Before the FEDERAL COMMUNICATIONS COMMISSION Washington, DC 20554

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

To: The Commission

COMMENTS OF THE DISPATCH PRINTING COMPANY

The Dispatch Printing Company, d/b/a the Dispatch Broadcast Group

(“Dispatch”), owner of television stations including WTHR and WALV-CD, Indianapolis,

Indiana, respectfully submits its comments concerning the repacking proposals described by the

Commission in the Notice of Proposed Rulemaking (“NPRM”) in the above-captioned

proceeding. Dispatch focuses its comments on the protection that the Commission should

provide to stations with maximized facilities, including stations that have applied or will apply

for maximized construction permits after the enactment of the Spectrum Act.1 Dispatch also

comments on the protection that the Spectrum Act requires for Class A stations.

I. THE SPECTRUM ACT REQUIRES PROTECTION FOR STATIONS OPERATING WITH VALID WAIVERS OF THE POWER LIMITS.

In a footnote of the NPRM, the Commission states that it does not propose that it

will make all reasonable efforts to preserve the existing coverage areas of stations whose operations exceed the effective radiated power (“ERP”) limits.2 Dispatch’s Indianapolis NBC

1 Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. No. 112-96, 125 Stat. 156, Title VI (2012) (“Spectrum Act”). 2 NPRM at n.157. affiliate, WTHR, is operating above the usual ERP limits pursuant to a waiver granted by the

Commission in recognition of the widely-recognized problems with VHF reception, including problems extensively documented by WTHR in support of its own request for a power waiver.

After receiving FCC approval to operate with a waiver of the ERP limits, WTHR commenced high powered operations and applied to license these facilities prior to the enactment of the

Spectrum Act.3 The FCC has since granted the license. Dispatch believes that the Commission

is required to protect the viewers and coverage area served by WTHR with the ERP waiver

authorized under BLCDT- 20120127AIE, pursuant to § 6403(b)(2) of the Spectrum Act, which

requires that the Commission protect “the coverage area and population served of each broadcast television licensee” as of February 22, 2012.

II. THE COMMISSION SHOULD PROTECT THE VIEWERS SERVED BY POST- SPECTRUM ACT MAXIMIZATIONS.

Dispatch also comments here on the protection that the Commission should afford to WTHR and other stations that may seek technical changes to their facilities in order to improve service to their communities, protection that is particularly important for VHF stations such as WTHR that pursue power increases to address reception issues resulting from digital operation on these channels. As a VHF station, WTHR has experienced particular difficulties in serving all of its viewers with a reliable digital signal. Increasing its power after the digital transition has helped to alleviate widespread reception issues to some extent,4 but WTHR’s

viewers still do not receive the level of service they received prior to the DTV transition. Many

viewers continue to report reception problems to the station, and field tests conducted after

WTHR increased power to 42.1 kW (its current power level) show that many viewers continue to

3 See BLCDT- 20120127AIE. 4 See FCC File No. BLCDT-20120127AIE.

Page 2 experience difficulties locking onto the station’s Channel 13 signal or lose the signal during inclement weather. Accordingly, after extended study and in coordination with neighboring stations, WTHR is planning to apply for an additional power increase, which the station believes will help to remediate remaining reception problems experienced by WTHR’s viewers.

In the Spectrum Act, Congress provided that in the repacking, “the Commission shall make all reasonable efforts to preserve, as of the date of the enactment of this Act, the coverage area and population served of each broadcast television licensee….”5 While the

Spectrum Act specifies the minimum amount of protection that the Commission must provide in the repacking for television stations’ facilities, the Commission should strive to go beyond the statutory floor, where possible, to serve the overarching goal of ensuring a continued, robust television service —a goal that both Congress and the Commission have repeatedly affirmed.6

While the Commission continues to implement the Spectrum Act, television

broadcasters must continue to serve the best interests of their communities, and that includes by

improving their technical facilities to provide better signal strength and coverage. These

improvements to the public’s service should not be ignored in the repacking process — to do so

would be contrary to the public interest. This is particularly so in cases such as WTHR’s, where the station is continuing to seek resolution of reception issues associated with digital operations on high VHF channels. Accordingly, the Commission should establish a presumption that it will

5 Spectrum Act at § 6403(b)(2). 6 See, e.g., NPRM at para. 10 (identifying “preserving a healthy, diverse broadcast television service” as one of the central goals of this proceeding); Innovation in the Broadcast Television Bands: Allocations, Channel Sharing and Improvements to VHF, Report and Order, 27 FCC Rcd 4616, para. 9 (2012) (recognizing “the vital role played by broadcast television” and taking initial steps to reallocate television spectrum “while protecting the vitality of the television broadcast service” and remaining “cognizant of the impact on consumers of television programming viewed over-the-air and through multichannel video program distributors”).

Page 3 protect, where possible, television facilities that were applied for after the enactment of the

Spectrum Act in compliance with the Commission’s rules, as well as facilities constructed after that date that are serving viewers at the time of the repacking.7

Dispatch notes that the intent of the power increase that WTHR plans to seek is

not to expand the station’s service area, but to provide a more reliable signal to viewers within

WTHR’s coverage contour. It anticipates that the power increase will enable approximately

115,000 more viewers — who used to be able to receive WTHR’s analog signal — to reliably

receive WTHR’s digital signal. Accordingly, Dispatch respectfully proposes that the

Commission establish a presumption that in its repacking, it will protect facilities that stations

applied for after the Spectrum Act was enacted, subject to those facilities complying with the

Commission’s rules, as well as those facilities that have been constructed after the Spectrum Act

was enacted. Specifically, Dispatch requests that the Commission adopt rules and policies that

will protect, to the maximum extent possible, the proposed maximized facilities of WTHR and

the viewers that those facilities will serve.

III. THE SPECTRUM ACT REQUIRES PROTECTION FOR CLASS A STATIONS’ COVERAGE AREAS AND POPULATIONS SERVED.

With respect to Class A television stations, such as Dispatch’s WALV-CD, the

Spectrum Act requires that the Commission protect the same footprint as it must protect for full-

power television stations — i.e., the station’s “coverage area and population served” as of the

date that the Spectrum Act was enacted. The NPRM, however, proposes to protect for Class A

7 As the Commission noted in the NPRM, although the Spectrum Act requires protection for the coverage area and population served of each station as of the date of the Spectrum Act’s enactment, it does not “prohibit the Commission from granting protection to additional facilities where appropriate.” NPRM at para. 113.

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stations only the area within which Class A stations are protected from interference.8 This

proposal is inconsistent with the requirements of the Spectrum Act. Moreover, it is contrary to

the public interest. It creates a risk that viewers will lose access to WALV-CD’s free, over-the- air television service. Congress unambiguously has required that the Commission provide the same level of protection to Class A stations (and their viewers) that it provides to full power television stations. Accordingly, the Commission should protect the “coverage area” of Class A stations — i.e., the area within which viewers receive Class A stations’ signals. For digital stations, this is the noise-limited contour. This approach would be better for viewers and would be in accordance with the legislative requirements.

Respectfully submitted,

______Jennifer A. Johnson Eve R. Pogoriler COVINGTON & BURLING LLP 1201 Pennsylvania Avenue, N.W. Washington, DC 20004-2401 (202) 662-6000 Counsel for the Dispatch Printing Company

January 25, 2013

8 NPRM at para. 99.

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