1 WASHINGTON, D.C. 20554 in the Matter of ) ) KCPM(DT), Grand Forks, North Dakota ) Facility Id. No. 86208 Applications for Rene

BEFORE THE FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554

In the Matter of ) ) KCPM(DT), Grand Forks, North Dakota ) Facility Id. No. 86208 Applications for Renewal and ) Assignment of License ) ) File Nos. BRCDT-20140401AOQ and ) BALCDT-20180209ABJ )

To: Secretary Attn: Chief, Video Division, Media Bureau

MOTION FOR LEAVE TO REPLY TO “COMMENTS OF GRAY TELEVISION LICENSEE, LLC”

Parker Broadcasting of Dakota License, LLC d/b/a Major Market Broadcasting

(“MMB”), by counsel, hereby moves for leave to file a reply to the “Comments” submitted by

Gray Television Licensee, LLC (“Gray”) directed to the Petition for Reconsideration filed by

G.I.G. of North Dakota, LLC (“GIG”) on April 17, 2020.

Gray and its distinguished counsel surely are aware that the Commission’s rules for

reconsideration of an action in a non-rulemaking proceeding do not provide for “comments”.1

The Comments submitted by Gray in substance are a petition for reconsideration of the Video

Division’s March 9, 2020 letter dismissing the applications to renew and assign the license of

KCPM(DT), Grand Forks, North Dakota (FCC Facility ID No. 86208) to Gray and cancelling the license of KCPM(DT).2 Gray left MMB without an opportunity to respond because the

1 See 47 C.F.R. § 1.106.

2 Letter from Barbara A. Kreisman, Chief, Video Division, FCC Media Bureau, to G.I.G. of North Dakota, LLC (March 9, 2020). {01421059-2 } 1

petition/Comments were filed a few hours after MMB’s Opposition and on the deadline for oppositions to petitions for reconsideration rather than by the deadline for petitions. Therefore, unless Gray’s Comments are dismissed (as they should be), it is only reasonable that MMB be afforded an opportunity to respond now.

Accordingly, Petitioner hereby requests leave to submit the accompanying Reply.

April 24, 2020 Respectfully submitted,

PARKER BROADCASTING OF DAKOTA LICENSE, LLC D/B/A MAJOR MARKET BROADCASTING

By: ______/s/______

Davina S. Sashkin, Esq. Fletcher, Heald & Hildreth, PLC 1300 North 17th Street, 11th Floor Arlington, VA 22209 703-812-0458 [email protected]

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CERTIFICATE OF SERVICE

I, Davina Sashkin, a member attorney of the law firm of Fletcher, Heald & Hildreth, PLC, hereby state that copies of this MOTION FOR LEAVE TO REPLY TO “COMMENTS” were sent via electronic mail this 24th day of April, 2020, to the following:

Barbara Kreisman, Chief Robert J. Folliard, III Video Division, Media Bureau Gray Television Licensee, LLC Federal Communications Commission 43 70 Peachtree Road, NE 445 12th Street, SW Atlanta, GA 30319 Washington, DC 20554 [email protected] [email protected] Robert McDowell David Brown, Deputy Division Chief John Feore Video Division, Media Bureau Henry Wendel Federal Communications Commission Cooley LLP 445 12th Street, SW 1299 Pennsylvania Ave., NW, Suite 700 Washington, DC 20554 Washington, DC 20004 [email protected] [email protected] [email protected] Tyler Bridegan [email protected] Video Division, Media Bureau Counsel to Gray Television Licensee, LLC Federal Communications Commission 445 12th Street, SW Washington, DC 20554 [email protected]

Aaron Shainis, Esq. Shainis and Peltzman 1850 M Street, NW Suite 240 Washington, DC 20036 [email protected] Counsel to G.I.G of North Dakota, LLC

______/s/______Davina Sashkin

{01421059-2 }

BEFORE THE FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554

In the Matter of ) ) KCPM(DT), Grand Forks, North Dakota ) Facility Id. No. 86208 Applications for Renewal and ) Assignment of License ) ) File Nos. BRCDT-20140401AOQ and ) BALCDT-20180209ABJ )

To: Secretary Attn: Chief, Video Division, Media Bureau

REPLY TO COMMENTS

Parker Broadcasting of Dakota License, LLC d/b/a Major Market Broadcasting

(“MMB”), by counsel and pursuant to the concurrently filed Motion for Leave to Reply to

“Comments of Gray Television Licensee, LLC”, hereby replies to the “Comments” submitted by

Gray Television Licensee, LLC (“Gray”) pertaining to the Petition for Reconsideration filed by

G.I.G. of North Dakota, LLC (“GIG”) in the above-captioned proceeding. As demonstrated herein, the Comments are procedurally defective and therefore must be dismissed without consideration of Gray’s arguments. In the alternative, because Gray has submitted an impermissible petition for reconsideration that fails to allege material error or to present a sufficient basis for the Commission to grant the extraordinary relief sought, the Comments should be dismissed.

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Gray’s Comments Suffer from Fatal Procedural Defects

The Comments are procedurally defective and must be dismissed. The Commission’s

rules for reconsideration of an action in a non-rulemaking proceeding do not provide for

“Comments.” 1 A person or entity whose interests are adversely affected and who has standing may petition for reconsideration of the action,2 such petition may be opposed,3 and then the

petitioner is afforded a reply to the opposition.4 “Comments” are appropriate in a notice-and- comment proceeding, not a reconsideration of a Commission action on delegated authority; had the Commission intended for Comments to be accepted in such context, it certainly would have provided a mechanism in its Rules.

Moreover, because in substance the Comments submitted by Gray are more accurately characterized as a Petition for Reconsideration of the Video Division’s March 9, 2020 letter

dismissing the application to renew the license of KCPM(DT), Grand Forks, North Dakota (FCC

Facility ID No. 86208), dismissing the application for assignment to Gray, and cancelling the

license of KCPM(DT) (the “Station”),5 the Comments are late-filed and beyond the

Commission’s statutory authority to consider. Section 405 of the Communications Act, as amended, 6 and Section 1.106(f) of the Commission’s Rules7 require a Petition for

Reconsideration be filed not more than 30 days from the date of public notice of the Commission

1 See generally 47 C.F.R. § 1.106.

2 47 C.F.R. § 1.106(b)(1).

3 47 C.F.R. § 1.106(g).

4 47 C.F.R. § 1.106(h).

5 Letter from Barbara A. Kreisman, Chief, Video Division, FCC Media Bureau, to G.I.G. of North Dakota, LLC (March 9, 2020) (“Letter Decision”).

6 47 U.S.C. § 405(a).

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action. The Letter Decision went on public notice on March 12, 2020,8 establishing April 13,

2020, as the unwaivable deadline for supplementation.9 The Comments were filed on April 17,

2020, four days late. Gray’s reconsideration petition-in-disguise must be dismissed without

consideration for being late-filed.

Finally, if cast in the most forgiving light, Gray’s Comments might be deemed a

“supplement” in support of the GIG Petition. But even as a supplement, Gray’s Comments must

be dismissed for procedural defects. Section 1.106(f) of the Rules also directs that, in addition to

Petitions for Reconsideration, any Supplement thereto must either be filed within the same 30

days from the date of the public notice of the action, or be granted leave to file by the

Commission.10 Gray missed the 30-day deadline and did not seek leave of the Commission to

late-file a supplement to GIG’s Petition; therefore the Comments must be dismissed without

consideration for procedural defects.

As a Petition for Reconsideration, the “Comments” Do Not Meet the Legal Burden for Reconsideration

Gray’s Comments are in substance an untimely petition for reconsideration. If the

Commission somehow determines that it will overlook the many procedural defects of the

Comments and consider them, it must nonetheless deny and dismiss the Comments for failing to

meet the legal burden for Petitions for Reconsideration, namely: no error has been shown in the

Video Division’s analysis; the expiration of the KCPM license is mandated by statute and the

7 47 C.F.R. § 1.106(f).

8 Public Notice, Broadcast Actions, Report No. 49693 (Mar. 12, 2020).

9 The 30 days actually ended on April 12, 2020, which was a Sunday and deemed a holiday for purposes of computation of time. See 47 C.F.R. §§ 1.4(b) and 1.4(e)(1).

10 47 C.F.R. § 1.106(f).

{01421064-2 } 3

rare circumstances under which the Commission has exercised discretion to extend such

expiration are not present here; and any anticipation of what a prospective assignee might do is not relevant to a Section 312(g) analysis and thus Gray’s proposed reinstatement of KCPM is an insufficient (and unsupported) basis for the extraordinary relief requested.

A petitioner for reconsideration of a Commission decision must demonstrate material error in that decision or present facts or evidence that were not in existence or were unknown at the time of the petitioner’s last opportunity to raise such information.11 Gray, like GIG before it,

does not even attempt to argue, let alone demonstrate, material error in the Video Division’s

Letter Decision, nor does it proffer evidence (previously unknown or not) that might tend to

prove that the Station was in fact on the air with authorized facilities sufficient to avoid

automatic license cancellation under Section 312(g) of the Communications Act.12 Instead, Gray

audaciously argues that the Commission should expedite reinstatement of the license and grant of

the application to assign the Station to Gray for no other reason than so that Gray can

immediately offer the people of Grand Forks and the greater Fargo DMA additional news and

information about the COVID-19 pandemic.

While the efforts undertaken by Gray to provide timely news and information about the

coronavirus to the viewers in the Fargo DMA may be laudable, the Commission should not allow

the emotional issue of the moment to rewrite years of precedent and open the door to a flood of

Section 312(g) waiver requests. Under the sheen of pandemic public interest gloss, Gray’s claim

11 47 C.F.R. § 1.106(c); WWIZ, Inc., Memorandum Opinion and Order, 37 FCC 685, 686 (1964), aff’d sub nom. Lorain Journal Co. v. FCC, 351 F.2d 824 (D.C. Cir. 1965), cert. denied, 397 U.S. 967 (1966).

12 47 U.S.C. § 312(g).

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that the only way it can possibly provide additional news and information to the Fargo DMA is by acquiring another full-power station is ludicrous. As noted in the MMB Opposition, Gray already has one full-power and a low-power station in the DMA, as well as translators serving the market, with multiple digital sub-channels on the full-power and low-power stations.13 If

Gray truly felt the provision of additional COVID-19-related news and information would better serve the public interest than, say, network talk shows or syndicated sitcom re-runs, it could preempt those programs or even cancel its existing programming agreements to be able to program digital sub-channels with this expanded news programming. Certainly such a result might not be optimal in terms of Gray’s financial interest, but Gray is essentially arguing that the coronavirus is an extreme situation calling for extreme solutions—so long as Gray doesn’t have to make any sacrifices itself.

Gray also makes much of the assertion that the loss of KCPM would mean that the viewers of Grand Forks will be left behind when it comes to what Gray claims is urgently needed, locally-focused coronavirus news and information. But Gray conveniently neglects to mention to the Commission that the signal of its own full-power station KVLY(DT) covers the city of Grand Forks. If more Grand Forks-specific news is needed and demanded by the viewers within its own service contour, Gray should itself step up to the plate and modify its existing news to better serve its viewers. In sum, rather than insist that the Commission engage in an extraordinary enlargement of Section 312(g) discretion that would have a significant impact well beyond the instant case, Gray would do well to evaluate its own business to determine if it could

13 Gray Television is the licensee of KVLY(DT), the affiliate for networks NBC (on its primary stream) and MeTV (on a digital subchannel) in the Fargo, ND DMA, and is the licensee of KXJB-LD, which is the network affiliate of CBS (on its primary stream) as well as the CW (on a digital subchannel). Gray has even greater saturation of the DMA via use of owned television translator stations K30LR-D and K28MA-D.

{01421064-2 } 5

leverage its existing dominance in the market and across the nation to assert public interest

preemption and to renegotiate contracts, or simply modify the focus of its current newscasts, in

order to better serve the people of Grand Forks and the wider Fargo DMA in light of the

pandemic. The current crisis calls for broadcasters to be creative in finding ways to meet the

needs of their audiences; it does not demand an absurd interpretation of statute that has no basis

in sound policy in order to unjustly enrich an already dominant player.

MMB urges the Commission not to indulge Gray’s efforts to play to the emotion of the

moment. There simply is no precedent for taking into account the anticipated performance of a

proposed assignee in administering Section 312(g). The statute applies to existing licensees and

includes no language that suggests that future performance by a different licensee is in any way a

relevant consideration.

Gray Would Still Require Waivers, and Arguments in Favor of Those Waivers Fail

As further discussed in the Opposition, even if the Commission were to reinstate the

KCPM license, the requested failing station waiver in the assignment application, which seeks to allow Gray to avoid the multiple ownership prohibition on obtaining another full-power station in a market with fewer than eight independently-owned television stations, still must be considered on its own merits. And, upon scrutiny, it is clear that the failing station waiver would not be successful. Not only does Gray already own a full-power station in the Fargo DMA, but it is also the network affiliate of two of the top-four networks, another fact conveniently omitted by

Gray.14 Gray has tremendous power in the Fargo market already, and it has not been shy about

using that market power against its competitors; granting Gray a second full-power station in the

14 See, supra, note 13.

{01421064-2 } 6

DMA would only serve to reward a bad actor and crush any possibility of competition from independent stations. It is outlandish and presumptuous to suggest, as the Comments imply, that the current crisis tilts the scales such that granting Gray the assignment of the KCPM license is the best possible outcome.

As the Commission well knows from the expensive and time-consuming fight MMB had to wage against Gray in 2016 over Gray’s unauthorized use of the Channel 4 PSIP and cable channel position,15 Gray has a well-earned reputation for leveraging its market dominance to squeeze its competitors. Gray’s market power in the Fargo DMA allows it to extract what MMB has been told is an outrageous $8 per MVPD subscriber and to cow the local cable providers into doing Gray’s bidding to keep competitors such as MMB’s KRDK(DT) from its rightful positions on cable system channel lineups.

Even more outrageous is the claim that Gray should receive even more special treatment if it were to acquire KCPM, burying in a footnote to its grand plans to quickly return the Station to glory the fact that it would need an additional waiver, this time of the current freeze on television license modifications, in order to achieve the proposed resumption. Of course, Gray also undercuts its own claims that it would use KCPM to provide the wall-to-wall news that the other Gray stations in the market cannot: in discussing the equipment necessary to make the resumed Station operational, Gray admits that would “install equipment for receiving and managing the syndicated programming that will air on KCPM(DT) when it is not airing local programming….”16

15 See pleadings filed in MB Docket No. 16-69.

16 Comments at 12. {01421064-2 } 7

Even if the Commission were to consider the failing station waiver, the evidence of

KCPM’s extended off-air and unauthorized operations status over the prior five years should cast significant doubt on the bona fide purchaser aspect of the waiver. In fact, MMB was a bona fide purchaser and did make a bona fide offer for the Station several years ago. MMB in 2017 offered to purchase KCPM, but refused to amend the offer with terms more favorable to GIG given that

MMB’s due diligence raised questions as to whether GIG even had a valid license to sell at the time. Of course, as the Video Division discovered, the Station continued to be off the air and/or operating at a variance from its license for several years after that. It is therefore unsurprising to

MMB that there would not have been other bona fide purchasers of the station — any potential buyer who did a modicum of due diligence, as MMB did, would have reached the same conclusion: that there were material questions about the validity of the license and the candor or the licensee. Gray apparently was the only potential purchaser with the legal budget and hubris to think they could get away with purchasing a station that they knew, or should have known, was likely unsellable because its license had been forfeited as a matter of law.

Conclusion

The Video Division established in the Letter Decision that GIG’s license for KCPM expired by operation of statute, and neither GIG nor Gray offers any justification for overturning that conclusion. Because the narrow circumstances under which the Commission has previously exercised its discretion to extend the Section 312(g) deadline are not present, the expansion of that discretion sought by GIG and Gray would result in a significant and unwarranted modification of the intent of the statute. In addition to its Comments suffering for several fatal procedural defects, Gray must not be permitted to exploit the current pandemic crisis to obtain

{01421064-2 } 8

extraordinary relief that benefits itself and not the greater public interest in efficient and reliable precedent. For these reasons the Comments should be dismissed without consideration.

April 24, 2020 Respectfully submitted,

PARKER BROADCASTING OF DAKOTA LICENSE, LLC D/B/A MAJOR MARKET BROADCASTING

By: ______/s/______Davina S. Sashkin, Esq. Fletcher, Heald & Hildreth, PLC 1300 North 17th Street, 11th Floor Arlington, VA 22209 703-812-04580 [email protected]

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CERTIFICATE OF SERVICE

I, Davina Sashkin, an attorney with the law firm of Fletcher, Heald & Hildreth, PLC, hereby state that copies of this REPLY TO COMMENTS were sent via electronic mail this 24th day of April, 2020, to the following:

Aaron Shainis, Esq. Shainis and Peltzman 1850 M Street, NW Suite 240 Washington, DC 20036 [email protected] Counsel to G.I.G of North Dakota, LLC

______/s/______Davina Sashkin

{01421064-2 }