Cross-Country Moves

By Harry C. Martin

Two TV stations ask to move from Nevada and Wyoming to compete in the Philadelphia and New York markets.

Two small Western-state TV stations have notified the FCC that they plan on moving from Wyoming and Nevada to Delaware and New Jersey, where they would compete in the Philadelphia and New York markets, respectively. Strangely enough, existing law may support these moves.


Background

When the FCC first allocated TV frequencies, only two states - New Jersey and Delaware - did not receive commercial VHF allocations. Recognizing this inequality, in 1982 Congress enacted Section 331(a) of the Communicatiosn Act, which mandates the FCC's policy to allocate commercial VHF TV channels such that "not less than one such channel shall be allocatted to each state, if technically feasable." And if a commercial VHF licensee notifies the FCC that it is willing to have its channel moved to a community with no VHF commercial station, then the Commission "Shall" order the reallocation and grant the license modification.

The technical feasability condition kept Delaware from obtaining any local VHF channels in the next 27-years due to the need to protect stations in nearby Baltimore, Philadelphia and New York. But in New Jersey, the owners of New York station WOR-TV, then VHF channel 9, were embroiled in a difficult license renewal contest. Taking advantage of Section 331, they asked the FCC to reallocate their channel from New York to Secaucus, New Jersey. This resolved the renewal problem, and New Jersey had its first VHF TV station.

In reallocatting TV channels for DTV, the FCC again did not allot any commercial VHF channels to New Jersey or Delaware. This meant that once the old Secaucus station moved from Channel 9 to DTV Channel 38, New Jersey once again have no commercial VHF station, while Delaware never had one.


The Proposal

Viewing these facts and law as an opportunity, an enterprising broadcaster bought VHF TV stations on DTV channel 3 in Ely, Nevada, population 4040, and DTV Channel 2 in Jackson, Wyoming, population 9030. The broadcaster then notified the FCC that it wanted to move its two stations to Middletown Township, New Jersey and Wilmington, Delaware respectively, and asked for the license modification necessary to accommodate the moves.

Operation of the stations in Middletown Township and Wilmington will not technically foreclose continued use of Channels 3 and 2 in Ely and Jackson. The Commission could easily reallocate those channels back to the communities on a permanant basis. And it could grant interim operating authority to deserving "eligible entities" (small businesses) such as the ones the Commission has been seeking to promote through its diversification initiatives. The proponent of the moves to Delaware and New Jersey has even offered to provide interim low-power TV service to Ely from an LPTV station it is acquiring in that market.

The FCC has yet to react to this propsal, but if it follows Section 331, Delaware will have its own full-power commercial VHF station for the first time, and New Jersey's full-power commercial VHF service will be restored.

This Article was written for Broadcast Engineering by Harry C. Martin, a member of the communications law firm Fletcher, Heald and Hildreth, PLC.