[Federal Register Volume 81, Number 35 (Tuesday, February 23, 2016)]
[Rules and Regulations]
[Pages 8843-8848]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-03801]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 73

[GN Docket No. 12-268; FCC 16-12]


Expanding the Economic and Innovation Opportunities of Spectrum 
Through Incentive Auctions

AGENCY: Federal Communications Commission.

ACTION: Final rule; petition for reconsideration.

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SUMMARY: In this document, the Commission dismisses, and on separate 
grounds, denies petitions for reconsideration seeking reconsideration 
of the Commission's decisions in the Incentive Auction R&O and the 
Incentive Auction Second Order on Reconsideration not to protect 
certain broadcast television stations (WOSC-CD, Pittsburgh, PA; WPTG-
CD, Pittsburgh, PA; WIAV-CD, Washington, DC; and KKYK-CD, Little Rock, 
AK) in the repacking process or make them eligible for the reverse 
auction. The Commission also concludes that WDYB-CD, Daytona Beach, 
Florida is not entitled to discretionary repacking protection or 
eligible to participate in the reverse auction.

DATES: Effective February 23, 2016.

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

FOR FURTHER INFORMATION CONTACT: Lynne Montgomery, (202) 418-2229, or 
by email at [email protected], Media Bureau; Joyce Bernstein, 
(202) 418-1647, or by email at [email protected], Media Bureau.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order 
on Reconsideration in GN Docket No. 12-268, FCC 16-12, adopted on 
February 8, 2016 and released on February 12, 2016. The full text may 
also be downloaded at: www.fcc.gov. People with Disabilities: To 
request materials in accessible formats for people with disabilities 
(braille, large print, electronic files, audio format), send an email 
to [email protected] or call the Consumer & Governmental Affairs Bureau at 
202-418-0530 (voice), 202-418-0432 (tty).

Synopsis of Order on Reconsideration

I. Introduction

    1. Petitioners The Videohouse, Inc. (Videohouse), Abacus Television 
(Abacus), WMTM, LLC (WMTM), and KMYA, LLC (KMYA) seek reconsideration 
of the Commission's decision, on procedural and substantive grounds, 
not to protect their broadcast television stations in the repacking 
process or make them eligible for the reverse auction. At the time the 
Petition was filed, Videohouse, Abacus, WMTM, and KMYA were the 
licensees of the following stations, respectively: WOSC-CD, Pittsburgh, 
Pennsylvania; WPTG-CD, Pittsburgh; WIAV-CD, Washington, DC; and KKYK-
CD, Little Rock, Arkansas. WPTG-CD and KKYK-CD have since been acquired 
by Fifth Street Enterprise, LLC and Kaleidoscope Foundation, Inc., 
respectively. We dismiss and, on alternative and independent grounds, 
deny the Petition. For the reasons below, we also conclude that WDYB-
CD, Daytona Beach, Florida, licensed to Latina Broadcasters of Daytona 
Beach, LLC (Latina), is not entitled to discretionary repacking 
protection or eligible to participate in the reverse auction.

II. Background

    2. In the Incentive Auction R&O, the Commission concluded that the 
Spectrum Act mandates that the Commission make all reasonable efforts 
to preserve, in the repacking process associated with the broadcast 
television spectrum incentive auction, the coverage area and population 
served of only full power and Class A broadcast television facilities 
(1) licensed as of February 22, 2012, the date of enactment of the 
Spectrum Act, or (2) for which an application for a license to cover 
was on file as of February 22, 2012. The Commission did not interpret 
the Spectrum Act, however, as precluding it from exercising discretion 
to protect additional facilities beyond the statutory floor. The 
Commission granted discretionary protection to a handful of categories 
of facilities, based on a careful balancing of different factors in 
order to achieve the goals of the Spectrum Act and other statutory and 
Commission goals.
    3. One category to which the Commission declined to extend 
discretionary protection was ``out-of-core'' Class A-eligible LPTV 
stations'': Low power television (LPTV) stations that operated on 
``out-of-core'' channels (channels 52-69) when the Community 
Broadcasters Protection Act (CBPA) was enacted in 1999 and obtained an 
authorization for an ``in-core'' channel

[[Page 8844]]

(channels 2-51), but did not file for a Class A license to cover by 
February 22, 2012. The CBPA accorded ``primary'' or protected Class A 
status to certain qualifying LPTV stations. Although the statute 
prohibited granting Class A status to LPTV stations on out-of-core 
channels, it provided such stations with an opportunity to achieve 
Class A status on an in-core channel. The Commission explained that 
protecting these stations, which numbered approximately 100, would 
encumber additional broadcast television spectrum, thereby increasing 
the number of constraints on the repacking process and limiting the 
Commission's flexibility to repurpose spectrum for flexible use. The 
Commission recognized that these stations had made investments in their 
facilities, but concluded that this equitable interest did not outweigh 
the ``significant detrimental impact on repacking flexibility that 
would result from protecting them,'' especially in light of their 
failure to take the necessary steps to obtain a Class A license and 
eliminate their secondary status during the ten-plus years between 
passage of the CBPA and the Spectrum Act. The Commission did decide to 
protect one station in this category, KHTV-CD, based on licensee 
Venture Technologies Group, LLC's (Venture) showing in response to the 
Incentive Auction NPRM that discretionary protection of KHTV-CD was 
warranted, based upon the fact that it made repeated efforts over the 
course of a decade to find an in-core channel, had a Class A 
construction permit application on file certifying that it was meeting 
the regulatory requirements applicable to Class A stations prior to 
enactment of the Spectrum Act, and filed an application for a license 
to cover a Class A facility on February 24, 2012, just two days after 
the Spectrum Act was enacted.
    4. Abacus and Videohouse, licensees of two stations in the out-of-
core Class A-eligible LPTV station category, filed petitions for 
reconsideration of the Incentive Auction R&O asking the Commission to 
protect their stations in the repacking process and make them eligible 
for the reverse auction. The Commission rejected their claims that they 
are entitled to repacking protection under the CBPA. The Commission 
dismissed on procedural grounds their claims that they should be 
protected because they are similarly situated to KHTV-CD, but also 
considered and rejected the claims on the merits. In addition, the 
Commission rejected arguments disputing its estimate that the category 
of out-of-core Class A-eligible stations included approximately 100 
stations. Asiavision, Inc, the previous licensee of WIAV-CD, submitted 
a responsive filing raising arguments similar to those raised by Abacus 
and Videohouse and the Commission dismissed this filing as a late-filed 
petition for reconsideration but nonetheless treated it as an informal 
comment.
    5. In the Reconsideration Order, the Commission also clarified that 
a Class A station that had an application for a license to cover a 
Class A facility on file or granted as of February 22, 2012 is entitled 
to mandatory protection, but that a Class A station that had an 
application for a Class A construction permit on file or granted as of 
that date would not be entitled to such protection. An application for 
a license to cover a Class A facility signifies that the Class A-
eligible LPTV station has constructed its authorized Class A facility, 
and authorizes operation of the facility. A Class A construction permit 
application seeks to convert an LPTV construction permit to a Class A 
permit. Grant of a construction permit standing alone does not 
authorize operation of the authorized facility. Based on a careful 
balancing of relevant factors, it also decided to extend discretionary 
protection to stations in the latter category--stations that did not 
construct in-core Class A facilities until after February 22, 2012 but 
requested Class A construction permits prior to that date. The 
Commission reasoned that these stations are similarly situated to KHTV-
CD because as of February 22, 2012, the date established by Congress 
for determining which stations are entitled to repacking protection, 
these stations had certified in an application filed with the 
Commission that they were acting like Class A stations. By filing an 
application for a Class A construction permit prior to February 22, 
2012, each of these stations documented efforts prior to passage of the 
Spectrum Act to remove their secondary status and avail themselves of 
Class A status. Under the Commission's rules, these stations were 
required to make the same certifications as if they had applied for a 
license to cover a Class A facility. Among other things, each was 
required to certify that it `does, and will continue to, broadcast' a 
minimum of 18 hours per day and an average of at least three hours per 
week of local programming and that it complied with requirements 
applicable to full-power stations that apply to Class A stations. The 
Commission concluded that there were significant equities in favor of 
protecting the approximately 12 stations in this category that 
outweighed the limited adverse impact that such protection would have 
on its flexibility to repurpose spectrum for flexible use through the 
incentive auction. The Commission also recognized that, having first 
filed a Class A construction permit application prior to February 22, 
2012, the licensees of these stations may not have realized that the 
stations were not entitled to mandatory protection under the Spectrum 
Act. Conversely, the Commission explained, Abacus and Videohouse did 
not certify continuing compliance with Class A requirements until after 
the enactment of the Spectrum Act.
    6. Abacus, Videohouse, and the licensees of two other stations in 
the out-of-core Class A-eligible LPTV category that did not seek to 
obtain Class A status until after February 22, 2012, seek 
reconsideration of the Reconsideration Order. Petitioners also attached 
to the Petition a copy of each of their Petitions for Eligible Entity 
Status (``Eligibility Petition'') filed July 9, 2015 in GN Docket No. 
12-268 in response to the Media Bureau's June 9, 2015 Public Notice. 
They argue that the Commission erred procedurally by dismissing the 
2014 Petitions, and exceeded its authority by extending protection to a 
different group of Class A stations that had not asked for 
reconsideration. On the merits, they contend that their stations are no 
different from the out-of-core Class A-eligible LPTV stations that the 
Commission decided to protect, and that extending protection to their 
stations would not adversely impact the Commission's repacking 
flexibility. They claim the equities weigh in favor of protecting 
stations that obtained a Class A license by the Pre-Auction Licensing 
Deadline (May 29, 2015) and met other auction-related filing 
requirements. For the reasons below, we affirm our action in the 
Reconsideration Order.

III. Discussion

    7. Petitioners' claims are both procedurally and substantively 
defective and we therefore dismiss their claims and, in the 
alternative, deny them on the merits.

A. Petitioners' Claims Are Procedurally Improper

    8. First, as we explained in the Reconsideration Order, the 
Commission squarely raised the question of which broadcast television 
facilities to protect in the repacking process in the Incentive Auction 
NPRM, but none of the Petitioners presented facts or arguments as to 
why its station should be protected until after the Commission adopted 
the

[[Page 8845]]

Incentive Auction R&O, although all of the facts and arguments they now 
present existed beforehand. While Videohouse notes that its owner on 
behalf of a related entity (Bruno Goodworth Network, Inc.) filed reply 
comments in response to the Incentive Auction NPRM, those comments did 
not pertain to out-of-core Class A-eligible LPTV stations generally or 
to its station in particular. Videohouse also claims that it discussed 
out-of-core Class A-eligible LPTV stations with Commission staff at an 
industry forum in April 2013, but Videohouse never made these 
statements part of the record of this proceeding until July 2015, over 
a year after adoption of the Incentive Auction R&O. Abacus refers to an 
email it sent Commission staff in March 2014, but Abacus never filed 
this email in the record, and the first reference to it in the record 
was not until July 2015. In contrast, Venture submitted comments in 
response to the Incentive Auction NPRM regarding the particular facts 
and circumstances that it maintained--and the Commission agreed--
justified protection of KHTV-CD. Contrary to Petitioners' arguments, 
therefore, the Commission did not err in dismissing the 2014 Petitions, 
and the current Petition likewise is subject to dismissal. In addition, 
the facts and arguments put forth in the Petition are repetitious with 
regard to Abacus, Videohouse, and WMTM, each of whom sought 
reconsideration of the Incentive Auction R&O: The Commission considered 
and rejected those facts and arguments in the Reconsideration Order. 
Asiavision, the previous licensee of WIAV-CD, now licensed to WMTM, 
filed informal comments in response to the 2014 Petitions.
    9. For reasons similar to those on which we relied in the 
Reconsideration Order, we also reject Petitioners' new argument that, 
notwithstanding their failure to advocate protection of their stations 
in a timely manner, their claims were procedurally proper because other 
parties generally advocated protection of Class A stations in response 
to the Incentive Auction NPRM. Contrary to Petitioners' argument, no 
commenter generally advocated discretionary protection of out-of-core 
Class A-eligible stations. With the exception of the Venture Reply 
Comments, which pertain specifically to KHTV-CD only, none of the 
comments in response to the Incentive Auction NPRM cited by Petitioners 
address out-of-core Class A-eligible LPTV stations at all. As we 
previously explained, Venture put forth particular facts in response to 
the Incentive Auction NPRM demonstrating why KHTV-CD should be afforded 
discretionary protection. The decision to protect KHTV-CD was based in 
part on this evidence. Petitioners now argue that, like KHTV-CD, each 
of their stations faced ``unique'' ``hardships and obstacles.'' But as 
we noted in the Reconsideration Order, Petitioners did not attempt to 
demonstrate in response to the Incentive Auction NPRM why they should 
be afforded discretionary protection. Venture's presentation regarding 
KHTV-CD's unique circumstances does not bear at all on Petitioners' 
stations and did not constitute an ``opportunity [for the Commission] 
to pass'' on the facts and arguments that Petitioners now rely on. We 
note that whether the Commission had an ``opportunity to pass'' on an 
issue is not the relevant statutory test. Rather, Section 405(a) 
provides that ``no evidence other than newly discovered evidence, 
evidence which has become available only since the original taking of 
evidence, or evidence which the Commission or designated authority 
within the Commission believes should have been taken in the original 
proceeding shall be taken on any reconsideration.'' Additionally, as 
discussed below, Petitioners fail to meet the test for discretionary 
protection adopted in the Reconsideration Order.
    10. While the rules allow petitioners to raise facts or arguments 
on reconsideration that have not previously been presented under 
certain circumstances, Petitioners have not demonstrated such 
circumstances, and their reliance on section 1.429(b)(1) is therefore 
misplaced. Contrary to Petitioners' claims, the July 9, 2015 deadline 
for submission of the Pre-Auction Technical Certification Form is not a 
relevant event that has occurred since their last opportunity to 
present facts or arguments. That date would be relevant only if we 
agreed with their challenges. As we do not, the July 9, 2015 deadline 
is not a relevant circumstance for purposes of section 1.429(b)(1). We 
also reject Petitioners' argument that the public interest would be 
served by reconsideration. The Commission has a ``well-established 
policy of not considering matters that are first raised on 
reconsideration,'' premised on the statutory goals of ``procedural 
regularity, administrative efficiency, and fundamental fairness.'' 
Those goals would not be served by allowing Petitioners to sit back and 
hope for a decision in their favor, and only then, when the decision is 
adverse to them, to offer evidence of why they should be treated 
differently. We also reject Petitioners' claim that section 1.429(b)(2) 
is met here because they could not have known that the Commission would 
reject their Petition and extend protection to a different group of 
Class A stations. As explained below, our decision in the 
Reconsideration Order to extend protection to certain stations but not 
to Petitioners' was a logical outgrowth of the proposals in the 
Incentive Auction NPRM and consistent with our statutory authority. 
Accordingly, it does not furnish a basis for reconsideration under 
section 1.429(b)(2).

B. Petitioners' Claims Fail on Substantive Grounds

    11. As an alternative and independent ground for our decision, we 
consider and deny Petitioners' claims that discretionary protection of 
their stations is warranted. Petitioners argue that the Commission 
failed to distinguish their efforts to demonstrate compliance with the 
regulatory requirements applicable to Class A stations from those of 
the out-of-core Class A-eligible LPTV stations that it decided to 
protect. On the contrary, we clearly explained in the Reconsideration 
Order that KHTV-CD and the other stations in the protected group filed 
applications for a Class A construction permit (FCC Form 302-CA) before 
February 22, 2012, and Petitioners did not. The Form 302-CA requires 
the applicant to certify that it ``does, and will continue to'' meet 
all of the full power and Class A regulatory requirements that are 
applicable to Class A stations, subject to significant penalties for 
willful false statements. Thus, as of February 22, 2012, the date 
established by Congress for determining which stations are entitled to 
repacking protection, these stations had on file with the Commission 
certifications that they were operating like Class A stations. 
Petitioners concede that they did not file a Form 302-CA application 
before February 22, 2012. Videohouse identifies no reasonable basis for 
its claim that it believed it could not file a Form 302-CA application 
in March 2009 because it was not certain the in-core channel it 
proposed in its LPTV construction permit application was feasible. With 
respect to Abacus and WMTM, we previously addressed their claims that 
Commission staff advised them not to file a Form 302-CA until after 
their in-core facilities were licensed as LPTV stations. In addition, 
to the extent these entities relied on informal staff advice, they did 
so at their own risk. KMYA offers no explanation for failing to file a 
Form 302-CA application before February 22, 2012. Their other pre-
February 22, 2012 filings on which they rely do not

[[Page 8846]]

demonstrate that their stations were operating like Class A stations. 
Unlike the Form 302-CA, the documents Petitioners placed in their 
public inspection files before February 22, 2012 did not certify that 
their stations were in compliance with the full power requirements that 
apply to Class A stations. Petitioners claim to have met one 
requirement applicable to full power stations: The airing of children's 
programming. In the cases of Abacus and Videohouse, however, the 
required children's television reporting forms (FCC Form 398) were not 
filed until the second half of 2012, purporting to cover periods dating 
back to 2006. Moreover, Videohouse's FCC Forms 398 concede that WOSC-CD 
did not comply with certain children's television requirements because 
the station ``has not filed its application for a Class A license.'' In 
the case of Petitioner WMTM, the FCC Forms 398 in WIAV's online public 
file commence in the first quarter of 2013, and say nothing as to 
whether it was complying with children's programming requirements as of 
February 22, 2012. Also unlike the Form 302-CA, the certifications 
contained in these documents as to compliance with regulatory 
requirements that apply to Class A stations only were voluntary and 
unenforceable, making them less reliable indicators as to whether the 
stations were providing the service required of a Class A station as of 
February 22, 2012. In addition, Form 302-CA must be filed with the 
Commission, whereas there is no means to verify when Petitioners' 
certifications were placed in their public files. In their most recent 
filing, Petitioners for the first time claim that KKYK-CD obtained a 
Class A construction permit on February 16, 2012, prior to the 
statutory enactment date. This claim is unsupported by an examination 
of the Commission's records. Petitioners' apparent attempt to recast 
the history of KKYK-CD, like their efforts to demonstrate that they 
were acting like Class A stations prior to February 22, 2012 based on 
post-dated public file submissions, illustrate the reasonableness of 
the Commission's bright-line test based on the filing of FCC Form 302-
CA.
    12. Contrary to Petitioners' arguments, it was reasonable for us to 
limit discretionary repacking protection and auction eligibility to 
out-of-core Class A-eligible LPTV stations that filed a Form 302-CA 
application before February 22, 2012, because that is the date 
established by Congress for determining which stations are entitled to 
repacking protection. A station that filed a Form 302-CA application 
before February 22, 2012, demonstrated that it sought to avail itself 
of Class A status as of that date, and thus warranted protection and 
auction eligibility under the statutory scheme. Conversely, Petitioners 
neither requested Class A status, nor demonstrated that they were 
providing Class A service, until after passage of the Spectrum Act 
created the potential for Class A status to yield substantial financial 
rewards through auction participation--over ten years after the CBPA 
made them eligible for such status. On the date of enactment of the 
Spectrum Act, Petitioners operated LPTV stations. Congress did not 
include LPTV stations within the definition of broadcast television 
licensees entitled to repacking protection, and protecting them as a 
matter of discretion would significantly constrain the Commission's 
repacking flexibility. In addition, Petitioners' stations are 
particularly likely to impact repacking flexibility because they are 
located in congested markets such as Pittsburgh and Washington, DC 
where the constraints on the Commission's ability to repurpose spectrum 
through the auction will be greater than in less congested markets. 
Accordingly, we reject the comments of the LPTV Coalition and WatchTV 
alleging that the Petitioners' four stations would have little or no 
impact on repacking flexibility. While some of the protected Class A 
stations also are located in congested markets, the impact on repacking 
flexibility is just one of the factors we must consider.
    13. While Petitioners are correct that there was no deadline for 
out-of-core Class A-eligible LPTV stations to file an application for a 
Class A construction permit (or an application for a license to cover a 
Class A facility), a Class A-eligible LPTV station with a Form 302-CA 
application pending or granted as of February 22, 2012 demonstrated 
objective steps, prior to enactment of the Spectrum Act, to avail 
itself of Class A status, subject to all of the regulatory requirements 
that status entails. Prior to February 22, 2012, these stations 
invested in broadcast television facilities based on the expectation 
that the facilities would receive protection as ``primary'' Class A 
stations. In contrast, Petitioners only sought Class A status after 
Congress designated such stations as eligible to participate in the 
auction--and after the date set by Congress to establish entitlement to 
repacking protection and auction eligibility.
    14. We also reject Petitioners' argument that, regardless of 
whether they demonstrated that their stations were acting like Class A 
stations as of February 22, 2012, discretionary protection is warranted 
based on their overall efforts to achieve Class A status. Soon after 
enactment of the CBPA in 1999, the Commission warned that ``it would be 
in the best interest of qualified LPTV stations operating outside the 
core to try to locate an in-core channel now, as the core spectrum is 
becoming increasingly crowded and it is likely to become increasingly 
difficult to locate an in-core channel in the future.'' Unlike KHTV-CD, 
which demonstrated that it commenced efforts to achieve Class A status 
soon after enactment of the CBPA, Petitioners are silent as to any such 
efforts before 2009, almost a decade after enactment of the CBPA. 
Videohouse claims that it had to wait until the DTV transition ended in 
2009 to seek a new channel because it operated in a ``highly congested 
market'' (Pittsburgh), yet Venture demonstrated efforts to find a new 
channel for KHTV-CD in the even more congested Los Angeles market 
despite the DTV transition. Furthermore, as discussed above, the 
evidence presented by Petitioners regarding their efforts to obtain 
Class A status between 2009 and February 22, 2012 does not demonstrate 
that they acted like Class A stations during that time period. Granting 
discretionary protection based on Petitioners' initiation of Class A 
service after February 22, 2012 would not serve Congress's goal of 
preserving full power and Class A service as of the Spectrum Act's 
enactment date. We also reject KMYA's claim that it is entitled to 
protection under the terms of the Incentive Auction R&O and CBPA. KMYA 
is not entitled to protection under section 336(f)(6)(A) of the CBPA 
because it did not file an application for a Class A authorization 
(either a Class A license or a Class A construction permit) with its 
application for a construction permit to move to an in-core channel. 
Rather, KMYA did not file an application for a Class A authorization 
until July 2012, after enactment of the Spectrum Act.
    15. We reject Petitioners' claim that the equities weigh in favor 
of granting discretionary protection to stations that obtained a Class 
A license by the Pre-Auction Licensing Deadline (May 29, 2015) and met 
other auction-related filing requirements. Petitioners have 
conveniently found a line that would protect their stations, but the 
Commission never linked the May 29, 2015 Pre-Auction Licensing Deadline 
to repacking protection for out-of-core Class A-eligible LPTV stations. 
On the contrary, the Commission plainly stated

[[Page 8847]]

that it would not protect such stations based on their obtaining Class 
A licenses by that deadline. By contrast, the line the Commission chose 
is tied directly to the date established by Congress for repacking 
protection. As discussed above, Petitioners have not shown that their 
stations provided the service required of Class A stations before that 
date, or that they took steps to avail themselves of Class A status 
until it was clear that doing so could yield substantial financial 
rewards through auction participation. Accordingly, we reject the 
contention that the equities weigh in favor of granting the relief 
Petitioners seek.
    16. Petitioners attempt to buttress their argument for 
discretionary protection by questioning the validity of the 
Commission's statement that approximately 100 stations would be 
eligible for protection if it protected out-of-core Class A-eligible 
LPTV stations that obtained Class A licenses after February 22, 2012, 
as Petitioners advocate. But that statement does not bear on the 
decisional issue presented by the Petition: The reasonableness of the 
Commission's determination not to protect Petitioners' four stations. 
As set forth above, the equities do not weigh in favor of granting such 
protection, regardless of how many stations fell into the relevant 
category at the time the Incentive Auction R&O was adopted.
    17. In any event, Petitioners' complaints regarding the 
Commission's estimate--that it never provided a list of the stations, 
and that its explanation of how interested parties could identify the 
stations is unworkable--lack merit. Interested parties were free to 
compile their own station lists from publicly available data. We 
explained in the Reconsideration Order that the stations can be 
identified by comparing the publicly available list of LPTV stations 
whose certifications of Class A eligibility were accepted by the 
Commission in 2000 to the public records in the Commission's 
Consolidated Database System (CDBS) to determine which LPTV stations 
were on out-of-core channels and obtained authorizations for in-core 
channels, and then determining when the station filed an application 
for a license to cover a Class A facility. Those stations (both Class A 
and Class A-eligible LPTV stations) that did not file such an 
application by February 22, 2012 (with the exception of KHTV-CD) fall 
into the category identified by the Commission. Petitioners mistakenly 
argue that the 2000 list cannot be compared to the CDBS records because 
many stations have converted from analog to digital using a digital 
companion channel since 2000 and were assigned a new digital facility 
ID number and call sign in CDBS that cannot be matched with the 2000 
list. The new digital facility ID numbers are linked to the former 
analog facility ID numbers in CDBS, meaning that any change in facility 
ID numbers does not impede matching stations to the 2000 list. In 
addition, despite Petitioners' claims, Commission staff has never 
deleted an underlying analog facility ID number associated with a 
station. Similarly, while a call sign may be ``deleted'' through the 
entry of a ``D'' before a cancelled or revoked station's call sign, the 
call sign nonetheless remains in the station's record in CDBS. 
Moreover, after filing the Petition, Petitioners developed their own 
list of stations based on analysis of the 2000 list and CDBS. 
Petitioners' November 2015 List confirms that any interested party 
could have conducted the same exercise as the Commission using 
publicly-available data. Although Petitioners' analysis does not match 
the Commission's estimate of approximately 100 stations because 
Petitioners sought to demonstrate something different, even their 
analysis does reflect that there are at least 55 stations in the 
category the Commission defined.
    18. We also reject Petitioners' claim that our ``refus[al] to 
consider'' their claims on procedural grounds, while at the same time 
extending discretionary protection to other stations that never filed 
for reconsideration, arbitrarily discriminated against them. As an 
initial matter, we did not ``refuse to consider'' Petitioners' claims. 
While we dismissed certain claims on procedural grounds, we went on to 
consider all of their claims (including those we dismissed) on the 
merits. In any event, the Commission acted within its authority in 
dismissing or denying Abacus's and Videohouse's 2014 Petitions in the 
Reconsideration Order, but extending protection to other stations that 
did not ask for reconsideration. First, the Commission did not 
reconsider the Incentive Auction R&O in clarifying that out-of-core 
Class A-eligible stations that had a Class A construction permit 
application pending or granted as of February 22, 2012 and now hold a 
Class A license are not entitled to mandatory repacking protection. The 
Commission may act on its own motion to issue a declaratory ruling 
removing uncertainty at any time. The Commission's authority to issue 
declaratory rulings to remove uncertainty is well-established. The lack 
of a citation to Section 1.2 of the rules in the Reconsideration Order 
did not undermine the Commission's authority to issue a declaratory 
ruling. Petitioners are mistaken that there was no ambiguity in the 
Incentive Auction R&O that required clarification. The Incentive 
Auction R&O explained that stations would be entitled to mandatory 
protection if they held a Class A license or had a ``Class A license 
application'' on file as of February 22, 2012. The Incentive Auction 
R&O was ambiguous, however, as to whether a ``Class A license 
application'' meant only an application for a license to cover a Class 
A facility or whether it also meant a Class A construction permit 
application. Examination of the record also reflected uncertainty as to 
the scope of mandatory protection under the terms of the Incentive 
Auction R&O. The Reconsideration Order clarified this ambiguity.
    19. Second, in extending discretionary protection to these 
stations, the Commission acted well within its authority to act on 
reconsideration. The Commission is ``free to modify its rule on a 
petition for reconsideration as long as the modification was a `logical 
outgrowth' of the earlier version of the rule, . . . and provided the 
agency gave a reasoned explanation for its decision that is supported 
by the record.'' Here, the issue of which Class A stations to protect 
in the repacking process, either as required by the Spectrum Act or as 
a matter of discretion, was squarely within the scope of the Incentive 
Auction NPRM. There is no support for Petitioners' contention that the 
Commission on reconsideration is limited to either granting or denying 
the specific relief requested in a petition for reconsideration. The 
D.C. Circuit rejected this claim in Globalstar. Petitioners attempt to 
distinguish Globalstar by arguing that the petitioner in that case 
requested broadly that the Commission ``reverse'' its decision, whereas 
Abacus and Videohouse asked the Commission to extend discretionary 
protection only to their stations in the 2014 Petitions. This is a 
distinction without a difference. The 2014 Petitions asked the 
Commission to reconsider the scope of discretionary protection for out-
of-core Class A-eligible LPTV stations that now hold Class A licenses. 
Both Abacus and Videohouse stated in sweeping terms that the Commission 
``should exercise its discretion to ensure that similarly situated 
entities are not subject to arbitrarily disparate treatment.'' In 
response, the Commission appropriately reconsidered the scope of 
discretionary protection for stations in that category and extended 
protection to a number that it concluded

[[Page 8848]]

are similarly situated to KHTV-CD, the station in the same category 
that it already had accorded such protection. Because the Commission 
addressed the specific issue that was presented by the 2014 Petitions, 
the suggestion that the Commission exercised ``unbounded discretion'' 
on reconsideration lacks merit.
    20. Finally, Petitioners complain that the Commission ``[w]ithout 
any explanation'' included WDYB-CD on the June 30, 2015 list of 
eligible stations although, like Petitioners, WDYB-CD's current 
licensee, Latina, did not file an application for a license to cover a 
Class A facility until after February 22, 2012 or advocate for 
protection of its station until after adoption of the Incentive Auction 
R&O. WDYB-CD was included on the June 30, 2015 list in light of our 
decision to protect stations that ``hold a Class A license today and 
that had an application for a Class A construction permit pending or 
granted as of February 22, 2012.'' Further examination of the record 
reveals, however, that WDYB-CD did not have an application for a Class 
A authorization pending or granted as of February 22, 2012. WDYB-CD's 
prior licensee obtained a Class A construction permit prior to that 
date, but the permit expired in December 2011. Instead of constructing 
the Class A station, Latina filed an application for an LPTV 
construction permit for WDYB-CD in February 2011, which superseded the 
Class A construction permit. The LPTV application did not require a 
certification that WDYB-CD was and would continue to meet all of the 
full power and Class A regulatory requirements that are applicable to 
Class A stations. WDYB-CD was constructed and operated as an LPTV 
station until November 2012. Thus, Latina was not pursuing Class A 
status before the Commission as of February 22, 2012.
    21. We disagree with Latina that WDYB-CD properly was included in 
the eligible stations list simply because it had a Class A 
authorization prior to February 22, 2012, regardless of its status as 
of that date. Latina's argument that our authority on reconsideration 
is limited to granting or denying the relief requested by Petitioners 
fails for the same reasons as Petitioners' arguments regarding our 
authority to act on reconsideration. We also find unpersuasive Latina's 
recent estoppel and notice arguments. Latina maintains that it relied 
on the standard the Commission announced in the Second Order on 
Reconsideration, its inclusion in eligibility notices beginning in June 
2015, and the Commission's statements regarding WDYB-CD in litigation. 
Latina's reliance on the Second Order on Reconsideration was misplaced: 
As Petitioners point out, the Commission specifically rejected Latina's 
argument that it was entitled to protection because it was similarly 
situated to Petitioners, and Latina never argued that it was entitled 
to protection on any other basis until filing its 1/22 Ex Parte Letter. 
The eligibility notices that Latina cites emphasized that they were 
neither final nor intended to decide eligibility issues. For example, 
the June 9, 2015 public notice stated that it was ``not intended to 
pre-judge [the] outcome'' of pending reconsideration petitions 
regarding the scope of protection, a June 30, 2015 public notice 
emphasized that ``the list of stations included in the baseline data 
released today is not the final list of stations eligible for repacking 
protection,'' and the most recent public notice listing eligible 
stations noted the possibility of revisions to the baseline data. 
Finally, before the D.C. Circuit, the Commission merely pointed out 
that, unlike Petitioners' stations, Class A construction permits had 
been obtained for WDYB-CD prior to February 22, 2012, without stating 
that this factual distinction entitled WDYB-CD to protection under the 
standard in the Second Order on Reconsideration. We therefore conclude 
that WDYB-CD is not entitled to discretionary repacking protection or 
eligible to participate in the reverse auction.
    22. In the Incentive Auction Report and Order, and again in the 
Second Reconsideration Order, the Commission determined that if a Class 
A station obtains a license after February 22, 2012, but is displaced 
by the auction repacking process, it will be eligible to file for a new 
channel in one of the first two filing opportunities for alternate 
channels. WDYB-CD would be eligible to file such a displacement 
application. Previously, we delegated authority to the Media Bureau to 
determine whether such stations should be allowed to file during the 
first or the second filing opportunity. We now direct the Media Bureau 
to allow such stations to file during the first filing opportunity. In 
the event of mutual exclusivity with an application from a full power 
or Class A station entitled to repacking protection the application of 
the full power or Class A station will prevail.
    23. This document does not contain new or modified information 
collection requirements subject to the Paperwork Reduction Act of 1995 
(PRA), Public Law 104-13. In addition, therefore, it does not contain 
any new or modified information collection burden for small business 
concerns with fewer than 25 employees, pursuant to the Small Business 
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 
3506(c)(4).
    24. The Commission will not send a copy of this Order pursuant to 
the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A) because no 
rules are being adopted by the Commission.

IV. Ordering Clauses

    25. It is ordered that, pursuant to section 405 of the 
Communications Act of 1934, as amended, 47 U.S.C. 405, and section 
1.429 of the Commission's rules, 47 CFR 1.429, the Petition for 
Reconsideration filed by The Videohouse, Inc., Abacus Television, WMTM, 
LLC, and KMYA, LLC is dismissed and/or denied to the extent described 
herein.
    26. It is further ordered that WDYB-CD, Daytona Beach, Florida, 
which is licensed to Latina Broadcasters of Daytona Beach, LLC, is not 
entitled to discretionary repacking protection or eligible to 
participate in the reverse auction.
    27. It is further ordered that this Order on Reconsideration shall 
be effective upon release.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 2016-03801 Filed 2-22-16; 8:45 am]
 BILLING CODE 6712-01-P