**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | **MM Docket No. 01-276**     |
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| Amendment of the Television      | ) | FIN: 41314                   |
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| Allotments to Delete             |   |                              |
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| Reservation of Channel \*16,     | ) |                              |
| 482-488 MHz,                     | * |                              |
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**MEMORANDUM OPINION AND ORDER**

**AND NOTICE OF PROPOSED RULE MAKING**

**Adopted: September 27, 2001 Released: October 11, 2001**

Comment Date: **December 18, 2001**

Reply Comment Date: **January 21, 2002**

By the Commission: Commissioners Abernathy and Martin issuing a joint
statement.

1.  The Commission has before it for consideration a "Petition to Delete
    Noncommercial Reservation" filed on January 9, 2001 by WQED
    Pittsburgh (QED), licensee of noncommercial educational television
    stations WQED(TV), Channel \*13 and WQEX(TV), Channel \*16,
    Pittsburgh, Pennsylvania. In its petition, QED requests that the
    Commission amend Sections 73.606 and 73.622 of the Commission's
    rules, s*ee* 47 C.F.R. §§ 73.606 (NTSC channels) and 73.622 (DTV
    channels), to delete the noncommercial reservation of Channel \*16
    and permit QED to sell WQEX(TV) as a commercial television station
    without opening the channel to competing applications, and use the
    net proceeds to further WQED(TV)'s noncommercial broadcast
    operation.[^1] The Pittsburgh Citizens for Independent Public
    Broadcasting (CIPB-Pittsburgh) and the Alliance for Progressive
    Action (Alliance) jointly filed a "Motion in Opposition to WQED's
    Request to Exempt Its Petition for Dereservation from Normal Notice
    and Comment Rulemaking Procedures" on January 18, 2001, and QED
    filed its response on January 31, 2001.[^2] As discussed below,
    while we deny QED's request that we dereserve Channel \*16 on the
    basis of the record before us, we hereby commence a rule making
    proceeding to determine whether modification of the license of
    WQEX(TV), to specify operation on nonreserved Channel 16, will
    promote the public interest, convenience and necessity, and also,
    whether the channel, if dereserved, should be subject to competing
    applications.

    **BACKGROUND**

2.  Sections 73.606(b) and 73.622(b) of the Commission's rules set forth
    the Television Table of Allotments in which specific channels are
    allotted to specific communities. Channels designated with an
    asterisk are reserved for noncommercial educational use and are
    licensed only to nonprofit educational organizations or
    municipalities. Channel \*13, Pittsburgh was reserved for
    noncommercial educational use in 1952, *see Sixth Report and Order*
    in Docket Nos. 8736, *et al*., 41 FCC 148, 267-75 (1952), and QED
    initiated service on Channel \*13 in 1954. In 1958, QED petitioned
    the Commission to assign a second reserved channel to Pittsburgh so
    that it could enlarge the classroom and home instruction service
    offered on WQED(TV) and provide specialized educational service for
    area businesses and professions. In assigning the second reserved
    channel, the Commission concluded that:

    \[A\] compelling need has been shown for a second educational
    television channel in Pittsburgh. The use of Channel 13 for 81-1/2
    hours per week averages almost 12 hours daily and from the
    standpoint of efficient use of the channel compares favorably with
    regular commercial television broadcast stations. Under these
    circumstances, the assignment of a second educational TV channel to
    Pittsburgh cannot be considered prodigal.

    *Amendment of Section 3.606, Table of Assignments, Television
    Broadcast Stations (Pittsburgh, Pennsylvania)*, 17 RR 1563, 1565
    (1958); *see also* 17 RR 1568d (1958)(noncommercial educational
    reservation changed from Channel 22 to Channel 16). WQEX(TV)
    commenced operations in 1958, and provided a second noncommercial
    educational program service to the Pittsburgh community until
    November 1997, when QED made the decision to simulcast its two
    Pittsburgh stations.

3.  In 1996, Congress passed the Department of Justice and Related
    Agencies Appropriations Act of 1996, Pub. L. No. 104-134, 110 Stat.
    1321 (1996), which provided, in pertinent part that:

    \[T\]he Federal Communications Commission shall, not later than 30
    days after receipt of a petition by WQED, Pittsburgh, determine,
    without conducting a rulemaking or other proceeding, whether to
    amend Section 73.606 of Title 47, Code of Federal Regulations, by
    deleting the asterisk for \[Channel 16\] in Pittsburgh,
    Pennsylvania, based on the public interest, the existing common
    ownership of two non-commercial broadcasting stations in Pittsburgh,
    the financial distress of the licensee, and the threat to the public
    of losing or impairing local public broadcasting service in the
    area: Provided further, That the Federal Communications Commission
    may solicit such comments as it deems necessary in making this
    determination: Provided further, That as part of the determination,
    the Federal Communications Commission shall not be required,
    notwithstanding any other provision of law, to open the channel to
    general application, and may determine that the license therefore
    may be assigned by the licensee, subject to prompt approval of the
    proposed assignee by the Federal Communications Commission, and that
    the proceeds of the initial assignment of the license for such
    channel, or any portion thereof, shall be used solely in furtherance
    of noncommercial broadcast operations, or for such other purpose as
    the Federal Communications Commission may determine appropriate.

    Pursuant to this legislation, QED filed a dereservation petition on
    June 24, 1996, requesting that the Commission permit it to assign
    WQEX(TV) to a commercial entity. In support of its petition, QED
    argued, *inter alia*, that it was in financial distress and would
    use the net proceeds of the sale of WQEX(TV) to pay down debt and
    fund the future operations of WQED(TV). Comments were filed by
    Alliance and a number of other organizations, broadcasters and
    viewers; with one exception, the commenters opposed QED's
    dereservation request.

4.  The Commission denied the dereservation request on July 24, 1996,
    concluding that QED had not made a compelling showing that would
    support its proposed departure from the Commission's strongly held
    policy disfavoring dereservation. *See* *Deletion of Noncommercial
    Reservation of Channel \*16, 482-488 MHz, Pittsburgh, Pennsylvania*,
    11 FCC Rcd 11700 (1996)(*Dereservation Order*). In reaching that
    conclusion, the Commission relied upon QED's acknowledgment that,
    while it would have to restructure its operations should
    dereservation not be approved, it would not go dark if it was unable
    to sell WQEX(TV) to a commercial broadcaster. The Commission also
    concluded that QED failed to demonstrate that Pittsburgh no longer
    needed a second noncommercial channel, and noted that QED had other
    means to improve its financial condition, including an agreement it
    had reached with Cornerstone TeleVision, Inc., the licensee of
    commercial station WPCB-TV, Channel 40, Greensburg, Pennsylvania,
    whereby QED would assign WQEX(TV) to Cornerstone, a non-profit
    organization, and Cornerstone would assign WPCB-TV to QED, thereby
    allowing QED to sell Channel 40 to a commercial buyer.

5.  Almost a year later, QED, Cornerstone and Paxson Pittsburgh License,
    Inc. (Paxson) filed applications for assignment of WQEX(TV) from QED
    to Cornerstone, and assignment of WPCB-TV from Cornerstone to
    Paxson, with QED and Cornerstone to share the proceeds of the sale
    of WPCB-TV to Paxson. The applications were opposed by Alliance and
    the QED Accountability Project, as well as over 300 viewers. In
    addition, it was necessary for Cornerstone to amend its application
    several times to provide further information regarding its
    qualifications to operate on a reserved channel and its proposed
    noncommercial educational service. While the Commission denied the
    petitions to deny and informal objections, and granted the two
    assignment applications on December 29, 1999, *WQED Pittsburgh*, 15
    FCC Rcd 202 (1999), *vacated in part*, 15 FCC Rcd 2534 (2000),
    *petitions for reconsideration pending*, Cornerstone terminated its
    agreements with QED and Paxson and the transactions proposed in the
    assignment applications were not consummated.

    **QED'S SECOND PETITION TO DELETE NONCOMMERCIAL RESERVATION**

6.  In the instant petition filed January 9, 2001, QED again requests
    that the Commission dereserve Channel \*16 and permit QED to sell
    WQEX(TV) to a commercial broadcaster. Procedurally, QED argues
    first, that the Commission should consider the petition pursuant to
    Public Law 104-134, which "continues to provide a basis for
    authority to grant the instant petition."[^3] In support of this
    conclusion, QED argues that "it is significant that the factual
    circumstances that prompted Congress to enact Public Law 104-134,
    including the financial distress of QED and the common ownership of
    WQED and WQEX, remain unchanged," and that "Congress clearly
    intended Public Law 104-134 to have continuing effect so long as QED
    could benefit from expedited action." QED also contends that the
    Commission may grant the requested relief pursuant to Section 316 of
    the Communications Act of 1934, as amended, 47 U.S.C. § 316, which
    authorizes the Commission to modify a station license if it
    concludes that such action will promote the public interest,
    convenience and necessity. In this regard, QED points out that the
    Commission has relied on Section 316 to amend the FM or TV table of
    allotments without consideration of competing applications in the
    contexts of modification of FM licenses to higher class co-channel
    or adjacent channels,[^4] the assignment of new communities of
    license,[^5] and intra-band channel swaps between commercial and
    noncommercial licenses.[^6] QED further states that because it
    "would withdraw the present dereservation petition if competing
    applications are permitted," opening the channel to general
    application would "result in a waste of Commission, public and QED
    resources, contrary to the public interest."

7.  In support of the dereservation petition, QED acknowledges that the
    relief it seeks requires the demonstration of compelling
    circumstances, and submits that a series of unique and exceptional
    circumstances have led to its current situation in Pittsburgh.
    According to QED:

    Congressional intent to provide relief, as expressed in Public Law
    104-134; the unfortunate two and one-half year processing delays
    imposed on the parties to the \[assignment of WQEX(TV) to
    Cornerstone\]; the continuing financial distress of QED brought on
    by the downturn in the Pittsburgh economy; fundamental changes to
    the broadcast station landscape; and the fact that grant of this
    petition will result in the provision of a new commercial broadcast
    voice to Pittsburgh . . . provide ample public interest
    justification for the requested relief.

    QED also maintains that, because it continues to experience
    financial distress, it has been forced to make significant cuts in
    staff and programming,[^7] which has affected its ability to produce
    locally-oriented programming, and that it has no reason to believe
    that its financial prospects will improve, given "Pittsburgh's
    unusually severe economic decline and its negative impact on the
    continuing viability of the two donor-dependent public television
    stations in that market." According to QED, the public interest
    benefits that would result from dereservation -- a more
    self-sufficient WQED(TV), a timely conversion to DTV, the ability to
    channel funding towards the operation of one strong station, rather
    than to two weak ones, and a new commercial television station to
    serve Pittsburgh -- outweigh the Commission's commitment to the
    structure of its noncommercial channel allotments scheme.

8.  In response, CIPB-Pittsburgh and Alliance contend that Public Law
    104-134 has no present operative effect, and that the Commission
    should dismiss QED's petition as an attempt to circumvent the notice
    and comment requirements of the Administrative Procedure Act or an
    untimely petition for reconsideration of the 1996 *Dereservation
    Order*. Alternatively, they urge the Commission to treat the
    dereservation petition as a new petition for a rule making
    proceeding to amend the TV Table of Allotments and either dismiss
    it, consistent with the Commission's prior *Dereservation Order,* or
    conduct a notice and comment rule making proceeding. In response,
    QED contends that it did not intend to exclude the public from
    comment on its dereservation proposal, and that summary dismissal of
    its petition is unjustified. QED further states that if "the
    Commission does not act on the Petition within 30 days as required
    by Public Law 104-134, QED urges the Commission to promptly commence
    an expedited Section 316 rulemaking proceeding, with notice and an
    opportunity to comment but without opening the channel to competing
    applications."

    **DISCUSSION**

9\. At the outset, procedurally, we disagree with QED's position that
Public Law 104-134, an appropriations bill for fiscal year 1996,
continues to provide a basis upon which to consider the instant
petition. A federal appropriations act is, by nature, a non-permanent
piece of legislation. 31 U.S.C. § 1301(c)(2) (2000). Because
appropriations acts are themselves temporary, provisos in such acts also
are temporary unless "the language admits of no other reasonable
interpretation." *Minis v. United States,* 40 U.S. 423, 445 (1841). *See
also United States v. Vulte*, 233 U.S. 509, 515 (1914); 27 Op. Att'y
Gen. 108, 112 (1908); 62 Comp. Gen. 54 (1982). The most critical element
in determining whether a proviso in an appropriations act is temporary
or permanent is whether the proviso contains "words of futurity," such
as "hereafter" or "after the date of this act." 41 Op. Att'y Gen. 274,
278-79 (1956); 62 Comp. Gen. 54 (1982). Provisos are construed strictly
and ambiguous phrases are generally not found to indicate that the
proviso is intended to be permanent. *Id*. Thus, in *Building &
Construction Trades Dep't, AFL-CIO v. Martin*, 961 F.2d 269, 273-74
(D.C. Cir.), *cert. denied*, 506 U.S. 915 (1992), the court rejected the
appellant's argument that an appropriations bill rider permanently
prohibited the Secretary of Labor from implementing certain regulations
to set wages for workers on federal construction projects, explaining:

> While appropriation acts are "Acts of Congress" which can
> substantively change existing law, there is a very strong presumption
> that they do not . . . and that when they do, the change is only
> intended for one fiscal year. In fact, a federal appropriations act
> applies only for the fiscal year in which it is passed, unless it
> expressly provides otherwise. *See* 31 U.S.C. § 1301(c)(2)(1991).
> Accordingly, a provision contained in an appropriations bill operates
> only in the applicable fiscal year, unless the language clearly
> indicates that it is intended to be permanent.

The court concluded that because Congress used no words of permanency or
futurity, the court could not infer that Congress intended to impose a
permanent ban. *Id*. at 274.

10\. The WQED proviso does not contain any words of futurity that would
suggest that Congress intended it to be permanent. On the contrary, the
text of the act and the conference report indicate that the proviso was
intended to address the unique circumstances that existed at the time of
its passage, not some future dereservation petition that WQED might file
if its initial petition was denied. *See* H.R. Conf. Rep. No. 537,
104^th^ Cong., 2^nd^ Sess., 412 (1996) ("The conference report includes
language to address an issue that appears to present unique
circumstances that require immediate attention."). *See also* 110 Stat.
1321, 1321-188, 1321-269, 1321-296, 1321-300 (1996) (other provisions of
same appropriations act use words of futurity not used in the WQED
proviso, suggesting that Congress did not intend that the latter be
permanent). Accordingly, we conclude that the authority conferred upon
us during FY 1996 to act on a petition to dereserve Channel \*16 at
Pittsburgh without conducting a rulemaking proceeding lapsed at the end
of that fiscal year. Moreover, even if the language in the proviso
requiring the Commission to act within 30 days of the filing of WQED's
petition could be read to indicate an intent that it extend beyond the
term of the appropriation because it does not specify when the petition
had to be filed, we believe the proviso clearly would have lapsed once
the Commission acted on WQED's 1996 petition. Accordingly, it would not
apply to the pending application.

11\. The Comptroller General has noted that there are two circumstances
in which an appropriations proviso may be interpreted to be permanent
even though no words of futurity are used: where the proviso is of a
general nature and is unrelated to the subject matter of the statute in
which it is included, and where the proviso would be rendered
meaningless if it were interpreted as temporary. General Accounting
Office, Principles of Federal Appropriations Law, 22-31. Neither of
these circumstances is present here. The WQED proviso applies to a
specified licensee, describes specific circumstances, and speaks in the
singular of "a petition" and "the determination," as does its
legislative history. *Compare* 110 Stat. 1321, 1321-49 (referring to "a
petition by WQED, Pittsburgh" and "the determination" by the FCC) *with*
37 Op. Att'y Gen. 166 (1922) (determining that a proviso was intended to
be permanent based, in part, on the use of the word "any" in the
language "in any reduction of personnel in any branch of service of the
United States Government.") And, as noted above, the conference report
on the WQED proviso indicates that it was intended to address the
specific, unique circumstances that existed at the time of its passage.
*See* H.R. Conf. Rep. No. 537, 104^th^ Cong., 2^nd^ Sess., 412 (1996).
In addition, although the WQED proviso does not explicitly restrict the
use of the Commission's appropriations, it does require action by the
agency being funded by the act, and thus is related to the subject
matter of the act. The Comptroller General has found that provisos
similarly placing requirements on the agency being funded were related
to the subject matter of the appropriation. Comptroller General,
B-208705 (1982); B-209583 (1983). Nor would the WQED proviso be rendered
meaningless if it were interpreted as temporary; it was given effect
when the Commission acted within 30 days on WQED's 1996 dereservation
petition. Accordingly, we disagree with WQED's argument that Congress
intended the WQED proviso to remain in effect permanently.

12\. We do agree, however, that procedurally, it may be possible to
effectuate QED's proposal through a rulemaking proceeding coupled with a
license modification under Section 316 of the Communications Act, should
the public interest be found to warrant dereservation of Channel \*16
and modification of QED's license. The Commission has repeatedly
utilized rulemaking procedures to amend the table of allotments, and
Section 316 to modify a station's license to conform to the change in
allotment, where those actions have been found to serve the public
interest, convenience and necessity. *See, e.g., Amendment of Section
73.606(b), Buffalo, New York*, 14 FCC Rcd 11856 (1999), *aff'd*, 16 FCC
Rcd 4013 (2000); *Intraband Television Channel Exchanges,* 59 RR 2d at
1461-62. We acknowledge that the *Sixth Report and Order* adopting the
Television Table of Allotments contemplated that a non-commercial
educational station operating on a reserved channel, which seeks to
operate on a commercial basis, "would by appropriate rule making
proceedings be required to petition for a change in the character of the
channel assignment involved. It \[would\] then have to file an
application for a new license, in competition with any others who may
seek the channel." 41 FCC at 212, n.51; *see also Intraband Television
Channel Exchanges*, 59 RR 2d at 1458. However, the Commission may, in a
rulemaking proceeding, limit potential applicants' ability to apply for
the channels if, in the Commission's judgment, such action will promote
the public interest, convenience and necessity. *Storer Broadcasting v.
FCC*, 351 U.S. 192 (1956); *Malrite of New York, Inc*., FCC 84-338,
released July 31, 1984. Assuming we decide dereservation is in the
public interest, we seek comment on whether unique public interest
considerations and benefits in this case outweigh the benefits of
entertaining competing applications for a new commercial station in
Pittsburgh, thus warranting a waiver of the uncodified rule set forth in
the *Sixth Report and Order,* requiring that newly dereserved channels
be made available for such applications.

13\. In the instant petition, QED once again advances a number of public
interest considerations which arguably might favor dereservation of
Channel \*16. According to QED, while its financial condition has
improved somewhat since 1996, it still carries over \$9 million in
current indebtedness, and its unrestricted revenues have dropped by more
than half in the last ten years, from \$38.3 million in 1991 to \$18.2
million in 2000. In addition, QED has been forced to reduce its
workforce from 188 employees in 1993 to 98 employees in 2000, and to
simulcast its two stations. QED also contends that economic and
population declines have left the Pittsburgh area unable to continue to
support two donor-supported noncommercial educational stations,[^8] and
that a second reserved channel is no longer necessary to the community,
given the expanded opportunities for educational programming through
future DTV multicasting on WQED(TV), and the availability of alternative
programming and information delivery systems, including cable, direct
broadcast satellite (DBS) and the Internet, which were not in existence
when QED commenced operations, but now provide substantial educational
content to schools and households. According to QED, the sale of
WQEX(TV) to ShootingStar would result in important public interest
benefits, including securing the future of public television in
Pittsburgh, by permitting QED to use the proceeds of the sale of
WQEX(TV) to eliminate its debt, effect a timely conversion to DTV, and
endow the production of new local programming in the future. Moreover,
QED contends that replacing WQEX(TV), which presently simulcasts
programming aired on WQED(TV), with a new commercial station will
provide new programming and enhance marketplace competition.

14\. The Commission has recognized that "\[i\]n light of public
television's unique service, . . . a significant factor in its public
interest determination will be the extent to which a noncommercial
channel exchange proposal affects a station's ability to continue to
serve the viewing public." *Intra-band* *Television Channel Exchanges*,
59 RR 2d at 1464a. In view of the contentions set forth in QED's
petition regarding its continuing ability to operate two noncommercial
educational stations, and the substantial decrease in the base of
financial support available to QED from its community of license and
surrounding areas, we hereby initiate a rulemaking proceeding to
determine whether the public interest will be better served by
dereservation of Channel \*16, and application of the proceeds of the
sale of WQEX(TV) to QED's noncommercial educational operations on
Channel 13. We specifically seek comment on QED's present financial
condition and the likelihood that QED's ability to serve the educational
needs of its community, as required by Section 73.621 of the rules, will
be substantially impaired, absent a sale of WQEX(TV) as a commercial
station. With respect to QED's assertion that Pittsburgh and its
environs have experienced a severe economic decline, we seek comment on
the area's economic ability to continue to adequately support two
donor-reliant noncommercial educational television stations, as it has
done for more than 40 years. We also seek comment on QED's contention
that the Pittsburgh community no longer needs two educational stations,
and also, whether the need for an additional commercial television
channel in Pittsburgh outweighs the need for a second noncommercial
educational television station.

15\. Accordingly, in view of the foregoing, the Petition to Delete
Noncommercial Reservation filed by WQED Pittsburgh IS GRANTED to the
extent indicated herein, and IS OTHERWISE DENIED**.**

16\. Interested parties may file comments on or before December 18, 2001
and reply comments on or before January 21, 2002. An original and four
copies of each filing must be sent to the Commission's Secretary,
Magalie Roman Salas, Office of the Secretary, Federal Communications
Commission, 445 Twelfth Street, S.W., TW-A325, Washington, D.C. 20554.
Additionally, a copy of such comments should be served on QED's counsel,
as follows:

Steven A. Lerman, Esq.

Leventhal, Senter & Lerman PLLC

2000 K Street, N.W.

Suite 600

Washington, D.C. 20006

(Counsel for WQED Pittsburgh)

17\. Pursuant to Section 1.1206 of the Commission's rules, we designate
this proceeding as permit-but-disclose for *ex parte* purposes. Persons
making oral *ex parte* presentations are reminded that memoranda
summarizing the presentations must contain summaries of the substance of
the presentation and not merely a listing of the subjects discussed.
More than a one or two sentence description of the views and arguments
presented is generally required. *See* 47 C.F.R. § 1.1206(b). Other
rules pertaining to oral and written *ex parte* presentations in
permit-but-disclose proceedings are set forth in Section 1.1206(b) of
the Commission's rules.

18\. Interested parties may view the Petition to Delete Noncommercial
Reservation filed by QED on January 9, 2001 at
<http://www.fcc.gov/mmb/vsd/WQEDpetition.pdf> and at the WQEX(TV) main
studio. The full text of the document, and comments and reply comments
filed in this proceeding, are available for public inspection and
copying during regular business hours at the FCC Reference Center,
Portals II, 445 Twelfth Street, S.W., Room CY-A257, Washington, D.C.
20554. Persons with disabilities who need assistance in the FCC
Reference Center may contact Bill Cline at (202) 418-0270, TTY (202)
418-2555, or <bcline@fcc.gov>. The Petition to Delete, as well as
comments and reply comments filed in this proceeding, may also be
purchased from the Commission's duplicating contractor, Qualex
International, Portals II, 445 Twelfth Street, S.W., Room CY-B-402,
Washington, D.C. 20554, telephone (202) 863-2893, facsimile (202)
863-2898, or via email at <qualexint@aol.com>.

19\. This document is available in alternative formats (computer
diskettes, large print, audio cassette, and Braille). Persons who need
documents in such formats may contact Brian Miller at (202) 418-7426,
TTY (202) 418-7365, or <bmillin@fcc.gov>.

20\. The Commission has determined that the relevant provisions of the
Regulatory Flexibility Act of 1980 do not apply to rule making
proceedings to amend the TV Table of Allotments, Sections 73.606(b) and
73.622(b), of the Commission's rules. *See Certification that Sections
603 and 604 of the Regulatory Flexibility Act Do Not Apply to Rule
Making to Amend Sections 73.606(b) of the Commission's Rules*, 46 FR
11549, February 9, 1981.

21\. For further information concerning this proceeding, contact Joyce
L. Bernstein, Video Services Division, Mass Media Bureau at (202)
418-1600 or <jbernste@fcc.gov>.

**ORDERING CLAUSE**

22\. Accordingly, IT IS ORDERED that, pursuant to the authority
contained in sections 1, 2(a), 4(I), 303, 307, 309, and 310 of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 152(a),
154(I), 303, 307 and 309, the Notice of Proposed Rulemaking is ADOPTED.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

**Joint Statement of Commissioners Kathleen Abernathy and Kevin Martin**

*In re: Deletion of Noncommercial Reservation of Channel \*16, 482-488
MHz, Pittsburgh, Pennsylvania*

We support today's decision to initiate a rulemaking proceeding to
determine if dereservation of Channel \*16 and application of the
proceeds of the sale of WQEX(TV) to noncommercial educational operations
of WQED Pittsburgh ("QED") on Channel 13 serves the public interest. We
write separately, however, to emphasize the need for a quick and a clear
resolution of this matter. We firmly believe that the parties need
answers that are both explicit and timely in order to perform in the
marketplace. The public also deserves the same level of service.

QED already has suffered greatly due to this agency's initial delay,
prior misguided decisions and subsequent reversal. QED first petitioned
the Commission in 1996 to dereserve Channel \*16, intending to sell the
station and use the proceeds to fund its original noncommercial
educational television station, Channel \*13. The Commission denied the
request in part because QED had disclosed that it had negotiated a
"back-up" plan: if QED's application were denied, QED would transfer
Channel \*16 as a noncommercial station to Cornerstone TeleVision, Inc.
("Cornerstone"), a non-profit organization.[^9] Accordingly, in
mid-1997, QED made a new filing, requesting to transfer control of
Channel \*16. The Commission finally approved the transaction on
December 30, 1999---only to simultaneously undermine the deal with
ill-conceived, stringent "guidelines" regarding religious programming on
noncommercial educational television stations.[^10] Although the FCC
reversed course and vacated those guidelines within weeks, it was too
late for QED. Faced with uncertainty and vacillation and a four-year
delay, QED's potential purchaser backed out.

QED now has returned to the Commission, petitioning for relief from
essentially the same predicament in which it found itself five years
ago. While we deny QED's request to dereserve Channel \*16 on the basis
of the record already before us, we do initiate a rulemaking that will
enable us to gather a full record and make an informed decision on the
merits. This petition presents difficult legal issues, but we believe
that a rulemaking proceeding is the appropriate and most prudent course
of action at this time. Noncommercial stations play a vital role in our
communities and dereservation of such channels raise important public
interest concerns. We look forward to working with our colleagues to
bring about a clear and prompt resolution of this matter.

[^1]: According to QED, ShootingStar, Inc., a commercial broadcaster,
    has agreed to pay QED \$20,000,000 to acquire WQEX(TV), contingent
    upon favorable action on its dereservation request. Given that these
    parties have not yet filed an assignment application with the
    Commission, we take no position on the acceptability of any such
    future application seeking to assign WQEX(TV) to ShootingStar, and
    our action here should not be taken to suggest otherwise.

[^2]: The Commission has also received a number of letters from station
    viewers commenting on QED's proposal.

[^3]: In support, QED submits a letter from Senators Arlen Specter and
    Rick Santorum to the Commission, urging prompt action on QED's
    petition, "\[c\]onsistent with the \[30-day\] provision we included
    in P.L. 104-134 . . .."

[^4]: *Amendment of the Commission's Rules Regarding Modification of FM
    Broadcast Licenses to Higher Class Co-channel or Adjacent Channels*,
    60 RR 2d 114, 119 (1986).

[^5]: *Amendment of the Commission's Rules Regarding Modification of FM
    and TV Authorizations to Specify a New Community of License*, 4 FCC
    Rcd 4870, 4872-73 (1989), *recon. granted in part*, 5 FCC Rcd 7094
    (1990).

[^6]: *Amendments to the Television Table of Assignments to Change
    Noncommercial Educational Reservations*, 59 RR 2d 1455 (1986),
    *recon. denied*, 3 FCC Rcd 2517 (1988), *aff'd sub nom., Rainbow
    Broadcasting Co. v. FCC*, 949 F.2d 405 (D.C. Cir. 1991) (*Intraband
    Television Channel Exchanges*).

[^7]: For example, WQEX(TV) is no longer separately programmed, but
    instead, simulcasts WQED(TV)'s programming.

[^8]: According to QED, beginning in the 1960's, a significant number of
    major corporate donors headquartered in Pittsburgh either went out
    of business or were absorbed by other companies, and thus, no longer
    contribute to QED. QED further states that "the population of
    \[Pittsburgh\] has plummeted by *fifty percent*" since 1950, and
    that as a television market, Pittsburgh has declined from the 10^th^
    ranked ADI in the nation in 1969, to the 20^th^ ranked ADI today.
    QED also asserts that the fact that no other noncommercial entity
    has made a bona fide offer to purchase WQEX(TV) during the past five
    years, "suggests that operating Channel \*16 under the current
    economic climate is too daunting a task to take on.\"

[^9]: *Deletion of Noncommercial Reservation of Channel \*16, 482-488
    MHz, Pittsburgh, Pennsylvania*, 11 FCC Rcd 11700 (1996).

[^10]: *WQED Pittsburgh*, 15 FCC Rcd 202 (1999), *vacated in part*, 15
    FCC Rcd 2534 (2000).