*Pages 1--2 from  Microsoft Word - 36261*
 Federal  Communications  Commission  FCC  03-  321 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of 
 Amendment  of  Section  73.  622(  b)  Table  of  Allotments 
 Digital  Television  Broadcast  Stations  (Muskogee,  Oklahoma) 


 )  ) 
 )  ) 
 )  ) 
 )  ) 
 ) 


 MEMORANDUM  OPINION  AND  ORDER 
 Adopted:  December  16,  2003  Released:  March  2,  2004 
 By  the  Commission: 


 1.  The  Commission  has  before  it  an  application  filed  by  Tulsa  Communications,  LLC  (Tulsa  Communications)  seeking  review  of  a  December  20,  2001,  staff  letter  dismissing  a  Petition  for  Rule 
 Making  to  allocate  DTV  Channel  20  at  Muskogee,  Oklahoma  as  the  “paired”  DTV  channel  assigned  to  KWBT(  TV).  1  Tulsa  Communications  is  the  licensee  of  KWBT(  TV),  Muskogee,  Oklahoma,  currently 
 operating  on  NTSC  Channel  19.  In  denying  the  petition,  the  staff  ruled  that  KWBT(  TV)  was  not  eligible  for  a  paired  DTV  channel  since  it  had  not  received  its  initial  authorization  by  the  cut-  off  date  of  April  3, 
 1997,  as  set  forth  in  the  Fifth  Report  and  Order.  2 
 2.  In  its  Application  for  Review,  Tulsa  Communications  essentially  reiterates  the  arguments  raised  below,  namely,  that  it  needs  a  paired  DTV  channel  to  assist  in  its  conversion  to  DTV  operations  and  that 


 the  refusal  to  grant  a  paired  DTV  channel  violates  national  policy  by  preventing  the  earliest  possible  implementation  of  DTV  service.  3  Tulsa  Communications  also  claims  that  its  engineering  showing 
 demonstrates  that  other  applicants  are  precluded  from  using  DTV  Channel  20  and,  therefore,  it  is  unlikely  that  a  third  party  would  apply  for  a  full-  service  stand-  alone  station  on  the  channel.  Finally,  Tulsa 
 Communications  argues  that  granting  it  a  paired  DTV  channel  would  not  be  inequitable  in  light  of  the  Commission’s  different  treatment  of  pre-  and  post-  April  3,  1997  stations. 


 3.  Discussion.  In  the  Telecommunications  Act  of  1996,  Congress  specifically  stated  that  “if  the 
 1  Tulsa  Communications  has  chosen  not  to  file  a  petition  for  reconsideration  of  the  December  20,  2001,  letter 
 pursuant  to  Section  1.115(  a)  of  the  Commission’s  rules.  47  C.  F.  R.  §1.  115(  a).  2 
 Advanced  Television  Systems  and  Their  Impact  Upon  the  Existing  Television  Broadcast  Service,  12  FCC  Rcd  1289,  12816  (1997)  (“  Fifth  Report  and  Order”),  recon.  granted  on  other  grounds,  13  FCC  Rcd  6860,  6865  (1998). 


 See  also  Second  Memorandum  and  Opinion  on  Reconsideration  of  the  Fifth  and  Sixth  Report  and  Orders,  14  FCC  Rcd  1348  (1998). 
 3  Tulsa  Communications  further  argues  that  the  staff  denied  the  request  because  of  “spacing  issues,”  even  though 
 that  reason  was  not  mentioned  in  the  December  20,  2001,  letter.  Tulsa  Communications  contends  that  the  alleged  “spacing  issue”  provided  an  insufficient  basis  to  deny  the  petition  since  the  Commission  did  not  employ  spacing 


 criteria  during  the  initial  DTV  allotment  process. 
1
 Federal  Communications  Commission  FCC  03-  321 
 2 
 Commission  determines  to  issue  additional  licenses  for  advanced  television  services,  the  Commission  should  limit  the  initial  eligibility  for  such  licenses  to  persons  that,  as  of  the  date  of  such  issuance  [of  DTV 
 licenses],  are  licensed  to  operate  a  television  broadcast  station  or  hold  a  permit  to  construct  a  station  (or  both)….”  4  Following  Congress’  explicit  direction,  the  Commission  issued  DTV  licenses  to  those  stations 
 that  had  analog  television  station  licenses  or  construction  permits  on  April  3,  1997,  the  date  the  Commission  adopted  the  Fifth  Report  and  Order.  5  The  Commission  has  permitted  all  pending  applicants 
 who  were  not  eligible  for  a  second  DTV  channel,  such  as  Tulsa  Communications,  to  convert  to  digital  service  on  the  channel  provided  to  them.  6  Therefore,  declining  to  provide  Tulsa  Communications  a 
 paired  DTV  channel  does  not  violate  national  policy.  This  policy,  as  the  Commission  stated,  “fully  satisfies  all  the  equitable  and  other  considerations  that  have  been  raised  in  requests  for  additional  digital 
 channels.”  7  Finally,  Tulsa  Communications  has  proffered  no  showing  that  the  staff  based  its  findings  in  the  December  20,  2001,  letter  on  anything  other  than  the  clear  intent  of  Congress  and  the  plain  language 
 of  the  relevant  Commission  orders.  Upon  review  of  the  arguments  set  forth  by  Tulsa  Communications,  we  uphold  the  staff  decision  for  the  reasons  stated  therein.  There  is  no  reason  to  disturb  it.  8 


 4.  Accordingly,  IT  IS  ORDERED,  That  the  Application  for  Review  filed  by  Tulsa  Communications,  LLC  IS  DENIED. 


 FEDERAL  COMMUNICATIONS  COMMISSION 
 Marlene  H.  Dortch  Secretary 


 4  47  U.  S.  C.  §336(  a)(  1). 
 5  Fifth  Report  and  Order,  12  FCC  Rcd  at  12816,  12838.  The  Commission  issued  DTV  licenses  to  all  eligible 
 television  licensees  and  permittees  in  the  Fifth  Report  and  Order.  See  Id.  at  12838  and  Appendix  E.  6 
 Second  Memorandum  and  Opinion  on  Reconsideration  of  the  Fifth  and  Sixth  Report  and  Orders,  14  FCC  Rcd  at  1359. 


 7  Id. 
 8  See  WMAC,  Inc.,  10  FCC  Rcd  12219  (1995). 
2