81 FR 8843 - Expanding the Economic and Innovation Opportunities of Spectrum Through Incentive Auctions
FEDERAL COMMUNICATIONS COMMISSION Federal Register Volume 81, Issue 35 (February 23, 2016)
Federal Register Volume 81, Issue 35 (February 23, 2016)
| Page Range | 8843-8848 | |
| FR Document | 2016-03801 |
[Federal Register Volume 81, Number 35 (Tuesday, February 23, 2016)] [Rules and Regulations] [Pages 8843-8848] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-03801] ======================================================================= ----------------------------------------------------------------------- FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [GN Docket No. 12-268; FCC 16-12] Expanding the Economic and Innovation Opportunities of Spectrum Through Incentive Auctions AGENCY: Federal Communications Commission. ACTION: Final rule; petition for reconsideration. ----------------------------------------------------------------------- SUMMARY: In this document, the Commission dismisses, and on separate grounds, denies petitions for reconsideration seeking reconsideration of the Commission's decisions in the Incentive Auction R&O and the Incentive Auction Second Order on Reconsideration not to protect certain broadcast television stations (WOSC-CD, Pittsburgh, PA; WPTG- CD, Pittsburgh, PA; WIAV-CD, Washington, DC; and KKYK-CD, Little Rock, AK) in the repacking process or make them eligible for the reverse auction. The Commission also concludes that WDYB-CD, Daytona Beach, Florida is not entitled to discretionary repacking protection or eligible to participate in the reverse auction. DATES: Effective February 23, 2016. ADDRESSES: Federal Communications Commission, 445 12th Street SW., Washington, DC 20554. FOR FURTHER INFORMATION CONTACT: Lynne Montgomery, (202) 418-2229, or by email at [email protected], Media Bureau; Joyce Bernstein, (202) 418-1647, or by email at [email protected], Media Bureau. SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order on Reconsideration in GN Docket No. 12-268, FCC 16-12, adopted on February 8, 2016 and released on February 12, 2016. The full text may also be downloaded at: www.fcc.gov. People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty). Synopsis of Order on Reconsideration I. Introduction 1. Petitioners The Videohouse, Inc. (Videohouse), Abacus Television (Abacus), WMTM, LLC (WMTM), and KMYA, LLC (KMYA) seek reconsideration of the Commission's decision, on procedural and substantive grounds, not to protect their broadcast television stations in the repacking process or make them eligible for the reverse auction. At the time the Petition was filed, Videohouse, Abacus, WMTM, and KMYA were the licensees of the following stations, respectively: WOSC-CD, Pittsburgh, Pennsylvania; WPTG-CD, Pittsburgh; WIAV-CD, Washington, DC; and KKYK- CD, Little Rock, Arkansas. WPTG-CD and KKYK-CD have since been acquired by Fifth Street Enterprise, LLC and Kaleidoscope Foundation, Inc., respectively. We dismiss and, on alternative and independent grounds, deny the Petition. For the reasons below, we also conclude that WDYB- CD, Daytona Beach, Florida, licensed to Latina Broadcasters of Daytona Beach, LLC (Latina), is not entitled to discretionary repacking protection or eligible to participate in the reverse auction. II. Background 2. In the Incentive Auction R&O, the Commission concluded that the Spectrum Act mandates that the Commission make all reasonable efforts to preserve, in the repacking process associated with the broadcast television spectrum incentive auction, the coverage area and population served of only full power and Class A broadcast television facilities (1) licensed as of February 22, 2012, the date of enactment of the Spectrum Act, or (2) for which an application for a license to cover was on file as of February 22, 2012. The Commission did not interpret the Spectrum Act, however, as precluding it from exercising discretion to protect additional facilities beyond the statutory floor. The Commission granted discretionary protection to a handful of categories of facilities, based on a careful balancing of different factors in order to achieve the goals of the Spectrum Act and other statutory and Commission goals. 3. One category to which the Commission declined to extend discretionary protection was ``out-of-core'' Class A-eligible LPTV stations'': Low power television (LPTV) stations that operated on ``out-of-core'' channels (channels 52-69) when the Community Broadcasters Protection Act (CBPA) was enacted in 1999 and obtained an authorization for an ``in-core'' channel [[Page 8844]] (channels 2-51), but did not file for a Class A license to cover by February 22, 2012. The CBPA accorded ``primary'' or protected Class A status to certain qualifying LPTV stations. Although the statute prohibited granting Class A status to LPTV stations on out-of-core channels, it provided such stations with an opportunity to achieve Class A status on an in-core channel. The Commission explained that protecting these stations, which numbered approximately 100, would encumber additional broadcast television spectrum, thereby increasing the number of constraints on the repacking process and limiting the Commission's flexibility to repurpose spectrum for flexible use. The Commission recognized that these stations had made investments in their facilities, but concluded that this equitable interest did not outweigh the ``significant detrimental impact on repacking flexibility that would result from protecting them,'' especially in light of their failure to take the necessary steps to obtain a Class A license and eliminate their secondary status during the ten-plus years between passage of the CBPA and the Spectrum Act. The Commission did decide to protect one station in this category, KHTV-CD, based on licensee Venture Technologies Group, LLC's (Venture) showing in response to the Incentive Auction NPRM that discretionary protection of KHTV-CD was warranted, based upon the fact that it made repeated efforts over the course of a decade to find an in-core channel, had a Class A construction permit application on file certifying that it was meeting the regulatory requirements applicable to Class A stations prior to enactment of the Spectrum Act, and filed an application for a license to cover a Class A facility on February 24, 2012, just two days after the Spectrum Act was enacted. 4. Abacus and Videohouse, licensees of two stations in the out-of- core Class A-eligible LPTV station category, filed petitions for reconsideration of the Incentive Auction R&O asking the Commission to protect their stations in the repacking process and make them eligible for the reverse auction. The Commission rejected their claims that they are entitled to repacking protection under the CBPA. The Commission dismissed on procedural grounds their claims that they should be protected because they are similarly situated to KHTV-CD, but also considered and rejected the claims on the merits. In addition, the Commission rejected arguments disputing its estimate that the category of out-of-core Class A-eligible stations included approximately 100 stations. Asiavision, Inc, the previous licensee of WIAV-CD, submitted a responsive filing raising arguments similar to those raised by Abacus and Videohouse and the Commission dismissed this filing as a late-filed petition for reconsideration but nonetheless treated it as an informal comment. 5. In the Reconsideration Order, the Commission also clarified that a Class A station that had an application for a license to cover a Class A facility on file or granted as of February 22, 2012 is entitled to mandatory protection, but that a Class A station that had an application for a Class A construction permit on file or granted as of that date would not be entitled to such protection. An application for a license to cover a Class A facility signifies that the Class A- eligible LPTV station has constructed its authorized Class A facility, and authorizes operation of the facility. A Class A construction permit application seeks to convert an LPTV construction permit to a Class A permit. Grant of a construction permit standing alone does not authorize operation of the authorized facility. Based on a careful balancing of relevant factors, it also decided to extend discretionary protection to stations in the latter category--stations that did not construct in-core Class A facilities until after February 22, 2012 but requested Class A construction permits prior to that date. The Commission reasoned that these stations are similarly situated to KHTV- CD because as of February 22, 2012, the date established by Congress for determining which stations are entitled to repacking protection, these stations had certified in an application filed with the Commission that they were acting like Class A stations. By filing an application for a Class A construction permit prior to February 22, 2012, each of these stations documented efforts prior to passage of the Spectrum Act to remove their secondary status and avail themselves of Class A status. Under the Commission's rules, these stations were required to make the same certifications as if they had applied for a license to cover a Class A facility. Among other things, each was required to certify that it `does, and will continue to, broadcast' a minimum of 18 hours per day and an average of at least three hours per week of local programming and that it complied with requirements applicable to full-power stations that apply to Class A stations. The Commission concluded that there were significant equities in favor of protecting the approximately 12 stations in this category that outweighed the limited adverse impact that such protection would have on its flexibility to repurpose spectrum for flexible use through the incentive auction. The Commission also recognized that, having first filed a Class A construction permit application prior to February 22, 2012, the licensees of these stations may not have realized that the stations were not entitled to mandatory protection under the Spectrum Act. Conversely, the Commission explained, Abacus and Videohouse did not certify continuing compliance with Class A requirements until after the enactment of the Spectrum Act. 6. Abacus, Videohouse, and the licensees of two other stations in the out-of-core Class A-eligible LPTV category that did not seek to obtain Class A status until after February 22, 2012, seek reconsideration of the Reconsideration Order. Petitioners also attached to the Petition a copy of each of their Petitions for Eligible Entity Status (``Eligibility Petition'') filed July 9, 2015 in GN Docket No. 12-268 in response to the Media Bureau's June 9, 2015 Public Notice. They argue that the Commission erred procedurally by dismissing the 2014 Petitions, and exceeded its authority by extending protection to a different group of Class A stations that had not asked for reconsideration. On the merits, they contend that their stations are no different from the out-of-core Class A-eligible LPTV stations that the Commission decided to protect, and that extending protection to their stations would not adversely impact the Commission's repacking flexibility. They claim the equities weigh in favor of protecting stations that obtained a Class A license by the Pre-Auction Licensing Deadline (May 29, 2015) and met other auction-related filing requirements. For the reasons below, we affirm our action in the Reconsideration Order. III. Discussion 7. Petitioners' claims are both procedurally and substantively defective and we therefore dismiss their claims and, in the alternative, deny them on the merits. A. Petitioners' Claims Are Procedurally Improper 8. First, as we explained in the Reconsideration Order, the Commission squarely raised the question of which broadcast television facilities to protect in the repacking process in the Incentive Auction NPRM, but none of the Petitioners presented facts or arguments as to why its station should be protected until after the Commission adopted the [[Page 8845]] Incentive Auction R&O, although all of the facts and arguments they now present existed beforehand. While Videohouse notes that its owner on behalf of a related entity (Bruno Goodworth Network, Inc.) filed reply comments in response to the Incentive Auction NPRM, those comments did not pertain to out-of-core Class A-eligible LPTV stations generally or to its station in particular. Videohouse also claims that it discussed out-of-core Class A-eligible LPTV stations with Commission staff at an industry forum in April 2013, but Videohouse never made these statements part of the record of this proceeding until July 2015, over a year after adoption of the Incentive Auction R&O. Abacus refers to an email it sent Commission staff in March 2014, but Abacus never filed this email in the record, and the first reference to it in the record was not until July 2015. In contrast, Venture submitted comments in response to the Incentive Auction NPRM regarding the particular facts and circumstances that it maintained--and the Commission agreed-- justified protection of KHTV-CD. Contrary to Petitioners' arguments, therefore, the Commission did not err in dismissing the 2014 Petitions, and the current Petition likewise is subject to dismissal. In addition, the facts and arguments put forth in the Petition are repetitious with regard to Abacus, Videohouse, and WMTM, each of whom sought reconsideration of the Incentive Auction R&O: The Commission considered and rejected those facts and arguments in the Reconsideration Order. Asiavision, the previous licensee of WIAV-CD, now licensed to WMTM, filed informal comments in response to the 2014 Petitions. 9. For reasons similar to those on which we relied in the Reconsideration Order, we also reject Petitioners' new argument that, notwithstanding their failure to advocate protection of their stations in a timely manner, their claims were procedurally proper because other parties generally advocated protection of Class A stations in response to the Incentive Auction NPRM. Contrary to Petitioners' argument, no commenter generally advocated discretionary protection of out-of-core Class A-eligible stations. With the exception of the Venture Reply Comments, which pertain specifically to KHTV-CD only, none of the comments in response to the Incentive Auction NPRM cited by Petitioners address out-of-core Class A-eligible LPTV stations at all. As we previously explained, Venture put forth particular facts in response to the Incentive Auction NPRM demonstrating why KHTV-CD should be afforded discretionary protection. The decision to protect KHTV-CD was based in part on this evidence. Petitioners now argue that, like KHTV-CD, each of their stations faced ``unique'' ``hardships and obstacles.'' But as we noted in the Reconsideration Order, Petitioners did not attempt to demonstrate in response to the Incentive Auction NPRM why they should be afforded discretionary protection. Venture's presentation regarding KHTV-CD's unique circumstances does not bear at all on Petitioners' stations and did not constitute an ``opportunity [for the Commission] to pass'' on the facts and arguments that Petitioners now rely on. We note that whether the Commission had an ``opportunity to pass'' on an issue is not the relevant statutory test. Rather, Section 405(a) provides that ``no evidence other than newly discovered evidence, evidence which has become available only since the original taking of evidence, or evidence which the Commission or designated authority within the Commission believes should have been taken in the original proceeding shall be taken on any reconsideration.'' Additionally, as discussed below, Petitioners fail to meet the test for discretionary protection adopted in the Reconsideration Order. 10. While the rules allow petitioners to raise facts or arguments on reconsideration that have not previously been presented under certain circumstances, Petitioners have not demonstrated such circumstances, and their reliance on section 1.429(b)(1) is therefore misplaced. Contrary to Petitioners' claims, the July 9, 2015 deadline for submission of the Pre-Auction Technical Certification Form is not a relevant event that has occurred since their last opportunity to present facts or arguments. That date would be relevant only if we agreed with their challenges. As we do not, the July 9, 2015 deadline is not a relevant circumstance for purposes of section 1.429(b)(1). We also reject Petitioners' argument that the public interest would be served by reconsideration. The Commission has a ``well-established policy of not considering matters that are first raised on reconsideration,'' premised on the statutory goals of ``procedural regularity, administrative efficiency, and fundamental fairness.'' Those goals would not be served by allowing Petitioners to sit back and hope for a decision in their favor, and only then, when the decision is adverse to them, to offer evidence of why they should be treated differently. We also reject Petitioners' claim that section 1.429(b)(2) is met here because they could not have known that the Commission would reject their Petition and extend protection to a different group of Class A stations. As explained below, our decision in the Reconsideration Order to extend protection to certain stations but not to Petitioners' was a logical outgrowth of the proposals in the Incentive Auction NPRM and consistent with our statutory authority. Accordingly, it does not furnish a basis for reconsideration under section 1.429(b)(2). B. Petitioners' Claims Fail on Substantive Grounds 11. As an alternative and independent ground for our decision, we consider and deny Petitioners' claims that discretionary protection of their stations is warranted. Petitioners argue that the Commission failed to distinguish their efforts to demonstrate compliance with the regulatory requirements applicable to Class A stations from those of the out-of-core Class A-eligible LPTV stations that it decided to protect. On the contrary, we clearly explained in the Reconsideration Order that KHTV-CD and the other stations in the protected group filed applications for a Class A construction permit (FCC Form 302-CA) before February 22, 2012, and Petitioners did not. The Form 302-CA requires the applicant to certify that it ``does, and will continue to'' meet all of the full power and Class A regulatory requirements that are applicable to Class A stations, subject to significant penalties for willful false statements. Thus, as of February 22, 2012, the date established by Congress for determining which stations are entitled to repacking protection, these stations had on file with the Commission certifications that they were operating like Class A stations. Petitioners concede that they did not file a Form 302-CA application before February 22, 2012. Videohouse identifies no reasonable basis for its claim that it believed it could not file a Form 302-CA application in March 2009 because it was not certain the in-core channel it proposed in its LPTV construction permit application was feasible. With respect to Abacus and WMTM, we previously addressed their claims that Commission staff advised them not to file a Form 302-CA until after their in-core facilities were licensed as LPTV stations. In addition, to the extent these entities relied on informal staff advice, they did so at their own risk. KMYA offers no explanation for failing to file a Form 302-CA application before February 22, 2012. Their other pre- February 22, 2012 filings on which they rely do not [[Page 8846]] demonstrate that their stations were operating like Class A stations. Unlike the Form 302-CA, the documents Petitioners placed in their public inspection files before February 22, 2012 did not certify that their stations were in compliance with the full power requirements that apply to Class A stations. Petitioners claim to have met one requirement applicable to full power stations: The airing of children's programming. In the cases of Abacus and Videohouse, however, the required children's television reporting forms (FCC Form 398) were not filed until the second half of 2012, purporting to cover periods dating back to 2006. Moreover, Videohouse's FCC Forms 398 concede that WOSC-CD did not comply with certain children's television requirements because the station ``has not filed its application for a Class A license.'' In the case of Petitioner WMTM, the FCC Forms 398 in WIAV's online public file commence in the first quarter of 2013, and say nothing as to whether it was complying with children's programming requirements as of February 22, 2012. Also unlike the Form 302-CA, the certifications contained in these documents as to compliance with regulatory requirements that apply to Class A stations only were voluntary and unenforceable, making them less reliable indicators as to whether the stations were providing the service required of a Class A station as of February 22, 2012. In addition, Form 302-CA must be filed with the Commission, whereas there is no means to verify when Petitioners' certifications were placed in their public files. In their most recent filing, Petitioners for the first time claim that KKYK-CD obtained a Class A construction permit on February 16, 2012, prior to the statutory enactment date. This claim is unsupported by an examination of the Commission's records. Petitioners' apparent attempt to recast the history of KKYK-CD, like their efforts to demonstrate that they were acting like Class A stations prior to February 22, 2012 based on post-dated public file submissions, illustrate the reasonableness of the Commission's bright-line test based on the filing of FCC Form 302- CA. 12. Contrary to Petitioners' arguments, it was reasonable for us to limit discretionary repacking protection and auction eligibility to out-of-core Class A-eligible LPTV stations that filed a Form 302-CA application before February 22, 2012, because that is the date established by Congress for determining which stations are entitled to repacking protection. A station that filed a Form 302-CA application before February 22, 2012, demonstrated that it sought to avail itself of Class A status as of that date, and thus warranted protection and auction eligibility under the statutory scheme. Conversely, Petitioners neither requested Class A status, nor demonstrated that they were providing Class A service, until after passage of the Spectrum Act created the potential for Class A status to yield substantial financial rewards through auction participation--over ten years after the CBPA made them eligible for such status. On the date of enactment of the Spectrum Act, Petitioners operated LPTV stations. Congress did not include LPTV stations within the definition of broadcast television licensees entitled to repacking protection, and protecting them as a matter of discretion would significantly constrain the Commission's repacking flexibility. In addition, Petitioners' stations are particularly likely to impact repacking flexibility because they are located in congested markets such as Pittsburgh and Washington, DC where the constraints on the Commission's ability to repurpose spectrum through the auction will be greater than in less congested markets. Accordingly, we reject the comments of the LPTV Coalition and WatchTV alleging that the Petitioners' four stations would have little or no impact on repacking flexibility. While some of the protected Class A stations also are located in congested markets, the impact on repacking flexibility is just one of the factors we must consider. 13. While Petitioners are correct that there was no deadline for out-of-core Class A-eligible LPTV stations to file an application for a Class A construction permit (or an application for a license to cover a Class A facility), a Class A-eligible LPTV station with a Form 302-CA application pending or granted as of February 22, 2012 demonstrated objective steps, prior to enactment of the Spectrum Act, to avail itself of Class A status, subject to all of the regulatory requirements that status entails. Prior to February 22, 2012, these stations invested in broadcast television facilities based on the expectation that the facilities would receive protection as ``primary'' Class A stations. In contrast, Petitioners only sought Class A status after Congress designated such stations as eligible to participate in the auction--and after the date set by Congress to establish entitlement to repacking protection and auction eligibility. 14. We also reject Petitioners' argument that, regardless of whether they demonstrated that their stations were acting like Class A stations as of February 22, 2012, discretionary protection is warranted based on their overall efforts to achieve Class A status. Soon after enactment of the CBPA in 1999, the Commission warned that ``it would be in the best interest of qualified LPTV stations operating outside the core to try to locate an in-core channel now, as the core spectrum is becoming increasingly crowded and it is likely to become increasingly difficult to locate an in-core channel in the future.'' Unlike KHTV-CD, which demonstrated that it commenced efforts to achieve Class A status soon after enactment of the CBPA, Petitioners are silent as to any such efforts before 2009, almost a decade after enactment of the CBPA. Videohouse claims that it had to wait until the DTV transition ended in 2009 to seek a new channel because it operated in a ``highly congested market'' (Pittsburgh), yet Venture demonstrated efforts to find a new channel for KHTV-CD in the even more congested Los Angeles market despite the DTV transition. Furthermore, as discussed above, the evidence presented by Petitioners regarding their efforts to obtain Class A status between 2009 and February 22, 2012 does not demonstrate that they acted like Class A stations during that time period. Granting discretionary protection based on Petitioners' initiation of Class A service after February 22, 2012 would not serve Congress's goal of preserving full power and Class A service as of the Spectrum Act's enactment date. We also reject KMYA's claim that it is entitled to protection under the terms of the Incentive Auction R&O and CBPA. KMYA is not entitled to protection under section 336(f)(6)(A) of the CBPA because it did not file an application for a Class A authorization (either a Class A license or a Class A construction permit) with its application for a construction permit to move to an in-core channel. Rather, KMYA did not file an application for a Class A authorization until July 2012, after enactment of the Spectrum Act. 15. We reject Petitioners' claim that the equities weigh in favor of granting discretionary protection to stations that obtained a Class A license by the Pre-Auction Licensing Deadline (May 29, 2015) and met other auction-related filing requirements. Petitioners have conveniently found a line that would protect their stations, but the Commission never linked the May 29, 2015 Pre-Auction Licensing Deadline to repacking protection for out-of-core Class A-eligible LPTV stations. On the contrary, the Commission plainly stated [[Page 8847]] that it would not protect such stations based on their obtaining Class A licenses by that deadline. By contrast, the line the Commission chose is tied directly to the date established by Congress for repacking protection. As discussed above, Petitioners have not shown that their stations provided the service required of Class A stations before that date, or that they took steps to avail themselves of Class A status until it was clear that doing so could yield substantial financial rewards through auction participation. Accordingly, we reject the contention that the equities weigh in favor of granting the relief Petitioners seek. 16. Petitioners attempt to buttress their argument for discretionary protection by questioning the validity of the Commission's statement that approximately 100 stations would be eligible for protection if it protected out-of-core Class A-eligible LPTV stations that obtained Class A licenses after February 22, 2012, as Petitioners advocate. But that statement does not bear on the decisional issue presented by the Petition: The reasonableness of the Commission's determination not to protect Petitioners' four stations. As set forth above, the equities do not weigh in favor of granting such protection, regardless of how many stations fell into the relevant category at the time the Incentive Auction R&O was adopted. 17. In any event, Petitioners' complaints regarding the Commission's estimate--that it never provided a list of the stations, and that its explanation of how interested parties could identify the stations is unworkable--lack merit. Interested parties were free to compile their own station lists from publicly available data. We explained in the Reconsideration Order that the stations can be identified by comparing the publicly available list of LPTV stations whose certifications of Class A eligibility were accepted by the Commission in 2000 to the public records in the Commission's Consolidated Database System (CDBS) to determine which LPTV stations were on out-of-core channels and obtained authorizations for in-core channels, and then determining when the station filed an application for a license to cover a Class A facility. Those stations (both Class A and Class A-eligible LPTV stations) that did not file such an application by February 22, 2012 (with the exception of KHTV-CD) fall into the category identified by the Commission. Petitioners mistakenly argue that the 2000 list cannot be compared to the CDBS records because many stations have converted from analog to digital using a digital companion channel since 2000 and were assigned a new digital facility ID number and call sign in CDBS that cannot be matched with the 2000 list. The new digital facility ID numbers are linked to the former analog facility ID numbers in CDBS, meaning that any change in facility ID numbers does not impede matching stations to the 2000 list. In addition, despite Petitioners' claims, Commission staff has never deleted an underlying analog facility ID number associated with a station. Similarly, while a call sign may be ``deleted'' through the entry of a ``D'' before a cancelled or revoked station's call sign, the call sign nonetheless remains in the station's record in CDBS. Moreover, after filing the Petition, Petitioners developed their own list of stations based on analysis of the 2000 list and CDBS. Petitioners' November 2015 List confirms that any interested party could have conducted the same exercise as the Commission using publicly-available data. Although Petitioners' analysis does not match the Commission's estimate of approximately 100 stations because Petitioners sought to demonstrate something different, even their analysis does reflect that there are at least 55 stations in the category the Commission defined. 18. We also reject Petitioners' claim that our ``refus[al] to consider'' their claims on procedural grounds, while at the same time extending discretionary protection to other stations that never filed for reconsideration, arbitrarily discriminated against them. As an initial matter, we did not ``refuse to consider'' Petitioners' claims. While we dismissed certain claims on procedural grounds, we went on to consider all of their claims (including those we dismissed) on the merits. In any event, the Commission acted within its authority in dismissing or denying Abacus's and Videohouse's 2014 Petitions in the Reconsideration Order, but extending protection to other stations that did not ask for reconsideration. First, the Commission did not reconsider the Incentive Auction R&O in clarifying that out-of-core Class A-eligible stations that had a Class A construction permit application pending or granted as of February 22, 2012 and now hold a Class A license are not entitled to mandatory repacking protection. The Commission may act on its own motion to issue a declaratory ruling removing uncertainty at any time. The Commission's authority to issue declaratory rulings to remove uncertainty is well-established. The lack of a citation to Section 1.2 of the rules in the Reconsideration Order did not undermine the Commission's authority to issue a declaratory ruling. Petitioners are mistaken that there was no ambiguity in the Incentive Auction R&O that required clarification. The Incentive Auction R&O explained that stations would be entitled to mandatory protection if they held a Class A license or had a ``Class A license application'' on file as of February 22, 2012. The Incentive Auction R&O was ambiguous, however, as to whether a ``Class A license application'' meant only an application for a license to cover a Class A facility or whether it also meant a Class A construction permit application. Examination of the record also reflected uncertainty as to the scope of mandatory protection under the terms of the Incentive Auction R&O. The Reconsideration Order clarified this ambiguity. 19. Second, in extending discretionary protection to these stations, the Commission acted well within its authority to act on reconsideration. The Commission is ``free to modify its rule on a petition for reconsideration as long as the modification was a `logical outgrowth' of the earlier version of the rule, . . . and provided the agency gave a reasoned explanation for its decision that is supported by the record.'' Here, the issue of which Class A stations to protect in the repacking process, either as required by the Spectrum Act or as a matter of discretion, was squarely within the scope of the Incentive Auction NPRM. There is no support for Petitioners' contention that the Commission on reconsideration is limited to either granting or denying the specific relief requested in a petition for reconsideration. The D.C. Circuit rejected this claim in Globalstar. Petitioners attempt to distinguish Globalstar by arguing that the petitioner in that case requested broadly that the Commission ``reverse'' its decision, whereas Abacus and Videohouse asked the Commission to extend discretionary protection only to their stations in the 2014 Petitions. This is a distinction without a difference. The 2014 Petitions asked the Commission to reconsider the scope of discretionary protection for out- of-core Class A-eligible LPTV stations that now hold Class A licenses. Both Abacus and Videohouse stated in sweeping terms that the Commission ``should exercise its discretion to ensure that similarly situated entities are not subject to arbitrarily disparate treatment.'' In response, the Commission appropriately reconsidered the scope of discretionary protection for stations in that category and extended protection to a number that it concluded [[Page 8848]] are similarly situated to KHTV-CD, the station in the same category that it already had accorded such protection. Because the Commission addressed the specific issue that was presented by the 2014 Petitions, the suggestion that the Commission exercised ``unbounded discretion'' on reconsideration lacks merit. 20. Finally, Petitioners complain that the Commission ``[w]ithout any explanation'' included WDYB-CD on the June 30, 2015 list of eligible stations although, like Petitioners, WDYB-CD's current licensee, Latina, did not file an application for a license to cover a Class A facility until after February 22, 2012 or advocate for protection of its station until after adoption of the Incentive Auction R&O. WDYB-CD was included on the June 30, 2015 list in light of our decision to protect stations that ``hold a Class A license today and that had an application for a Class A construction permit pending or granted as of February 22, 2012.'' Further examination of the record reveals, however, that WDYB-CD did not have an application for a Class A authorization pending or granted as of February 22, 2012. WDYB-CD's prior licensee obtained a Class A construction permit prior to that date, but the permit expired in December 2011. Instead of constructing the Class A station, Latina filed an application for an LPTV construction permit for WDYB-CD in February 2011, which superseded the Class A construction permit. The LPTV application did not require a certification that WDYB-CD was and would continue to meet all of the full power and Class A regulatory requirements that are applicable to Class A stations. WDYB-CD was constructed and operated as an LPTV station until November 2012. Thus, Latina was not pursuing Class A status before the Commission as of February 22, 2012. 21. We disagree with Latina that WDYB-CD properly was included in the eligible stations list simply because it had a Class A authorization prior to February 22, 2012, regardless of its status as of that date. Latina's argument that our authority on reconsideration is limited to granting or denying the relief requested by Petitioners fails for the same reasons as Petitioners' arguments regarding our authority to act on reconsideration. We also find unpersuasive Latina's recent estoppel and notice arguments. Latina maintains that it relied on the standard the Commission announced in the Second Order on Reconsideration, its inclusion in eligibility notices beginning in June 2015, and the Commission's statements regarding WDYB-CD in litigation. Latina's reliance on the Second Order on Reconsideration was misplaced: As Petitioners point out, the Commission specifically rejected Latina's argument that it was entitled to protection because it was similarly situated to Petitioners, and Latina never argued that it was entitled to protection on any other basis until filing its 1/22 Ex Parte Letter. The eligibility notices that Latina cites emphasized that they were neither final nor intended to decide eligibility issues. For example, the June 9, 2015 public notice stated that it was ``not intended to pre-judge [the] outcome'' of pending reconsideration petitions regarding the scope of protection, a June 30, 2015 public notice emphasized that ``the list of stations included in the baseline data released today is not the final list of stations eligible for repacking protection,'' and the most recent public notice listing eligible stations noted the possibility of revisions to the baseline data. Finally, before the D.C. Circuit, the Commission merely pointed out that, unlike Petitioners' stations, Class A construction permits had been obtained for WDYB-CD prior to February 22, 2012, without stating that this factual distinction entitled WDYB-CD to protection under the standard in the Second Order on Reconsideration. We therefore conclude that WDYB-CD is not entitled to discretionary repacking protection or eligible to participate in the reverse auction. 22. In the Incentive Auction Report and Order, and again in the Second Reconsideration Order, the Commission determined that if a Class A station obtains a license after February 22, 2012, but is displaced by the auction repacking process, it will be eligible to file for a new channel in one of the first two filing opportunities for alternate channels. WDYB-CD would be eligible to file such a displacement application. Previously, we delegated authority to the Media Bureau to determine whether such stations should be allowed to file during the first or the second filing opportunity. We now direct the Media Bureau to allow such stations to file during the first filing opportunity. In the event of mutual exclusivity with an application from a full power or Class A station entitled to repacking protection the application of the full power or Class A station will prevail. 23. This document does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4). 24. The Commission will not send a copy of this Order pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A) because no rules are being adopted by the Commission. IV. Ordering Clauses 25. It is ordered that, pursuant to section 405 of the Communications Act of 1934, as amended, 47 U.S.C. 405, and section 1.429 of the Commission's rules, 47 CFR 1.429, the Petition for Reconsideration filed by The Videohouse, Inc., Abacus Television, WMTM, LLC, and KMYA, LLC is dismissed and/or denied to the extent described herein. 26. It is further ordered that WDYB-CD, Daytona Beach, Florida, which is licensed to Latina Broadcasters of Daytona Beach, LLC, is not entitled to discretionary repacking protection or eligible to participate in the reverse auction. 27. It is further ordered that this Order on Reconsideration shall be effective upon release. Federal Communications Commission. Marlene H. Dortch, Secretary. [FR Doc. 2016-03801 Filed 2-22-16; 8:45 am] BILLING CODE 6712-01-P
![Federal Register / Vol. 81, No. 35 / Tuesday, February 23, 2016 / Rules and Regulations 8843
do discuss the effects of this rule Dated: February 8, 2016. Synopsis of Order on Reconsideration
elsewhere in this preamble. L.L. Fagan, I. Introduction
Admiral, U.S. Coast Guard, Commander, First
F. Environment 1. Petitioners The Videohouse, Inc.
Coast Guard District.
We have analyzed this rule under [FR Doc. 2016–03789 Filed 2–22–16; 8:45 am]
(Videohouse), Abacus Television
Department of Homeland Security (Abacus), WMTM, LLC (WMTM), and
BILLING CODE 9110–04–P
Management Directive 023–01 and KMYA, LLC (KMYA) seek
Commandant Instruction M16475.lD, reconsideration of the Commission’s
which guides the Coast Guard in decision, on procedural and substantive
complying with the National FEDERAL COMMUNICATIONS grounds, not to protect their broadcast
Environmental Policy Act of 1969 COMMISSION television stations in the repacking
(NEPA) (42 U.S.C. 4321–4370f), and process or make them eligible for the
47 CFR Part 73 reverse auction. At the time the Petition
have made a determination that this
action is one of a category of actions was filed, Videohouse, Abacus, WMTM,
[GN Docket No. 12–268; FCC 16–12]
which do not individually or and KMYA were the licensees of the
cumulatively have a significant effect on Expanding the Economic and following stations, respectively: WOSC–
the human environment. This rule Innovation Opportunities of Spectrum CD, Pittsburgh, Pennsylvania; WPTG–
simply promulgates the operating Through Incentive Auctions CD, Pittsburgh; WIAV–CD, Washington,
regulations or procedures for DC; and KKYK–CD, Little Rock,
drawbridges. This action is categorically AGENCY: Federal Communications Arkansas. WPTG–CD and KKYK–CD
excluded from further review, under Commission. have since been acquired by Fifth Street
figure 2–1, paragraph (32)(e), of the ACTION: Final rule; petition for Enterprise, LLC and Kaleidoscope
Instruction. reconsideration. Foundation, Inc., respectively. We
Under figure 2–1, paragraph (32)(e), of dismiss and, on alternative and
SUMMARY: In this document, the independent grounds, deny the Petition.
the Instruction, an environmental
Commission dismisses, and on separate For the reasons below, we also conclude
analysis checklist and a categorical
grounds, denies petitions for that WDYB–CD, Daytona Beach, Florida,
exclusion determination are not
reconsideration seeking reconsideration licensed to Latina Broadcasters of
required for this rule.
of the Commission’s decisions in the Daytona Beach, LLC (Latina), is not
G. Protest Activities Incentive Auction R&O and the entitled to discretionary repacking
The Coast Guard respects the First Incentive Auction Second Order on protection or eligible to participate in
Amendment rights of protesters. Reconsideration not to protect certain the reverse auction.
Protesters are asked to contact the broadcast television stations (WOSC–
CD, Pittsburgh, PA; WPTG–CD, II. Background
person listed in the FOR FURTHER
Pittsburgh, PA; WIAV–CD, Washington, 2. In the Incentive Auction R&O, the
INFORMATION CONTACT section to
DC; and KKYK–CD, Little Rock, AK) in Commission concluded that the
coordinate protest activities so that your
the repacking process or make them Spectrum Act mandates that the
message can be received without
eligible for the reverse auction. The Commission make all reasonable efforts
jeopardizing the safety or security of
Commission also concludes that to preserve, in the repacking process
people, places or vessels.
WDYB–CD, Daytona Beach, Florida is associated with the broadcast television
List of Subjects in 33 CFR Part 117 not entitled to discretionary repacking spectrum incentive auction, the
Bridges. protection or eligible to participate in coverage area and population served of
the reverse auction. only full power and Class A broadcast
For the reasons discussed in the television facilities (1) licensed as of
preamble, the Coast Guard amends 33 DATES: Effective February 23, 2016.
February 22, 2012, the date of
CFR part 117 as follows: ADDRESSES: Federal Communications
enactment of the Spectrum Act, or (2)
Commission, 445 12th Street SW.,
PART 117—DRAWBRIDGE for which an application for a license to
Washington, DC 20554.
OPERATION REGULATIONS cover was on file as of February 22,
FOR FURTHER INFORMATION CONTACT: 2012. The Commission did not interpret
Lynne Montgomery, (202) 418–2229, or the Spectrum Act, however, as
■ 1. The authority citation for part 117
by email at Lynne.Montgomery@fcc.gov, precluding it from exercising discretion
continues to read as follows:
Media Bureau; Joyce Bernstein, (202) to protect additional facilities beyond
Authority: 33 U.S.C. 499; 33 CFR 1.05–1; 418–1647, or by email at
Department of Homeland Security Delegation
the statutory floor. The Commission
Joyce.Bernstein@fcc.gov, Media Bureau. granted discretionary protection to a
No. 0170.1.
SUPPLEMENTARY INFORMATION: This is a handful of categories of facilities, based
■ 2. Revise § 117.585(a) to read as summary of the Commission’s Order on on a careful balancing of different
follows: Reconsideration in GN Docket No. 12– factors in order to achieve the goals of
268, FCC 16–12, adopted on February 8, the Spectrum Act and other statutory
§ 117.585 Acushnet River. 2016 and released on February 12, 2016. and Commission goals.
(a) The New Bedford-Fairhaven RT–6 The full text may also be downloaded 3. One category to which the
Bridge, mile 0.0 will be opened at: www.fcc.gov. People with Commission declined to extend
asabaliauskas on DSK5VPTVN1PROD with RULES
promptly, provided proper signal is Disabilities: To request materials in discretionary protection was ‘‘out-of-
given, on the following schedule: accessible formats for people with core’’ Class A-eligible LPTV stations’’:
(1) On the hour between 6 a.m. and disabilities (braille, large print, Low power television (LPTV) stations
10 a.m. inclusive. electronic files, audio format), send an that operated on ‘‘out-of-core’’ channels
(2) At a quarter past the hour between email to fcc504@fcc.gov or call the (channels 52–69) when the Community
11:15 a.m. and 6:15 p.m. inclusive. Consumer & Governmental Affairs Broadcasters Protection Act (CBPA) was
(3) At all other times on call. Bureau at 202–418–0530 (voice), 202– enacted in 1999 and obtained an
* * * * * 418–0432 (tty). authorization for an ‘‘in-core’’ channel
VerDate Sep<11>2014 16:15 Feb 22, 2016 Jkt 238001 PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 E:\FR\FM\23FER1.SGM 23FER1](https://thefederalregister.org/doc/81_FR_8878/page/1.svg)
![Federal Register / Vol. 81, No. 35 / Tuesday, February 23, 2016 / Rules and Regulations 8845
Incentive Auction R&O, although all of why KHTV–CD should be afforded 1.429(b)(2) is met here because they
the facts and arguments they now discretionary protection. The decision could not have known that the
present existed beforehand. While to protect KHTV–CD was based in part Commission would reject their Petition
Videohouse notes that its owner on on this evidence. Petitioners now argue and extend protection to a different
behalf of a related entity (Bruno that, like KHTV–CD, each of their group of Class A stations. As explained
Goodworth Network, Inc.) filed reply stations faced ‘‘unique’’ ‘‘hardships and below, our decision in the
comments in response to the Incentive obstacles.’’ But as we noted in the Reconsideration Order to extend
Auction NPRM, those comments did not Reconsideration Order, Petitioners did protection to certain stations but not to
pertain to out-of-core Class A-eligible not attempt to demonstrate in response Petitioners’ was a logical outgrowth of
LPTV stations generally or to its station to the Incentive Auction NPRM why the proposals in the Incentive Auction
in particular. Videohouse also claims they should be afforded discretionary NPRM and consistent with our statutory
that it discussed out-of-core Class A- protection. Venture’s presentation authority. Accordingly, it does not
eligible LPTV stations with Commission regarding KHTV–CD’s unique furnish a basis for reconsideration under
staff at an industry forum in April 2013, circumstances does not bear at all on section 1.429(b)(2).
but Videohouse never made these Petitioners’ stations and did not B. Petitioners’ Claims Fail on
statements part of the record of this constitute an ‘‘opportunity [for the Substantive Grounds
proceeding until July 2015, over a year Commission] to pass’’ on the facts and
after adoption of the Incentive Auction arguments that Petitioners now rely on. 11. As an alternative and independent
R&O. Abacus refers to an email it sent We note that whether the Commission ground for our decision, we consider
Commission staff in March 2014, but had an ‘‘opportunity to pass’’ on an and deny Petitioners’ claims that
Abacus never filed this email in the issue is not the relevant statutory test. discretionary protection of their stations
record, and the first reference to it in the Rather, Section 405(a) provides that ‘‘no is warranted. Petitioners argue that the
record was not until July 2015. In evidence other than newly discovered Commission failed to distinguish their
contrast, Venture submitted comments evidence, evidence which has become efforts to demonstrate compliance with
in response to the Incentive Auction available only since the original taking the regulatory requirements applicable
NPRM regarding the particular facts and of evidence, or evidence which the to Class A stations from those of the out-
circumstances that it maintained—and Commission or designated authority of-core Class A-eligible LPTV stations
within the Commission believes should that it decided to protect. On the
the Commission agreed—justified
contrary, we clearly explained in the
protection of KHTV–CD. Contrary to have been taken in the original
Reconsideration Order that KHTV–CD
Petitioners’ arguments, therefore, the proceeding shall be taken on any
and the other stations in the protected
Commission did not err in dismissing reconsideration.’’ Additionally, as
group filed applications for a Class A
the 2014 Petitions, and the current discussed below, Petitioners fail to meet
construction permit (FCC Form 302–CA)
Petition likewise is subject to dismissal. the test for discretionary protection
before February 22, 2012, and
In addition, the facts and arguments put adopted in the Reconsideration Order.
Petitioners did not. The Form 302–CA
forth in the Petition are repetitious with 10. While the rules allow petitioners requires the applicant to certify that it
regard to Abacus, Videohouse, and to raise facts or arguments on ‘‘does, and will continue to’’ meet all of
WMTM, each of whom sought reconsideration that have not previously the full power and Class A regulatory
reconsideration of the Incentive Auction been presented under certain requirements that are applicable to Class
R&O: The Commission considered and circumstances, Petitioners have not A stations, subject to significant
rejected those facts and arguments in demonstrated such circumstances, and penalties for willful false statements.
the Reconsideration Order. Asiavision, their reliance on section 1.429(b)(1) is Thus, as of February 22, 2012, the date
the previous licensee of WIAV–CD, now therefore misplaced. Contrary to established by Congress for determining
licensed to WMTM, filed informal Petitioners’ claims, the July 9, 2015 which stations are entitled to repacking
comments in response to the 2014 deadline for submission of the Pre- protection, these stations had on file
Petitions. Auction Technical Certification Form is with the Commission certifications that
9. For reasons similar to those on not a relevant event that has occurred they were operating like Class A
which we relied in the Reconsideration since their last opportunity to present stations. Petitioners concede that they
Order, we also reject Petitioners’ new facts or arguments. That date would be did not file a Form 302–CA application
argument that, notwithstanding their relevant only if we agreed with their before February 22, 2012. Videohouse
failure to advocate protection of their challenges. As we do not, the July 9, identifies no reasonable basis for its
stations in a timely manner, their claims 2015 deadline is not a relevant claim that it believed it could not file a
were procedurally proper because other circumstance for purposes of section Form 302–CA application in March
parties generally advocated protection 1.429(b)(1). We also reject Petitioners’ 2009 because it was not certain the in-
of Class A stations in response to the argument that the public interest would core channel it proposed in its LPTV
Incentive Auction NPRM. Contrary to be served by reconsideration. The construction permit application was
Petitioners’ argument, no commenter Commission has a ‘‘well-established feasible. With respect to Abacus and
generally advocated discretionary policy of not considering matters that WMTM, we previously addressed their
protection of out-of-core Class A-eligible are first raised on reconsideration,’’ claims that Commission staff advised
stations. With the exception of the premised on the statutory goals of them not to file a Form 302–CA until
Venture Reply Comments, which ‘‘procedural regularity, administrative after their in-core facilities were
asabaliauskas on DSK5VPTVN1PROD with RULES
pertain specifically to KHTV–CD only, efficiency, and fundamental fairness.’’ licensed as LPTV stations. In addition,
none of the comments in response to the Those goals would not be served by to the extent these entities relied on
Incentive Auction NPRM cited by allowing Petitioners to sit back and informal staff advice, they did so at their
Petitioners address out-of-core Class A- hope for a decision in their favor, and own risk. KMYA offers no explanation
eligible LPTV stations at all. As we only then, when the decision is adverse for failing to file a Form 302–CA
previously explained, Venture put forth to them, to offer evidence of why they application before February 22, 2012.
particular facts in response to the should be treated differently. We also Their other pre-February 22, 2012
Incentive Auction NPRM demonstrating reject Petitioners’ claim that section filings on which they rely do not
VerDate Sep<11>2014 16:15 Feb 22, 2016 Jkt 238001 PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 E:\FR\FM\23FER1.SGM 23FER1](https://thefederalregister.org/doc/81_FR_8878/page/3.svg)
![Federal Register / Vol. 81, No. 35 / Tuesday, February 23, 2016 / Rules and Regulations 8847
that it would not protect such stations 2000 and were assigned a new digital to issue a declaratory ruling. Petitioners
based on their obtaining Class A facility ID number and call sign in CDBS are mistaken that there was no
licenses by that deadline. By contrast, that cannot be matched with the 2000 ambiguity in the Incentive Auction R&O
the line the Commission chose is tied list. The new digital facility ID numbers that required clarification. The Incentive
directly to the date established by are linked to the former analog facility Auction R&O explained that stations
Congress for repacking protection. As ID numbers in CDBS, meaning that any would be entitled to mandatory
discussed above, Petitioners have not change in facility ID numbers does not protection if they held a Class A license
shown that their stations provided the impede matching stations to the 2000 or had a ‘‘Class A license application’’
service required of Class A stations list. In addition, despite Petitioners’ on file as of February 22, 2012. The
before that date, or that they took steps claims, Commission staff has never Incentive Auction R&O was ambiguous,
to avail themselves of Class A status deleted an underlying analog facility ID however, as to whether a ‘‘Class A
until it was clear that doing so could number associated with a station. license application’’ meant only an
yield substantial financial rewards Similarly, while a call sign may be application for a license to cover a Class
through auction participation. ‘‘deleted’’ through the entry of a ‘‘D’’ A facility or whether it also meant a
Accordingly, we reject the contention before a cancelled or revoked station’s Class A construction permit application.
that the equities weigh in favor of call sign, the call sign nonetheless Examination of the record also reflected
granting the relief Petitioners seek. remains in the station’s record in CDBS. uncertainty as to the scope of mandatory
16. Petitioners attempt to buttress Moreover, after filing the Petition, protection under the terms of the
their argument for discretionary Petitioners developed their own list of Incentive Auction R&O. The
protection by questioning the validity of stations based on analysis of the 2000 Reconsideration Order clarified this
the Commission’s statement that list and CDBS. Petitioners’ November ambiguity.
approximately 100 stations would be 2015 List confirms that any interested 19. Second, in extending
eligible for protection if it protected out- party could have conducted the same discretionary protection to these
of-core Class A-eligible LPTV stations exercise as the Commission using stations, the Commission acted well
that obtained Class A licenses after publicly-available data. Although within its authority to act on
February 22, 2012, as Petitioners Petitioners’ analysis does not match the reconsideration. The Commission is
advocate. But that statement does not Commission’s estimate of approximately ‘‘free to modify its rule on a petition for
bear on the decisional issue presented 100 stations because Petitioners sought reconsideration as long as the
by the Petition: The reasonableness of to demonstrate something different, modification was a ‘logical outgrowth’
the Commission’s determination not to even their analysis does reflect that
protect Petitioners’ four stations. As set of the earlier version of the rule, . . .
there are at least 55 stations in the and provided the agency gave a
forth above, the equities do not weigh in category the Commission defined.
favor of granting such protection, reasoned explanation for its decision
regardless of how many stations fell into 18. We also reject Petitioners’ claim that is supported by the record.’’ Here,
the relevant category at the time the that our ‘‘refus[al] to consider’’ their the issue of which Class A stations to
Incentive Auction R&O was adopted. claims on procedural grounds, while at protect in the repacking process, either
17. In any event, Petitioners’ the same time extending discretionary as required by the Spectrum Act or as
complaints regarding the Commission’s protection to other stations that never a matter of discretion, was squarely
estimate—that it never provided a list of filed for reconsideration, arbitrarily within the scope of the Incentive
the stations, and that its explanation of discriminated against them. As an Auction NPRM. There is no support for
how interested parties could identify initial matter, we did not ‘‘refuse to Petitioners’ contention that the
the stations is unworkable—lack merit. consider’’ Petitioners’ claims. While we Commission on reconsideration is
Interested parties were free to compile dismissed certain claims on procedural limited to either granting or denying the
their own station lists from publicly grounds, we went on to consider all of specific relief requested in a petition for
available data. We explained in the their claims (including those we reconsideration. The D.C. Circuit
Reconsideration Order that the stations dismissed) on the merits. In any event, rejected this claim in Globalstar.
can be identified by comparing the the Commission acted within its Petitioners attempt to distinguish
publicly available list of LPTV stations authority in dismissing or denying Globalstar by arguing that the petitioner
whose certifications of Class A Abacus’s and Videohouse’s 2014 in that case requested broadly that the
eligibility were accepted by the Petitions in the Reconsideration Order, Commission ‘‘reverse’’ its decision,
Commission in 2000 to the public but extending protection to other whereas Abacus and Videohouse asked
records in the Commission’s stations that did not ask for the Commission to extend discretionary
Consolidated Database System (CDBS) reconsideration. First, the Commission protection only to their stations in the
to determine which LPTV stations were did not reconsider the Incentive Auction 2014 Petitions. This is a distinction
on out-of-core channels and obtained R&O in clarifying that out-of-core Class without a difference. The 2014 Petitions
authorizations for in-core channels, and A-eligible stations that had a Class A asked the Commission to reconsider the
then determining when the station filed construction permit application pending scope of discretionary protection for
an application for a license to cover a or granted as of February 22, 2012 and out-of-core Class A-eligible LPTV
Class A facility. Those stations (both now hold a Class A license are not stations that now hold Class A licenses.
Class A and Class A-eligible LPTV entitled to mandatory repacking Both Abacus and Videohouse stated in
stations) that did not file such an protection. The Commission may act on sweeping terms that the Commission
asabaliauskas on DSK5VPTVN1PROD with RULES
application by February 22, 2012 (with its own motion to issue a declaratory ‘‘should exercise its discretion to ensure
the exception of KHTV–CD) fall into the ruling removing uncertainty at any time. that similarly situated entities are not
category identified by the Commission. The Commission’s authority to issue subject to arbitrarily disparate
Petitioners mistakenly argue that the declaratory rulings to remove treatment.’’ In response, the
2000 list cannot be compared to the uncertainty is well-established. The lack Commission appropriately reconsidered
CDBS records because many stations of a citation to Section 1.2 of the rules the scope of discretionary protection for
have converted from analog to digital in the Reconsideration Order did not stations in that category and extended
using a digital companion channel since undermine the Commission’s authority protection to a number that it concluded
VerDate Sep<11>2014 16:15 Feb 22, 2016 Jkt 238001 PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 E:\FR\FM\23FER1.SGM 23FER1](https://thefederalregister.org/doc/81_FR_8878/page/5.svg)
![8848 Federal Register / Vol. 81, No. 35 / Tuesday, February 23, 2016 / Rules and Regulations
are similarly situated to KHTV–CD, the Latina’s reliance on the Second Order Business Paperwork Relief Act of 2002,
station in the same category that it on Reconsideration was misplaced: As Public Law 107–198, see 44 U.S.C.
already had accorded such protection. Petitioners point out, the Commission 3506(c)(4).
Because the Commission addressed the specifically rejected Latina’s argument 24. The Commission will not send a
specific issue that was presented by the that it was entitled to protection because copy of this Order pursuant to the
2014 Petitions, the suggestion that the it was similarly situated to Petitioners, Congressional Review Act, see 5 U.S.C.
Commission exercised ‘‘unbounded and Latina never argued that it was 801(a)(1)(A) because no rules are being
discretion’’ on reconsideration lacks entitled to protection on any other basis adopted by the Commission.
merit. until filing its 1/22 Ex Parte Letter. The
20. Finally, Petitioners complain that IV. Ordering Clauses
eligibility notices that Latina cites
the Commission ‘‘[w]ithout any emphasized that they were neither final 25. It is ordered that, pursuant to
explanation’’ included WDYB–CD on nor intended to decide eligibility issues. section 405 of the Communications Act
the June 30, 2015 list of eligible stations For example, the June 9, 2015 public of 1934, as amended, 47 U.S.C. 405, and
although, like Petitioners, WDYB–CD’s notice stated that it was ‘‘not intended section 1.429 of the Commission’s rules,
current licensee, Latina, did not file an to pre-judge [the] outcome’’ of pending 47 CFR 1.429, the Petition for
application for a license to cover a Class reconsideration petitions regarding the Reconsideration filed by The
A facility until after February 22, 2012 scope of protection, a June 30, 2015 Videohouse, Inc., Abacus Television,
or advocate for protection of its station public notice emphasized that ‘‘the list WMTM, LLC, and KMYA, LLC is
until after adoption of the Incentive of stations included in the baseline data dismissed and/or denied to the extent
Auction R&O. WDYB–CD was included released today is not the final list of described herein.
on the June 30, 2015 list in light of our stations eligible for repacking 26. It is further ordered that WDYB–
decision to protect stations that ‘‘hold a protection,’’ and the most recent public CD, Daytona Beach, Florida, which is
Class A license today and that had an notice listing eligible stations noted the licensed to Latina Broadcasters of
application for a Class A construction possibility of revisions to the baseline Daytona Beach, LLC, is not entitled to
permit pending or granted as of data. Finally, before the D.C. Circuit, the discretionary repacking protection or
February 22, 2012.’’ Further Commission merely pointed out that, eligible to participate in the reverse
examination of the record reveals, unlike Petitioners’ stations, Class A auction.
however, that WDYB–CD did not have construction permits had been obtained 27. It is further ordered that this Order
an application for a Class A for WDYB–CD prior to February 22, on Reconsideration shall be effective
authorization pending or granted as of 2012, without stating that this factual upon release.
February 22, 2012. WDYB–CD’s prior distinction entitled WDYB–CD to Federal Communications Commission.
licensee obtained a Class A construction protection under the standard in the
Marlene H. Dortch,
permit prior to that date, but the permit Second Order on Reconsideration. We
expired in December 2011. Instead of Secretary.
therefore conclude that WDYB–CD is
constructing the Class A station, Latina not entitled to discretionary repacking [FR Doc. 2016–03801 Filed 2–22–16; 8:45 am]
filed an application for an LPTV protection or eligible to participate in BILLING CODE 6712–01–P
construction permit for WDYB–CD in the reverse auction.
February 2011, which superseded the 22. In the Incentive Auction Report
Class A construction permit. The LPTV and Order, and again in the Second SURFACE TRANSPORTATION BOARD
application did not require a Reconsideration Order, the Commission
certification that WDYB–CD was and determined that if a Class A station 49 CFR Parts 1001, 1002, 1005, 1007,
would continue to meet all of the full obtains a license after February 22, 1011, 1012, 1013, 1014, 1016, 1017,
power and Class A regulatory 2012, but is displaced by the auction 1018, 1019, 1021, 1034, 1035, 1039,
requirements that are applicable to Class repacking process, it will be eligible to 1090, 1101, 1102, 1103, 1104, 1105,
A stations. WDYB–CD was constructed file for a new channel in one of the first 1110, 1111, 1113, 1114, 1115, 1118,
and operated as an LPTV station until two filing opportunities for alternate 1139, 1144, 1146, 1150, 1151, 1152,
November 2012. Thus, Latina was not channels. WDYB–CD would be eligible 1180, 1241, 1242, 1243, 1244, 1245,
pursuing Class A status before the to file such a displacement application. 1246, 1247, 1248, and 1253
Commission as of February 22, 2012. Previously, we delegated authority to [Docket No. EP 712]
21. We disagree with Latina that the Media Bureau to determine whether
WDYB–CD properly was included in the such stations should be allowed to file Improving Regulation and Regulatory
eligible stations list simply because it during the first or the second filing Review
had a Class A authorization prior to opportunity. We now direct the Media
February 22, 2012, regardless of its Bureau to allow such stations to file AGENCY: Surface Transportation Board.
status as of that date. Latina’s argument during the first filing opportunity. In the ACTION: Final rules.
that our authority on reconsideration is event of mutual exclusivity with an
limited to granting or denying the relief application from a full power or Class SUMMARY: The Surface Transportation
requested by Petitioners fails for the A station entitled to repacking Board (Board) is revising, correcting,
same reasons as Petitioners’ arguments protection the application of the full and updating its regulations. These
regarding our authority to act on power or Class A station will prevail. modifications include replacing
reconsideration. We also find 23. This document does not contain obsolete statutory references, updating
asabaliauskas on DSK5VPTVN1PROD with RULES
unpersuasive Latina’s recent estoppel new or modified information collection office and address references, and
and notice arguments. Latina maintains requirements subject to the Paperwork correcting spelling, grammatical,
that it relied on the standard the Reduction Act of 1995 (PRA), Public terminology, explanatory, and
Commission announced in the Second Law 104–13. In addition, therefore, it typographical errors. The Board is also
Order on Reconsideration, its inclusion does not contain any new or modified making changes to certain authority
in eligibility notices beginning in June information collection burden for small citations and to certain regulations
2015, and the Commission’s statements business concerns with fewer than 25 related to reporting requirements.
regarding WDYB–CD in litigation. employees, pursuant to the Small DATES: Effective March 25, 2016.
VerDate Sep<11>2014 16:15 Feb 22, 2016 Jkt 238001 PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 E:\FR\FM\23FER1.SGM 23FER1](https://thefederalregister.org/doc/81_FR_8878/page/6.svg)
Document Created: 2018-02-02 14:33:13
Document Modified: 2018-02-02 14:33:13
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule; petition for reconsideration. | |
| Dates | Effective February 23, 2016. | |
| Contact | Lynne Montgomery, (202) 418-2229, or by email at [email protected], Media Bureau; Joyce Bernstein, (202) 418-1647, or by email at [email protected], Media Bureau. | |
| FR Citation | 81 FR 8843 |
2025 Federal Register | Disclaimer | Privacy Policy
USC | CFR | eCFR