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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) MM Docket No. 98-175 Amendment of Section 73.606(b), ) RM-9364 Table of Allotments, Television ) Broadcast Stations and ) Section 73.622(b), Table of Allotments,) Digital Television Broadcast Stations) (Buffalo, New York). ) ) NOTICE OF PROPOSED RULE MAKING Adopted: September 21, 1998 Released: September 25, 1998 Comment Date: November 16, 1998 Reply Comment Date: December 1, 1998 By the Chief, Allocations Branch: 1. The Commission has before it a petition for rule making filed by Western New York Public Broadcasting Association ("petitioner"), licensee of Stations WNED-TV, Channel 17, and WNEQ-TV, Channel *23, Buffalo, New York, requesting amendment of the Television Table of Allotments to reflect Channel *17 as reserved for non-commercial educational use, and Channel 23 as nonreserved. Petitioner also requests that the DTV Table of Allotments for Buffalo be amended to reflect a similar change for Channel 17's companion DTV channel, Channel 43 and Channel *23's companion DTV channel, Channel *32. 2. In support of its proposal, petitioner states that as a result of the proposed changes, petitioner will be able to provide an enhanced operation at its primary and 40-year-old public television Station WNED- TV on reserved Channel *17. Petitioner states that it intends to sell its Station WNEQ-TV on an unreserved Channel 23 to a commercial entrepreneur and dedicate the proceeds of the assignment of license of that station to a trust for the maintenance and improvement of Station WNED-TV. Petitioner states that its Board of Trustees have voted in favor of a proposal to commence the negotiating process to determine an appropriate assignee for Station WNEQ-TV. 3. Petitioner claims that since WNED-TV on Channel 17 is the station in the Buffalo viewing area that most viewers and members recognize as the "mainstay" of public television broadcasting, it should be retained on reserved Channel 17. Furthermore, Station WNED-TV is long-established, is the more powerful of the two stations, has a more extensive signal reach, and is technically more advanced. In addition, petitioner notes that continuation of effective operations on Station WNEQ Channel 23 has been an expensive and unproductive enterprise. Funds and resources have been drained from Station WNED-TV and it has been difficult to program Station WNEQ-TV, Channel 23 on any extended hourly basis. Because of cost constraints, Station WNEQ Channel 23 operates only eight hours a day. It has been utilized primarily for certain programming which would not normally appeal to most of the viewing audience for Station WNED-TV. Petitioner also states that it expects the cost of digital conversion for both stations to be prohibitive, and that converting two stations yielding eight channels makes neither economic nor programming sense. 4. Petitioner states that retention of Station WNED-TV on a reserved channel is in the public interest because the endowment fund it will create from the sale of Station WNEQ-TV on Channel 23 will raise Station WNED-TV to the position of a major television producer, and enable it to acquire additional programs. The additional funding will also allow Station WNED-TV to include enriched educational community outreach services. In addition, petitioner states that the endowment fund will defray the costs associated with converting Station WNED-TV to digital broadcast service by 2003. Following digital conversion, petitioner states that Station WNED-TV will be increased from one channel to four and special receivers will enable viewers to select from among a menu of programs it broadcasts. Petitioner states that it enjoys state-of-the-art production facilities, and, through its endowment fund, programming on Station WNED-TV may be marketed through diverse broadcast and non-broadcast sources. 5. We believe petitioner's proposal warrants consideration, and we will solicit comments on the proposal. This proposal does not propose to remove or add any channel, nor would it alter the total number of channels in Buffalo which are reserved for non-commercial educational use. No technical changes are involved in this exchange of channel reservation. Petitioner's proposal merely would change the reservation for non-commercial educational use from one channel to another, both in the Television Table of Allotments and in the DTV Table of Allotments The exchange therefore, can be made at each station's current site. 6. The Commission believes it would serve the public interest to solicit comments on the proposal to dereserve Channel *23 at Buffalo, New York, and to reserve Channel 17 for non-commercial use at Buffalo. Therefore, we will seek comment on the proposed amendment to the Television Table of Allotments, Section 73.606(b) of the Commission's Rules, with respect to Buffalo, as follows: Channel No. Community Present Proposed Buffalo, New York 2, 4, 7, 1 2, 4, 7, *17 *23, 29, 49 23, 29, 49 7. We also seek comment on the proposed amendment to the DTV Table of Allotments, Section 73.622(b), of the Commission's Rules with respect to Buffalo, as follows: Channel No. Community Present Proposed Buffalo, New York 14, *32, 33 14, 32, 33, 34 34, 38, 39, 43 38, 39, *43 8. The Commission's authority to institute rule making proceedings, showings required, cut-off procedures, and filing requirements are contained in the attached Appendix and are incorporated by reference herein. In particular, we note that a showing of continuing interest is required by paragraph 2 of the Appendix before a channel will be allotted. 9. Interested parties may file comments on or before November 16, 1998, and reply comments on or before December 1, 1998, and are advised to read the Appendix for the proper procedures. Comments should be filed with the Secretary, Federal Communications Commission, Washington, D. C., 20554. Additionally, a copy of such comments should be served on the petitioner's counsel, as follows: Robert A. Woods Schwartz, Woods and Miller 1350 Connecticut Avenue, N.W. Suite 300 Washington, D.C. 20036-1717 10. The Commission has determined that the relevant provisions of the Regulatory Flexibility Act of 1980 do not apply to rule making proceedings to amend the FM Table of Allotments, Section 73.202(b) of the Commission's Rules. See Certification that Sections 603 and 604 of the Regulatory Flexibility Act Do Not Apply to Rule Making to Amend Sections 73.202(b), 73.504 and 73.606(b) of the Commission's Rules, 46 FR 11549, February 9, 1981. 11. For further information concerning this proceeding contact Victoria M. McCauley, Mass Media Bureau, (202) 418-2180. For purposes of this restricted notice and comment rule making proceeding, members of the public are advised that no ex parte presentations are permitted from the time the Commission adopts a Notice of Proposed Rule Making until the proceeding has been decided and such decision is no longer subject to reconsideration by the commission or review by any court. An ex parte presentation is not prohibited if specifically requested by the Commission or staff for the clarification or adduction of evidence or resolution of issues in the proceeding. However, any new written information elicited from such a request or a summary of any new oral information shall be served by the person making the presentation upon other parties to the proceeding unless the Commission specifically waives this service requirement. Any comment which has not been served on the petitioner constitutes an ex parte presentation and shall not be considered in the proceeding. Any reply comment which has not been served on the person(s) who filed the comment, to which the reply is directed, constitutes an ex parte presentation and shall not be considered in this proceeding. FEDERAL COMMUNICATIONS COMMISSION John A. Karousos Chief, Allocations Branch Policy and Rules Division Mass Media Bureau APPENDIX 1.Pursuant to authority found in Sections 4(i), 5(c)(1), 303(g) and (r) and 307(b) of the Communications Act of 1934, as amended, and Sections 0.61, 0.204.(b) and 0.283 of the Commission's Rules, IT IS PROPOSED TO AMEND the TV Table of Allotments, Section 73.606(b) of the Commission's Rules and Regulations, and the DTV Table of Allotments, Section 73.622(b) of the Commission's Rules and Regulations, as set forth in the Notice of Proposed Rule Making to which this Appendix is attached. 2. Showings Required. Comments are invited on the proposal(s) discussed in the Notice of Proposed Rule Making to which this Appendix is attached. Proponent(s) will be expected to answer whatever questions are presented in initial comments. The proponent of a proposed allotment is also expected to file comments even if it only resubmits or incorporates by reference its former pleadings. It should also restate its present intention to apply for the channel if it is allotted and, if authorized, to build a station promptly. Failure to file may lead to denial of the request. 3. Cut-off Procedures. The following procedures will govern the consideration of filings in this proceeding. (a) Counterproposals advanced in this proceeding itself will be considered if advanced in initial comments, so that parties may comment on them in reply comments. They will not be considered if advanced in reply comments. (See Section 1.420(d) of the Commission's Rules). (b) With respect to petitions for rule making which conflict with the proposal(s) in this Notice, they will be considered as comments in the proceeding, and Public Notice to this effect will be given as long as they are filed before the date for filing initial comments herein. If they are filed later than that, they will not be considered in connection with the decision in this docket. (c) The filing of a counterproposal may lead the Commission to allot a different channel than was requested for any of the communities involved. 4. Comments and Reply Comments; Service. Pursuant to applicable procedures set out in Sections 1.415 and 1.420 of the Commission's Rules and Regulations, interested parties may file comments and reply comments on or before the dates set forth in the Notice of Proposed Rule Making to which this Appendix is attached. All submissions by parties to this proceeding or by persons acting on behalf of such parties, must be made in written comments reply comments, or other appropriate pleadings. Comments shall be served on the petitioner by the person filing the comments. Reply comments shall be served on the person(s) who filed comments to which the reply is directed. such comments and reply comments shall be accompanied by a certificate of service. (See Section 1.420(a), (b) and (c) of the Commission's Rules.) Comments should be filed with the Secretary, Federal Communications Commission, Washington, D, C. 20554. 5. Number of Copies. In accordance with the provisions of Section 1.420 of the Commission's Rules and Regulations, an original and four copies of all comments, reply comments, pleadings, briefs, or other documents shall be furnished the Commission. 6. Public Inspection of Filings. All filings made in this proceeding will be available for examination by interested parties during regular business hours in the Commission's Pubic Reference Room at its headquarters, 1919 M Street, N.W., Washington, D. C.