Federal Communications Commission
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Amendment of Section 73.622(i),
MB Docket No. 11-139
Post-Transition Table of DTV Allotments,
Television Broadcast Stations
(Hampton-Norfolk, Virginia; Norfolk, Virginia-
Elizabeth City, North Carolina)
REPORT AND ORDER
Adopted: February 21, 2013
Released: February 22, 2013
By the Chief, Video Division, Media Bureau:
At the request of Hampton Roads Educational Telecommunications Association (HRETA),
licensee of noncommercial educational television station WHRO-TV, channel *16, Hampton-Norfolk,
Virginia, the Commission has before it a Notice of Proposed Rulemaking
, seeking comment on HRETA’s
proposed reallotment of its channel *16 to Norfolk, Virginia-Elizabeth City, North Carolina, and to modify
station WHRO-TV’s license to specify Norfolk, Virginia-Elizabeth City, North Carolina as its community of
license.1 Charter Communications (Charter) and the University of North Carolina (UNC) filed comments,
and HRETA filed a Reply. For the reasons discussed below, we deny HRETA’s request to modify its
community of license, and dismiss the Petition.
INTRODUCTION AND BACKGROUND
Section 307(b) of the Communications Act of 1934, as amended (the Act),2 requires that
station assignments be made to “communities.”3 HRETA filed its reallotment proposal pursuant to Section
1.420(i) of the Commission’s Rules,4 which permits the modification of a station’s license to specify a new
community of license without affording other interested parties an opportunity to file competing expressions
of interest.5 In considering a reallotment proposal, the Commission compares the existing allotment versus
1 Amendment of Section 73.622(i), Post-Transition Table of DTV Allotments, Television Broadcast Stations
(Hampton-Norfolk, Virginia; Norfolk, Virginia-Elizabeth City, North Carolina)
, Notice of Proposed Rulemaking, 26
FCC Rcd 11304 (MB 2011) (Notice
2 47 U.S.C. § 307(b).
3 In the Matter of FM Assignment Policies and Procedures
, Second Report and Order, 90 FCC 2d 88, 101 (1982)
(Assignment Policies and Procedures
). See also Mighty-Mac Broadcasting Co
., Second Report and Order, 101 FCC
2d 303 (1985).
4 47 C.F.R. § 1.420(i).5 See Modification of FM and TV Authorizations to Specify a New Community of License
, Report and Order, 4 FCC
Rcd 4870 (1989), recon. granted in part
, 5 FCC Rcd 7094 (1990).
Federal Communications Commission
the proposed allotment to determine whether the reallotment will result in a preferential arrangement of
In its rulemaking petition, HRETA asserts that this change will accomplish a preferential
arrangement of allotments, consistent with the Commission’s section 307(b) mandate to promote a fair,
efficient and equitable distribution of service. HRETA represents that while Elizabeth City, North
Carolina presently has no local television station, it has a population of 17,188, and is the center of the
Elizabeth City Micropolitan Statistical Area, which has a population of 57,267 according to a 2004
Census estimate. Based on these and other representations regarding Elizabeth City’s make-up, HRETA
concludes that Elizabeth City deserves its own television station.7
HRETA further argues that reallotment would advance the Commission’s allotment
priorities by providing Elizabeth City with its first local television service, without violating any of the
other priorities. HRETA also pledges that it will not abandon it long-standing obligation to meet the
needs of Hampton, Virginia. HRETA states that Hampton is part of the Norfolk Metropolitan Area, that
WHRO-TV will continue to be licensed to Norfolk, and that it will continue to consult with community
leaders in Hampton as well as to ascertain the needs of that community and develop programming to meet
HRETA also submits that it satisfies the standard set forth in section 73.622 of the rules,
which requires a petitioner for a change in location to demonstrate that it can provide the required city
coverage to its new community of license. HRETA does not propose to relocate the transmitter site for
WHRO-TV, nor is it proposing to operate on a different channel, and submits an engineering statement
that concludes that the station already provides the requisite coverage to both Norfolk and Elizabeth City.
HRETA notes that the predicted community contours of the station will remain the same and there will be
no change in the area or population served by the station with its over-the-air signal. HRETA further
states that the station’s programming will not change except to the extent needed to serve the needs of
The Media Bureau issued the Notice
on August 17, 2011, granting HRETA’s request for
a waiver of the Commission’s freeze on the filing of petitions for rulemaking by television stations to
change their community of license.8
explained that the section 1.420(i) modification
procedure is limited to specific situations,9 and sought comment on the proposed amendment to section
73.622(i) of the Commission’s rules, from Hampton-Norfolk, Virginia, to Norfolk, Virginia-Elizabeth
6 This determination is based upon the television allotment priorities set forth in Amendment of Section 3.606 of the
Commission’s Rules and Regulations
, Sixth Report and Order, 41 F.C.C. 148, 167-173 (1952). The television
allotment priorities are to: (1) provide at least one television service to all parts of the United States; (2) provide
each community with at least one television broadcast station; (3) provide a choice of at least two television services
to all parts of the United States; (4) provide each community with at least two television broadcast stations; and (5)
assign any remaining channels to communities based on population, geographic location, and the number of
television services available to the community from stations located in other communities.
7 Petition at 4. HRETA further states that Elizabeth City is home to two colleges, a branch of the University of
North Carolina and a U.S. Coast Guard command. Elizabeth City is incorporated and has its own mayor and city
council. Elizabeth City has its own newspaper, The Daily Advance¸
and two AM and three FM broadcast stations.
, 26 FCC Rcd at 11304 (citing “Freeze on the Filing of Certain TV and DTV Requests for Allotment or
Service Area Changes,” Public Notice, 19 FCC Rcd 14810 (MB 2004)).
, 26 FCC Rcd at 11305 (citing Modification of FM and TV Authorization to Specify a New Community of
4 FCC Rcd 4870 (1989), recon. granted in part
, Memorandum Opinion and Order, 5 FCC Rcd 7094
Federal Communications Commission
City, North Carolina.10 HRETA filed comments in support of its Petition, and Charter and UNC filed
comments opposing the grant of the Petition.
In its comments, HRETA asserts that its proposed reallotment comports with all three
components of the section 1.420(i) modification procedure. First, HRETA states that its proposal to
change its community of license to Norfolk-Elizabeth City is mutually exclusive with its current
authorization at Hampton-Norfolk because the predicted contours will remain the same. Second,
according to HRETA, the proposed allotment at Elizabeth City would create a preferential arrangement of
allotments. Third, WVEC-TV would continue to be licensed to Hampton, and therefore there would be
no deprivation of the sole existing local station to any community.
Charter opposes the proposed community of license change as being contrary to
established Commission policy and the public interest. Charter argues that HRETA has not made any
showing that a hyphenated allotment is justified, and further asserts that Elizabeth City and Norfolk are
two disparate and independent communities nearly 45 miles apart. Charter points to Commission
precedent disfavoring the use of hyphenated allotments, and maintains that HRETA fails to meet the
standard of a compelling showing that hyphenation is warranted. Specifically, Charter points to a
previous notice of proposed rulemaking stating that the Commission refrains from making hyphenated
allotments, and will do so “only where it appeared that the communities should be treated as one due to:
(1) common interest and mutual economic, cultural, and social interdependence; (2) a showing that
neither of the communities could alone support a station; or (3) in order to determine close questions of
fact at the hearing stage.”11 Charter asserts that the current proposal before the Commission fails because
it does not involve a comparative hearing; Norfolk already has other television stations licensed to it;
HRETA provides no basis whatsoever for employing a hyphenated allotment; and the demographic and
other information available indicate that Norfolk and Elizabeth are independent.
Charter also asserts that the proposal is deficient because it would fail to bring any new
service to the Elizabeth City community. Charter points to the Petition itself, which states that
WHRO-TV’s site and facilities will not be improved, upgraded, or expanded in any way, and that
HRETA has not identified any needs or community-specific programming. Charter alleges that the
mission statement, annual report, web-site, and very call letters of WHRO-TV, as well as its dedication to
the related communities of Norfolk and Hampton for the last 50 years, make it difficult to imagine
HRETA undermining its Hampton Roads commitment for an independent city nearly 45 miles away.
Further, Charter points to the Commission’s recent denial of carriage to HRETA on
Charter’s Manteo, North Carolina cable system, and suggests that HRETA’s true purpose for pursuing its
flawed proposal is to gain mandatory carriage rights.12 Charter argues that it would be perverse to permit
a station to circumvent a Commission signal carriage order by manipulating the allotment table for the
purpose of gaining mandatory carriage rights beyond those provided by the rules.
In its comments, UNC also argues that HRETA has not presented any evidence to
establish that the hyphenation of Norfolk-Elizabeth City creates a viable community for allotment
purposes. UNC advances three reasons why the proposal does not further the Commission’s allotment
priorities. First, adopting such a reallotment would undermine the original basis of Hampton’s
10 The Federal Register published the Notice
on August 31, 2011. 78 Fed. Reg. 54189 (2011).
11 Charter Comments at 3 (citing Section 73.606(b), Table of Allotments, Television Broadcast Stations (Bryan and
College Station, Texas)
, Notice of Proposed Rule Making, 2 FCC Rcd 3420 (MMB 1987)).
12 Charter Comments at 7 (citing Complaint of Hampton Roads Educational Telecommunications Association, Inc.,
v. Charter Communications, Inc. for Carriage of WHRO-TV, Hampton-Norfolk, Virginia (Request for Section 403
, Memorandum Opinion and Order, 24 FCC Rcd 14390 (MB 2009)).
Federal Communications Commission
hyphenated authorization. According to UNC, in adopting the DTV Table of Allotments, the
Commission summarily abandoned the use of hyphenated markets from its analog table, and only
continues to recognize one compound allotment – the Hampton-Norfolk allotment that belongs to
WHRO-TV.13 UNC argues that HRETA’s failure to request a waiver of the Commission’s policy to end
the use of hyphenated markets in the DTV Table of Allotments warrants a dismissal of the Petition
without further consideration.
Second, UNC argues that HRETA falls far short of meeting the high standard for
hyphenating a market for allotment purposes. UNC points to prior cases where the Commission has
established that petitioners seeking hyphenated allotments must make “a very compelling showing.”14
According to UNC, localism requires broadcast stations to serve, primarily, one community, and there is
rarely a public interest benefit to permitting a station to choose from multiple locales. UNC charges that
HRETA falls well short of a “compelling” showing to overcome the presumption against hyphenation, as
it has made no showing and ignored the applicable decisions and governing standard. UNC cites to
multiple Commission notices and orders setting forth the three hyphenation categories recognized by the
Commission. For example, UNC points to the Commission’s decision to add Hampton and Newport
News to the prior Norfolk-Portsmouth television allotment, but to reject adding Virginia Beach to the
multi-hyphenated assignment market.15 UNC reasons that the Commission’s finding that Virginia Beach
fails to have the requisite common social, cultural, trade and economic interests and Hampton and the rest
of the cities in the community warrants a finding that Elizabeth City, North Carolina – which is even
further away and on a different body of water – certainly does not have the necessary degree of
interdependence with Norfolk.16
Third, UNC contends that in light of WHRO-TV’s core mission, granting the Petition
would do nothing to provide service to Elizabeth City. UNC argues that HRETA’s owners are the
Hampton Roads school districts, that HRETA’s bylaws and articles of incorporation expressly limit
ownership in the licensee company to Virginia school districts, and that the Petition itself expressly states
that HRETA will not abandon it longstanding obligation to meet the needs of Hampton, Virginia.17 UNC
argues that “[n]o amount of posturing about addressing the needs of Elizabeth City can mask the fact that
WHRO-TV’s principal mission will always be Hampton Roads.”18
In its Reply, HRETA responds to questions of hyphenation by stating that Norfolk and
Elizabeth City are in the same Designated Market Area (DMA), and “that commonality of interest is
decisively established by the fact that both communities are situated within the same DMA.” HRETA
13 UNC Comments at 7-8 (citing 47 C.F.R. § 73.622(i); Advanced Television Systems and Their Impact Upon the
Existing Television Broadcast Service
, Seventh Report and Order and Eighth Further Notice of Proposed
Rulemaking, 22 FCC Rcd 15581, 15622, para. 101 (2007) (“The Commission did not use hyphenated markets in the
initial DTV Table and did not use hyphenated markets in the new DTV Table proposed in the Seventh Further
.”) (footnote omitted)).
14 UNC Comments at 8 (citing Amendment of Section 73.606(b), Table of Allotments, TV Broadcast Stations (Bryan
and College Station, Texas)
, Report and Order, 3 FCC Rcd 2263 (MMB 1988)(Bryan-College Station Order
15 See UNC Comments at 10-22 (citing, among other cases, Amendment of Section 73.606(b), Table of Assignments.
Television Broadcast Stations (Hampton-Norfolk-Portsmouth-Newport News, Virginia)
, Report and Order, 53 Rad.
Reg. 2d 53, 55 (1983); Bryan-College Station Order
(rejecting proposal to hyphenate the proposed Bryan-College
Station, Texas allotment market)).
16 UNC Comments at 12-14.
17 UNC Comments at 25-27 (citing Petition at 4).
18 UNC Comments at 27-28.
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argues that the Commission dispositively relies upon Nielsen DMAs to define the market.19 HRETA
further states the commenters’ questioning of whether its programming will satisfy the needs of Elizabeth
City is off-base, because the Commission has never required allotment proposals to do more than commit
to ascertain the needs of the proposed community and agree to meet those needs. HRETA goes on to
dismiss the relevance of the allotment hyphenation cases cited by UNC as being over 20 years old and
dealing with brand new allotments, in contrast to the case before the Commission “where an existing,
already hyphenated allotment, is simply being changed without leaving the DMA.”20
HRETA contends that UNC’s broadcast station in Edenton, North Carolina is carried on
Charter’s cable systems serving the Outer Banks of North Carolina, and therefore the public interest will
be served by granting HRETA’s proposal by “leveling the playing field” and affording WHRO-TV the
same access. In response to Charter’s accusation that HRETA filed its petition in order to achieve
carriage of the WHRO-TV’s signal by Charter’s systems in the Outer Banks, HRETA says that it “pleads
guilty.”21 HRETA explains that this goal does not detract from the good that would be accomplished by
providing Elizabeth City with its first television service, and that if its community of license were
changed, HRETA would have an absolute obligation to ascertain public needs in Elizabeth City and
We conclude that Norfolk, Virginia–Elizabeth City, North Carolina fails to qualify as a
community for allotment purposes, and we dismiss the Petition. We find that HRETA has failed to make a
compelling showing that a hyphenated allotment is warranted as required by Commission precedent.
We agree with UNC that before we analyze whether the proposed reallotment advances the
Commission’s priorities, we must first examine whether the proposed hyphenation of Elizabeth City and
Norfolk qualifies as a community and a viable community of license. The Commission has a longstanding
policy disfavoring hyphenation of allotments.22 Specifically, the Commission has held that petitioners must
make a very compelling showing that the Commission should hyphenate,23 which it advanced to an even
greater degree by abandoning hyphenation in its adoption of the digital Table of Allotments. Therefore,
consistent with our precedent to refrain generally from hyphenating markets, we will apply the Commission’s
established three-pronged test, and will hyphenate only where it appears that the communities should be
treated as one due to: (1) common interest and mutual economic, cultural and social interdependence; (2) a
showing that neither of the communities could alone support a station; or (3) in order to determine close
questions of fact at the hearing stage.24
We conclude that HRETA has not demonstrated that Norfolk and Elizabeth City should be
treated as one community. Under the first prong, we determine based on the facts before us that we cannot
conclude that Norfolk and Elizabeth City have sufficient common interest or interdependence to warrant
19 HRETA Reply at 3-4 (citing KJLA, LLC
, Memorandum Opinion and Order, 26 FCC Rcd 12652 (MB 2011); Amendment of Section 76.51 of the Commission’s Rules to Include Merced and Porterville, California in the
Fresno-Visalia-Hanford-Clovis Television Market
, Notice of Proposed Rule Making, 15 FCC Rcd 164 (CSB 2000)
(Merced-Fresno Carriage Order
20 HRETA Reply at 4-5.
21 HRETA Reply at 5.
, Amendment of Section 73.606(b), Table of Allotments, TV Broadcast Stations, (Los Angeles and
, Report and Order, 6 FCC Rcd 5317, 5318, para. 1 n.2 (MMB 1991).
, Bryan-College Station Order
, 3 FCC Rcd at 2263, para. 2 (1988).
Federal Communications Commission
hyphenation. Rather, the evidence of Elizabeth City’s size, lack of proximity to Norfolk, and other
information submitted by HRETA indicate independence from rather than interdependence with Norfolk.
We find particularly relevant HRETA’s representations that Elizabeth City is the center of the separate
Elizabeth City Micropolitan Statistical Area with a population of 57,267 (2004 Census estimate); that it is
fully incorporated with a mayor and city council; that it is home to the largest U.S. Coast Guard command in
the nation; and that it has its own daily newspaper.
The Commission has rejected requests to hyphenate even where there has been some
demonstration of municipal service commonality,25 which exceeded the showing that HRETA has put forth
here. HRETA’s Petition, comments and reply do not provide any further evidence of commonality of
interest, other than to state that both communities are situated within the same DMA,26 which falls far short of
the particularized and compelling showing necessary to prove interdependence.
We disagree with HRETA that the DMA contours independently and dispositively
determine the geography of a community or otherwise axiomatically establish interdependence between
communities within that DMA. A DMA is a Nielsen-defined television market consisting of a unique
group of counties. The Commission has repeatedly made clear that local communities are not synonymous
with DMAs, including its recent pronouncement in the DTS Order
that the use of DMAs should not shift a
station’s primary focus from its community of license.27
In particular, we find HRETA’s reliance on the Merced/Fresno Carriage Order
line of cable carriage decisions to be unpersuasive and of limited relevance. In these cases, the Commission
considered amendment of section 76.51 of the Commission’s rules, rather than the proposed amendment of
section 73.622(i) currently before us. Section 76.51 enumerates the top 100 television markets and the
designated communities of those markets pursuant to section 614 of the Communications Act, and is used to
determine territorial exclusivity rights and cable carriage, among other issues.28 In contrast, we examine here
the appropriateness of a request to change a broadcaster’s community of license, which is based on the
bedrock responsibility of a licensee to serve the needs and interests of a particular community. Accordingly,
we reject the notion that we are compelled to grant a hyphenation request simply because a broadcaster has
the ability to identify any two municipalities within the same DMA.
HRETA also fails to meet the standards of the second and third prong of the test for
identifying a viable Norfolk-Elizabeth City community. With respect to the second prong, because there are
currently three television stations other than WHRO-TV licensed to Norfolk, we cannot conclude that
25 For instance, even though the communities of Dry Ridge and Williamstown, Kentucky both received sheriff,
hospital, library and ambulance service from Grant County, and Williamstown provided water service to Dry Ridge,
and electricity to parts of Dry Ridge, they had independent schools and separate city governments. Amendment of
Section 73.202(b), Table of Allotments, FM Broadcast Stations. (Moscow, Ohio; Paris, Wilmore, Morehead,
Falmouth, Winchester, Carrollton, Elizabethtown, Dry Ridge, Somerset, and Williamstown, Kentucky)
, MM Docket
No. 88-31, Report and Order 4 FCC Rcd 3441, 3443, paras. 19-20 (MMB 1988) (concluding that WKDJ’s showing
was insufficient to justify a hyphenated allotment, where the evidence submitted by WKDJ shows that
Williamstown and Dry Ridge are separate and distinct communities, with divergent economic, social, and political
26 Reply at 3.
27 Digital Television Distributed Transmission System Technologies
, 23 FCC Rcd 16731, 16744-46 at paras. 20-25
(2008) (DTS Order
) (“Broadcasters, however, are licensed to local communities, not DMAs, and for good reason. This
ensures that broadcasters are responsive to the unique interests and needs of the individual communities to which they
, Merced-Fresno Carriage Order
, 15 FCC Rcd at 1078, para. 2.
Federal Communications Commission
Norfolk is unable to support WHRO-TV on a stand-alone basis.29 Finally, the situation before us does not
implicate a competitive hearing.
IT IS ORDERED, That the Petition for Rulemaking filed by Hampton Roads Educational
Telecommunications Association to change station WHRO-TV’s community of license IS DENIED.
IT IS FURTHER ORDERED, That this proceeding IS TERMINATED.
For further information concerning the proceeding listed above, contact Jeremy Miller,
Media Bureau, (202) 418-1600.
FEDERAL COMMUNICATIONS COMMISSION
Barbara A. Kreisman
Chief, Video Division
29 WPXV-TV, WTKR, and WTVZ-TV.