Federal Communications Commission DA 08-2775 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) Amendment of Section 73.622(i), ) MB Docket No. 08-252 Final DTV Table of Allotments, ) RM-11509 Television Broadcast Stations. ) (Cadillac, Michigan) ) NOTICE OF PROPOSED RULE MAKING Adopted: December 22, 2008 Released: December 23, 2008 Comment Date: [15 days after date of publication in the Federal Register] Reply Comment Date: [25 days after date of publication in the Federal Register] By the Chief, Video Division, Media Bureau: 1. The Commission has before it a petition for rulemaking filed by Cadillac Telecasting Co. (“CTC”), the licensee of WFQX-TV, analog channel 33, and WFQX-DT, DTV channel 47, Cadillac, Michigan. CTC requests the substitution of DTV channel 32 for DTV channel 47 for post-transition use at Cadillac. 2. CTC became the licensee of WFQX-TV and WFUP(TV), analog channel 45, Vanderbilt, Michigan in October 2007. According to CTC, both stations “broadcast mostly the same Fox and other programming.”1 In its rulemaking petition, CTC explains that the prior licensee of the stations notified the Commission that it did not intend to construct a digital facility for WFUP(TV), and would turn in the Vanderbilt license for cancellation at the end of the DTV transition. The prior licensee also filed an application for a construction permit to move the channel 47 digital facility approximately 40 miles north of the station’s analog site. The noise limited contour of WFQX-DT, as presently constructed on DTV channel 47, largely encompasses the Grade B contour of WFUP(TV), but does not provide service to over 85,000 persons who presently receive service from WFQX-TV. 3. CTC states that once it acquired the stations, it determined that the prior licensee’s decisions regarding the stations did not serve the public interest because many over-the-air viewers and cable systems would no longer have access to the stations’ programming at the end of the DTV transition. Thus, CTC filed a petition for rulemaking to allot WFUP(TV)’s analog channel, channel 45, as WFUP(TV)’s post-transition channel,2 as well as the instant petition to substitute channel 32 for WFQX- DT’s post-transition use and to move the facility back to the WFQX-TV analog site to the south. According to CTC, substituting channel 32 for channel 47 will permit it to continue serving the over 85,000 viewers who presently would lose service when WFQX-TV terminates its analog operations at the end of the transition. While there is a “theoretical” loss to approximately 15,000 persons who currently receive service from WFQX-DT (but not WFQX-TV), CTC submits the declaration of the station’s Chief Engineer, stating that “our experience from the existing operation of channel 47 in those areas has led us to realize that there 1 CTC Petition, Attached November 5, 2008 Memorandum at p. 2. 2 The Commission allotted DTV channel 45 to Vanderbilt for CTC’s post-transition use by Memorandum Opinion and Order, DA 08-1858, released September 30, 2008. Federal Communications Commission DA 08-2775 2 is very little actual off the air DTV viewing of channel 47 at this time, and therefore there will be very little loss of actual viewing of that channel.”3 CTC also provides a Longley-Rice study showing that the loss areas are predicted to receive a 41 dBu signal from the proposed channel 32 facility. 4. We believe that CTC’s proposal warrants consideration. DTV channel 32 can be substituted for post-transition DTV channel 47 at Cadillac, Michigan as proposed, in compliance with the principal community coverage requirements of Section 73.625(a) of the Commission’s rules,4 at coordinates 44-8-12 N. and 85-20-33 W. Since the proposed facility is within the Canadian coordination zone, concurrence from the Canadian government must be obtained for the allotment. In addition, we find that this channel change meets the technical requirements set forth in Sections 73.616 and 73.623 of the Commission’s rules.5 We propose to substitute DTV channel 32 for post-transition DTV channel 47 for station WFQX-DT at Cadillac with the following specifications: City and State DTV Channel DTV Power (kW) Antenna HAAT (meters) Cadillac, Michigan 32 175 426 5. Accordingly, we seek comments on the proposed amendment of the Post-Transition Table of DTV Allotments, Section 73.622(i) of the Commission’s rules,6 for the community listed below, to read as follows: Channel No. City and State Present Proposed Cadillac, Michigan 9, *17, 47 9, *17, 32 6. The Commission’s authority to institute rulemaking proceedings, showings required, cut- off procedures, and filing requirements are contained in the attached Appendix and are incorporated by reference herein. In addition, when the Commission lifted the freeze on the filing of DTV maximization applications and petitions for digital channel substitutions,7 it announced that until the end of the statutory DTV transition on February 17, 2009, mutually-exclusive applicants would be provided a 30-day period of time, from the date of a public notice identifying mutually-exclusive proposals, to resolve their mutual- exclusivity via engineering amendment or settlement, rather than the 90-day period afforded by Section 73.623(h) of the rules.8 Similarly, we will also shorten the settlement period for rulemaking petitions and mutually-exclusive maximization applications. If we receive a maximization application on or before the date for filing initial comments in this proceeding, which proposes a facility which is mutually-exclusive with the proposal set forth herein, we will issue a public notice and the parties will have 30 days within which to resolve their mutual-exclusivity. If the parties resolve their mutual-exclusivity, we will complete 3 CTC Petition, Attached November 5, 2008 Memorandum, Statement of Lowell Shore, Chief Engineer of WFQX- TV. 4 47 C.F.R. § 73.625(a). 5 47 C.F.R. §§ 73.616, 73.623. 6 47 C.F.R. § 73.622(i). 7 See Commission Lifts the Freeze on the Filing of Maximization Applications and Petitions for Digital Channel Substitutions, Effective Immediately, 23 FCC Rcd 8330 (MB 2008). 8 47 C.F.R. § 73.623(h)(3). Federal Communications Commission DA 08-2775 3 the rulemaking process by issuing the appropriate order. If the parties are unable to resolve their mutual- exclusivity, we will terminate this proceeding and dismiss the maximization application. 7. Pursuant to Sections 1.415 and 1.419 of the Commission’s rules, interested parties may file comments on or before [15 days after publication in the Federal Register] and reply comments on or before [25 days after publication in the Federal Register],9 and are advised to read the Appendix for the proper procedures. Comments should be filed with the Federal Communications Commission, Office of the Secretary, 445 12th Street, S.W., Washington, D.C. 20554. Additionally, a copy of such comments should be served on the petitioner, or its counsel or consultant, as follows: Gregg P. Skall, Esq. Womble Carlyle Sandridge & Rice 1401 Eye Street, N.W. Seventh Floor Washington, DC 20005 8. Parties must file an original and four 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, Maryland 20743. U.S. Postal Service first-class mail, Express Mail, and Priority Mail should be addressed to 445 12th Street, S.W., 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.10 Accordingly, failure to follow the specified requirements may result in the treatment of a filing as untimely. 9. 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 DTV Table of Allotments, Section 73.622(i). 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, § 3506(c)(4). 9 The Video Division’s general practice is to allow interested parties 30 days after publication in the Federal Register to comment on a proposed television channel substitution, with a 15 day reply comment period. See, e.g., Shreveport, Louisiana, 23 FCC Rcd 10027 (VD 2008). Congress has mandated that after February 17, 2009, full- power television broadcast stations must transmit only digital signals and may no longer transmit analog signals. See Digital Television and Public Safety Act of 2005, codified at 47 U.S.C. §§ 309(j)(14) and 337(e). In light of the imminent transition date and in order to give stations seeking new channels for post-transition use adequate time to apply for and construct new facilities by this deadline, we will shorten the period for comments and reply comments in channel substitution proceedings through the end of the transition. 10 See 47 C.F.R. § 1.7. Federal Communications Commission DA 08-2775 4 10. For further information concerning the proceeding listed above, contact Joyce L. Bernstein, Media Bureau, (202) 418-1600. For purposes of this restricted notice and comment 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 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 a 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 comment, to which the reply is directed, constitutes an ex parte presentation and shall not be considered in the proceeding. FEDERAL COMMUNICATIONS COMMISSION Barbara A. Kreisman Chief, Video Division Media Bureau Federal Communications Commission DA 08-2775 5 APPENDIX 1. Pursuant to authority found in 47 U.S.C. Sections 4(i), 5(c)(1), 303(g) and (r), and 307(b) of the Communications Act of 1934, as amended, and 47 C.F.R. Sections 0.61, 0.204(b) and 0.283, IT IS PROPOSED TO AMEND the DTV Table of Allotments, 47 C.F.R. Section 73.622(i), 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 the 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 Section 1.420(d) of the Commission’s Rules.) Because the Commission has not yet lifted its freeze on the filing of petitions for rulemaking to establish new DTV channel allotments and for changes in community of license,11 we will not consider counterproposals which propose new allotments or changes in community of license. (b) With respect to petitions for rule making which conflict with the proposal 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 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 petitioners. 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 11 See Public Notice, “Freeze on the Filing of Certain TV and DTV Requests for Allotment or Service Area Changes,” 19 FCC Rcd 14810 (MB 2004). Federal Communications Commission DA 08-2775 6 furnished the Commission. An electronic copy should also be sent to Joyce.Bernstein@fcc.gov. 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. 20554.