[Federal Register Volume 88, Number 204 (Tuesday, October 24, 2023)]
[Rules and Regulations]
[Pages 72968-72970]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-23466]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 73

[MB Docket No. 21-221; RM-11908; DA 23-990; FR ID 180832]


Television Broadcasting Services Las Vegas, Nevada

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: On May 21, 2021, the Media Bureau, Video Division (Bureau) 
issued a Notice of Proposed Rulemaking (NPRM) in response to a petition 
for rulemaking filed by Scripps Broadcasting Holdings, LLC (Scripps or 
Licensee), the licensee of KTNV-TV, channel 7, Las Vegas, Nevada, 
requesting the substitution of channel 26 for channel 13 at Las Vegas, 
in the Table of TV Allotments. King Kong Broadcasting, Inc. (King 
Kong), the

[[Page 72969]]

licensee of low power television station KGNG-LD on channel 26 at Las 
Vegas, filed opposition comments and counter-proposed that channel 26 
instead be allotted as a new vacant channel at Las Vegas. For the 
reasons set forth in the Report and Order referenced below, the Bureau 
denies King Kong's opposition and counter-proposal, amends FCC 
regulations to substitute channel 26 for channel 13 at Las Vegas, and 
directs Scripps to file an application for a construction permit for 
channel 26.

DATES: Effective November 24, 2023.

FOR FURTHER INFORMATION CONTACT: Joyce Bernstein, Media Bureau, 
[email protected].

SUPPLEMENTARY INFORMATION: The proposed rule was published at 86 FR 
32011 on June 16, 2021. In its rulemaking petition, Scripps explained 
that digital VHF channels have propagation characteristics that allow 
undesired signals and noise to be receivable at relatively far 
distances and also result in nearby electrical devices causing signal 
interference, that it has received many complaints from viewers unable 
to receive a reliable signal on channel 13, and that only five persons 
were predicted to lose service under the proposed channel substitution. 
In its Opposition, King Kong acknowledged that generally full-power 
television stations have priority over secondary LPTV stations in terms 
of channel allotments, but asserted that Scripps' proposal would not 
serve the public interest because it would displace KGNG-LD on channel 
26. In support, King Kong stated that its principal resides in Las 
Vegas and as a result, King Kong has ascertained the needs of the 
community and curated programming options designed to serve the entire 
community, including programming which it characterizes as targeted 
towards the growing and underserved ethnic minority populations in the 
area. According to King Kong, if the Bureau were to grant Scripps' 
Petition, King Kong would be left with the option of filing for 
displacement to move to channel 13 once it is vacated by KTNV-TV or 
cease operations, and if it chose to seek displacement, it would be 
subject to competing applications and possibly still be forced to cease 
operations. Further, according to King Kong, even if it were ultimately 
granted a construction permit to operate the station on channel 13 or 
another VHF channel, KGNG-LD might be precluded from participating in 
the new ATSC 3.0 standard that would serve mobile users. Alternatively, 
King Kong noted that if the Commission grants its counterproposal and 
allots channel 26 to Las Vegas as a new allotment, in order to obtain a 
construction permit for UHF channel 26 King Kong would either have to 
be the sole applicant for the channel--an unlikely situation given 
Scripps' interest in the channel--or the winning bidder in a future 
Commission auction. Therefore, King Kong contended that the public 
interest would be better served if KGNG-LD remains on channel 26 and 
Scripps instead selects a different UHF channel for KTNV-TV. According 
to King Kong, there are at least eight other equivalent UHF channels 
available for KTNV-TV's use that are currently occupied by other LPTV 
stations and that while one of these LPTV stations would be displaced 
if Scripps sought to move to its channel, none of these stations 
provide the level of programming options offered by KGNG-LD or have 
principals with the same level of longstanding ties to the Las Vegas 
community as it principal possesses. Finally, King Kong alleged that 
Scripps targeted KGNG-LD because it is a strong competitor in Las Vegas 
and as a way of striking back at King Kong because of disputes that 
have arisen over the years between King Kong and KTNV-TV employees. In 
reply, Scripps stated that as an LPTV station, KGNG-LD has secondary 
status and is therefore subject to interference from and displacement 
by full power stations, and any Commission action ordering Scripps to 
displace one of the other LPTV stations contravenes longstanding 
precedent against making licensing decisions based solely on 
programming offered on KGNG-LD. In addition, King Kong's argument that 
preserving its low power service on channel 26 would enable it to 
deliver ATSC 3.0 services in the future should be disregarded because 
the Bureau has ruled in other channel substitution rulemaking 
proceedings that the impact of a proposed channel substitution on 
delivery of ATSC 3.0 service is not a factor as that service is still 
in the early stages of development and the availability of consumer 
devices remains limited. Scripps also argued that the claim that 
Scripps' decision to displace KGNG is motivated by some sort of animus 
towards King Kong is vague, unsupported, and irrelevant, and appears to 
be based on disputes between King Kong and the prior owner of KTNV-TV. 
In fact, Scripps states that it sought to work with King Kong given the 
displacement and offered to donate Scripps' channel 13 equipment to 
King Kong upon moving KTNV-TV to channel 26 and maintain, at Scripps' 
expense, a temporary channel 13 facility for King Kong's use at KTNV-
TV's downtown Las Vegas studio and tower facility. With respect to King 
Kong's counterproposal that channel 26 be allotted as a vacant channel 
at Las Vegas, Scripps observed that its proposal and King Kong's 
counterproposal are indistinguishable based on the Commission's 
allotment priorities since both propose Las Vegas, a community that is 
already well-served, and that accordingly, any determination must be 
made based on the Commission's exercise of its general discretion to 
serve the public interest, and the Commission has routinely granted 
petitions such as Scripps' even when displacing LPTV stations. Scripps 
also points out that King Kong is free to submit a rulemaking petition 
for a new channel allotment on any of the UHF channels it has 
identified as available in Las Vegas. In reply, King Kong asserts 
Scripps provided no engineering explanation why it needs to move to 
channel 26, as opposed to another UHF channel, and reaffirmed its 
position that Scripps is targeting KGNG-LD as a means of removing a 
strong competitor and that the Commission must inquire into Scripps' 
motive before granting the Petition. It also reiterated that while LPTV 
stations are secondary, a harder look should be afforded to any 
proposal that would take service from viewers of low power stations 
such as KGNG-LD.
    The Bureau denies King Kong's Opposition and Counterproposal and 
concludes that Scripps' proposal to substitute channel 26 for channel 
13 at Las Vegas would serve the public interest and meets the 
Commission's technical and interference rules. It is axiomatic that 
LPTV stations, such as KGNG-LD, have secondary status and as such may 
not cause objectionable interference to existing full power stations, 
and must yield to or accept interference from existing full power 
stations that choose to modify where new interference will occur. 
Moreover, with respect to King Kong's request that the Bureau disregard 
KGNG-LD's secondary status and protect it from being displaced based on 
its specific programming, in general, section 326 of the Communications 
Act and the First Amendment of the U.S. Constitution prohibit the 
Commission from overseeing or regulating programming format. While King 
Kong's service to its community and the wide variety of programming it 
airs may be commendable, it is not justification to provide KGNG-LD 
greater protection than it is permitted under its secondary LPTV 
license or, as King Kong has requested, require Scripps to propose a

[[Page 72970]]

different channel and instead displace other LPTV stations because 
those stations are either purportedly silent or the programming they 
are providing is, in King Kong's opinion, not as noteworthy as KGNG-
LD's programming. Doing so would not only be contradictory with the 
Act, the First Amendment, and Commission precedent, but King Kong's 
argument with regards to its public service completely ignores efforts 
being undertaken by other stations in the market. The Bureau also finds 
King Kong's concerns related to its displacement and potential that 
viewers may entirely lose the station to be overstated and not grounds 
for denial of the Petition since upon release of this Report and Order, 
King Kong will be eligible to file a displacement application for 
channel 13 or any other available channel. Commission records show that 
none of the other LPTV stations in Las Vegas are presently affected by 
pending or granted full power rulemaking petitions or full power 
modification applications, and because displacement applications are 
cut-off the day they are filed and major modifications for LPTV 
stations are frozen, it is highly unlikely that King Kong would face a 
competing application. In addition, while King Kong complains that 
Scripps did not provide any engineering data to refute the availability 
of the eight other UHF channels identified by King Kong, Scripps is not 
required to do so, and is free to choose any channel as a substitute 
channel that complies with our technical and community coverage 
requirements. With respect to KGNG-LD's future delivery of ATSC 3.0 
services, the Bureau has consistently refused to consider this as a 
factor in channel substitution rulemaking proceedings and it does not 
justify altering KGNG-LD's status as a secondary service. The Bureau 
also finds King Kong's claim that Scripps chose to propose to move to 
channel 26, rather than another UHF channel, solely to vex King Kong 
and its principal to be conjecture and unfounded. Not only is it 
difficult to see how this unidentified conduct could be attributed to 
Scripps since it appears to have occurred before Scripps acquired the 
Station, it is at odds with Scripps' offer to assist King Kong in 
constructing a low power facility on channel 13, a fact that King Kong 
does not dispute. The Bureau makes clear, however, that its decision is 
in no way based on Scripps' offer to assist moving KGNG-LD to a 
displacement channel 13. The Bureau also denies King Kong's 
counterproposal. As Scripps points out, both parties propose Las Vegas 
so their proposals cannot be distinguished under the Commission's 
television allotment policies. In addition, Las Vegas already has seven 
allotted channels and under the Commission's allotment policies, which 
prioritize assigning two television channels to a community, is not 
entitled to an additional eighth channel at the expense of Scripps' 
channel substitution request, and as Scripps points out, the Bureau has 
acknowledged the public interest benefits associated with relocating a 
full power station from a VHF to a UHF channel. Moreover, if King Kong 
wishes to operate a full power television station in Las Vegas, it may 
file a petition for rulemaking to drop-in one of the eight UHF channels 
that it has identified as being available for Scripps' use in Las 
Vegas. The Bureau also notes that ten individuals or entities filed 
letters in the Commission Licensing Management System in July, August, 
and September 2021, opposing the proposed channel substitution, but did 
not serve Scripps. Under the Commission's rules, any comment that has 
not been served on the petitioner constitutes an ex parte presentation 
and shall not be considered as part of the proceeding. Nevertheless, 
because these letters merely reiterate arguments raised by King Kong, 
they are addressed as part of the Bureau's findings related to King 
Kong's Opposition.
    This is a synopsis of the Commission's Report and Order, MB Docket 
No. 21-221; RM-11908; DA 23-990, adopted October 18, 2023, and released 
October 18, 2023. The full text of this document is available for 
download at https://www.fcc.gov/edocs. 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).
    This document does not contain information collection requirements 
subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In 
addition, therefore, it does not contain any proposed 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). Provisions of the 
Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, do not apply to 
this proceeding.
    The Commission will send a copy of this Report and Order in a 
report to be sent to Congress and the Government Accountability Office 
pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

List of Subjects in 47 CFR Part 73

    Television.

Federal Communications Commission.
Thomas Horan,
Chief of Staff, Media Bureau.

Final Rule

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR part 73 as follows:

PART 73--RADIO BROADCAST SERVICE

0
1. The authority citation for part 73 continues to read as follows:

    Authority:  47 U.S.C. 154, 155, 301, 303, 307, 309, 310, 334, 
336, 339.


0
2. In Sec.  73.622(j), amend the table under Nevada by revising the 
entry for Las Vegas, to read as follows:


Sec.  73.622  Digital television table of allotments.

* * * * *
    (j) * * *

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                 Community                           Channel No.
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                                * * * * *
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                                 NEVADA
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                                * * * * *
Las Vegas.................................  2, 7, * 11, 16, 22, 26, 29
 
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[FR Doc. 2023-23466 Filed 10-23-23; 8:45 am]
BILLING CODE 6712-01-P