DA 96-73 Federal Communications Commission Record 11 FCC Red No. 4

Docket No. 88-526, ("Reconsideration Order"), 5 FCC Red Before the 7094 (1990). In considering a proposed reallotment, we Feder al Communications Commission compare the existing state of allotments versus the pro­ Washington, D.C. 20554 posed state of allotments, and adopt the proposal if it would better achieve the Commission's allotment priorities. In evaluating television reallotment proposals, we apply the television allotment priorities established in the Sixth Re­ MM Docket No. 91-151 port and Order in Docket Nos. 8736 and 8975, 41 FCC 148, 167 (1952).2 In support of its proposed reallotment to New - In the Matter of Braunfels, KVCT states that Victoria currently has three local commercial television stations while there are no Amendment of Section 73.606(b), RM-7557 television stations licensed to New Braunfels. As such, its proposed reallotment would result in a first locaJ television Table of Allotments, service to New Braunfels without depriving Victoria of a Television Broadcast Stations. sole local television service. (Victoria and New Braunfels, 3. UTV,licensee of television Station KMOL-TV, San Texas) Antonio, Texas. Nicholas Communications, licensee of low power television Station Kl 7BY, San Antonio, Texas, Re­ public, licensee of t~levision Station KRRT, Kerrville, Tex­ REPORT AND ORDER as, Harte-Hanks, licensee of television Station KENS-TV, (Proceeding Terminated) San Antonio, Texas, H&C Communications, licensee of television Station KSAT-TV, San Antonio, Texas, filed com­ Adopted: January 25, 1996; Released: February 16, 1996 ments in opposition to the proposed reallotment to New Braunfels. UTV and Republic note that Victoria now only By the Chief, Allocations Branch: has two local television stations because the construction permit for Station KZKI, Channel 31, was cancelled o n l. At the request of KVCT(TV), Inc. ("KVCT"), former December 31, 1990. As such, UTV and Republic state that licensee of television Station KVCT, Channel 19, Victoria, the proposed 90-mile reallotment to New Braunfels would Texas, the Notice of Proposed Rule Making in this proceed­ remove the only competing local television service from ing, 6 FCC Red 3368 (1991), proposed the reallotment of Victoria and result in gray area to Victoria and a signifi­ Channel 19 from Victoria to New Braunfels, Texas, and cant portion of the existing Station KVCT service area. In modification of the Station KVCT license to specify New addition, UTV, Republic, Harte-Hanks and H&C Commu­ Braunfels as the community of license.1 KVCT, UTV of nications all refer to the fact that New Braunfels is located San Antonio, Inc. (" UTV"), Nicholas Communications 17 miles northwest of San Antonio, Texas, and the pro­ Corporation ("Nicholas Communications"), Republic posed transmitter site is southeast of San Antonio, proxi­ Communications Corporation ("Republic"). Harte-Hanks mate to the transmitter sites of television stations licensed Television, Inc. ("Harte-Hanks") and H&C Communica­ to San Antonio. Fro m this site, Station KVCTwould pro­ tions, Inc. ("H&C Communications") filed comments. vide principal-city service to all of San Antonio. These KVCT and Republic filed reply comments. For the reasons parties conclude that this reallotment proposal would be, discussed below. we deny the proposed reallotment to New in fact. a de facto reallotment to San Antonio, and, there­ Braunfels. fore, a New Braunfels allotment should not be evaluated in the context as a first local television service.3 4. In a separate context, Harte-Hanks and H&C Commu­ BACKGROUND nications have referred to the circumstances surrounding 2. The KVCT Petition for Rule Making was filed pursu­ the KVCT acquisition of Station KVCT. Harte-Hanks con­ ant to the provisions of Section l.420(i) of the Rules which tends that Jerianne Medley, president of KVCT, is not the provides for the modification of a license or construction real party in interest in this proceeding. Specifically, Harte­ permit of an FM or television station to specify a new Hanks argues that Withers Broadcasting Company, licensee community of license where the amended allotment would of Station KA VU-TV, Channel 20, Victoria, Texas, is the be mutually exclusive with the existing allotment. In "moving force" behind the proposed reallotment in order permitting such a modification pursuant to Section to remove the sole competing local television service in l.420(i), we require that the proposal result in a preferen­ Victoria. In support of this argument, Harte-Hanks refers tial arrangement of allotments. See Report and Order in to the earlier unsuccessful efforts of Withers Broadcasting MM Docket No. 88-526, ("Community of License"}. 4 FCC Company to acquire both Station KVCT and Station Red 4870 (1989); Memorandum Opinion and Order in MM KA VU, and the fact that Withers did, in fact. acquire the physical facilities of Station KVCT. In leasing these facili-

1 On December 20, 1994, the Station KVCT license was as­ which remain unassigned under the foregoing priorities will be signed to Victoria Vision, Inc. (File No. BALCT-941 I07KF). assigned to the various communities depending on the size of Station KVCT has now resumed operation. the population or each community. the geographical location of 1 These priorities are as follows: ( 1) To provide at least one such community. and the number or television services avail­ television service to all parts of the United States; (2) To able to such community from television stations located in provide each community with at least one television broadcast other communities. station; (3) To provide a choice of at least two television services J According to the 19QO U.S. Census. the respective populations to all parts of the United States; (4) To provide each commu­ or New Braunfels and Victoria are 22,402 and 50.bQS persons, nity with at least two television stations; and (5) Any channels while the population of San Antonio is 71<5..t IO perwns.

1832 -

11 FCC Red No. 4 Federal Communications Comm~ion Record DA 96-73

ties to KVCT, Withers was afforded the right to review the tivation of a party is not relevant. See Eatonton and Sandy financial statements of KVCT and to preclude subleasing Springs, Georgia, and Linesville, Alabama, 6 FCC Red 6580, these facilities to any third party. Harte-Hanks then refers 6581 (1991), rev. pending. to the fact that four months after acquiring Station KVCT, 7. Accordingly, IT IS ORDERED, That the aforemen­ KVCT requested authority to suspend operations for "eco­ tioned Petition for Rule Making filed by KVCT, Inc. pro­ nomic reasons." In a related vein, Harte-Hanks and H&C posing reaJlotment of Channel 19 from Victoria to New Communications refer to newspaper articles which indicate Braunfels, Texas, and modification of the Station KVCT that once Channel 19 is reallotted to New Braunfels, Sta­ license to specify New Braunfels as the community of tion KVCT will be sold to a San Antonio religious broad­ license, IS DENIED. caster. On the basis of these articles, Harte-Hanks and 8. IT IS FURTHER ORDERED, That this proceeding IS H&C Communications conclude that KVCT is trafficking TERMINATED. in the Station KVCT license.' Finally, H&C Communica­ tions contends that the original KVCT request to suspend 9. For further information concerning this proceeding, operation for "economic reasons" demonstrates that KVCT contact Robert Hayne, Mass Media Bureau, (202) 418-2177. does not have the financial resources to implement a reallotment.to New Braunfels. FEDERAL COMMUNICATIONS COMMISSION 5. After careful consideration of this matter, we deny the proposed reallotment. In a comparative context, we do not credit this proposal as a first local television service under Priority 2 of the television allotment priorities set forth in the Sixth Report and Order, ·supra. KVCT proposes to John A. Karousos relocate its transmitter site closer to San Antonio than New Chief, Allocations Branch Braunfels and at a site proximate to television stations Policy and Rules Division licensed to San Antonio. From this site, Station KVCT will Mass Media Bureau provide city grade service to San Antonio and Grade B service to the entire San Antonio Urbanized Area. Consis­ tent with prior 'comparative actions, we will not consider this wide-area television service, which covers the same area as television stations licensed to San Antonio, as a first local television service at the expense of the second local service in Victoria. See Cleveland Television Corporation, 91 FCC 2d 1129 (1982), aff'd Cleveland Television Corporation v. FCC, 732 F.2d 645 (D.C. Cir. 1984); see also Winter Park Communications, Inc. v. FCC, 873 F.2d 347 (D.C. Cir. 1989). As such, we believe that the appropriate comparison in this situation is allotting a ninth television service to San Antonio versus retaining a second local television service in Victoria. We also note that removing Channel 19 from Victoria would create a gray area of 4.'.!73 square kilometers cont~ining a populatio n of 91.487 persons. New Braunfels currently receives city grade television service from four stations and Grade B service from six stations. Under these circumstances, retaining a second local televi­ sion service in Victoria would be preferred under Priority 3 as set forth in the Sixth Report and Order. 6. The related arguments advanced by Harte-Hanks and H&C Communications concerning the "moving force" be­ hind the proposed reallotment, trafficking in the Station KVCT license, and the financially ability to effectuate the proposed reallotment to New Braunfels need not be consid­ ered in this proceeding. As stated earlier, the Station KVCT license has been assigned to Victoria Vision. Inc. Inasmuch as the underlying allegations are directed to the former licensee of Station KVCT. these arguments .are now moot. Furthermore, the Commission has eliminated the "anti­ trafficking" policy. Elimination of the Three Year Rule and Underlying Anti-Trafficking Policy, 52 RR '.!J I 081 ( 1982). In that action. the Commission found that acquiri ng a broadcast station for the purpose of enhancing its market value does not constitute a detriment to the public interest. In this allotment proceeding, we also believe that the mo-

4 The Commission has defined trafficking as speculation. barier or trade in licenses to the detriment of the public interest.

1833