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###### Federal Communications Commission

          - 47 CFR Part 73 
          - [FCC 00-130; MM Docket No. 98-175; RM-9364] 

# AGENCY:

Federal Communications Commission. 

# ACTION:

Final rule. 

# SUMMARY:

                        In a                         *Memorandum Opinion and Order,*                         the Commission denies the Application for Review filed by Coalition for Noncommercial Media (“CNM”), and affirms the Mass Media Bureau's                         *Report and Order*64 FR 45893 (August 23, 1999). The Bureau's action had granted the noncommercial educational channel reservation swap for Channels 17 and *23 in Buffalo, New York and related digital channels requested by licensee Western New York Public Broadcasting Association. That                         *Report and Order*                         also had denied oppositions filed by Grant Television, Inc., licensee of WNYO-TV, Buffalo, New York, WKBW-TV Licensee, Inc., licensee of Station WKBW-TV, Buffalo, New York, Kevin Smardz, President of Southtowns Christian Center, Lakeview, New York, and CNM.                     

# DATES: 

Effective July 3, 2000. 

      ( print page 25866)    

# FOR FURTHER INFORMATION CONTACT:

Victoria M. McCauley, Mass Media Bureau, (202) 418-2180. 

# SUPPLEMENTARY INFORMATION:

                    This is a synopsis of the Commission's                     *Memorandum**Opinion and Order,*                     MM Docket No. 98-175, adopted April 6, 2000, and released April 19, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center (Room 239), 445 12th Street, SW, Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Services, Inc., (202) 857-3800, 1231 20th Street, NW, Washington, DC 20036.                 

## Summary of Memorandum Opinion and Order 

                    Before us is an Application for Review of the                     *Report and Order*                     which amended the Television Table of Allotments for Buffalo, New York at the request of Western New York Public Broadcasting Association (“WNYPBA”), licensee of Stations WNED-TV, Channel 17, and WNEQ-TV, Channel *23, Buffalo, New York, to reflect Channel 17 as reserved for noncommercial educational use, and Channel 23 as nonreserved, and related changes to the DTV Table of Allotments. Coalition for Noncommercial Media (“CNM”), a group of Buffalo-Area citizens and WNED/WNEQ-TV viewers filed this Application for Review, alleging that the Mass Media Bureau erred in making these amendments.                 

## Background 

                    The                     *Report and Order*                     granting the change of reservation considered and rejected arguments opposing WNYPBA's request by Grant Television, Inc. licensee of WNYO-TV, Buffalo, New York, WKBW-TV Licensee, Inc., licensee of Station WKBW-TV, Buffalo, New York, Kevin Smardz, President of Southtowns Christian Center, Lakeview, New York, and CNM. The                     *Report and Order*                     also denied CNM's counterproposal requesting that the Commission amend the TV Table of Allotments to reserve all unreserved channels being used for noncommercial operation on the grounds that it was not mutually exclusive with the WNYPBA proposal.                 

                    The                     *Report and Order*                     held (1) that the exchange of reservation would serve the public interest, and (2) that it could be effectuated under the Commission's existing rules and policies. The Bureau noted the transaction would serve the public interest because there would be no diminution in noncommercial educational service in Buffalo and that such service would actually expand because Station WNED-TV, clearly the more powerful and broad reaching of the two stations would be on a reserved channel. It also noted that WNYPBA could sell Station WNED-TV, arguably the more valuable and marketable station, on unreserved Channel 17 as a commercial entity at any time, but that it had foregone this opportunity in order to retain noncommercial educational service on Station WNED-TV on Channel *17.                 

The Bureau also pointed out that under the Commission's rules allowing intraband channel swaps between commercial and noncommercial stations, WNYPBA, after selling Station WNED-TV, could have then swapped channels with WNED-TV's new licensee and reached the same result as its proposed reservation exchange, and that avoiding this two-stage filing would also serve the public interest. 

The Bureau also addressed CNM's “counterproposal,” which had two aspects: One requesting that we reserve Channel 17 at Buffalo, and one requesting that we reserve all unreserved channels of stations which were being operated noncommercially. The Bureau considered CNM's counterproposal as not appropriately filed in this proceeding because CNM's request to reserve all unreserved channels of stations being operated as noncommercial stations was not mutually exclusive with WNYPBA's proposal at Buffalo. 

## Application for Review 

                    CNM argues again that the Bureau should have denied WNYPBA's request for the channel reservation swap. CNM goes on to argue that the Bureau failed to consider its “counterproposal.” It then repeats all of the arguments it made in its comments before the Bureau. CNM's Petition for Emergency Relief, supported by CIPB, requests that the Commission stay the effect of the                     *Report and Order,*                     and prevent WNYPBA from converting Station WNEQ-TV (or WNED-TV) to commercial operation until the resolution of its proposal to reserve Channel 17 in this matter.                 

## Discussion 

                    As a preliminary matter, we will note that CNM's Petition for Emergency Relief is moot and will be dismissed. Furthermore, we will not address CNM's repeated arguments against the reservation swap. The Bureau properly addressed CNM's arguments in the                     *Report and Order*                     and we will not disturb its decision. However, we will address CNM's argument that the Bureau overlooked the first aspect of CNM's “counterproposal,” to reserve Channel 17 at Buffalo. CNM argues that pursuant to the holding of                     *Ashbacker*                     v.                     *F.C.C.*                     (“                    *Ashbacker*                    ”), the Bureau erred when it failed specifically to address its disposal of CNM's “counterproposal” requesting the reservation of Channel 17 at Buffalo on a comparative basis with the proposal filed by WNYPBA.                 

                    While the Bureau may have omitted mention of its specific disposal of CNM's “counterproposal” to reserve Channel 17 at Buffalo, any error this involved was harmless. First, a third party may not petition for a change in another station's authorization, particularly if the licensee has disavowed an interest in the particular proposed change. In addition, contrary to CNM's argument, the Bureau correctly held that the rule of                     *Ashbacker*                     does not apply to channel exchanges because the channels are occupied. Finally, although the two proposals may have been mutually exclusive as a matter of common usage because they could not co-exist, they were not mutually exclusive within the strict interpretation of that phrase as a term of art applied to broadcast channel allotments, which presumes a short-spacing between two channels.                 

We also note that the Bureau correctly held that the second aspect of CNM's “counterproposal,” to reserve all unreserved channels of stations operating as noncommercial educational stations was not appropriately filed in this matter. The Bureau was constrained to limit its decision to the merits of the issues as they applied to the instant parties. The issue of reserving all unreserved channels on which licensees operate noncommercially is a matter appropriately raised as a general rulemaking, not as an issue to be resolved in an adjudicatory proceeding such as this. 

                    Finally, CNM repeats an argument made to the Bureau that allowing this transaction could spark a “flood” of requests by other public broadcasters seeking to sell their “second channel” public television stations. CNM claims that the Bureau's answer to this argument mischaracterized the number of noncommercial stations operating on unreserved frequencies. CNM is incorrect. The Bureau correctly referred to the number of communities in which a pair of                     *co-owned*                     (rather than                     *independently owned*) noncommercial stations is operating with one station on an unreserved channel.                 

      ( print page 25867)    

# List of Subjects in 47 CFR Part 73

      - Television broadcasting
      - Digital television broadcasting

Federal Communications Commission. 

Magalie Roman Salas, 

Secretary. 

[FR Doc. 00-11099 Filed 5-3-00; 8:45 am] 

BILLING CODE 6712-01-P