**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Amendment of Section 73.622(b) ) MM Docket No. 99-197

Table of Allotments ) RM-9573

Digital Television Broadcast Stations )

(Salt Lake City, Ogden and Provo, Utah) )

**[REPORT AND ORDER]{.underline}**

**(Proceeding Terminated)**

**Adopted: May 15, 2000 Released: May 18, 2000**

By the Commission:

1\. At the request of eight television stations in the Salt Lake City,
Utah, television market (\"DTV Utah\")[^1], the Commission has before it
the *Notice of Proposed Rule Making,* 14 FCC 7757 (1999) (*"Notice"*) in
the above-captioned proceeding proposing changes to the DTV Table of
Allotments. Specifically, DTV Utah requests the substitution of Channel
\*44 for Channel \*39 as the reserved NCE channel assigned to KBYU-TV,
Provo; the substitution of Channel 46 for Channel 27 as the DTV channel
assigned to KJZZ-TV, Salt Lake City; the substitution of Channel \*36
for Channel \*34 as the reserved NCE DTV channel assigned to KULC,
Ogden; and the substitution of Channel 48 for Channel 17 as the DTV
channel assigned to KUWB, Ogden. DTV Utah filed comments in support of
the proposal. Utah Communications, L.L.C. (\"Utah Communications\"),
licensee of Station KAZG, Channel 24, Ogden, filed comments styled as a
counterproposal. Tooele 36, L.L.C. (\"Tooele 36\"), proponent of a
Petition for Rule Making requesting the allocation of NTSC Channel 36 to
Tooele, Utah, also filed comments.[^2] Finally, DTV Utah filed reply
comments.

2\. In their comments, DTV Utah states that their proposal is regional
in scope and was developed with the extraordinary efforts of State of
Utah broadcasters to advance the quick and efficient implementation of
DTV in the market. Under the DTV Utah plan, the DTV Utah stations will
be able to co-locate their digital operations on a single tower.
According to DTV Utah, this proposal will permit an efficient and
economical tower design and operation for each station, will result in
the construction of fewer towers in Utah, and will promote DTV reception
from antennas oriented towards the single tower, thereby facilitating
consumer interest in and access to DTV services. DTV Utah reiterates the
need for the proposed channel plan as a whole to be adopted.[^3] They
submit that the proposal is essential to prevent harmful interference
and engineering obstacles not only to the eight stations proposing to
co-locate, but also with the NTSC and DTV operations of other area full-
power stations. DTV Utah also states that they have taken steps to
ensure that this proposal will not disrupt existing LPTV and translator
services in the area.

**[Utah Communications]{.underline}**

3\. Utah Communications states that on July 24, 1996, prior to the
"freeze" on the filing of proposals for new NTSC allotments, it
requested that the TV Table of Allotments be modified to substitute NTSC
Channel 42 for Channel 24 at Ogden. Thereafter, the Commission released
*Advanced Television Systems and Their Impact upon the Existing
Television Broadcast Service, Sixth Report and Order*, MM Docket No.
87-268, 12 FCC Rcd 14588 (1997) ("*Sixth Report and Order*"). Utah
Communications claims that as a result of the *Sixth Report and Order*,
Channel 42 is no longer suitable for use in Ogden as an analog
assignment. Thereafter, on July 28, 1998, Utah Communications
"supplemented" its pending rule making petition to amend its proposal by
requesting the substitution of Channel 49 for Channel 24 at Ogden as an
NTSC allocation. It now states that its "timely-filed" proposal to
operate on Channel 49 at Ogden is mutually exclusive with DTV Utah's
plan to change Channel 29 to Channel 48 there, and that its petition
must be consolidated with and considered part of this docket.[^4] In its
reply comments, DTV Utah contends, among other things, that Utah
Communications' July 1998 filing proposing to allot Channel 49 to Ogden
was filed long after July 25, 1996 \-- the last date the Commission
would accept petitions to amend the TV table to add allotments for new
NTSC stations \-- and is therefore entitled to no protection as against
its proposal.

4\. **[Discussion]{.underline}.** We will not incorporate Utah
Communications' proposal into this proceeding as it requests. A study by
our engineering staff indicates that DTV Utah's proposal to allot DTV
Channel 48 at Ogden would not be mutually exclusive with the Utah
Communications' plan for NTSC Channel 49. It appears that both stations
are essentially co-located. Specifically, Utah Communications' proposed
site is about 0.43 km from the proposed site for DTV Channel 48. As a
result, Utah Communications' proposal complies with Section 73.623(d),
which requires the geographic spacing separation for adjacent-channel
DTV to analog TV in Zone II to be less than 12 km or more than 106 km.
Therefore, we will not consider Utah Communications' proposal in the
context of this proceeding, and its pending rule making petition will be
addressed in a separate proceeding.[^5]

## Tooele 36

5\. Tooele 36 states that on July 23, 1996, it filed both a petition for
rule making requesting the allotment of NTSC Channel 36 to Tooele, Utah,
as the community's first local television service, and an application to
construct a new facility to operate on that frequency. It states that
DTV Utah's proposal to allot DTV Channel 36 to Ogden is mutually
exclusive with its previously filed petition and application. Tooele 36
requests that the Commission consolidate its petition into this
proceeding, modify the DTV Utah proposal to avoid any conflict with its
proposed allotment of NTSC Channel 36 to Tooele, and grant that
petition. Tooele 36 argues that there is no technical or other advantage
to moving DTV Channel 34 to DTV Channel 36 at Ogden. It believes that
DTV Utah can still accomplish their plans of colocating eight DTV
stations on one tower, and notes that DTV Channels 34 and 35 will work
just as well as DTV Channels 35 and 36 for Stations KULC, Ogden, and
KUTV, Salt Lake City. Tooele 36 also argues that there are numerous
suitable channels other than DTV Channel 36 to allot to Ogden and for
KULC to move to. Moreover, Tooele 36 asserts that the Commission, in
implementing DTV, undertook to protect rule makings for new allotments
and modified the originally proposed Table of DTV Allotments so that the
"final table" protected NTSC Channel 36 at Ogden. Finally, Tooele 36
maintains that the Commission has always favored bringing a first local
service to a community over facilities modifications and, therefore, the
grant of its requested relief better serves the public interest than the
DTV Utah's proposed modifications.

6\. In reply comments, DTV Utah contends that its proposal, as set forth
in its Petition substantially advances the goals of the Commission and
Congress to advance the transition to DTV technology. They state that
the substantial investment and cooperative efforts of the commercial and
noncommercial stations involved, as well as the LPTV and translator
communities, have lead to a master plan that will not only reduce the
burden of DTV transition for all the stations involved, but will also
permit full-power and secondary services to coexist during that
transition. DTV Utah stresses that this is just the type of cooperative
arrangement that the Commission has encouraged to insure for the public
"the best use of the digital spectrum, including not only the most
efficient use of the spectrum but also the greatest array of valuable
services."[^6] DTV Utah maintains that Tooele 36 has advanced no legal
or public policy basis to "derail" its proposal.

7\. Specifically, DTV Utah states that its requested amendments to the
DTV Table of Allotments are in full compliance with the Commission's
rules and can (and should) be immediately granted. They maintain that
Tooele 36 misunderstands the overall proposal when it urges that DTV
Channel 34 can be used in lieu of DTV Channel 36 at Ogden. They assert
that their proposal contemplates the use of both DTV Channels 34 and 36,
with Channel 35 returned to the pool of unused channels, and that the
other alternative channels suggested by Tooele 36 will not permit DTV
Utah to move forward with its optimized eight station joint tower
project, "each component of which is critical to the success of the
whole."[^7]

8\. DTV Utah also argues that Tooele 36's "eleventh-hour" proposal to
amend the table of allotments is not entitled to "protection." They note
that although the Commission decided to avoid conflicts between DTV and
NTSC allotments in developing the initial DTV Table of Allotments, the
Commission also recognized that amendments to the DTV table would be
appropriate, particularly when broadcasters in a region combine to
develop a cooperative plan for implementing DTV, and established
procedures which do not require protection of pending rule making
petitions. Because the DTV Utah stations provide existing service as
opposed to Tooele 36 which, by its own admission, is a mere petitioner
with no vested interest or claim to Channel 36, and because the
Commission has made clear that the licensing of NTSC stations will come
to an end, DTV Utah contends that the public interest favors the grant
of its proposal. Finally, DTV Utah states that other alternatives to
NTSC Channel 36 are available to Tooele 36 should the Commission
determine that the addition of a new NTSC channel to that community is
appropriate.[^8] Accordingly, they contend that the assignment of
another NTSC channel to Tooele could be addressed in due course without
jeopardizing, compromising or delaying the public interest benefits of
the DTV Utah proposal.

9\. **[Discussion]{.underline}.** We have carefully reviewed all of the
pleadings before us and, for the reasons that follow, we find that the
public interest will be served by adopting DTV Utah's channel
reallocation proposal. That plan will enable the eight Utah stations to
share facilities, costs and equipment in converting to and operating
with DTV technology, while permitting full-power and secondary services
to coexist during that transition. On balance, that plan better serves
the goals of full DTV implementation and outweighs the individual
interests advanced by Tooele 36 in its rule making petition.

10\. In reaching this conclusion, we do not agree with Tooele 36 that
its pending rule making to assign NTSC Channel 36 to Tooele, Utah, is
entitled to blanket protection or preferred status over the DTV Utah
proposal. In that regard, while it may be true that the Commission, in
establishing the initial DTV Table of Allotments, decided to retain
those vacant NTSC allotments that were the subject of pending rule
making petitions and to avoid creating conflicting DTV allotments, there
is no basis to conclude, in light of the clear preference to move to
full DTV implementation, that amendments to the DTV table require
absolute protection of such previously filed petitions. [^9] Such an
inflexible approach would undermine the Commission's announced course to
phase out vacant NTSC channels; to accommodate existing stations
(particularly groups of broadcasters proposing regional plans) over new
or proposed stations; and to encourage new stations to operate with new
DTV technology.

11\. Moreover, and without regard to whether the placement of a channel
-- either NTSC or DTV -- to serve the community of Tooele is
appropriate, the licensing of any future station on that channel is
predicated on a finding that it will not have a significant negative
impact on the development of DTV, and the Commission has reserved the
right in specific cases to determine that the public interest is better
served by not granting such an application.[^10] Tooele 36 has not
adequately demonstrated that the benefit of the mere potential allotment
of an NTSC channel at Tooele offsets the coordinated implementation of
DTV service as set forth in the DTV Utah master plan. On the other hand,
the DTV Utah regional plan will accommodate existing services (including
existing LPTV and translator services) while avoiding harmful
interference that would otherwise preclude co-location of the DTV Utah
stations and without causing interference to other NTSC or DTV stations
in the market. The DTV Utah plan also will not reduce the number of
unoccupied channels in the market, and therefore does not preclude or
inhibit the Commission from acting on pending rule making petitions in
separate proceedings to amend the NTSC Table of Allotments to the extent
that such action is deemed to be in the public interest. In addition,
DTV Utah's single-tower plan will result in the construction of fewer
towers in Utah, will facilitate DTV transition for the existing stations
which form this regional coalition and will increase consumer acceptance
and use of DTV services, which, by extension, will facilitate DTV
transition in the market as a whole. The balance here clearly favors DTV
Utah's regional plan to accommodate existing services and to advance the
implementation of DTV service generally over Tooele 36's individual NTSC
channel rule making petition, which may not even result in a viable
service on NTSC Channel 36. Moreover, Tooele 36 does not claim that no
other channel is available to it to pursue its objective to provide
service to Tooele, Utah, whereas DTV Utah asserts that other channels
are so available. The balance that we make today favoring the
implementation of the DTV Utah plan over Tooele 36's attempt to have a
channel assigned to Tooele, precludes its use of Channel 36 as proposed
in its petition. It appears, however, that NTSC Channels 55 or 58 may be
available for allotment at Tooele. In any event, Tooele 36 may pursue
another appropriate channel for its proposed allotment by amending its
pending rule making petition during the currently open window filing
opportunity. [^11]

## Conclusions and Ordering Clauses

12\. Channels \*36, \*44, 46 and 48 can be substituted and allotted to
Ogden, Provo, Salt Lake City, and Ogden, Utah, as proposed, in
compliance with the principle community coverage requirements of Section
73.625(a) at reference coordinates (40-39-33 N and 112-12-07 W). In
addition, we find that these channel changes are acceptable under the 2
percent criterion for *de minimis* impact that is applied in evaluating
requests for modification of initial DTV allotments under Section
73.623(c)(2) for stations KULC, KBYU-TV, KJZZ-TV, KUWB with the
following specifications:

+-----------------+--------+-------------+-------------+--------------+
| State & City    | DTV    | DTV power   | Antenna     | DTV Service  |
|                 | C      |             |             |              |
|                 | hannel | (kW)        | HAAT (m)    | Pop.         |
|                 |        |             |             | (thous.)     |
+-----------------+--------+-------------+-------------+--------------+
| UT Provo        | \*44   | 403.0       | 1257        | 1389         |
+-----------------+--------+-------------+-------------+--------------+
| UT Ogden        | \*36   | 304.0       | 1257        | 1393         |
+-----------------+--------+-------------+-------------+--------------+
| UT Ogden        | 48     | 200.0       | 1257        | 1374         |
+-----------------+--------+-------------+-------------+--------------+
| UT Salt Lake    | 46     | 200.0       | 1267        | 1384         |
| City            |        |             |             |              |
+-----------------+--------+-------------+-------------+--------------+

13\. Accordingly, pursuant to the authority contained 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 ORDERED, That effective July 3, 2000, the DTV Table of
Allotments, Section 73.622(b) of the Commission\'s Rules, IS AMENDED,
with respect to the Utah communities listed below, to read as follows:

[Community]{.underline} [Channel No.]{.underline}

Ogden \*36, 48

#  Provo 29, \*44 

Salt Lake City 28, 34, 38, 40, \*42, 46

14\. IT IS FURTHER ORDERED, That the comments filed by Airwaves, Inc.,
Telemundo of Northern California License Corporation, and Utah
Communications, L.L.C. ARE DISMISSED, and the comments filed by Tooele
36, L.L.C. ARE DENIED.

15\. IT IS FURTHER ORDERED, That this proceeding IS TERMINATED.[^12]

16\. For further information concerning this proceeding, contact Pam
Blumenthal, Mass Media Bureau, (202) 418-1600.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

## APPENDIX

TELEVISION LICENSEES RECEIVING NEW DIGITAL TELEVISION CHANNEL
ASSIGNMENTS

[Call Sign]{.underline} [Location]{.underline} [Licensee]{.underline}
[Old DTV Channel]{.underline} [New DTV Channel]{.underline}

KULC(TV) Ogden University of Utah \*34 \*36

KUWB(TV) Ogden ACME Television

Licenses of Utah, LLC 17 48

KBYU-TV Provo Brigham Young \*39 \*44

University

KUTV(TV) Salt Lake KUTV Associates 35 34

City

KJZZ-TV Salt Lake Larry H. Miller 27 46

City Communications Corp.

[^1]: ^?^ The licensees of these eight stations are: Brigham Young
    University (NCE Station KBYU-TV); Larry H. Miller Communications
    Corporation (Station KJZZ-TV); Bonneville Holding Company (Station
    KSL-TV); United Television, Inc. (Station KTVX); University of Utah
    (NCE Stations KUED and KULC); KUTV Associates (Station KUTV); and
    ACME Television Licenses of Utah, LLC (Station KUWB).

[^2]: ^?^ Airwaves Inc. (\"Airwaves\") and Telemundo of Northern
    California License Corporation (\"Telemundo\") filed comments and
    subsequently requested withdrawal of their pleadings. Airwaves\'
    initial comments were late-filed and will therefore not be discussed
    herein. Telemundo, licensee of low-power television station KEJT-LP,
    Channel 48, Salt Lake City, Utah, filed comments opposing DTV
    Utah\'s proposal, claiming it could adversely affect the ability of
    station KEJT-LP to continue to provide Spanish-language news,
    information and entertainment programming to the Salt Lake City
    area. Specifically, Telemundo asserted that its participation in the
    master channel plan was in jeopardy due to a dispute with Brigham
    Young University, licensee of translator station K50ES. However, in
    reply comments, Telemundo reported that its concerns had been
    allayed and it requested the withdrawal of its pleading.
    Accordingly, both Airwaves' and Telemundo's pleadings will be
    dismissed.

[^3]: ^?^ DTV Utah notes that there are three inter-dependent components
    to the their joint tower channel plan: (1) the proposed DTV channel
    substitutions for stations KBYU-TV, KJZZ-TV, KULC, and KUWB, (2) an
    intra-market channel swap between KUTV and KULC pursuant to Sections
    73.622(c) and 73.623(f) of the Commission\'s rules, and (3) the
    retention by KSL-TV, KTVX, and KUED of the DTV channels allotted to
    them with facilities or site changes.

[^4]: Utah Communications maintains that DTV Utah's proposal was not
    properly treated as a counterproposal to its own "existing" rule
    making petition, requiring that it now be considered in this
    proceeding.

[^5]: We do not agree with DTV Utah that Utah Communications' petition
    to amend the TV Table of Allotments to allot Channel 49 to Ogden is
    precluded because it was filed after the date the Commission
    announced it would no longer accept petitions to amend the existing
    TV Table of Allotments to add an allotment for a new NTSC station.
    While the Commission did state that such petitions would no longer
    be accepted, we also indicated that other petitions to modify an
    existing station's authorization, such as Utah Communications'
    petition to change channels, could continue to be filed, but that
    any such changes would be conditioned on the outcome of the DTV rule
    making proceeding. *See Sixth Report and Order,* 12 FCC Rcd at
    14635-36.

[^6]: *Advanced Television Systems and Their Impact upon the Existing
    Television Broadcast Service, Fifth Report and Order,* MM Docket No.
    87-268, 12 FCC Rcd 12809, 12834 (1997). *See also Additional
    Application Processing Guidelines for Digital Television,* Public
    Notice (August 11, 1998) at 11.

[^7]: DTV Utah reiterates that their proposal involves the
    relinquishment of DTV Channel 35 for DTV Channel 36, and the
    retention of both DTV Channels 34 and 36. Specifically, Station KULC
    is swapping its initial DTV allotment (Channel \*34) for Station
    KUTV's initial DTV allotment (Channel 35). The purpose of this
    channel swap is to permit KUTV to operate on DTV Channel 34 and to
    allow KULC to participate in the DTV Utah plan by exchanging its
    swapped channel (Channel \*35) for Channel \*36. The failure to
    allot and assign DTV Channel \*36 as proposed in the *Notice,* DTV
    Utah argues, will disrupt this swapping arrangement, and unravel the
    proposal as a whole.

[^8]: In this regard, DTV Utah states that its proposal does not reduce
    the number of unoccupied channels in the market, and thus does not
    preclude or inhibit the Commission from considering an appropriate
    amendment to Tooele 36's petition, specifying another channel, in a
    separate proceeding to amend the NTSC table.

[^9]: *See* *Sixth Report and Order*, 12 FCC Rcd at 14639. Moreover,
    protection of pending NTSC rule making petitions was not a factor to
    be considered in existing licensees' proposals to amend the DTV
    Table of Allotments. *See* *Advanced Television Systems and Their
    Impact upon the Existing Television Broadcast Service,* Memorandum
    Opinion and Order on Reconsideration of the Sixth Report and Order,
    MM Docket No. 87-268, 13 FCC Rcd 7418, 7482 (1998).

[^10]: ^?^ *Sixth Report and Order*, 12 FCC Rcd at 14635. *See also
    Advanced Television Systems and Their Impact upon the Existing
    Television Broadcast Service, Second Memorandum Opinion and Order on
    Reconsideration of the Fifth and Sixth Report and Orders*, MM Docket
    No. 87-268, 14 FCC Rcd 1348, 1366-68 (1998).

[^11]: ^?^ *See Window Filing Opportunity For Certain Pending
    Applications and Allotment Petitions For New Analog TV Stations*,
    Public Notice, DA 00-536 (March 9, 2000).

[^12]: ^?^ The licensees receiving new digital television channel
    assignments as a result of this proceeding are set forth in the
    attached appendix.