93ef.wre tfte fJedeJUd ~ ~6Um WC16fWuJUm, g).e. 20554 In the Matter of: ) ) Advanced Television Services and ) MB Docket No. 87-268 Their Impact upon the Existing ) Television Broadcast Service ) Directed to: The Commission PETITION FOR RECONSIDERATION Pappas Telecasting ofAmerica, a California Limited Partnership ("Pappas") and South Central Communications Corporation ("SCCC") (collectively, the "Owensboro Petitioners"), by their attorneys, hereby respectfully submit their Petition for Reconsideration with regard to a portion ofthe Commission's Seventh Report and Order and Eighth Further Notice ofProposed Rule Making in the above-captioned proceeding, FCC 07-138, released August 6, 2007("Seventh R&D"). With respect thereto, the following is stated: 1. Pappas and SCCC have pending applications for construction permit for a new NTSC television station to operate on Channel 48 at Owensboro, Kentucky (File Nos. BPCT- 19960722KL and BPCT-19960920IV, respectively) and also are parties to a settlement agreement which contemplates the grant ofthe Pappas application and dismissal ofthe SCCC application. Their "Joint Request for Approval ofSettlement Agreement" was submitted to the Commission on January 28, 1998. Since that time, the Owensboro Petitioners have made every effort to obtain approval oftheir proposal. 2. On January 19,2007, the Owensboro Petitioners filed Comments in the instant proceeding. In those Comments, the Owensboro Petitioners recognized that at this time, it is 2 generally not possible to seek an alternate channel due to the Commission's freeze on the filing ofrule making petitions which propose changes in the television or DTV Table ofAllotments. Public Notice, "Freeze on the Filing ofCertain TV and DTVRequests for Allotment or Service Area Changes, " DA 04-2446, released August 3, 2004. The Owensboro Petitioners also noted, however, that without a change in channel, it appears that it would be impossible for the Pappas application to be granted, in that the channel allotted to Owensboro at the time that the application was filed has been reallotted for use as a digital television ("DTV") companion channel at Bowling Green, Kentucky. The Owensboro Petitioners demonstrated, however, that a viable replacement channel, namely DTV Channel 35, is available and could be used. They further submitted that the Commission could act on its own motion to modifY the Owensboro allotment in the same way that it has awarded Tentative Channel Designations ("TCD's") to new permittees. Thus, even ifthe Commission's policies continue to preclude applicants from filing petitions or participating directly in the channel election process, the Commission could itself act to modifY the channel allotment in order to allow for a grant ofa construction permit for a new station. 3. The Seventh R & 0 did not directly address the Owensboro Petitioners' arguments. Instead, the Commission reiterated that only licensees and permittees are eligible to participate in the channel election process. It further stated that it has assigned TCD's to new permittees whose applications were only recently granted and that it will continue to accommodate new permittees with applications granted prior to the end ofthe DTV transition. Neither ofthese statements is responsive to the Catch-22 situation in which the Owensboro Petitioners find themselves. Here, the Owensboro Petitioners cannot participate in the channel election process 3 because no construction permit has yet been granted, and no construction permit can be granted until the channel specified is modified. This situation is made the more surrealistic by the fact that a viable replacement channel exists which could cut through this problem and allow for the Commission to grant a construction permit for a first local commercial television station at Owensboro. 4. The equities clearly favor Commission action to change the channel at Owensboro to allow for grant ofthe long-pending application. It must be remembered that the need for a change in channel arose only because ofthe Commission's own decision to reallot the channel and was not due to anything done or left undone by the Owensboro Petitioners. Rather, the Owensboro Petitioners, and Pappas in particular as the proposed permittee, have followed the express invitations and directions ofthe Commission throughout the more than 11 years that they have been seeking to bring new television service to Owensboro. Nevertheless, they have been thwarted at every tum by numerous changes in direction as the Commission's DTV transition policy evolved. 5. This odyssey began when the Owensboro Petitioners each applied for the allocated analog channel 48 at Owensboro. These applications were timely filed and were in accordance with the Commission's rules and policies, which specifically provided for the filing of applications for construction permits for new television stations on allotted channels up until a date certain. Sixth Further Notice o/Proposed Rule Making, FCC 96-317, released August 14, 1996. Moreover, following the filing ofthe applications, the Commission specifically stated in its Sixth Report and Order in this proceeding, FCC 97-115, released April 21, 1997, that it would "maintain and protect those vacant NTSC allotments that are the subject ofpending applications 4 and will avoid creating DTV allotments that would conflict with proposed new NTSC allotments." Jd. at 'i[112. The stated rationale for this decision was to "ensure that parties who have already begun to invest in new stations...may continue to pursue their ongoing station development projects." Jd. Nonetheless, at the same time, channel 48 was allocated as the DTV companion channel for WKGB-TV, Bowling Green, Kentucky, thereby making that channel essentially unusable at Owensboro. 6. Accordingly, pursuant to the Commission's Public Notice, 14 FCC Rcd 19559 (1999), Pappas joined with SCCC in filing a petition for rule making to substitute channel 47 for 48. Channel 47 then became unavailable due to a DTV maximization application, and the petition for rule making was amended to specify Channel 57, only to have that channel reallocated pursuant to the FCC's lower 700 MHz proceeding. 7. Thereafter, pursuant to the FCC's Public Notice, DA 01-270, reI. February 6,2002, a further petition for rule making to substitute DTV channel 54 was filed. That Public Notice invited applicants in the position ofthe Owensboro Petitioners to seek to substitute either in-core analog or out-of-core DTV channels for their existing channels. Only after the Owensboro Petitioners responded to that invitation and filed their petition to substitute DTV channel 54, was the determination made that such pending petitions would not be granted. Second Periodic Review ofthe Commission's Rules and Policies Affecting the Conversion to Digital Television, FCC 04-192, released September 7, 2004. In sum, from the beginning, Pappas and SCCC have responded to Commission directions and followed announced Commission procedures, only to have their adjustments rendered unavailing due to further changes subsequently made by later Commission actions. The Owensboro Petitioners understand that these reversals resulted from 5 larger decisions concerning DTV implementation and other policy issues and did not result from any particular animus toward them. Nevertheless, these twists and turns were beyond the control ofand could not reasonably have been anticipated by the Owensboro Petitioners. 8. As noted above, the Owensboro Petitioners have located a new substitute channel, as set forth in the Engineering Statement submitted with their Comments in this proceeding, and have filed a Petition for Rule Making, accompanied by a request for waiver ofthe filing freeze. 1 A copy ofthat Engineering Statement as previously filed is attached hereto for convenience. Modification ofthe Owensboro allotment to specify this allotment clearly would serve the public interest by allowing a new station to be authorized and built to provide first local commercial television service. The Commission has indicated that it continues to value such new service as it has continued to grant applications and to provide TCD's for new pennittees. The Commission also has thus clearly recognized the substantial amount oftime and resources invested by such applicants over the last decade in their attempts to bring new service to the public by its action in providing such channels for post-transition operation. Likewise, just as the Commission has undertaken engineering analysis to determine and allot the best available TCD for new permittees, the Commission can and should modify the allotment for Owensboro to specify DTV Channel 35 instead ofanalog Channel 48, whether on its own motion or by granting the requested waiver ofthe filing freeze on petitions for rule making, so that the long-pending While current analog facilities are not considered, as a practical matter, by the time that the steps ofallotting the requested channel, then processing and granting the application, followed by construction ofthe authorized facility could take place, the DTV transition necessarily nearing or beyond its end. At this point, less than 16 months remain until the transition deadline. Pappas has previously indicated its willingness to accept a construction permit which specifies that operation ofthe new Owensboro station would not commence until after the February 17,2009, transition deadline. 6 application may be granted. With the release ofthe Seventh R & 0, the DTV Table of