BEFORE THE FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554 In the Matter of ) ) KCPM(DT), Grand Forks, North Dakota ) Facility Id. No. 86208 Applications for Renewal and ) Assignment of License ) ) File Nos. BRCDT-20140401AOQ and ) BALCDT-20180209ABJ ) To: Secretary Attn: Chief, Video Division, Media Bureau MOTION FOR LEAVE TO REPLY TO “COMMENTS OF GRAY TELEVISION LICENSEE, LLC” Parker Broadcasting of Dakota License, LLC d/b/a Major Market Broadcasting (“MMB”), by counsel, hereby moves for leave to file a reply to the “Comments” submitted by Gray Television Licensee, LLC (“Gray”) directed to the Petition for Reconsideration filed by G.I.G. of North Dakota, LLC (“GIG”) on April 17, 2020. Gray and its distinguished counsel surely are aware that the Commission’s rules for reconsideration of an action in a non-rulemaking proceeding do not provide for “comments”.1 The Comments submitted by Gray in substance are a petition for reconsideration of the Video Division’s March 9, 2020 letter dismissing the applications to renew and assign the license of KCPM(DT), Grand Forks, North Dakota (FCC Facility ID No. 86208) to Gray and cancelling the license of KCPM(DT).2 Gray left MMB without an opportunity to respond because the 1 See 47 C.F.R. § 1.106. 2 Letter from Barbara A. Kreisman, Chief, Video Division, FCC Media Bureau, to G.I.G. of North Dakota, LLC (March 9, 2020). {01421059-2 } 1 petition/Comments were filed a few hours after MMB’s Opposition and on the deadline for oppositions to petitions for reconsideration rather than by the deadline for petitions. Therefore, unless Gray’s Comments are dismissed (as they should be), it is only reasonable that MMB be afforded an opportunity to respond now. Accordingly, Petitioner hereby requests leave to submit the accompanying Reply. April 24, 2020 Respectfully submitted, PARKER BROADCASTING OF DAKOTA LICENSE, LLC D/B/A MAJOR MARKET BROADCASTING By: ________/s/____________________ Davina S. Sashkin, Esq. Fletcher, Heald & Hildreth, PLC 1300 North 17th Street, 11th Floor Arlington, VA 22209 703-812-0458 [email protected] {01421059-2 } 2 CERTIFICATE OF SERVICE I, Davina Sashkin, a member attorney of the law firm of Fletcher, Heald & Hildreth, PLC, hereby state that copies of this MOTION FOR LEAVE TO REPLY TO “COMMENTS” were sent via electronic mail this 24th day of April, 2020, to the following: Barbara Kreisman, Chief Robert J. Folliard, III Video Division, Media Bureau Gray Television Licensee, LLC Federal Communications Commission 43 70 Peachtree Road, NE 445 12th Street, SW Atlanta, GA 30319 Washington, DC 20554 [email protected] [email protected] Robert McDowell David Brown, Deputy Division Chief John Feore Video Division, Media Bureau Henry Wendel Federal Communications Commission Cooley LLP 445 12th Street, SW 1299 Pennsylvania Ave., NW, Suite 700 Washington, DC 20554 Washington, DC 20004 [email protected] [email protected] [email protected] Tyler Bridegan [email protected] Video Division, Media Bureau Counsel to Gray Television Licensee, LLC Federal Communications Commission 445 12th Street, SW Washington, DC 20554 [email protected] Aaron Shainis, Esq. Shainis and Peltzman 1850 M Street, NW Suite 240 Washington, DC 20036 [email protected] Counsel to G.I.G of North Dakota, LLC _________/s/_______________ Davina Sashkin {01421059-2 } BEFORE THE FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554 In the Matter of ) ) KCPM(DT), Grand Forks, North Dakota ) Facility Id. No. 86208 Applications for Renewal and ) Assignment of License ) ) File Nos. BRCDT-20140401AOQ and ) BALCDT-20180209ABJ ) To: Secretary Attn: Chief, Video Division, Media Bureau REPLY TO COMMENTS Parker Broadcasting of Dakota License, LLC d/b/a Major Market Broadcasting (“MMB”), by counsel and pursuant to the concurrently filed Motion for Leave to Reply to “Comments of Gray Television Licensee, LLC”, hereby replies to the “Comments” submitted by Gray Television Licensee, LLC (“Gray”) pertaining to the Petition for Reconsideration filed by G.I.G. of North Dakota, LLC (“GIG”) in the above-captioned proceeding. As demonstrated herein, the Comments are procedurally defective and therefore must be dismissed without consideration of Gray’s arguments. In the alternative, because Gray has submitted an impermissible petition for reconsideration that fails to allege material error or to present a sufficient basis for the Commission to grant the extraordinary relief sought, the Comments should be dismissed. {01421064-2 } Gray’s Comments Suffer from Fatal Procedural Defects The Comments are procedurally defective and must be dismissed. The Commission’s rules for reconsideration of an action in a non-rulemaking proceeding do not provide for “Comments.” 1 A person or entity whose interests are adversely affected and who has standing may petition for reconsideration of the action,2 such petition may be opposed,3 and then the petitioner is afforded a reply to the opposition.4 “Comments” are appropriate in a notice-and- comment proceeding, not a reconsideration of a Commission action on delegated authority; had the Commission intended for Comments to be accepted in such context, it certainly would have provided a mechanism in its Rules. Moreover, because in substance the Comments submitted by Gray are more accurately characterized as a Petition for Reconsideration of the Video Division’s March 9, 2020 letter dismissing the application to renew the license of KCPM(DT), Grand Forks, North Dakota (FCC Facility ID No. 86208), dismissing the application for assignment to Gray, and cancelling the license of KCPM(DT) (the “Station”),5 the Comments are late-filed and beyond the Commission’s statutory authority to consider. Section 405 of the Communications Act, as amended, 6 and Section 1.106(f) of the Commission’s Rules7 require a Petition for Reconsideration be filed not more than 30 days from the date of public notice of the Commission 1 See generally 47 C.F.R. § 1.106. 2 47 C.F.R. § 1.106(b)(1). 3 47 C.F.R. § 1.106(g). 4 47 C.F.R. § 1.106(h). 5 Letter from Barbara A. Kreisman, Chief, Video Division, FCC Media Bureau, to G.I.G. of North Dakota, LLC (March 9, 2020) (“Letter Decision”). 6 47 U.S.C. § 405(a). {01421064-2 } 2 action. The Letter Decision went on public notice on March 12, 2020,8 establishing April 13, 2020, as the unwaivable deadline for supplementation.9 The Comments were filed on April 17, 2020, four days late. Gray’s reconsideration petition-in-disguise must be dismissed without consideration for being late-filed. Finally, if cast in the most forgiving light, Gray’s Comments might be deemed a “supplement” in support of the GIG Petition. But even as a supplement, Gray’s Comments must be dismissed for procedural defects. Section 1.106(f) of the Rules also directs that, in addition to Petitions for Reconsideration, any Supplement thereto must either be filed within the same 30 days from the date of the public notice of the action, or be granted leave to file by the Commission.10 Gray missed the 30-day deadline and did not seek leave of the Commission to late-file a supplement to GIG’s Petition; therefore the Comments must be dismissed without consideration for procedural defects. As a Petition for Reconsideration, the “Comments” Do Not Meet the Legal Burden for Reconsideration Gray’s Comments are in substance an untimely petition for reconsideration. If the Commission somehow determines that it will overlook the many procedural defects of the Comments and consider them, it must nonetheless deny and dismiss the Comments for failing to meet the legal burden for Petitions for Reconsideration, namely: no error has been shown in the Video Division’s analysis; the expiration of the KCPM license is mandated by statute and the 7 47 C.F.R. § 1.106(f). 8 Public Notice, Broadcast Actions, Report No. 49693 (Mar. 12, 2020). 9 The 30 days actually ended on April 12, 2020, which was a Sunday and deemed a holiday for purposes of computation of time. See 47 C.F.R. §§ 1.4(b) and 1.4(e)(1). 10 47 C.F.R. § 1.106(f). {01421064-2 } 3 rare circumstances under which the Commission has exercised discretion to extend such expiration are not present here; and any anticipation of what a prospective assignee might do is not relevant to a Section 312(g) analysis and thus Gray’s proposed reinstatement of KCPM is an insufficient (and unsupported) basis for the extraordinary relief requested. A petitioner for reconsideration of a Commission decision must demonstrate material error in that decision or present facts or evidence that were not in existence or were unknown at the time of the petitioner’s last opportunity to raise such information.11 Gray, like GIG before it, does not even attempt to argue, let alone demonstrate, material error in the Video Division’s Letter Decision, nor does it proffer evidence (previously unknown or not) that might tend to prove that the Station was in fact on the air with authorized facilities sufficient to avoid automatic license cancellation under Section 312(g) of the Communications Act.12 Instead, Gray audaciously argues that the Commission should expedite reinstatement of the license and grant of the application to assign the Station to Gray for no other reason than so that Gray can immediately offer the people of Grand Forks and the greater Fargo DMA additional news and information about the COVID-19 pandemic. While the efforts undertaken by Gray to provide timely news and information about the coronavirus to the viewers in the Fargo DMA may be laudable, the Commission should not allow the emotional issue of the moment to rewrite years of precedent and open the door to a flood of Section 312(g) waiver requests.