Court Orders New V’s In NYC, Philly Markets

The U.S. Court of Appeals for the District of Columbia has ruled against the FCC and ordered the commission to approve long-distance move-ins of VHF television stations from Nevada and Wyoming to Middletown Township, N.J., and Wilmington, Del. That would put them, respectively, in the New York and Philadelphia DMAs, with full must-carry rights.

The FCC had rejected the long-distance move-ins back in 2009, insisting that the law passed by Congress in 1982 to try to give a commercial VHF TV station to any state that didn’t have one didn’t apply to the proposals by PMCM TV LLC to jump its Western stations to the East Coast. The FCC then moved to close the loophole by allocating new digital VHF channels to communities in less populated areas of New Jersey and Delaware.

That didn’t stop PMCM, which sued the FCC and has now won a unanimous ruling by the three-judge federal appeals panel. The judges didn’t buy the FCC’s argument that the law didn’t include such long-distance reallocations. “Given the foregoing and given the commission’s concession that PMCM’s proposal is technically feasible, we reverse and remand to the commission with instructions to approve the reallocations,” the judges wrote.

The 1982 legislation had been tacked onto an unrelated bill by members of the New Jersey congressional delegation, seeking to get a major TV station for the heavily populated state sandwiched between New York and Philadelphia. RKO invoked the law to move WOR, then on ch. 9, from New York to nearby Secaucus, N.J., receiving an automatic license renewal as required by the law and short-circuiting a license revocation proceeding. The station has since become WWOR, been acquired by Fox and moved to ch. 38 in the digital transition.

It was the digital transition that opened the loophole discovered by Bob McAllan and his partners at PMCM. New Jersey and Delaware ended up without any digital station in the VHF band, since most broadcasters preferred to be in the UHF band for better digital signal coverage. They had paid $1 million for KJWY (ch. 2) Jackson, Wyo., and $200K for KVNV (ch. 4) Ely, Nev. As soon as the digital transition was complete, they informed the FCC that they were invoking the law to move the stations to fill the VHF vacuum in New Jersey and Delaware.

Noting that the FCC had acted quickly in the WOR case, McAllan says he didn’t expect the long legal battle that ensued. After all, the commission had years to decide that the law was obsolete and ask Congress for repeal. “No such move was ever made,” he notes.

“The point is, the congressional intent is the same. New Jersey and Delaware are still severely underserved by out-of-state media and I think this fulfills what Congress had originally intended,” McAllan told TVNewsCheck. Members of the New Jersey congressional delegation, including Reps. Chris Smith (R), Albio Sires (D), Steven Rothman (D) and Frank Pallone Jr. (D), had pressed the FCC to approve the PMCM effort to give New Jersey a new TV station, he noted.

McAllan and his partners — Richard Morena, Alfred Colantoni and Jules Plangere Jr. — are long-time veterans of New Jersey media, with Plangere having been involved in newspaper and radio ownership as far back as 1947. The four currently have investments in radio stations in New Jersey and Florida and previously owned TV stations in those states.

“I’ve been involved in broadcasting in New Jersey since 1964, which gives you some idea of how old I am. I have often begged, pleaded, cajoled, tried to make a case for better service for the residents of the state of New Jersey — because not only on the TV side, but also on AM and FM radio, considering the population of the state and the overshadowing from New York and Philadelphia, we’ve been short-changed,” McAllan says.

According to his attorney, Harry Cole of Fletcher, Heald & Hildreth PLC, the FCC has 45 days to decide whether to seek a rehearing of the Dec. 14 decision, either before the same three judges who ruled unanimously in favor of PMCM, or an en banc hearing before the entire panel of eight judges. The other option, with a 90-day clock ticking, is for the FCC to appeal the case to the U.S. Supreme Court. “That would be a very long shot,” says Cole, since the case has no constitutional issue and is very narrow in scope.

FCC attorney Joel Marcus, who argued the case for the commission, did not return a call seeking comment.

If the FCC decides to throw in the towel and issue CPs for the two stations, McAllan says he hopes to be on the air in 12-18 months. In particular, he wants to be on the air for satellite must-carry election in 2014.

Just what the stations will offer as programming is up in the air. McAllan says there was a plan in place back in 2009, when there were plenty of new DTV networks available. He’s heading to NATPE next month to see what’s available now.

In the meantime, McAllan says he and his partners have spent millions keeping the two stations on the air in their small markets and in legal costs to battle the FCC. So their investment is a lot more than the original $1.2 million, with construction costs yet to come.

Just what are the stations going to be worth once they’re on the air and on cable and satellite in DMA 1 and DMA 4? The only recent comp is CBS paying $55 million to make WLNY a duopoly partner to WCBS New York. McAllan says he has no idea what the value will be. Right now he’s just hoping to get the stations on the air as quickly as possible.