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**PUBLIC NOTICE**

**Federal Communications Commission** News Media Information: (202)
418-0500

**445 Twelfth Street, S.W.** Fax on Demand: (202) 418-2830

**Washington, DC 20554** Internet: www.fcc.gov ftp.fcc.gov

# DA 99-2605

**Released: November 22, 1999**

MASS MEDIA BUREAU ANNOUNCES WINDOW FILING OPPORTUNITY FOR CERTAIN
PENDING APPLICATIONS AND ALLOTMENT PETITIONS FOR NEW ANALOG TV STATIONS

By this Public Notice we announce a window filing opportunity to allow
persons with certain pending requests for new analog (NTSC) television
stations to modify their requests, if possible, to eliminate technical
conflicts with digital television (DTV) stations and to move from
channels 60 through 69. The term "DTV stations" here includes DTV
allotments, authorized or requested increases in DTV allotment
facilities and proposals for new or modified DTV allotments.

The window shall open upon the release of this Public Notice and close
on March 17, 2000.

This window is available for (1) amendments (other than channel changes)
to pending applications for new full-service NTSC television stations on
channel 2-59, (2) petitions for rule making seeking a new channel below
channel 60 for those applicants with pending applications for new
full-service NTSC television stations on channels 60-69,[^1] (3)
petitions for rule making seeking a new channel below channel 60 for
those applicants with pending applications for new full-service NTSC
television stations on channels 2-59 at locations inside of the "TV
Freeze Areas" and (4) amendments to pending rule making petitions to
amend the TV Table of Allotments to add NTSC television allotments.

All application amendments, petitions for rule making and amendments to
petitions for rule making seeking a new NTSC channel must be filed
during this window. Pursuant to the Commission\'s directive, we will
thereafter dismiss all remaining applications on channels 60-69, all
freeze-area applications on channel 2-59 that conflict with a DTV
station, and all rulemaking petitions requesting a channel above 59 or a
channel that conflicts with a DTV station.

In a related proceeding initiated on September 22, 1999, the Commission
is considering the creation of a new \"Class A\" television service,
providing some elements of primary status for some low power TV (LPTV)
stations.[^2] A question is posed in that proceeding about whether
protection should be afforded to NTSC applications and rule making
petitions that are pending when the new Class A rules take effect. If
the Commission decides in that proceeding that pending NTSC applications
and rule making petitions are not to be protected from new Class A
stations, and Class A stations are created that conflict with such
pending applications or rule making petitions, those NTSC applications
and rule making petitions would be dismissed or denied. If the
Commission decides that the pending NTSC proposals have priority,
applicants for Class A licenses could be required to protect these
service proposals.

## Background

This window filing opportunity is available only to (1) those persons
who filed petitions for rule making on or before July 25, 1996, to add
an NTSC channel to the TV Table of Allotments, and (2) persons with
applications for new full-service NTSC television stations that were
filed on or before September 20, 1996, or applications filed after that
date in response to a valid cutoff list. These were the deadlines that
the Commission set in its DTV *Sixth Further Notice of Proposed Rule
Making* for the filing of rulemaking petitions to add channels to the TV
Table of Allotments and new applications for analog stations on vacant
allotments.[^3] In that *Sixth Further Notice,* the Commission indicated
that petitions for rule making that had been filed and open rule making
proceedings would be addressed on a case-by-case basis, taking into
account the impact on the draft DTV allotment table.

On January 6, 1998, the Commission issued a *Report and Order* in ET
Docket No. 97-157 wherein it reallocated the 746-806 MHz band
(television channels 60-69) for public safety use and commercial fixed,
mobile and broadcasting services.[^4] In that *Report and Order*, the
Commission acknowledged that there were pending applications for new
NTSC television stations on pre-existing channel 60-69 allotments and
also petitions for rulemaking to add new allotments on these channels to
the TV allotment table. The Commission decided to not authorize any more
new full-service NTSC television stations on channels 60-69.
Nevertheless, it recognized that those persons with pending applications
and/or petitions for new full-service NTSC television stations on those
channels had already invested time, money and effort into their
applications and petitions. Therefore, the Commission stated that it
would not summarily terminate the pending applications and petitions,
and it would, at a later date, provide applicants and petitioners an
opportunity to amend their applications and petitions, if possible, to a
channel below channel 60.

On December 18, 1998, the Commission issued a *Second Memorandum Opinion
and Order* in MM Docket No. 87-268 wherein it addressed petitions for
reconsideration of its earlier decisions in the DTV proceeding.[^5] The
Commission acknowledged that there were pending applications for new
NTSC television stations at locations for which the Commission had
previously frozen the acceptance of applications in order to preserve
spectrum for DTV use (TV freeze areas).[^6] The Commission had
previously not protected these freeze-area applications in the
development of the DTV Table of Allotments. Nevertheless, the Commission
believed that it was desirable to provide freeze-area applicants with
the option to pursue their applications wherever such application would
not conflict with NTSC or DTV stations. Therefore, the Commission stated
that it would allow freeze-area applicants whose applications conflict
with DTV stations to request a change in their requested NTSC channel or
to amend their application to eliminate all such conflicts.

**[Amendments to applications (excluding channel changes)]{.underline}**

All applicants that are part of a single mutually exclusive (MX) group
because their applications now seek the use of the same channel
allotment (below 60) must decide as a group whether to pursue a channel
change through the petition for rule making process. Members of an MX
group that have chosen to remain on their allotted channel may file a
settlement agreement with a single corrective amendment to the proposed
surviving application. Members of an MX group that do not file a
settlement agreement and do not jointly request a channel change in a
rule making petition, must each amend their application to eliminate any
technical conflict with DTV stations.

Each application amendment filed during this window opportunity must
conform with all pertinent legal and technical requirements, including
criteria for interference protection to both NTSC and DTV services.
Application amendments must meet the minimum distance separations
between NTSC stations (47 C.F.R. Section 73.610) and must protect DTV
stations as provided in Section 73.623(c), but without any allowance to
create *de minimis* interference as defined in Section 73.623(c)(2). As
indicated above, the term "DTV stations" here includes DTV
authorizations, applications, allotments and rule making proposals.
November 1, 1999 was the scheduled due date for most commercial
television stations to file DTV construction permit applications. The
Mass Media Bureau is currently entering into its computer database the
many applications that were filed and expects to complete this entry by
the end of the year.

Application amendments may include changes in the ERP, directional
antenna pattern, antenna height or site location requested in the
application. Application amendments may also request DTV operation, as
the Commission indicated in paragraph 41 of the *Second MO&O*. An
application amendment to specify DTV operation will be evaluated under
the criteria for changing an initial DTV allotment set forth in Section
73.622(a) of the rules. Specifically, the channel may be in the range
from 2 to 59, and DTV and NTSC stations must be protected by meeting the
engineering criteria of Section 73.623(c) of the rules. Applying these
criteria is consistent with the Commission action in the *Memorandum
Opinion and Order on Reconsideration of the Fifth Report and Order* that
allows these stations to be converted to DTV operation, even if their
channel is outside the core range of 2 -- 51.[^7]

**[Petitions for rule making to specify a new channel or amendments of
petitions]{.underline}**

A change of an NTSC allotment channel must be requested by filing a
petition for rule making seeking such a change.[^8] A channel change may
*not* be requested through an amendment to a pending application.[^9]
Rulemaking petitions or amendments to pending petitions must retain the
community of license specified in the pending television application or
rulemaking petition.

Such petitions for rule making filed during this window by freeze-area
applicants on channels below 60 must also demonstrate that interference
to a DTV station (which could be a DTV allotment, a proposed change in a
DTV allotment, or an application to change a DTV station's facilities)
would be caused if the requested channel change is not made.

Such a petition may request a DTV channel as the replacement for the
NTSC channel allotment, as the Commission indicated in paragraph 42 of
the *Second MO&O*. A petition seeking a DTV allotment under these
circumstances will be evaluated under the criteria for changing an
initial DTV allotment set forth in Section 73.622(a) of the rules.
Specifically, the channel may be in the range from 2 to 59, and DTV and
NTSC stations must be protected by meeting the engineering criteria of
Section 73.623(c) of the rules.

Where multiple applications have been filed for a single NTSC channel
allotment, a petition for rulemaking must propose a single replacement
channel (below 60), to which all applicants agree to modify their
applications.

Persons with pending rulemaking petitions for channels 60-69 should
amend their petitions to specify a channel below channel 60. Persons
with pending rulemaking petitions for channels 2-59 should amend their
petitions to specify a different channel below channel 60 if their
requested channel is in conflict with a DTV station.

New and amended rulemaking petitions submitted during this window filing
opportunity will be subject to our normal notice and comment procedures.
However, as the Commission indicated in the *Sixth Further Notice* and
reiterated in the *Second MO&O*, new proposals for additional NTSC
channel allotments will not be accepted. Therefore, new parties may not
counterpropose a new NTSC allotment in the same or nearby communities.
The opportunity for filing counterproposals is limited to those parties
with existing petitions and applications that are the subject of this
filing window. When a rule making proceeding has been started by a
Notice of Proposed Rule Making, conflicting proposals must be filed in
initial comments, pursuant to the procedures for consideration of
counterproposals.

Rulemaking petitions and amendments to pending petitions filed during
this window opportunity must conform with all pertinent legal and
technical requirements, including pertinent criteria for interference
protection to NTSC and DTV services. Allotment proposals must meet the
minimum distance separations between NTSC stations (47 C.F.R. Section
73.610). Petitions to [change]{.underline} the channel of an existing
allotment must protect DTV stations as provided in Section 73.623(c),
but without any allowance to create *de minimis* interference as defined
in Section 73.623(c)(2). Amendments to existing petitions to
[add]{.underline} a new NTSC channel allotment must meet the minimum
distance separations to DTV stations as provided in Section 73.623(d).
As indicated above, the term "DTV stations" here includes DTV
authorizations, applications, allotments and proposals. November 1, 1999
was the scheduled due date for most commercial television stations to
file DTV construction permit applications. The Mass Media Bureau is
currently entering into its computer database the many applications that
were filed and expects to complete this entry by the end of the year.

In developing proposed amendments to the allotment table, petitioners
are advised that they should consider, to the extent possible,
authorized LPTV and TV translator stations.

An allotment Report and Order that adds a new channel to the NTSC table
of allotments will specify a period of time for the filing of
applications (using FCC Form 301) for a new NTSC TV station construction
permit.

Associated applications will remain pending as long as there is pending
a petition for rulemaking seeking an alternate channel. An allotment
Report and Order changing a channel allotment will specify a period of
time for the filing of amendments to pending applications (using FCC
Form 301), for the modified channel allotment. Such amendments to
pending applications will be considered minor and the applications will
retain their original file numbers.

**[MX Group resolution]{.underline}**

To encourage settlements among mutually exclusive applicants, we will
waive for this special window filing opportunity the rule that limits
reimbursements of applicants to legitimate and prudent expenses.[^10]
Those applications for particular commercial channel allotments below 60
that continue to be mutually exclusive after the completion of the
amendment process will be resolved by use of the Commission\'s new
broadcast competitive bidding rules.[^11] Consistent with those rules,
wherever two or more applications were pending for the same allotment
before July 1997, the group is closed and no additional applications for
the allotment (on the new channel) will be accepted. Wherever a single
application was pending for an allotment before July 1997, and that
application has not been "cutoff" against the filing of competing
applications, the application (as amended) will be subject to competing
applications in accordance with the Commission\'s auction filing window
procedures to be announced at a later date.

For further information, contact Shaun Maher of the Mass Media Bureau,
Video Services Division at 202-418-1600.

-FCC-

[^1]: ^?^ In addition, authorized NTSC stations and DTV allotments on
    channels 60 to 69 can seek permission to relocate to a lower channel
    at any time, including during this filing window, if they can
    identify a suitable channel. *See* Advanced Television Systems and
    Their Impact upon the Existing Television Broadcast Service, *Sixth
    Further Notice of Proposed Rule Making*, 11 FCC Rcd 10968 at 10987
    and 10992 (1996) (*Sixth Further Notice*).

[^2]: ^?^ *Notice of Proposed Rule Making* in MM Docket No. 99-292, FCC
    99-257, adopted September 22, 1999, and released September 28, 1999.

[^3]: ^?^ *See* *Sixth Further Notice*. The adoption date of the *Sixth
    Further Notice* (July 25, 1996) was the last opportunity to file
    petitions to add channels to the TV Table of Allotments. The
    application-filing deadline (September 20, 1996) was established as
    30 days after publication of the *Sixth Further Notice* in the
    Federal Register.

[^4]: ^?^ *See* Reallocation of Television Channels 60-69, the 746-806
    MHz Band, *Report and Order*, 12 FCC Rcd 22953 (1998) (*Report* and
    *Order*).

[^5]: ^?^ *See* Advanced Television System and Their Impact upon the
    Existing Television Broadcast Service, *Second Memorandum* Opinion
    *and* Order *on Reconsideration of the Fifth and Sixth Report and
    Orders*, 14 FCC Rcd 1348 (1998) (*Second MO&O*).

[^6]: ^?^ *See Order*, RM 58-11, adopted July 16, 1987, Mimeo No. 4074
    (released July 17, 1987), 52 FR 28346 (1987) (*Freeze Order*).

[^7]: ^?^ *See* *Memorandum Opinion and Order on Reconsideration of the
    Fifth Report and Order* in MM Docket No. 87-268, 13 FCC Rcd 6860 at
    6865 (1998). Under the rules the Commission had established in the
    DTV *Sixth Report and Order* (1997), the criteria for adding new DTV
    allotments are different (and generally more restrictive) than the
    criteria for changing a DTV allotment that was in the initial table.
    Specifically, a proponent of a new DTV allotment must select a
    channel between 2 and 51 while a proponent of a change to an initial
    DTV allotment must select a channel between 2 and 59. In addition, a
    proponent of a new DTV allotment must protect DTV and NTSC stations
    by meeting the spacing requirements of Section 73.623(d) of the
    rules), while a proponent of a change to an initial DTV allotment
    must protect DTV and NTSC stations based on the engineering criteria
    of Section 73.623(c) of the rules.

[^8]: ^?^ *See* Sections 1.401 (c) and (d) and Section 1.420 of the
    Commission's Rules regarding channel allotment matters.

[^9]: ? However, there are 2 applications (for channel 64 in
    Charlottesville, VA) that have been through an extended process of
    comparative hearing, court appeal, and remand to the Commission.
    They currently have pending a settlement agreement and an
    application amendment that specify a different channel. Because of
    the age and unique history of those applications and because they
    are currently before the Commission, the Bureau will not require the
    filing of a rule making petition.

[^10]: ^?^ *See* 47 C.F.R. § 73.3525(a)(3). The Commission gave the
    Bureau authority to waive this rule in the TV Channel 60-69 *Report
    and Order*, 12 FCC Rcd 22953 at 22972 (1998).

[^11]: ^?^ *See* In re Implementation of Section 309(j) of the
    Communications Act \-- Competitive Bidding for Commercial Broadcast
    and Instructional Television Fixed Service Licenses, *First Report
    and Order*, 13 FCC Rcd 15920 (1998).