Federal Communications Commission DA 22-1009 Before the FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554 In the Matter of Amendment of Section 73.622(j), Table of Allotments, Television Broadcast Stations (Lincoln, Nebraska) ) ) ) ) ) MB Docket No. 22-347 RM-11932 NOTICE OF PROPOSED RULEMAKING Adopted: September 26, 2022 Released: September 26, 2022 Comment Date: [30 days after date of publication in the Federal Register] Reply Comment Date: [45 days after date of publication in the Federal Register] By the Chief, Video Division, Media Bureau: I. INTRODUCTION 1. The Video Division, Media Bureau (Bureau), has before it a petition for rulemaking filed by The University of Nebraska (Petitioner), the licensee of KUON-TV, channel *12, Lincoln, Nebraska (Station or KUON-TV). Petition for Rulemaking filed by The University of Nebraska on September 14, 2022 (LMS File No. 0000199898) (Petition). The Petitioner requests the substitution of channel *27 for channel *12 at Lincoln in the Table of Allotments. 47 CFR § 73.622(j). NCE television stations are identified in the Table by an asterisk to indicate they are reserved for noncommercial educational use. 47 CFR § 73.622(a). II. BACKGROUND 2. In support, the Petitioner states that the proposed channel substitution would serve the public interest, since moving the Station to a UHF channel would improve indoor reception and thus improve the community’s access to KUON-TV’s PBS and other public television programming produced by the Station to meet the specific needs and interests of Nebraska viewers. Petition at 2-3. The Petition states that KUON-TV currently broadcasts several important, locally produced programs focused on state and local issues in addition to PBS programs and children’s programming, including Speaking of Nebraska, which provides in-depth coverage of issues facing Nebraskans, and Backyard Farmer, the longest-running locally produced television series in the nation. Petition at 4 and n.6 In support of its assertion that viewers in Lincoln have experienced difficulty receiving a signal on channel *12, the Petitioner submits a log of approximately 80 viewer complaints and requests for help receiving the signal. Petition, Exhibit A. See also id. at 3 (discussing VHF channel characteristics that pose challenges for their use in providing digital television service). According to the Petitioner, although the proposed channel *27 facilities will result in a reduction in the Station’s predicted population served within its noise limited service contour (NLSC), almost all of the predicted loss area is served by other PBS stations licensed to communities in Nebraska and Iowa, which largely air the same programming as KUON-TV. Petition at 2 and Engineering Statement at Attachment C, page 10. These stations are KXNE-TV, Norfolk and KHNE-TV, Hastings, Nebraska, licensed to the Nebraska Educational Telecommunications Commission, and KHIN-TV, Red Oak, KBIN-TV, Council Bluffs, and KSIN-TV, Sioux City, Iowa, licensed to the Iowa Public Broadcasting Board. The Petitioner further states that once terrain-limitations are also factored into the analysis, the new loss area that would be created by the proposed channel substitution would contain only 342 persons, which it asserts is below the level the Commission considers de minimis in the context of determining whether there would be an impermissible loss of service. Petition at 2, citing WSET, Inc., 80 FCC 2d 233, 246 (1980) (finding loss population of approximately 556 persons to be de minimis). We note that the Petitioner used V-Soft Probe software to prepare its application, rather than the Commission’s TVStudy software. While TVStudy is not required by Commission rules for determining viewer loss in this context, it is the Video Division’s preferred software as it is used by staff to verify the information that is submitted. III. DISCUSSION 3. We believe that the Petitioner’s channel substitution proposal warrants consideration. Channel *27 can be substituted for channel *12 at Lincoln, Nebraska, as proposed, in compliance with the principal community coverage requirements of section 73.625(a) of the Commission’s rules, 47 CFR § 73.625(a). at coordinates 41° 08' 18.0" N and 096° 27' 21.0" W. A Staff analysis using TVStudy confirms that when taking into account the ability of viewers to obtain PBS programming from other nearby stations and when taking terrain limitations into account the Petitioner’s proposal would still result in a loss of NCE service to a de minimis number of persons. See WSET, Inc., 80 FCC 2d 233, 246 (1980) (finding loss population of approximately 556 persons to be de minimis). We believe any possible harm to the public resulting from the loss of service to a limited number of viewers is outweighed by the overall benefit of improving reception to the Station’s viewers, including those in Lincoln, the Station’s community of license. In addition, we find that this channel change meets the technical requirements set forth in sections 73.616 and 73.623 of the rules. 47 CFR §§ 73.616, 73.623. 4. We propose to substitute channel *27 for channel *12 for KUON-TV with the following specifications: City and State Channel Power (kW) Antenna HAAT (m) Lincoln, Nebraska *27 650 253 5. Accordingly, we seek comment on the proposed amendment of the Table of Allotments, section 73.622(j) of the rules, 47 CFR § 73.622(j). for the community listed below, to read as follows: Channel No. City and State Present Proposed Lincoln, Nebraska 8, 10, *12, 15 8, 10, 15, *27 IV. PROCEDURAL MATTERS 6. Showings Required. Comments are invited on the proposal discussed in this Notice of Proposed Rulemaking (NPRM). The Petitioner or any proponent that expresses interest in the allotment will be expected to answer whatever questions are presented in initial comments. The petitioner of a proposed allotment is required to file comments even if it only resubmits or incorporates by reference its former pleadings. The petitioner must restate its present intention to apply for the channel if it is allotted and, if authorized, to build a station promptly. See, e.g., Buffalo, Iola, Normangee, and Madisonville, Texas, MB Docket No. 07-729, Report and Order, 24 FCC Rcd 8192, 8194, para. 9 (Aud. Div. 2009). Failure to file may lead to denial of the request. Any requests by a proponent for withdrawal or dismissal of an allotment request must be filed with the Commission in accordance with section 1.420(j) of the rules. 47 CFR § 1.420(j). 7. 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. 47 CFR § 1.420(d). (b) The filing of a counterproposal may lead the Commission to allot a different channel than was requested in the Petition. 47 CFR § 1.420(g)(2). 8. Comments and Reply Comments. Pursuant to sections 1.415, 1.419, and 1.420 of the rules, 47 CFR §§ 1.415, 1.419, and 1.420. interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission’s Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998). · Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://apps.fcc.gov/ecfs/. Parties that choose to file electronically only need to submit one copy of each filing so long as the submission conforms to all procedural and filing requirements. Online filing is optional. · Paper Filers: Parties who choose to file by paper must file an original and one copy 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. All filings must be addressed to the Commission’s Secretary, Office of the Secretary, Federal Communications Commission. Any paper 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. Accordingly, failure to follow the specified requirements may result in the treatment of a filing as untimely. o Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701. o U.S. Postal Service first-class, Express, and Priority mail must be addressed to 45 L Street, NE, Washington D.C. 20554. o Effective March 19, 2020, and until further notice, the Commission no longer accepts any hand or messenger delivered filings. This is a temporary measure taken to help protect the health and safety of individuals, and to mitigate the transmission of COVID-19. See FCC Announces Closure of FCC Headquarters Open Window and Change in Hand-Delivery Policy, Public Notice, 35 FCC Rcd 2788 (2020). o During the time the Commission’s building is closed to the general public and until further notice, if more than one docket or rulemaking number appears in the caption of a proceeding, paper filers need not submit two additional copies for each additional docket or rulemaking number; an original and one copy are sufficient. 9. Service. Pursuant to section 1.420 of the rules, 47 CFR § 1.420. 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 CFR § 1.420(a), (b) and (c). Additionally, a copy of such comments should be served on counsel for the Petitioner, as follows: Derek Teslik, Esq. Gray Miller Persh LLP 2233 Wisconsin Avenue, NW Washington, D.C. 20007 10. Ex Parte Notices– Restricted. The proceeding this Notice initiates shall be treated as a “restricted” proceeding in accordance with the Commission’s ex parte rules. 47 CFR §§ 1.1200 et seq. For purposes of this restricted notice and comment rulemaking proceeding, members of the public are advised that no ex parte presentations are permitted from the time the Commission adopts a notice of proposed rulemaking 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. 47 CFR § 1.1208. 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. 47 CFR § 1.1204(a)(10). 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. 47 CFR § 1.1204(a)(10)(ii). In addition, an oral presentation in a restricted proceeding not designated for hearing requesting action by a particular date or giving reasons that a proceeding should be expedited other than the need to avoid administrative delay is permitted. A detailed summary of the presentation must be filed in the record and served by the person making the presentation on the other parties to the proceeding, who may respond in support or opposition to the request for expedition, including by oral ex parte presentation, subject to the same service requirement. 47 CFR § 1.1204(a)(11). Any comment that 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. 11. Availability of Documents. Comments, reply comments, and ex parte submissions will be available for public inspection via ECFS (http://apps.fcc.gov/ecfs/). Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat. 12. Paperwork Reduction and Regulatory Flexibility. The Commission has determined that the relevant provisions of the Regulatory Flexibility Act of 1980, as amended, See 5 U.S.C. § 603. The RFA, see 5 U.S.C. § 601 et seq., has been amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), Pub. L. No. 104-121, Title II, 110 Stat. 857 (1996). The SBREFA was enacted as Title II of the Contract with America Advancement Act of 1996 (CWAAA). do not apply to a rulemaking proceeding to amend the DTV Table of Allotments, section 73.622(i) of the rules. 47 CFR § 73.622(i). This document does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995. See 44 U.S.C. §§ 3501-3520. 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. See 44 U.S.C. § 3506(c)(4). 13. People with Disabilities. To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty). 14. Additional Information. For further information concerning the proceeding listed above, contact Joyce Bernstein, Video Division, Media Bureau, (202) 418-1647, Joyce.Bernstein@fcc.gov. V. ORDERING CLAUSES 15. IT IS ORDERED that, 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, 47 U.S.C. §§ 154(i), 155(c)(1), 303(g), (r), and 307(b) and sections 0.61, 0.204(b), and 0.283 of the rules, 47 CFR §§ 0.61, 0.204(b), and 0.283, IT IS PROPOSED TO AMEND the Table of Allotments, section 73.622(j) of the rules, 47 CFR § 73.622(j), as set forth in this NPRM, and this NPRM IS ADOPTED. 16. IT IS FURTHER ORDERED that, pursuant to applicable procedures set forth in sections 1.415, 1.419, 1.420 of the rules, 47 CFR §§ 1.415, 1.419, and 1.420, interested parties may file comments, including counterproposals, on the NPRM in MB Docket No. 22-347 and RM-11932 on or before thirty (30) days after publication in the Federal Register and reply comments on or before forty five (45) days after publication in the Federal Register. FEDERAL COMMUNICATIONS COMMISSION Barbara A. Kreisman Chief, Video Division Media Bureau 2