[Federal Register Volume 65, Number 87 (Thursday, May 4, 2000)]
[Rules and Regulations]
[Pages 25865-25867]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-11099]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 73

[FCC 00-130; MM Docket No. 98-175; RM-9364]


Television Broadcasting Services; Digital Television Broadcasting 
Services; Buffalo, NY

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In a Memorandum Opinion and Order, the Commission denies the 
Application for Review filed by Coalition for Noncommercial Media 
(``CNM''), and affirms the Mass Media Bureau's Report and Order 64 FR 
45893 (August 23, 1999). The Bureau's action had granted the 
noncommercial educational channel reservation swap for Channels 17 and 
*23 in Buffalo, New York and related digital channels requested by 
licensee Western New York Public Broadcasting Association. That Report 
and Order also had denied oppositions filed by Grant Television, Inc., 
licensee of WNYO-TV, Buffalo, New York, WKBW-TV Licensee, Inc., 
licensee of Station WKBW-TV, Buffalo, New York, Kevin Smardz, President 
of Southtowns Christian Center, Lakeview, New York, and CNM.

DATES: Effective July 3, 2000.

[[Page 25866]]


FOR FURTHER INFORMATION CONTACT: Victoria M. McCauley, Mass Media 
Bureau, (202) 418-2180.

SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's 
Memorandum Opinion and Order, MM Docket No. 98-175, adopted April 6, 
2000, and released April 19, 2000. The full text of this Commission 
decision is available for inspection and copying during normal business 
hours in the FCC Reference Center (Room 239), 445 12th Street, SW, 
Washington, DC. The complete text of this decision may also be 
purchased from the Commission's copy contractor, International 
Transcription Services, Inc., (202) 857-3800, 1231 20th Street, NW, 
Washington, DC 20036.

Summary of Memorandum Opinion and Order

    Before us is an Application for Review of the Report and Order 
which amended the Television Table of Allotments for Buffalo, New York 
at the request of Western New York Public Broadcasting Association 
(``WNYPBA''), licensee of Stations WNED-TV, Channel 17, and WNEQ-TV, 
Channel *23, Buffalo, New York, to reflect Channel 17 as reserved for 
noncommercial educational use, and Channel 23 as nonreserved, and 
related changes to the DTV Table of Allotments. Coalition for 
Noncommercial Media (``CNM''), a group of Buffalo-Area citizens and 
WNED/WNEQ-TV viewers filed this Application for Review, alleging that 
the Mass Media Bureau erred in making these amendments.

Background

    The Report and Order granting the change of reservation considered 
and rejected arguments opposing WNYPBA's request by Grant Television, 
Inc. licensee of WNYO-TV, Buffalo, New York, WKBW-TV Licensee, Inc., 
licensee of Station WKBW-TV, Buffalo, New York, Kevin Smardz, President 
of Southtowns Christian Center, Lakeview, New York, and CNM. The Report 
and Order also denied CNM's counterproposal requesting that the 
Commission amend the TV Table of Allotments to reserve all unreserved 
channels being used for noncommercial operation on the grounds that it 
was not mutually exclusive with the WNYPBA proposal.
    The Report and Order held (1) that the exchange of reservation 
would serve the public interest, and (2) that it could be effectuated 
under the Commission's existing rules and policies. The Bureau noted 
the transaction would serve the public interest because there would be 
no diminution in noncommercial educational service in Buffalo and that 
such service would actually expand because Station WNED-TV, clearly the 
more powerful and broad reaching of the two stations would be on a 
reserved channel. It also noted that WNYPBA could sell Station WNED-TV, 
arguably the more valuable and marketable station, on unreserved 
Channel 17 as a commercial entity at any time, but that it had foregone 
this opportunity in order to retain noncommercial educational service 
on Station WNED-TV on Channel *17.
    The Bureau also pointed out that under the Commission's rules 
allowing intraband channel swaps between commercial and noncommercial 
stations, WNYPBA, after selling Station WNED-TV, could have then 
swapped channels with WNED-TV's new licensee and reached the same 
result as its proposed reservation exchange, and that avoiding this 
two-stage filing would also serve the public interest.
    The Bureau also addressed CNM's ``counterproposal,'' which had two 
aspects: One requesting that we reserve Channel 17 at Buffalo, and one 
requesting that we reserve all unreserved channels of stations which 
were being operated noncommercially. The Bureau considered CNM's 
counterproposal as not appropriately filed in this proceeding because 
CNM's request to reserve all unreserved channels of stations being 
operated as noncommercial stations was not mutually exclusive with 
WNYPBA's proposal at Buffalo.

Application for Review

    CNM argues again that the Bureau should have denied WNYPBA's 
request for the channel reservation swap. CNM goes on to argue that the 
Bureau failed to consider its ``counterproposal.'' It then repeats all 
of the arguments it made in its comments before the Bureau. CNM's 
Petition for Emergency Relief, supported by CIPB, requests that the 
Commission stay the effect of the Report and Order, and prevent WNYPBA 
from converting Station WNEQ-TV (or WNED-TV) to commercial operation 
until the resolution of its proposal to reserve Channel 17 in this 
matter.

Discussion

    As a preliminary matter, we will note that CNM's Petition for 
Emergency Relief is moot and will be dismissed. Furthermore, we will 
not address CNM's repeated arguments against the reservation swap. The 
Bureau properly addressed CNM's arguments in the Report and Order and 
we will not disturb its decision. However, we will address CNM's 
argument that the Bureau overlooked the first aspect of CNM's 
``counterproposal,'' to reserve Channel 17 at Buffalo. CNM argues that 
pursuant to the holding of Ashbacker v. F.C.C. (``Ashbacker''), the 
Bureau erred when it failed specifically to address its disposal of 
CNM's ``counterproposal'' requesting the reservation of Channel 17 at 
Buffalo on a comparative basis with the proposal filed by WNYPBA.
    While the Bureau may have omitted mention of its specific disposal 
of CNM's ``counterproposal'' to reserve Channel 17 at Buffalo, any 
error this involved was harmless. First, a third party may not petition 
for a change in another station's authorization, particularly if the 
licensee has disavowed an interest in the particular proposed change. 
In addition, contrary to CNM's argument, the Bureau correctly held that 
the rule of Ashbacker does not apply to channel exchanges because the 
channels are occupied. Finally, although the two proposals may have 
been mutually exclusive as a matter of common usage because they could 
not co-exist, they were not mutually exclusive within the strict 
interpretation of that phrase as a term of art applied to broadcast 
channel allotments, which presumes a short-spacing between two 
channels.
    We also note that the Bureau correctly held that the second aspect 
of CNM's ``counterproposal,'' to reserve all unreserved channels of 
stations operating as noncommercial educational stations was not 
appropriately filed in this matter. The Bureau was constrained to limit 
its decision to the merits of the issues as they applied to the instant 
parties. The issue of reserving all unreserved channels on which 
licensees operate noncommercially is a matter appropriately raised as a 
general rulemaking, not as an issue to be resolved in an adjudicatory 
proceeding such as this.
    Finally, CNM repeats an argument made to the Bureau that allowing 
this transaction could spark a ``flood'' of requests by other public 
broadcasters seeking to sell their ``second channel'' public television 
stations. CNM claims that the Bureau's answer to this argument 
mischaracterized the number of noncommercial stations operating on 
unreserved frequencies. CNM is incorrect. The Bureau correctly referred 
to the number of communities in which a pair of co-owned (rather than 
independently owned) noncommercial stations is operating with one 
station on an unreserved channel.

[[Page 25867]]

List of Subjects in 47 CFR Part 73

    Television broadcasting, Digital television broadcasting.

Federal Communications Commission.
Magalie Roman Salas,
Secretary.
[FR Doc. 00-11099 Filed 5-3-00; 8:45 am]
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