**Before the**

**FEDERAL COMMUNICATIONS COMMISSION**

**Washington, D.C. 20554**

In re )

)

Amendment of Section 73.622(b), )

Table of Allotments, )

Digital Television Broadcast Stations )

(Hagerstown and Silver Spring, Maryland) )

**MEMORANDUM OPINION AND ORDER**

Adopted: February 24, 2004 Released: February 25, 2004

By the Chief, Media Bureau:

1\. The Commission, by the Chief, Media Bureau, herein considers a
petition for reconsideration filed on August 25, 2003, by Entravision
Holdings, LLC ("Entravision"), licensee of NTSC station WJAL(TV),
channel 68, Hagerstown, Maryland. Entravision seeks reconsideration of
the July 25, 2003, staff letter denying its request, to change the
community of license for the station's paired DTV channel 16 allotment,
WJAL-DT, from Hagerstown to Silver Spring, Maryland.[^1]

2\. **Background.** In its petition for rulemaking, Entravision argued
that the reallotment of DTV channel 16 to Silver Spring, and the
relocation of its transmitter from Hagerstown to a site within the
Washington, D.C. metropolitan area, would result in a preferential
arrangement of allotments, consistent with the analog television
allotment priorities and the Commission's rules regarding modification
of television authorizations to specify a new community of license.[^2]
Entravision acknowledged, however, that its proposed transmitter
relocation and initiation of service in Silver Spring raised
interference issues with respect to land mobile operations in the
Washington, D.C. area. According to the staff's independent engineering
analysis, Entravision's proposed WJAL-DT would be located only 7.9 km
from the community reference point for adjacent land mobile operations
on channel 17. The Commission's rules require that digital television
stations be located a minimum of 250 kilometers (155 miles) from the
geographic center of a co-channel land mobile allocation, and a minimum
of 176 kilometers (110 miles) from the geographic center of an adjacent
land mobile allocation.[^3] Operating as proposed, WJAL-DT would be
168.1 km (more than 96 percent) short spaced to land mobile operations
on channel 17 in the Washington area.

3\. Nevertheless, Entravision requested a waiver of the spacing rules to
implement its proposed operation, based, in large measure, on its pledge
to eliminate any resulting interference to land mobile operations on
channel 17.[^4] It specifically sought waiver of Section 73.623(e) of
the Commission's Rules, insofar as it requires that "all affected land
mobile licensees consent to the requested action." [^5] In support,
Entravision argued that when the Commission made the existing WJAL-DT
channel allotment, it did so knowing that it violated spacing
requirements without any requirement that land mobile users' consent be
obtained. Entravision claimed that by that action, the Commission
acknowledged the difficulty of complying with these requirements and the
absence of the need to secure the prior consent of existing land mobile
users. It also asserted that the Commission implicitly recognized that
that the consent requirement is "onerous" and "virtually impossible' to
satisfy due to the large number of land mobile users in the Washington
area. Entravision further maintained that the Commission expressed "its
continued willingness to waive land mobile spacing requirements in order
to accommodate the transition to digital broadcasting," citing various
instances where the Commission either encouraged or granted DTV
proposals that could be constructed and operated in harmony with
adjacent land mobile facilities despite noncompliance with distance
separations.[^6] Finally, Entravision stated that grant of its proposal
would have the added benefit of eliminating interference that would be
caused to WJAL-DT from station WFDC-DT, operating on adjacent channel 15
at Arlington, Virginia.

4\. Entravision's request for waiver of the spacing rules was denied and
its rulemaking proposal was dismissed on July 25, 2003. The staff
explained that the television table of allotments is based on a system
of minimum station separations which, along with maximum allowable
powers and antenna heights, establish the degree of protection from
interference afforded to spectrum users. Because those rules
presumptively serve the public interest, applicants seeking waivers to
operate from short-spaced sites are required to demonstrate that the
public interest will be better served by a waiver of, rather than by
complying with, those rules under the specific circumstances presented.
In the case of WJAL-DT, the staff found that the public interest would
not be served by waiving the minimum distance spacing rule.
Specifically, it concluded that a grant of Entravision's proposal to
change its community of license would, under these circumstances, likely
cause significant disruption to existing public safety and emergency
operations in the Washington, D.C. metropolitan area. The staff found
that the continued operation of an accurate and reliable public safety
communications system in the region serves the public interest,
especially in light of the tragic events of September 11, 2001.
Moreover, it stated that a waiver of our rule here to allow WJAL-DT to
be nearly 100 percent short spaced to public safety operations on
channel 17 without first obtaining the consent of affected licensees
would essentially render that rule ineffective.

5\. The staff also rejected Entravision's conclusion that our recent
action in *Blanco* compelled the grant of its waiver request with
respect to land mobile operations in the Washington, D.C. area. It
explained that the *Blanco* decision was based solely on the special
circumstances presented in that case, which were distinguishable from
Entravision's proposal. It was noted that the applicant in *Blanco* was
the winning bidder for a channel that was subsequently eliminated when
the Commission adopted a new reallocation plan.[^7] In so doing, the
Commission specifically noted the result of its action on the Blanco
allocation was to effectively foreclose that service. It directed the
staff to expedite the substitution of channel 17 to Blanco and consider
waiver of applicable land mobile distance in order to effectuate that
proposal. The Commission also required that if such a waiver were
granted, it would be conditioned upon the applicant agreeing to various
technical restrictions on its operation, including limiting its signal
that would impact land mobile operators in the more highly populated
area (in that case, Houston). The staff noted that Entravision made no
such commitments here, and it concluded that given the almost complete
short spacing, it could not practically provide such protection to land
mobile users. In that regard, it was observed that the short spacing
involved in *Blanco* (11 percent) was far less egregious than that
presented here (more than 96 percent), and that channel 17 at Blanco was
located outside the area in which the land mobile users there operated,
whereas Entravision's proposed operation is located directly in the area
the Washington, D.C. land mobile users operate.

6\. Finally, the staff noted that the present allotments for WJAL-DT and
WFDC-DT, Arlington, do not interfere, but that the licensees of those
two stations have agreed to propose facilities that conflict with one
another and accept the interference that results to each DTV station.
Thus, it found that Entravision's proposed move would alleviate
self-created interference problems, and that was not a persuasive basis
for creating significant disruption to land mobile operations.

7\. **Petition For Reconsideration.** Entravision now asserts that the
staff's conclusion that its proposed change of its community of license
is likely to cause disruption to land mobile users operating on channel
17, and that it could not effectively protect them from interference, is
contrary to both law and fact. It restates that its current allotment
violates spacing requirements with respect to land mobile operations,
and that that was done without land mobile users' consent; that by doing
so, the Commission implicitly recognized that short-spaced allotments do
not conform to the "real world" coexistence of DTV operations; that in
order to for both services to co-exist, land mobile separation rules may
be waived; and the consent requirement is impossible to satisfy given
the large number of land mobile users in the Washington, D.C. area.

8\. Entravision further reasons that, because land mobile distance
separation and consent requirements cannot be realistically satisfied,
its proposal addresses the underlying concern of those rules -- the
interference to be caused by its proposed construction and operation. In
that regard, it again argues that the Commission has recognized that
such interference could occur and licensees would be obligated to
protect or eliminate such interference with respect to land mobile users
that had commenced operating. It claims that the staff misapplied
*Blanco* in that it made a "false distinction" based on the degree of
short spacing rather than as a precedent for waiving spacing
requirements when interference can be effectively contained.

9\. In this regard, Entravision states that *Blanco* involved a
co-channel relationship rather than, as is proposed here, an
adjacent-channel situation where interference prevention methodologies
can be applied. Entravision argues that, in denying its waiver request,
the staff failed to substantiate that such interference techniques would
not be successful in this case. Moreover, inasmuch as it is willing to
have its authority to operate conditioned upon the prevention of
interference to land mobile operators on channel 17, Entravision states
that the staff inaccurately concluded that, unlike the *Blanco,* it did
not agree to accept interference from current and future land mobile
facilities. Moreover, Entravision argues that so long as it is prepared
to prevent interference from its operation to existing and future land
mobile users and there is no reason why it should not succeed in doing
so, the failure to grant its requested waiver was erroneous.[^8]

10\. **Discussion.** Section 1.106 of the Commission's Rules requires,
among other things, that a request for reconsideration reference new
facts or changed circumstances not previously present or findings of
fact and/or conclusions of law which the petitioner believes to be
erroneous. *See* 47 C.F.R. §1.106(c)&(d). Entravision's petition
essentially raises matters advanced and addressed earlier in this
proceeding with respect to its request for a waiver of the Commission's
spacing rules, and sets forth its disagreements with the findings and
conclusions of the staff to deny that waiver, which it now terms
"contrary to law and fact." For the reasons that follow, the Bureau
concludes that Entravision fails to establish a basis to reverse the
denial of its request to waive Section 73.623(e) of the Commission's
rules to permit its proposed change of community of license from
Hagerstown to Silver Spring, Maryland.

11\. As explained in the earlier ruling, the Commission will generally
not grant a waiver of minimum station separation rules for allotment
purposes absent the demonstration of a compelling need to depart from
those well-established separation standards.[^9] In similar cases, we
have repeatedly observed that strict adherence to the spacing
requirements upon which the Table of Allotments is based "is necessary .
. . in order to provide a consistent, reliable and efficient" scheme of
allotments.[^10] In those rare cases that the Commission has granted
short-spaced allotments, it has done so based on highly unusual
circumstances and when there was a substantial public benefit to be
gained at a minimal cost.[^11] As explained in the July 25^th^ letter,
Entravision did not make the compelling showing to support its waiver
request for a short-spaced allotment. In this regard, Entravision's
showing is like similar cases where petitioners seek short-spaced
allotments to improve their geographic coverage area, but the public
interest benefits advanced simply do not outweigh the harms to be caused
to the integrity of the Table of Allotments, and the Commission's
minimum spacing rules and its spectrum management policies.

12\. We reject the underlying premise of Entravision's argument on
reconsideration \-- that it was entitled to the grant of its requested
waiver of Section 73.623(e) of the Commission's Rules because that rule
has been waived in the past or was "violated" when its digital channel
was initially allotted. It is axiomatic that even if the Commission has
waived this or any of its rules in the past, it is not compelled to do
so in every case or under any circumstances. We are also not persuaded
that the comparatively minor short spacing to land mobile facilities
attendant to the initial allotment of Entravision's present paired DTV
channel supports further and significantly increased deviation from the
spacing rules absent other compelling public interest factors.[^12] The
larger public interest considerations underlying the establishment of
the initial DTV Table of Allotments substantially outweigh the limited
public benefits alleged in this case, and the current short spacing to
land mobile operations does not justify exacerbation of that spacing to
the degree proposed here.[^13]

13\. We continue to remain unconvinced that Entravision's limited
reading of *Blanco* compels the waiver of the spacing rules in order to
accommodate the grant of its application. In *Blanco,* a short-spaced
allotment was made to implement the Commission's allocation of a channel
to that community that was subsequently eliminated in a new reallocation
plan. In that case, the Commission's reallotment plan foreclosed the
provision of service to a community designated to receive its first
service. In making the short-spaced allotment necessary to implement
that service, we placed a restriction limiting any operation on that
channel to effectively limit its signal to avoid interference to land
mobile operations in a more highly populated area. In this case, by
contrast, Entravision has an allotted DTV channel to implement digital
service to Hagerstown, and there is no suggestion that its ability to
provide that service is foreclosed or at risk, as was clearly the case
in *Blanco*. Entravision's DTV channel will continue to be available to
it for the provision of WJAL-DT's digital service. Thus, we do not find
that waiver of the minimum spacing rules is necessary to accommodate the
transition to digital broadcasting in this case.

14\. Entravision's focus in its reconsideration pleading on its pledge
to eliminate resulting interference is misplaced. In *Blanco,* the
Commission was able to assure adequate protection of potentially
affected land mobile operators impacted by the comparatively minor 11
percent short spacing involved there by restricting the operating
parameters of any operation on that channel. Given the nearly 100
percent short spacing involved in this case, we are unable to
effectively restrict the operating parameters of any implementing
construction permit to limit predicted interference to land mobile
operations in the highly populated Washington, D.C. area.

15\. The potential harm to the public, before any resulting interference
to land mobile operators and the provision of public safety services can
be cured, is substantial. As proposed by Entravision, before that
interference can be overcome, it will first have to be identified and
studied in conjunction with individual land mobile operators, customized
equipment and filtering may have to be manufactured, installed, and
tested, appropriate governmental approvals may be necessary to obtain,
and all of these efforts must be coordinated with all affected spectrum
users without disruption of the public services provided by existing
land mobile operations. Given its admitted inability to identify in
advance the large number of land mobile operators that could be
impacted, Entravision has not demonstrated how service disruptions of
that potential magnitude and complexity can be quickly, effectively and
reliably avoided. Moreover, simply suggesting that methodologies exist
that should permit Entravision to address the interference to be created
here does not adequately demonstrate that it can and will alleviate that
interference expeditiously and without substantial disruption to
existing services. We do not agree that it is up to the staff, as
Entravision claims, to demonstrate that those general methodologies will
*not* work. Perhaps most importantly, the grant of the requested waiver
under these circumstances would effectively eliminate the consent
requirement and permit the grant of virtually any short-spaced proposal
application based merely on an applicant's pledge to eliminate the
resulting interference those rules are intended to avoid after it
occurs. Such action would create a precedent for similar proposals that
would essentially eviscerate the spacing rules, and will result in a
significant disruption of important land mobile services to the public
and undermine the Commission's spectrum management planning and
policies.[^14]

16\. Furthermore, because of the location of this channel in the
National Capital area, the requested waiver poses an additional
significant and substantial threat to public safety if such service
disruptions to land mobile operations were to occur during an emergency
situation. The terrorist acts of September 11, 2001, and the ongoing
terrorist threats to national security have made clear the need of
public safety spectrum users to have the most reliable access possible
to sufficient telecommunications capacity during an emergency. A
reliable telecommunications system that will not be overwhelmed in a
crisis is fundamental to the ability of first responders, medical
personnel and others to do their jobs in an emergency. In such a
situation, ongoing licensee experimentation to relieve interference to
public safety spectrum users cannot be considered as ensuring vital
communications resources and, as such, does not serve the public's
interest.

17\. Entravision's contention that a preferred arrangement of television
allotments will result from the grant of its requested waiver is also
unavailing. As presently allotted, WJAL-DT cannot reach the Washington
market in compliance with our rules. Reallotment of its channel as a
first service to a community adjacent to Washington, D.C., as proposed,
then allows it to relocate there and therefore substantially increase
the population served by the station. While the proposed allotment of a
DTV channel to Silver Spring may ostensibly represent that community's
first local service, in reality it would be merely an additional local
service in the substantially larger and better served Washington, D.C.
television market. In *Community Modifications,* the Commission observed
that there might be some instances where licensees moving to more
populated areas to increase their service area, even at the expense of
service to more rural communities, would be consistent with our
allotment priorities. The Commission, however, stated that it would rely
on the application of the allotment priorities "in conjunction with the
Commission's minimum distance separation requirements and the present
intensive use of spectrum in urban areas, \[to\] act as a barrier to the
clustering of stations in major metropolitan areas \[and to\] address
the issue as necessary."[^15]

18\. If Entravision's community of license change proposal was
permissible under our rules without the need for a waiver of the spacing
rules, our analysis of the public interest implications might well be
limited.[^16] As another factor in the public interest balance, however,
we must consider that relocation of WJAL-DT's service area would be
achieved at a high cost -- the loss of existing service to Hagerstown.
The curtailment of existing service is not in the public interest
generally, and the weight accorded the public's expectation that
existing service will continue is substantial and is sufficient to
counterbalance a preferred arrangement of allotments.[^17] Based on the
totality of circumstances and public interest considerations present in
this case, we cannot agree that the limited public interest benefits
attendant to the proposed reallotment of DTV channel 16 from Hagerstown
to Silver Spring outweigh the myriad and substantial harms that will
result from a waiver of the station separation requirements. As such,
Entravision's proposal is inconsistent with the Commission's allotment
priorities insofar as it fails to propose a short-spaced allotment with
significant public benefit that can be achieved at minimal cost and
disruption. Moreover, it would substantially undermine the Commission's
use of the minimum spacing rules to ensure that community of license
change procedures not be misused to cluster stations in major
metropolitan areas at the expense of service to more rural communities.

19\. Based on the above, we are not persuaded that the staff acted
erroneously by denying Entravision's requested waiver. The proposed
reallotment of channels here would result in a significant curtailment
of existing television service, would pose an unacceptable threat to the
public by causing disruptive and substantial interference to land mobile
operations, would foreclose the development and expansion of land mobile
operations, and effectively eviscerate the Commission's current spacing
rules, community of license change policies and spectrum management
goals with little, if any, offsetting benefits to the public.
Accordingly, the Petition for Reconsideration in this matter filed by
Entravision Holdings, LLC IS DENIED.

FEDERAL COMMUNICATIONS COMMISSION

W. Kenneth Ferree

Chief, Media Bureau

[^1]: *See* Letter to Entravision Holdings, LLC from Barbara A.
    Kreisman, Chief, Video Division.

[^2]: *Amendment of the Commission's Rules Regarding Modification of FM
    and TV Authorizations to Specify a New Community of License,* 4 FCC
    Rcd 4870 (1989), *clarified,* 5 FCC Rcd 7094 (1990)(*Community
    Modifications)*. *See also, Sixth Report and Order on Television
    Allocations*, 41 FCC 148, 167 (1952). Specifically, Entravision
    argued that, all other relevant factors being equal, its proposal
    would result in the first digital television broadcast station
    licensed to Silver Spring; would result in a net population gain of
    4,264,749 persons in the Washington, D.C. metropolitan area for
    WJAL-DT; and, because Hagerstown currently has licensed to it two
    NTSC stations, not leave that community unserved or underserved.

[^3]: *See* 47 C.F.R. § 73.623(e).

[^4]: Entravision proposed to use interference mitigation technology
    that it argues has recently been deployed successfully and "in
    harmony" with adjacent land mobile facilities. It stated that it had
    no basis to conclude that such technology would not be successful if
    used in this case.

[^5]: *Accord, Advanced Television Systems and Their Impact Upon the
    Existing Television Broadcast Service*, MM Docket No. 87-268, *Sixth
    Report and Order*, 12 FCC Rcd 14588, 14664 (1997) ("\[I\]f . . .
    problems occur, it will be the initial responsibility of the DTV
    licensee to protect against or eliminate harmful interference to
    land mobile services that have commenced operations and that are
    operating in accordance with our rules at the time the DTV licensee
    goes on the air.").

[^6]: In that regard, Entravision relied primarily on the recent waiver
    of applicable land mobile distance separation criteria in *Amendment
    of Section 73.606(b), Table of Allotments, Television Broadcast
    Stations (Blanco, Texas)*, 17 FCC Rcd 17166 (2002) ("*Blanco*"),
    where the Commission directed the Media Bureau to consider such
    waivers, as appropriate, to implement the provision of service on
    that channel.

[^7]: *See,* *Reallocation and Service Rules for the 698-746 MHz
    Spectrum Band (Television Channels 52-59)*, 17 FCC 11613 (2002).

[^8]: Entravision also argues that the staff incorrectly concluded that
    WJAL-DT and WFDC-DT, channel 15, Arlington, Virginia, as currently
    allotted, do not interfere with one another as a basis to find that
    the alleviation of the self-created interference by the stations'
    DTV proposals was not a persuasive reason to waive our spacing
    rules. It believes that the Bureau suggests that interference
    between adjacent channels does not occur, whereas it states that
    "non-interference" is only achieved when adjacent channels are
    either virtually co-located or are sufficiently far apart that the
    required desired-to-undesired signal interference ratio is achieved
    throughout the service areas. It maintains that the current
    allotments for the WJAL-DT and WFDC-DT facilities results in
    unmasked adjacent-channel interference affecting over 3,100 people.
    Entravision reiterates that the proposed co-location of its
    transmitter with that of WFDC-DT would enable it to overcome that
    interference from that station and "to provide optimal service to
    the public without the encumbrance of agreed-to interference in
    excess of that otherwise permitted."

[^9]: *See, e.g., Amendment of Section 73.606(b), Television Table of
    Allotments (Pueblo, Colorado),* 10 FCC Rcd 7662*,* 7667 (MMB 1995),
    *app. for rev. denied,* 11 FCC Rcd 19649 (1996), *aff'd on remand,*
    FCC 99-162 (released July 7, 1999).

[^10]: *Amendment of Section 73.606(b), Television Table of Allotments
    (Millington, Maryland),* 45 RR 2d 1689, 1690-91 (1979). *See also,
    Amendment of Section 73.606(b), Television Table of Allotments
    (Pueblo, Colorado),* 10 FCC Rcd 7662 (1995), *review denied,* 11 FCC
    Rcd 19649 (1996),

[^11]: *See, e.g., Notice of Proposed Rulemaking to Amend Television
    Table of Assignments to Add New VHF Stations in the Top 100
    Markets,* 63 FCC 2d 840, 855 (1977), *Report and Order,* 81 FCC 2d
    233, 261-67 (1980), *recon. denied,* 90 FCC 2d 160 (1982).

[^12]: When this channel was allotted, it was part of an extraordinary
    complex undertaking of identifying a channel arrangement to fully
    accommodate approximately 1,700 existing television stations so that
    each was assigned a paired DTV channel. Although every effort was
    made to minimize the number and extent of such short spacings, some
    were nevertheless created and incorporated into the initial DTV
    Table of Allotments. *Sixth Report and Order* in MM Docket No.
    87-268, 12 FCC Rcd 14588, 14629 (1997). Moreover, when a licensee,
    operating from an authorized site seeks authority to move to one
    that is short spaced (or, as is the case with WJAL-DT, proposes to
    increase its existing short spacing), it faces a higher burden, and
    we will consider other factors, such as the unavailability of a
    fully-spaced site, the magnitude of the short spacing, the nature
    and extent of any predicted loss of service, the concerns of the
    affected licensees, and whether the licensee had knowledge of
    existing spacing constraints when it obtained its authorization.
    *See, e.g., Townsend Broadcasting Corp.,* 62 FCC 2d 511 (1976).
    Other than Entravision's contention that it will serve more people,
    there is nothing presented to indicate that its present allotment or
    facilities is unsatisfactory or unavailable.

[^13]: Similarly, the alleviation of the claimed unmasked interference
    from WFDC-DT, Arlington, Virginia, attendant to the creation of the
    initial DTV Table of Allotments is not a public interest factor of
    such weight as to overcome the other service concerns raised by this
    proposal.

[^14]: ^?^ To the extent that Entravision pledges to protect only
    existing land mobile operations, there is an additional and
    significant public cost without countervailing benefits in that the
    grant of this proposal will effectively restrict the continued
    development and expansion of that spectrum as intended by the
    Commission by foreclosing any future land mobile proposals that
    would be unable to effectively protect WJAL-DT's proposed operation.
    To the extent that Entravision pledges to accept interference from
    future land mobile operators, such interference could essentially
    eviscerate the service it intends to provide, further undermining
    the allotment rules and policies. In addition, the presence of
    Entravision's proposed DTV station could constrain the service of
    future land mobile operations in a manner that cannot be
    characterized or remedied as interference *per se*. For example,
    because a DTV signal resembles electrical noise, a higher noise
    level often means that the desired signal level must also be higher
    to provide acceptable service. In a land mobile system, this could
    result in a mobile station being unable to operate at as great a
    distance from a base station as it could before the noise level
    increased.

[^15]: ^?^ *Community Modifications,* 4 FCC Rcd at 4873.

[^16]: ^?^ In this regard, Entravision's assertion that a preferred
    allotment arrangement would result if its proposal was granted is
    not dispositive of the issue of whether our technical rules should
    be waived to permit the reallotment of its channel. In that regard,
    although there is a presumed public interest basis for a
    preferential arrangement of analog television channels in community
    of license change proceedings, that fact doesn't necessarily
    supercede the public interest considerations inherent in using the
    required station separation rules to protect the integrity of the
    DTV Table of Allotments and the land mobile spectrum.

[^17]: ^?^ *See, e.g., Amendment of Section 73.606(b), Television Table
    of Allotments (Eatonton and Sandy Springs, Georgia, and Anniston and
    Lineville, Alabama),* 6 FCC Rcd 6580, 6586-87(1991). *See also Hall
    v. FCC,* 237 F. 2d 567 (1956). When WJAL-TV ceases operating on its
    current analog channel, Hagerstown will be deprived of this existing
    service, and, because Entravision's proposal would actually remove a
    DTV channel allotted to that community, it will not even be offered
    the "poor substitute" of a vacant allotment that could be used to
    reestablish service to Hagerstown at some future date.