**DA 04-747**

**Released: March 19, 2004**

**COMMENT SOUGHT ON "REQUEST FOR EXPEDITED DECLARATORY RULING"
CONCERNING THE TERRITORIAL EXCLUSIVITY RULE (SECTION 73.658(B) OF THE
COMMISSION'S RULES)**

**"PERMIT BUT DISCLOSE" EX PARTE STATUS ACCORDED**

**MB Docket No. 04-75**

**Comment Date: April 28, 2004**

**Reply Comment Date: May 10, 2004**

On February 25, 2004, Max Media of Montana LLC ("Max Media") filed a
"Request for Expedited Declaratory Ruling" ("Request"). The Request
seeks a Commission ruling concerning Section 73.658(b) of the
Commission's Rules (47 C.F.R. § 73.658(b)), the "territorial
exclusivity" rule. The territorial exclusivity rule, in part, provides
that, "No license shall be granted to a television broadcast station
having any contract, arrangement, or understanding, express or implied,
with a network organization...which prevents or hinders another
broadcast station located in a different community from broadcasting any
program of the network organization."

Max Media contends that the NBC television network and Sunbelt
Communications Company and companies it controls ("Sunbelt") have an
agreement under which NBC will not renew its current NBC affiliation
with Max Media's KTGF-TV in Great Falls, Montana, when that affiliation
agreement expires in 2005. Under this arrangement, Max Media alleges,
NBC will, instead, give the affiliation to Sunbelt, which has
NBC-affiliated stations in nearby communities. Sunbelt does not have a
station licensed to Great Falls, Montana, but would allegedly provide
coverage of Great Falls using stations it controls in nearby communities
and through booster, translator and low-power television stations that
it has applied for in Great Falls. Max Media has filed pleadings in
opposition to those license applications.

Max Media contends that the alleged agreement constitutes an arrangement
between Sunbelt and a network organization (*i.e.,* NBC) with regard to
Sunbelt's stations in communities other than Great Falls, Montana, which
"prevents or hinders another broadcast station located in a different
community (*i.e.,* Max Media's station in Great Falls) from broadcasting
any program of the network organization," in violation of the
territorial exclusivity rule. It requests an expedited declaratory
ruling pursuant to Section 1.2 of the Commission's Rules, 47 C.F.R. §
1.2, and Section 5(d) of the Administrative Procedure Act, § 5 U.S.C.
554(e), in order to terminate this controversy and to resolve a dispute
concerning the territorial exclusivity rule.

On March 10, 2004, Sunbelt filed an "Opposition of Sunbelt
Communications Company to Request for Expedited Declaratory Ruling"
("Opposition"). In the Opposition, Sunbelt asserts that a declaratory
ruling is inappropriate in this case because there is no controversy to
terminate or uncertainty to remove. Additionally, it asserts that there
is no merit to Max Media's complaint that the territorial exclusivity
rule is being violated by Sunbelt or NBC. Rather, it contends, all that
is present in this matter is the exercise of normal business judgments
by the parties.[^1]

We invite comment on the Max Media petition.

**Ex parte status:** In order to permit a full exchange of views on the
issues raised in the Request, and Max Media's indication that it is
seeking a declaratory ruling rather than specific enforcement action, we
have concluded that the public interest would be served by classifying
this proceeding, as well as the related pending application
proceedings,[^2] as permit-but-disclose under the ex parte rules
notwithstanding the existence of related applications and oppositions.
Accordingly, by this Public Notice, and pursuant to Section 1.1200(a) of
the Commission's Rules, 47 C.F.R. § 1.1200(a), we announce that these
proceedings will be governed by permit-but-disclose ex parte procedures
that are applicable to nonrestricted proceedings under Section 1.1206 of
the Commission's Rules, 47 C.F.R. § 1.1206.

Permit-but-disclose ex parte procedures permit interested parties to
make ex parte presentations to the Commissioners and Commission
employees and require that these presentations be disclosed in the
record of the relevant proceeding. Persons making a written ex parte
presentation to the Commissioners or Commission employees must file the
written presentation with the Commission, as set forth below, no later
than the next business day after the presentation. 47 C.F.R. §
1.1206(b)(1). Persons making oral ex parte presentations must file a
summary of the presentation, as set forth below, and deliver copies to
the Commissioners or Commission employees involved with the presentation
no later than the next business day after the presentation. 47 D.F.R. §
1.1206(b)(2). All ex parte filings must be clearly labeled as such and
must reference this Public Notice, DA 04-747, as well as any other
applicable docket or file numbers.

Comments must be filed on or before April 28, 2004; and reply comments
must be filed by May 10, 2004. Comments and reply comments may be filed
using the Commission's Electronic Filing System (ECFS) or by filing
paper copies (an original and four copies). See *Electronic Filing of
Documents in Rulemaking Proceedings*, 63 Fed. Reg 24121 (1998).

Comments filed through the ECFS can be sent as an electronic file via
the Internet to \<http://www.fcc.gov/e-file/ecfs.html\>. Generally, only
one copy of an electronic submission must be filed. In completing the
transmittal screen, commenters should include their full name, U.S.
Postal Service mailing address, and the applicable docket or rulemaking
number. Parties may also submit an electronic comment by Internet
e-mail. To get filing instructions for e-mail comments, commenters
should send an e-mail to ecfs@fcc.gov, and should include the following
words in the body of the message, "get form." A sample form and
directions will be sent in reply. Parties who choose to file by paper
must file an original and four copies of each filing. Filings can be
sent by hand or messenger delivery, by commercial overnight courier, or
by first-class or overnight U.S. Postal Service mail (although we
continue to experience delays in receiving U.S. Postal Service mail).
The Commission's contractor, Natek, Inc., will receive hand-delivered or
messenger-delivered paper filings for the Commission's Secretary at 236
Massachusetts Avenue, N.E., Suite 110, Washington, D.C. 20002. The
filing hours at this location are 8:00 a.m. to 7:00 p.m. All hand
deliveries must be held together with rubber bands or fasteners. Any
envelopes must be disposed of before entering the building. Commercial
overnight mail (other than U.S. Postal Service Express Mail and Priority
Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD
20743. U.S. Postal Service first-class mail, Express Mail, and Priority
Mail should be addressed to 445 12th Street, SW, Washington, D.C. 20554.
All filings must be addressed to the Commission's Secretary, Office of
the Secretary, Federal Communications Commission. In addition, parties
should serve one copy of each filing via email, or five paper copies, on
Jane Gross, Jane.Gross@fcc.gov, Federal Communications Commission, Media
Bureau, Policy Division, 445 12^th^ Street, S.W., 3-A832, Washington,
D.C., 20554.

*Availability of Documents.* Comments, reply comments, and ex parte
submissions will be available for public inspection during regular
business hours in the FCC Reference Center, Federal Communications
Commission, 445 12th Street, S.W., CY-A257, Washington, D.C. 20554.
These documents also will be available electronically from the
Commission's Electronic Comment Filing System. Documents are available
electronically in ASCII text, Word 97, and Adobe Acrobat. Copies of
filings in this proceeding may be obtained from Qualex International,
Portals II, 445 12^th^ Street, S.W., Room, CY-B402, Washington, D.C.,
20554, telephone (202) 863-2893, facsimile (202) 863-2898, or via e-mail
at qualexint@aol.com. To request materials in accessible formats for
people with disabilities (Braille, large print, electronic files, audio
format), send an e-mail to fcc504@fcc.gov or call the Consumer and
Governmental Affairs Bureau at 202-418-0531 (voice), 202-418-7365 (TTY).

For further information contact Jane Gross, Media Bureau at (202)
418-2120.

> By the Chief, Media Bureau

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FCC -**

[^1]: On March 12, 2004, Max Media submitted a Reply to the Sunbelt
    Opposition in which it responds to Sunbelt's arguments and
    reiterates the claims made in its initial filing.

[^2]: Application numbers: BLCT-20000830AFL; BNPTT-20000828BIK;
    BNPTVB-20030930BBS; BLCT-20000830AFI; BNPTTL-20000829AJY;
    BNPTTL-20000829AJY; BNPTTL-20000829AIY; BNPTVL-20000829AIZ;
    BNPTVL-20000829AJN; BNPTTL-20000829AJP; BNPTTL-20000829AJS;
    BNPTTL-20000829AIX; BNPTVL-20000829AHE; BNPTVL-20000829AKB;
    BNPTVL-20000829AKA; BNPTVL-20000829AHJ; BNPTVB-20030915ACY;
    BNPTTL-20000829AHI; BNPTTL-20000829AHH; BNPTTL-20000829AHF;
    BNPTVL-20000829ALP; BNPTTL-20000829AJW; BNPTTL-20000829AJU;
    BNPTTL-20000829AJT; BNPTTL-20000829AHO; BNPTTL-20000829AHK;
    BNPTTL-20000829AHL; BNPTVL-20000829AHM; BNPTVL-20000829AJF;
    BNPTVL-20000829AJG; BNPTTL-20000829AJJ; BNPTTL-20000829AJL; and
    BNPTVL-20000829AHN.