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In the Matter of: ) ) Advanced Television Services and ) MB Docket No. 87-268 Their Impact upon the Existing ) Television Broadcast Service )

Directed to: The Commission

PETITION FOR RECONSIDERATION

Pappas Telecasting ofAmerica, a California Limited Partnership ("Pappas") and South

Central Communications Corporation ("SCCC") (collectively, the "Owensboro Petitioners"), by their attorneys, hereby respectfully submit their Petition for Reconsideration with regard to a portion ofthe Commission's Seventh Report and Order and Eighth Further Notice ofProposed

Rule Making in the above-captioned proceeding, FCC 07-138, released August 6, 2007("Seventh

R&D"). With respect thereto, the following is stated:

1. Pappas and SCCC have pending applications for construction permit for a new NTSC

television station to operate on Channel 48 at Owensboro, Kentucky (File Nos. BPCT-

19960722KL and BPCT-19960920IV, respectively) and also are parties to a settlement

agreement which contemplates the grant ofthe Pappas application and dismissal ofthe SCCC

application. Their "Joint Request for Approval ofSettlement Agreement" was submitted to the

Commission on January 28, 1998. Since that time, the Owensboro Petitioners have made every

effort to obtain approval oftheir proposal.

2. On January 19,2007, the Owensboro Petitioners filed Comments in the instant

proceeding. In those Comments, the Owensboro Petitioners recognized that at this time, it is 2 generally not possible to seek an alternate channel due to the Commission's freeze on the filing ofrule making petitions which propose changes in the television or DTV Table ofAllotments.

Public Notice, "Freeze on the Filing ofCertain TV and DTVRequests for Allotment or Service

Area Changes, " DA 04-2446, released August 3, 2004. The Owensboro Petitioners also noted, however, that without a change in channel, it appears that it would be impossible for the Pappas application to be granted, in that the channel allotted to Owensboro at the time that the application was filed has been reallotted for use as a digital television ("DTV") companion channel at Bowling Green, Kentucky. The Owensboro Petitioners demonstrated, however, that a viable replacement channel, namely DTV Channel 35, is available and could be used. They further submitted that the Commission could act on its own motion to modifY the Owensboro allotment in the same way that it has awarded Tentative Channel Designations ("TCD's") to new permittees. Thus, even ifthe Commission's policies continue to preclude applicants from filing petitions or participating directly in the channel election process, the Commission could itself act to modifY the channel allotment in order to allow for a grant ofa construction permit for a new station.

3. The Seventh R & 0 did not directly address the Owensboro Petitioners' arguments.

Instead, the Commission reiterated that only licensees and permittees are eligible to participate in the channel election process. It further stated that it has assigned TCD's to new permittees whose applications were only recently granted and that it will continue to accommodate new permittees with applications granted prior to the end ofthe DTV transition. Neither ofthese statements is responsive to the Catch-22 situation in which the Owensboro Petitioners find themselves. Here, the Owensboro Petitioners cannot participate in the channel election process 3 because no construction permit has yet been granted, and no construction permit can be granted until the channel specified is modified. This situation is made the more surrealistic by the fact that a viable replacement channel exists which could cut through this problem and allow for the

Commission to grant a construction permit for a first local commercial television station at

Owensboro.

4. The equities clearly favor Commission action to change the channel at Owensboro to

allow for grant ofthe long-pending application. It must be remembered that the need for a

change in channel arose only because ofthe Commission's own decision to reallot the channel

and was not due to anything done or left undone by the Owensboro Petitioners. Rather, the

Owensboro Petitioners, and Pappas in particular as the proposed permittee, have followed the

express invitations and directions ofthe Commission throughout the more than 11 years that they

have been seeking to bring new television service to Owensboro. Nevertheless, they have been

thwarted at every tum by numerous changes in direction as the Commission's DTV transition

policy evolved.

5. This odyssey began when the Owensboro Petitioners each applied for the allocated

analog channel 48 at Owensboro. These applications were timely filed and were in accordance

with the Commission's rules and policies, which specifically provided for the filing of

applications for construction permits for new television stations on allotted channels up until a

date certain. Sixth Further Notice o/Proposed Rule Making, FCC 96-317, released August 14,

1996. Moreover, following the filing ofthe applications, the Commission specifically stated in

its Sixth Report and Order in this proceeding, FCC 97-115, released April 21, 1997, that it would

"maintain and protect those vacant NTSC allotments that are the subject ofpending applications 4 and will avoid creating DTV allotments that would conflict with proposed new NTSC allotments." Jd. at 'i[112. The stated rationale for this decision was to "ensure that parties who have already begun to invest in new stations...may continue to pursue their ongoing station development projects." Jd. Nonetheless, at the same time, channel 48 was allocated as the DTV companion channel for WKGB-TV, Bowling Green, Kentucky, thereby making that channel essentially unusable at Owensboro.

6. Accordingly, pursuant to the Commission's Public Notice, 14 FCC Rcd 19559 (1999),

Pappas joined with SCCC in filing a petition for rule making to substitute channel 47 for 48.

Channel 47 then became unavailable due to a DTV maximization application, and the petition for rule making was amended to specify Channel 57, only to have that channel reallocated pursuant to the FCC's lower 700 MHz proceeding.

7. Thereafter, pursuant to the FCC's Public Notice, DA 01-270, reI. February 6,2002, a further petition for rule making to substitute DTV channel 54 was filed. That Public Notice invited applicants in the position ofthe Owensboro Petitioners to seek to substitute either in-core analog or out-of-core DTV channels for their existing channels. Only after the Owensboro

Petitioners responded to that invitation and filed their petition to substitute DTV channel 54, was the determination made that such pending petitions would not be granted. Second Periodic

Review ofthe Commission's Rules and Policies Affecting the Conversion to Digital Television,

FCC 04-192, released September 7, 2004. In sum, from the beginning, Pappas and SCCC have responded to Commission directions and followed announced Commission procedures, only to have their adjustments rendered unavailing due to further changes subsequently made by later

Commission actions. The Owensboro Petitioners understand that these reversals resulted from 5 larger decisions concerning DTV implementation and other policy issues and did not result from any particular animus toward them. Nevertheless, these twists and turns were beyond the control ofand could not reasonably have been anticipated by the Owensboro Petitioners.

8. As noted above, the Owensboro Petitioners have located a new substitute channel, as set forth in the Engineering Statement submitted with their Comments in this proceeding, and have filed a Petition for Rule Making, accompanied by a request for waiver ofthe filing freeze. 1

A copy ofthat Engineering Statement as previously filed is attached hereto for convenience.

Modification ofthe Owensboro allotment to specify this allotment clearly would serve the public interest by allowing a new station to be authorized and built to provide first local commercial television service. The Commission has indicated that it continues to value such new service as it has continued to grant applications and to provide TCD's for new pennittees. The

Commission also has thus clearly recognized the substantial amount oftime and resources invested by such applicants over the last decade in their attempts to bring new service to the public by its action in providing such channels for post-transition operation. Likewise, just as the

Commission has undertaken engineering analysis to determine and allot the best available TCD for new permittees, the Commission can and should modify the allotment for Owensboro to

specify DTV Channel 35 instead ofanalog Channel 48, whether on its own motion or by granting the requested waiver ofthe filing freeze on petitions for rule making, so that the long-pending

While current analog facilities are not considered, as a practical matter, by the time that the steps ofallotting the requested channel, then processing and granting the application, followed by construction ofthe authorized facility could take place, the DTV transition necessarily nearing or beyond its end. At this point, less than 16 months remain until the transition deadline. Pappas has previously indicated its willingness to accept a construction permit which specifies that operation ofthe new Owensboro station would not commence until after the February 17,2009, transition deadline. 6 application may be granted. With the release ofthe Seventh R & 0, the DTV Table of

Allotments is now essentially set, and it only makes sense to move forward at this time to provide an available channel to allow completion ofthe long-delayed application processing and institution ofnew DTV service upon transition.

9. This conclusion is especially warranted for applicants such as Owensboro Petitioners, which are involved in a universal settlement agreement reached and timely filed during the statutory settlement period established by the Balanced Budget Act of 1997, and thus are entitled to special consideration pursuant to Section 309(1) ofthe Communications Act of 1934, as amended, which directs the Commission to "waive any provisions ofits regulations necessary" to permit settlements among mutually exclusive broadcast applicants to go forward. 47 U.S.c.

§309(1) (emphasis added).

10. Moreover, the number ofsimilarly situated other applicants that might also request such reliefis quite small at this point, and the transition from analog to digital television which has created the situation at hand is a once-in-a-lifetime event, ifthat. Indeed, the Commission's

Seventh R & 0 reference to comments filed by applicants for new facilities lists applicants for facilities in only five communities. Thus, it appears that the number ofsimilarly situated applicants has shrunk to a mere handful, and that number may be limited further ifonly those applicants which entered into universal settlements in 1998 are considered. Therefore, weighing the small amount ofpotential disruption to the Commission's processes against the substantial public interest benefits that would result from moving forward with making the necessary channel change in order to allow grant ofthe Pappas application, it is clear that the equities and public interest favor reconsideration to allow a channel substitution at Owensboro at this time. 7

WHEREFORE, the premises considered, the Owensboro Petitioners hereby respectfully request that the Commission reconsider the Seventh R & 0 as set forth herein either to propose substitution ofDTV Channel 35 at Owensboro or to waive the filing freeze to allow the petition for rule making to substitute DTV Channel 35 for analog Channel 48 to be processed and granted.

Respectfully submitted,

PAPPAS TELECASTING OF AMERICA, A CALIFORNIA LIMITED PARTNERSHIP

FLETCHER, HEALD & HILDRETH, P.L.C. 1300 N. 17th Street BY:t~~~ Eleventh Floor Arlington, Virginia 22209 Vincent J. Curtis, Jr. (703) 812-0400 Anne Goodwin Crump

Its Attorneys

SOUTH CENT MMUNICATIONS ~,.. ~~TION :!.:/~ ...... J'. , FLETCHER, HEALD & HILDRETH, P.L.C. ~ 1300 N. 17th Street BY~/fr(l ~~ Eleventh Floor i'. Edward S. O'Neill .1' A' Arlington, Virginia 22209 t'" (703) 812-0400 l 4' Its Attorney ,(' October 26, 2007 /1' Attachment 1 KHANNA & GUILL, Inc. – Consulting Engineers

ENGINEERING STATEMENT RE: PETITION FOR RULE MAKING TO SUBSTITUTE DTV CHANNEL 35 FOR ANALOG TV CHANNEL 48 AT OWENSBORO, KENTUCKY SEPTEMBER 2006

1 KHANNA & GUILL, Inc. – Consulting Engineers

This engineering statement has been prepared on behalf of Pappas Telecasting of

America, a California Limited Partnership (“Pappas”) and South Central

Communications Corporation (“SCCC”), applicants for a new television station at

Owensboro, Kentucky in support of their request to substitute digital television (DTV)

Channel 35 for the allotted analog TV Channel 48.

Pappas and SCCC each filed application (BPCT-19960672KL, Facility ID No.

82794 and BPCT-19960929IV, Facility ID No. 83924) in 1996 for a construction permit to build a new analog TV station on Channel 48 (674-680 MHz) at Owensboro,

Kentucky. A settlement agreement proposing the grant of the Pappas application was subsequently reached. Analog TV Channel 48 was allotted to Owensboro, Kentucky in

Section 73.606 of the Commission’s rules. However, due to a conflict with the DTV

Channel 48 allotment at Bowling Green, Kentucky for station WKGB-TV, analog TV

Channel 48 could not be used at Owensboro, Kentucky. Therefore, Pappas and SCCC proposed Channel 54 (710-716 MHz) (BPRM-20000717ADR, Facility ID No. 127422) in lieu of Channel 48 and to operate the new television station as a digital TV station at

Owensboro, Kentucky. The Commission has designated Channels 2-51 as the core spectrum for all digital TV stations. Therefore, the new digital TV station at Owensboro,

Kentucky must relocate its operation within Channels 2-51.

A TV allocation study has been conducted according to Section 73.623(d) of the

Commission’s rules to determine a suitable DTV channel which can be substituted for the analog TV Channel 48 (or the previously proposed DTV Channel 54) for operation at

Owensboro, Kentucky. The attached map shows (Figure 1) the minimum separation arcs from pertinent TV stations operating on DTV Channels 34-36 for the proposed DTV

2 KHANNA & GUILL, Inc. – Consulting Engineers

Channel 35 operation near Owensboro. Since Pappas is proposing to operate the new

DTV station after the cessation of analog TV service, the minimum separation arcs from

the analog TV stations are not shown on the map. Figure 1 indicates there is a large area

near Owensboro where an antenna site for DTV Channel 35 can be located to meet the

minimum separation distances to other pertinent DTV stations. For illustrative purposes,

an antenna site has been selected within the fully-spaced area for DTV Channel 35 operation. The geographic coordinates of this reference site are as follows:

North Latitude: 37° 46’ 26” West Longitude: 87° 06’ 48”

This reference site (center of Owensboro, KY) is also shown on Figure 1. The attached Table I shows actual and required distances from the proposed DTV Channel 35 reference site. Table I indicates the reference site complies with the minimum distance requirements of Section 73.623(d) of the Commission’s Rules with respect to all other

DTV stations and allotments. Since Pappas plans to operate DTV Channel 35 at

Owensboro, Kentucky after the cessation of analog TV service, it is believed compliance of minimum distance requirements to the analog TV stations is not pertinent.

The attached map (Figure 2) shows the computed City Grade (48 dBu) contour for DTV Channel 35 based on the maximum facilities (1000 kW effective radiated power

(ERP) and 365 meters antenna height above average terrain or equivalent (HAAT)) as specified in Section 73.622(f) of the Commission’s rules for a new DTV allotment on

Channels 14-51 created subsequent to the initial DTV Table of Allotments. Figure 2 indicates the DTV Channel 35 computed City Grade (48 dBu) from the reference site would serve all of Owensboro, Kentucky, the station’s community of license. Therefore

3 KHANNA & GUILL, Inc. – Consulting Engineers

the proposed allotment of DTV Channel 35 to Owensboro would comply with Section

73.625(a) of the Commission’s rules.

An electromagnetic interference study conducted according to FCC OET Bulletin

69 also indicates it is feasible to operate DTV Channel 35 at Owensboro, Kentucky by using less than maximum facilities and/or a directional TV antenna. For example, if

DTV Channel 35 ERP is limited to approximately 200 kW at 365 meters HAAT by using a directional TV antenna in the direction of adjacent channel DTV operation of WSIL-

DT, Channel 34, Harrisburg, Illinois, it would not cause any interference to that station.

The attached map (Figure 3) shows the computed noise limited coverage contour for the proposed DTV Channel 35 based on maximum ERP and HAAT. It is estimated the proposed DTV Channel 35 operation would serve 924,115 people (2000 US Census) and 33,385 square km area.

The DTV channels tentatively allotted by the Commission to all TV stations under Rounds 1, 2 and 3 have been reviewed to determine any impact on the

Commission’s DTV Channel election process. The attached Table II shows the tentatively designated DTV Channels 34-36 for all TV stations located within 475 km from Owensboro, Kentucky. Table II indicates the proposed DTV Channel 35 operation at Owensboro would not be in conflict with the tentatively designated DTV channels.

Therefore, Pappas and SCCC request the Commission to substitute DTV Channel

35 for analog TV Channel 48 at Owensboro, Kentucky since it complies with the

Commission’s rules and also is in the Public Interest as it would result in new TV service to more than 920,000 people and 33,380 square km area.

4 KHANNA & GUILL, Inc. – Consulting Engineers

TABLE I DTV ALLOCATION SITUATION FOR THE PROPOSED DTV CHANNEL 35 OPERATION AT OWENSBORO, KENTUCKY SEPTEMBER 2006

Channel Station City/State Distance1 Actual Required km km

34 WSIL-TV Harrisburg, IL 156.1 (20-110)

34 WCET Cincinnati, OH 271.4 (20-110)

35 KSDK St. Louisville, MO 295.5 223.7

35 WLWT Cincinnati, OH 271.4 196.3

35 WTVC Chattanooga, TN 331.6 223.7

36 WTWO Terre Haute, IN 164.8 (20-110)

36 WKMU Murray, KY 174.2 (20-110)

36 WNPX Cookeville, IN 169.5 (20-110)

1 Distance from the reference coordinates (center of Owensboro, KY)

5 KHANNA & GUILL, Inc. – Consulting Engineers

TABLE II TENTATIVE DTV CHANNEL 34-36 DESIGNATIONS FOR TV STATIONS LOCATED WITHIN 475 KM FROM THE PROPOSED DTV CHANNEL 35 REFERENCE SITE AT OWENSBORO, KENTUCKY SEPTEMBER 2006

Channel Station City/State Distance2 Actual Required km km

34 WSIL-TV Harrisburg, IL 156.1 (20-110)

34 WCET Cincinnati, OH 271.4 (20-110)

34 WQEC Quincy, IL 438.7 (20-110)

34 WNIT South Bend, IN 433.8 (20-110)

34 WTNZ Knoxville, TN 344.2 (20-110)

35 KSDK St. Louisville, MO 295.5 223.7

35 WLWT Cincinnati, OH 271.4 196.3

35 WTVC Chattanooga, TN 331.6 223.7

35 WCBI-TV Columbus, MS 473.9 223.7

36 WTWO Terre Haute, IN 164.8 (20-110)

36 WKMU Murray, KY 174.2 (20-110)

36 WNPX Cookeville, IN 169.5 (20-110)

36 WMAV-TV Oxford, MS 451.6 (20-110)

36 WTTE Columbus, OH 428.8 (20-110)

36 WFFT-TV Wayne, IN 405.5 (20-110)

36 WJYS Hammond, IN 423.5 (20-110)

2 Distance from the reference coordinates (center of Owensboro, KY)

6 Washington

Orange

KHANNA & GUILL, Inc. - Consulting Engineers Wayne Wabash SEPTEMBER 2006 Edwards Pike Jasper Dubois

Gibson 110 KM FROM WTWO-DT CH. 36 Crawford N

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Valle Warrick Hamilton White 196.3 KMPerry FROM WLWT. CH. 35 223.7 KM FROM KSDK-DT CH. 35 Posey Vanderburgh Spencer Meade Evansville

Henderson ReferenceReference SiteSite Hancock Radcl Henderson Breckinridge Saline Gallatin Owensboro Daviess Eliz Union L-D.CL-D.C 110 KM FROM WSIL-DT CH. 34

McLean Hardin Webster AREA WHERE DTV CHANNEL 35 ANTENNA SITE CAN BE LOCATED Ohio Grayson Pope WB Crittenden Madisonville Hopkins 110 KM FROM WNPX-DT CH. 36 FIGURE 1 Massac Livingston Muhlenberg Butler Edmonson 110 KM FROM WKMU-DT CH 36 Scale 1:900,000 Caldwell km V-Soft0102030 Communications LLC ® © Paducah

DTV LyonALLOCATION SITUATION FOR THE PROPOSED CHANNEL 35 OPERATION AT OWENSBORO, KENTUCKY BowlingWarren Green Gla

Christian Springfield Dayton

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Columbus Bloomington Cincinnati n

ouis CITY GRADE (48 dBu) CONTOUR

Louisville Frankfort Lexington-Fayette Evansville Henderson Carbondale Owensboro

Cape Girardeau

Paducah Bowling Green Hopkinsville

FIGURE 2

Hendersonville COMPUTED CITY GRADE CONTOUR FOR THE PROPOSED DTV CHANNEL 35 OPERATION AT OWENSBORO, KENTUCKY Cookeville

Knoxvil Franklin Springfield Dayton

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Columbus Bloomington Cincinnati n

ouis COVERAGE (41 dBu) CONTOUR

Louisville Frankfort Lexington-Fayette Evansville Henderson ReferenceReference SiteSite Carbondale Owensboro

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Paducah Bowling Green Hopkinsville FIGURE 3

Hendersonville COMPUTED NOISE LIMITED COVERAGE CONTOUR FOR THE PROPOSED DTV CHANNEL 35 OPERATION AT OWENSBORO, KENTUCKY Cookeville

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