Federal Communications Commission DA 12-398 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Reclassification of License of Class A Television Station WGSA-CA Savannah, Georgia ) ) ) ) ) ) Facility ID No. 69447 ORDER TO SHOW CAUSE Adopted: March 13, 2012 Released: March 14, 2012 By the Chief, Video Division, Media Bureau: 1. This is with respect to station WGSA-CA, Savannah, Georgia, licensed to Southern TV Corporation (Southern). This station is currently licensed as a Class A television station, which are accorded primary spectrum use status pursuant to the Community Broadcasters Protection Act of 1999 (“CBPA”).1 2. In order to qualify for Class A status, the CBPA provides that, during the 90 days preceding enactment of the statute, a low power television station must have: (1) broadcast a minimum of 18 hours per day; (2) broadcast an average of at least three hours per week of programming produced within the market area served by the station; and (3) been in compliance with the Commission’s rules for low power television stations.2 Class A licensees must continue to meet these eligibility criteria in order to retain Class A status.3 3. In addition, beginning on the date of its application for a Class A license and thereafter, the CBPA requires that a station must also be “in compliance with the Commission’s operating rules for full-power television stations.”4 In implementing the CBPA and establishing the Class A television service,5 the Commission applied to Class A licensees all Part 73 regulations except for those that could not apply for technical or other reasons. Among the Part 73 requirements that apply to Class A licensees are the Commission’s main studio requirements; rules governing informational and educational children’s programming and the limits on commercialization during children’s programming; the requirement to identify a children’s programming liaison at the station and to provide information regarding “core” educational and informational programming aired by the station to publishers of television program guides; the public inspection file rule, including preparing and placing in the public inspection file on a quarterly basis an issues/programs list and the station’s quarterly-filed FCC Form 398 (Children’s 1 Community Broadcasters Protection Act of 1999, Pub. L. No. 106-113, 113 Stat. Appendix I at pp. 1501A-594 – 1501A-598 (1999), codified at 47 U.S.C. § 336. 2 47 U.S.C. § 336(f)(2)(A)(i). 3 47 U.S.C.. § 336(f)(1)(A)(ii); 47 C.F.R. § 73.6001(b). 4 47 U.S.C. § 336(f)(2)(A)(ii). Southern filed its application for a Class A license on July 12, 2001, and was granted Class A status on August 13, 2001. 5 In the Matter of Establishment of a Class A Television Service, MM Docket No. 00-10, Report and Order, 15 FCC Rcd 6355, 6366 (2000)(“R & O”), Memorandum Opinion and Order on Reconsideration, 16 FCC Rcd 8244, 8254- 56 (2001)(“MO & O on Recon”). Federal Communications Commission DA 12-398 2 Television Programming Report; the political programming rules; station identification requirements; and the Emergency Alert System (EAS) rules.6 4. Class A television licensees are also subject to the regulations regarding fines and penalties applicable to full power television stations, and are subject to loss of Class A status if they fail to meet these ongoing program service and operating requirements.7 In addition, as the Commission explained in the Class A Memorandum Opinion and Order on Reconsideration: Although Class A licensees will not be subject to loss of license for failure to continue to comply with the eligibility requirements in section (f)(2)(A) of the CPBA [including that they be in compliance with the Commission’s rules for full-power stations after they file for a Class A license], they are subject to loss of Class A status if they fail to meet these ongoing obligations. . . . We [have] also adopted a rule stating that “Licensees unable to continue to meet the minimum operating requirements for Class A television stations . . . shall promptly notify the Commission in writing, and request a change in status [to low power].”8 5. Section 316(a) of the Communications Act, as amended, permits the Commission to modify an authorization if such action is in the public interest.9 Further, pursuant to Section 316(a), we are required to notify the affected station of the proposed action, as well as the public interest reasons for the action, and to afford the licensee at least 30 days to respond. This procedure is set forth in Section 1.87 of the Commission’s Rules.10 6. Southern informed the Commission that the station ceased broadcasting on January 8, 2009, because “the owner of the tower from which the station transmits has announced that the tower will be dismantled and the land sold for other purposes.”11 Southern represented that the station briefly resumed broadcasting from January 5, 2010 to January 25, 2010 at its authorized site, but that “the owner would not permit us to continue to broadcast from that site, so we had to shut down again.”12 On January 4, 2011, shortly before the station license would automatically expire pursuant to Section 312(g) of the Communications Act,13 WGSA-CA temporarily resumed operations with reduced facilities pursuant to a Special Temporary Authorization (STA) at another site,14 but went silent again on February 4, 2011. 6 R & O, 15 FCC Rcd at 6366. 7 MO & O on Recon, 16 FCC Rcd at 8257. 8 Id. 9 47 U.S.C. § 316(a). 10 47 C.F.R. § 1.87. 11 File No. BLSTA-20090112AVQ. 12 File No. BLSTA-20100610AEI. Southern further represented that “Lack of financial resources has prevented the station from being able to undertake the cost of a lease for a new site.” 13 47 U.S.C. § 312(g). This section of the Act provides, in pertinent part, that “If a broadcasting station fails to transmit broadcast signals for any consecutive 12-month period, then the station license granted for the operation of that broadcast station expires at the end of the period, notwithstanding any provision, term, or condition of the license to the contrary . . ..” 14 File No. BSTA-20101203ABW. In its STA request, Southern stated that it “needs to resume operation to avoid expiration of its license pursuant to Section 312(g)” and that “because of financial distress, the station does not have access to the tower at its licensed location at the present time.” Federal Communications Commission DA 12-398 3 Again, just days before its license would automatically expire, the station temporarily resumed operations with reduced facilities on February 2, 2012 pursuant to an STA.15 7. Class A television stations are required to broadcast a minimum of 18 hours per day and an average of at least three hours per week of programming produced within the market area served by the station. Station WGSA-CA has failed to meet these statutory requirements for the last three years. We conclude that under these circumstances, Southern should have notified the Commission of its inability to meet the ongoing Class A eligibility requirements and requested a change in station status from Class A to low power television station pursuant to Section 73.6001 of the Commission’s Rules.16 While the Commission has acknowledged that “in appropriately compelling circumstances involving a temporary inability to comply,” a licensee can apply for an STA to operate at variance with the CBPA’s operational and programming requirements without affecting its Class A status,17 the record now before us does not present such a case. Instead, the record indicates that Southern made a business decision to cease operations for financial reasons,18 and the station has been off-the-air almost continuously since January 8, 2009. 8. IT IS THEREFORE ORDERED, That, Southern TV Corporation show cause why its authorization for Class A television station WGSA-CA, Savannah, Georgia, should not be modified to specify the station as a low power television station. 9. Pursuant to Section 1.87 of the Commission’s Rules, Southern TV Corporation may, no later than April 20, 2012, file a written statement why the above-captioned license should not be modified as proposed herein. The written statement, if any, must be mailed to Office of the Secretary, Federal Communications Commission, 445 12th Street, S.W., Washington, D.C. 20554, Attention: Barbara A. Kreisman, Chief, Video Division, Media Bureau. An electronic copy should also be sent to David Brown, Associate Chief, Video Division at the e-mail address listed below. Upon review of the statement and/or additional information, the Commission may grant the modification, deny the modification, or set the matter for hearing. If no written statement is filed by April 20, 2012, the licensee will be deemed to have consented to the modification of its license from Class A television status to low power television status and the modification proposed in this Order to Show Cause will be deemed to serve the public interest. 10. IT IS FURTHER ORDERED, That a copy of this Order to Show Cause shall be sent by Certified Mail, Return Receipt Requested, to Southern TV Corporation and to its counsel, as indicated below: Southern TV Corporation 401 Mall Boulevard, Suite 201B Savannah, Georgia 31406-4867 Peter Tannenwald, Esq. 15 File No. BSTA-21120125AEB. Again, Southern stated that it needed the STA to avoid expiration, that it did not have access to its licensed tower due to financial reasons, and that it “hopes to be able to resume full power licensed operation when its economic condition improves.” 16 47 C.F.R. § 73.6001(d). 17 M O & O on Recon, 16 FCC Rcd at 8257, n.76. 18 In this regard, we note that Southern is also the licensee of full-power station WGSA(DT), Baxley, Georgia, and that the Class A station’s entire licensed and protected contour is overlapped by the full power station’s signal. Both WGSA(DT) and WGSA-CA are listed in the BIA Media Access Pro Database as being affiliates of the CW network. Federal Communications Commission DA 12-398 4 Fletcher, Heald & Hildreth, PLC 1300 North 17th Street 11th Floor Arlington, VA 22209 11. For further information concerning the proceeding, contact David J. Brown, Associate Chief, Video Division, Media Bureau, at David.Brown@fcc.gov or (202) 418-1645. FEDERAL COMMUNICATIONS COMMISSION Barbara A. Kreisman Chief, Video Division Media Bureau