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 Federal  Communications  Commission  DA  04-  523 
 Before  the 
 FEDERAL  COMMUNICATIONS  COMMISSION  Washington,  D.  C.  20554 


 In  re  )  ) 
 Amendment  of  Section  73.622(  b),  )  Table  of  Allotments,  ) 
 Digital  Television  Broadcast  Stations  )  (Hagerstown  and  Silver  Spring,  Maryland)  ) 


 MEMORANDUM  OPINION  AND  ORDER 
 Adopted:  February  24,  2004  Released:  February  25,  2004 


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


 2.  Background.  In  its  petition  for  rulemaking,  Entravision  argued  that  the  reallotment  of  DTV  channel  16  to  Silver  Spring,  and  the  relocation  of  its  transmitter  from 
 Hagerstown  to  a  site  within  the  Washington,  D.  C.  metropolitan  area,  would  result  in  a  preferential  arrangement  of  allotments,  consistent  with  the  analog  television  allotment 
 priorities  and  the  Commissions  rules  regarding  modification  of  television  authorizations  to  specify  a  new  community  of  license.  2  Entravision  acknowledged,  however,  that  its 


 1  See  Letter  to  Entravision  Holdings,  LLC  from  Barbara  A.  Kreisman,  Chief,  Video  Division. 
 2  Amendment  of  the  Commissions  Rules  Regarding  Modification  of  FM  and  TV  Authorizations  to  Specify 
 a  New  Community  of  License,  4  FCC  Rcd  4870  (1989),  clarified,  5  FCC  Rcd  7094  (1990)(  Community  Modifications).  See  also,  Sixth  Report  and  Order  on  Television  Allocations,  41  FCC  148,  167  (1952). 


 Specifically,  Entravision  argued  that,  all  other  relevant  factors  being  equal,  its  proposal  would  result  in  the  first  digital  television  broadcast  station  licensed  to  Silver  Spring;  would  result  in  a  net  population  gain  of 
 4,264,749  persons  in  the  Washington,  D.  C.  metropolitan  area  for  WJAL-  DT;  and,  because  Hagerstown  currently  has  licensed  to  it  two  NTSC  stations,  not  leave  that  community  unserved  or  underserved. 
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 proposed  transmitter  relocation  and  initiation  of  service  in  Silver  Spring  raised  interference  issues  with  respect  to  land  mobile  operations  in  the  Washington,  D.  C.  area. 
 According  to  the  staffs  independent  engineering  analysis,  Entravisions  proposed  WJAL-  DT  would  be  located  only  7.9  km  from  the  community  reference  point  for 
 adjacent  land  mobile  operations  on  channel  17.  The  Commissions  rules  require  that  digital  television  stations  be  located  a  minimum  of  250  kilometers  (155  miles)  from  the 
 geographic  center  of  a  co-  channel  land  mobile  allocation,  and  a  minimum  of  176  kilometers  (110  miles)  from  the  geographic  center  of  an  adjacent  land  mobile  allocation.  3 
 Operating  as  proposed,  WJAL-  DT  would  be  168.1  km  (more  than  96  percent)  short  spaced  to  land  mobile  operations  on  channel  17  in  the  Washington  area. 


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


 3  See  47  C.  F.  R.    73.  623(  e). 
 4  Entravision  proposed  to  use  interference  mitigation  technology  that  it  argues  has  recently  been  deployed 
 successfully  and  in  harmony  with  adjacent  land  mobile  facilities.  It  stated  that  it  had  no  basis  to  conclude  that  such  technology  would  not  be  successful  if  used  in  this  case. 


 5  Accord,  Advanced  Television  Systems  and  Their  Impact  Upon  the  Existing  Television  Broadcast  Service, 
 MM  Docket  No.  87-  268,  Sixth  Report  and  Order,  12  FCC  Rcd  14588,  14664  (1997)  ([  I]  f  .  .  .  problems  occur,  it  will  be  the  initial  responsibility  of  the  DTV  licensee  to  protect  against  or  eliminate  harmful 


 interference  to  land  mobile  services  that  have  commenced  operations  and  that  are  operating  in  accordance  with  our  rules  at  the  time  the  DTV  licensee  goes  on  the  air.). 


 6  In  that  regard,  Entravision  relied  primarily  on  the  recent  waiver  of  applicable  land  mobile  distance 
 separation  criteria  in  Amendment  of  Section  73.  606(  b),  Table  of  Allotments,  Television  Broadcast  Stations  (Blanco,  Texas),  17  FCC  Rcd  17166  (2002)  (  Blanco),  where  the  Commission  directed  the  Media  Bureau 


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


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


 6.  Finally,  the  staff  noted  that  the  present  allotments  for  WJAL-  DT  and  WFDC-DT,  Arlington,  do  not  interfere,  but  that  the  licensees  of  those  two  stations  have  agreed  to 
 propose  facilities  that  conflict  with  one  another  and  accept  the  interference  that  results  to 


 7  See,  Reallocation  and  Service  Rules  for  the  698-  746  MHz  Spectrum  Band  (Television  Channels  52-  59), 
 17  FCC  11613  (2002). 
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 each  DTV  station.  Thus,  it  found  that  Entravisions  proposed  move  would  alleviate  self-created  interference  problems,  and  that  was  not  a  persuasive  basis  for  creating  significant 
 disruption  to  land  mobile  operations. 
 7.  Petition  For  Reconsideration.  Entravision  now  asserts  that  the  staffs  conclusion  that  its  proposed  change  of  its  community  of  license  is  likely  to  cause 
 disruption  to  land  mobile  users  operating  on  channel  17,  and  that  it  could  not  effectively  protect  them  from  interference,  is  contrary  to  both  law  and  fact.  It  restates  that  its  current 
 allotment  violates  spacing  requirements  with  respect  to  land  mobile  operations,  and  that  that  was  done  without  land  mobile  users  consent;  that  by  doing  so,  the  Commission 
 implicitly  recognized  that  short-  spaced  allotments  do  not  conform  to  the  real  world  coexistence  of  DTV  operations;  that  in  order  to  for  both  services  to  co-  exist,  land  mobile 
 separation  rules  may  be  waived;  and  the  consent  requirement  is  impossible  to  satisfy  given  the  large  number  of  land  mobile  users  in  the  Washington,  D.  C.  area. 


 8.  Entravision  further  reasons  that,  because  land  mobile  distance  separation  and  consent  requirements  cannot  be  realistically  satisfied,  its  proposal  addresses  the 
 underlying  concern  of  those  rules    the  interference  to  be  caused  by  its  proposed  construction  and  operation.  In  that  regard,  it  again  argues  that  the  Commission  has 
 recognized  that  such  interference  could  occur  and  licensees  would  be  obligated  to  protect  or  eliminate  such  interference  with  respect  to  land  mobile  users  that  had  commenced 
 operating.  It  claims  that  the  staff  misapplied  Blanco  in  that  it  made  a  false  distinction  based  on  the  degree  of  short  spacing  rather  than  as  a  precedent  for  waiving  spacing 
 requirements  when  interference  can  be  effectively  contained. 
 9.  In  this  regard,  Entravision  states  that  Blanco  involved  a  co-  channel  relationship  rather  than,  as  is  proposed  here,  an  adjacent-  channel  situation  where 
 interference  prevention  methodologies  can  be  applied.  Entravision  argues  that,  in  denying  its  waiver  request,  the  staff  failed  to  substantiate  that  such  interference 
 techniques  would  not  be  successful  in  this  case.  Moreover,  inasmuch  as  it  is  willing  to  have  its  authority  to  operate  conditioned  upon  the  prevention  of  interference  to  land 
 mobile  operators  on  channel  17,  Entravision  states  that  the  staff  inaccurately  concluded  that,  unlike  the  Blanco,  it  did  not  agree  to  accept  interference  from  current  and  future 
 land  mobile  facilities.  Moreover,  Entravision  argues  that  so  long  as  it  is  prepared  to  prevent  interference  from  its  operation  to  existing  and  future  land  mobile  users  and  there 
 is  no  reason  why  it  should  not  succeed  in  doing  so,  the  failure  to  grant  its  requested  waiver  was  erroneous.  8 


 8  Entravision  also  argues  that  the  staff  incorrectly  concluded  that  WJAL-  DT  and  WFDC-  DT,  channel  15, 
 Arlington,  Virginia,  as  currently  allotted,  do  not  interfere  with  one  another  as  a  basis  to  find  that  the  alleviation  of  the  self-  created  interference  by  the  stations  DTV  proposals  was  not  a  persuasive  reason  to 


 waive  our  spacing  rules.  It  believes  that  the  Bureau  suggests  that  interference  between  adjacent  channels  does  not  occur,  whereas  it  states  that  non-  interference  is  only  achieved  when  adjacent  channels  are  either 
 virtually  co-  located  or  are  sufficiently  far  apart  that  the  required  desired-  to-  undesired  signal  interference  ratio  is  achieved  throughout  the  service  areas.  It  maintains  that  the  current  allotments  for  the  WJAL-  DT 
 and  WFDC-  DT  facilities  results  in  unmasked  adjacent-  channel  interference  affecting  over  3,100  people.  Entravision  reiterates  that  the  proposed  co-  location  of  its  transmitter  with  that  of  WFDC-  DT  would  enable 
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 10.  Discussion.  Section  1.106  of  the  Commissions  Rules  requires,  among  other  things,  that  a  request  for  reconsideration  reference  new  facts  or  changed  circumstances 
 not  previously  present  or  findings  of  fact  and/  or  conclusions  of  law  which  the  petitioner  believes  to  be  erroneous.  See  47  C.  F.  R.  1.106(  c)&(  d).  Entravisions  petition  essentially 
 raises  matters  advanced  and  addressed  earlier  in  this  proceeding  with  respect  to  its  request  for  a  waiver  of  the  Commissions  spacing  rules,  and  sets  forth  its  disagreements 
 with  the  findings  and  conclusions  of  the  staff  to  deny  that  waiver,  which  it  now  terms  contrary  to  law  and  fact.  For  the  reasons  that  follow,  the  Bureau  concludes  that 
 Entravision  fails  to  establish  a  basis  to  reverse  the  denial  of  its  request  to  waive  Section  73.623(  e)  of  the  Commissions  rules  to  permit  its  proposed  change  of  community  of 
 license  from  Hagerstown  to  Silver  Spring,  Maryland. 
 11.  As  explained  in  the  earlier  ruling,  the  Commission  will  generally  not  grant  a  waiver  of  minimum  station  separation  rules  for  allotment  purposes  absent  the 
 demonstration  of  a  compelling  need  to  depart  from  those  well-  established  separation  standards.  9  In  similar  cases,  we  have  repeatedly  observed  that  strict  adherence  to  the 
 spacing  requirements  upon  which  the  Table  of  Allotments  is  based  is  necessary  .  .  .  in  order  to  provide  a  consistent,  reliable  and  efficient  scheme  of  allotments.  10  In  those  rare 
 cases  that  the  Commission  has  granted  short-  spaced  allotments,  it  has  done  so  based  on  highly  unusual  circumstances  and  when  there  was  a  substantial  public  benefit  to  be 
 gained  at  a  minimal  cost.  11  As  explained  in  the  July  25  th  letter,  Entravision  did  not  make  the  compelling  showing  to  support  its  waiver  request  for  a  short-  spaced  allotment.  In  this 
 regard,  Entravisions  showing  is  like  similar  cases  where  petitioners  seek  short-  spaced  allotments  to  improve  their  geographic  coverage  area,  but  the  public  interest  benefits 
 advanced  simply  do  not  outweigh  the  harms  to  be  caused  to  the  integrity  of  the  Table  of  Allotments,  and  the  Commissions  minimum  spacing  rules  and  its  spectrum  management 
 policies. 
 12.  We  reject  the  underlying  premise  of  Entravisions  argument  on  reconsideration  --  that  it  was  entitled  to  the  grant  of  its  requested  waiver  of  Section 
 73.623(  e)  of  the  Commissions  Rules  because  that  rule  has  been  waived  in  the  past  or  was  violated  when  its  digital  channel  was  initially  allotted.  It  is  axiomatic  that  even  if 
 the  Commission  has  waived  this  or  any  of  its  rules  in  the  past,  it  is  not  compelled  to  do  so 


 it  to  overcome  that  interference  from  that  station  and  to  provide  optimal  service  to  the  public  without  the  encumbrance  of  agreed-  to  interference  in  excess  of  that  otherwise  permitted. 
 9  See,  e.  g.,  Amendment  of  Section  73.  606(  b),  Television  Table  of  Allotments  (Pueblo,  Colorado),  10  FCC 
 Rcd  7662,  7667  (MMB  1995),  app.  for  rev.  denied,  11  FCC  Rcd  19649  (1996),  affd  on  remand,  FCC  99-162  (released  July  7,  1999). 


 10  Amendment  of  Section  73.606(  b),  Television  Table  of  Allotments  (Millington,  Maryland),  45  RR  2d 
 1689,  1690-  91  (1979).  See  also,  Amendment  of  Section  73.  606(  b),  Television  Table  of  Allotments  (Pueblo,  Colorado),  10  FCC  Rcd  7662  (1995),  review  denied,  11  FCC  Rcd  19649  (1996), 


 11  See,  e.  g.,  Notice  of  Proposed  Rulemaking  to  Amend  Television  Table  of  Assignments  to  Add  New  VHF 
 Stations  in  the  Top  100  Markets,  63  FCC  2d  840,  855  (1977),  Report  and  Order,  81  FCC  2d  233,  261-  67  (1980),  recon.  denied,  90  FCC  2d  160  (1982). 
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 in  every  case  or  under  any  circumstances.  We  are  also  not  persuaded  that  the  comparatively  minor  short  spacing  to  land  mobile  facilities  attendant  to  the  initial 
 allotment  of  Entravisions  present  paired  DTV  channel  supports  further  and  significantly  increased  deviation  from  the  spacing  rules  absent  other  compelling  public  interest 
 factors.  12  The  larger  public  interest  considerations  underlying  the  establishment  of  the  initial  DTV  Table  of  Allotments  substantially  outweigh  the  limited  public  benefits 
 alleged  in  this  case,  and  the  current  short  spacing  to  land  mobile  operations  does  not  justify  exacerbation  of  that  spacing  to  the  degree  proposed  here.  13 


 13.  We  continue  to  remain  unconvinced  that  Entravisions  limited  reading  of  Blanco  compels  the  waiver  of  the  spacing  rules  in  order  to  accommodate  the  grant  of  its 
 application.  In  Blanco,  a  short-  spaced  allotment  was  made  to  implement  the  Commissions  allocation  of  a  channel  to  that  community  that  was  subsequently 
 eliminated  in  a  new  reallocation  plan.  In  that  case,  the  Commissions  reallotment  plan  foreclosed  the  provision  of  service  to  a  community  designated  to  receive  its  first  service. 
 In  making  the  short-  spaced  allotment  necessary  to  implement  that  service,  we  placed  a  restriction  limiting  any  operation  on  that  channel  to  effectively  limit  its  signal  to  avoid 
 interference  to  land  mobile  operations  in  a  more  highly  populated  area.  In  this  case,  by  contrast,  Entravision  has  an  allotted  DTV  channel  to  implement  digital  service  to 
 Hagerstown,  and  there  is  no  suggestion  that  its  ability  to  provide  that  service  is  foreclosed  or  at  risk,  as  was  clearly  the  case  in  Blanco.  Entravisions  DTV  channel  will  continue  to 
 be  available  to  it  for  the  provision  of  WJAL-  DTs  digital  service.  Thus,  we  do  not  find  that  waiver  of  the  minimum  spacing  rules  is  necessary  to  accommodate  the  transition  to 
 digital  broadcasting  in  this  case. 
 14.  Entravisions  focus  in  its  reconsideration  pleading  on  its  pledge  to  eliminate  resulting  interference  is  misplaced.  In  Blanco,  the  Commission  was  able  to  assure 
 adequate  protection  of  potentially  affected  land  mobile  operators  impacted  by  the  comparatively  minor  11  percent  short  spacing  involved  there  by  restricting  the  operating 
 parameters  of  any  operation  on  that  channel.  Given  the  nearly  100  percent  short  spacing 
 12  When  this  channel  was  allotted,  it  was  part  of  an  extraordinary  complex  undertaking  of  identifying  a 
 channel  arrangement  to  fully  accommodate  approximately  1,700  existing  television  stations  so  that  each  was  assigned  a  paired  DTV  channel.  Although  every  effort  was  made  to  minimize  the  number  and  extent 


 of  such  short  spacings,  some  were  nevertheless  created  and  incorporated  into  the  initial  DTV  Table  of  Allotments.  Sixth  Report  and  Order  in  MM  Docket  No.  87-  268,  12  FCC  Rcd  14588,  14629  (1997). 
 Moreover,  when  a  licensee,  operating  from  an  authorized  site  seeks  authority  to  move  to  one  that  is  short  spaced  (or,  as  is  the  case  with  WJAL-  DT,  proposes  to  increase  its  existing  short  spacing),  it  faces  a  higher 
 burden,  and  we  will  consider  other  factors,  such  as  the  unavailability  of  a  fully-  spaced  site,  the  magnitude  of  the  short  spacing,  the  nature  and  extent  of  any  predicted  loss  of  service,  the  concerns  of  the  affected 
 licensees,  and  whether  the  licensee  had  knowledge  of  existing  spacing  constraints  when  it  obtained  its  authorization.  See,  e.  g.,  Townsend  Broadcasting  Corp.,  62  FCC  2d  511  (1976).  Other  than  Entravisions 
 contention  that  it  will  serve  more  people,  there  is  nothing  presented  to  indicate  that  its  present  allotment  or  facilities  is  unsatisfactory  or  unavailable. 


 13  Similarly,  the  alleviation  of  the  claimed  unmasked  interference  from  WFDC-  DT,  Arlington,  Virginia, 
 attendant  to  the  creation  of  the  initial  DTV  Table  of  Allotments  is  not  a  public  interest  factor  of  such  weight  as  to  overcome  the  other  service  concerns  raised  by  this  proposal. 
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 involved  in  this  case,  we  are  unable  to  effectively  restrict  the  operating  parameters  of  any  implementing  construction  permit  to  limit  predicted  interference  to  land  mobile 
 operations  in  the  highly  populated  Washington,  D.  C.  area. 
 15.  The  potential  harm  to  the  public,  before  any  resulting  interference  to  land  mobile  operators  and  the  provision  of  public  safety  services  can  be  cured,  is  substantial. 
 As  proposed  by  Entravision,  before  that  interference  can  be  overcome,  it  will  first  have  to  be  identified  and  studied  in  conjunction  with  individual  land  mobile  operators, 
 customized  equipment  and  filtering  may  have  to  be  manufactured,  installed,  and  tested,  appropriate  governmental  approvals  may  be  necessary  to  obtain,  and  all  of  these  efforts 
 must  be  coordinated  with  all  affected  spectrum  users  without  disruption  of  the  public  services  provided  by  existing  land  mobile  operations.  Given  its  admitted  inability  to 
 identify  in  advance  the  large  number  of  land  mobile  operators  that  could  be  impacted,  Entravision  has  not  demonstrated  how  service  disruptions  of  that  potential  magnitude  and 
 complexity  can  be  quickly,  effectively  and  reliably  avoided.  Moreover,  simply  suggesting  that  methodologies  exist  that  should  permit  Entravision  to  address  the 
 interference  to  be  created  here  does  not  adequately  demonstrate  that  it  can  and  will  alleviate  that  interference  expeditiously  and  without  substantial  disruption  to  existing 
 services.  We  do  not  agree  that  it  is  up  to  the  staff,  as  Entravision  claims,  to  demonstrate  that  those  general  methodologies  will  not  work.  Perhaps  most  importantly,  the  grant  of 
 the  requested  waiver  under  these  circumstances  would  effectively  eliminate  the  consent  requirement  and  permit  the  grant  of  virtually  any  short-  spaced  proposal  application  based 
 merely  on  an  applicants  pledge  to  eliminate  the  resulting  interference  those  rules  are  intended  to  avoid  after  it  occurs.  Such  action  would  create  a  precedent  for  similar 
 proposals  that  would  essentially  eviscerate  the  spacing  rules,  and  will  result  in  a  significant  disruption  of  important  land  mobile  services  to  the  public  and  undermine  the 
 Commissions  spectrum  management  planning  and  policies.  14 
 16.  Furthermore,  because  of  the  location  of  this  channel  in  the  National  Capital  area,  the  requested  waiver  poses  an  additional  significant  and  substantial  threat  to  public 
 safety  if  such  service  disruptions  to  land  mobile  operations  were  to  occur  during  an  emergency  situation.  The  terrorist  acts  of  September  11,  2001,  and  the  ongoing  terrorist 
 threats  to  national  security  have  made  clear  the  need  of  public  safety  spectrum  users  to  have  the  most  reliable  access  possible  to  sufficient  telecommunications  capacity  during 


 14  To  the  extent  that  Entravision  pledges  to  protect  only  existing  land  mobile  operations,  there  is  an 
 additional  and  significant  public  cost  without  countervailing  benefits  in  that  the  grant  of  this  proposal  will  effectively  restrict  the  continued  development  and  expansion  of  that  spectrum  as  intended  by  the 


 Commission  by  foreclosing  any  future  land  mobile  proposals  that  would  be  unable  to  effectively  protect  WJAL-  DTs  proposed  operation.  To  the  extent  that  Entravision  pledges  to  accept  interference  from  future 
 land  mobile  operators,  such  interference  could  essentially  eviscerate  the  service  it  intends  to  provide,  further  undermining  the  allotment  rules  and  policies.  In  addition,  the  presence  of  Entravisions  proposed 
 DTV  station  could  constrain  the  service  of  future  land  mobile  operations  in  a  manner  that  cannot  be  characterized  or  remedied  as  interference  per  se.  For  example,  because  a  DTV  signal  resembles  electrical 
 noise,  a  higher  noise  level  often  means  that  the  desired  signal  level  must  also  be  higher  to  provide  acceptable  service.  In  a  land  mobile  system,  this  could  result  in  a  mobile  station  being  unable  to  operate  at 
 as  great  a  distance  from  a  base  station  as  it  could  before  the  noise  level  increased. 
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 an  emergency.  A  reliable  telecommunications  system  that  will  not  be  overwhelmed  in  a  crisis  is  fundamental  to  the  ability  of  first  responders,  medical  personnel  and  others  to  do 
 their  jobs  in  an  emergency.  In  such  a  situation,  ongoing  licensee  experimentation  to  relieve  interference  to  public  safety  spectrum  users  cannot  be  considered  as  ensuring  vital 
 communications  resources  and,  as  such,  does  not  serve  the  publics  interest. 
 17.  Entravisions  contention  that  a  preferred  arrangement  of  television  allotments  will  result  from  the  grant  of  its  requested  waiver  is  also  unavailing.  As  presently  allotted, 
 WJAL-  DT  cannot  reach  the  Washington  market  in  compliance  with  our  rules.  Reallotment  of  its  channel  as  a  first  service  to  a  community  adjacent  to  Washington, 
 D.  C.,  as  proposed,  then  allows  it  to  relocate  there  and  therefore  substantially  increase  the  population  served  by  the  station.  While  the  proposed  allotment  of  a  DTV  channel  to 
 Silver  Spring  may  ostensibly  represent  that  communitys  first  local  service,  in  reality  it  would  be  merely  an  additional  local  service  in  the  substantially  larger  and  better  served 
 Washington,  D.  C.  television  market.  In  Community  Modifications,  the  Commission  observed  that  there  might  be  some  instances  where  licensees  moving  to  more  populated 
 areas  to  increase  their  service  area,  even  at  the  expense  of  service  to  more  rural  communities,  would  be  consistent  with  our  allotment  priorities.  The  Commission, 
 however,  stated  that  it  would  rely  on  the  application  of  the  allotment  priorities  in  conjunction  with  the  Commissions  minimum  distance  separation  requirements  and  the 
 present  intensive  use  of  spectrum  in  urban  areas,  [to]  act  as  a  barrier  to  the  clustering  of  stations  in  major  metropolitan  areas  [and  to]  address  the  issue  as  necessary.  15 


 18.  If  Entravisions  community  of  license  change  proposal  was  permissible  under  our  rules  without  the  need  for  a  waiver  of  the  spacing  rules,  our  analysis  of  the  public 
 interest  implications  might  well  be  limited.  16  As  another  factor  in  the  public  interest  balance,  however,  we  must  consider  that  relocation  of  WJAL-  DTs  service  area  would  be 
 achieved  at  a  high  cost    the  loss  of  existing  service  to  Hagerstown.  The  curtailment  of  existing  service  is  not  in  the  public  interest  generally,  and  the  weight  accorded  the 
 publics  expectation  that  existing  service  will  continue  is  substantial  and  is  sufficient  to  counterbalance  a  preferred  arrangement  of  allotments.  17  Based  on  the  totality  of 
 circumstances  and  public  interest  considerations  present  in  this  case,  we  cannot  agree  that 


 15  Community  Modifications,  4  FCC  Rcd  at  4873. 
 16  In  this  regard,  Entravisions  assertion  that  a  preferred  allotment  arrangement  would  result  if  its  proposal 
 was  granted  is  not  dispositive  of  the  issue  of  whether  our  technical  rules  should  be  waived  to  permit  the  reallotment  of  its  channel.  In  that  regard,  although  there  is  a  presumed  public  interest  basis  for  a 


 preferential  arrangement  of  analog  television  channels  in  community  of  license  change  proceedings,  that  fact  doesnt  necessarily  supercede  the  public  interest  considerations  inherent  in  using  the  required  station 
 separation  rules  to  protect  the  integrity  of  the  DTV  Table  of  Allotments  and  the  land  mobile  spectrum. 
 17  See,  e.  g.,  Amendment  of  Section  73.  606(  b),  Television  Table  of  Allotments  (Eatonton  and  Sandy  Springs, 
 Georgia,  and  Anniston  and  Lineville,  Alabama),  6  FCC  Rcd  6580,  6586-  87(  1991).  See  also  Hall  v.  FCC,  237  F.  2d  567  (1956).  When  WJAL-  TV  ceases  operating  on  its  current  analog  channel,  Hagerstown  will  be 


 deprived  of  this  existing  service,  and,  because  Entravisions  proposal  would  actually  remove  a  DTV  channel  allotted  to  that  community,  it  will  not  even  be  offered  the  poor  substitute  of  a  vacant  allotment 
 that  could  be  used  to  reestablish  service  to  Hagerstown  at  some  future  date. 
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 the  limited  public  interest  benefits  attendant  to  the  proposed  reallotment  of  DTV  channel  16  from  Hagerstown  to  Silver  Spring  outweigh  the  myriad  and  substantial  harms  that  will 
 result  from  a  waiver  of  the  station  separation  requirements.  As  such,  Entravisions  proposal  is  inconsistent  with  the  Commissions  allotment  priorities  insofar  as  it  fails  to 
 propose  a  short-  spaced  allotment  with  significant  public  benefit  that  can  be  achieved  at  minimal  cost  and  disruption.  Moreover,  it  would  substantially  undermine  the 
 Commissions  use  of  the  minimum  spacing  rules  to  ensure  that  community  of  license  change  procedures  not  be  misused  to  cluster  stations  in  major  metropolitan  areas  at  the 
 expense  of  service  to  more  rural  communities. 
 19.  Based  on  the  above,  we  are  not  persuaded  that  the  staff  acted  erroneously  by  denying  Entravisions  requested  waiver.  The  proposed  reallotment  of  channels  here 
 would  result  in  a  significant  curtailment  of  existing  television  service,  would  pose  an  unacceptable  threat  to  the  public  by  causing  disruptive  and  substantial  interference  to 
 land  mobile  operations,  would  foreclose  the  development  and  expansion  of  land  mobile  operations,  and  effectively  eviscerate  the  Commissions  current  spacing  rules, 
 community  of  license  change  policies  and  spectrum  management  goals  with  little,  if  any,  offsetting  benefits  to  the  public.  Accordingly,  the  Petition  for  Reconsideration  in  this 
 matter  filed  by  Entravision  Holdings,  LLC  IS  DENIED. 
 FEDERAL  COMMUNICATIONS  COMMISSION 


 W.  Kenneth  Ferree  Chief,  Media  Bureau 
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