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 ) To: The Commission REPLY COMMENTS OF BONTEN MEDIA GROUP, INC. Bonten Media Group, Inc. ( Bonten ) respectfully submits reply comments in response to the Notice of Proposed Rulemaking ( NPRM ) in the above-captioned proceeding. 1 The record shows that there was broad support for the key points advanced by Bonten in its initial comments: The Commission should promptly move forward on those petitions to move from a VHF to a UHF channel filed by broadcasters like Bonten prior to the FCC s May 31, 2011 freeze. The Commission must protect in the repacking the full coverage area and population served of stations operating pursuant to waivers of power limits. The Commission must protect the service provided by replacement translators. The Commission must protect the entire service contours and populations of Class A stations, in parity with the protections granted to full-power television stations under the Spectrum Act. On each of these issues, many other broadcast commenters supported Bonten s position. 2 Commenters generally agreed that the rules and policies governing the repacking 1 Comments of Bonten Media, Inc., GN Dkt. No. 12-268 (Jan. 25, 2013) ( Comments of Bonten ). 2 See, e.g., Comments of Media General, Inc., GN Dkt. No. 12-268 (Jan. 25, 2013) ( Comments of Media General ), at 3 (explaining that it would be fundamentally unfair and against (continued ) DC: 4744714-2
should be based on the guiding principle that broadcast stations and their viewers should be held harmless by the repacking process. 3 As the National Association of Broadcasters ( NAB ) stated, the primary role of repacking is to rationalize the results of the auction by creating nationwide bands of spectrum for commercial mobile wireless service; it was not intended as a second shot at extracting spectrum from broadcasters that choose not to participate in the auction. 4 Thus, the Commission should not use the prospect of a future repacking to prevent stations like WCYB from remedying service losses that the station s viewers have experienced since the digital transition. Nor should the Commission adopt repacking policies and methodologies that will have the effect of harming stations that do not participate in the voluntary auction and their viewers. I. THE COMMISSION SHOULD GRANT WCYB S PRE-FREEZE VHF-To-UHF CHANNEL CHANGE PETITION PROMPTLY. Three commenters joined Bonten in urging the FCC to process pending petitions for VHF-to-UHF channel changes that were filed before the FCC issued a freeze on the filing of Congressional intent not to promptly move forward on those petitions to move from a VHF to a UHF channel); Comments of Lima Communications Corporation, et. al., GN Dkt. No. 12-268 (Jan. 25, 2013), at 5 (pointing out that the FCC is required under the Spectrum Act to adopt a repacking plan that replicates stations current service areas and viewers current level of service from all station); Comments of NAB, GN Dkt. No. 12-268 (Jan. 25, 2013) at 33 ( [t]here is little question that the Commission authorized these translators as a means to fill in areas within full power stations service contours, and thus should be protected as an integral part of the full service facilities protected during repacking ); Comments of Casa En Denver, Inc., GN Dkt. No. 12-268 (Jan. 25, 2013) ( Comments of Casa En Denver ), at 3-4 (urging the FCC to advance policies that preserve the protected service contour of Class A television stations). 3 See, e.g, Comments of ABC Television Affiliates Association, CBS Television Network Affiliates Association, FBC Television Affiliates Association, and NBC Television Affiliates, GN Dkt. No. 12-268 (Jan. 25, 2013) (together, the Comments of Affiliates Associations ), at vi. 4 Comments of NAB, GN Docket No. 12-268 (Jan. 25, 2013), at 8. Page 2
additional channel change requests. 5 As noted in Bonten s initial comments, WCYB s digital operations have been on low VHF Channel 5 since the digital transition, and since the digital transition its viewers have experienced service losses and lack of a reliable signal. 6 WCYB requested that the Commission allot Channel 29 to WCYB, to allow the station to address the serious post-transition service losses experienced by viewers, to enable the station to launch mobile DTV offerings for its viewers, and to improve the station s ability to deliver a reliable signal to cable headends (particularly during bad weather, which creates electrical interference that affects signal delivery to headends). In issuing the freeze on additional channel-change petitions (after Bonten had filed the petition for WCYB), the FCC stated that [t]he Media Bureau will continue its processing of rulemaking petitions that are already on file with the Office of the Secretary. 7 The Commission should honor that commitment and act on WCYB s petition, instead of imposing a retroactive freeze on such petitions. Congress supports the Commission s moving forward on requests for VHF-to- UHF channel changes that were filed before the Freeze Notice, as commenters such as Raycom and Media General have explained. Congress specifically amended the legislation that became the Spectrum Act in order to give the Commission the authority to act on requests such as Bonten s, because Congress recognized the importance of enabling VHF stations to move to 5 Three other commenters urged that the Commission move forward on those petitions to move from a VHF to a UHF channel filed by broadcasters prior to the FCC s May 31, 2011 freeze. See Comments of Media General, at 3; Comments of NAB, at 31-33; Comments of Raycom Media, Inc., GN Dkt. No. 12-268 (Jan. 25, 2013) ( Comments of Raycom ), at 2-6. No commenter on the record agreed with proposed inaction outlined in the NPRM. In the Matter of Expanding the Economic and Innovation Opportunities of Spectrum Through Incentive Auctions, Notice of Proposed Rulemaking, GN Dkt. No. 12-268, 27 FCC Rcd 12357 (Oct. 2, 2012), at para. 117 ( NPRM ). 6 Comments of Bonten at 2-5. 7 Public Notice, Freeze on the Filing of Petitions for Digital Channel Substitutions Effective Immediately, 26 FCC Rcd 7721 (May 31, 2011) ( Freeze Notice ). Page 3
UHF channels. 8 Moreover, members of Congress have confirmed that this was the intent of Congress in so amending the Spectrum Act: Three Senators wrote to Chairman Genachowski in May 2012 to explain that 6403(g)(1)(B) was expressly modified to allow those broadcasters who had invested the time and resources necessary to file reallocation petitions to have their petitions considered in accordance with existing Commission standards and processes. They explained that not moving forward on processing the pre-freeze petitions would be contrary to the specific legislative intent of Congress and to the principles of fairness. They added that parties, who have proceeded in accordance with FCC rules and deadlines, deserve not to have their rights truncated unexpectedly. 9 Another Senator wrote to the Chairman to reiterate that the Spectrum Act authorizes the Commission to proceed in processing the pre-freeze petitions and to ask the Commission to do so. 10 Five members of Congress wrote to the Chairman in July 2012 to express their concerns that unless the [FCC] acts quickly to move forward with these petitions, our constituents will be denied full access to local news and informational programming and the benefits of emerging technologies like Mobile DTV. 11 They also explained that Congress amended the Spectrum Act to allow the Commission to move forward on processing the pre-freeze petitions and that failure to do so would be contrary to legislative intent and unfair. 12 8 See Comments of Media General, GN Docket No. 12-268 (Jan. 25, 2013), at 5-6 (explaining legislative history of the Spectrum Act); see also Spectrum Act at 6403(g)(1), providing that the Commission may reassign a VHF station to a UHF channel if a request from such licensee for the reassignment was pending at the Commission on May 31, 2011. Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. No. 112-96, 125 Stat. 156, Title VI, 6403(g)(1)(B)(2) (2012) ( Spectrum Act ). An earlier draft of this legislation did not contain this authorization. 9 Letter from Senators Kay Hagan, Lindsey Graham, and Saxby Chambliss to Chairman Julius Genachowski (May 1, 2012), available online at http://hraunfoss.fcc.gov/edocs_public/attachmatch/doc-315026a4.pdf. 10 Letter from Senator Mark Warner to Chairman Julius Genachowski (May 12, 2012), available online at http://hraunfoss.fcc.gov/edocs_public/attachmatch/doc-315026a2.pdf. 11 Letter from Hons. G.K. Butterfield, Kathy Castor, Morgan Griffith, Gregg Harper, and Cliff Stearns (July 26, 2012) to Chairman Julius Genachowski, available online at http://transition.fcc.gov/daily_releases/daily_business/2013/db0214/doc-318947a2.pdf. 12 Id. Page 4
As Media General points out, Congress adoption of the reference to pre- freeze petitions came less than a year after the FCC had issued its public notice announcing the freeze. That notice had explicitly stated that the Media Bureau would continue to process allotment petitions filed before May 31, 2011. 13 Congress clearly was aware of what the Freeze Notice said, given that it crafted a specific legislative exception to address it. Because Congress s adoption of the exception for pre-freeze VHF-to-UHF channel change petitions was done with knowledge that the Commission had stated that the FCC will continue its processing of prefreeze petitions, 14 Bonten agrees with Media General that [t]he FCC has an affirmative duty to process the pending pre- freeze petitions. 15 Bonten also agrees with NAB that the Commission should not, and indeed cannot, engage in a de facto freezing of applications for channel substitutions prior to its actual May 2011 freeze. 16 The retroactive application of a freeze without notice and without treating like petitioners alike (given that many other pre-freeze petitioners had their petitions granted in the ordinary course) would be arbitrary and capricious. 17 Given the legislative history and the additional clarifications by members of Congress concerning the Spectrum Act s legislative intent, and in light of the widespread reception problems experienced by WCYB s viewers, there can be no doubt that granting WCYB s petition would advance the public interest and would not jeopardize successful implementation of the Spectrum Act. As Raycom Media stated, Congress already determined 13 Comments of Media General at 7. 14 See Freeze Notice, supra n.7. 15 Comments of Media General at 9. 16 See Comments of NAB at 31. 17 See Comments of Media General at 9-10; see also Comments of NAB at 31-32 (the FCC s proposal not to extend protection in cases where applications were filed before the freeze is arbitrary and capricious and an abuse of discretion ). Page 5
that proceeding with the limited number of channel change petitions filed prior to the FCC s freeze is consistent with the intent of the Spectrum Act. 18 Accordingly, the Commission should not use the repacking authorized to rationalize the results of the auction 19 as a justification for requiring WCYB to remain on a low VHF channel indefinitely. Finally, to reiterate Bonten s initial comments, every day in which the Commission defers action on WCYB s petition means additional disruption experienced by WCYB s viewers. Following the digital transition, WCYB s switch to low VHF digital operations caused many viewers to lose service, and WYCB has not been able to restore service to all of these viewers through other measures (such as by increasing its power). The low VHF digital operations also cause unreliable signal delivery to cable headends and will deprive viewers of the opportunity to receive mobile DTV offerings from WCYB. 20 With only two pending pre-freeze petitions for low VHF stations (that of WCYB and of WMC, Memphis, Tennessee), prompt grant of these petitions would provide narrow, necessary relief for the viewing public and would not impair the Commission s flexibility in the repacking. 21 18 Comments of Raycom at 3. 19 See Comments of NAB at 8. 20 Raycom supported Bonten s position that low VHF channels are inferior for digital broadcasting. See Comments of Raycom at 4 (pointing out that Congress has prohibited the FCC from moving high VHF stations to low VHF channels in the repacking process), citing the Spectrum Act at 6403(b)(3). 21 See Comments of Raycom at 4-6. Notably, WCYB seeks an allotment on channel 29, while Holston Valley Broadcasting station WKPT, Kingsport, Tennessee already is broadcasting on channel 27, and Media General has requested (also in a petition filed prior to the freeze) permission to relocate its station WJHL, Johnson City, Tennessee to UHF channel 28. Thus, these three full-power closely-situated stations can been positioned on three adjacent channels, a very efficient arrangement. Page 6
II. THE COMMISSION SHOULD PROTECT THE SERVICE PROVIDED BY STATIONS OPERATING ABOVE THE POWER LIMITS. In its initial comments, Bonten remarked that the NPRM seemed to suggest that the Commission would not protect the coverage area and population served of each broadcast television licensee, to the extent that a station is operating pursuant to a waiver of the power limits. 22 Bonten explained that three of its stations are operating pursuant to waivers of the power limits, which the Commission granted in order to allow the stations to mitigate service losses associated with the digital transition. Other commenters supported Bonten s position that the Commission should clarify that it will fully protect the coverage area and population served of stations (regardless of whether stations are operating pursuant to waivers of the power limits). 23 Such protection would help to protect viewers from service losses and would avoid violating the express requirements of the Spectrum Act. 24 III. SERVICE PROVIDED BY DIGITAL REPLACEMENT TRANSLATORS SHOULD BE DEEMED TO BE INCLUDED IN THE SERVICE PROVIDED BY FULL POWER STATIONS. Commenters agreed with Bonten that the service provided by digital replacement translators is unique, important, and worth protecting in the repacking process. 25 Commenters such as the Affiliates Associations, Cox, and Raycom explained that the Commission created the 22 See Comments of Bonten at 9; see NPRM at n.157. 23 See, e.g., Comments of Comments of Shenandoah Valley Educational Television Corporation, GN Docket No. 12-268 (Jan. 25, 2013) ( Comments of Shenandoah Valley ), at 3. 24 See Comments of the Walt Disney Company ( Disney ), GN Docket No. 12-268 (Jan. 25, 2013), at 32-34; Comments of Shenandoah Valley at 3; Comments of Dispatch Printing Company ( Dispatch ), GN Docket No. 12-268 (Jan. 25, 2013), at 2; Comments of NAB at 32-33. 25 See, e.g., Comments of Gray Television, Inc., GN Dkt. No. 12-268, 8 (Jan. 25, 2013), at 7-8; Comments of Disney at 14, n. 42; Comments of WGAL Hearst Television Inc., GN Dkt. No. 12-268 (Jan. 25, 2013), at 14-15; Comments of Bahakel Communications, GN Dkt. No. 12-268 (Jan. 25, 2013), at 3; Comments of Belo Corp., GN Dkt. No. 12-268 (Jan. 25, 2013), 15-16; Comments of Tribune Company, GN Dkt. No. 12-268 (Jan. 25, 2013), at 15, 18-21. Page 7
digital replacement translator service in order to permit full-power stations to restore service lost by many viewers in connection with the digital transition. 26 As NAB stated, [t]here is little question that the Commission authorized these translators as a means to fill in areas within full power stations service contours, and thus should be protected as an integral part of the full service facilities protected during repacking. 27 The Spectrum Act establishes a clear presumption against the loss of service by viewers of full power stations. 28 The Commission should clarify that the coverage area and population served by digital replacement translators (which are licensed in association with the main station s license) are included in the full-power station s coverage area and population for purposes of the repacking. 29 IV. THE COMMISSION MUST FULLY PROTECT THE COVERAGE AREA AND POPULATION SERVED OF CLASS A STATIONS. Bonten was not alone in expressing concerns about the NPRM s proposal with respect to Class A stations. 30 The NPRM proposes to use a Class A station s protected contour the area within which it is protected from interference under our rules as its coverage area for purposes of the repacking. 31 There was widespread agreement that this proposal is too narrow and would be inconsistent both the Spectrum Act and the public interest. 32 26 Comments of the Affiliates Associations at 39-41; Comments of Cox Media Group, GN Docket No. 12-268 (Jan. 25, 2013) ( Comments of Cox ), at 4-5; Comments of Raycom at 8. 27 Comments of NAB at 33. 28 See, e.g., Comments of Cox at 2-3 (arguing that the Spectrum Act requires the Commission to seek to replicate station s existing service area in any post-auction repacking). 29 See, e.g., Comments of Affiliates Associations, GN Docket No. 12-268 (Jan. 25, 2013), at 38-41; Comments of Cox Media Group, GN Docket No. 12-268 (Jan. 25, 2013), at 4-5; Comments of Raycom at 8. 30 Comments of Bonten at 9-11. 31 NPRM at para. 99. 32 Comments of Dispatch at 4-5; Comments of Casa En Denver at 3-4; Comments of Named State Broadcasters Associations, GN Dkt. No. 12-268 (Jan. 25, 2013), at 14. Page 8
The Spectrum Act provides for equal treatment of Class A stations and full power stations. There is no basis under the law for protecting only a subset of Class A stations viewers. The NPRM s proposed approach could result in many viewers of Class A stations losing service, which is the opposite of what Congress intended. 33 V. THE COMMISSION MUST HOLD HARMLESS TELEVISION STATIONS AND THEIR VIEWERS. Issues such as protection for already-authorized power levels, for the service provided by replacement translators, and for Class A stations, are simply examples of the broader need for the Commission to hold harmless television stations, and their viewers, in the repacking. Bonten recognizes that wireless interests would like for the Commission to reallocate as much spectrum as possible from television broadcasters to the wireless industry. 34 And, to be clear, Bonten does not object to a voluntary incentive auction, nor to a repacking in which Bonten s stations and viewers are truly held harmless. But the Commission cannot rely on a mistaken assumption that if the repacking harms broadcasters, such as by shrinking service areas or by increasing interference, those harms will simply be balanced out by the benefits that will accrue to the wireless industry. Even if the Spectrum Act contemplated such a calculus and it does not it would overlook the serious harms to viewers caused by loss of television service. From 33 See, e.g., Comments of Affiliates Associations at 25 ( there is nothing in the Spectrum Act that suggests that Congress intended coverage area to mean one thing for full power television stations and a different thing for Class A television stations ); Comments of Dispatch at 4-5; Comments of Raycom at 10. 34 See, e.g., Comments of AT&T Inc., GN Dkt. No. 12-268 (Jan. 25, 2013), at 2; Comments of U.S. Cellular, GN Dkt. No. 12-268 (Jan. 25, 2013), at 2. But see Comments of the Association of Public Television Stations, Corporation for Public Broadcasting and Public Broadcasting Service, GN Dkt. No. 12-268 (Jan. 25, 2013), at 12; Comments of Sinclair Broadcast Group, Inc., GN Dkt. No. 12-268 (Jan. 25, 2013), at 7 (pointing out that Congress did not intend for the FCC to clear as much spectrum as possible at the cost of broadcasters who choose not to participate). Page 9
its digital transition experience, Bonten is very familiar with the upset caused by lost television service. For example, its stations WCYB, KTVM, and KECI lost thousands of viewers in the digital transition, and affected viewers did not hesitate to call and e-mail the stations with complaints and requests for prompt restoration of over-the-air service. Viewers were quite vocal about losing access free, local television signals in connection with the digital transition, because they had to forego watching their favorite local news programs, network programs, syndicated shows, and other offerings. In cases where measures that the stations took did not fully resolve the service losses, viewers have continued to experience those losses, or they have had to start paying pay for expensive pay-tv subscriptions (if they could afford it). A repacking process that is premised, first and foremost, on the goal of avoiding service losses not simply maximizing the amount of spectrum to be shifted from television stations to wireless operators is not just the right approach under the Spectrum Act: it is the best way of ensuring that viewers are not victimized by the process. Respectfully submitted, March 12, 2013 Jennifer A. Johnson Eve R. Pogoriler COVINGTON & BURLING LLP 1201 Pennsylvania Avenue, N.W. Washington, DC 20004-2401 (202) 662-6000 Counsel for Bonten Media Group, Inc. Page 10