DA 05-1551

Released: June 1, 2005

Mr. Lauren A. Colby, Esq.

10 E. Fourth Street

P.O. Box 113

Frederick, MD 21705-0113

Re: Copeland Channel 21, LLC

New NTSC Television Station

> Channel 21, Virginia Beach, VA
>
> File No. BPCT-19960614KI
>
> Fac ID: 82574

Dear Mr. Colby:

This letter concerns the above-referenced application of Copeland
Channel 21, LLC (Copeland) for a new NTSC television station on Channel
21, Virginia Beach, Virginia.[^1] Copeland received its construction
permit for the new Virginia Beach station through auction.[^2] WBOC,
Inc., licensee of station WBOC-TV, Channel 16, and WBOC-DT, Channel 21,
Salisbury, Maryland, filed petitions to deny Copeland's application.[^3]

*Background*. WBOC states that it has been operating its NTSC station in
Salisbury, Maryland since 1954. The station completed its DTV facilities
and began transmitting DTV programming in 2001. WBOC claims that in
April 2002 its NTSC station on Channel 16 began receiving "severe
reception problems" throughout its coverage area. WBOC claims that the
source of this interference was WHRO-DT, Channel 16, Hampton Roads,
Virginia. WBOC claims that its engineers attributed the problem to
"ducting" - a phenomenon which enables broadcast signals to carry
significantly longer distances over bodies of water than normally would
be expected. WBOC filed a request asking that the Commission eliminate
the purported interference to its NTSC station.

In its 2002 filing, WBOC argues that its DTV station on Channel 21 will
experience the same type of ducting interference from Copeland's new
NTSC facility on Channel 21 at Virginia Beach. WBOC argues that
Copeland's station is in "virtually the same geographic position in
relation to WBOC-TV as is WHRO-DT." Therefore, WBOC maintains, it is
"reasonable to extrapolate from the engineering data collected" from the
WBOC-TV and WHRO-DT case to conclude that the "unique propagation
characteristics between Salisbury and Norfolk markets could well cause
interference to co-channel facilities operating on Channel 21."

In its 2005 filing, WBOC submitted an engineering study that it claims
to show that Copeland's NTSC operation on Channel 21 would cause "some
interference, analog to digital, to WBOC-DT, based on conventional
prediction methodologies." WBOC argues that Copeland should be limited
to operating with only 1 megawatt of power (as opposed to the 5
megawatts sought by Copeland) and that such a limitation would
"substantially reduce" the risk of interference. WBOC claims that a 1
megawatt facility would "reach more than 90% of the viewers" that
Copeland would reach with a 5 megawatt facility. WBOC also claims that
Copeland's 5 megawatt facility will cause harmful interference to
WUND-DT, Channel 20, Columbia, North Carolina, and WRIC-DT, Channel 20,
Petersburg, Virginia. Finally, WBOC submitted a filing in January 2003
purporting to show other channels that could be used for Copeland's
future digital operations.

In his 2002 opposition, Copeland argues that the allocation study
submitted with the April 2002 amendment to its application shows its
facility "fully protects all DTV authorizations and allotments." This
conclusion, Copeland states, was based upon Longley-Rice projections and
the guidelines set forth in the Commission's Public Notice of August 10,
1998. Copeland argues that WBOC had failed to show that there is any
likelihood that ducting interference will exist. Copeland argues that
"unless and until the laws of physics are changed, the reception of a
DTV signal will always require the use of a fairly directional receiving
antenna pointed right at the DTV station. Thus, even if ducting
conditions might temporarily raise the strength of an undesirable signal
on the same channel, it is extremely unlikely that DTV receivers would
be adversely affected in any way." Copeland points out that there have
been no reports of interference from WBOC-TV to the co-channel DTV
operations of WHRO-DT.

In his 2005 opposition, Copeland argues that: "the fact that the digital
operation of a station in Norfolk caused ducting interference to an
analog station in Salisbury is by no means predictive that Copeland's
proposed analog operations in the Norfolk area will cause ducting
interference, or any other kind of interference to WBOC's digital
operations on Channel 21 at Salisbury." Copeland argues that "the
digital signal is much more robust than an analog signal, and much more
resistant to interference."

1.  *Discussion*. Under the Communications Act, parties challenging an
    application by means of a petition to deny under Section 309(d) of
    the Communications Act must satisfy a two-step test.[^4] First, the
    petition to deny must set forth "specific allegations of fact
    sufficient to show that . . . a grant of the application would be
    *prima facie* inconsistent with \[the public interest\]."[^5]
    Second, the petition must present a "substantial and material
    question of fact" concerning whether the grant of the application
    would serve the public interest.[^6] If the Commission concludes
    that the protesting party has met both prongs of the test, or if it
    cannot, for any reason, find that grant of the application would be
    consistent with the public interest the Commission must formally
    designate the application for a hearing in accordance with Section
    309(e) of the Communications Act.[^7]

2.  To satisfy the first prong of the test, a petitioning party must set
    forth allegations, supported by affidavit, that constitute
    \"specific evidentiary facts, not ultimate conclusionary facts or
    mere general allegations ....\"[^8] The Commission determines
    whether a petitioner has met this threshold inquiry in a manner
    similar to a trial judge\'s consideration of a motion for directed
    verdict: \"if all the supporting facts alleged in the affidavits
    were true, could a reasonable fact finder conclude that the ultimate
    fact in dispute had been established.\"[^9]

3.  If the Commission determines that a petitioner has satisfied the
    threshold standard of alleging a *prima facie* inconsistency with
    the public interest, it must then proceed to the second phase of the
    inquiry and determine whether, \"on the basis of the application,
    the pleadings filed, or other matters which \[the Commission\] may
    officially notice,\" the petitioner has presented a \"substantial
    and material question of fact.\"[^10] If the Commission concludes
    that the \"totality of the evidence arouses a sufficient doubt\" as
    to whether grant of the application would serve the public interest,
    the Commission must designate the application for hearing pursuant
    to section 309(e).[^11]

For the reasons set forth below, we find that WBOC has failed to
demonstrate that grant of Copeland's application for a new NTCS
television station would be inconsistent with the public interest. We
are not persuaded by WBOC's speculative engineering showings that
"ducting" interference may occur in this case to the extent that
Copeland's analog operations will cause harmful interference to WBOC's
DTV operations. Ducting is a weather-related phenomenon and may be
highly variable in both direction and intensity. We recognize that the
highly variable phenomenon of ducting may occur near or over water. The
evidence presented by WBOC to support its contention that ducting is
likely to occur here, however, is not persuasive or probative. The
Commission has not made a determination concerning the alleged ducting
interference between WHRO-DT and WBOC-TV. Furthermore, WBOC-DT's digital
signal is much more robust than its analog signal, and should be more
resistant to impermissible interference from an analog station. Finally,
we find that Copeland's analog operation complies fully with the
Commission's technical rules including the interference protection
requirements.[^12]

Furthermore, should impermissible interference actually occur upon the
initiation of service by Copeland's NTSC station, the Commission has at
its disposal a number of different options to which it may avail itself
in conjunction with the DTV channel election process.[^13] These include
proposing to change the channels for either WBOC's or Copeland's
stations or both. It would be premature to condition Copeland's
construction permit in the absence of a proven interference problem. Any
such condition would be pure speculation without technical support.

The above facts considered, we find Copeland fully qualified and that
grant of its application will serve the public interest, convenience,
and necessity.

Accordingly, IT IS ORDERED, That WBOC, Inc.'s Petition to Deny, Motion
to Suspend Processing and Motion for Waiver of Filing Deadline and
Consideration of Petition as Timely Filed, and Petition to Deny or in
the Alternative to Grant the Application Subject to Specific Conditions
ARE DENIED.

IT IS FURTHER ORDERED, That the application of Copeland Channel 21, LLC,
for a construction permit for a new NTSC television station on Channel
21, Virginia Beach, Virginia (File No. BPCT-19960614KI) IS GRANTED.

Sincerely,

Barbara A. Kreisman

Chief, Video Division

Media Bureau

cc: Jonathan D. Blake, Esq. -- Counsel for WBOC, Inc.

[^1]: The application was originally filed by Robert O. Copeland and was
    later amended to submit a limited liability company controlled 100%
    by Mr. Copeland.

[^2]: *See* *Winstar Broadcasting Corp.*, FCC 05-19, released January
    27, 2005. In that decision, the Commission instructed Copeland to
    submit a statement accepting or rejecting the offer of the
    construction permit at Copeland's final bid amount no later than
    March 1, 2005. Copeland submitted a statement accepting the offer.
    The Commission also instructed Copeland to pay its final bid amount
    by no later than April 1, 2005. Copeland timely paid its final bid
    amount.

[^3]: On August 9, 2002, WBOC filed a "Petition to Deny, Motion to
    Suspend Processing and Motion for Waiver of Filing Deadline and
    Consideration of Petition as Timely Filed." After Copeland's
    application was formerly accepted for filing, WBOC filed a "Petition
    to Deny or in the Alternative to Grant the Application Subject to
    Specific Conditions." Also before the Commission, are numerous
    responsive pleadings submitted by the parties from 2002 to date.

[^4]: 47 U.S.C. § 309(d).

[^5]: 47 U.S.C. § 309(d)(1); *Gencom Inc. v. FCC*, 832 F.2d 171, 181
    (D.C. Cir. 1987)(*Gencom*); and *Astroline Communications Co. v.
    FCC*, 857 F.2d 1556, 1562 (D.C. Cir. 1988)(*Astroline*).

[^6]: 47 U.S.C. § 309(d)(2); *Gencom*, 832 F.2d at 181; and *Astroline*,
    857 F.2d at 1562.

[^7]: 47 U.S.C. § 309(e).

[^8]: *United States v. FCC*, 652 F.2d 72, 89 (D.C. Cir.1980) (*en
    banc*) (*quoting Columbus Broadcasting Coalition v. FCC*, 505 F.2d
    320, 323-24 (D.C. Circuit 1974)).

[^9]: *Gencom*, 832 F.2d at 181.

[^10]: 47 U.S.C. § 309(d)(2); *see also Gencom*, 832 F.2d at 181.

[^11]: *Serafyn v. FCC*, 149 F.3d 1213, 1216 (D.C. Cir. 1998) (*quoting
    Citizens for Jazz on WRVR Inc. v. FCC*, 775 F.2d 392, 395 (D.C. Cir.
    1985)).

[^12]: In the engineering portion of its application, Copeland claimed
    that its proposal would not provide the requisite 100% City Grade
    coverage required by the Commission's rules. Our analysis, however,
    confirms that 100% City Grade coverage will be provided with the
    facilities proposed in Copeland's application.

[^13]: *See* Second Periodic Review of the Commission's Rules and
    Policies Affecting the Conversion to Digital Television, *Report and
    Order*, 19 FCC Rcd 18279 (2004).