Expanding the Economic and Innovation Opportunities of Spectrum Through Incentive Auctions, 8843-8848 [2016-03801]
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Dated: February 8, 2016.
L.L. Fagan,
Admiral, U.S. Coast Guard, Commander, First
Coast Guard District.
do discuss the effects of this rule
elsewhere in this preamble.
F. Environment
We have analyzed this rule under
Department of Homeland Security
Management Directive 023–01 and
Commandant Instruction M16475.lD,
which guides the Coast Guard in
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(NEPA) (42 U.S.C. 4321–4370f), and
have made a determination that this
action is one of a category of actions
which do not individually or
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the human environment. This rule
simply promulgates the operating
regulations or procedures for
drawbridges. This action is categorically
excluded from further review, under
figure 2–1, paragraph (32)(e), of the
Instruction.
Under figure 2–1, paragraph (32)(e), of
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List of Subjects in 33 CFR Part 117
Bridges.
For the reasons discussed in the
preamble, the Coast Guard amends 33
CFR part 117 as follows:
PART 117—DRAWBRIDGE
OPERATION REGULATIONS
1. The authority citation for part 117
continues to read as follows:
■
Authority: 33 U.S.C. 499; 33 CFR 1.05–1;
Department of Homeland Security Delegation
No. 0170.1.
2. Revise § 117.585(a) to read as
follows:
■
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§ 117.585
Acushnet River.
(a) The New Bedford-Fairhaven RT–6
Bridge, mile 0.0 will be opened
promptly, provided proper signal is
given, on the following schedule:
(1) On the hour between 6 a.m. and
10 a.m. inclusive.
(2) At a quarter past the hour between
11:15 a.m. and 6:15 p.m. inclusive.
(3) At all other times on call.
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*
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*
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[FR Doc. 2016–03789 Filed 2–22–16; 8:45 am]
BILLING CODE 9110–04–P
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
Federal Communications
Commission.
ACTION: Final rule; petition for
reconsideration.
AGENCY:
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 Lynne.Montgomery@fcc.gov,
Media Bureau; Joyce Bernstein, (202)
418–1647, or by email at
Joyce.Bernstein@fcc.gov, 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 fcc504@fcc.gov or call the
Consumer & Governmental Affairs
Bureau at 202–418–0530 (voice), 202–
418–0432 (tty).
SUMMARY:
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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-ofcore’’ 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
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(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-
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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
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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 Aeligible 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
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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 Aeligible 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 Aeligible LPTV stations at all. As we
previously explained, Venture put forth
particular facts in response to the
Incentive Auction NPRM demonstrating
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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 PreAuction 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
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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 outof-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 incore 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
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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 Aeligible 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
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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 Aeligible 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
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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 incore 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 PreAuction 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
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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 outof-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
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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
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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
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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.
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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
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Fmt 4700
Sfmt 4700
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
SURFACE TRANSPORTATION BOARD
49 CFR Parts 1001, 1002, 1005, 1007,
1011, 1012, 1013, 1014, 1016, 1017,
1018, 1019, 1021, 1034, 1035, 1039,
1090, 1101, 1102, 1103, 1104, 1105,
1110, 1111, 1113, 1114, 1115, 1118,
1139, 1144, 1146, 1150, 1151, 1152,
1180, 1241, 1242, 1243, 1244, 1245,
1246, 1247, 1248, and 1253
[Docket No. EP 712]
Improving Regulation and Regulatory
Review
Surface Transportation Board.
Final rules.
AGENCY:
ACTION:
The Surface Transportation
Board (Board) is revising, correcting,
and updating its regulations. These
modifications include replacing
obsolete statutory references, updating
office and address references, and
correcting spelling, grammatical,
terminology, explanatory, and
typographical errors. The Board is also
making changes to certain authority
citations and to certain regulations
related to reporting requirements.
DATES: Effective March 25, 2016.
SUMMARY:
E:\FR\FM\23FER1.SGM
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Agencies
[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]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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 Lynne.Montgomery@fcc.gov, Media Bureau; Joyce Bernstein,
(202) 418-1647, or by email at Joyce.Bernstein@fcc.gov, 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 fcc504@fcc.gov 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