Federal Communications Commission DA 22-403 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 (Augusta, Maine) ) ) ) ) ) MB Docket No. 22-150 RM-11926 NOTICE OF PROPOSED RULEMAKING Adopted: April 13, 2022 Released: April 13, 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 Maine Public Broadcasting Corporation (Petitioner), the licensee of WCBB, channel *10, Augusta, Maine (Station or WCBB). Petition of Maine Public Broadcasting Corporation for Rulemaking (filed Mar. 31, 2022, LMS File No. 0000188079) (Petition). The Petitioner amended on April 6, 2022 to provide additional analysis regarding predicted loss of PBS programming (Amended Petition). The Petitioner requests the substitution of channel *20 for channel *10 at Augusta 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 WCBB is one of only two full power stations in the market to broadcast on a VHF channel, and moving the Station to a UHF channel would improve the community’s access to WCBB’s PBS and other public television programming by improving indoor reception. Petition at 1. See also id. at 3 (discussing VHF channel characteristics that pose challenges for their use in providing digital television service). According to Petitioner, although the proposed channel *20 facilities will result in a predicted loss of service to 3,785 persons, however much of the predicted loss area is located outside the state of Maine and the “vast majority” is served by Petitioner’s owned and operated stations WMEB-TV, Orono, Maine, and WMEA-TV, Biddeford, Maine, or by other PBS member stations, WENH-TV, Durham, New Hampshire, WLED-TV, Littleton, New Hampshire, and WVTB, St. Johnsbury, Vermont. Id. at 2. Petitioner goes on to state that once these other sources of PBS programing and terrain-limitations are factored into the loss analysis, the new loss area that would be created by the proposed channel substitution would contain 144 persons, which it asserts is well below the level the Commission considers de minimis in the context of considering impermissible loss of service. Amended Petition at 2. III. DISCUSSION 3. We believe that the Petitioner’s channel substitution proposal warrants consideration. Channel *20 can be substituted for channel *10 at Augusta, Maine, 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 44° 09' 15.0" N and 70° 00' 35" W. Since the proposed facility is located within the Canadian coordination zone, concurrence from the Canadian government must be obtained for this allotment. Although the Petitioner’s proposal would result in a loss of PBS service for a limited number of viewers, we find that the overall benefits of the proposed channel change outweighs any possible harm to the public interest, given the fact that the loss of service is ultimately de minimis when taking into account the ability of viewers to access PBS and other major network and educational programming from other stations. In total, 144 persons would lose PBS service, which in the past we have found this number to be de minimis. See WSET, Inc., 80 FCC 2d 233, 246 (1980) (finding that loss of service to less than 500 persons is de minimis). 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. Thus, we propose to substitute channel *20 for channel *10 for WCBB with the following specifications: City and State Channel Power (kW) Antenna HAAT (m) Augusta, Maine *20 1000 304 4. 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 Augusta, Maine *10 *20 IV. PROCEDURAL MATTERS 5. 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). 6. 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). 7. 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. 8. 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 9. 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. 10. 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. 11. 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). 12. 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). 13. 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 14. 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. 15. 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. 22-150 and RM-11926 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