Opinion: The FCC Made the Correct and Legal Call on KJWY/KVNV Reallocation Requests
By Trip Ericson on Friday, November 12 2010, 21:24 - Opinion - Permalink
I feel like I'm about to step foot in a hornet's nest with this post, but I feel like this is a subject worthy of some debate among the people here who might have some knowledge. I've had the discussion on a few forums and in a few e-mails, and would like to consolidate it here.
There was a recent opinion piece posted on TVNewsCheck. It is entitled Outfoxed, The FCC Changes Its Own Rules. I encourage you to read it before continuing on to my analysis and then your subsequent comments, if you wish to leave them. (Due to time constraints, I may be unable to answer comments left here, but I will try.)
Now, the important thing to note is that, as an opinion piece, it makes some assumptions. First of all, it assumes you already know what the FCC said. It's rather difficult to read if you're not used to reading either FCC documents specifically (as I am) or legal documents in general, so while reading it is a good idea, I'll try to capture the FCC's arguments as best I can. From that document, let me provide you the text of the statute to consider:
Very High Frequency Stations. It shall be the policy of the Federal Communications Commission to allocate channels for very high frequency commercial television broadcasting in a manner which ensures that not less than one such channel shall be allocated to each State, if technically feasible. In any case in which a licensee of a very high frequency commercial television broadcast station notifies the Commission to the effect that such licensee will agree to the reallocation of its channel to a community within a State in which there is allocated no very high frequency commercial television broadcast channel at the time of such notification, the Commission shall, notwithstanding any other provision of law, order such reallocation and issue a license to such licensee for that purpose pursuant to such notification for a term of not to exceed 5 years as provided in section 307(d) of this the Communications Act of 1934.
At a first read, that sounds very straightforward. But it's important to understand why the law exists and in what circumstances it has been used before, since our system of laws takes into account intent of legislators as well as precedent of past legal actions in making decisions, not simply the exact wording of the law.
It turns out the law was only used once, and was custom-written for the purpose. In the 1980s, WOR-TV in New York was in danger of losing its license. As New Jersey has historically been overshadowed by the New York and Philadelphia broadcast stations, a delegation of New Jersey politicians sought to use the situation to get New Jersey a VHF TV station. The deal was worked out that this law would be passed and then WOR-TV would "move" to Secaucus, NJ. Once the law was passed, just like that, it happened. To this day, WWOR-TV is allocated to Secaucus, New Jersey, and has the master control for WNYW, WWOR, and WUTB in New Jersey as well.
Of course, in the post-transition environment, WWOR-TV is now operating digitally on channel 38, and thus not a VHF station. Given how vacant low-VHF is in most areas and that Delaware and New Jersey are still left without VHF stations, the situation with KVNV and KJWY arose. PMCM bought the two stations and immediately after the transition, filed to relocate the stations to New York City and Philadelphia, respectively, though with cities of license in New Jersey and Delaware. The FCC rejected them and then began the process of creating the new allotments to satisfy the law.
So how did the FCC justify rejecting the notfications? This is actually pretty straightforward, and in several pieces. I'll tackle them separately.
The FCC first argued that the phrasing "if technically feasible" meant that it would have to be a mutually-exclusive allocation request. In the case of WWOR, this was clearly the case. You could not have a channel 9 in both New York and Secaucus at the same time, as there would be almost 100% signal overlap. However, to move KJWY and KVNV, no mutual exclusivity would be resolved. Moving stations more than 2,000 miles across the country in a single step would be unprecedented and was clearly outside of the intent of the law.
The second requires an understanding of FCC policies on channel allocations. For many years, a station was pretty much stuck in its community of license. If a station proposed to change its city of license, the allotment then became available to competing applicants, and the station risked a loss of license. The next-to-last section of the law covers this, basically allowing WWOR to relocate to Secaucus without risking its license in the process. That is what is meant by this section.
Not mentioned in the FCC's document was a note about WOR and how the last section of the law ("and issue a license..."). As previously noted, WOR's license was at serious risk of revocation by the FCC, and the delegation from New Jersey did not want to have the station be reallocated to New Jersey just to have its license immediately deleted anyway. Thus, this section was designed to ensure WOR would retain its license despite the issues surrounding the upcoming license renewal.
Finally, the FCC argued that the digital transmission has made the law irrelevant. In those days, being on a VHF frequency would give a station a significant advantage in terms of its ability to attract viewers, and so it is clear why a law to require VHF TV stations in all states would have been written. With the coming of the digital transition, one could argue that being on a low-VHF allotment is actually an impediment rather than a benefit. The FCC clearly points out that low-VHF is a terrible place for digital television and that very few stations would be well-served by being placed there, even in places like New Jersey and Delaware.
Looking at the precedent for the law and the intent of the lawmakers, it is very obvious that the law was not intended to cover the move of stations from rural Nevada and Wyoming into New York and Philadelphia. I think the FCC made the right decision and applied the law correctly.
One final note from me on this is to note that at least one important FCC rule would probably be violated by granting the KVNV move. The FCC has a strict rule against deleting a community's only station. While station KBNY is noted as existing in Ely, this station has never been on the air and its license should have long since expired, even if it's not reflected as such on the FCC's website. To remove the only local full-service in Ely would be in violation of the FCC's obligation to the "fair, efficient, and equitable distribution of radio service." The same is true of the move of the only full-service network affiliate in Jackson, Wyoming, since although station KBEO actually does exist and thus the rule about deleting the only local allotment would not be violated, it has spent a significant portion of its life off the air and thus would also constitute a violation of the "fair, efficient, and equitable distribution of radio service."
So what do you think?
Comments
I think it's clear that PMCM was attempting to circumvent the intent of the law in order to take two stations bought for a low price and move them into the two largest east coast markets. It also clearly illustrates the lack of integrity in the US Senate, and by Bill Bradley in particular, in crafting a law with the intent of benefiting one person or group - in this case RKO General - who was faced with losing its license due to misconduct, but instead, was able to renew the license and to sell the station, thereby avoiding the financial bath they would have taken by having the license revoked with no compensation given.
This is a very interesting situation and I thank Trip for posting not only the background context but also his opinions on it.
It does raise the collateral question about whether a VIRTUAL channel on the VHF band is still of high value. In short, can it be construed that New Jersey STILL HAS a commercial VHF facility (for all intents and purposes) in WWOR?
Since the VISIBLE ID remains on channel 9, viewers and television providers (cable and satellite companies) still perceive WWOR as channel 9 in spite of its underlying (and largely unknown to the masses) RF-38 facility.
Good analysis. I can see why the company gave it a try. The rule was clearly open to some interpretation that might allow them to do this.
If the stations hadn't been so far away the technically feasible part of the rule might have applied. If they had tried to move only one station they might also have had better luck. Even at that, I think it would have only delayed the decision.
Spot on, Trip. Also I would like to echo the comments that VHF channels shouldn't necessarily mean VHF frequencies anymore. They haven't really meant that in years because a lot of digital cable and satellite systems don't use VHF frequencies to carry VHF stations.
But apart from the FCC hurdles, wasn't one an NBC affiliate? What would NBC have to say? Or would they drop NBC programming completely?
While I must agree with you this was an obvious attempt to pull the wool over the FCC's eyes, I think maybe - considering the lack of low VHF stations and the FCC's push for stations to use the VHFlo band, I would think the smart move for the FCC would have been to appeove it in this case, and then go about changing the rules to prevent this from being attempted again.
One of the best things to come out of this is the following:
"The FCC clearly points out that low-VHF is a terrible place for digital television and that very few stations would be well-served by being placed there, even in places like New Jersey and Delaware."
So, the FCC has admitted that VHFlo is about useless for TV... even as they push for more broadcasters to use that spectrum.
To be perfectly honest, Trip... I have to disagree. I mean, I do think this law should have been repealed years ago. (during the digital transition, if not sooner) This opportunity should not have existed.
But it does exist, and PMCM deserves credit for noticing and attempting to take advantage of it.
IMHO, the wording of the law is fairly straightforward -- and requires the PMCM petitions to be granted. The law doesn't say "...if technically feasible and mutually exclusive with the licensee's existing facility.", it says simply "...if technically feasible." It <i>is</i> technically feasible to grant PMCM's petitions. The proposed facilities would not interfere with existing allotments or stations, would not suffer prohibited interference <u>from</u> existing allotments or stations, and would provide a "principal community" signal across the proposed cities. I'm not 100% certain that transmission sites exist where these stations could be built that would meet technical criteria, but I'd be <u>VERY</u> surprised if they didn't.
IMHO that's the definition of "technically feasible".
PMCM spent a fair amount of money on this - buying the stations, and paying lawyers to prepare the petitions and applications. I'm sure they regarded it as a gamble from the beginning. Congress screwed up; (in failing to repeal this bill once it accomplished its intended purpose) PMCM shouldn't be paying for Congress' mistake.
WRT deleting Ely's only operating station, to my knowledge that's not what the policy is. It's that you can't delete the only <u>allotment</u>. Operating or not, KBNY still holds a valid CP and their channel allotment still exists. I don't think that's an impediment to moving KVNV.
Quoting Ryan N2RJ:
<i>...wasn't one an NBC affiliate? What would NBC have to say? Or would they drop NBC programming completely?</i>
I would presume the NBC contract would be canceled. (but maybe NBC made the same mistake & assumed no affiliate would ever be able to <u>move</u> into the territory of another affiliate?)
First off, Doug, I respect your opinion, and definitely understand where you are coming from on this. But just because the wording of the law may seem clear does not mean the application is. I definitely agree the law should have been repealed; in fact, the law never should have been passed in the first place.
At one point during my time at UVA, I took a law class with a former corporate attorney as my professor, and in my final semester will be taking a second class with the same professor. And if there's one thing Professor Wheeler beat into our heads above all else, it's that the civil law system in this country is based on the English system and thus civil law is never as clear cut as it looks.
The criminal law system is very straightforward. It follows strict rules in terms of punishments based on the law as noted on the books. A law like this that was a criminal prosecution would follow accordingly.
But civil law code is much more complex, because of its dependence on precedent and intent. The example from the class that sticks out in my mind is one of a woman whose husband was in the military. Some loon sent her a letter stating he was dead, and then later sent her a package containing a body part (I can't remember if it was a finger or what). As I recall, there was no criminal law violated, and she sued him in a civil court case. There was no civil law spelling out a violation here either, but the judge determined that the legislature did not intend for someone to be allowed to do this, and that it was plainly wrong and inconsistent with what would generally be considered acceptable. As a result, he allowed the woman to win the suit. This case is now a precedent for similar cases which can be ruled the same way simply by pointing at it and saying "precedent."
As a result, looking at this law by itself without the previous usage of the law or intent of the lawmakers involved would go against more than 200 years of legal practice in the United States. And in my eyes, it's plainly obvious that actions like those proposed by PMCM are in direct contradiction of both the only previous application of the law and the intent of the lawmakers.
The short version: I stand by my original opinion. =)
If you've taken a course in the law then you've got a leg up on me in this regard.. as I'm afraid the all too common acronym "IANAL" most certainly applies to me!
I guess I would ask (and keep IANAL in mind!) whether what happened with WOR establishes a *negative* precedent, or only a *positive* one?
In the case you cited, precedent was established for ruling that someone who attempts to falsely convince another person that a loved one is dead, is liable for civil damages. I might call that a "positive precedent", in that it establishes precedent for something other courts *can* (|should|must) do.
It would seem to me the case in question would *not* set "negative precedent". It would not mean that a future civil court would be prevented from finding for someone who, for example, received an email (falsely) purporting to be from their granddaughter & claiming to be in prison in Mexico & in need of bail money.
It establishes that civil liability *does* exist in one situation, but doesn't necessarily establish that it *doesn't* exist in situations that are different.
Is that not a reasonable reading of the law?
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Are we sure the intent of *all* of Congress was solely to save the WOR-TV license? Obviously, it was the intent of certain members of Congress. It took 51 Senators and 218 Representatives to pass this legislation. I would suggest some of them had other intent. Even Sen. Bradley - did he support this bill to be nice to WOR -- or did he do it to earn "brownie points" with New Jersey constituents who wanted a TV station to address their concerns?
I suppose the point I'm trying to make is, while some Congresspeople were simply trying to save WOR-TV's license, others were trying to provide additional broadcast service to areas not currently receiving it. (whether this legislation was the right way, or even an effective way, of doing it is of course subject to debate!)
And the FCC has provided plenty of precedent to suggest that the definition of "providing broadcast service" means to provide a strong signal and a public file. (now *there's* a place where the law doesn't coincide with the impressions of the public!)
The PMCM stations would, by the definition established by current precedent, provide additional broadcast service to New Jersey and Delaware.
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Anyway...
Obviously, what I have to say on the subject is unimportant if the FCC (and if PMCM asks, the courts) feel otherwise!
Trip, if you have legal training you've got more info on this subject than I do. The recent FCC has changed directions more often than a squirrel trying to cross Interstate 40; I'm certainly not surprised by their ruling here.
I'm just not at all convinced the ruling was fair, either to PMCM or the citizens of the states involved.