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 Federal  Communications  Commission  DA  02-  1776 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 
 In  the  Matter  of  )  ) 
 Amendment  of  Section  73.622(  b)  )  MM  Docket  No.  00-  121  Table  of  Allotments  )  RM-  9674 
 Digital  Television  Broadcast  Stations  )  (Kingston,  New  York)  ) 

 MEMORANDUM  OPINION  AND  ORDER 
 Adopted:  July  23,  2002  Released:  July  29,  2002 
 By  the  Chief,  Video  Division: 
 1.  The  Chief,  Video  Division,  Media  Bureau,  herein  considers  a  Petition  for  Reconsideration  and  a  Motion  for  Stay  filed  by  WKOB  Communications,  Inc.  (  WKOB), 
 licensee  of  WKOB-  LP,  New  York,  New  York,  with  respect  to  the  Commissions  decision  granting  a  change  in  the  digital  television  channel  allotment  for  WRNN-  TV,  Kingston,  New 
 York,  from  DTV  Channel  21  to  DTV  Channel  48.  See  Report  and  Order,  Amendment  of  Section  73.622(  b),  Table  of  Allotments,  Digital  Television  Broadcast  Stations  (Kingston,  New  York),  17 
 FCC  Rcd  1485  (2002)  (  Report  and  Order).  WRNN-  TV  Associates  Limited  Partnership  (  WRNN),  licensee  of  WRNN-  TV,  filed  oppositions  to  WKOBs  pleadings,  and  WKOB  filed 
 replies  thereto. 
 2.  As  set  forth  in  greater  detail  in  the  Report  and  Order,  WKOB  opposed  WRNNs  DTV  channel  change  proposal  on  the  basis  that  it  would  effectively  displace  WKOB-  LPs  operation 
 on  Channel  48  in  New  York  City.  It  argued  that  WKOB-  LP  had  already  been  displaced  from  its  initially  authorized  Channel  53,  that  Channel  48  was  the  only  remaining  displacement  channel 
 available  to  it,  and  that  it  would  be  forced  to  cease  operations  if  WRNNs  proposal  were  granted.  It  argued  that  although  WKOB-  LP  was  a  secondary  service,  WRNN  faced  a  heavy  burden  to 
 alter  the  status  quo  in  terms  of  the  loss  of  WKOB-  LPs  service.  Nevertheless,  the  staff,  acting  pursuant  to  delegated  authority,  found  that  WKOB-  LP,  as  a  secondary  service,  was  not  entitled 
 to  protection  from  WRNNs  digital  proposal.  Moreover,  inasmuch  as  WRNNs  proposed  channel  change  met  City  Grade  service  and  interference  protection  requirements  and  otherwise 
 furthered  the  Commissions  goals  with  respect  to  the  establishment  of  digital  television  service,  the  staff  determined  that  the  requested  channel  change  served  the  public  interest  and  was 
 therefore  approved. 
 3.  In  its  petition  for  reconsideration,  WKOB  seeks  to  reverse  the  allotment  of  DTV 
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 Channel  48  at  Kingston.  1  It  alleges  that  the  staff  relied  on  facts  concerning  interference  reduction  in  approving  the  channel  change  which,  in  light  of  the  specific  modifications  requested 
 in  WRNNs  implementing  construction  permit  application,  are  erroneous.  Specifically,  WKOB  contends  that,  while  WRNNs  rulemaking  proposal  proposed  various  interference  reductions 
 toward  Long  Island,  its  implementing  construction  permit  application  proposes  to  increase  instances  of  interference.  2  WKOB  also  asserts  that  the  staff  erred  by  summarily  dismissing 
 WKOP-  LPs  status  as  a  low  power  station  3  and  ignoring  or  changing  without  adequate  explanation  the  Commissions  announced  policy  of  ensuring  that  digital  station  allotments  do 
 not  have  an  unnecessary  adverse  impact  on  low  power  operations. 
 4.  In  opposition,  WRNN  rejects  WKOBs  claim  that  its  construction  permit  application  for  DTV  Channel  48  somehow  undermines  the  staffs  decision.  In  this  regard,  it  notes  that  in 
 allotment  proceedings,  proposals  may  be  evaluated  using  assumed  sites  and  facilities,  and  that  issues  relating  to  the  actual  technical  parameters  of  a  stations  facilities  are  appropriately 
 addressed  at  the  application  stage,  rather  than  the  allotment  stage.  It  notes  that  WKOB  has  done  so  filing  an  informal  objection  to  its  modification  application.  Nevertheless,  WRNN  contends 
 that  its  implementing  construction  permit  application  in  no  way  undermines  the  basis  for  the  channel  change.  4  WRNN  further  asserts  that,  contrary  to  WKOBs  claims,  the  staff  fully 
 considered  the  impact  of  the  proposed  reallotment  on  WKOB-  LP  and  correctly  determined  that  it 
 1  WKOB  also  filed  a  motion  to  stay  the  effective  date  of  the  Report  and  Order,  alleging  that  if  WRNN  is  granted  a 
 construction  permit  for  Channel  48,  WKOB-  LP  will  lose  both  its  displacement  channel  and  the  money  spent  at  auction  to  secure  it,  and  be  forced  out  of  business.  It  alleges  that  it  meets  the  Commissions  requirements  necessary 

 for  the  grant  of  a  stay  motion,  including  the  filing  of  subject  petition  for  reconsideration,  which  it  believes  it  is  likely  to  be  granted.  See,  e.  g.,  Virginia  Petroleum  Jobbers  Assn  v.  FPC,  259  F.  2d  921,  925  (D.  C.  Cir.  1958); 
 Washington  Metropolitan  Area  Transit  Commn  v.  Holiday  Tours,  Inc.,  559  F.  2d  841  (D.  C.  Cir.  1977).  However,  in  light  of  our  action  herein,  WKOBs  motion  for  stay  is  appropriately  denied. 

 2  WKOB  also  filed  an  Objection  to  WRNNs  construction  permit  application  (File  No.  BPCDT-  20020130AAQ). 
 It  requests  that  that  application  be  dismissed  as  premature  or  that  processing  be  deferred  pending  consideration  of  the  instant  petition  for  reconsideration  to  reverse  the  subject  allotment.  It  also  suggests  that  in  light  of  the  coverage 

 proposed  in  that  application,  certain  legal  or  technical  issues  might  exist  that  the  Commission  may  not  have  considered.  In  light  of  our  action  today  disposing  of  the  issues  raised  in  the  petition  for  reconsideration,  the  matters 
 raised  in  this  regard  in  WKOBs  objection  are  moot.  Moreover,  the  staff  has  reviewed  the  construction  permit  application,  and  has  determined  that  it  meets  our  legal  and  technical  requirements.  Therefore,  we  will  herein  deny 
 WKOBs  objection  to  the  construction  permit  application,  and  grant  that  application  by  separate  action  this  day. 
 3  As  noted  in  the  Report  and  Order,  WKOB  was  denied  eligibility  for  Class  A  Low  Power  Television  status,  which 
 might  otherwise  entitle  WKOB-  LP  additional  interference  protections.  Its  subsequent  petition  for  reconsideration  of  that  decision  was  denied,  and  the  Commission  denied  its  subsequent  application  for  review  on  January  11,  2002. 

 WKOB  reports  that  it  has  filed  a  petition  for  reconsideration  of  the  Commissions  decision  that,  if  reversed,  would  afford  WKOB  greater  interference  protection. 

 4  In  its  reply  pleading,  WKOB  asserts,  among  other  things,  that  technical  parameters  of  a  proponents 
 implementation  plans  are  a  critical  aspect  of  a  DTV  allotment  proposal.  It  argues  that  to  conclude  otherwise  is  arbitrary  and  capricious,  as  well  as  statutorily  unlawful  in  that  other  stations  impacted  by  the  implementing  proposal 

 are  denied  the  ability  to  comment  or  offer  counterproposals.  Nevertheless,  WKOB  maintains  that  even  if,  as  a  general  rule,  the  Commission  structures  allotment  rulemaking  around  theoretical  reference  points  and  hypothetical 
 facilities,  it  should  not  do  so  in  this  case  because  of  the  substantial  deviation  of  the  proposed  WRNN  facility. 
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 was  not  entitled  to  protection.  It  asserts  that  the  Commission  recognized  that  certain  secondary  operations  such  as  low  power  stations,  especially  those  in  major  markets,  might  be  adversely 
 impacted  and  even  forced  from  the  air  during  the  implementation  of  DTV  service.  It  argues  that  WKOB  was  well  aware  of  those  risks  when  it  sought  to  acquire  Channel  48  as  its  displacement 
 channel.  5  Finally,  WRNN  asserts  that  both  it  and  the  public  will  suffer  harm  if  it  is  forced  to  further  delay  the  implementation  of  its  digital  service. 

 DISCUSSION 
 5.  WKOB  has  not  established  that  reconsideration  and  reversal  of  the  Report  and  Order  is  warranted.  As  WRNN  correctly  notes,  when  a  party  seeks  to  amend  the  Table  of  Allotments, 
 hypothetical  reference  coordinates  and  facilities  are  used  for  purposes  of  making  the  allotment.  The  rulemaking  proponent  is  not  required  to  specify  an  actual  transmitter  site  from  where  the 
 station  would  be  operated,  only  a  theoretically  fully  spaced  transmitter  site  location,  i.  e.,  a  site  from  which  it  affords  appropriate  signal  coverage  and  interference  protection.  Inasmuch  as 
 WRNNs  rulemaking  proposal  met  all  such  signal  coverage  and  interference  requirements,  the  channel  change  was  not  premised  on  interference  reduction.  Moreover,  the  fact  that  more 
 interference  may  be  theoretically  caused  by  WRNNs  proposed  facilities  does  not  necessarily  mean  that  that  such  interference  is  prohibited  interference  that  undermines  the  validity  or 
 adoption  of  the  channel  change.  In  any  event,  any  interference  engendered  by  WRNNs  proposed  facilities  is  an  issue  relevant  to  the  implementing  construction  permit  application, 
 where  WKOB  has  filed  its  objection. 
 6.  The  gravamen  of  WKOBs  objection  is  that  protection  was  not  afforded  to  its  low  power  station  in  the  adoption  of  this  rulemaking  proposal.  As  noted  in  the  Report  and  Order, 
 WKOB-  LP  is  a  secondary  service  and,  as  such,  is  simply  not  entitled  to  the  level  of  protection  it  desires.  That  is  not  a  change  or  misapplication  of  Commission  policy.  Throughout  this 
 proceeding,  WKOB  has  routinely  referenced  the  Commissions  language  in  1997s  Advanced  Television  Systems,  12  FCC  Rcd  14588,  that  proposed  modifications  to  the  DTV  Table  should, 
 where  possible,  avoid  impacting  low  power  stations,  to  support  its  claim  that  its  low  power  service  should  not  be  disrupted  if  technically  unnecessary.  However,  the  Commission  later 
 refined  that  policy,  as  noted  in  the  Report  and  Order,  to  protect  such  facilities  only  to  the  extent  that  they  receive,  or  are  eligible  to  receive,  Class  A  status.  6  In  so  doing,  the  Commission 
 acknowledged  that  the  impact  of  DTV  transition  would  have  significant  adverse  effects  on  many  stations,  particularly  [non-  Class  A]  LPTV  stations  operating  in  urban  areas  where  there  are 
 few,  if  any,  available  replacement  channels  for  displaced  stations.  7  Such  is  the  position  WKOB 

 5  In  its  reply,  WKOB  dismisses  WRNNs  assertion  that  WKOB-  LP  has  no  protection  rights,  and  maintains  that  the 
 Bureaus  allotment  decision  in  this  case  cannot  be  reconciled  with  the  Commissions  policy  not  to  destroy  low  power  television  service  where  it  is  not  necessary  to  establish  DTV  service. 

 6  See  In  the  Matter  of  Establishment  of  a  Class  A  Service,  15  FCC  Rcd  6355,  6370-  71  (2000),  clarified  on  recon., 
 16  FCC  Rcd  8244  (2001). 

 7  16  FCC  Rcd  at  8247. 
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 claims  to  find  itself.  Nevertheless,  WKOB  was  well  aware  of  that  possibility  when  it  sought  to  obtain  Channel  48  in  New  York  City.  Contrary  to  WKOBs  claims,  that  does  not  warrant 
 reconsideration  of  the  adopted  channel  change,  nor  justify  the  requested  deviations  from  the  Commissions  rulemaking  or  DTV  implementation  policies  in  this  case. 

 7.  Accordingly,  IT  IS  ORDERED,  That  the  Motion  for  Stay  and  the  Petition  for  Reconsideration  filed  by  WKOB  Communications,  Inc.  ARE  DENIED.  IT  IS  FURTHER 
 ORDERED  That  WKOBs  Objection  to  WRNNs  construction  permit  application  (File  No.  BPCDT-  20020130AAQ)  IS  DENIED. 

 FEDERAL  COMMUNICATIONS  COMMISSION 

 Barbara  A.  Kreisman  Chief,  Video  Division 
 Media  Bureau 
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