**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In re Applications of ) MM Docket No. 86-440

)

Achernar Broadcasting Company ) File No. BPCT-860410KP

)

Lindsay Television ) File No. BPCT-860410KQ

)

For Construction Permit )

For a New UHF TV Station on Channel 64 )

at Charlottesville, Virginia )

**MEMORANDUM OPINION AND ORDER**

**Adopted:** April 19, 2000**; Released:** April 28, 2000

By the Commission:

1\. This order approves a settlement agreement, filed January 30, 1998,
by Lindsay Television and Achernar Broadcasting Company providing for
the dismissal of Lindsay\'s application, the amendment of Achernar\'s
application for channel 64 to specify Charlottesville Broadcasting
Corporation (CBC) as the applicant, and the grant of Achernar\'s amended
application. On our own motion, pursuant to 47 U.S.C. § 316, we modify
CBC\'s construction permit to specify operation on channel 19, in lieu
of channel 64, subject to express conditions. This action serves the
public interest by effectuating congressional intent regarding the
reallocation of channel 64 for public safety use and the settlement of
comparative broadcast proceedings involving applications filed before
July 1, 1997, as directed by 47 U.S.C. §§ 337 and 309(l)(3),
respectively.

**BACKGROUND**

2\. In 1986, the Commission designated for comparative hearing five
mutually exclusive applications for a construction permit for a new
analog television station on channel 64 in Charlottesville,
Virginia.[^1] The only remaining applicants are Lindsay Television and
Achernar Broadcasting Company, both of which were disqualified because
operation from their respective transmitter sites was deemed to cause
objectionable interference to the radio astronomy activities of the
National Radio Astronomy Observatory (Observatory), located in Green
Bank, West Virginia.[^2] The D.C. Circuit reversed the Commission,
concluding that the Commission\'s decision rigidly protecting the
Observatory\'s interests without regard to the competing public interest
benefits of providing second local transmission service and additional
reception service to the community of Charlottesville was arbitrary and
capricious.[^3]

3\. Upon remand, Achernar and Lindsay commenced negotiations with the
Observatory, and, after numerous engineering studies and intensive
investigation of several possible transmitter sites, developed an
engineering proposal acceptable to the Observatory that accommodates
Charlottesville\'s need for a second commercial television station and
protects certain of the Observatory\'s astronomy operations from
broadcast interference.[^4] Achernar and Lindsay have also reached a
settlement agreement in the comparative proceeding providing for their
merger into a single applicant, Charlottesville Broadcasting Corporation
(CBC), and the grant of a construction permit to that applicant. The
settlement agreement initially requested a construction permit for
channel 64 but was later supplemented with an alternative request for
channel 19. As set forth in greater detail below, the Mass Media Bureau
opposes the authorization of a new analog television station on channel
64, but supports the acceptance of the engineering amendments and the
grant of a construction permit for a new NTSC television station on
channel 19.

4\. On August 5, 1997, President Clinton signed the Balanced Budget Act
of 1997. Two provisions of that legislation are pertinent to the matters
before us. First, to facilitate the resolution of certain pending
comparative broadcast cases that could otherwise be resolved through
auctions, Section 3002(a)(3), *codified as* 47 U.S.C. § 309(l), provides
that, for settlement agreements executed within 180 days after enactment
(that is, by February 1, 1998), \"the Commission shall . . . (3) waive
any provision of its regulations necessary to permit such persons \[who
filed applications for full service commercial radio or television
stations before July 1, 1997\] to enter into an agreement to procure the
removal of a conflict between their applications.\" Second, section
3004, *codified as* 47 U.S.C. § 337, directs the Commission to
reallocate 24 megahertz of spectrum in the 746-806 MHz band for public
safety services and the remaining 36 megahertz for commercial use. The
746-806 MHz band currently comprises television channels 60-69.

5\. Pursuant to Section 337, the Commission reallocated television
channels 63, 64, 68, and 69 to the fixed and mobile services, and
designated this spectrum exclusively for public safety use.[^5] In doing
so, the Commission noted that these channels would continue to be used
to provide analog and digital TV broadcasting during the DTV transition
period, but that it would not authorize additional new analog
full-service stations on channels 60-69.[^6] Instead of summarily
dismissing pending applications for these channels, the Commission said
that at a latter date it would provide such applicants an opportunity to
amend, if possible, to a channel below 60.[^7] It indicated further that
all conditions, including the freeze on applications in large
metropolitan areas, pertaining to the pending applications and
rulemaking petitions would continue to apply, and that freeze waiver
requests would be considered on a case-by-case basis. On
reconsideration, the Commission affirmed its decision not to authorize
new analog television stations on channels 60-69, but indicated that the
denial of Lindsay\'s petition for reconsideration was without prejudice
to its pending waiver request for permission to operate a new analog
television station on channel 64 in Charlottesville. By Public Notice,
other pending applicants/petitioners for the reallocated channels have
been afforded a limited opportunity to amend to a channel below channel
60.[^8]

6\. Also pertinent to consideration of the pending settlement agreement
is the enactment of the Community Broadcasters Protection Act of 1999
(CPBA). Signed into law on November 29, 1999, the legislation authorizes
low power television licensees to convert the secondary status of their
stations into new Class A status, provided certain
statutorily-prescribed conditions are met. On December 13, 1999 the
Commission notified eligible licensees of the requirements for a Class A
designation, [^9] and on March 28, 2000 it adopted rules implementing
the statute.[^10] As reflected below, the modification of petitioners'
construction permit to specify operation on channel 19 will result in
the displacement of Station W19BB, a translator station operating on
channel 19 in Charlottesville. The licensee of that station, Shenandoah
Valley Educational Television, opposes petitioners' settlement agreement
on that basis. And, as authorized by Section (c)(2)(1)(B) of the CBPA,
codified as 47 U.S.C. § 336(f)(1)(B), Shenandoah has timely submitted a
certification of eligibility for Class A Low Power Television Station
Status for the channel 19 translator. For the reasons set forth below,
however, Shenandoah's timely submission of the certification is not an
impediment to approval of a settlement agreement that was pending on
November 29, 1999.

**THE SETTLEMENT AGREEMENT**

7\. In addition to resolving the interference issues with the
Observatory, Achernar and Lindsay have reached a settlement agreement of
the comparative proceeding. Entered into within 180 days of the
enactment of the Balanced Budget Act of 1997, and thus subject to the
mandatory waiver provision set forth in Section 309(l)(3), the
settlement agreement provides for a 50/50 merger of Achernar and Lindsay
into a new corporate entity, Charlottesville Broadcasting Company, the
dismissal of Lindsay\'s application, the amendment of Achernar\'s
application to substitute the merged entity as the applicant, and the
grant of the amended application. The settlement agreement is contingent
on the grant of a construction permit for channel 64 or such other
channel as the Commission may select. With regard to channel 64, the
Joint Petitioners submit that, despite its reallocation for public
safety use, the grant of a construction permit for that channel is
consistent with Section 337 of the Act requiring only that all
television stations must vacate the portion of the spectrum allocated
for public safety use by the end of the digital television transition
period. Joint Petitioners urge that this is an appropriate case for
waiving the Commission\'s policy determination not to grant pending
applications for TV channels 60-69. They stress that this is one of the
oldest unresolved comparative cases, that waiver will bring
long-awaited, much needed commercial television service to
Charlottesville, and that, in contrast to any other pending application
for a reallocated analog television channel, the pending applications
for channel 64 (Charlottesville) have been the subject of evidentiary
hearings before an Administrative Law Judge, review by the Commission,
and judicial review. If awarded a construction permit for channel 64,
Joint Petitioners promise to afford the requisite interference
protection for public safety service licensees and to cease broadcast
operations on channel 64 by the end of the digital transition period, as
is required by Section 337.

8\. The Bureau opposes the grant of a construction permit for a new
analog television station on channel 64 in Charlottesville on the ground
that it would be contrary to the Commission\'s determination in ET
Docket No. 97-157 not to authorize any new television stations on
channels 60-69. The grant of a construction permit for NTSC channel 64
in Charlottesville is also opposed by the Association of Public-Safety
Communications Officials-International, Inc. (APCO). It asserts that
petitioners\' use of channel 64 would bar public safety use of that
channel throughout much of Virginia and the Washington, D.C.
metropolitan area, as well as the development of a statewide public
service network and the use of paired frequencies on channel 69. In
comments filed July 28, 1999, both the Bureau and APCO have confirmed
their continuing opposition to authorizing a new analog station on
channel 64.[^11]

9\. Alternatively, Joint Petitioners filed a Supplement to Joint
Petition for Approval of Settlement Agreement on June 24, 1998 proposing
to operate on channel 19 instead of channel 64 at the same transmitter
location and with essentially the same technical proposal. Attached
thereto is an agreement reflecting that the Observatory does not object
to the substitution of channel 19.[^12] In support of channel 19, Joint
Petitioners assert that the proposed substitution complies with both the
analog table of television allotments and the digital table of
television allotments, that the amendment is supported by good cause, as
required by Section 73.3522(b) of the rules, 47 C.F.R. § 73.3522(b), and
that the Commission has authority to order the channel change on its own
motion.[^13] They accordingly ask the Commission to issue an Order to
Show Cause why the channel petitioners applied for should not be
modified to specify channel 19.[^14] Without indicating whether they
would prefer channel 19 or channel 64, petitioners state that they will
relinquish all claims to channel 64 if they are awarded a construction
permit for channel 19.

10\. The Bureau initially opposed the amendment based on adjacent
channel interference to land mobile operations on channel 18 in
Washington, D.C., as did APCO.[^15] In response to a subsequent proposal
to install filter equipment designed to protect these land mobile
operations,[^16] APCO has stated that it will withdraw its objections to
channel 19, provided Achernar and Lindsay abandon their bid for channel
64 and their license for channel 19 contains certain express
conditions.[^17] The Bureau has now agreed that these conditions are
adequate to protect land mobile service on channel 18, and has withdrawn
its objections to channel 19, provided further that a minus offset is
included in order to protect NTSC channel 19 allotments in Jacksonville,
North Carolina, Kingsport, Tennessee, and Jeanette, Pennsylvania.[^18]
The Joint Petitioners have indicated their willingness to accept the
minus offset, as well as the express conditions requested by APCO, and
have reiterated their intent to relinquish all claims to channel 64 if
awarded a construction permit to operate a new analog television station
on channel 19.

11\. Nonetheless, the award of a construction permit for channel 19 is
separately opposed by Shenandoah Valley Educational Television
(Shenandoah), the licensee of Station W19BB, a translator station
operating on channel 19 in Charlottesville that would be displaced if a
full-power commercial station is licensed on that channel;[^19] and by
Viacom, Inc. (Viacom), the ultimate parent of the licensee of WGNT in
Portsmouth, Virginia, which has been allocated DTV channel 19. According
to the Bureau, neither objection has merit. Citing Commission rules
requiring that a displaced translator licensee must modify its channel
at its own expense or otherwise eliminate any interference to the
operation of a full power television station, the Bureau rejects
Shenandoah\'s objection.[^20] Petitioners likewise emphasize that
Station W19BB is neither a full service station nor one that originates
local television programming; they also submit program schedules
purportedly reflecting substantial duplication of noncommercial
programming offered by another station, whose reception in
Charlottesville would be unaffected by the proposed channel switch.[^21]
As to Viacom\'s concern that assigning a new NTSC allotment on channel
19 would foreclose future upgrades of WGNT-DT (Channel 19-Portsmouth),
the Bureau indicates that Viacom has no inherent right to expand that
station\'s coverage and that its engineering staff has confirmed that
the presence of a new NTSC station on channel 19 at Charlottesville
would not detrimentally affect the DTV channel allotment at Portsmouth.

12\. Shenandoah and Viacom also oppose the proposed substitution of
channel 19 on procedural grounds. The amendment to channel 19, according
to Shenandoah, is not supported by good cause, as required by Section
73.3522(b) of the rules, inasmuch as its acceptance would require the
addition of new parties and the enlargement of the issues. Because
channel 19 is not presently allocated to Charlottesville, Shenandoah
asserts that the requested channel switch would require the initiation
of both a rulemaking proceeding to amend the analog Table of Allotments
and a competitive licensing proceeding to award the permit for that
channel. And, in response to the November 22 1999 Public Notice
announcing a filing opportunity for certain analog television
applications, Shenandoah has tendered for filing an application for a
construction permit for a new noncommercial educational station on
channel 19. Viacom urges that Petitioner\'s procedurally deficient
request to substitute channel 19 should be dismissed, because it
impermissibly short-circuits procedures that provide opportunities for
public notice of, and participation in, such proceedings, as well as
rules prohibiting the filing of major amendments. In response, Joint
Petitioners claim that, given the applicants\' concurrence, the
Commission has authority to change the channel without further
proceedings.[^22] Citing the absence of any opposition to channel 19
from any entity with a legitimate interest in this matter, their
agreement to take the protective measures requested by the Bureau and
APCO, and the Bureau\'s support of the proposed substitution,
petitioners request the immediate grant of a construction permit for
channel 19.[^23] The petitioners also request that the Commission
dismiss Shenandoah's tendered application for channel 19 and reject the
arguments contained in a variety of allegedly unauthorized pleadings
filed by Shenandoah.[^24]

**DISCUSSION**

13\. For the reasons stated below, we find that the public interest
would be best served in light of the circumstances of this case by
authorizing the operation of a new analog television station on channel
19 in Charlottesville, subject to the express conditions requested by
the Bureau and by APCO. We therefore approve the settlement agreement
providing for the dismissal of Lindsay\'s application, the amendment of
Achernar\'s application to specify CBC as the applicant, and the grant
of CBC\'s application for channel 64. On our own motion we modify CBC\'s
construction permit to specify operation on channel 19 in lieu of
channel 64, and dismiss Shenandoah's tendered application for a
construction permit for a new noncommercial educational station on
channel 19. This action is appropriate to effectuate congressional
intent regarding the reallocation of channel 64 for public safety use
and to facilitate the resolution of one of the oldest comparative
licensing cases pursuant to a settlement agreement that is subject to
the special waiver provision set forth in Section 309(l)(3). And, in the
circumstances of this case, we find for good cause that a notice and
comment rulemaking is not required to add analog channel 19,
Charlottesville to the Table of Allotments.

14\. In approving the settlement agreement and awarding a construction
permit for channel 64, we agree with CBC that Section 337 of the Act
does not preclude authorization of a new analog television station on
channel 64 in Charlottesville, Virginia. By its express terms, Section
337 provides only that television broadcast operations on channels 60-69
must cease at the end of the digital television transition period,
currently scheduled to end by December 31, 2006.[^25] Nothing in the
accompanying legislative history, moreover, precludes the authorization
of new television service on channels 60-69. Therefore, the
authorization of a new analog television station on channel 64 in
Charlottesville during the transition period is not statutorily barred.
Consistent with clear congressional intent that these channels be
reallocated for public safety use as quickly as possible, however, we
made a policy determination not to authorize any additional new analog
stations on them so as to maximize the utility of the 746-806 MHz band
for public safety use.[^26] We nevertheless specifically recognized the
unusual facts presented by this particular adjudicatory proceeding.[^27]

15\. The award of a construction permit for a new analog station on
channel 64 would, in our view, serve the public interest in light of the
unique circumstances of this case.[^28] The equities favoring these
applicants are extraordinary. Consistent with Section 309(l)(3)
providing for the waiver of regulatory provisions to facilitate
settlements filed before February 1, 1998,[^29] this would resolve one
of the oldest comparative proceedings involving competing broadcast
applications filed before July 1, 1997. Waiving the reallocation of
channel 64 will also further the public interest by expediting long
awaited, much needed television service to Charlottesville.[^30]
Moreover, as discussed below, we intend to modify the authorization to
specify operation on Channel 19, thereby avoiding any possible impact on
public safety use.

16\. The proposed settlement agreement complies fully with 47 U.S.C. §
311(c) of the Communications Act and 47 C.F.R. § 73.3525(a) of the
Commission\'s Rules governing settlement agreements among mutually
exclusive broadcast applications. Attached to the applicants\' Joint
Petition are declarations from each party to the agreement stating that
their respective applications were not filed for the purpose of reaching
a settlement agreement. They further state that approval of the
agreement will serve the public interest by expediting the initiation of
new television service to the community and by conserving the resources
of the private litigants and of the Commission. Additionally, the
attached Shareholders\' Agreement reflects a *bona fide* merger of the
interests of Achernar and Lindsay that contemplates a genuine sharing of
risks and rewards, as is required by Section 73.3525(a)(3) of the Rules.
And, in any event, a waiver of that provision would be consistent with
Section 309(l)(3), since the agreement was executed before February 1,
1999. *See Gonzales Broadcasting, Inc.*, 12 FCC Rcd 12253, 12255-56 ¶ 10
(1997). We also grant the applicants\' petition for leave to amend that
is included in the Joint Petition, and accept the attached amendment
substituting CBC as the applicant. The amendment is supported by good
cause in that it facilitates resolution of this comparative proceeding.

**MODIFICATION OF CONSTRUCTION PERMIT**

17\. Pursuant to our authority under Section 316(a) of the
Communications Act, 47 U.S.C. § 316(a), and Section 1.87 of the
Commission\'s rules, 47 C.F.R. § 1.87, to modify any construction permit
if we determine that such action will promote the public interest, we
will on our own motion modify CBC\'s construction permit to specify
operation on channel 19, in lieu of channel 64. Modification of the
construction permit will serve the public interest by furthering
congressional intent regarding broadcast station operations on channels
60-69,[^31] and ensuring the station\'s operations have no possible
impact on public safety use.

18\. We agree with the joint petitioners that, given the circumstances
of this case, the modification of CBC\'s permit does not require the
initiation of further proceedings. Where the Commission proposes to
modify a construction permit, the holder of that permit, as well as any
permittee or licensee who believes its authorization would be modified
by the proposed action, is entitled to protest. Further proceedings are
not necessary under Section 316(a)(1) according CBC the right to
protest, inasmuch as Achernar and Lindsay sought to amend to channel 19
in connection with their settlement agreement. CBC has therefore
acquiesced in the modification, making further proceedings unnecessary.
A similar situation arose in *Channel 16 of Rhode Island, Inc.*, 31 FCC
2d 574 (1971), where the channel originally applied for was reallocated
for land mobile use. Deletion of the original channel was vacated by the
court, and the Commission issued an Order to Show Cause why the
construction permit should not be modified to specify an alternate
channel. Based upon the permittee\'s subsequent acquiescence, however,
the Commission modified the construction permit without further
proceedings. We recognize that, as Shenandoah notes, the substituted
channel in that case had been allotted to the community in question. Our
authority to assign frequencies, however, is statutory, *see* 47 U.S.C.
§ 303(c),[^32] and nothing in Section 316 suggests that our authority to
modify a construction permit, where the public interest is thereby
served, is limited to previously allotted channels. Nor have Viacom and
Shenandoah cited any precedent for such a restriction, or otherwise
challenged our authority under Sections 303(c) and 316(a) to modify on
our own motion the construction permit to specify operation on NTSC
channel 19 in lieu of channel 64. And, although modification of CBC\'s
permit requires an amendment to the Analog Table of Allotments, for the
reasons set forth in paragraph 25 below, we find for good cause that a
notice and comment rulemaking is not required to add channel 19,
Charlottesville to the Table of Allotments.

19\. Further proceedings are also unnecessary under Section 316(a)(2)
according protest rights to licensees who believe their licenses would
be modified by the proposed modification. As noted above, we sought
comment on the proposal to use channel 19, and two existing licensees,
Shenandoah and Viacom, challenged the petitioners\' proposed use of that
channel. To the extent that they rely upon potential interference with
their licensed stations, the channel switch would not effect a
modification of either license within the meaning of Section 316(a)(2).
As the licensee of the channel 19 translator in Charlottesville,
Shenandoah\'s authorization is, pursuant to the Commission\'s allocation
rules, subject to displacement by a full-power station licensed to
operate on that channel regardless of the quality of the non-commercial
programming presented on the translator station. Its secondary status is
not altered, moreover, by our prior action permitting full-power Station
WVPT-TV (channel 51, Staunton), also licensed to Shenandoah, to move to
DTV channel 11 so as to protect the continued use of the channel 19
translator station in Charlottesville.[^33] At most, that action
establishes the propriety of preserving the translator service to the
extent possible in formulating the digital table of allotments; it does
not, however, give Shenandoah any rights vis-a-vis an applicant for a
full power television station on channel 19. Given the secondary status
accorded to the channel 19 translator under our allocation rules,
modifying CBC\'s construction permit to specify operation on channel 19
would not effect a modification of Shenandoah\'s license for that
secondary service within the meaning of Section 316(a)(2). Moreover, the
further, unsubstantiated assertion that the loss of the channel 19
translator would jeopardize the continued provision of high quality
noncommercial programming through its main station does not raise a
substantial and material question of fact that allowing the use of NTSC
channel 19 in Charlottesville would effect a modification of
Shenandoah\'s license for Station WVPT-TV in Staunton.

20\. Nor is the secondary status of Shenandoah's channel 19 translator
altered by its filing on January 28, 2000 of a certification of
eligibility for Class A Low Power Television Status for the channel 19
translator. [^34] As noted above, the enactment on November 29, 1999 of
the CBPA amended Section 336 to require the establishment of Class A low
power television service. As required by Section 336(f)((1)(B),
Shenandoah has submitted a certification of eligibility indicating its
intent to file an application for a Class A Low Power Television license
for channel 19. It alleges that, with the exception of the designation
as a low power licensee, the translator service currently provided on
channel 19 complies with all of the requirements for Class A status.
Even assuming that there is a basis for a public interest determination
to treat the channel 19 translator as a qualifying low power television
station within the meaning of Section 336(f)(2),[^35]the Commission
could not grant a Class A license for channel 19 in Charlottesville.
Section 336(f)(7)(A)(i) prohibits the grant of a Class A license absent
a showing that it "will not cause interference within the predicted
Grade B contour (as of the date of enactment of the Community
Broadcasters Protection Act . . . , or as proposed in a change
application filed on or before such date) of a station operating in
analog format." Petitioners' predicted Grade B contour for channel 19,
as proposed on June 24, 1998, is entitled to protection under that
provision, and implementing Commission rules, because their settlement
agreement proposing a reasonably ascertainable predicted Grade B contour
was pending on November 29, 1999, the date of enactment of the
CBPA.[^36] Specifically, the settlement agreement, as supplemented on
June 24, 1998, proposes "operation on channel 19 instead of channel 64,
at the same transmitting location and with substantially the same
technical facilities."[^37] Thus, Shenandoah will be unable to show, as
required by Section 336(f)(7)(A)(i), that a class A low power television
license on channel 19 will not cause interference within petitioners'
predicted Grade B contour that was proposed as of November 29, 1999. Its
timely submission of a certification of eligibility for Class A Low
Power Television Status for the channel 19 translator is therefore not
an impediment to our action herein approving petitioners' January 30,
1998 settlement agreement and modifying the construction permit to
specify operation on channel 19.

21\. We note, however, that Central Virginia Educational
Telecommunications Corporation, currently operating Station WHTJ(TV)
(Charlottesville) on NTSC channel \*41, has filed a petition for
rulemaking requesting an amendment to the Table of Allotments for
Digital Television. It seeks to change the DTV channel allotment for
station WHTJ-DT in Charlottesville from channel 14 to channel 46. We
direct the Mass Media Bureau to expedite consideration of the proposed
move to channel 46, grant of which could make channel 14 available for
secondary television service in Charlottesville. To avoid disruption of
its current translator service on channel 19, Shenandoah may wish to
submit a displacement application for channel 14 to be processed by the
Mass Media Bureau in accordance with its usual procedures. We note
further that the Commission has proposed to institute a further
rulemaking proceeding seeking comment on whether translators should be
accorded some form of primary status.[^38] Depending upon the outcome of
that proceeding and subject to any eligibility criteria developed
therein, Shenandoah could seek such primary status if it is ultimately
authorized to provide television translator service on channel 14.

22\. Viacom also claims that it would be adversely impacted by
authorization of analog operation on channel 19 in Charlottesville. In
contrast to Shenandoah, however, it does not allege that the proposed
use of channel 19 will modify its current authorization for Station
WGNT-DT (Portsmouth). Rather, it claims that interference will result if
*its* current license for digital channel 19 is modified in the future
to permit operation at increased power. As the Bureau notes, however,
Commission regulations do not accord Viacom a right to maximize the
power at the Portsmouth station, and the Bureau, based on its
engineering analysis, has indicated that the presence of an analog
television station on channel 19 at Charlottesville will not
detrimentally affect the digital table of allotments. Thus, the channel
switch would not effect a modification of Viacom\'s current license for
Station WGNT-DT.[^39] There is presently no vacant digital allotment for
Charlottesville, and although CBC would be given an opportunity to amend
to a digital channel at the end of the DTV transition period, the future
availability of channel 19 for that purpose remains to be
determined.[^40] The DTV allotment for WGNT-TV, Portsmouth, therefore,
neither bars the modification of CBC\'s construction permit, nor
warrants the grant of the NTSC permit subject to the express condition,
requested by Viacom, that CBC could not oppose any future WGNT-TV
maximization proposal up to and including one megawatt. Thus, neither
Shenandoah nor Viacom has alleged an interest that is legally protected
under the Commission\'s rules and policies or that would be adversely
impacted by modifying CBC\'s construction permit. Nor have they raised a
substantial and material question of fact requiring a hearing to
determine whether the proposed modification would serve the public
interest. Such modification, therefore, does not necessitate the
institution of further proceedings to explore the objections raised by
Viacom and Shenandoah.

23\. One additional matter warrants comment. Operation on NTSC channel
19 would, as Lindsay and Achernar conceded in seeking to amend to that
channel, be slightly short-spaced with WGNT-DT, as currently
authorized.[^41] An engineering statement filed in support of the
amendment to NTSC channel 19 assertedly demonstrates satisfaction of the
interference standards set forth in Section 73.623.[^42] Shenandoah
disputes that showing and submits that there has not been a good cause
showing warranting a waiver of the short-spacing rules.[^43]
Significantly, however, Viacom, the ultimate licensee of WGNT-DT, does
not oppose the substitution of channel 19 on this basis. The Bureau,
moreover, has indicated that the addition of NTSC channel 19 in
Charlottesville would not detrimentally affect the digital channel 19
allotment. In these circumstances, and particularly since Shenandoah
lacks standing under Section 316(a)(2) to complain of the possible
impact of the proposed action on another licensee, we find no
substantial and material questions of fact that the short-spacing
between NTSC channel 19, Charlottesville and WGNT-DT, Portsmouth would
result in cognizable interference.

24\. In connection with the applicants\' request to amend Achernar\'s
pending application for channel 64 to specify channel 19, Shenandoah and
Viacom urged that the substitution of channel 19 for channel 64 would
impermissibly short-circuit procedures requiring the institution of a
rulemaking proceeding to allot channel 19 to Charlottesville, as well as
a competitive licensing proceeding to select the licensee for channel
19. In light of our determination to grant the construction permit for
channel 64 but modify it to specify operation on channel 19, we need not
entertain competing applications for channel 19. As discussed above,
Section 316(a) of the Act requires that we entertain protests from
licensees or permittees who believe their license would be modified by
the proposed action, and we have considered such protests from
Shenandoah and Viacom. We are not required, however, to entertain
competing applications. Nor would it make sense to do so since the
license grant in question is a narrow exception to our general policy of
not accepting additional NTSC applications. *See* n.30, *supra*, n.45,
*infra*. Shenandoah's application for channel 19, tendered in response
to the Mass Media Bureau's November 22, 1999 Public Notice is, in any
event, beyond the scope of that Public Notice. The Public Notice affords
a window filing opportunity only to persons who filed rulemaking
petitions on or before July 25, 1996 to add an NTSC channel to the TV
Table of Allotments and to persons with applications for new
full-service NTSC television that were filed before September 20, 1996
or that were filed after that date in response to a valid cutoff list.
[^44] *Public Notice, supra* n.8, at 2. Moreover, in accordance with the
Commission's competitive bidding rules, the Public Notice provides that
"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." *Id.,* at 6.
Achernar's and Lindsay's competing applications for channel 64 were
filed in 1986 and their proposed settlement is contingent on the
immediate grant of a construction permit for channel 64 or such other
channel as the Commission shall select. In these circumstances, the
Public Notice provides no basis to accept Shenandoah's tendered
application for channel 19, and it is therefore dismissed.

25\. We also recognize that the modification of CBC\'s license to
specify operation on channel 19, in lieu of channel 64, requires an
amendment to the Table of Allotments. But we find for good cause,
pursuant to 5 U.S.C. § 553(b)(3)(B), that a notice and comment
rulemaking is not required in these circumstances. No purpose would be
served by initiating a notice and comment proceeding to allot NSTC
channel 19 to Charlottesville. First, analog television is a mature
broadcast service, and analog channel 19 is, due to existing assignments
of that channel, not available for allotment to any comparable community
other than Charlottesville. Second, due to the imminent switch to
digital television, the Analog Table of Allotments has ceased to
function as a evolving mechanism to be modified to reflect changing
needs and technology.[^45] Instead it exists solely to preserve the
status quo (and in particular, interference-free analog television
service) during the DTV transition. And, in contrast to any amendment to
the Analog Table of Allotments that may be filed during the window
filing opportunity announced in the November 22, 1999 Public Notice, the
Mass Media Bureau has affirmatively stated that allotting analog channel
19 to the community of Charlottesville detrimentally affects neither the
Analog Table of Allotments nor the Digital Table of Allotments, provided
the channel 19 permit for Charlottesville is conditioned so as to
protect existing NTSC channel 19 allotments in Jacksonville, North
Carolina, Kingsport, Tennessee, and Jeanette, Pennsylvania. CBC\'s
agreement to accept that condition adequately protects the public\'s
interest in maintaining interference-free analog television service as
well as the interests of existing licensees authorized to operate
full-service television stations on analog channel 19. Adding analog
channel 19 to the Table of Allotments is, in sum, an essentially
ministerial act designed purely to ensure the continuing accuracy of the
Table. In these circumstances, a notice and comment rulemaking is not
required to protect the procedural rights of the listening public, of
existing licensees, or of any other party potentially affected by such
allotment.

26\. Finally, we address two ancillary matters involving the agreement
with the Observatory. First, we agree with the Bureau that, although the
technical proposal for channel 19 does not comply fully with Section
73.685(e) of the rules, it is nevertheless acceptable because the
proposed antenna pattern with a null in excess of 15 dB was designed to
accommodate the needs of the Observatory.[^46] Second, Achernar, by its
November 19, 1997 petition for leave to amend and attached amendment,
submitted for filing translator applications for the cities of Staunton
and Waynesboro, Virginia that are still an integral part of the
agreement with the Observatory, despite the switch to channel 19.[^47]
As the Bureau notes, the translators are not yet eligible for permanent
licenses because the applications were not filed within an announced
filing window, as the rules then in effect required.[^48] Pursuant to
Sections 74.780 and 73.1635 of the Rules and as supported by the Mass
Media Bureau, we grant special temporary authority for operation of the
translators, but refer the television translator applications to the
Bureau for handling in accordance with its usual procedures.[^49]

**ORDERING CLAUSES**

27\. ACCORDINGLY, IT IS ORDERED, That the Motion to Enter Citizen
Comments Into The Record, filed on December 2, 1999, by Shenandoah
Valley Educational Television Corporation IS GRANTED.[^50]

28\. IT IS FURTHER ORDERED, That the Joint Petition For Approval of
Settlement Agreement, For Leave To Amend Application and For Immediate
Grant of Construction Permit, filed January 30 1998 by Achernar
Broadcasting Company and Lindsay Television, Inc. IS GRANTED, the
attached Settlement Agreement IS APPROVED and the attached Amendment to
the application of Achernar Broadcasting Company IS ACCEPTED; that good
cause having been shown, the Petition For Leave To Amend and For Waiver
of Short Spacing Rule, filed November 19, 1997 by Achernar Broadcasting
Company IS GRANTED in part and DISMISSED in part,[^51] the attached
amendment IS ACCEPTED in part, and the attached translator applications
ARE REFERRED to the Mass Media Bureau; that the application of Lindsay
Television, Inc. (File No. BPCT-860410KQ) IS DISMISSED; that the
application for a construction permit for channel 64 of Achernar
Broadcasting Company (File No. BPCT-860410 KP), as amended to substitute
Charlottesville Broadcasting Corporation, IS GRANTED to the extent
reflected herein, and that the following pleadings ARE DISMISSED: (a)
Petition For Leave to Amend and Supplement thereto, filed September 19,
and September 22, 1997, respectively, by Lindsay Television, Inc.; (b)
Petition For Waiver of Short Spacing Rules filed on November 5, 1997 by
Lindsay Television, Inc.; (c) Petition For Acceptance of Television
Translator Applications and Request For Waivers, filed on December 8,
1997, by Lindsay Television, Inc.; and (d) Supplement to Shenandoah
Valley Educational Television Corporation's Comments and the attached
FCC Form 340, tendered for filing on December 2, 1999, by Shenandoah
Valley Educational Television Corporation.

29\. IT IS FURTHER ORDERED, That, pursuant to 47 U.S.C. §§ 4(i) and
303(g) of the Communications Act, effective 30 days after the release of
this Memorandum Opinion and Order, the Table of Television Allotments,
as specified in 47 C.F.R. § 73.606(b) IS AMENDED as follows:

Charlottesville, Virginia Channels 19-, 29-, \*41-

30\. IT IS FURTHER ORDERED, That, pursuant to 47 U.S.C. § 316(a),
Charlottesville Broadcasting Corporation\'s construction permit for a
new NTSC station on channel 64 IS MODIFIED to specify operation on
channel 19, effective 30 days after the release of this Order and
SUBJECT TO THE FOLLOWING CONDITIONS:

\(1\) The station must install and maintain a filter on its channel 19
transmitter providing 75-80 dB of attenuation in the 494-500 MHz band
(channel 18);

\(2\) The station must accept interference from current or future
494-500 MHz land mobile facilities operating from base stations located
within 50 miles of Washington, D.C., and mobile units operating within
30 miles of their associated base station; and

\(3\) The station must include a minus offset to protect NTSC channel 19
allotments in Jacksonville, North Carolina, Kingsport, Tennessee, and
Jeanette, Pennsylvania.

31\. IT IS FURTHER ORDERED, That the Supplement to Joint Petition for
Approval of Settlement Agreement, For Leave to Amend Application and For
Immediate Grant of Construction Permit, filed June 24, 1998 by Achernar
Broadcasting Company and Lindsay Television, Inc. IS DISMISSED.

32\. IT IS FURTHER ORDERED, That Charlottesville Broadcasting
Corporation IS GRANTED SPECIAL TEMPORARY AUTHORITY to operate
translators on channels 11 and 9, respectively, at Staunton and
Waynesboro, Virginia.

33\. IT IS FURTHER ORDERED, That the adjudicatory proceeding in MM
Docket No. 86-440 IS TERMINATED.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

[^1]: **   ** ^?^*Christopher Gault*, 1 FCC Rcd 732 (1986).

[^2]:     ^?^*Achernar Broadcasting Company*, 6 FCC Rcd 5393 (1991),
    *recon. denied,* 7 FCC Rcd 1778 (1992).

[^3]:     ^?^*Achernar Broadcasting Company v. FCC*, 62 F.3d 1441 (D.C.
    Cir. 1995).

[^4]:     ^?^The engineering proposal involves operation from the
    Carter\'s Mountain antenna farm with an antenna designed with a
    directionalized null to minimize transmission in the direction of
    the Observatory\'s Green Bank facility. The applicants have
    submitted a written agreement formalizing their understanding with
    the Observatory. *See* Supplement to Joint Petition for Approval of
    Settlement Agreement, filed June 24, 1998. To implement the
    agreement resolving the interference issues with the Observatory,
    Lindsay and Achernar filed a series of pleadings in late 1997
    seeking the short-spacing waivers and translator service necessary
    to correct the loss of channel 64 service to areas in the station\'s
    normally anticipated coverage area. Specifically, Achernar filed a
    Petition for Leave to Amend and for Waiver of Short-Spacing Rule on
    November 19, 1997, and Lindsay filed a Petition for Leave to Amend
    and a Supplement thereto on September 19, and 22, 1997, a Petition
    for Waiver of Short-Spacing Rules on November 5, 1997; and a
    Petition for Acceptance of Television Translator Applications and
    Request for Waivers on December 8, 1997. Lindsay\'s pleadings as
    well as Achernar\'s waiver request pertain to the original proposal
    for channel 64. In view of our action herein approving the
    applicants\' settlement agreement and modifying on our own motion
    the construction permit to specify operation on channel 19 in lieu
    of channel 64, these pleadings may be dismissed.

[^5]:     ^?^ *Reallocation of Television Channels 60-69 (Report and
    Order)*, 12 FCC Rcd 22953 (1998), *petitions for reconsideration
    denied*, 13 FCC Rcd 21578 (1998) \[Hereafter *Reallocation
    Reconsideration Order*.\]

[^6]:     ^?^*Id.* at 22953-54, 22971 ¶ 40.

[^7]:     ^?^12 FCC Rcd at 22971-72.

[^8]: ^?^ *Public Notice: Mass Media Bureau Announces Window Filing
    Opportunity for Certain Pending Applications and Allotment Petitions
    for New Analog TV Stations*, DA 99-2605, released Nov. 22, 1999.

[^9]: ^?^ *Public Notice: Mass Media Bureau Implements Community
    Broadcasters Protection Act of 1999*, 96891, released December 13,
    1999.

[^10]: ^?^ *Establishment of a Class A Television Service (Report and
    Order)*, FCC 00-115 (adopted March 28, 2000).

[^11]:     ^?^ These comments were filed in response to *Achernar
    Broadcasting Company,* FCC 99I-15 (OGC June 28, 1999), requesting
    further comments on APCO\'s contention that operation from channel
    64 would adversely impact on public safety. Comments were also
    sought on the applicants\' alternate request, discussed in greater
    detail below, to operate on channel 19 in lieu of channel 64. In
    particular, the Bureau was asked to comment on that proposal now
    that APCO has withdrawn its original opposition to channel 19.
    Comments were also filed on July 28, 1999, by Shenandoah Valley
    Educational Television and by Viacom, Inc. Responsive Comments were
    filed on August 12, 1999 by Lindsay and Achernar, and Reply Comments
    were filed on August 19, 1999 by Shenandoah. And, on December 2,
    1999, Shenandoah filed a Supplement to Comments In Opposition and a
    Motion to Enter Citizen Comments Into the Record. Lindsay and
    Achernar filed a Consolidated Opposition on December 16, 1999.

[^12]:     ^?^ *See* Supplement to Agreement, executed June 1, 1998, at
    ¶ 3.

[^13]:     ^?^*See* Supplement to Joint Request, filed June 24, 1998, by
    Achernar and Lindsay, at 2-3; Consolidated Reply to Oppositions,
    filed July 27, 1998, by Achernar and Lindsay, at 3-4, 14-16; Reply
    to Viacom Informal Objection, filed September 16, 1998, by Achernar
    and Lindsay, at 2. *See also* Responsive Comments of Achernar and
    Lindsay, filed August 12, 1999, at 2, incorporating by reference the
    previously filed Consolidated Reply.

[^14]:     ^?^*See* Consolidated Reply to Oppositions, at 8

[^15]:     ^?^The proposed transmitter site is less than 102 miles from
    the land mobile allocation for the Washington, D.C. urbanized area.
    *See* *Land Mobile Use of TV Channels*, 23 FCC 2d 325, 343-44
    (1970), providing that, in order to protect the assignment of
    channels 17 and 18 for land mobile use in the Washington, D.C.
    urbanized area, the Commission will not accept applications for
    construction permits for adjacent analog channels 16 and 19, if such
    are within 140 miles of the specified geographic center of the
    Washington, D.C. urbanized area.

[^16]:     ^?^*See* Reply Comments to Response of APCO, filed October
    13, 1998, by Achernar and Lindsay.

[^17]:     ^?^*See* Supplemental Response of APCO to Consolidated Reply
    to Oppositions, filed December 4, 1998, requesting the following
    conditions: (1) The station must install and maintain a filter on
    its channel 19 transmitter providing 75-80 dB attenuation in the
    494-500 MHz band (channel 18); and (2) The station must accept
    interference from current or future 494-500 MHz land mobile
    facilities operating from base stations located within 50 miles of
    Washington, D.C., and mobile units operating within 30 miles of
    their associated base station.

[^18]:     ^?^ *See* Mass Media Bureau\'s Comments, filed July 28, 1999,
    at 2.

[^19]: ^?^ We note the letter, dated March 2, 2000, from Thomas J.
    Bliley, Jr., Chairman, Committee on Commerce, U.S. House of
    Representatives, to William E. Kennard, Chairman, Federal
    Communications Commission, concerning this matter and stating that
    Shenandoah "has for over thirty years provided valuable
    noncommercial educational programming to the people of Virginia and
    West Virginia."

[^20]:      ^?^ The Bureau cites 47 C.F.R. §§ 74.702(b) and 74.703(b).

[^21]: .    ^?^*See* Consolidated Reply (Exhibit 5), filed July 27,
    1998, by Achernar and Lindsay.

[^22]:      ^?^*See* Consolidated Reply to Oppositions, filed July 27,
    1998, by Achernar and Lindsay, at 15-16, citing *Channel 16 of Rhode
    Island, Inc.*, 31 FCC 2d 574 (1971), in which the Commission
    modified a construction permit to specify operation on a different
    channel, where the channel change was necessitated by the
    reallocation of the original channel for land mobile use and the
    permittee had acquiesced in the channel switch.

[^23]:    ^?^*See* Responsive Comments of Achernar and Lindsay, filed
    August 12, 1999, at 2.

[^24]: ^?^ See Consolidated Opposition to Unlawful Filings by W19BB,
    filed December 16, 1999, at 8. Joint Petitioners refer specifically
    to the following pleadings filed by Shenandoah: (1) Supplement to
    Shenandoah Valley Educational Television Corporation's Comments,
    filed on December 2, 1999; (2) a letter purporting to tender an FCC
    Form 340; and (3) a Motion to Enter Citizen Comments into the
    Record, filed on December 2, 1999.

[^25]:     ^?^ Section 337(e)(1) specifies that \"\[a\]ny person who
    holds a television broadcast license to operate between 746 and 806
    megahertz \[channels 60-69\] may not operate at that frequency after
    the date on which the digital television service transition period
    terminates, as determined by the Commission.\" Section 309(j)(14)(A)
    provides that \"\[a\] television broadcast license that authorizes
    analog television service may not be renewed to authorize such
    service for a period that extends beyond December 31, 2006.\"

[^26]:     ^?^*Reallocation Report and Order*, 12 FCC Rcd at 22971-72 ¶
    40; *Reallocation Reconsideration Order*, 13 FCC Rcd at 21,581-82 ¶¶
    10-11.

[^27]:     ^?^*Reallocation Reconsideration Order*, 13 FCC Rcd at
    21581-82 ¶ 11.

[^28]:     ^?^ Given these conclusions regarding channel 64, it is
    unnecessary to entertain the alternative request to amend
    Achernar\'s application to specify operation on NTSC channel 19, and
    it may be dismissed. For the reasons stated below, however, we will
    on our motion modify the construction permit to specify operation on
    channel 19.

[^29]:     ^?^ *See Implementation of Section 309(j) of the
    Communications Act \-- Competitive Bidding for Commercial Broadcast
    and Instructional Television Fixed Services (First Report and
    Order)*, 13 FCC Rcd 15920, 15,947-48 ¶ 73 (1998), *recon. denied*,
    FCC 99-74 (rel. Apr. 20, 1999), *petitions for reconsideration
    dismissed*, DA-445 (MMB Mar. 1, 2000).

[^30]:     ^?^ *See Dorothy O. Schulze and Deborah Brigham*, 13 FCC Rcd
    3259, 3264 ¶¶ 10-11 (1998), *aff\'d sub nom. Communications, Inc. v.
    FCC*, 168 F.3d 1354 (D.C. Cir. 1999), concluding that,
    notwithstanding our general public interest determination in the
    digital television proceeding to eliminate vacant NTSC allotments,
    it was equitable in the context of a longstanding comparative
    proceeding to take action to ensure that the community is not
    deprived of long-awaited television service. There, we instructed
    the Bureau to take appropriate steps to permit the filing of
    applications for that channel. The circumstances warranting relief
    are equally compelling here, given the special interference issues
    relating to the Observatory\'s use of channel 64 for astronomy
    activities, and the D.C. Circuit\'s explicit recognition of the
    competing public interest significance of Charlottesville\'s need
    for a second commercial television service.

[^31]:     ^?^ *Reallocation Reconsideration Order*, 13 FCC Rcd at 21581
    ¶ 10 (\"\[w\]e believe that it was clearly the intention of Congress
    that channels 60-69 were to be reallocated with all due haste. . .
    .\").

[^32]:     ^?^ Section 303 provides that \"\[e\]xcept as otherwise
    provided in this Act, the Commission from time to time, as public
    convevience, interest, or necessity requires shall . . . (c)
    \[a\]ssign bands of frequencies to the various classes of stations,
    and assign frequencies for each individual station and determine the
    power which each station shall use and the time during which it may
    operate.\"

[^33]:     ^?^ *Memorandum Opinion and Order on Reconsideration of the
    Sixth Report and Order* in MM Docket No. 87-268, 13 FCC Rcd 7418,
    7519-20 ¶ 298 (1998). (Allotment Reconsideration Order).

[^34]: ^?^ *See Public Notice: Mass Media Bureau Implements Community
    Broadcasters Protection Act of 1999*, 96891, released December 13,
    1999. *See also* 47 U.S.C. § 336(f)(1)(B).

[^35]: ^?^ Shenandoah requests that the Commission certify eligibility
    pursuant to Section 336(f)(2)(B), providing that "For purposes of
    this subsection, a station is a qualifying low-power television
    station if . . . (B) the Commission determines that the public
    interest, convenience, and necessity would be served by treating the
    station as a qualifying low-power television station for purposes of
    this section, or for other reasons determined by the Commission."

[^36]: ^?^ *Establishment of a Class A Television (Report and Order)*,
    MM Docket No. 00-10, FCC 00-115 ¶¶ 44, 46 (adopted Mar. 28, 2000)
    ("\[W\]e will require Class A applicants to protect the facilities
    proposed in any application for full-power analog facilities that
    was pending on November 29, 1999, that had completed all processing
    short of grant as of that date, and for which the identity of the
    successful applicant is known. The applications in this latter
    category are post-auction applications, applications proposed for
    grant in pending settlements, and any singleton applications cut off
    from further filings. . . . \[T\]he best interpretation of . . .
    \[Section 336(f)(7)(A)(i)\] . . . is that it \[requires protection
    of such\] facilities proposed in applications pending as of November
    29, 1999 . . . for which there is a single, reasonably ascertainable
    predicted Grade B contour as of that date").

[^37]: ^?^ Supplement to Joint Petition for Approval of Settlement
    Agreement, filed June 24, 1998, by Achernar Broadcasting Company and
    Lindsay Television, Inc. at 1. Initially, the settlement agreement
    was "contingent upon the grant of a construction permit for Channel
    64 (or such other channel as the Commission may designate)." Joint
    Petition for Approval of Settlement Agreement, For Leave To Amend
    Application and For Immediate Grant of Construction Permit, filed
    January 30, 1998, by Achernar Broadcasting Company and Lindsay
    Television, Inc. at 1-2.

[^38]: ^?^ *Establishment of Class A Television Service (Report and
    Order)*, FCC 00-115 (adopted Mar. 28, 2000) at ¶ 35.

[^39]:     ^?^ *See WBEN, Inc. v. FCC*, 396 F.2d 609 (D.C. Cir. (D.C.
    Cir. 1961), finding that a modification had occurred where
    Commission granted an unconditional construction permit authorizing
    presunrise operations that, if used, would cause interference to the
    appellant, even though the rules permitted the Commission to order
    cessation of the presunrise operation if it caused undue
    interference. In contrast to the situation in *WBEN*, where the
    license was deemed modified within the meaning of the statute by the
    grant of an unconditional permit, the substitution of channel 19
    does not impact on the current license for WGNT-DT; any adverse
    impact on WGNT-DT would occur in the future only if the Commission
    ultimately increases the authorized power for Station WGNT-DT.

[^40]:     ^?^ The Commission has indicated that it would be equitable,
    where possible, to permit new analog permittees, whose applications
    are granted after April 3, 1997 and are thus ineligible for an
    initial paired digital license, to participate in the conversion to
    digital television. *Memorandum Opinion and Order on Reconsideration
    of the Fifth Report and Order* in MM Docket No. 87-268, 13 FCC Rcd
    6860, 6865 ¶¶ 11-12 (1998); *Second Memorandum Opinion and Order on
    Reconsideration of the Fifth and Sixth Report and Orders,* 14 FCC
    Rcd 1348, 1359-60 ¶¶ 26-27 (1998). Specifically, it has determined
    that pending NTSC applicants will not receive a paired DTV channel
    with the analog channel they are granted, but would have an
    opportunity to convert to digital television on the channel they
    were granted so long as the proposed DTV station protects all DTV
    and NTSC stations. *Id.*at 1359-60 ¶ 27.

[^41]:     ^?^The required spacing is 244.6 kM and the actual spacing is
    220.9 kM. *See* Viacom\'s Informal Objections, Appendix 1, at 2-4.

[^42]:     ^?^ *Id.* Appendix I, Table II and Figures 4-7.

[^43]:     ^?^ Comments of Shenandoah Valley Educational Association,
    filed July 28, 1999, at 9.

[^44]: ^?^ The *Public Notice* provides that a channel change cannot be
    accomplished by an amendment to a pending application, but expressly
    exempts the instant settlement request for channel 19 in
    Charlottesville from the requirement that a channel change must be
    requested by a petition for rulemaking. *Public Notice* at n. 9.

[^45]:     ^?^ Specifically, the Commission, in order to maximize the
    spectrum available to facilitate that transition, announced in July
    1996 that it would no longer accept petitions for rulemaking to
    amend the Analog Table of Allotments, and that as of September 20,
    1996, it would not accept applications for NTSC channels specified
    on the Table. *Advanced Television Systems and their Impact upon the
    Existing Television Broadcast Service (Sixth Further Notice)*, 11
    FCC Rcd 10968, 10992 (1996). And, absent extraordinary
    circumstances, an existing NTSC allotment that becomes vacant is
    routinely deleted from Table. *See Dorothy O. Schulze and Deborah
    Brigham*, *supra* n.30, in which the Commission directed the Mass
    Media Bureau to accept competing applications for an analog
    television channel after termination of a comparative licensing
    proceeding in which all of the applicants were found unqualified to
    be a Commission licensee.

[^46]:     ^?^ Section 73.685(e) provides that \"Stations operating on
    channels 14-69 with transmitters delivering a peak visual power
    output of more than 1 kW may employ directive transmitting antennas
    with a maximum to minimum radiation in the horizontal plane of not
    more than 15 dB.\" Here a maximum visual effective radiated power of
    2380 kW is proposed with an antenna pattern indicating a null of
    20.6 dB in the direction of the Observatory.

[^47]:     ^?^ *See* Supplement to Agreement, executed June 1, 1998, at
    ¶ 3, providing \"The Observatory has no objection to the
    substitution of channel 19 for channel 64 under the agreement so
    long as the \"equivalent protection\" and other provisions in ¶ 6 of
    the Agreement govern.\" Paragraph 4 of the Agreement, which is not
    modified by the Supplement, provides that \"the licensee may operate
    one or two television translators to provide service to the Staunton
    and Waynesboro, Virginia areas within the National Radio Quiet Zone
    . . . .\"

[^48]:     ^?^ Since 1984 the Commission\'s processing rules have
    required that television translator applications for new stations or
    for major modifications of the facilities of existing stations may
    be filed only on dates specified by the Commission, 47 C.F.R. §
    73.3564(d), and our practice has been to announce such windows
    periodically. *See* *Low Power Television and Television Translator
    Service (Report and Order)*, 102 FCC 2d 295, 297-98 ¶ 5 (1984). In
    connection with the adoption of competitive bidding procedures for
    commercial broadcast applications, we have revised our processing
    rules to require the filing within a publicly announced auction
    filing window of virtually all commercial broadcast and secondary
    broadcast applications for new facilities or for major modifications
    of existing facilities. *First Report and Order*, 13 FCC Rcd at
    15972-73 ¶¶ 136-38.

[^49]:     ^?^ In referring this matter to the Bureau, we note that the
    translators are necessitated by the agreement with the Observatory.
    For this reason, we believe that the public interest considerations
    reflected in this order are relevant and may be given weight in
    conjunction with the handling of the television translator
    applications.

[^50]: ^?^ Attached to the Motion are letters from Members of Congress
    and numerous citizens supporting Shenandoah's opposition to the
    grant of a construction permit for channel 19. Pursuant to Sections
    0.251(c) and (h), 1.41, and 1.47(g) of the Rules, Shenandoah
    requests that the citizens' letters be placed in the record. No
    party to this adjudicatory proceeding will be harmed by entry of the
    attached letters into the record in MM Docket No. 86-440. With one
    exception, each of the letters was mailed to the parties in this
    proceeding at the time of their submission to the Commission.
    Although the certificate of service was inadvertently omitted from
    the original submission, Section 1.47(g) of the rules provides that
    proof of service may be supplied at any time, provided that this
    will not materially prejudice the parties. Shenandoah has verified
    that, with one exception, it contemporaneously mailed copies of the
    submission to all of the parties and has adequately explained the
    circumstances relating to the submission of one letter that was not
    contemporaneously mailed to the parties. *See* Letter, dated
    November 8, 1999, from Jonathan D. Blake, Counsel, Shenandoah Valley
    Educational Television, to David S. Senzel, Esq., Administrative Law
    Division, Office of General Counsel, Federal Communications
    Commission. Given counsel's verification that all of the
    correspondence has been served on the parties and that the
    Commission's *ex parte* rules have been complied with, entry of the
    citizens' letters into the record will not, in our view, prejudice
    any party to this proceeding.

[^51]:     ^?^ Achernar seeks to amend to a new transmitter site,
    located after an extensive search, to accommodate the interference
    concerns of the Observatory. The amendment is supported by good
    cause in that it resolves a potentially disqualifying interference
    issue and adequately protects from broadcast inference certain
    operations at the Observatory\'s facility in Green Bank. That
    portion of the pleading seeking a waiver of the short-spacing rules,
    however, relates to channel 64 and is therefore moot.