______Federal Communications Commission____ FCC 96-450

Before the Federal Communications Commission Washington, D.C 20554 In re Application of ) ) KTBY, Inc. ) ) For Renewal of License for )© File No. BRCT-930923KF Station KTBY(TV) ) Anchorage, ) MEMORANDUM OPINION AND ORDER Adopted: November 18,1996 Released: November 25, 1996 By the Commission: L INTRODUCTION

1. The Commission has before it for consideration: (i) a license renewal application for the captioned ; (ii) a Petition to Deny filed by Bobby Duffy ("petitioner"); and (iii) the licensee©s opposition to the petition. 2. Duffy alleges that KTB Y(TV) violated our Equal Employment Opportunity (EEO) Rule and policies. Accordingly, he requests mat we conduct an investigation of the station©s employment practices pursuant to Bilingual Bicultural Coalition on Mass Media v. FCC. 595 F.2d 621 (D.C. Cir. 1978) (Bilingual) and designate the renewal application for hearing. The licensee opposes Dufiy©s allegations, urging that he has failed to establish any violations of our EEO requirements and that unconditional renewal of the license should be granted IL BACKGROUND * 3. Standing. In challenging an application pursuant to Section 309(dXl) of the Communications Act of 1934, as amended, 47 U.S.C. § 309(dXl), a petitioner must demonstrate party in interest status. The allegations, except for those of which official notice may be taken, must be supported by the affidavit of a person with personal knowledge of the facts alleged. 47 U.S.C. § 309(dXl).

4. Submitted with the petition is a statement under penalty of perjury supplied by Duffy stating that he is a resident of Anchorage and a regular viewer of KTBY(TV) who would be aggrieved if the petition is not granted. We find that this statement meets the requirements for standing. See NAB Petition for Rulemaking. 82 FCC 2d 89 (1980). Accordingly, we hold that Duffy has standing with respect to Station KTBY(TV). 5. Prima Facie Case. A petitioner must, as a threshold matter, submit, "specific allegations of fact sufficient to show...that a grant of the application would be prima facie 19643 ______Federal Communications Commission______FCC 96-450 inconsistent with [the public interest, convenience, and necessity]." 47 U.S.C. § 309(dXl); Astroline Communications Co. v. FCC. 857 F.2d 1556 (D.C. Cir. 1988) (Astroline). The petitioner derived his factual allegations from the licensee©s EEO program and Annual Employment Reports. As a threshold matter, we found that the petitioner made a prima facie showing that grant of the renewal application would have been inconsistent with the public interest See Section 309(dXO of the Communications Act of 1934, 47 U.S.C. § 309(dXl); Astroline.

6. Review of the petitioner©s EEO allegations, as well as the licensee©s renewal application and opposition leads us to conclude that there are no substantial and material questions of fact warranting designation for hearing. In addition, we find no evidence that the licensee engaged in discrimination. However, we find that the licensee©s EEO efforts warrant a remedy. EL DISCUSSION

7. Section 73.2080 of the Commission©s Rules, 47 C.F.R § 73.2080, requires that a broadcast licensee refrain from employment discrimination and establish and maintain an EEO program mat reflects positive and continuing efforts to recruit and promote qualified women and minorities. When evaluating EEO performance, the Commission focuses on the licensee©s efforts to recruit and promote qualified minorities and women and the licensee©s ongoing assessment of its EEO efforts. Such an assessment enables the licensee to take corrective action if qualified minorities are not present in the applicant pools. The Commission also focuses on any evidence of discrimination by the licensee. See Sections 73.2080 (a), (b) and (c) of the Commission©s Rules, 47 C.F.R. §§ 73.2080 (a), (b) and (c).1

8. Review of the licensee©s renewal application and opposition reveals that the station had 21 full-time hiring opportunities, including 11 for upper-level positions for the period September 9, 1990 through January 1, 1994. The licensee recruited for all 21 vacancies. For 16 jobs, KTBY(TV) used a combination of 10 sources, including general sources, minority sources2 and employee referrals. During the renewal year, which began September 1, 1992, KTBY(TV) modified its recruitment efforts and contacted two general, twenty minority and three women©s sources for three of five remaining positions.3 As a result of these contacts, KTBY(TV) received 21 minority applicants among 250 total applicants, including one minority and two female referrals provided by the station©s employees.

1 Hie licensee is reminded that under our EEO Rule, 47 C.F.R. § 73.2080, it has an obligation to recruit for females and minorities for each vacancy. To the extent mat licensees fail to do so, female, as well as minority, recruitment is affected. 2 Minority sources were contacted for six jobs and, these sources produced three minority applicants. 3 In its opposition, the licensee indicated that in December 1992 h began using a list of 20 minority and female recruitment sources. Our review discloses that these sources were initially used to recruit for a vacancy in January 1993. Use of these minority sources attracted two minority referrals and one minority applicant

19644 ______Federal Communications Commission_____ FCC 96450 9. Minorities were present in 10 (52.63%) of the 19 overall applicant pools and six (66%) of the nine applicant pools for upper-level positions.4 Minorities were included in nine (47%) of the 19 overall interview pools and three (33%) of the nine upper-level interview pools. KTBY(TV) reported two minority hires, including one minority hire for an upper-level vacancy. 5 10. The petitioner argues that the licensee has failed to implement a legally sufficient program for the employment of minorities and has failed to self-assess its program. He contends that the licensee©s EEO program is deficient as evidenced by an alleged "underrepresentation" of minorities in KTBY(TV)©s workforce. He further contends that the licensee contacted no minority-specific recruitment sources and failed to obtain more than two minority applicants for its 21 vacancies. Finally, Duffy concludes that the licensee©s 1993 EEO Program Report (FCC Form 396) reflects even less activity than did its 1988 Report. He notes that the 1988 Report reflects only three minority applicants, one minority hire, and three EEO complaints. In contrast, he states that the 1993 Report reveals two minority applicants, no minority referrals and no minority hires. 11. The licensee responds that the petitioner has based his arguments solely on its Annual Employment Reports (FCC Form 395-B). The licensee argues that this "limited data" highlighted by Duffy, "does not reflect the full extent and effectiveness of its actual EEO efforts." In opposition, KTBY(TV) states that it has "consistently" made EEO efforts, but those efforts were hampered by "very low turnover" and usually only four full-time vacancies per year. The licensee adds that minorities applied for ten (50%) of the positions filled during the license term and, thus, maintains that its recruitment efforts were productive. It further adds that it hired two minorities for permanent positions at the station and made two additional offers of permanent

4 The licensee used the same applicant pool on two different occasions. In the first case, a single applicant pool was used to fill two Account Executive positions in February and March of 1991. In the second instance, the same pool was used for an Account Executive position and Accounting Assistant position filled in July 1992 and January 1993, respectively. Thus, the number of hires differs from the actual number of applicant pools. 5 The license term for KTBY(TV) ended February 1, 1994. The following is based on labor force data for the Anchorage, AK Metropolitan Statistical Area (MSA). In 1980, the Anchorage MSA had a labor force that was 44.30% female and 12.60% minority (430% Black, 2.30% Hispanic, 2.10% Asian/Pacific Islander and 3.90% American Indian). The 1989 report reflects 11 women (47.83%) among 23 overall employees, including seven women(41.18%)Hstedamong 17 employees in upper-level positions. The 1990 report reflects nine women (37.50%) among 24 employees overall, including 5 women (29.41%) among 17 employees in upper-level positions. The 1991 report reflects nine women (32.14%) among 28 employees overall, including 5 women (25.00%) among 20 employees in upper-level positions. In the 1992 report, nine women (37.50%) and one American Indian (4.17%) were reported among 24 employees, including 5 women (27.78%) and one American Indian (5.56%) are listed among 18 employees in upper-level positions. No minority employees are listed for 1989, 1990 and 1991, The Commission began to use 1990 Census data for license renewal applications filed after May 31, 1993, and for 1993 Annual Employment Reports. See "EEO Branch of Mass Media Bureau to Use 1990 U.S. Census Data," Public Notice released April 12, 1993, FCC No. 32651. In 1990, the Anchorage MSA had a labor force that was 46.20% female and 18.00% minority (4.90% Black, 3.60% Hispanic, 4.50% Asian/Pacific Islander and 5.00% American Indian). The 1993 Annual Employment Report lists 10 women (43.48%) among 23 employees overall, including six women (35.29%) listed among 17 employees in upper-level positions. No minority employees are reported.

19645 ______Federal Communications Commission______FCC 96-450 employment to minorities, but these offers were declined.6 The licensee notes that had the offers been accepted, KTBY(TV) would have "hired minorities at a rate exceeding their representation in the area labor force." It also notes that "in a number of instances, [its] outreach was limited to the use of local newspaper ads..." because these sources produced more minority referrals than all other sources combined.7 The licensee further notes that local newspapers produced 17 of KTBY(TV)©s 21 minority applicants while minority sources produced four minority applicants. The licensee indicated that it experienced difficulty, attracting minority applicants and that for future vacancies it intends to contact the. National Association of Broadcasters Minority Employment Clearinghouse, the State of Alaska Job Service and the Odum Employment Agency. Finally, KTBY(TV) concludes that it "engaged in the type of review and revision of its EEO program contemplated by the Commission©s Rules" and that it made "substantial EEO efforts" designed to comply with those rules. 12. We find Duffy©s contention regarding the licensee©s allegedly worsening EEO performance to be based on a faulty premise. Duffy concluded that the licensee©s 1993 EEO Program Report showed less activity than its 1988 Report because the licensee allegedly attracted no minority referrals in 1993. However, KTBY(TV)©s 1993 EEO Program Report states that it had five minority referrals in the renewal year. We also reject Duffy©s assertion regarding an "underrepresentation" of minority employees. Compliance with our rules is not based on meeting or exceeding a numerical goal, but on the total efforts to recruit and promote minorities and females and the ongoing assessment of those efforts. See Amendment of Part 73 of the Commission©s Rules Concerning Equal Employment Opportunity in the Broadcast Radio and Television Services. 2 FCC Red 3967, 3974 (1987). 13. Our review raises no substantial and material questions of fact warranting designation for hearing. See Astroline. In this regard, we find no indication of employment discrimination. KTBY(TV) attracted and interviewed minority applicants. See 47 C.F.R. § 73.2080. 14. Nevertheless, we find that the licensee has made inadequate minority recruitment efforts at station KTBY(TV) because it failed to fully utilize minority-specific recruitment sources. In South Carolina Renewals.8 we held that a licensee could rely on general sources if such sources were adequately productive. However, we also held that if a licensee©s reliance on general sources failed to produce meaningful results, we would question whether minority recruitment was adequate. In this case, the licensee relied primarily on general sources to attract minority candidates throughout the license term. It used its minority sources for only six of 16 jobs filled before the renewal year. Further, the licensee indicated in its 1993 EEO Program Report that it had difficulty attracting minority applicants. Thus, we find the licensee©s almost

6 The initial offer was extended to a Black female, in March 1991, for an upper-level Account Executive position. The second offer was extended to an Hispanic female, in July 1992, for an Accounting Assistant position.

7 KTBY(TV) used newspaper ads to recruit for 17 vacancies. 8 5 FCC Red 1704, 1709 n.8 (1990).

19646 ______Federal Communications Commission____ FCC 96-450 exclusive reliance on general sources to be unwarranted, particularly in light of its concerns regarding minority applicants. Second, we find without merit the licensee©s argument regarding the productivity of its minority sources. KTBY(TV) stated in its opposition that it relied on general sources because these sources were twice as effective as minority sources. However, KTBY(TV) did not make serious efforts to contact minority sources until approximately nine months before it filed its renewal application. In January 1993, KTBY(TV) began to use a list of 20 minority and three female sources designed to attract minority and female candidates. The station used the list for three of five full-time jobs beginning in January 1993. Yet, prior to January 1993, the station only sporadically contacted©minority sources. 15. We further find that the licensee did not effectively self-assess its efforts because it failed to make adjustments to its EEO program despite inadequate minority applicant flow as manifest by its referral, applicant and interviewee data In this regard, KTBY(TV) felled to self- assess its efforts until nine months prior to license term expiration, at which time it had filled 16 of its 21 jobs. Given the foregoing deficiency in KTBY(TV)©s EEO program, we will grant the licensee©s renewal application subject to reporting conditions, so that we may more closely monitor the licensee©s recruitment and self-assessment efforts. IV. CONCLUSION

16. Upon review of the entire record, we find that no hearing is warranted In order to more closely monitor KTBY(TV)©s recruitment and self-assessment efforts, we will grant the renewal subject to reporting conditions. V. ORDERING CLAUSES 17. Accordingly, IT IS ORDERED that the Petition to Deny filed by Bobby Duffy regarding the renewal application of KTBY, Inc. for Station KTBY(TV) IS DENIED. 18. IT IS FURTHER ORDERED that the license renewal application for Station KTBY(TV) IS GRANTED, subject to the reporting conditions specified herein. 19. FT IS FURTHER ORDERED, that the licensee of Station KTBY(TV)9 submit to the Commission an original and one copy of the following information on October 1,1997 and October 1, 1998: (a) For each report, two lists divided by full-time and part-time job vacancies during the twelve months preceding September 1,1997 for the first report, and September

9 In this regard, we are mindful of a pending application for assignment of the license for KTBY(TV) from KTBY, Inc. to Grapevine Broadcasting of Anchorage, Inc. (File No. BALCT-961001IM). In me event that the license is assigned, the reporting conditions will apply to the assignee of KTBY(TV) upon consummation of the assignment See San Luis Obispo Limited Partnership, 9 FCC Red 894 (1994); Woolfson Broadcasting Corporation. 4 FCC Red 6160 (1989).

19647 ______Federal Communications Commission______FCC 96-450 1, 1998 for the second report, indicating the job title and FCC job category, date of hire, the race or national origin, sex and the referral source of each applicant for each job and the race or national origin and sex of the person hired. This list should also note which recruitment sources were contacted;10 (b) A list of employees as of the September 1,1997, payroll period for the first report and as of the September 1,1998, payroll period for the second report, by job title, indicating full-time or part-time status (ranked from highest paid classification), date of hire, sex, and race or national origin; and (c) Details concerning the station©s efforts to recruit minorities for each position filled during the 12-month periods specified, including identification of sources used and indicating whether any of the applicants declined actual offers of employment In addition, the licensee may submit any information it believes relevant regarding the station©s EEO performance and its efforts thereunder. 20. The reports are to be filed with the Acting Secretary of the Commission-for the attention of the Mass Media Bureau©s EEO Branch. 21. IT IS FURTHER ORDERED that the Mass Media Bureau send by Certified Mail - Return Receipt Requested - one copy each of this Memorandum Opinion and Order to KTBY, Inc. and Bobby Duffy. FEDERAL COMMUNICATIONS COMMISSION

William F. Caton Acting Secretary

10 Such a list might start (1) News Director, Officials and Managers; Full-time 3 Applicants: 1 White female - Women in Communications 1 Black male - Urban League 1 Black female - A.W.R.T., Sources contacted: Local Newspaper, A.W.R.T., Urban League, and Women in Communications Selected: Black female (08/19/97) (A.W.R.T.)

19648 FCC 96-451 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Amendment of Section 73.606(b), ) MM Docket No. 93-191 Table of Allotments ) RM-8088 TV Broadcast Stations. ) (Pueblo, Colorado) MEMORANDUM OPINION AND ORDER Adopted: November 21, 1996; Released: December 16, 1996

By the Commission: 1. The Commission has before it an Application lor Review filed jointly by the University of Southern Colorado ("USC"), licensee of noncommercial educational television Station KTSC(TV), Channel *8, Pueblo, Colorado, and Sangre De Cristo Communications, Inc. ("SCC"), licensee of commercial television Station KOAA-TV, Channel 5, Pueblo, Colorado Qointly, "petitioners") of the Report and Order ("B&Q"), 10 FCC Red 7662 (1995), in this proceeding. The R&O denied petitioners© joint petition to exchange their television channel assignments. Oppositions were filed by KKTV, Inc. ("KKTV"), licensee of commercial Station KKTV(TV), Colorado Springs, Colorado, and Pikes Peak Broadcasting Company ("Pikes Peak"), licensee of commercial Stations KRDO-TV, Colorado Springs, Colorado, and KJCT-TV, Grand Junction, Colorado. Petitioners filed a reply. 2. Background. Both KTSC(TV) and KOAA-TV operate from sites on Baculite Mesa KTSQTV) also used a television translator to provide service to Colorado Springs, but was required to cease using the translator to accommodate a full service station. In February 1991, USC was granted a construction permit to relocate its main transmitter to an antenna farm on Cheyenne Mountain so that KTSC(TV) could continue to provide educational service to Colorado Springs. In order to operate from the new site, USC was granted a waiver of Section 73.610(b) of the Commission©s rules because the Cheyenne Mountain site was short- spaced to Station KJCT(TV) in Grand Junction, CO and to co-channel *8 in J^aramie, Wyoming.1 Although USC had been granted a waiver of the minimum distance separation requirements of §73.610(b) in order to construct facilities for its noncommercial station at the Cheyenne Mountain site, we stated in the Notice of Proposed Rulemaking. ("Notice"! 8 FCC

1The commercial licensee in Grand Junction did not oppose the waiver request and channel *8 in Laramie was vacant at the time.

19649 Red 4752 (1993), that it would not be appropriate to decide at the allotment rulemaking stage whether such a waiver request by a commercial licensee would be granted.2 3. In September, 1992, USC and SCC proposed the subject channel swap. Under this proposal, Channel 5 at Pueblo, Colorado would be reserved for noncommercial educational use, and Channel *8 at Pueblo would be would be dereserved and become a commercial allotment. The parties proposed that KTSC(TV)©s noncommercial license would be modified to specify operation from KOAA-TVs licensed site at Baculite Mesa, and KOAA-TVs commercial license would be modified to specify operation at KTSC(TV)©s new site on Cheyenne Mountain. This exchange, according to the parties, would permit SCC to enhance KOAA-TVs service to Pueblo and its surrounding area by the more favorable facilities available at Cheyenne Mountain, and SCC would donate facilities and funds to USC to improve KTSC(TV)©s facilities and enhance its existing translator services. 4. The Notice in this proceeding stated that the proposed channel exchange would be in the public interest. However, it only proposed to modify KOAA-TVs license to operate from KTSQTV)©s site at Baculite Mesa, because KTSC(TV)©s short-spacing waiver for the new site was granted due to its unique role as a noncommercial educational licensee, and there were not sufficient public benefits to warrant short-spacing otherwise.3 In its comments, SCC stated that unless it could operate from KTSQTV)©s new site on Cheyenne Mountain, it was not interested in switching channels. 5. In the ensuing Report and Order, the Chief, Allocations Branch determined that the proposed channel exchange as now conditioned by the parties would not be in the public interest, because the short-spacing at Cheyenne Mountain for KOAA-TV was not warranted. While the R&Q acknowledged that the intraband channel exchange procedures of §1.420(h) are available to permittees, it rejected petitioners© argument that merely because a permittee of an unbuilt station could be a party to a channel exchange, a construction permit for modification of licensed facilities "must" be transferred in connection with a channel exchange proposal.4 It stated that case law does not support the proposition that SCC is

Notice. 8 FCC Red at 4753 n.5.

3Notice. 8 FCC Red at 4753-54. The amount of the short-spacing was not dfi minimis: the proposed site was 8.8 kilometers (5.5 miles) short-spaced to Station KJCT(TV) in Grand Junction, Colorado and 13.0 kilometers (S.lmiles) short-spaced to a co-channel allocation in Laramie, Wyoming.

4The R&Q further pointed out that while the Commission recognized when it adopted §1.420(h) that intraband channel exchanges could result in benefits for both noncommercial and commercial stations, this did not mean mat the Commission intended to ensure a benefit for commercial stations in adopting its channel exchange procedures. The primary purpose of 1.420(h) was to enable noncommercial educational stations to improve service, citing Rainbow Broadcasting Co. v FCC. 949 F.2d 405 (D.C. Cir. 1991). The R&O found that while we assume that commercial stations will request "swaps" when it is in their interest to do so, the Commission policy in no way requires that the commercial party receive any benefit in order for the exchange to be in the public interest, citing Clermont and Cocoa. Florida. 4 FCC Red 8320 (MMB, 1989). R&O at 7666.

19650 entitled to the benefit it seeks nor does it require the Commission to approve a channel exchange that would result in a commercial station moving to a site at which it would be short-spaced. The R&O noted that only in rare cases, based on highly unusual circumstances, have short-spaced allotments been granted, and that petitioner©s proposal and its alleged public interest benefits in the present case did not outweigh the need to maintain the integrity of the Television Table of Allotments. 6. Application for Review. Petitioners now contend that the staff erred when it refused to approve the channel exchange proposal including the Cheyenne Mountain permit. Specifically, petitioners argue that the Commission in Gary. Indiana. 51 FR 30364 (August 26, 1986) and Clermont and Cocoa. Florida. 4 FCC Red 8320 (MMB, 1989),5 approved exchanges involving unbuilt construction permits, allowing a noncommercial licensee or permittee to exchange its authorization for a commercial permit, and that these cases are indistinguishable from the instant case. Petitioners also contend that grant of USCs short spacing waiver for Cheyenne Mountain was based on USCs technical showing under §73.610, not on KTSCs noncommercial status. Petitioners further argue that the staffs application of allotment waiver policies to the channel exchange proposal was improper, contending that this proposal should be considered like an assignment or transfer application in which technical waivers are not revisited Finally, petitioners claim that the staff ignored the monetary and technical benefits to USC resulting from the channel exchange, improperly discounted the service gains that KTSQTV) would achieve by expanding its translator service to Colorado Springs, and mistakenly concluded that any benefit to SCC would not benefit the public. 7. Discussion. We agree with the staffs decision in the Report and Order in this proceeding which refused to approve a short-spaced allotment to Cheyenne Mountain for KOAA-TV and the concomitant channel exchange. Petitioners© contentions that we must include the Cheyenne Mountain construction permit in the channel exchange or that we should independently grant KOAA-TV a short-spacing waiver reflect a basic misunderstanding of our channel exchange policy and our short-spacing rules. While petitioners are correct that the channel exchange rule applies to construction permits as well as licenses, neither the rule nor the cases they cite require approval of the instant proposal which would result in a short-spaced commercial allotment. 8. It is true, as SCC contends, that the staff considered the nature and extent of any adverse technical implications from the USC short-spacing in determining whether to grant the waiver. Such consideration was essential to the balancing of benefits and detriments that is die crux of any decision to waive established rules in a particular case. It is not true, however, that these technical factors were or should have been the only appropriate matters weighed in the short spacing decision. Rather, the waiver granted to USC was also based upon the clear and substantial benefits to noncommercial, educational service which the

5Regon denied, 5 FCC Red 6566 (1990); affd sub nom. Rainbow Prcfflto»sting Co. v. FCC. 949 F.2d 405 (D.C. Cir. 1991).

19651 relocation of Channel *8 would permit As the letter granting the waiver observed: After careful review of your application, we are persuaded that grant of your waiver request would serve the public interest. The Commission is mindful of the unique role played by many noncommercial television stations in providing public television service to wide areas. You have established that the University serves both the Pueblo and Colorado Springs areas and that it is therefore important that your television station do so as well. Letter to Thomas Aube, FCC File No. BPET-900122KE (Feb. 28, 1991) at 2. Thus, simply because the technical characteristics of SCC operating from Cheyenne Mountain on Channel 8 would be identical to those of USC operating from that site, it does not follow that the short spaced waiver granted to USC "must" be transferred to SCC. Because the educational station would no longer enjoy the benefits of the short-spaced Cheyenne Mountain site under the subject channel exchange proposal, the staff was required to determine anew, for a commercial station, whether a short spacing waiver would be appropriate. It did so, and we concur in its conclusion that a waiver for a short spaced commercial allotment at Cheyenne Mountain was not justified 9. Absent a compelling need for departure from established interstation separation standards, the Commission will not grant a waiver of the minimum spacing rules for allotment purposes. As the staff recognized, this is an "ordinary case" in which petitioners understandably seek to improve their coverage of certain geographical areas. As the staff fully explained below,6 and we reiterate here, no showing of compelling need or extraordinary circumstances has been made by the petitioners sufficient to outweigh the public interest benefit of observing the integrity of the TV Table of Allotments and the minimum spacing rules. The monetary and technical benefits to USC and its purported service gains were fully considered by the staff in making this determination. R&Q at 7667.7 We agree with the staffs determination that the overall public interest is better served by denial of the waiver request and preservation of the integrity of the spacing requirements in this case. In weighing the public interest in this case, we also note that as many as 20,000 people or more would lose their only primary (i.e.. full-service, protected) commercial off-air service if the waiver were granted and KOAA-TV were to change its transmitter site.8

6R&Qat7667.

7We note that in adopting the intra-band channel exchange rule, 47 C.F.R. § 1.420(h), the Commission explicitly rejected treating channel exchanges like assignment or transfer applications, and determined that channel exchange proposals should be treated as rulemaking proceedings to amend the TV Table of Allotments. See Report and Order in MM Docket 85-41, 59 R.R. 2d 1455, 1457, and n. 14. (1986). Accordingly, we find unpersuasive petitioners© argument mat the staff erred in using short-spaced allotment criteria in evaluating SCCs request to acquire the Cheyenne Mountain permit as part of the channel exchange.

8Petitioners and KKTV argue whether the number of persons losing primary commercial off- air service is almost 18,000 or over 29,000, but that difference is not significant in mis consideration.

19652 10. Additionally, while unbuilt construction permits were included in channel exchanges in Gary. Indiana, and Clermont and Cocoa. FL. cited by petitioner, neither case involved the exchange of a construction permit that would require a short-spaced allotment or waiver of the minimum spacing rules. These cases are not, therefore, apposite. 11. Finally, we find unpersuasive petitioners© argument that consideration of the noncommercial educational status of Station KTSQTV) in granting the waiver violates the First Amendment. The Commission and Congress have long recognized a need, grounded in substantial public interest reasons, to take account of the differences between commercial and noncommercial educational stations in the regulatory scheme for broadcasting.9 Indeed, the Commission has specifically acknowledged the need to make this distinction in developing and amending the Television Table of Allotments.10 This distinction is further evidenced by the fact that the Commission has also specifically reserved channels for noncommercial public broadcasting in its Television Table of Allotments. Moreover, when the Commission adopted the channel exchange rule, which was subsequently upheld by the U.S. Court of Appeals for the District of Columbia, the Commission clearly stated that its primary purpose in doing so was to enable noncommercial educational stations to improve their service. " Moreover, we are aware of no decision which finds distinctions between commercial and noncommercial stations to be unconstitutional in the absence of a content-based restriction on the programming of a particular class of stations.12 12. Based on the foregoing, we find that petitioners have failed to demonstrate that the staff erred in denying their channel exchange proposal.13 13. Accordingly, IT IS ORDERED, That the action of the Mass Media Bureau, denying petitioners proposal to exchange television assignments between Station KTSC(TV) and Station KOAA-TV pursuant to Section 1.420(h) of the Commission©s Rules IS AFFIRMED, and the application for review filed jointly by the University of Southern Colorado and Sangre De Cristo Communications, Inc. IS DENIED.

for example, the Commission©s multiple ownership rules do not apply to noncommercial educational stations (see 47 C.F.R. Section 73.3S5S(f)) and Congress has expressly precluded advertising on noncommercial educational stations (see 47 U.S.C. Section 399B(bX2).

10Sixth Report and Order in Docket Nos. 8736 and 8975, 41 FCC 148 (1952).

11Sfi£ supra note 2. 12CE FCC v. League of Women Voters. 468 U.S. 364, 378-80, 386-92 (1984Xinvalidating statute that forbid editorial speech by any noncommercial educational station that received a grant from the Corporation for Public Broadcasting). 13Given this disposition, arguments the parties have raised regarding their Joint Motion to Consolidate are moot

19653 FEDERAL COMMUNICATIONS COMMISSION

William F. Caton Acting Secretary

19654