David Earl Honig
Attorney at Law
3636 - 16th Street N.W.
Suite B-366
Washington, D.C. 20010

February 9, 200l

Hon. Magalie Roman Salas
Federal Communications Commission
445 l2th Street S.W.
Washington, D.C. 20554

Dear Ms. Roman Salas:

RE: Application of Western New York Public Broadcasting
Association for Voluntary Assignment of License of Noncommercial Educational Station WNEQ-TV, Channel 23, Buffalo, New York to WIVB Broadcasting, LLC, File No. BALET-2000ll22AAU

The Coalition for Noncommercial Media ("CNM"), petitioner to deny the above-referenced application, respectfully reports that on the evening of January 30, 200l, Western New York Public Broadcasting Association ("WNYPBA") changed the call letters of WNEQ-TV to "WNLO-TV" and began operating it as a commercial station under an LMA with WIVB Broadcasting, LLC ("LIN"). CMN requests the Commission to respond to this outrageous development by acting now, pursuant to its revocation authority under Section 3l2 of the Communications Act and 47 C.F.R. 73.3539(c), to require WNYPBA to file early applications for renewal of all of its analog and digital broadcast licenses. l/

These facts should be noted.

l. On November 22, 2000, WNYPBA filed an application to assign the Channel 23 license to LIN ("Application"). Attached to the Application was a "Local Marketing Agreement between Western New York Public Broadcasting Association and LIN Television Corporation," dated November 8, 2000.

2. On January 5, 200l, CNM timely filed a petition to deny ("Petition"). CNM alleged that the assignment application contained nothing to justify a departure from the Commission's longstanding policy promoting two channel public television; that WNYPBA's plans to use the proceeds of the sale of WNEQ-TV were nonbinding, nonspecific and nonjustifiable. CNM also contended that no mitigating factors, such as a shortage of commercial service or the failure of efforts to sell WNEQ-TV to nonprofit buyers, justified the sale.


l/ The early renewal procedure is described and was applied in Leflore Broadcasting Co., Inc., 36 FCC2d l0l (l972).

Hon. Magalie Roman Salas
February 9, 200l
Page Two.

3. On January ll, 200l, CNM filed a Motion for Preliminary Injunction, or in the Alternative, Motion to Show Cause ("Motion").

4. On January l8, 200l, WNYPBA and LIN each timely filed oppositions to the Petition. WNYPBA and LIN contended that the proposed sale was consistent with precedent and that the Commission [actually, the Bureau] had approved the commercialization of other public television stations on nonreserved channels.

5. Also on January l8, 200l, WNYPBA and LIN each filed oppositions to the Motion. These oppositions were filed early, not having been due until January 24, 200l.

5. On January 29, 200l, CNM timely filed its Reply to the oppositions to the Petition. This pleading was due January 30, 200l.

6. Also on January 29, 200l, CNM filed a Reply to the oppositions to the Motion. This CNM pleading was not due until February 5, 200l.

7. The next day, January 30, 200l, WNYPBA changed WNEQ-TV's call letters to "WNLO-TV" and began commercial service on the station. Channel 23 is now rebroadcasting a Channel 4 newscast and airing reruns of "Three's Company," "Too Close for Comfort," "Amen" and "Charles in Charge." 2/

WNYPBA has lost its way as a provider of public television. In l998, WNYPBA proposed to sell WNEQ-TV to a commercial broadcaster, and thus cut in half Buffalo's noncommercial television service. In doing so, it made vague promises to use the sale proceeds to pay for that portion of digital conversion costs that will not be met by government grants. 3/ It also promised to use additional proceeds of the sale to fund an "endowment" to support unspecified "enriched educational and community outreach services", "raise [WNYPBA] to the position of a major television and radio producer" and enable WNYPBA "to acquire additional programs for both television and radio." 4/


2/ This seems to be WNYPBA's response to the Commission's hope for "innovation and creativity in the public broadcast field." 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), FCC 00-l30 (released April l9, 2000) at 3 6. See also 47 U.S.C. 396(a)(6) (federal public broadcasting policy includes Congressional finding that "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[.]")

3/ See WNYPBA Petition for Rulemaking, MM Docket No. 98-l75 and RM-9364 (filed May 29, l998) at 3.

4/ Id. at 4.

Hon. Magalie Roman Salas
February 9, 200l
Page Three.

WNYPBA evidently never even tried to sell Channel 23 to another noncommercial entity, and WNYPBA can't imagine what it would do if it were blessed with eight digital noncommercial channels. 5/ That is strange enough for a public broadcaster, but WNYPBA's vigilante action commercializing Channel 23 was way over the top. WNYPBA acted in the face of CNM's pending motion for injunctive relief or for a show cause order. The motion was fully pled by January 29, but just a few hours later WNYPBA took precisely the action CNM sought to have enjoined.

By doing this, WNYPBA displayed a profound disrespect for the Commission's normal procedures. With digital conversion not due until May, 2003 (if then), WNYPBA had no urgent need to deprive the Commission of its ability to decide, in the first instance, whether to grant relief that could have prevented the interruption of noncommercial service on Channel 23.

Consider this: a rare stand of virgin redwood trees sits on privately owned land, unprotected by federal regulation. Environmentalists ask the Interior Department for an injuction to protect the trees from logging. The request for injunctive relief is fully briefed on an expedited basis. Just one day later, loggers hired by the landowner begin to cut down the trees.

On those facts, certainly the Interior Department would order an immediate halt to the tree-cutting, and it would consider whether to grant a permanent injunction. 6/ In like manner, faced with WNYPBA's cutting down of a public television television station on a nonreserved channel, the Commission should act immediately to restore the status quo and thereby protect the resource it is charged with preserving.

Last week, WNYPBA declared war on its own audience. The Commission is respectfully requested to initiate proceedings to revoke WNYPBA's licenses.

Respectfully submitted,

David Honig
Counsel for the Coalition
for Noncommercial Media
cc: Malcolm G. Stevenson, Esq.
William B. Fitz, Esq.


5/ See Reply Comments of WNYPBA, MM Docket No. 98-l75 and RM-9364 (filed December 4, l998) at l5.