**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

)

In the Matter of )

)

Amendment of Section 73.606(b), ) MB Docket No. 04-289

Table of Allotments, ) RM-10802[^1]

Television Broadcast Stations, and )

Section 73.622(b), Table of Allotments )

Digital Television Broadcast Stations )

(Columbia and Edenton, North Carolina )

)

**[NOTICE OF PROPOSED RULE MAKING]{.underline}**

**Adopted: July 30, 2004 Released: August 6, 2004**

Comment Date: September 27, 2004

Reply Comment Date: October 12, 2004

By the Chief, Video Division:

1\. The Commission has before it a petition for rule making filed by the
University of North Carolina ("petitioner"), licensee of non-commercial
television station WUND-TV, channel \*2, and paired DTV channel \*20,
Columbia, North Carolina (collectively "WUND"). Petitioner requests the
reallottment of channel \*2 and DTV channel \*20 to Edenton, North
Carolina, as the community's first local TV service and the modification
of station WUND's authorizations to specify Edenton as the community of
license.[^2]

2\. Petitioner seeks to invoke the provisions set forth in Section
1.420(i) of the Commission's Rules, which permit the modification of a
station's license to specify a new community of license without
affording other interested parties an opportunity to file competing
expressions of interest. This procedure is limited to situations in
which the new allotment would be mutually exclusive with the existing
allotment; the reallottment will result in a preferential arrangement of
allotments applying the Commission's television allotment
priorities;[^3] and, the change would not deprive a community of its
sole existing broadcast station.[^4]

3\. In support of its request, petitioner states that its proposal to
change its community of license to Edenton is mutually exclusive with
its existing authorization at Columbia. Petitioner states that it does
not propose to relocate the transmitter site for WUND, thus there would
no change in the area or population served by the station with its
over-the-air signals. In applying the allotment priorities, petitioner
contends that this request implicates priority 5, public interest
factors; and, arguably priority 2, providing each community with at
least one television broadcast station.

4\. Petitioner describes Columbia and Edenton as communities located in
the Albemarle Sound region of North Carolina and Virginia. It submits
that the entire Albemarle Sound region is one single community, from a
cultural and commercial respective, encompassing not only the Albemarle
Sound region, but also the sparsely populated areas of the northeastern
corner of North Carolina and the southeaster corner of Virginia.
Petitioner claims that while Columbia and Edenton, as the seats of their
respective counties, each possess the indicia of "community" for
allotment purposes, they are towns that are components of the larger
community encompassing the northeastern region of North Carolina and the
southeastern region of Virginia. As such, petitioner argues that its
proposal to change its community of license from Columbia to Edenton is
not a proposal to change to a new community within the meaning of
Section 307(b) of the Communications Act. It cites *Bessemer and
Tuscaloosa, Alabama*, in Report and Order, 5 FCC Rcd 669 (1990), noting
that the Commission has generally recognized that television is a
regional service, and therefore has employed an expanded definition of
"community" in television "assignment" cases. Also citing *Winter Park
Communications, Inc. vs. F.C.C.,* 873 F.2d 347, 351 (1989), petitioner
argues that the term "communities", as used in Section 307(b) of the
Communications Act is not limited in meaning, but may include
metropolitan areas. Petitioner states that UNC-TV's network transmitters
broadcast television programs simultaneously; allowing viewers in all
part of the state see the programs at the same time, 24 hours a day, and
seven days a week. In North Carolina, according to petitioner, UNC-TV is
unique in its ability to knit citizens of a large, diverse State into a
single community. Petitioner claims that under the broad definition of
"community" as used in Section 307(b) of the Communications Act,
Columbia and Edenton are component parts of the same community. For this
reason, petitioner argues that the second and third requirements to
change a station's community of license are satisfied because there is
no "new" community and no "deprived" community in WUND's proposal.

5\. Petitioner also states that the public interest would be served even
if WUND's proposal represents a change to a new community since its
adoption would result in a net increase of viewers who want to receive
WUND by satellite in the Norfolk-Portsmouth-Newport News DMA ("the
Tidewater Market"). Petitioner states that grant of its proposal would
allow WUND to avail itself of carriage on DBS in the Tidewater Market,
the market which encompasses Edenton and Northeastern North Carolina as
well as southeastern Virginia, but which excludes Columbia, North
Carolina. Petitioner claims that grant of its new proposal will benefit
thousands of satellite viewers who are currently in WUND's Grade B
contour or beyond who want to receive a higher quality signal by
satellite. Petitioner also advises that Columbia is a very small town,
submitting that the population according to the 1990 Census was 836
persons and, according to the 2000 Census, are now 819 persons. By
comparison, Edenton is substantially larger with 1990 Census population
of 5,268 persons, and a 2000 Census population of 5,394 persons.
Petitioner argues that these population figures are evidence that a
change of community of license to Edenton would serve allotment priority
5 since a larger population would receive its first transmission
service. Petitioner believes that the Commission's concern for a
community's loss of its sole existing transmission service is unaffected
by this proposal because WUND's request is merely an administrative
change. However, petitioner requests, if the Commission deems necessary,
a waiver of the Commission's prohibition on the removal of an existing
station representing a community's sole local broadcast service. In this
regard, petitioner cites the *Change of Community MO&O*, noting that one
factor the Commission might consider in such a waiver request is the
proposed provision of first reception service to a significantly sized
population. Although the reallottment would not provide first reception
to any population, petitioner reports that it would provide a first
transmission service to Edenton, North Carolina, a town some 6 ½ times
the size of Columbia.

6\. Based on the information before us, we do not believe that the
petitioner has demonstrated that its proposal would result in a
preferential arrangement of allotments. While it is true that the
reallottment of WUND's channels to Edenton would provide the community
with its local transmission service, it will be at the expense of
Columbia, a community that would lose its sole existing transmission
service. As pointed out by petitioner, the Commission will entertain
requests to waive the prohibition on the removal of a local service,
however, we find that petitioner's reliance on population gains
attributed to UNC-TV's carriage on DBS in the Norfolk-Portsmouth-Newport
News DMA, a subscriber service, is too speculative to be considered.
*See Memorandum Opinion and Order on Remand*, MM Docket No. 93-191
(Pueblo, Colorado), FCC 99-162 (released July 7, 1999) and *Change of
Community MO&O*. Therefore, we request that petitioner submit an
analysis of the television transmission services licensed to the serve
the "Tidewater Market", as well as the television reception services and
population figures currently receiving these services. In addition, we
request an analysis of the television reception services currently
received in the communities of Edenton and Columbia, North Carolina.

7\. We believe the public interest would served by soliciting comments
on this proposal since it could provide Edenton with its first local
video transmission service, if granted. We also propose to modify
petitioner's authorization for station WUND to specify Edenton as its
community of license. In compliance with Section 1.420(i), we will not
accept competing expressions of interest in the use of television
channels \*2 and \*20 at Edenton. TV channel \*2 and DTV channel \*20
can be allotted to Edenton in compliance with the Commission's minimum
distance separation requirements at Station WUND's current licensed
transmitter site. The coordinates for channels \*2 and \*20 at Edenton
are 35-54-00 N. and 76-20-45 W.

8\. Accordingly, we seek comments on the proposed amendment of the TV
Table of Allotments, Section 73.606(b) of the Commission\'s Rules, for
the community listed below, to read as follows:

[Channel No.]{.underline}

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

Columbia, North Carolina \*2 \--

Edenton, North Carolina \-- \*2

9\. Accordingly, we seek comments on the proposed amendment of the DTV
Table of Allotments, Section 73.622(b) of the Commission\'s Rules, for
the community listed below, to read as follows:

[Channel No.]{.underline}

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

Columbia, North Carolina \*20 \--

Edenton, North Carolina \-- \*20

10\. The Commission\'s authority to institute rule-making proceedings,
showings required, cut-off procedures, and filing requirements are
contained in the attached Appendix and are incorporated by reference
herein. In particular, we note that a showing of continuing interest is
required by paragraph 2 of the Appendix before a channel will be
allotted.

11\. Interested parties may file comments on or before September 27,
2004, and reply comments on or before October 12, 2004 and are advised
to read the Appendix for the proper procedures. Comments should be filed
with the Secretary, Federal Communications Commission, Washington, D.C.
20554. Additionally, a copy of such comments should be served on the
petitioner, or its counsel or consultant, as follows:

Marcus W. Trathen

Brooks, Pierce, McLendon, Humphrey & Leonard, LLP

P.O. Box 1800

Raleigh, North Carolina 27602

(Counsel for the University of North Carolina)

12\. 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, Section 73.606(b).
[See]{.underline} [Certification That Sections 603 and 604 of the
Regulatory]{.underline} [Flexibility Act Do Not Apply to Rule Making to
Amend Sections 73.202(b), 73.504]{.underline} [and 73.606(b) of the
Commission\'s Rules]{.underline}, 46 FR 11549, February 9, 1981. The
Regulatory Flexibility Act of 1980 would also not apply to rule making
proceedings to amend the DTV Table of Allotments, Section 73.622(b) of
the Commission\'s Rules.

13\. For further information concerning this proceeding, contact Pam
Blumenthal, 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]{.underline} presentations are
permitted from the time the Commission adopts a Notice of Proposed Rule
Making until the proceeding has been decided and such decision is no
longer subject to reconsideration by the Commission or review by any
court. An [ex parte]{.underline} 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 a
summary of any new oral information shall be served by the person making
the presentation upon the other parties to the proceeding unless the
Commission specifically waives this service requirement. Any comment
which has not been served on the petitioner constitutes an [ex
parte]{.underline} 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]{.underline} presentation and shall not be considered in the
proceeding.

FEDERAL COMMUNICATIONS COMMISSION

Barbara A. Kreisman

Chief, Video Division

Media Bureau

Attachment: Appendix

[APPENDIX]{.underline}

1\. Pursuant to authority found in Sections 4(i), 5(c)(1), 303(g) and
(r), and 307(b) of the Communications Act of 1934, as amended, and
Sections 0.61, 0.204(b) and 0.283 of the Commission\'s Rules, IT IS
PROPOSED TO AMEND the DTV Table of Allotments, Section 73.622(b) of the
Commission\'s Rules and Regulations, as set forth in the [Notice of
Proposed Rule Making]{.underline} to which this Appendix is attached.

2\. [Showings Required]{.underline}. Comments are invited on the
proposal(s) discussed in the [Notice of Proposed Rule
Making]{.underline} 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]{.underline}. The following procedures will
govern the consideration of 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]{.underline} Section 1.420(d) of the Commission\'s
Rules).

\(b\) With respect to petitions for rule making which conflict with the
proposals in this [Notice]{.underline}, 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]{.underline}. Pursuant to
applicable procedures set out in Sections 1.415 and 1.420 of the
Commission\'s Rules and Regulations, interested parties may file
comments and reply comments on or before the dates set forth in the
[Notice of Proposed Rule Making]{.underline} 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. Comments shall be served on
the petitioner by the person filing the comments. Reply comments shall
be served on the person(s) who filed comments to which the reply is
directed. Such comments and reply comments shall be accompanied by a
certificate of service. ([See]{.underline} Section 1.420(a), (b) and (c)
of the Commission\'s Rules.). The Commission permits the electronic
filing of all pleadings and comments in proceeding involving petitions
for rule making (*except in broadcast allotment proceedings*).
[See]{.underline} [Electronic Filing of Documents in Rule Making
Proceedings]{.underline}, GC Docket No. 97-113 (rel. April 6, 1998).
Filings by paper 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, Vistronix,
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 and Priority Mail) must be sent to 9300 East Hampton Drive,
Capitol Heights, MD 20743. U.S. Postal Service first-class mail, Express
Mail, and Priority Mail should be addressed to 445 12^th^ Street, SW,
Washington, D.C. 20554. All filings must be addressed to the
Commission\'s Secretary, Office of the Secretary, Federal Communications
Commission, Washington, D.C. 20554.

5\. [Number of Copies]{.underline}. In accordance with the provisions of
Section 1.420 of the Commission\'s Rules and Regulations, an original
and four copies of all comments, reply comments, pleadings, briefs, or
other documents shall be furnished the Commission.

6\. [Public Inspection of Filings]{.underline}. All filings made in this
proceeding will be available for examination by interested parties
during regular business hours in the Commission\'s Reference Center
(Room CY-A257) at its headquarters, 445 12th Street, S.W., Washington,
D.C.

[^1]: In the *Notice of Proposed Rule Making* in MM Docket No. 03-224
    (Knoxville, Tennessee), 18 FCC Rcd 22061 (2003), the rule making
    number was incorrectly identified as RM-10802 in lieu of RM-10801.

[^2]: Hampton Roads Educational Telecommunications Association, Inc.,
    licensee of noncommercial educational station WHRO-TV,
    Hampton-Norfolk, Virginia, filed Opposition to Petition for Rule
    Making. We will not consider Hampton Roads ETA's opposition, as
    Section 1.405 of the Commission's Rules does not contemplate the
    filing of comments to petitions for rule making to amend the
    Television Table of Allotment prior to the issuance of a Notice of
    Proposed Rule Making. Hampton Roads ETA's opposition is hereby
    dismissed.

[^3]: The television allotment priorities are as follows: (1) to provide
    at least one television service to all parts of the United States;
    (2) to provide each community with at least one television broadcast
    station; (3) to provide a choice of at least two television services
    to all parts of the United States; (4) to provide each community
    with at least two television stations; and, (5) assign any remaining
    channels to communities based on population, geographic location,
    and the number of reception television services available to the
    community. *See Sixth Report and Order on Television Allocations,*
    41 F.C.C. 148 (1952).

[^4]: *See Modification of FM and TV Authorization to Specify a New
    Community of License ("Change of Community R&O"),* 4 FCC Rcd 4870
    (1989), *recon. granted in part,* 5 FCC Rcd 7094 (1990), *("Change
    of Community MO&O").* .