The bold proposal of Press Communications (as PMCM LLC) to take television allotments from Wyoming and Nevada and move them to large television markets in the east, namely Philadelphia and New York, has been turned down by the FCC. Meanwhile, the FCC is proposing new VHF allotments for the states of Delaware and New Jersey addressing the lack of a VHF in each.
PMCM proposed to move KJWY-TV Channel 2 from Jackson WY to Wilmington DE in the Philadelphia DMA; and KVNV-TV Channel 3 from Ely NV to Middletown Township NJ in the New York DMA.
The FCC held that Press was making an overly broad interpretation of long-ago congressional action seeking, if possible, to provide VHF service to all states. Those lacking it at the time – and now – are the two states targeted by PMCM. New Jersey had one for awhile – WOR-TV Channel 9 moved from New York NY to Secaucus NJ but moved out of the VHF band up to Channel 38, as WWOR, as part of the DTV transition.
The move from New York had long been delayed, the FCC explained, by rules in place at the time that allowed competing applications to be submitted if a station attempted such a move. It was Congress’s remedying intent, back in 1982, to make it easier for willing existing licensees to move to the two states by shielding them from sudden license competitors, and the courts upheld the arrangement.
Describing what it took to be PMCM’s interpretation, the FCC wrote, “PMCM would have the Commission interpret that term broadly so as to require grant of its requests to move the facilities of its television stations approximately 2,000 miles to communities in Delaware and New Jersey without following traditional administrative procedures or permitting the filing of competing applications. In other words, it urges the Commission to consider any allocation of a channel to a state without a VHF channel as a ‘reallocation’ if the proponent currently operates a station on the same channel somewhere in the United States and agrees to terminate service on that channel and move to the unserved state to operate on the same channel there. Further, although PMCM asserts that its proposals are technically feasible, it contends that the Commission must order such ‘reallocation’ even if it is not technically feasible because the second sentence of Section 331 has no explicit technical feasibility condition.”
The FCC said that PMCM’s interpretation “would deprive the Commission of its discretion to allocate channels in the public interest, allow PMCM to determine the channel allocations in New Jersey and Delaware, and shield PMCM from competition for those channels…”
The FCC held that the issue hinged on the word “reallocation,” as opposed to an allocation, and said it believes it means that the Commission “would consider the allotment of a channel to a community as a new allocation if it is not foreclosed by any existing allocation, and as a ‘reallocation’ if the new allotment is possible only if an existing channel allocation is deleted.”
In short, the WOR move to New Jersey fit the word “reallocation” because both channels could not co-exist. That is not the case in the dual 2,000 mile moves contemplated by PMCM.
The FCC concluded, “we interpret the statute’s requirement that the Commission order the reallocation of a VHF channel upon notification of the licensee of a VHF station that it agrees to the reallocation of its channel to a community in a State with no VHF channels, to apply only where the channel could not be used simultaneously at both locations due to interference that would occur from such dual operations,” and denied the changes in city of licenses and cross-continental moves proposed by PMCM.
Meanwhile, the FCC is opening the floor to comment on two new proposed allocations which will bring VHF service to both states. In New Jersey, it is proposing to add Channel 4 Atlantic City NJ, which would be part of the Philadelphia DMA; and Channel 5 Seaford DE, which would be part of the Salisbury MD DMA. It will accept comments and reply comments 30 and 45 days, respectively, after the notice is published in the Federal Register.
RBR-TVBR observation: With such valuable licenses at stake, you can bet that PMCM will not agree with the FCC’s interpretation of the law and head to federal court. After all, PMCM didn’t request approval by the FCC, but rather notified the Commission that it was initiating an action that the FCC was legally bound to comply with.