its move and also claims its systems will not be sustainable except in markets with at least 40,000 households. In bolstering its claims, MS relies on our decisions authorizing the use of satellite stations, our one-to-a-market rule, and decisions permitting the use of spectrum for other than its original purpose. What MS overlooks is that the decisions on which it relies still required that the same area be served. For example, a basic premise of our decisions authorizing the use of satellite stations is that granting the satellite authorization will preserve a media voice in an underserved market.3 The satellite station policy does not contemplate moving the station to another, potentially more profitable market. Also, even though the Commission does take economic considerations of licensees into account in certain contexts, it does not guarantee a licensee economic success, nor will it abrogate all of its rules and policies so that a licensee may, at will, move to a market that might be more profitable than the one it originally, voluntarily, applied to serve. MS states that it should not be required to demonstrate a showing of need to justify its technical modifications. In support of its position, MS lists a group of modification applications that it claims offered justifications substantially similar to those it offered in support of its requested moves. However, MS does not discuss how its applications are similar to those cited and admits that the information in its own applications may have been “presented in a somewhat more summary fashion” than the applications cited. MS then claims that it offered to provide papers to back up its claimed justification for its modifications, but does not present those papers. An 2 See, e.g., Low Power Television and Television Translator Service, 2 FCC Rcd 1278 (1987); Advanced Television Systems, Sixth Report and Order, 12 FCC Rcd 14588 (1997). 3 Television Satellite Stations, 6 FCC Rcd 4212, 4215 (1991). 3 applicant has an obligation to make sure that its application is complete in itself at the time it is filed. Otherwise, the application is subject to dismissal. This is especially true if an applicant is seeking a waiver or an exception to our rules. At this point, MS cannot rely on a broad generalization that its applications were somehow similar to others that were granted in other proceedings and expect to be given relief. Furthermore, MS cannot expect relief because it claims that it has in its possession documentation that will justify its request for an exception to be made to our rules. If MS wanted to make a case that it should be exempted from the fundamental requirement of a showing of need, it should have presented all evidence in support of its position as part of its application. It did not do so at the time it filed its applications and has not done so now. MS next claims it should not be penalized for its alleged attempt to comply with our rules. MS claims that its interpretation of the Commission’s Rules to permit it to abandon its stations’ service areas is reasonable and, therefore, its applications should not have been dismissed. MS makes this claim even though that interpretation flies in the face of the Commission’s longstanding requirement that stations preserve service in their protected area. As discussed above, MS’s position is not a reasonable one and, in spite of MS’s claims to the contrary, it was not unfairly penalized when its applications were dismissed. Finally, MS claims that good cause exists for granting its request, by which it means good cause exists for a waiver. An applicant for a waiver faces a heavy burden of persuasion, although the Commission must give a “hard look” to meritorious waiver requests and may grant such requests where the waiver will not undermine the policy of the general rule and where public interest considerations require the waiver.4 MS has not demonstrated how granting it a waiver from serving its designated service area would serve the purpose of our rules or how it would serve the interest of any party but MS. Indeed, grant of the requested waiver would undermine the general policy of the rules governing LPTV stations to preserve existing service. ACCORDINGLY, IT IS ORDERED, That the petitions for reconsideration of our decision to dismiss the displacement applications filed by MS Communications, LLC and listed on Exhibit A hereto ARE DENIED. Sincerely, Barbara A. Kreisman Chief, Video Division Media Bureau 4 City of Angels Broadcasting, Inc. v. FCC, 745 F.2d 656 (D.C. Cir. 1984). 4 EXHIBIT A Call Sign City State Prefix ARN W62CQ GREEN BAY WI BMPTTL 20000327ABC K55GS DES MOINES IA BMPTTL 20000425ABC W14BW TUPELO MS BMPTTL 20000515ACA W36BS COLUMBIA MO BMPTTL 20000515ACC K69HT EVANSVILLE IN BMPTTL 20000526ABS W66CL PORTLAND ME BMPTTL 20000526ABU W61CO COLUMBIA MO BMPTTL 20000526ABV W58CM PORTLAND ME BMPTTL 20000526ABW K55HL EVANSVILLE IN BMPTTL 20000614ACN W20BS HATTIESBURG MS BMPTTL 20000630ADP W26BR GULFPORT MS BMPTTL 20000711AAO W36BY MCCOMB MS BMPTTL 20001031ABW K59FB FORREST CITY AR BPTTL 20010926ABR K46EM JONESBURO AR BPTTL 20010926ABS W52CZ BELLE MEADE TN BPTTL 20010926ABT W56DA DECATUR AL BPTTL 20010927AAX W69DB COLUMBIA TN BPTTL 20010927ABG W16BI KNOXVILLE TN BPTTL 20010928ABZ W24BT LEXINGTON KY BPTTL 20011010AAH W31BU GREENVILLE SC BPTTL 20011018AFO W69ED HUNTINGTON WV BPTTL 20011019AAW W26BK CHARLESTON WV BPTTL 20011022AAO W65DE NEW ORLEANS LA BPTTL 20011106AAN K57GK LAFAYETTE LA BPTTL 20011108AAF K38EG LAKE CHARLES LA BPTTL 20011113ACJ K55GT BEAUMONT TX BPTTL 20011116ABK W48BY BEAVER DAM WI BPTTL 20011119AAV W23BL OSHKOSH WI BPTTL 20011120ABF W34BZ BEAVER DAM WI BPTTL 20011120ABG W48CC BIG RAPIDS MI BPTTL 20011206AAW W18CB BIG RAPIDS MI BPTTL 20011206ABA W67DN MUSKEGON MI BPTTL 20011213ABJ W21BS BATTLE CREEK MI BPTTL 20011220ABD W24CG JACKSON MI BPTTL 20011227AAW W48BZ ANN ARBOR MI BPTTL 20011231AAC W50CA PONTIAC MI BPTTL 20020107AAH W52CB BATAVIA NY BPTTL 20020108AAY W36CE FT. WAYNE IN BPTTL 20020111AAT W50CD BOWLING GREEN OH BPTTL 20020130ABU 5 W52CO DEFIANCE OH BPTTL 20020206AAO W55CH LIMA OH BPTTL 20020211ABA W59DC TOLEDO OH BPTTL 20020212AAH W66CX JANESVILLE WI BPTTL 20020221AAK W61CS CLEVELAND OH BPTVL 20020226ABR W58CN SHEBOYGAN WI BPTTL 20020227ACU W56DF KENOSHA WI BPTTL 20020228ACL W52CP ROCKFORD IL BPTTL 20020306AAB W65DJ ERIE PA BPTTL 20020307ABH W56DI EAU CLAIRE WI BPTTL 20020307ABO W63CH AKRON OH BPTTL 20020307ABQ W58CO MADISON WI BPTTL 20020307ABS W66CY MUNCIE IN BPTTL 20020313AAR W64CK SPRINGFIELD/DAYTON OH BPTTL 20020315AAL W62CR COLUMBUS OH BPTTL 20020315AAM W57CP KOKOMO IN BPTTL 20020319ABI W55CL INDIANAPOLIS IN BPTTL 20020321AAW W53BN YOUNGSTOWN OH BPTTL 20020327ABI W39CB PITTSBURGH PA BPTTL 20020404AAY W65CZ JOLIET IL BPTTL 20020423ABE K52FC WICHITA KS BPTTL 20020429ACP K67GR ST. LOUIS MO BPTTL 20020429ACQ W36CD BUFFALO NY BPTTL 20020502AAZ K31ED OMAHA NE BPTTL 20020503ABI W60CI LA CROSSE WI BPTTL 20020508AAO K53FM BELTON MO BPTTL 20020509AAW W40BC CEDAR RAPIDS IA BPTTL 20020509AAY W24BV ROCK ISLAND IL BPTTL 20020513AAU K59FW REDDING CA BPTTL 20020523AAQ W30BO JACKSONVILLE FL BPTTL 20020523AAU K69HO MONROE LA BPTTL 20020605ABD K66EX SHREVEPORT LA BPTTL 20020606AAH K57FV SPRINGFIELD MO BPTTL 20020621AAA W69DO MACON GA BPTTL 20020627AAM W47BX CHARLESTON SC BPTTL 20020627AAN K63GK PORTLAND OR BPTTL 20020627AAR K69IE RENO NV BPTTL 20020701ABK W36BT COLUMBUS GA BPTTL 20020723ABI W45BL MONTGOMERY AL BPTTL 20020723ABK W62CK BIRMINGHAM AL BPTTL 20020725AAX K63FX TEXARKANA TX BPTTL 20020725ABB K59FJ SHERMAN TX BPTTL 20020726AAQ W54CG MANCHESTER NH BPTTL 20020729ABS 6 W66CG CHATTANOOGA TN BPTTL 20020801ABE K61FP CONWAY AR BPTTL 20020805AAW W41BV GREENVILLE MS BPTTL 20020806ABC K65GP CARBONDALE IL BPTTL 20020806ABD K57HB SEATTLE WA BPTTL 20020807AAR K58FD TERRE HAUTE IN BPTTL 20020807AAS K50DW CORPUS CHRISTI TX BPTTL 20020808ADS W46CE SENATOBIA MS BPTTL 20020808ADT W57CQ LAFAYETTE IN BPTTL 20020814ABB K43EI LONGVIEW TX BPTTL 20020814ABE K27FF LITTLE ROCK AR BPTTL 20020814ABF K65GA TOPEKA KS BPTTL 20020815AAM K57GF GARLAND TX BPTTL 20020816AAR K27FX SACRAMENTO CA BPTTL 20020816AAS W64BZ PARAGOULD AR BPTTL 20020819ABO K53FC ST. JOSEPH MO BPTTL 20020819ABP K67GH SIOUX FALLS SD BPTTL 20020819ABQ K55HU FORT SMITH AR BPTTL 20020819ABR W54BU HUNTSVILLE AL BPTTL 20020819ABS K23DZ BATON ROUGE LA BPTTL 20020822ABQ W34BU ATLANTA GA BPTTL 20020822ABR K45EE COUNCIL BLUFFS IA BPTTL 20020828AAW K36DR LITTLE ROCK AR BPTTL 20020829ABS K53FB GREENVILLE MS BPTTL 20020905ABF W46CK PENSACOLA FL BPTTL 20020909ABE W25BY MEMPHIS TN BPTTL 20020925ABY W38BY MEMPHIS TN BPTTL 20020927ABM W08DM GAINESVILLE FL BPTTL 20021003ABC K60GE SAN ANTONIO TX BPTTL 20021007ACB K22ES FAYETTEVILLE AR BPTTL 20021009AAW K30EC OKLAHOMA CITY OK BPTTL 20021009AAY W49BS CHICAGO IL BPTTL 20021121AAZ W62CQ GREEN BAY WI BMPTTL 20000327ABC K55GS DES MOINES IA BMPTTL 20000425ABC