Federal Communications Commission DA 09-1963 Before the Federal Communications Commission Washington, D.C. 20554 ) In the Matter of ) ) Amendment of Section 73.622(i), ) MB Docket No. 09-160 Final DTV Table of Allotments, ) RM-11558 Television Broadcast Stations. ) (Traverse City, Michigan) ) NOTICE OF PROPOSED RULEMAKING Adopted: August 27, 2009 Released: August 28, 2009 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 Barrington Traverse City License LLC (“Barrington”), the permittee of station WPBN-TV, channel 7, Traverse City, Michigan. Barrington requests the substitution of channel 47 for its allotted post-transition digital channel 7 at Traverse City. Barrington’s proposal also specifies use of the channel 47 technical parameters of WFQX- TV, Cadillac, Michigan,1 and operation from those parameters would result in a loss of service to persons residing within the Grade B contour of WPBN-TV’s analog operation. Accordingly, Barrington proposes to operate a replacement digital television translator station on channel 50 at Traverse City.2 2. Barrington does not have a construction permit to operate on its post-transition digital channel 7 and is currently operating pursuant to Special Temporary Authority (“STA”) with reduced power on channel 50, its pre-transition digital channel, and channel 7.3 When the Commission allotted channel 7 to Traverse City for post-transition use, it denied an opposition filed by WOOD License Company, LLC (“WOOD License”), asserting that WPBN-TV’s post-transition operation on channel 7 would cause impermissible interference to the post-transition operation of WOOD-TV on channel 7 at Grand Rapids, Michigan.4 On March 21, 2008, Barrington filed an application for a construction permit for channel 75 and 1 By Report and Order released April 21, 2009, the Commission substituted channel 32 for channel 47 for station WFQX-TV at Cadillac, Michigan. Cadillac, Michigan, 24 FCC Rcd 4760 (Vid. Div. 2009). 2 FCC File No. BDRTCDT-20090724ACJ, granted August 4, 2009. In adopting the digital replacement translator service, the Commission stated that its intent was “[t]o assist full-service stations to replace service to any loss areas” that might result when a station transitions to its final, post-transition digital facilities. See Amendment of Parts 73 and 74 of the Commission’s Rules to Establish Rules for Replacement Digital Low Power Television Stations, Report and Order, 24 FCC Rcd 5931, ¶¶ 3-4 (2009). 3 FCC File Nos. BDSTA-20081230AAJ and BDSTA-20081230AAK. 4 See Advanced Television Systems and Their Impact Upon the Existing Television Broadcast Service, Memorandum Opinion and Order and Order on Reconsideration of the Seventh Report and Order and Eighth Report and Order, 23 FCC Rcd 4220, 4245 (2008) (“Eighth Report and Order”). WOOD License filed a petition for reconsideration of the Eighth Report and Order on April 21, 2008, which remains pending. 5 FCC File No. BPCDT-20080321ACW. Federal Communications Commission DA 09-1963 2 WOOD License filed an objection, again alleging impermissible interference to WOOD-TV. Barrington’s application remains pending. Thus, Barrington states that the proposed channel substitution “will resolve the long-standing proceeding involving WPBN-TV and WOOD-TV over post-transition use of digital Channel 7 in Traverse City and Grand Rapids, Michigan.”6 3. With respect to the analog loss area that would result from moving the station’s transmission facilities from Traverse City to a site near Kalkaska, Michigan, Barrington states that the new replacement digital translator station will serve all but 633 persons in the loss area. Barrington asserts that this loss of service is minimal and is “far outweighed by gains in NBC service both within and outside the WPBN-TV Grade B analog contour.”7 According to Barrington, pursuant to its proposal, WPBN-TV will be able to serve an additional 121,357 persons and WOOD-TV will be able to serve an additional 112,189 persons.8 4. We believe that Barrington’s proposal warrants consideration. DTV channel 47 can be substituted for DTV channel 7 at Traverse City, Michigan, as proposed, in compliance with the principal community coverage requirements of Section 73.625(a) of the Commission’s rules,9 at coordinates 44-44-53 N. and 85-04-08 W. 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.10 We propose to substitute DTV channel 47 for DTV channel 7 for station WPBN-TV at Traverse City with the following specifications: City and State DTV Channel DTV Power (kW) Antenna HAAT (m) Traverse City, Michigan 47 500 393 5. Accordingly, we seek comments on the proposed amendment of the DTV Table of Allotments, Section 73.622(i) of the Commission’s rules,11 for the community listed below, to read as follows: Channel No. City and State Present Proposed Traverse City, Michigan 7, 29 29, 47 6. The Commission’s authority to institute rule making proceedings, showings required, cut- off procedures, and filing requirements are contained in the attached Appendix and are incorporated by reference herein. Pursuant to Section 73.623(h) of the rules, mutually-exclusive applicants will be provided a 90-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.12 If we receive an application on or before the date for filing initial comments in this proceeding, which proposes a facility which is mutually- 6 Barrington Petition for Rulemaking at 5. 7 Id. at 4. 8 Id. Both WPBN-TV and WOOD-TV are presently NBC network affiliates. 9 47 C.F.R. § 73.625(a). 10 47 C.F.R. §§ 73.616, 73.623. 11 47 C.F.R. § 73.622(i). 12 47 C.F.R. § 73.623(h)(3). Federal Communications Commission DA 09-1963 3 exclusive with the proposal set forth herein, we will issue a public notice and the parties will have 90 days within which to resolve their mutual-exclusivity. If the parties resolve their mutual-exclusivity, we will complete 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], 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: Marnie K. Sarver, Esq. Wiley Rein LLP 1776 K Street NW Washington, D.C. 20006 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.13 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). 10. For further information concerning the proceeding listed above, contact David J. Brown, 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 13 See 47 C.F.R. § 1.7. Federal Communications Commission DA 09-1963 4 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 09-1963 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,14 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 14 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 09-1963 6 furnished the Commission. An electronic copy should also be sent to David.Brown@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.