PUBLIC NOTICE Federal Communications Commission 445 12th St., S.W. Washington, D.C. 20554 News Media Information 202 / 418-0500 Internet: http://www.fcc.gov TTY: 1-888-835-5322 DA 11-1428 Released: August 22, 2011 GENERAL FREEZE ON THE FILING AND PROCESSING OF APPLICATIONS FOR CHANNEL 51 EFFECTIVE IMMEDIATELY AND SIXTY (60) DAY AMENDMENT WINDOW FOR PENDING CHANNEL 51 LOW POWER TELEVISION, TV TRANSLATOR AND CLASS A APPLICATIONS On March 15, 2011, CTIA - the Wireless Association (CTIA) and the Rural Cellular Association (RCA) (referred to jointly as the Petitioners) submitted a “Petition For Rulemaking and Request for Licensing Freezes” wherein they urged the Commission to “promote deployment of wireless broadband services in the Lower 700 MHz A Block (A Block) by taking action to prevent further interference caused by TV broadcast stations on channel 51.”1 The Petitioners ask that the Commission: “(1) revise its rules to prohibit future licensing of TV broadcast stations on channel 5l, (2) implement freezes, effective immediately, on the acceptance, processing and grant of applications for new or modified broadcast facilities seeking to operate on channel 51, and (3) accelerate clearance of channel 51 where incumbent channel 51 broadcasters reach voluntary agreements to relocate to an alternate channel.”2 As described in further detail below, in this Public Notice, the Media Bureau: (1) announces a general freeze, effectively immediately, on the filing of new applications on channel 51 and the processing of pending applications on channel 51; (2) lifts the existing freeze as applied to, and will accept, petitions for rulemaking filed by full power television stations seeking to relocate from channel 51 pursuant to a voluntary relocation agreement; and (3) opens a 60-day window for parties with pending low power television station applications on channel 51 to amend their applications to request an alternate channel assignment. Channel 51 Application Freeze To permit the Commission to evaluate the matters raised in the Petition, the Media Bureau announces a freeze, effective immediately, on the filing of: (1) applications for low power television, TV translator, replacement translators, and Class A television3 facilities on channel 51, including flash-cut, digital companion channels, and displacement applications on this channel; and (2) applications for minor 1 See Petition for Rulemaking and Request for Licensing Freezes by CTIA –the Wireless Association and Rural Cellular Association, filed March 15, 2011 (Petition) at 1. The Media Bureau sought initial comment on the Petition. See Media Bureau Seeks Comment on a Petition for Rulemaking and Request for Licensing Freezes,” Public Notice, DA 11-562, RM 11626, released March 28, 2011. 2 Petition at 1. 3 In this Public Notice, low power television stations (LPTV), TV translators, replacement translators, and Class A TV stations are referred to collectively as “low power television stations.” 2 change for low power and full power television stations on channel 51.4 We take this action to preserve the status quo and to ensure that new applications are not filed in anticipation of the future limitations proposed in the Petition. We agree with the Petitioners that the freeze is “consistent with the Commission's prior spectrum rulemaking proceedings, and past precedent clearly supports the Commission's authority to adopt immediate freezes pending the outcome of rulemaking changes.”5 As the Petitioners point out, in numerous other proceedings, the Commission has determined that, where a change in license service rules or spectrum allocations was contemplated, it would serve the public interest to cease accepting and processing applications for operation in such spectrum.6 We agree that freezing the acceptance of channel 51 applications will “stabilize the channel 51 environment” and “create the necessary conditions” to allow the Commission to consider the matters raised in the Petition in an “effective, efficient and meaningful manner.”7 The freeze imposed herein is temporary while we consider the issues raised by the Petitioners and affects only the submission of applications for new or modified facilities. It does not affect existing full power or low power television stations on channel 51. Those stations may continue to operate and/or construct previously-authorized facilities. As further explained below, during the freeze, the Commission will continue to accept applications for minor modification where the applicant can demonstrate that waiver of the freeze is necessary to permit the station to make changes to its existing facility for technical or other reasons to maintain quality service to the public. Therefore, stations needing to make critical modifications to their operating facilities will not be foreclosed from doing so. During the freeze, the Commission will not accept any applications for new low or full power television facilities on channel 51.8 The Media Bureau will consider, on a case-by-case basis, requests for 4 The Media Bureau has frozen acceptance of petitions for rulemaking filed by full power television stations seeking to change channels, including channel 51. See “Freeze on the Filing of Petitions for Digital Channel Substitutions, Effective Immediately,” Public Notice, DA 11-959, released May 31, 2011. The filing of petitions for rulemaking for new digital full power television stations, including those for channel 51, is frozen as well. See “Freeze on the Filing of Certain TV and DTV Requests for Allotment or Service Area Changes,” Public Notice, 19 FCC Rcd 14810 (MB 2004) (2004 Digital Freeze PN). Therefore, there can be no petitions for rulemaking filed for new channel 51 allotments. In addition, the Media Bureau does not currently accept any applications for major changes to existing analog and digital LPTV and TV translator facilities. See “Freeze on the Filing of Applications for New Digital Low Power Television and TV Translator Stations,” Public Notice, 25 FCC Rcd 15120 (MB 2010). 5 Petition at 12. See, e.g., Amendment of Parts 73 and 74 of the Commission’s Rules to Establish Rules for Digital Low Power Television, Television Translator, and Television Booster Stations and to Amend Rules for Digital Class A Television Stations, Further Notice of Proposed Rulemaking and Memorandum Opinion and Order, 25 FCC Rcd 13833 (2010); Revision of Part 22 and Part 90 of the Commission's Rules to Facilitate Future Development of Paging Systems, First Report and Order, 11 FCC Rcd 16570, ¶2 (1996); and Implementation of Sections 3(n) and 332 of the Communications Act, Third Report and Order, 9 FCC Rcd 7988, ¶¶107-108 (1994). 6 Petition at 12. 7 CTIA Comments at 4 citing Amendment of the Commission's Rules Regarding the 37.0-38.6 GHz and 38.6-40.0 Bands, Memorandum Opinion and Order, 12 FCC Rcd 2910, 2915 at ¶ 10 (1997) (39 GHz Freeze Order) (“It is well established that the Commission may initiate a freeze without prior notice and hearing when the purpose is, as here, the creation of conditions under which formal rulemaking proceedings can be held in an effective, efficient and meaningful manner.”) (citing Kessler v. FCC, 326 F.2d 673, 679-81 (D.C. Cir. 1963) (Kessler)). 8 We note that WFXG-DT, Augusta, Georgia, was allotted channel 51 as its post-transition DTV channel and has been operating a licensed facility on that channel since 2006. In 2008, Southern Media Holdings, Inc. (SMH), the licensee of the station, filed a petition for rulemaking requesting the substitution of channel 31 for channel 51, and the Commission granted that petition. See Report and Order¸ MB Docket No. 08-103, 23 FCC Rcd 18020 (Video Division 2008). SMH later decided it could not afford to construct a new channel 31 facility and filed a petition for 3 waiver of this freeze when an application for modification of an existing low or full power television facility is necessary or otherwise in the public interest for technical or other reasons to maintain quality service to the public, such as when facilities are damaged or otherwise must be replaced; zoning restrictions preclude tower construction at a particular site; or unforeseen events, such as extreme weather events or other extraordinary circumstances, require relocation to a new tower site. Such applications will be eligible for a waiver of the freeze only when the facilities proposed therein do not expand the station’s existing coverage area and merely propose to replace existing service. Specifically, full power television modification applications will not be eligible for a waiver of the freeze if they would increase a station’s DTV service area in one or more directions beyond the combined area resulting from the station’s parameters as defined in the following: (1) the Post-Transition DTV Table of Allotments; (2) Commission authorizations (license and/or construction permit); and (3) applications on file with the Commission prior to implementation of the freeze.9 We will not accept low power television modification applications that would increase the station’s protected service contour. We will consider waivers of the freeze for applications that propose an expansion of service where the applicant can show that some expansion of service is necessary in order to preserve existing coverage or quality of service. As with any request for waiver of our rules, we will only grant a request for waiver of the freeze upon a showing of special circumstances warranting a deviation from the freeze and when grant of the waiver will serve the public interest.10 The decision to impose this freeze is procedural in nature, and therefore the freeze is not subject to the notice and comment and effective date requirements of the Administrative Procedure Act.11 Moreover, we find that there is good cause for not delaying the effect of the freeze until 30 days after publication in the Federal Register. Such a delay would be impractical, unnecessary, and contrary to the public interest because it would undercut the purposes of the freeze.12 To facilitate the clearing of channel 51, however, we hereby lift the current freeze as applied to, and will accept, petitions for rulemaking filed by full power television stations seeking to relocate from channel 51 pursuant to a voluntary relocation agreement. Channel 51 Application Amendment Window So that “any party with a pending application for Channel 51 operation at the time of the freezes . . . [is] given an opportunity to amend their applications to request an alternate channel assignment,”13 the Media Bureau announces that applicants for low power television facilities on channel 51, including digital flash cut, digital companion channels, and displacement, must submit an amendment to their rulemaking to change its allotment back to channel 51. See Notice of Proposed Rulemaking, MB Docket No. 11-54, 26 FCC Rcd 3870 (Video Division 2011). If the Commission approves SMH’s petition, it will be permitted to file a minor change application to implement the channel substitution for WFXG-DT. 9 This was the approach used by the Commission during the freeze on so-called “expansion applications” in place from 2004 to 2008. See 2004 Digital Freeze PN, 19 FCC Rcd at 14810. 10 Northeast Cellular Telephone Co. v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990), citing WAIT Radio v. FCC, 418 F.2d 1153, 1159 (D.C. Cir. 1969). 11 See 5 U.S.C. § 553(b)(A), (d); see also Neighborhood TV Co. v. FCC, 742 F.2d 629, 637-38 (D.C. Cir. 1984) (holding that the Commission’s filing freeze is a procedural rule not subject to the notice and comment requirements of the Administrative Procedure Act); Buckeye Cablevision, Inc. v. United States , 438 F.2d 948, 952-53 (6th Cir. 1971); Kessler at 680-82. 12 See 5 U.S.C. § 553(b)(B), (d)(3). 13 Petition at 12 and n.30. 4 pending application to specify another permissible channel below 51 within sixty (60) days of the release date of this Public Notice.14 For the reasons set forth below, we will also apply the freeze to processing of any pending low power television applications for facilities on channel 51 or minor change applications on channel 51 that are not amended by the deadline established herein. We do not address herein the Petitioners’ request for the Commission to “dismiss those applications that do not make this request within a specified period.”15 In addition, we will not apply the freeze set forth above to applications by low power television channel 51 licensees and permittees proposing to relocate to a new operating channel below 51. Amendments filed in response to this Public Notice will be treated as “minor changes” to the pending applications, and thus no filing fees will be required. Amendments must be filed electronically using FCC Form 346. Paper-filed amendments will not be accepted. Instructions for use of the electronic filing system are available in the CDBS User’s Guide, which can be accessed from the electronic filing web site at: http://www.fcc.gov/mb/cdbs.html For assistance with electronic filing, call the Media Bureau Help Desk at (202) 418-26MB (418- 2662). For additional information or questions, please contact Hossein Hoshemzadeh (technical) or Shaun Maher (legal) of the Video Division, Media Bureau at (202) 418-1600. -- FCC -- 14 Appendix A includes a list of pending applications for digital low power television facilities on channel 51. 15 Petition at 12 and n.30. 5 APPENDIX A PENDING CHANNEL 51 APPLICATIONS PREFIX ARN CH CITY ST APPLICANT BNPDTT 20090825BWD 51 MAUNA LOA HI HAWAII PUBLIC TELEVISION FOUNDATION BNPDTL 20090825BGD 51 PALM SPRINGS CA JOURNAL BROADCAST CORPORATION BNPDTL 20090825BYH 51 EVANSVILLE IN EICB-TV EAST, LLC BNPDTL 20090828ACX 51 BIRCH BAY WA DEEPAK VISWANATH BNPDTL 20090825BQR 51 MOUNTAIN VIEW HI RICHARD DALTON BNPDTL 20090825CBN 51 LAREDO TX MARANATHA CHURCH OF LAREDO INCORPORATED BNPDTL 20090825AQY 51 LA GRANGE GA DTV AMERICA 1, LLC BNPDTL 20090825BAJ 51 COLUMBUS GA DTV AMERICA 1, LLC BNPDTL 20100120ACS 51 EMPORIA KS EICB-TV EAST, LLC BNPDTL 20100217ABS 51 FAYETTEVILLE AR DTV AMERICA II, LLC BNPDTL 20100223ADF 51 GAYLORD MI CTB SPECTRUM SERVICES TWO, LLC BNPDTL 20100223AAE 51 MAPLE VALLEY MI CTB SPECTRUM SERVICES TWO, LLC BNPDTT 20100308AAS 51 LUND & PRESTON NV WHITE PINE TELEVISION DISTRICT #1 BNPDTL 20100223ADN 51 ELMHURST MI CTB SPECTRUM SERVICES TWO, LLC BNPDTL 20100304ABB 51 RANGER TX CTB SPECTRUM SERVICES TWO, LLC BNPDTL 20090825AAY 51 COLUMBUS GA GEORGIA EAGLE MEDIA, INC. BNPDTL 20100407ABF 51 PONCE PR MAKO COMMUNICATIONS, LLC BNPDTL 20100318ABB 51 CARBONDALE CO PIKES PEAK TELEVISION, INC. BNPDTL 20100405AAC 51 OCALA FL FRANK DIGITAL BROADCASTING LLC BNPDTL 20100402ACX 51 MONTGOMERY AL SYNCOM MEDIA GROUP, INC. BNPDTL 20100903AAA 51 FRAZIER PARK CA IGLESIA JESUCRISTO ES MI REFUGIO, INC. BNPDTL 20100409ABQ 51 NORFOLK NE EICB-TV EAST, LLC BNPDTL 20090825BTN 51 PALM SPRINGS CA JOSE RIVERA MIRAMONTES BNPDTL 20100428ABW 51 DULUTH MN CTB SPECTRUM SERVICES TWO LLC BNPDTL 20100506ACS 51 MONTEREY CA JEFF CHANG BNPDTL 20100510ADG 51 EL DORADO AR LANDOVER 2 LLC BNPDTL 20100510ABR 51 HYSHAM MT LANDOVER 2 LLC BNPDTL 20100510ACB 51 VALDOSTA GA LANDOVER 2 LLC BNPDTL 20100510ACV 51 CASPER WY LANDOVER 2 LLC BNPDTL 20100506ACI 51 BELFIELD ND LANDOVER 2 LLC BNPDTL 20100505AHG 51 GREAT FALLS MT LANDOVER 2 LLC BNPDTL 20100505ADN 51 HORACE ND LANDOVER 2 LLC BNPDTL 20100505AEC 51 WATERTOWN SD LANDOVER 2 LLC BNPDTL 20100505ALT 51 VALLEY CITY ND LANDOVER 2 LLC BNPDTL 20100506AEC 51 GLENDIVE MT LANDOVER 2 LLC 6 PREFIX ARN CH CITY ST APPLICANT BNPDTL 20100430ABY 51 YUMA AZ CTB SPECTRUM SERVICES FOUR LLC BNPDTL 20100505AID 51 GILLETTE WY LANDOVER 2 LLC BNPDTL 20100505AKK 51 ALBANY MN LANDOVER 2 LLC BNPDTL 20100505AJI 51 DEADWOOD SD LANDOVER 2 LLC BNPDTL 20100505AJZ 51 MULDROW OK LANDOVER 2 LLC BNPDTL 20100505AMG 51 BISMARK ND LANDOVER 2 LLC BNPDTL 20100514AIM 51 WESTMORELA ND NH LANDOVER 2 LLC BNPDTL 20100513AEC 51 MAGDALENA NM LANDOVER 2 LLC BNPDTL 20100513ALK 51 GREENVILLE FL LANDOVER 2 LLC BNPDTL 20100510AFE 51 MERRILL WI LANDOVER 2 LLC BNPDTL 20100510AGX 51 AZTEC NM LANDOVER 2 LLC BNPDTL 20100510AGA 51 AUBURN MS LANDOVER 2 LLC BNPDTL 20100510AHT 51 KADOKA SD LANDOVER 2 LLC BNPDTL 20100510AJC 51 KIMBALL SD LANDOVER 2 LLC BNPDTL 20100510AND 51 DICKSON OK LANDOVER 2 LLC BNPDTL 20100513ABT 51 ELMIRA NY SARAH W. STOPFORD BNPDTL 20100510AKY 51 GERONIMO OK LANDOVER 2 LLC BNPDTL 20100512AHL 51 GOLCONDA NV LANDOVER 2 LLC BNPDTL 20100513ADL 51 WENDOVER UT LANDOVER 2 LLC BNPDTL 20100514ABZ 51 BUTTONWILLO W CA LANDOVER 2 LLC BNPDTL 20100514AFT 51 BURLINGTON CO LANDOVER 2 LLC BNPDTL 20100514AHB 51 HAYS KS LANDOVER 2 LLC BNPDTL 20100406ACN 51 ERICK OK CTB SPECTRUM SERVICES LLC BNPDTL 20100609AGP 51 MINOT ND LANDOVER 2 LLC BNPDTL 20100609AHT 51 HAMER ID LANDOVER 2 LLC BNPDTL 20100723AAB 51 GUAYNABO PR JULIO E. MENCHACA VALENTIN BNPDTT 20100730ADV 51 TECOLOTE NM REGENTS OF THE UNIVERSITY OF NEW MEXICO (KNMD-DT) BNPDTL 20100817AAR 51 REHOBOTH DE AIRPORT INVESTORS L.P. BNPDTL 20100913AAO 51 SALISBURY MD AIRPORT INVESTORS L.P. BNPDTL 20100728ADQ 51 CLEMSON SC GAME DAY ENTERTAINMENT, LLC BNPDTT 20100909ABM 51 FILLMORE, ETC. UT MILLARD COUNTY BNPDTL 20101004AAY 51 GRAND FORKS ND 1. WILLIAM L. BRUGGEMAN, JR. AND RUTH J. BRUGGEMAN JWROS BNPDTL 20100514AIQ 51 PHILOMATH OR LANDOVER 2 LLC BNPDTL 20100510AAJ 51 YUMA AZ LANDOVER 2 LLC BMJPDTT 20100607AAK 51 BEAVER UT UNIVERSITY OF UTAH BDISDTA 20100913ACH 51 ITHICA NY WSYT LICENSEE L.P. 7 PREFIX ARN CH CITY ST APPLICANT BDCCDTL 20110127ACA 51 LITTELFIELD AZ HISPANIC CHRISTAIN COMMUNITY BDISTT 20091210AAJ 51 PORT TOWNSEND WA CW TELEVISION STATIONS, INC. BMJADTL 20100524AGP 51 PEACH SPRING AZ FIBERLESSNET, INC. BDFCDTL 20100726AAK 51 SAN ANTONIO TX MINTZ BROADCASTING - END-