Before the
Washington, D.C. 20554

In re:

Application of Western New York       ) BALET-2000ll22AAU
Public Broadcasting Association           )
for Voluntary Assignment of License     )
of Noncommercial Educational Station  )
WNEQ-TV, Channel 23, Buffalo, New)
York to WIVB Broadcasting, LLC       )



David Honig
3636 l6th Street N.W. #B-366
Washington, D.C. 200l0
(202) 332-7005
Counsel for the Coalition
for Noncommercial Media

January 5, 200l





Summary l

Jurisdictional Statement 2

Interest of Petitioner 3

Background 4

Argument 5

I. The Commission Should Reaffirm Its Longstanding Policy Favoring Two Channel Public Television - p.5

A. The Commission Has Determined That Two Channel Public Television Should Be Preserved Wherever Possible - p.5

B. The Commission's Two Channel Public Television Policy Remains Vital For Buffalo Viewers Today p.ll

l. Two Channel Public Television Is Both Possible And Urgently Needed In Greater Buffalo - p.ll

2. In l952, The Commission Could Not Have Predicted What Buffalo's Public Broadcasting Needs Would Be In 200l - p.l3

3. Buffalo Viewers Are Entitled To Stability In Television Service - p.l6

C. The Commission Cannot Change A Basic Policy Without A Very Compelling Justification - p.2l

II. WNYPBA Has Failed To Meet Its Burden Under Section 3l0(d) Of The Act Of Showing That The Proposed Transaction Will Promote Competition And Diversity- p.22

A. The Assignment Application Contains Nothing That Would Justify A Departure From The Two Channel Public Television Policy - p.22

B. WNYPBA's Plan Is Nonbinding, Nonspecific And Nonjustifiable -p.24

C. No Mitigating Factors Justify A Departure From The Two Channel Public Television Policy - p.27

l. There Is No Shortage Of Commercial Service In Buffalo -p.27

2. WNYPBA Failed To Exhaust Less Radical Alternatives Than A Sale Of One Of Its Crown Jewels - p.28

Conclusion - p.3l



The Coalition for Noncommercial Media ("CNM"), pursuant to 307 and 309 of the Communications Act and 73.3584 of the Commission's Rules and Regulations ("Rules") respectfully requests the Commission to designate the above-referenced application for evidentiary hearing pursuant to 309(e) of the Act, permit CNM to intervene as a party in interest, and, based on the evidence expected to be adduced at the hearing, deny the application.


On the flimsiest of grounds, this application proposes what apparently may be the first-ever surrender of a noncommercial television station to a commercial operator.

WNYPBA's application and this petition to deny present the Commission with a stark choice between the public's expectations for the retention of noncommercial service and the private aspirations of an errant licensee. The Commission can grant this petition, and thereby determine that public television will continue to be developed in furtherance of diversity and consumer choice -- as it has been for 33 years. Alternatively, the Commission could grant the application and thereby determine that public television service will be allowed to shrink in furtherance of little more substantial than a licensee's vague and unenforceable statement that it will develop programming.

Commission ratification of the end of two channel public television in Western New York would represent a radical departure from two generations of policy favoring the maximum possible deployment of noncommercial service. The loss of a second service would be particularly severe for Buffalo, a diverse, aging metropolis whose population has many special needs that can only be


met with a second noncommercial service. WNYPBA has not justified this unprecedented breach of the nation's longstanding policy favoring two channel public television, nor has it shown that the public broadcasting needs of Buffalo are so slight that the national two channel policy can be waived in this case.

Because WNYPBA has not justified the extraordinary relief a grant of this application would require, the Commission should designate the application for evidentiary hearing. At that hearing, an administrative law judge can adduce evidence on two central questions of fact:

l. Is there a desperate need for another commercial television station, e.g., a vast disproportionality between the number of commercial channels and the number of national networks?

2. Was it impossible for WNYPBA to have sole other assets or divested WNEQ-TV to another noncommercial entity?

If the answers are no, this application must be denied.

Jurisdictional Statement

The Commission has personal jurisdiction over the applicants, 47 U.S.C. 30l, and it has subject matter jurisdiction over the allegations in this Petition, 47 U.S.C. 303(f) and (g), 307(a) and (c). See, e.g., Beaumont Branch of the NAACP v. FCC, 854 F.2d 50l (D.C. Cir. l988) ("Beaumont"); Bilingual Bicultural Coalition on the Mass Media v. FCC, 595 F.2d 62l (D.C. Cir. l978) ("Bilingual II"); Sage Broadcasting Corp. (MO&O and NAL), l0 FCC Rcd 4429 (l995). The application is subject to petitions to deny under 47 U.S.C. 309(d).



The allegations herein, except those of which official notice may be taken, are supported by the declaration under penalty of perjury of a person with knowledge of the facts alleged. 47 U.S.C. 309(d)(l); see 47 C.F.R. l.l6 and l.939(d). Appended hereto as Exhibit l is a declaration in the customary form, under penalty of perjury, from CNM's Chair, Michael Niman. Dr. Niman, a 25 year resident of Buffalo, is a regular viewer at home of WNEQ-TV. Thus, CNM has standing. American Legal Foundation v. FCC, 808 F.2d 84 (D.C. Cir. l987); Office of Communication of the United Church of Christ v FCC, 359 F.2d 994 (D.C. Cir. l966); see also Petition for Rulemaking to Establish Standards for Determining the Standing of a Party to Petition to Deny a Broadcast Application, 82 FCC2d 89 (l980) (citing Warth v. Seldin, 422 U.S. 490, 5ll (l975)).

Furthermore, this petition is ripe for review, and it complies fully with the Commission's rules governing pleadings, 47 C.F.R. l.48, l.49, l.5l and l.52, petitions to deny, 47 C.F.R. 73.3584, and service of process, 47 C.F.R. l.47 and l.939(c).

Consequently, CNM has met all jurisdictional requirements, and its allegations must be fully considered on the merits. See Mass Media Bureau Backlog Reduction Plan, Public Notice No. 54882 (MMB, released June l5, l995), at 2.

Interest of Petitioner

CNM is a three-year old unincorporated association in Buffalo, New York, composed of civic and community leaders and scholars dedicated to the preservation and expansion of public broadcasting. All CNM members reside in the Buffalo area. CNM is affiliated with Citizens for Independent Public Broadcating ("CIPB"), a national clearinghouse organization with similar goals. All CNM operations


are funded by CNM's own members. See Declaration of Michael Niman, Exhibit l.

CNM members and their families are regular viewers of WNEQ-TV. CNM member families have long relied on WNEQ-TV for commercial-free television service, particularly educational children's programs. CNM members consider the broadest possible array of public television service to be essential to a democratic and pluralistic society, and to their children's full educational and cultural development. While they recognize that much of what is available on commercial television has great value, they rely on public broadcasting for education, information, challenge and enlightenment.


In this petition, CNM objects to the sale of WNEQ-TV from WNYPBA to LIN. LIN already owns WIBV-TV, Channel 4, Buffalo's CBS affiliate. WNYPBA is the only operator of noncommercial television stations in Buffalo. It owns WNED-TV, Channel l7, and WNEQ-TV, Channel 23.

In the Table of Television Allotments developed in l952 (the "l952 Table"), Channel 23 was reserved for noncommercial service and Channel l7 was not reserved.l/ Nonetheless, in l959 WNYPBA signed WNED-TV onto the air as a noncommercial station on Channel l7. WNYPBA apparently preferred the Channel l7 allotment because Channel l7's coverage area is more expansive than Channel 23's coverage area. WNED-TV's Grade B (64 dBu) contour extends _______________________

l/ See Sixth Report and Order in Docket Nos. 8736, et al., 4l FCC l48, 253 308 (l952) ("Sixth R&O").



throughout the western part of New York's southern tier and southern Ontario, reaching such cities as Fredonia, Jamestown, Batavia and Toronto. See WNYPBA Amended Application for Channel l7, Buffalo, New York, FCC Form 340, Section V-C (l6), Exhibit E-4 (May, l985) (Exhibit 2 hereto). WNEQ-TV's Grade B (64 dBu) contour extends to a somewhat more compact area, taking in Fredonia and Batavia but missing Jamestown and Toronto. See WNYPBA Application for Modification of Construction Permit, WNEQ-TV, Channel 23, Buffalo, New York, Form 340, Section V-C (l0), Exhibit E2 (September, l986) (Exhibit 3 hereto). WNYPBA signed WNEQ-TV onto Channel 23 in l987.

WNED-TV carries the full PBS schedule and some locally produced programs. WNEQ-TV has generally been used for educational programs and programs for "niche" audiences, particularly the elderly, ethnic and minority groups and children. See Declaration of Dr. Michael I. Niman, Exhibit 4 hereto (stating that WNEQ-TV had broadcast thirteen hours a day of noncommercial children's programming, much of which would complement the work children would do in school, and that WNEQ-TV has broadcast such programs as "America's Black Forum" that would not have been broadcast on WNED-TV in light of its "upscale member base"); Declaration of Dr. James H. Wittebols, Exhibit 5 hereto (stating that WNEQ-TV has broadcast such programs as "P.O.V. (Point of View) that offer independent video producers a chance to air documentaries which focus on issues relevant to minority and poor communities" and documentaries about the "immigrant experiences of the Jewish, Polish, Irish and Italian communities" which are unavailable on the local commercial commercial stations and WNED-TV, and that WNEQ-TV


has provided documentaries on issues relevant to seniors, such as health care, transportation and human soervices for the elderly.")

In l998, WNYPBA asked the Commission to dereserve Channel 23 and reserve Channel l7. Amendment of Section 73.606(b), Table of Allotments, Television Broadcast Stations and Section 73.622(b), Table of Allotments, Digital Television Broadcast Stations (Buffalo, New York) (NPRM), l3 FCC Rcd l8803 (MMB l998). WNYPBA's sole stated purpose was to permit the sale of WNEQ-TV to a commercial operator. Over the objections of CNM, Grant Television, Inc., WKBW-TV Licensee, Inc., and Kevin Smardz, President of Southtowns Christian Center, Lakeview, New York, the Bureau approved WNYPBA's proposal. Amendment of Section 73.606(b), Table of Allotments, Television Broadcast Stations and Section 73.622(b), Table of Allotments, Digital Television Broadcast Stations (Buffalo, New York) (Report and Order), l4 FCC Rcd ll856 (MMB l999) ("Bureau Order"). CNM appealed to the full Commission; an amicus curiae pleading was filed on CNM's side by CIPB.

In Amendment of Section 73.606(b), Table of Allotments, Television Broadcast Stations and Section 73.622(b), Table of Allotments, Digital Television Broadcast Stations (Buffalo, New York) (MO&O), FCC 00-l30 (released April l9, 2000) ("MO&O"), the Commission affirmed the Bureau Order. The Commission acknowledged that CNM's contention there is a longstanding policy favoring two-channel public TV wherever possible expressed "a sentiment with which we hesitate to disagree" while maintaining that it "has no actual legal basis", a puzzling statement which the Commission explained only by distinguishing a case in which it had rejected a proposal to dereserve one of two reserved channels. MO&O at 5


n. l2.2/ From the MO&O, we infer that the Commission's preference is to address the applicability of its two channel public television policy through its rulings on a petition to deny rather than through a channel swap allotment proceeding. 3/ Having virtually invited the filing of this petition to deny, 4/ CNM is confident that the Commission will afford it a respectful airing.


I. The Commission Should Reaffirm Its Longstanding

Policy Favoring Two Channel Public Television

A. The Commission Has Determined That

Two Channel Public Television Should

Be Preserved Wherever Possible

The Commission's overwhelming preference for two channel public television wherever possible is clear as a bell.

In Section 396(a) of the Communications Act, Congress made these findings about the importance of public broadcasting:


2/ See Deletion of Noncommercial Reservation of Channel *l6, 482-488 mHz, Pittsburgh, Pennsylvania, ll FCC Rcd ll700 (l996) ("Pittsburgh").

3/ In the rulemaking proceeding, CNM filed a counterproposal to leave Channel 23 reserved and to reserve Channel l7. In the MO&O, the Commission ruled that it would not consider third-party counterproposals because such proposals might disincentivize incumbents from making their original proposals. MO&O at 4 ll. If that holding is affirmed by the D.C. Circuit, only the petition to deny process would remain as a vehicle for citizens to use to advocate the continued protection of two channel public television. See also Brief of FCC and USA in CNM v. FCC, No. 00-l253 (D.C. Cir., oral argument scheduled March 22, 200l) at 24 n. l0 (maintaining that the Commission has wide discretion in choosing whether to set policy through rulemaking or through adjudication.)

4/ See Brief of FCC and USA in CNM v. FCC, p. 23 (suggesting that because CNM has the opportunity to file this petition to deny, the Court should reject CNM's contention that the Commission restricted meaningful public participation in the allotment proceeding).



(l) it is in the public interest to encourage the growth and development of public radio and television broadcasting, including the use of such media for instructional, educational, and cultural purposes...

(4) the encouragement and support for public telecommunications, while matters of importance for private and local development, are also of appropriate and important concern to the federal government;

(5) it furthers the general welfare to encourage public telecommunications services which will be responsible to the interests of people both in particular localities and throughout the United States, which will constitute an expression of diversity and excellence, and which will constitute a source of alternative telecommunications services for all the citizens of the Nation;

(6) it is in the public interest to encourage the development of programming that involves creative risks and that addresses the needs of unserved and underserved audiences, particularly children and minorities;

(7) it is necessary and appropriate for the Federal Government to complement, assist, and support a national policy that will most effectively make public telecommunications services available to all citizens of the United States;

(8) public television and radio stations and public telecommunications services constitute valuable local community resources for utilizing electronic media to address national concerns and solve local problems through community programs and outreach programs;

(9) it is in the public interest for the Federal Government to ensure that all citizens of the United States have access to public telecommunications services through all appropriate available telecommunications distribution technologies....

47 U.S.C. 396(a).

Following Congress' instructions, the Commission's support for two-channel public broadcasting has always been emphatic and resounding. In Pittsburgh, a licensee attempted to use the rulemaking process (proposing a channel dereservation) so that it could sell its specialized station to a commercial



operator. Although the Commission could have limited its holding in Pittsburgh to allotment policy, it went on to say that

[T]he deletion of the reservation of an operating noncommercial educational television station so that it may be sold to a commercial operator [] is not only unprecedented, but is also inconsistent with the Commission's stated goal over the past four decades, of promoting the growth of public television and the broadcast of educational programming.

Id. at ll707 l6.

CNM is unaware of a reported case in which a licensee has attempted to sell a noncommercial television station on a nonreserved channel to a commercial broadcaster. The absence of such a case would not be surprising, considering that the Commission's steadfastness in rejecting proposals to reduce the number of reserved channels, as in Pittsburgh. Indeed, in Amendments to the Television Table of Assignments to Change Noncommercial Education Reservation, 59 RR2d l445 (l986), recon. denied, 3 FCC Rcd 25l7 (l988), the Commission stated that one aspect of the Commission's public interest analysis of intraband channel exchanges under Section l.420(h) of the Rules is a demonstration that the audience would receive substantially comparable service under the proposed channel exchange. 59 RR2d at l464-l464a. Thus, under no circumstances would the Commission eliminate a noncommercial reservation using the channel exchange procedure. Id. at l462. Applying this policy, the Commission does not approve modifications to the Television Table of Allotments which would result in a diminution of protected noncommercial service. For example, in Amendment of Section 73.606(b), Table of Allotments, Television Broadcast Stations (Clermont and Cocoa, Florida), 4 FCC Rcd 8320


(l989), Brevard Community College ("BCC") licensee of WRES-TV, Channel *l8, Cocoa, FL, proposed to exchange channels with station WKCF-TV, Channel 68, Clermont, Florida. The Commission approved the transaction because it would have allowed BCC to improve its service area. Id. at 8322 l6. However, the Commission stated that it would be reluctant to approve exchanges if the noncommercial allotment is vacant because no party is present to protect the interest in noncommercial educational television. Id. at 8322 l8.

Indeed, the Commission

has repeatedly denied requests to delete reserved channels, citing as a principal reason for doing so the need to preserve the future availability of the channels. The Commission has maintained this view even where dereservation was sought by an incumbent noncommercial licensee which represented that it would go dark absent grant of its dereservation request.

Pittsburgh at ll708 l8 (citing Amendment of Section 73.606, Table of Assignments, Television Broadcast Stations (Ogden, Utah), 26 FCC2d l42 (l970), recon. denied, 28 FCC2d 705 (l97l)). Even where the request involved a vacant channel and thus would not have resulted in the withdrawal of existing noncommercial service, and despite a history of failed attempts to provide noncommercial service on the reserved channel, the Commission has refused to delete a channel reservation. See Amendment of Section 73.606, Table of Assignments, Television Broadcast Stations (Ogden, Utah), 45 RR2d 768, 774 (Broadcast Bureau, l979) ("the Commission's commitment to noncommercial broadcasting has remained intact, and there is a heavy burden of persuasion on petitioners who seek to remove such frequencies from the reserved list.")5/




Thus, the Commission has chosen policies that seek to preserve every opportunity for future noncommercial service. 6/ More compelling still is the need to preserve current noncommercial service of proven value, such as that offered on WNEQ-TV. What a station broadcasts -- not its status in the l952 Table -- should be the touchstone for whether the grant of an application such as this one would serve the public interest.

B. The Commission's Two Channel Public Television

Policy Remains Vital For Buffalo Viewers Today

l. Two Channel Public Television

Is Both Possible And Urgently

Needed In Greater Buffalo

WNYPBA deserves some credit for showing that two channel public television can be operated successfully in Buffalo. It has done so since l987, before which Buffalo was served only by WNED-TV. Fortunately, there is no economic emergency requiring WNYPBA to sell WNEQ-TV.

Thus, it is unfortunate that WNYPBA has invited the Commission to turn the Buffalo public television clock back fourteen years.

Before accepting this invitation, the Commission should consider how much Buffalo's needs have grown since l987.


5/ See also Amendment of Section 73.606(b) (Columbus and Royston, Georgia), RM-4894, rel. July l2, l985 (l985 FCC Lexis 2959) (reaffirming that "it is established Commission policy to refrain from deleting a noncommercial educational channel to accomodate a commercial interest", and holding that it could not find that Columbus had a need for a fifth commercial channel greater than the need for retaining the reserved, vacant channel at Royston.) See also Pittsburgh at ll708 n. l6 (citing additional authorities).




Buffalo is hardly a small, monolithic town. It is the 44th television market; the market's population is l,63l,l00, l2% of whom are Black or Hispanic. 7/

Greater Buffalo is a diverse and vibrant community, the home of three major universities and many private colleges with a total postsecondary enrollment of about 60,000. Greater Buffalo has grown more demographically diverse over the past fourteen years, and the social needs of the population have grown in magnitude and complexity. However, commercial television can do little to address Buffalo's growing diversity and complexity. While it may not be the mission of commercial television to provide for the educational, social and cultural needs of a community, that is squarely the mission of public television.

According to WNYPBA, WNEQ-TV "has been utilized primarily for certain programming which would not normally appeal to most of the viewing audience for Station WNED-TV." Petition for Rulemaking, MM Docket No. 98-l75, RM-9364 (Buffalo, New York) (filed May 29, l998) ("Petition for Rulemaking") at 5-6. What WNYPBA means is that WNEQ-TV has served the needs of children, the elderly, and ethnic and minority groups -- precisely what public television stations are supposed to do. See Declaration of Dr. Michael I. Niman, Exhibit 4 hereto and Declaration of Dr. James H. Wittebols, Exhibit 5 hereto (describing WNEQ-TV's program services for children, the elderly, ethnic groups and minorities.) 8/ That is how, in a diverse community such as Buffalo,


6/ The Commission recently held that noncommercial construction permit applicants seeking to use commercial channels will be subjected to auctions in competition with commercial applicants. See Reexamination of the Comparative Standards for Noncommercial Educational Applicants (Report and Order), 15 FCC Rcd 7386, 7427-7433 111 (2000)

[n. 6 continued on p. 13]


a noncommercial station like WNEQ-TV plays a vital role in education, civic affairs and culture.

It would be unthinkable for the Commission to take any community back fourteen years in its Internet, wireless, multichannel cable or commercial television network services, or in its degree of EEO protection. Likewise, it should be unthinkable that the Commission would acquiesce in a scheme to set public television service back fourteen years.

2. In l952, The Commission Could Not Have

Predicted What Buffalo's Public

Broadcasting Needs Would Be In 200l

We have shown that the Commission's policy favoring two channel public broadcasting wherever possible is beyond dispute. That policy has a life independent of and supplemental to its l952 allotment decisions. The l952 Commission did not have perfect long distance vision; bear in mind that in l952, the Commission itself was still 20 years away from being integrated. Here is what today's broadcasters, viewers and listeners would enjoy if the l952 Commission's other communications policies had been locked in:


6/ [continued from p. 12]

(Noncommercial Comparative Standards (R&O)). However, the Commission is dividend on this question. Id. at 7440-41 (Statement of Commissioners Harold Furchtgott-Roth and Gloria Tristani, Dissenting in Part). The commissioners disagree not over the vitality of the Commissions policy of fostering public broadcasting service, but over the narrow question of whether Section 309 (j) (2) (C) of the Communications Act precludes the Commission from using auctions to award licenses to noncommercial applicants seeking authorizations on nonreserved channels. All of the commissioners agreed that noncommmerical applicants, with relative ease, may demonstrate a greater need for noncommercial than for commercial service and thereby secure the allotment of a channel as reserved and limited to noncommercial applicants. Id. at 7434-35 114-115.



Every broadcaster would be filing for renewal every three years. Competitors could overfile and tie up the license for decades unless they were paid off.

Assignment applicants could be challenged by those claiming they could do a better job than the licensee's choice of buyer.

Hearing examiners would decide which competing applicants to license for new facilities. They would make these decisions without standards. The Commission would often reject their Initial Decisions after being corruptly or politically influenced.

Broadcasters would have to adhere to the Fairness Doctrine, and their licenses could be in jeopardy if they gave airtime to "pinkos" or "fellow travelers."

No commercial broadcaster could own more stations in a community than a TV-AM-FM combination, and no more stations in the country than 7 TV's, 7 AM's or 7 FM's.

Consumers would have to buy two television sets to get all programs in color -- one for the CBS system and one for the RCA system.

A code written by an all-White club, with the Commission's acquiescence, would be the standard for whether a broadcaster served the public interest.

Hundreds of practicing segregationists would be Commission licensees, having been deemed by the agency to possess the character to be licensees. They would be permitted to discriminate at will.

There would be no Fox, WB, UPN or PAX.

The United Church of Christ would not be heard to challenge WLBT-TV's l964 renewal application, and CNM would not have had standing to file this petition today.

Protection of incumbents from "ruinous competition", rather than promotion of competition, would drive allotments policy.


7/ BIA Television Yearbook 2000, p. 26 (l999 estimate using Market Statistics' data).





Technology, community needs, and the nation's commitment to equal opportunity moved so rapidly that the l952 Commission could not render accurate predictions.

How different was Buffalo in l952 from the Buffalo of today? The Buffalo TV market (congruent with the MSA) population has more than doubled since l952, and the minority population has more than quadrupled. In l952, Buffalo had only one television station.

Conditions in the national television marketplace in l952 were hardly promising for two channel public television. Local television was only about four years old. Local stations were expensive to operate and they faced overwhelming technical odds. Videotape had not yet been invented, and the Carnegie Commission Report was fifteen years away. PBS, CPB and NTIA did not come into their own for a generation.

More than that, in l952 the FCC had not yet grasped the fact that the nation was heterogeneous and that different groups had different communications needs. In l95l, the Commission simply ignored the National NAACP's complaint about the racist "Amos 'n Andy" program; in l955, when Thurgood Marshall went onto the national news to reflect on Brown II, WLBT-TV put up its "Sorry, Cable Trouble" sign and the FCC did nothing. The


8/ Congress has recognized that children need far more in the way of healthy alternatives to standard commercial fare. See National Endowment for Children's Educational Television Act of l990, title II of Public Law l0l-437, l04 Stat. 997, approved Oct. l8, l990, codified at 47 U.S.C. 394 (l990). See also Declaration of Leslie Stehlin, Exhibit 6 hereto (describing the urgent need for educational television as a healthy alternative to the overwhelming dose of advertising aimed at young children on commercial television.)




Commission was a generation away from adopting EEO rules and minority ownership policies; there was only one minority owned radio station in the United States and there would be no minority owned television station for another 23 years. Not until l960 did the Commission state that service to minority groups was an obligation of all of its licensees.9/ For its part, in l952 Buffalo was locked in the dead of segregation, with with no Black elected officials or even a judge.

Thus, it was unsurprising that in l952, the Commission guessed wrong in predicting that public television service to Greater Buffalo could be assured by reserving only one channel. Indeed, the Commission did not even reserve the right channel! WNYPBA signed on WNED-TV in l959 on Channel l7 -- the technically superior but nonreserved allotment. So to paraphrase Chris Rock, the Commission was wrong -- but we can understand.

We are here today in this fix only because the l952 Commission acted erroneously and irreversibly. If the current Commission, knowing what it knows now, could time-travel to l952 and irreversibly lock in the number of reservations for Buffalo, surely it would allot two. It would certainly not fear that Buffalo could someday have a shortage of commercial facilities. Not counting WNEQ-TV, Buffalo is served by eight commercial channels -- more


9/ See En Banc Programming Inquiry, 44 FCC 2303 (l960). Even then, the Commission apparently did not consider overruling Southland Television Co., l0 RR 699 (decided l955, reported l957), recon denied, 20 FCC l59 (l955), in which it had held that segregationists possessed the character to be broadcast licensees.



than there are national networks. Commercial operators also provide service on multiple cable channels and on three low power television stations. Moreover, as we have noted, Buffalo has proven over the past fourteen years that it is capable of sustaining two noncommercial channels successfully.

3. Buffalo Viewers Are Entitled To

Stability In Television Service

Buffalo television viewers should be able to go to sleep knowing that they may rely on the two channel public television that they have enjoyed for fourteen years. Television viewers are never aware of whether the television station they are watching is operating on a channel that lacks an asterisk in the l952 Table. Their understanding of a station's purpose, and their expectations for a television station, derive from their knowledge of what the station has actually been broadcasting.

The absence of two channel public television would have direct as well as subtle consequences. The slow degradation of cultural and civic life attendant to the loss of public television stations -- or a museum, an orchestra or a library -- defies easy quantification or description. Nonetheless, the loss of a public television station has significant practical consequences. People who rely on public television typically are the working poor who cannot afford cable. Often, they have latchkey children. The availability of thirteen hours a day of noncommercial children's programming on Channel 23 (see Exhibit 4 hereto) has provided much-needed support for working parents. Without WNEQ-TV, parents would have two choices: accept that the pace of their children's intellectual and cultural development will decline, or pay the money to get cable or a babysitter. See Exhibit 6 hereto.


The public is entitled to minimal expectations of television service because television licensees have expectations. In recent years, the Commission has recognized that its licensees are entitled to expect that their obligations to serve the public will not be subjected to sudden and unpredictable change. Investors are unlikely to plow funds into an industry that lacks stability. Indeed, even when stability means deterring competitors, the purpose of industry stability is to benefit the public. On that theory, incumbent licensees have long enjoyed a renewal expectancy, l0/ which Congress has converted into a virtual guarantee. ll/

Similarly, Congress recently decided that low power FM radio could not be expanded beyond rural areas without considering its economic impact on commercial radio stations. l2/ Thus, Congress intended that commercial broadcasters should enjoy an inherent expectancy that they will receive no fringe interference if it might affect their stations' profitability.


l0/ See Cowles Broadcasting, Inc., 86 FCC2d 993, l0l3 (l98l) (justifying near-dispositive renewal expectancy for incumbent faced with comparative renewal applicant on the basis that replacing incumbent might "deprive the community of an acceptable service and replace it with an inferior one" and a desire to encourage licensees "through the likelihood of renewal to make investments to ensure quality service.") The Court affirmed, cautioning that the Commission that it must ensure that any such "renewal expectancy will be factored in for the benefit of the public, not for incumbent broadcasters." Central Florida Enterprises, Inc. v. FCC, 683 F.2d 503, 506 (D.C. Cir. l982), cert denied, 460 U.S. l084 (l983).

ll/ 47 U.S.C. 309(k)(4) (codifying Section 204(a)(l) of the

Telecommunications Act of l996).




The viewers have at least as much an expectation of stability in service

offerings as do the broadcasters. As noted above, broadcast industry ownership

is predicated on benefits to the viewers. Consequently, the public's well established expectations of service are entitled to considerable respect. Having invested their money in receivers and a quarter of their time in viewership, "it is the rights of the viewers and listeners that are paramount."l3/

Buffalo's viewers have enjoyed the service of WNEQ-TV for fourteen years. Parents with children born in l980 were able to supplement their children's schooling with educational programs available only on WNEQ-TV. Today, those children are ready to start their own families, and they too have the right to expect that their children will enjoy the same educational services they enjoyed as children.

Similarly, ethnic and minority groups in Buffalo, who enjoyed such programs as "America's Black Forum" and "Point of View" and local documentaries on WNEQ-TV, have a right to expect that the FCC will not hesitate to protect them. Elderly viewers, who have enjoyed WNEQ-TV's documentaries on elderly issues such as transportation and health care, have a right to expect that this irreplacable service will continue. See Exhibits 4-6 hereto.


l2/ See P.L. l06-553 (2000); see also Creation of Low Power RadioService (Report and Order), l5 FCC Rcd 2205 (2000) (on appeal sub nom [get name of case] ("LPFM R&O") (Statement of Commissioner Michael K. Powell, Dissenting in Part) (Opinion of Commissioner Powell, Dissenting in Part) (noting that the Commission "regularly consider[s] the economic impacts of our actions on licensees.")

l3/ Office of Communication of the United Church of Christ v. FCC, 359 F.2d 994, l006 (D.C. Cir. l966).


This expectancy is legitimate and substantial and it cannot be met by WNED-TV alone. By definition, WNED-TV's one channel of service cannot absorb WNEQ-TV's programs serving children, the elderly and minorities. As the Commission observed in Pittsburgh, a second station's programming "cannot be fully replaced simply by extending the hours of operation" of the primary station. Id. at ll7l0 2l. No matter how WNYPBA might slice it, elimination of WNEQ-TV would reduce the amount of noncommercial programming available in Greater Buffalo -- particularly educational children's programming.

The l.6 million citizens of Greater Buffalo know that two channel public television can be maintained successfully in their community. Two channel public television is also operated successfully in fourteen other communities, sometimes without even the financial protection conferred by duopoly ownership. l4/ In fifteen communities (a list overlapping those with two public television stations) noncommercial stations operate on nonreserved channels. l5/


l4/ There are evidently fifteen markets -- most quite large -- in which a noncommercial station operates on a nonreserved channel. The markets are: Orlando, FL, Evansville, IN, Indianapolis, IN, Flint, MI, Kansas City, MO, St. Louis, MO, Charlotte, NC, N. Platte, NE, Albany, NY, Buffalo, NY, New York, NY, Oklahoma City, OK, Greenville, SC, Harlingen, TX, and Waco, TX. Whether one considers this a flood or a mere handful of endangered stations is a matter of degree. See MO&O at 5 l0. In the public television world, fifteen stations is a flood. That many stations are a significant factor in any national marketplace for endangered programming. These stations' loss would make it considerably more difficult for educational and alternative programmers to achieve the critical mass of public television outlets required to cover their production costs.

l5/ See Noncommercial Comparative Standards (R&O), l5 FCC Rcd at 7429 l04.





It is in these communities with standalone public television stations that viewers face the gravest risk from this application. Standalone public television stations operating on nonreserved channels cannot fall back in lean times on income drawn by a co-owned flagship station. Nor can standalone stations benefit from the economies of scale flowing from joint operations. Thus, a decision granting this application would open the door to the sale of significant numbers of public television stations to commercial interests -- on almost any showing. l6/

C. The Commission Cannot Change A Basic Policy

Without A Very Compelling Justification

An agency may change its policies if it is aware that it is doing so and it offers a rational justification for the change in poliy. If it departs from existing policy "it must provide 'a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored.'"l7/

A very compelling justification indeed would be required to justify the reversal of a core policy maintained without interruption for decades. No grounds for such a justification exist. In its application and in earlier papers in ________________________

l6/ In this instance, WNYPBA has made only the most vague promises to use the proceeds of the sale of WNEQ-TV for digital conversion and to underwrite a production company that would offer unspecified programming to the national public television marketplace. These promises would not even be binding. Any licensee could put these kinds of promises in an assignment application in good faith. See p. 25 infra.

l7/ WLOS TV, Inc. v. FCC, 932 F.2d 993, 996 (D.C. Cir. l99l) (quoting Greater Boston Television Corp. v. FCC, 444 F.2d 84l, 852 (D.C. Cir. l970)). See also Motor Vehicle Manufacturers Ass'n. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 43 (l983).


other proceedings, WNYPBA has offered virtually nothing at all to justify the truly extraordinary step of surrendering a public television station to a commercial operator. See pp. 23-24 infra.

Consequently, the Commission should follow the approach articulated by Commissioner Ness in a closely analogous case:

I decline to disturb long standing Commission precedent, especially with a decision that could ripple through the country, putting undue pressure on other public television stations to sell what essentially is their birthright. The strength of our noncommercial system flows from the combination of quality programming for underserved audiences and distribution over a system of reserved television stations in each market that blankets the country.

Pittsburgh, ll FCC Rcd at ll7l4 (Separate Statement of Commissioner Susan


II. WNYPBA Has Failed To Meet Its Burden Under Section 3l0(d) Of The Act Of Showing That The Proposed Transaction Will Promote Competition And Diversity

A. The Assignment Application Contains Nothing

That Would Justify A Departure From The

Two Channel Public Television Policy

Under Section 3l0(d) of the Communications Act, the Commission may approve this application only if it determines that "the public interest, convenience, and necessity will be served thereby." That determination is made by considering

whether the proposed transaction would be consistent with the Communications Act and the Commission's rules and, in addition to complying with those rules, whether the transaction would otherwise serve the public interest. Where broadcast licenses are concerned, the effects of a proposed transaction on the diversity of voices and economic competition in a given market have long been core considerations in determining whether a transaction services the public interest, convenience and necessity.


Shareholders of AMFM, Inc. and Clear Channel Communications, Inc., l5 FCC Rcd l6062, l6066 7 (fns. omitted). l8/

In this instance, the Commission's longstanding two channel public television policy is starting point for any analysis of "the effects of [this proposed] transaction on the diversity of voices and economic competition" in Buffalo. Id. CNM has made out a prima facie case that this proposed transaction would contravene that policy. WNYPBA's sparsely worded application does not make a serious attempt to justify the extraordinary relief a grant of this application would require. The only language anywhere in the application that arguably refers to a public interest benefit is a recitation -- in one of LIN's exhibits -- that in the allotment rulemaking, the Commission "found that the proceeds of the sale of WNEQ-TV would be used to upgrade WNED-TV to digital service and thus provide expanded service to the community." l9/ LIN is merely saying that WNYPBA is seeking an opportunity to do what it is required to do in any event -- comply with the rule governing DTV


l8/ Cf. Letter to William S. Reyner, Jr. from Roy J. Stewart,

December 2l, 2000, in re Applications for Assignment of Licneses from Subsidiaries of Chris-Craft Industries, Inc. to Fox Television Stations, Inc., File Nos. BALCT-200009l8ABB, et al., at 3 (assignment applicants required to "supplement the record with an explanatory statement illustrating how the proposed transaction will benefit the public interest. The applicants may, for example, address the effects of the proposed transaction on such issues as local programming, economic competition, transaction-specific efficiencies that can demonstrably lead to consumer benefits, productivity enhancements that will flow through to consumers, and improved incentives for innovation that can lead to foreseeable benefits to consumers.") Actually, it would be impossible for WNYPBA to make such a showing. The consequences of the loss of WNEQ-TV would be so grevious that it is difficult to imagine what possible countervailing benefits could justify it.




conversion. Other public broadcasters will observe that rule without the proceeds of the sale of a television station. LIN does not even mention any other uses of the sale proceeds in its public interest showing.

Thus, WNYPBA has made no showing at all that this proposed transaction would promote the diversity of voices or competition -- much less that the transaction's benefits would be so remarkable that they would justify a departure from the bedrock two channel public television policy. Actually, by interring WNEQ-TV's noncommercial service, the net effect of the transaction would be a substantial and irreplacable reduction in diversity and competition.

B. WNYPBA's Plan Is Nonbinding,

Nonspecific And Nonjustifiable

Even reading WNYPBA's proposal in the most liberal way possible -- by incorporating into the application WNYPBA's l998 Petition for Rulemaking20/ -- WNYPBA cannot be found to have met its burden of showing that the benefits of its plan come close to outweighing the consequences of losing two channel public television in buffalo. There are three difficulties with WNYPBA's plan: it is nonbinding, it is nonspecific, and it is nonjustifiable.


l9/ WIVB Broadcasting, LLC FCC Form 3l4, Exhibit No. l, Section II, 3 and Section III, l.

20/ See WNYPBA Petition for Rulemaking at 4 (proceeds of sale would create an "endowment" that "will lead to enriched educational and community outreach services, will raise [WNYPBA] to the position of a major television and radio producer, and will enable it to acquire additional programs for both television and radio" and "defray the costs, associated with converting by 2003 to digital broadcast service, which are not covered by federal and state grants.")



l. It is nonbinding. There is no reason at all why WNYPBA could not draw down the $26.2 million sale price from LIN and then decide to use it to construct a more elaborate edifice to house the WNYPBA administrative staff. There is also no reason at all why WNYPBA could not use most of its proposed program production slush fund to develop programs aimed at what CNM believes to be WNYPBA's real target -- the Toronto, Canada market. See Exhibit 2 hereto (showing how WNED-TV's Grade B contour encompasses Toronto).

2. It is nonspecific. WNYPBA proposes to create an "endowment" that "will lead to enriched educational and community outreach services" elevate WNYPBA to "the position of a major television and radio producer, and [] enable it to acquire additional programs for both television and radio." Petition for Rulemaking at 4. What does that mean? Either WNYPBA does not know what it proposes to do with the production money, or its purpose is to raise a slush fund and figure out a use for it later. The public and the Commission deserve to know more before accepting the premature death of a successful public television station.

3. It is nonjustifiable. Even if DTV ever takes hold, 2l/ there is no known reason why WNYPBA faces unique difficulties with digital conversion not experienced by the other approximately 250 public television licensees. While WNYPBA has estimated the cost of DTV conversion at $7-l0 million,



2l/ Notwithstanding the May, 2003 public TV buildout deadline and the 2006 DTV conversion deadline, DTV sets have hardly been flying off the shelves. Moreover, the cable industry understandably is not eager to relinquish the majority of its channel capacity to local broadcasters.


the actual out of pocket cost to WNYPBA would probably be much less. 22/

As for public television syndicated programming, WNYPBA's plan is a solution in search of a problem. The national noncommercial market is well supplied; there certainly is no content shortage crisis. In producing programs for the national noncommercial market, stations in medium sized communities like Buffalo are inherently disadvantaged when matched against stations in communities with the size, human and financial resources and diversity of New York, Boston, Los Angeles or San Francisco. Although Buffalo viewers are crying out for more Buffalo programming, the national public television community is not beating down the doors for it. WNYPBA certainly has offered no showing that the national programs it might choose to produce cannot be produced elsewhere, would not be produced elsewhere, or are not now being produced elsewhere. Moreover, the loss of WNEQ-TV's airtime would profoundly inhibit the ability of Buffalo's independent television producers to reach the local community with programs not intended for national syndication. See Declaration of Tony Conrad, Exhibit 7 hereto. The loss of WNEQ-TV's airtime would ensure that WNYPBA will use most of its proposed slush fund to produce programs for national syndication, rather than programs designed to serve the local needs of Buffalo. 23/


22/ See Petition for Rulemaking at 4 (giving WNYPBA's estimate for the entire cost of digital conversion. WNYPBA acknowledged that it only desires to secure from the sale of WNEQ-TV those "costs, associated with converting by 2003 to digital broadcast service, which are not covered by federal and state Id. WNYPBA has never indicated how much, if any, of the cost of its digital conversion cannot be covered by federal or state grants.


C. No Mitigating Factors Justify A Departure

From The Two Channel Public Television Policy

A fact question to be determined at the hearing is whether any extraordinary extenuating circumstances justify waiver of the two channel public television policy. By hearing the testimony of witnesses (or accepting stipulations) an ALJ can determine the answers to two central questions of facts:

l. Is there a desperate need for another commercial television station, e.g., a vast disproportionality between the number of commercial channels and the number of national networks?

2. Was it impossible for WNYPBA to have sold other assets or divested WNEQ-TV to another noncommercial entity?

If the answers are no, the application must be denied. As shown below, WNYPBA has made no showing at all that the Commission should depart from its two channel public television policy.

l. There Is No Shortage Of

Commercial Service In Buffalo

It might be argued that an extreme shortage of commercial facilities in a community could justify the conversion of a noncommercial station to commercial use. For example, if there were no commercial channels available for WB, UPN or PAX, a case might be made for a first-ever redeployment of a


23/ In any event, if WNYPBA really has any program concepts that would be of interest to other public broadcasters, it does not need a $20+ million slush fund to get started. It can rely on the marketplace, like every other program producer does. Proceeding the old fashioned way, it can develop a pilot, circulate it to its 250-odd public television colleagues, gather up their preclearances and go to the bank. In public broadcasting, the marketplace should be preferred to welfare.


noncommercial channel to commercial use. 24/

Nonetheless, this argument cannot even be advanced in Buffalo. Not counting WNEQ-TV, full power Buffalo stations offer the ABC, NBC, CBS, Fox, WB, UPN, and PAX networks; an eighth station offers the non-network TBN service. Thus, there are actually more Buffalo commercial channels than there are networks.

2. WNYPBA Failed To Exhaust Less

Radical Alternatives Than A

Sale Of One Of Its Crown Jewels

Before asking the government to depart from a decades-old policy, an applicant must show that it has attempted and exhausted less radical alternatives. 25/ In this instance, several such


24/ Such an argument was made by the noncommercial two channel

licensee in Pittsburgh, ll FCC Rcd at ll705 l0. Pittsburgh had seven full power commercial stations, with WB operating on an LPTV. CNM would strenuously disagree with this argument were it made in this proceeding.

25/ The Commission is deeply committed to the search for less restrictive alternatives before weakening bedrock substantive policies. Examples abound. The Commission would never tread on what a broadcaster might perceive to be its First Amendment right unless there is no alternative. See, e.g., Policies and Rules Concerning Children's Television Programming (Report and Order), ll FCC Rcd l0660, l066l 22 (l996) (finding that initial regulations had not been fully effective in securing additional educational and informational programming for children.) It seldom waives structural rules unless there is no alternative; e.g., Fox Television Stations, Inc., 8 FCC Rcd 534l, 5349 43 (l993), aff'd sub nom. Metropolitan Council of NAACP Branches v. FCC, 46 F.3d ll54 (D.C. Cir. l995) (granting News Corp. a permanent waiver of the TV-newspaper crossownership rule because no other buyer of the New York Post could be found). The Commission found it necessary to adopt EEO regulations because Title VII was inadequate as an alternative means to remedy discrimination and promote diversity. See Petition for Rulemaking to require Broadcast Licensees to Show Nondiscrimination in their Employment Practices (MO&O and NPRM), l3 FCC Rcd 7656, 767 and n. 2 (l968). It did not break down the AM clear channels until it had considered an immense array of

[n. 25 continued on p. 29]


alternatives were available. Obviously, it could have programmed WNEQ-TV more creatively to reach untapped markets of potential donors,26/ or it could have attempted to sell WNEQ-TV to a noncommercial operator, whether headquartered in Buffalo or elsewhere. 27/


25/ [continued from p. 28]

alternative means of serving local communities. Clear Channel Broadcasting in the AM Broadcast Band (Report and Order), 78 FCC2d l345, l364 et seq. (l978). It does not grant noncommercial FM short spacing waivers under 47 C.F.R. 73.207(b) unless the applicant can show that there are no less restrictive alternatives -- i.e., that there are no fully spaced sites available and no sites less short spaced that the proposed new site. See, e.g., Quinnipac College, 8 FCC Rcd 6285, 6287 l5 (l993). It did not approve new LPFM service until it became clear that there was no other way to promote diversity in ownership, given the growth of ownership consolidation. See LPFM R&O, l5 FCC Rcd at 2327 (Separate Statement of Commissioner Gloria Tristani). Finally, the Commission has refused to dereserve a public television allotment because the applicant had a less restrictive backup plan to sell the station to a noncommercial broadcaster. Pittsburgh, ll FCC Rcd at ll7l0 22.

26/ As the Commission recently pointed out, "there are many programming choices on [noncommercial educational] stations, such as instructional programs, programming selected by students, [B]ible study, cultural programming, in-depth news coverage, and children's programs such as Sesame Street that entertain as they teach." Reexamination of the Comparative Standards for Noncommercial Educational Applicants (Further NPRM), l3 FCC Rcd 2l667, 2l668 n. 2 (l998).

27/ Section 3l0(d) of the Communications Act does not allow the Commission to force WNYPBA to sell the station to a particular operator. However, in a series of holdings in cases alleging racial discrimination in the sale or marketing of stations, the Commission has repeatedly reached the merits, recognizing that it is not barred from requiring a licensee to market its station in a manner consistent with the Communications Act. See Univision Holdings, Inc., 7 FCC Rcd 6672, 6683-6684 (l992); petition for recon. dismissed, 8 FCC Rcd 393l (l993), (aff'd. by Memorandum sub nom. National Hispanic Media Coalition v. FCC, No. 92-l549 (D.C. Cir., filed October 30, l992) (finding no discrimination in sale of TV stations and TV network, but reaching the merits); Federal Broadcasting System, Inc., 62 FCC2d 86l, 872-873 (Rev. Bd. l977)

[n. 27 continued on p. 30]


To this it is no answer that the sale of WNEQ-TV to another noncommercial operator would not yield as much money as the sale to a commercial operator. Even if that were true -- which we do not know because WNYPBA apparently did not try to find out -- the public interest is not necessarily congruent with whatever outcome yields a licensee the highest pile of cash. 28/ The Commission seeks to promote competition and diversity, not to guarantee that its licensees become wealthy. 29/ That principle extends even to


27/ [continued from p. 29]

(radio station case, to the same effect); cf. NLT Corp., 52 RR2d 8l7, 8l9 (l982) (allegation that competing TV station intended to commence racially motivated advertiser boycott against Black owned TV station potential purchaser); cf. Evening Star Broadcasting Company, 68 FCC2d l36-l40, and l49-l55 (Dissenting Statement of Commissioner Joseph R. Fogarty), recon. denied, 68 FCC2d l58, l59-l63 (l978) (alleged breach of provision of citizens agreement providing that seller would consider minority buyers for its newspaper). Thus, while the Commission is barred from selecting a noncommercial operator to which WNYPBA could sell WNEQ-TV, it is not barred from directing that if WNYPBA wishes to sell WNEQ-TV, it must sell to a noncommercial operator.

28/ When this issue arose in Pittsburgh, the Commission gave it short shrift:

While WQED argues that under [its own backup plan to sell WQEX-TV to a noncommercial operator] it would receive smaller proceeds than from the sale of Channel l6 as a commercial station, it has not suggested that this alternative would produce income inadequate to avoid the service and programming losses that it predicts will occur absent some form of financial relief....

Id., ll FCC Rcd at ll7l0 22.

29/ See Policies Regarding Detrimental Effects of Proposed New Broadcast Stations on Existing Stations (Report and Order), 3 FCC Rcd 638, 640 (l988) (abandoning the policy embodied in Carroll Broadcasting Co. v. FCC, 258 F.2d 440 (D.C. Cir. l958, which had held that the Commission could interfere with the free market to prevent "ruinous competition").





its nonprofit licensees.30/ A lesser but still substantial cash infusion to WNYPBA, plus the continued value to the community of two channel public television service, is far preferable on its face to a huge cash infusion to WNYPBA but only one channel of noncommercial service.


The Commission's public broadcasting policies are clear. WNYPBA's application offers no showing that these policies should be disregarded, and no showing under Section 3l0(d) of the Act that would allow the Commission to find that the proposed transaction would serve the public interest by promoting diversity and competition. This application is not grantable and therefore it must be designated for hearing.


Respectfully submitted,

David Honig
3636 l6th Street N.W.
Suite B-366
Washington, D.C. 200l0
(202) 332-7005
Counsel for the Coalition for
Noncommercial Media
January 5, 200l


30/ Cf. Quinnipac College, supra, 8 FCC Rcd at 6287 l6 (FM short-spacing applicant's "mere desire to increase power and coverage is not a valid public interest factor which would warrant the waiver" (citing other cases on point)).






I, David Honig, hereby certify that I have this 5th day of January, 200l caused the foregoing "Petition to Deny" to be delivered by U.S. First Class Mail, Postage Prepaid, to:

Malcolm G. Stevenson, Esq.
Schwartz Woods & Miller
l350 Connecticut Ave. N.W.
Suite 300
Washington, D.C. 20036
William B. Fitz, Esq.
Covington & Burling
l20l Pennsylvania Ave. N.W.
Washington, D.C. 20004