Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C COMMENTS OF GRAY TELEVISION, INC.

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Diana McDonald
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1 Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C In the Matter of Expanding the Economic and Innovation Opportunities of Spectrum Through Incentive Auctions Docket No COMMENTS OF GRAY TELEVISION, INC. Gray Television, Inc. ( Gray hereby submits these Comments in response to the Notice of Proposed Rulemaking in the above-referenced proceeding. 1 Gray is one of the nation s largest owners of broadcast television stations in small to medium markets, operating 36 top-four network affiliated full-power and Class A television stations. 2 Not only do Gray s stations provide in-demand network programming and award winning local news, but they do so in accordance with the highest technical standards and make full and efficient use of the channels to which the stations are assigned. Gray has embraced the benefits of the digital transition. Twenty-four Gray stations have built studios capable of broadcasting locally produced programming in high definition, with another six scheduled for this year, bringing high-definition local news coverage to viewers in markets ranging from Knoxville, Tennessee (DMA #61 to Meridian, Mississippi (DMA #186. In addition, Gray is an industry leader in multicasting its stations operate a combined total of forty-five multicast channels offering a variety of program services ranging from additional 1 In the Matter of Expanding the Economic and Innovation Opportunities of Spectrum Through Incentive Auctions, Notice of Proposed Rulemaking, 27 FCC Rcd (2012 ( NPRM. 2 These stations range from WTAP(TV in Parkersburg, West Virginia (the nation s 193rd Designated Market Area ( DMA, to WVLT(TV in Knoxville, Tennessee (the nation s 61st DMA. Gray s stations are affiliated with CBS (17, NBC (10, ABC (8, and FOX (1.

2 network fare to sports, news and dedicated weather programming. Because Gray has made significant investments in the latest encoding devices and other digital technology, viewers of its stations receive the highest-quality multicast signals available. In addition to traditional broadcasting, Gray is committed to using its spectrum in new and innovative ways to expand viewers access to local news and information. Gray is a founding member of the Open Mobile Video Coalition, an organization dedicated to advancing the development and roll-out of mobile DTV products and services. Three Gray stations currently provide mobile DTV signals. Gray has a strong interest in this proceeding. Twenty-one of its thirty-six stations operate on UHF channels and thus are likely to be significantly impacted by the Commission s repacking efforts following the spectrum auction. Through these Comments, Gray seeks to ensure that its stations and the audiences they serve are protected during the repacking process. I. THE COMMISSION MUST DEVELOP A CLEAR, COHESIVE REPACKING PLAN THAT ALLOWS BROADCASTERS THE FLEXIBILITY NEEDED TO SERVE VIEWERS AND FULFILL THEIR PUBLIC INTEREST OBLIGATIONS Gray urges the Commission to craft a repacking plan that respects its mandate to regulate broadcast spectrum in the public interest. The repacking plan must include procedures and safeguards designed to ensure that viewers experience minimal service loss or other disruptions. The Commission cannot develop this plan in a vacuum; rather it must be forthcoming with the specifics of the proposed repacking plan. Broadcasters and other interested parties must be provided the opportunity to assess the plan and its impact on licensees and viewers and to offer comments and suggestions for improvement once further details are released. A. The Commission Has Authority to Protect Facilities Permitted as of February 22, 2012 and Must Do So In the NPRM, the Commission proposes protecting certain facilities based upon the 2

3 station s licensed or permitted status as of February 22, 2012, the date on which the Spectrum Act was enacted. 3 Reliance on such a deadline as proposed, however, would have unintended and unnecessary adverse consequences for broadcasters and viewers alike. The Commission has clear authority to protect additional facilities and must do so in order to avoid unnecessary disruption and permit fulfillment of the reasonable service expectations of stations and their local audiences. As the Commission recognizes in the NPRM, [a]lthough section 6403(b(2 mandates preservation only of certain facilities, it does not prohibit the Commission from granting protection to additional facilities where appropriate. 4 (i The FCC Should Protect Facilities Authorized in Construction Permits for Modified Facilities Granted as of February 22, Gray urges the Commission to protect the coverage area of and population served by modified facilities specified in construction permits granted as of February 22, Such construction permits include those issued pursuant to maximization applications, which the Commission began granting in mid-2009 after a long freeze. Like all such grants, the stations construction permits for maximized facilities specified a three-year construction term. Gray is the licensee of three stations WNDU-TV, South Bend, Indiana; WILX(TV, Onondaga, Michigan; and WSAW-TV, Wausau, Wisconsin whose maximized facilities were under construction pursuant to a valid construction permit as of February 22, 2012 and were subsequently completed and licensed. These television stations would be left unprotected should the Commission adopt its proposal. 3 NPRM, at 20 (The Commission proposes that, during repacking, it would only preserve the service areas of full power and Class A television stations with regard to stations facilities that were licensed, or for which an application for license to cover authorized facilities already was on file with the Commission, as of February 22, ; see also id. at Id. at 113. Although the Commission proposes to protect facilities set forth in unbuilt construction permits for new full power television stations, it does not propose to do so for modified facilities. See id. at 20,

4 Although the license applications for these maximized facilities were not yet filed when Congress passed the Spectrum Act on February 22, 2012, Gray had already expended substantial time and money in taking concrete steps to complete construction (including placing orders for antennas, transmitters, cable and other necessary equipment, and scheduling tower crews to install the equipment on each of these facilities. Establishing February 22, 2012 as the cut-off date for protection would effectively (and unfairly nullify these efforts. The Commission s rules prohibit a broadcaster from filing a modification application that would cause impermissible interference to a licensed station, construction permit or previously filed application 6 in effect, the FCC s rules treat permitted facilities as if they are already built and serving viewers. Gray and other broadcasters had no advance notice that the three-year build-out period unceremoniously would be cut short for purposes of the repacking process. Gray and similarly situated broadcasters should not be penalized for following the timeline established by the Commission and explicitly stated in outstanding construction permits. Instead, the Commission should adopt a more flexible approach and protect facilities specified in construction permits granted as of February 22, (ii Modified Facilities Proposed in Construction Permits Filed Pursuant to Rulemaking Proceedings Also Merit Protection. The Commission also must protect facilities specified in construction permits pending as of February 22, 2012 that were filed pursuant to a Rulemaking proceeding. On May 26, 2011, Gray s WJHG-TV, Panama City, Florida filed a Petition for Rulemaking seeking a channel change. The channel change was approved on October 19, 2011 and WJHG-TV timely filed an application for a construction permit to implement the change. Although the application remained pending on February 22 nd and build-out had not yet begun, protection is squarely 6 See 47 C.F.R (f(5, (c. 4

5 within the public interest. First, the Commission has already modified the table of allotments to accommodate the proposed facilities. Second, other stations are required to protect the facilities specified in the construction permit. Third, as is the case with other maximization applications, the permittee and the public have a legitimate expectation that the authorized facility will be completed and provide service within a time certain. B. The Commission Is Obligated to Protect the Population and Coverage Areas of Repacked Stations The Spectrum Act requires the Commission to make all reasonable efforts to preserve the coverage area of stations remaining on-air after the incentive spectrum auction. 7 In selecting this language, Congress made clear its intent that broadcasters who choose not to participate in the voluntary incentive auction should not be harmed. Consistent with the statute, therefore, the Commission must adopt a repacking plan that protects the same coverage area and the same population as a station currently serves. The Commission must also allow broadcasters flexibility to choose appropriate transmission facilities and demonstrate the pre-transition reach of their signals. (i If, After All Reasonable Efforts, Additional Interference Is Unavoidable, New Interference Must Be Capped at an Aggregate Amount of 1% To comply with the statutory preservation mandate, the Commission must adopt a repacking plan that protects the same coverage area and the same population as a station currently serves. Gray recognizes, however, that extraordinary circumstances may arise that necessitate a reduction in a station s population or coverage area. In such exceptional circumstances, Gray supports NAB s recommendation that the Commission adopt the second of its three alternatives for interpreting the outer bounds of the Spectrum Act s all reasonable 7 Spectrum Act 6403(b(1, (2; see also NPRM, at 92. 5

6 efforts language provided that additional interference is capped at an aggregate total of 1%. 8 NAB s aggregate 1% distinction is an important one. As articulated in the NPRM, option 2 calculates interference on a station-to-station basis, and therefore ignores total interference caused by channel changes. As such, the Commission s proposal could require broadcasters to accept significantly more interference than the 0.5% no new interference standard specified in the Commission s rules. 9 Indeed, option 2 could permit an unlimited amount of new, aggregate interference from repacked stations to one another. 10 The resulting population loss would exceed that envisioned by Congress, and run counter to its mandate in the Spectrum Act that the Commission make all reasonable efforts to preserve population served. (ii Allowing Broadcasters to Select Alternative Transmission Facilities Will Create Efficiencies and Facilitate Repacking. The channel changes required by repacking will likely necessitate modifications to a station s technical facilities, which could affect the station s coverage area. 11 To replicate the pre-repacking coverage area of the stations assigned to different channels, the Commission proposes using software maintained by its Office of Engineering and Technology ( OET. 12 Gray agrees with the Commission s proposal to allow stations the flexibility to propose alternative transmission facilities than those specified by OET s replication software, provided 8 Comments of The National Association of Broadcasters at 2-23 ( NAB Comments ; see also NPRM, at 106 ( As a second option, we also invite comment on whether to interpret the statutory mandate to require all reasonable efforts to preserve service to the same specific viewers for each eligible station. The second option differs from the first option stated above in two ways. First, it allows replacement interference only where interference existed as of February 22, Second, it is calculated on a station-to-station rather than aggregate basis See 47 C.F.R See NAB Comments at 30. See NPRM, at 97. Id. at

7 that such facilities would not extend coverage beyond the area specified by the software or cause new interference. As amply demonstrated by the digital transition completed just over three years ago, each station faces unique challenges in maintaining its coverage area given varying technical equipment, signal propagation patterns, and terrain features. Accordingly, transmission facilities that appear feasible on paper may prove to be otherwise in the real world or may pose expensive and time-consuming challenges that cause disruption to viewers or delay a station s transition to its repacked facilities. The public interest therefore demands that stations have the flexibility necessary both to avoid or limit disruption to viewers, and to proceed efficiently with the repacking transition. (iii A Station s Signal Should Be Presumed to Be Receivable at All Locations Within Its Contour. The Commission s goal should be to assure that after repacking, a station s signal is receivable at all locations within its noise-limited (for full power stations or protected (for Class A stations contours. To achieve this objective, the FCC must protect replacement translator authorizations needed to ensure that viewers within a station s contour can receive its signal, as discussed in more detail below. 13 Gray and similarly situated licensees should receive protection for the area covered by its contour, including those areas served by translators and replacement translators. II. THE FCC SHOULD MAKE ALL REASONABLE EFFORTS TO PRESERVE THE COVERAGE AREA AND POPULATION SERVED OF REPLACEMENT TRANSLATORS AND LOW POWER STATIONS PROVIDING A NETWORK SERVICE. The Commission should afford digital replacement translators the highest priority when 13 Id. at

8 choosing between mutually exclusive displacement applications filed by LPTV and translator stations. 14 Replacement translators are a unique species in that they are irrevocably linked with a full service station s license and have been used to correct signal anomalies associated with VHF channels and terrain blocked areas following the DTV transition. Following the digital transition, many stations (including Gray s WHSV, KKCO, and WIFR had to build replacement translators to reach all of the viewers within their contours. Replacement translators are critical to broadcasters ability to provide the network programming, local news, and life-saving information upon which their viewers rely. Digital replacement translators are therefore essential not only to broadcasters ability to serve their communities and operate in the public interest, but also to ensuring the long-term success of the Commission s digital transition goals, and therefore must be afforded protection where necessary in the repacking process. Gray also supports the Commission s suggestion that a priority should be granted to LPTV stations that provide network service to their communities. 15 Specifically, Gray proposes granting LPTV stations that provide a network service the second highest priority in displacement filings. Network programming provides highly desirable content designed to meet the information and entertainment needs of the broadest possible audience, including minorities. Indeed, all of Gray s LPTV stations bring ABC, CBS, NBC, and/or Fox network programming to areas that otherwise would not have access to such programming. Moreover, the preservation of network programming is critically important to minority populations that rely exclusively on over-the-air television in disproportionately large numbers Id. at 361. Id. Press Release, National Association of Broadcasters, Over-the-air TV Viewership Soars to 54 Million Americans (June 18, 2012 ( [S]ome minority groups are more dependent on broadcast reception than the general population, including 28% of Asian households and 23% of African-American households... In all, minorities 8

IV. CONCLUSION Gray appreciates the opportunity to submit these Comments and looks forward to contributing to the ongoing discussion regarding the incentive auctions and repacking process.

9 IV. CONCLUSION Gray appreciates the opportunity to submit these Comments and looks forward to contributing to the ongoing discussion regarding the incentive auctions and repacking process. Dated: January 25, 2013 Respectfully submitted, 1 Kevin P. Latek Vice President - Law and Development Gray Television, Inc Peachtree Road, NE Atlanta, GA make up 44% of all broadcast-only homes., available at 9

Before the FEDERAL COMMUNICATIONS COMMISSION Washington, DC 20554

Before the FEDERAL COMMUNICATIONS COMMISSION Washington, DC 20554 In the Matter of ) ) Expanding the Economic and Innovation ) GN Docket No. 12-268 Opportunities of Spectrum Through Incentive ) Auctions