Before the FEDERAL COMMUNICATIONS COMMISSION Washington, DC 20554

In the Matter of ) ) Expanding the Economic and Innovation ) Opportunities of Spectrum Through Incentive ) GN Docket No. 12-268 Auctions )

COMMENTS OF BAHAKEL COMMUNICATIONS, LTD.

Bahakel Communications, Ltd. ("Bahakel"), by its attorneys, hereby submits its

comments in response to the Notice ofProposed Rulemaking C'NPRM') released by the Federal

Communications Commission ("FCC") in the above-referenced proceeding. 1 Bahakel, through

subsidiaries, owns six full-power television stations and six radio stations mainly in the

Southeast, and it has been serving local communities for over half a century.

The NPRM seeks comment on the FCC's implementation of the Middle Class Tax Relief

and Jobs Creation Act of 2012 (the "Spectrum Act").2 The NPRM raises scores of proposals,

two of which concern Bahakel and on which it comments.

First, the NPRM proposes to protect in any repack or reconfiguration of allotments only

faci lities that were licensed, or for which an application for license to cover facilities was already

on file with the Commission, as of February 22, 20 12.3 This proposal exceeds the requirements

of the Spectrum Act. If implemented, it would represent agency action that is arbitrary and

capricious, unfair, and contrary to the public interest for those stations that, at great expense,

1 Expanding the Economic and innovation Opportunities ofSpectrum Through incentive Auctions, Notice ofProposed Rulemaldng, GN Docket No. 12-268, released Oct. 2, 2012. 2 Middle Class Tax Relief and Job Creation Act of2012, Pub. L. No. 112-96, 126 Stat 156 (2012). 3 NPRMat ~98 . have completed construction of facilities that had been the subject of applications pending before

the Spectrum Act's enactment but may not have been licensed by that date.

In the Montgomery-Selma Designated Market Area ("DMA"), Bahakel, through a

subsidiary, has entered into an "Agreement for the Sale of Commercial Time and Services" with

the licensee of WNCF(DT). Under the agreement, Bahakel agreed to sell advertising time on the

station and provide up to 15 hours of the weekly programming on WNCF(DT). As part ofthe

overall transaction, Bahakel also purchased the non-license assets of WNCF(DT), and the two

parties entered into an agreement pursuant to which Bahakel leases many of those assets to the

licensee.

As Channel 32 Montgomery LLC ("Channel 32"), the licensee of WNCF(DT), explains

in separate comments that it is filing today through its counsel, WNCF(DT) recently completed

extensive improvements in its technical facilities, including a fourteen-fold increase in its power.

With these improvements, WNCF(DT) will be able to deliver expanded local news programming

to a much larger segment of viewers throughout the DMA. As Channel 32 also notes, the

application for these improvements was pending before enactment of the Spectrum Act, but the

construction and licensing were not completed unti l later in 2012.

Bahakel supports Channel 32's comments, which persuasively explain why faci lity

improvements, such as those at WNCF(DT), deserve protection in any repack.

Section 6403(b)(2) of the Spectrum Act requires the FCC to "make all reasonable efforts to

preserve, as of [February 22, 20 12], the coverage area and population served of each broadcast

licensee ...." 4 That section does not require protection of stations licensed as of that date, but

rather the coverage area and population of"each broadcast licensee." Had Congress intended to

4 Spectrum Act, § 6403(b)(2).

2 mandate protection of licensed operations only (as compared to permitted facilities or applied for facilities specified by an already existing licensee), it would have used that language. The FCC, since February 22, 2012, continued to process WNCF(DT)'s related applications, which implement a UHF to UHF allocations change requested prior to the FCC's imposition of a

"freeze" on May 31 , 2011.5 The FCC granted the applications unconditionally. As Channel32 explains and Bahakel agrees, implementation of the NPRM's proposal would not only exceed what is required by the Spectrum Act, but it would be arbitrary, capricious, unfair, and contrary to the public interest.

Second, Bahakel urges the FCC to ensure that any protection accorded to facilities in a repack encompass digital replacement translators ("DRTs"). In the NPRM, the FCC construes the Spectrum Act's requirement that the repack protect service areas and service area populations as applying only to full-power and Class A stations as licensed on February 22, 2012.6 The FCC has authorized DRTs specifically to augment broadcasts in areas within a full-power station' s service contour that are subject to interference or poor reception as a result of the transition from analog to digital service. 7 Because DRTs are an integral part of many full-power stations' operations and are licensed as part of the main station's authorization, the FCC should expand the list of facilities protected in the repack to include DRTs.

Bahakel has received permits to construct DRTs in Shelby, North Carolina, and

Lancaster, South Carolina, that would operate in conjunction with WCCB(TV), Charlotte, North

5 FCC Public Notice, "Freeze on the Filing of Petitions for Digital Channel Substitutions Effective Immediately," DA 11-959, released May 31 , 2011. 6 NPRM at~ 98. 7 Amendment ofParts 73 and 74 ofthe Commission 's Rules To Establish Rulesfor Replacement Digital Low Power Television Translator Stations, Report and Order ("DRT R&O"), 24 FCC Red 5931 ~~ 5, 14-17 (2009).

3 Carolina. Both are intended to provide fill-in service in populated areas where coverage was lost in the DTV transition. In each case, the DRTs will do no more than pem1it WCCB(TV) to serve its authorized service area and population. These facilities will be an essential and complementary part of the main station facilities, and they must be permitted and protected in the repack.

The Commission's application and licensing process for DRTs demonstrates that they are part of a station's full-power operations and deserve protection in the repack. Applications for

DRTs are treated as minor modifications to the license of the full-power station itself. Once approved, the licensed DRT facilities are specified as part of the full-power station's license.

DRT licenses, like broadcast auxiliary facilities, are renewed as part of the main station's license, and they cannot be separately assigned or otherwise transferred apart from the main station license.8 Thus, as contemplated by the Commission, DRTs are integral to the main station's coverage of its service area and population.

Given this inextricable relationship, the Commission must ensure that DRTs are not displaced when stations are repacked. For stations with DRTs that are required to move as a result of the repack, the DRT's facilities must be replicated along with their full-power facilities.

For stations that are not required to relocate, their DRTs should be protected along with the main station facilities.9

For the reasons noted above, the FCC should not limit protection of television facilities in any repack to only those licensed or specified in license applications pending as of February 22,

8 See DRT R&O at~~ 23-24. 9 As was true for full-power television stations, as discussed above, the FCC should reject any proposal to limit protection ofDRTs to only those licensed as of February 22, 2012. Facilities specified in construction permit applications pending as of February 22, 2012 should be protected.

4 2012, but should extend the protection to construction permit applications pending as of that date. Thjs protection should extend to DRTs as well.

Respectfully submitted, ::c:lz:;r; M. Anne Swanson of Dow Lohnes PLLC 1200 New Hampshire Avenue, N.W. Washington, DC 20036-6802 (202) 776-2534

Its Attorneys

January 25, 2013

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