[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