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 Federal  Communications  Commission  DA  04-  2396 
 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 
 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  communitys 
 first  local  TV  service  and  the  modification  of  station  WUNDs  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  Commissions  Rules,  which  permit  the  modification  of  a  stations  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 


 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  ETAs  opposition,  as  Section  1.405  of  the  Commissions  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  ETAs  opposition  is  hereby  dismissed. 
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 applying  the  Commissions  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-  TVs  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  stations  community  of  license  are  satisfied  because  there  is  no  new 


 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).  . 
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 community  and  no  deprived  community  in  WUNDs  proposal. 
 5.  Petitioner  also  states  that  the  public  interest  would  be  served  even  if  WUNDs  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  WUNDs  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  Commissions  concern  for  a  communitys  loss  of  its  sole  existing  transmission  service  is  unaffected  by  this  proposal  because  WUNDs  request  is  merely  an  administrative  change. 
 However,  petitioner  requests,  if  the  Commission  deems  necessary,  a  waiver  of  the  Commissions  prohibition  on  the  removal  of  an  existing  station  representing  a  communitys  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    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  WUNDs  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  petitioners 
 reliance  on  population  gains  attributed  to  UNC-  TVs  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 
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 to  modify  petitioners  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  Commissions  minimum  distance  separation 
 requirements  at  Station  WUNDs  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.  City  Present  Proposed 


 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.  City  Present  Proposed 


 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) 
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 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  Certification  That  Sections  603  and  604  of  the  Regulatory  Flexibility  Act  Do  Not  Apply  to  Rule  Making  to  Amend  Sections  73.202(  b),  73.504  and  73.606(  b) 
 of  the  Commission's  Rules,  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  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  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  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  presentation  and  shall  not  be  considered  in  the  proceeding. 


 FEDERAL  COMMUNICATIONS  COMMISSION 


 Barbara  A.  Kreisman  Chief,  Video  Division 
 Media  Bureau 


 Attachment:  Appendix 
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 APPENDIX 
 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  to  which  this  Appendix  is  attached. 
 2.  Showings  Required.  Comments  are  invited  on  the  proposal(  s)  discussed  in  the  Notice  of  Proposed  Rule  Making  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.  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  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,  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.  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  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  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  Electronic  Filing  of  Documents  in  Rule  Making  Proceedings,  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 
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 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.  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.  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. 
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