Two small Western-state TV stations have notified the FCC that they plan on moving from Nevada and Wyoming 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.
When the FCC first allocated TV frequencies, only two states — New Jersey and Delaware — did not receive commercial VHF allotments. Recognizing this inequity, in 1982 Congress enacted Section 331(a) of the Communications Act, which mandates the FCC's policy to allocate commercial VHF TV channels such that “not less than one such channel shall be allocated to each state, if technically feasible.” 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 feasibility 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 on 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, NJ. This resolved the renewal problem, and New Jersey had its first commercial VHF TV station.
In reallocating 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 would once again have no commercial VHF station, while Delaware never had one.
Viewing these facts and law as an opportunity, an enterprising broadcaster bought VHF TV stations on DTV Channel 3 in the Ely, NV, population 4040, and DTV Channel 2 in Jackson, WY, population 9038. The broadcaster then notified the FCC that it wanted to move its two stations to Middletown Township, NJ, and Wilmington, DE, respectively, and asked for the license modifications 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 permanent 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 proposal, 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.
Harry C. Martin is a member of Fletcher, Heald and Hildreth, PLC.
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