[Federal Register Volume 67, Number 191 (Wednesday, October 2, 2002)]
[Rules and Regulations]
[Pages 61816-61818]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-25071]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 73

[MM Docket No. 00-39; FCC 02-253]


Conversion to Digital Television

AGENCY: Federal Communications Commission.

ACTION: Final rule; denial.

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SUMMARY: This item denies a Petition for Reconsideration, filed by 
Diversified Broadcasting, Inc., of the Memorandum Opinion and Order in 
this proceeding, which addressed a number of issues related to the 
conversion of the nation's

[[Page 61817]]

broadcast television system from analog to digital television 
(``DTV''). This item affirms the decision made in the Memorandum 
Opinion and Order that certain NTSC applications filed prior to July 1, 
1997, must be protected by later-filed DTV area expansion applications.

ADDRESSES: 445 12th Street SW., Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: Kim Matthews, Policy Division, Media 
Bureau, Federal Communications Commission, (202) 418-2120.

SUPPLEMENTARY INFORMATION: Diversified Broadcasting, Inc., licensee of 
WCJB(TV), Gainesville, Florida (``Diversified'') filed a Petition for 
Reconsideration of the Memorandum Opinion and Order (``MO&O'') in MM 
Docket No. 00-39, 66 FR 65122 (December 18, 2001), which addressed a 
number of issues related to the conversion of the nation's broadcast 
television system from analog to digital television (``DTV''). 
Specifically, Diversified objects to the determination in the MO&O that 
certain NTSC applications filed prior to July 1, 1997, must be 
protected by later-filed DTV area expansion applications. Community 
Television of Florida, Inc. (``CTF'') filed an Opposition to 
Diversified's Petition. For the reasons discussed below, the Commission 
denies Diversified's Petition.
    The Report and Order and Further Notice of Proposed Rule Making 
(``Report and Order''), 66 FR 10001 (February 13, 2001), in this 
proceeding addressed the procedures to be used in processing mutually-
exclusive applications filed by licensees seeking to expand or 
``maximize'' their DTV allotments (referred to herein as ``expansion 
applications''). In the Report and Order, we gave processing and 
protection priority to then pending DTV expansion applications, filed 
on or prior to January 18, 2001, over previously filed NTSC 
applications except those NTSC applications that fell into one of three 
categories: post-auction applications, applications proposed for grant 
in pending settlements, and singleton applications cut off from further 
filings. We stated that these applications must have been accepted for 
filing in order to be protected from DTV expansion applications. When a 
pending DTV application conflicts with an NTSC application in one of 
these categories, we stated that we would treat the applications as 
mutually exclusive (``MX'') and follow the procedures adopted in the 
Report and Order for MX applications--that is, we required that parties 
resolve their MX conflict within 90 days or we would subsequently 
dismiss both applications.
    In the MO&O, we revised the procedures for determining priority 
between conflicting DTV expansion applications and NTSC applications. 
We noted that in the Broadcast Auctions Report and Order, 63 FR 48615 
(September 11, 1998), we had found that, by application of Section 
309(l) of the Communications Act, pending NTSC application groups on 
file prior to July 1, 1997, are entitled to compete in an auction that 
does not include applications filed on or after July 1, 1997. Pursuant 
to that statutory directive, we concluded that we may not find DTV 
expansion applications (all of which were filed after June 30, 1997) to 
be MX with NTSC application groups on file prior to July 1, 1997. This 
also is the case when an NTSC application that was cut-off as part of a 
group of NTSC applications filed before July 1, 1997, has become a 
singleton because other applications in the group have been dismissed. 
We concluded in the MO&O that NTSC applications in these two 
categories--NTSC application groups on file prior to July 1, 1997, and 
any singletons remaining from such a group--should be protected against 
DTV expansion applications. DTV expansion applicants are permitted to 
file minor amendments to resolve conflicts with NTSC applications in 
these categories.
    Diversified requests that we reconsider and reverse our decision 
that pending DTV expansion applications filed on or prior to January 
18, 2001, must protect certain NTSC applications filed prior to July 1, 
1997. Diversified argues that we should reinstate our initial decision 
(in the Report and Order) and treat these DTV expansion applications as 
MX with these NTSC applications so that the parties may work together 
to resolve interference issues. According to Diversified, under the 
determination in the Report and Order, its DTV expansion application 
for WCJB(TV) would have been MX with CTF's competing NTSC application 
for Marianna, Florida, and the parties then would have had 90 days 
within which to negotiate a resolution to the interference conflict. 
Under the revised decision in the MO&O, however, the NTSC application 
for Marianna will take priority, as it was filed prior to July 1, 1997, 
and was cut-off as part of a group of two competing NTSC applications 
filed before July 1, 1997. Diversified argues that this processing 
change puts DTV applicants at a severe disadvantage despite the 
importance of DTV to the future of television broadcasting. Diversified 
also argues that we incorrectly interpreted Section 309(l) of the 
Communications Act, which Diversified claims was intended to resolve 
exclusivity only among competing analog television applications. 
According to Diversified, that provision was not intended to address 
processing of subsequently filed DTV expansion applications, and 
Congress did not intend that DTV expansion applications be treated as 
secondary to analog station applications. In its Opposition, CTF argues 
that Diversified's application must be dismissed as a result of the 
Commission's decision in the MO&O according priority to NTSC 
applications filed prior to July 1, 1997.
    We decline to revise our determination that Section 309(l) of the 
Communications Act entitles pending NTSC application groups on file 
prior to July 1, 1997, to compete in an auction that does not include 
applications filed on or after July 1, 1997. Section 309(l) provides:

    With respect to competing applications for initial licenses or 
construction permits for commercial radio or television stations 
that were filed with the Commission before July 1, 1997, the 
Commission shall--
    (2) treat the persons filing such applications as the only 
persons eligible to be qualified bidders for purposes of such 
proceeding* * *

    Statutory construction must begin with the language employed by the 
statute and the assumption that the ordinary meaning of the language 
accurately expresses the legislative purpose. The language of Section 
309(l)(2) is unambiguous that, where competing applications were filed 
with the Commission before July 1, 1997, ``the Commission shall * * * 
treat the persons filing such applications as the only persons eligible 
to be qualified bidders.'' The Conference Report confirms that ``[t]he 
Commission shall limit the class of eligible applicants who may be 
considered qualified bidders * * * to the persons who filed 
applications with the Commission before that date [July 1, 1997].''
    In implementing section 309(l) the Commission determined, first, 
that it would resolve by competitive bidding any mutually exclusive 
application group not resolved by a settlement agreement and, second, 
that pending NTSC applications submitted for filing by September 20, 
1996 constituted pre-July 1st competing applications within the meaning 
of section 309(l) even if the related freeze area waiver had not been 
processed. Except for the circumstance in which only one application 
(and waiver request) was ever submitted for a particular allotment, the 
Commission determined that it was precluded by the

[[Page 61818]]

unambiguous language of subsection (2) from soliciting additional 
potentially mutually exclusive applications, despite its earlier 
explicit pledge to provide the opportunity for the filing of competing 
applications with respect to any analog television application accepted 
for filing. This interpretation was upheld in Orion Communications, Ltd 
v. FCC, 221 F.3d 196 (D.C. Cir. 2000) (Table).
    Consistent with the determination to resolve competing NTSC 
applications by competitive bidding and the resulting obligation to 
insulate such applicants from having to compete for the construction 
permit against post-June 30, 1997 applicants, the Commission may not 
require NTSC applications within the scope of section 309(l) to resolve 
any interference conflicts with pending DTV expansion applicants or 
face dismissal or otherwise direct that the rights of this category of 
broadcast applicants are secondary to those of DTV expansion 
applicants. To do so would vitiate completely the special protections 
Congress expressly extended to ``[c]ompeting applications * * * for 
commercial radio or television stations filed with the Commission 
before July 1, 1997.'' Congress, although clearly aware in 1997 of the 
impending transition to DTV, did not offer any guidance either in the 
statutory language or in the Conference Report as to how the Commission 
is to accommodate the competing spectrum needs of this group of 
applicants and of DTV expansion applicants. Even without such express 
guidance, however, the Commission must devise a solution faithfully 
effectuating the express protections afforded this category of 
competing commercial broadcast applications. Notwithstanding 
Diversified's contention, the Commission's original procedure, 
requiring the dismissal of certain NTSC applicants within the scope of 
section 309(l), contravened Congress's manifest intent regarding these 
particular applicants. Its repeal in the MO&O was therefore compelled 
by the unambiguous language of section 309(l).
    Diversified has advanced no argument that leads us to a different 
conclusion. Diversified claims that Section 309(l) was intended to 
resolve mutual exclusivity among analog television applications only, 
and that it was not intended to determine priority among competing 
analog and DTV expansion applications. Nothing in the statutory text 
suggests that DTV expansion applications were intended to be treated 
differently under Section 309(l), or that they were intended to be 
treated as MX with applications filed prior to July 1, 1997. Elsewhere 
in the statute Congress did expressly provide for different treatment 
of digital stations when, for example, in Section 309(j)(2), it 
expressly excluded certain digital stations from our competitive 
bidding authority. Congress made no provision for disparate treatment 
of DTV expansion applications under Section 309(l), however, and the 
unambiguous language of that provision compels the result we reached in 
the MO&O.
    The Petition for Reconsideration filed January 17, 2002, by 
Diversified Broadcasting, Inc. is denied.

List of Subjects in 47 CFR Part 73

    Television broadcasting.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 02-25071 Filed 10-1-02; 8:45 am]
BILLING CODE 6712-01-P