DA 04-767

Released: March 24, 2004

1800E3-JLB

WBDC Broadcasting, Inc.

c/o Thomas P. Van Wazer, Esq.

Sidley Austin Brown & Wood LP

1501 K Street, N.W.

Washington, D.C. 20005

West Virginia Educational

Broadcasting Authority

c/o Kenneth E. Satten, Esq.

Wilkinson Barker Knauer, LLP

2300 N Street, N.W.

Suite 700

Washington, D.C. 20037

Re: Special Temporary Authority to Operate

Television Translator Station And

For Minor Modification of W44AA

Martinsburg, West Virginia

File Nos. BPTT-20030509AAW and

BSTA-20030509ACL; Facility ID 71688

Dear Licensees:

This is with respect to the petition to deny filed by WBDC Broadcasting,
Inc. (WBDC), the licensee of WBDC-TV, channel 50, Washington, D.C.,
requesting that the Commission deny the above-referenced application for
minor modification of television translator station W44AA, licensed to
the West Virginia Educational Broadcasting Authority (WVEBA). WBDC also
requests that we rescind the grant of the Special Temporary Authority
(STA) authorizing WVEBA to operate a television translator station on
channel 50 at Martinsburg, West Virginia. According to WBDC, WVEBA's
operation on channel 50 pursuant to STA causes interference to the
"direct reception" of WBDC-TV's signal in and around Hagerstown,
Maryland, in violation of Section 74.703(b) of the Commission's rules.

[Background]{.underline}. WVEBA originally operated television
translator station W44AA on channel 44, but was displaced by the grant
of a co-channel full service digital television application at
Hagerstown, Maryland. On May 5, 2003, WVEBA filed the above-referenced
displacement application to change to channel 50, and several days
later, filed an STA request to operate a television translator station
in accordance with the displacement application. The staff granted
WVEBA's STA request on May 14, 2003, and WVEBA began operations on
channel 50 on July 2, 2003.

WBDC filed a petition to deny the displacement application on August
8^th^, alleging the WVEBA's operation pursuant to the STA was
interfering with Antietam Cable's over-the-air reception of WBDC-TV in
Hagerstown, Maryland. In support, WBDC submits the declaration of John
Handley, its chief engineer, who states that sometime in July, Antietam
Cable's chief engineer "asked if WBDC was having technical problems
because they could no longer receive WBDC's over-the-air signal on
channel 50." According to Handley, "\[s\]ubsequent investigation \[by
Antietam\] ultimately determined that the signal of translator W44AA . .
. pursuant to a grant of \[STA\] was swamping Antietam's over-the-air
reception of WBDC," at both a receive antenna mounted approximately 75
feet on a tower in Antietam Cable's parking lot, and on "Antietam's
search antenna that was mounted on a rotor approximately 25 feet high on
top of their building." Handley further claims that once Jack Wells, the
WVEBA engineer responsible for the STA operation, verified that the
station was operating consistent with the technical parameters of the
STA, Wells indicated to Handley "that he would take no further action
relating to this issue."

One week later, WBDC filed a supplement to its petition to deny the
displacement application, and also requested that the Commission rescind
the STA. According to Handley, he learned that the STA operation would
be off-the-air for approximately an hour mid-day on August 13^th^, and
used the opportunity to take photographs of the WBDC-TV picture signal
\-- both with the STA on-the-air and off-the-air \-- at three separate
sites.[^1] According to WBDC, "a comparison of these pictures clearly
demonstrates that \[the\] STA operation interferes with the direct
reception of WBDC's signal." Handley also states that a viewer named
Bill Weston in Rippon, West Virginia, which is located outside the
WBDC-TV predicted Grade B contour, "indicated to me earlier this year
that he was receiving over-the-air signal very well despite being just
outside WBDC's Grade B contour," and that at Handley's request, Weston
took photographs of the signal he received in his home on August 13^th^,
both when the STA was on and off the air.

In its opposition, WVEBA argues that the petition should be dismissed
because: (1) no complaints have been submitted from viewers within the
Grade B contour of WBDC-TV alleging that operation of the STA facility
causes interference to the direct reception of WBDC-TV's signal; (2) the
exhibits submitted do not support the claim of harmful interference; and
(3) Section 74.703(b) does not protect reception at a cable headend
located outside WBDC-TV's predicted Grade B contour, and even if it did,
the allegation of interference is unsubstantiated. WVEBA also disputes
WBDC's characterization of its efforts to resolve interference issues,
and "reiterates its willingness to cooperate with WBDC to identify and
implement a technical solution," if interference cognizable under the
Commission's rules is documented.

In reply, WBDC argues that procedurally, the STA should not have been
granted prior to appearing on public notice for comment. WBDC also
asserts that Section 74.703(b) requires more than cooperation from
WVEBA; it requires WVEBA to assume affirmative responsibility (including
financial responsibility) for initiating testing and deploying solutions
to correct interference problems, which WVEBA has refused to do. In
addition, WBDC contends that Section 74.703(b) does not, as WVEBA
claims, permit translators to interfere with the signal of a full
service station received outside of its predicted Grade B contour.
Rescission of the STA is especially appropriate here, argues WBDC, where
interference is occurring and WVEBA could operate on either channel 29
or 38, rather than the present channel 50. Finally, WBDC submits an
email message from Weston, the viewer who provided photographs, who
states that he is no longer able to receive an off-the-air watchable
signal from WBDC-TV, and a handwritten note from another viewer in
Hagerstown, stating that "I used to get channel 50 very good . . . but
now I have a great deal of interference, so bad that I can no longer
watch."[^2]

[Discussion]{.underline}. Initially, with respect to WBDC's procedural
argument that the staff erred in granting the STA prior to public notice
and comment period, we note that Section 309(c)(2)(C) of the
Communications Act specifically exempts from the notice and comment
requirement in Section 309(c)(b), applications for "a license under
Section 319(c), or, pending application for or grant of such license,
any special or temporary authorization to permit interim operation to
facilitate completion of authorized construction or to provide
substantially the same service as would be authorized by such license."
Thus, the staff's grant of the STA was not procedurally infirm.

Television translator stations, as well as stations operating pursuant
to special temporary authority, are authorized on a secondary basis.
Thus, Section 74.703(a) provides that:

> It shall be the responsibility of the licensee of a \[television
> translator station\] to correct at its expense any condition of
> interference to the direct reception of the signal of any other TV
> broadcast analog station and DTV station operating on the same channel
> as that used by the \[television translator station\] . . ..
> Interference will be considered to occur whenever reception of a
> regularly used signal is impaired by the signals radiated by the
> \[television translator station\], regardless of the quality of the
> reception or the strength of the signal so used.

Moreover, WVEBA's STA is specifically conditioned upon the avoidance of
interference to any existing broadcast facilities. WBDC is correct that
it is WVEBA's responsibility to take corrective action to resolve
interference to WBDC-TV's "regularly used signal." Based on the record
before us, however, we conclude that WBDC has not met its burden to
demonstrate that such interference has occurred.

When considering allegations of interference from a translator station
to the signal of a full service television station beyond the full
service station's predicted Grade B contour, the Commission employs a
balancing test. In so doing, the Commission considers whether there are
wide-spread complaints of interference from over-the-air viewers and
whether there are any anomalous reception conditions, such as location
on the top of a hill or a viewer's use of a taller or more sophisticated
than normal outdoor receiving antenna. *See, e.g., Report and Order* in
BC Docket No. 78-253, 51 RR 2d 476, 493-94 (1982).

WVEBA's translator station has been operating pursuant to an STA for
over eight months, and WBDC has submitted interference complaints from
only two viewers. With respect to Weston's complaint, we note that
Rippon, West Virginia, is located outside WBDC-TV's predicted Grade B
contour, and that Weston admits that he uses an on-mast amplifier and
rotor to receive the signal. As we explained above, in balancing
consideration of interference occurring outside of a station's predicted
Grade B contour, the Commission treats anomalous reception conditions
such as a viewer's use of a taller than normal outdoor receiving antenna
as a mitigating circumstance in favor of the translator station. We have
also examined the photographs submitted by Weston, and cannot consider
them probative of interference. The photos were taken from different
angles and distances, and compare a photo of a camera shot with a photo
of an animated cartoon, making it difficult to make comparisons in
signal quality. The other viewer only states that he used to get a
"good" signal from WBDC-TV, but no longer does. Thus, we have
insufficient evidence on which to reach a conclusion that WVEBA's STA
operation is the source of the alleged interference. [^3]

Finally, with respect to the interference allegedly received by Antietam
Cable, we find it unnecessary to resolve the disputed applicability of
Section 74.703 to this matter. With respect to the interference
allegedly received by Antietam Cable, WBDC relies solely on the hearsay
assertion of Handley that he was told that Antietam Cable's reception
was impaired, and that the cable company somehow determined that the
impairment resulted from the STA operation. There is no statement from a
person with personal knowledge of the alleged impairment in reception,
or any explanation how Antietam Cable arrived at the conclusion,
advanced by Handley, that such impairment was due to the STA operation,
and not some other source. This falls far short of the type of
documentation we require in support of an interference complaint.
Moreover, Antietam Cable's stated reception of the WBDC-TV signal, some
23 kilometers beyond the WBDC-TV predicted Grade B contour, was either
due to use of a sophisticated receiving system (a search antenna) or the
use of a taller than normal outdoor receiving antenna. Under these
circumstances, we conclude that WBDC has not presented an actionable
claim of interference with respect to Antietam Cable.[^4]

Based upon the information provided by WBDC, we conclude that it has not
submitted sufficient facts to raise a *prima facie* question as to
whether grant of the WVEBA displacement application would be
inconsistent with the public interest. Accordingly, the petition to deny
and objection and request for recission of special temporary authority,
filed by WBCD Broadcasting, Inc. ARE HEREBY DENIED, and the application
for a construction permit for a television translator station on channel
50 at Martinsburg, West Virginia, filed by the West Virginia Educational
Broadcast Authority IS HEREBY GRANTED. Although we are granting this
construction permit application, we emphasize that, pursuant to the
provisions of Section 74.703(a), if the translator's operation causes
actual interference to WBDC-TV's regularly used signal and results in
viewer interference complaints, WVETV will be required to resolve all
such complaints, and, if necessary, discontinue operations on Channel
50.

Sincerely,

Barbara A. Kreisman

Chief, Video Division

Media Bureau

[^1]: Handley claims that Wells told him that WVETA was taking the STA
    operation off-air for maintenance on August 13^th^, while Wells
    claims that Handley called him to propose a phase cancellation test
    at Antietam Cable's headend. According to Wells, Handley asked if
    WVETA would turn off the transmitter on August 13^th^ for
    approximately one hour, which Wells agreed to do. We do not find
    this apparent discrepancy to be material to any issues raised in
    this case.

[^2]: By letter dated November 14, 2003, WBDC raised the same matters in
    connection with WVEBA's request for an extension of the STA.

[^3]: With respect to WBDC's supplemental showing, we do not find the
    submitted photographs to be relevant. These photographs, taken of
    television signals received in a vehicle parked in a residential
    neighborhood, a parking lot and at a highway intersection, do not
    represent viewer complaints that reception of a regularly used
    signal is impaired. Nor would they be probative evidence that WBDC
    was receiving interference from the translator station. As WVEBA
    points out, WBDC did not explain its criteria for selecting the
    sites at which to take photographs, or address whether there were
    other conditions or events that might affect signal reception. In
    addition, the photos were taken from different angles and distances,
    making it difficult to make comparisons in signal quality, and many
    of the photos include reflections from the inside of the vehicle or
    the outdoors, which further distort the photographed reception.

[^4]: We also note that the interference alleged to Antietem Cable is
    not to a cable head end, but rather to Antietem Cable's direct off
    the air reception of WBDC-TV's signal.