**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

Amendment of Section 73.622(i), ) MB Docket No. 08-252

Final DTV Table of Allotments, ) RM-11509

Television Broadcast Stations. )

(Cadillac, Michigan) )

**NOTICE OF PROPOSED RULE MAKING**

**Adopted: December 22, 2008 Released: December 23, 2008**

**Comment Date: \[15 days after date of publication in the Federal
Register\]**

**Reply Comment Date: \[25 days after date of publication in the Federal
Register\]**

By the Chief, Video Division, Media Bureau:

1.  The Commission has before it a petition for rulemaking filed by
    Cadillac Telecasting Co. ("CTC"), the licensee of WFQX-TV, analog
    channel 33, and WFQX-DT, DTV channel 47, Cadillac, Michigan. CTC
    requests the substitution of DTV channel 32 for DTV channel 47 for
    post-transition use at Cadillac.

2.  CTC became the licensee of WFQX-TV and WFUP(TV), analog channel 45,
    Vanderbilt, Michigan in October 2007. According to CTC, both
    stations "broadcast mostly the same Fox and other programming."[^1]
    In its rulemaking petition, CTC explains that the prior licensee of
    the stations notified the Commission that it did not intend to
    construct a digital facility for WFUP(TV), and would turn in the
    Vanderbilt license for cancellation at the end of the DTV
    transition. The prior licensee also filed an application for a
    construction permit to move the channel 47 digital facility
    approximately 40 miles north of the station's analog site. The noise
    limited contour of WFQX-DT, as presently constructed on DTV channel
    47, largely encompasses the Grade B contour of WFUP(TV), but does
    not provide service to over 85,000 persons who presently receive
    service from WFQX-TV.

3.  CTC states that once it acquired the stations, it determined that
    the prior licensee's decisions regarding the stations did not serve
    the public interest because many over-the-air viewers and cable
    systems would no longer have access to the stations' programming at
    the end of the DTV transition. Thus, CTC filed a petition for
    rulemaking to allot WFUP(TV)'s analog channel, channel 45, as
    WFUP(TV)'s post-transition channel,[^2] as well as the instant
    petition to substitute channel 32 for WFQX-DT's post-transition use
    and to move the facility back to the WFQX-TV analog site to the
    south. According to CTC, substituting channel 32 for channel 47 will
    permit it to continue serving the over 85,000 viewers who presently
    would lose service when WFQX-TV terminates its analog operations at
    the end of the transition. While there is a "theoretical" loss to
    approximately 15,000 persons who currently receive service from
    WFQX-DT (but not WFQX-TV), CTC submits the declaration of the
    station's Chief Engineer, stating that "our experience from the
    existing operation of channel 47 in those areas has led us to
    realize that there is very little actual off the air DTV viewing of
    channel 47 at this time, and therefore there will be very little
    loss of actual viewing of that channel."[^3] CTC also provides a
    Longley-Rice study showing that the loss areas are predicted to
    receive a 41 dBu signal from the proposed channel 32 facility.

4.  We believe that CTC's proposal warrants consideration. DTV channel
    32 can be substituted for post-transition DTV channel 47 at
    Cadillac, Michigan as proposed, in compliance with the principal
    community coverage requirements of Section 73.625(a) of the
    Commission's rules,[^4] at coordinates 44-8-12 N. and 85-20-33 W.
    Since the proposed facility is within the Canadian coordination
    zone, concurrence from the Canadian government must be obtained for
    the allotment. In addition, we find that this channel change meets
    the technical requirements set forth in Sections 73.616 and 73.623
    of the Commission's rules.[^5] We propose to substitute DTV channel
    32 for post-transition DTV channel 47 for station WFQX-DT at
    Cadillac with the following specifications:

    City and State DTV Channel DTV Power (kW) Antenna HAAT (meters)

Cadillac, Michigan 32 175 426

5.  Accordingly, we seek comments on the proposed amendment of the
    Post-Transition Table of DTV Allotments, Section 73.622(i) of the
    Commission's rules,[^6] for the community listed below, to read as
    follows:

    [Channel No.]{.underline}

    [City and State]{.underline} [Present]{.underline}
    [Proposed]{.underline}

    Cadillac, Michigan 9, \*17, 47 9, \*17, 32

6.  The Commission's authority to institute rulemaking proceedings,
    showings required, cut-off procedures, and filing requirements are
    contained in the attached Appendix and are incorporated by reference
    herein. In addition, when the Commission lifted the freeze on the
    filing of DTV maximization applications and petitions for digital
    channel substitutions,[^7] it announced that until the end of the
    statutory DTV transition on February 17, 2009, mutually-exclusive
    applicants would be provided a 30-day period of time, from the date
    of a public notice identifying mutually-exclusive proposals, to
    resolve their mutual-exclusivity via engineering amendment or
    settlement, rather than the 90-day period afforded by Section
    73.623(h) of the rules.[^8] Similarly, we will also shorten the
    settlement period for rulemaking petitions and mutually-exclusive
    maximization applications. If we receive a maximization application
    on or before the date for filing initial comments in this
    proceeding, which proposes a facility which is mutually-exclusive
    with the proposal set forth herein, we will issue a public notice
    and the parties will have 30 days within which to resolve their
    mutual-exclusivity. If the parties resolve their mutual-exclusivity,
    we will complete the rulemaking process by issuing the appropriate
    order. If the parties are unable to resolve their
    mutual-exclusivity, we will terminate this proceeding and dismiss
    the maximization application.

7.  Pursuant to Sections 1.415 and 1.419 of the Commission's rules,
    interested parties may file comments on or before \[15 days after
    publication in the Federal Register\] and reply comments on or
    before \[25 days after publication in the Federal Register\],[^9]
    and are advised to read the Appendix for the proper procedures.
    Comments should be filed with the Federal Communications Commission,
    Office of the Secretary, 445 12th Street, S.W., Washington,
    D.C. 20554. Additionally, a copy of such comments should be served
    on the petitioner, or its counsel or consultant, as follows:

    Gregg P. Skall, Esq.

    Womble Carlyle Sandridge & Rice

    1401 Eye Street, N.W.

    Seventh Floor

    Washington, DC 20005

8.  Parties 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 or Priority Mail) must be sent to
    9300 East Hampton Drive, Capitol Heights, Maryland 20743. U.S.
    Postal Service first-class mail, Express Mail, and Priority Mail
    should be addressed to 445 12th Street, S.W., Washington,
    D.C. 20554. All filings must be addressed to Marlene H. Dortch,
    Secretary, Federal Communications Commission, Office of the
    Secretary. Any filing that is not addressed to the Office of the
    Secretary will be treated as filed on the day it is received in the
    Office of the Secretary.[^10] Accordingly, failure to follow the
    specified requirements may result in the treatment of a filing as
    untimely.

9.  The Commission has determined that the relevant provisions of the
    Regulatory Flexibility Act of 1980 do not apply to a rule making
    proceeding to amend the DTV Table of Allotments, Section 73.622(i).
    This document does not contain proposed information collection
    requirements subject to the Paperwork Reduction Act of 1995, Public
    Law 104-13. In addition, therefore, it does not contain any proposed
    information collection burden "for small business concerns with
    fewer than 25 employees," pursuant to the Small Business Paperwork
    Relief Act of 2002, Public Law 107-198, § 3506(c)(4).

10. For further information concerning the proceeding listed above,
    contact Joyce L. Bernstein, Media Bureau, (202) 418-1600. For
    purposes of this restricted notice and comment rule making
    proceeding, members of the public are advised that no *ex parte*
    presentations are permitted from the time the Commission adopts a
    Notice of Proposed Rule Making until the proceeding has been decided
    and such decision in the applicable docket is no longer subject to
    reconsideration by the Commission or review by any court. An *ex
    parte* presentation is not prohibited if specifically requested by
    the Commission or staff for the clarification or adduction of
    evidence or resolution of issues in the proceeding. However, any new
    written information elicited from such a request or any summary of
    any new information shall be served by the person making the
    presentation upon the other parties to the proceeding in a
    particular docket unless the Commission specifically waives this
    service requirement. Any comment which has not been served on the
    petitioner constitutes an *ex parte* presentation and shall not be
    considered in the proceeding. Any reply comment which has not been
    served on the person(s) who filed the comment, to which the reply is
    directed, constitutes an *ex parte* presentation and shall not be
    considered in the proceeding.

FEDERAL COMMUNICATIONS COMMISSION

Barbara A. Kreisman

Chief, Video Division

Media Bureau

**APPENDIX**

1\. Pursuant to authority found in 47 U.S.C. Sections 4(i), 5(c)(1),
303(g) and (r), and 307(b) of the Communications Act of 1934, as
amended, and 47 C.F.R. Sections 0.61, 0.204(b) and 0.283, IT IS PROPOSED
TO AMEND the DTV Table of Allotments, 47 C.F.R. Section 73.622(i), as
set forth in the *Notice of Proposed Rule Making* to which this
*Appendix* is attached.

2\. Showings Required. Comments are invited on the proposal(s) discussed
in the *Notice of Proposed Rule Making* to which this *Appendix* is
attached. Proponent(s) will be expected to answer whatever questions are
presented in initial comments. The proponent of a proposed allotment is
also expected to file comments even if it only resubmits or incorporates
by reference its former pleadings. It should also restate its present
intention to apply for the channel if it is allotted and, if authorized,
to build a station promptly. Failure to file may lead to denial of the
request.

3\. Cut-off protection. The following procedures will govern the
consideration of the filings in this proceeding;

\(a\) Counterproposals advanced in this proceeding itself will be
considered, if advanced in initial comments, so that parties may comment
on them in reply comments. They will not be considered if advanced in
reply comments. (See Section 1.420(d) of the Commission's Rules.)
Because the Commission has not yet lifted its freeze on the filing of
petitions for rulemaking to establish new DTV channel allotments and for
changes in community of license,[^11] we will not consider
counterproposals which propose new allotments or changes in community of
license.

\(b\) With respect to petitions for rule making which conflict with the
proposal in this Notice, they will be considered as comments in the
proceeding, and Public Notice to this effect will be given as long as
they are filed before the date for filing initial comments herein. If
they are filed later than that, they will not be considered in
connection with the decision in this docket.

\(c\) The filing of a counterproposal may lead the Commission to allot a
different channel than was requested for any of the communities
involved.

4\. Comments and Reply Comments; service. Pursuant to applicable
procedures set out in 47 C.F.R. Sections 1.415 and 1.420, interested
parties may file comments and reply comments on or before the dates set
forth in the *Notice of Proposed Rule Making* to which this *Appendix*
is attached. All submissions by parties to this proceeding or by persons
acting on behalf of such parties must be made in written comments, reply
comments, or other appropriate pleadings. The person filing the comments
shall serve comments on the petitioners. Reply comments shall be served
on the person(s) who filed comments to which the reply is directed. A
certificate of service shall accompany such comments and reply comments
(*see* 47 C.F.R. Section 1.420(a), (b) and (c)). Comments should be
filed with the Secretary, Federal Communications Commission, Washington,
D.C. 20554.

5\. Number of Copies. In accordance with the provisions of 47 C.F.R.
Section 1.420, an original and four copies of all comments, reply
comments, pleadings, briefs, or other documents shall be furnished the
Commission. An electronic copy should also be sent to
Joyce.Bernstein@fcc.gov.

6\. Public Inspection of Filings. All filings made in this proceeding
will be available for examination by interested parties during regular
business hours in the Commission's Reference Information Center, at its
headquarters, 445 12th Street, S.W., Washington, D.C. 20554.

[^1]: CTC Petition, Attached November 5, 2008 Memorandum at p. 2.

[^2]: The Commission allotted DTV channel 45 to Vanderbilt for CTC's
    post-transition use by Memorandum Opinion and Order, DA 08-1858,
    released September 30, 2008.

[^3]: CTC Petition, Attached November 5, 2008 Memorandum, Statement of
    Lowell Shore, Chief Engineer of WFQX-TV.

[^4]: 47 C.F.R. § 73.625(a).

[^5]: 47 C.F.R. §§ 73.616, 73.623.

[^6]: 47 C.F.R. § 73.622(i).

[^7]: *See* Commission Lifts the Freeze on the Filing of Maximization
    Applications and Petitions for Digital Channel Substitutions,
    Effective Immediately, 23 FCC Rcd 8330 (MB 2008).

[^8]: 47 C.F.R. § 73.623(h)(3).

[^9]: The Video Division's general practice is to allow interested
    parties 30 days after publication in the Federal Register to comment
    on a proposed television channel substitution, with a 15 day reply
    comment period. *See, e.g., Shreveport, Louisiana*, 23 FCC Rcd 10027
    (VD 2008). Congress has mandated that after February 17, 2009,
    full-power television broadcast stations must transmit only digital
    signals and may no longer transmit analog signals. *See* Digital
    Television and Public Safety Act of 2005, *codified at* 47 U.S.C. §§
    309(j)(14) and 337(e). In light of the imminent transition date and
    in order to give stations seeking new channels for post-transition
    use adequate time to apply for and construct new facilities by this
    deadline, we will shorten the period for comments and reply comments
    in channel substitution proceedings through the end of the
    transition.

[^10]: *See* 47 C.F.R. § 1.7.

[^11]: *See* Public Notice, "Freeze on the Filing of Certain TV and DTV
    Requests for Allotment or Service Area Changes," 19 FCC Rcd 14810
    (MB 2004).