The FCC has signaled that not even the COVID-19 pandemic can justify a market modification petition without the requisite evidence. 

That came in its denial of a request by the Montezuma County, Colo., Board of Commissioners, that DISH be allowed to deliver KUSA TV Denver to Montezuma County, Colo., which is currently assigned to the Albuquerque, N.M. market, an out-of-state DMA that makes Montezuma an orphan county deprived of local news and sports on its satellite carrier. 

Related: Gray TV Draws Crowd to FCC Satellite Petition 

The board told the FCC that its residents had been unable to get "important news from their state capitol, and have been unable to receive any direct information from Colorado’s Governor “regarding statewide and citizen directives concerning the COVID-19 pandemic.” 

But the FCC said that because the board's petition for market modification lacks the necessary evidence, it must reject it without prejudice, which means it can be refiled with that additional information and the FCC will consider it then.  

"The Commission’s rules direct that petitions failing to make a complete evidentiary showing “shall be dismissed without prejudice,” the Media Bureau said. "We find that the evidence submitted by Montezuma does not adhere to the evidentiary standards established in the Commission’s rules. Nor does the County seek any necessary waivers or demonstrate that it made a good faith effort to obtain the missing evidence. Montezuma must address these deficiencies in order for the Commission to fully conduct its analysis." 

But what about the COVID-19 element. The FCC has loosened some rules in the wake of the pandemic, though mostly in efforts to speed broadband deployment, telemedicine and distance learning.  

"While we recognize the importance of consumers receiving local broadcast news from their state, particularly in light of the COVID-19 health crisis, even these unusual circumstances do not justify an action that is contrary to Commission directives, especially in light of the fact that the effects of granting this Petition will extend well beyond this crisis." 

The U.S.  Court of Appeals for the Sixth Circuit has dismissed, and out of hand, a 2013 challenge to the FCC's decision to grant Cox's (now Apollo's) CBS affiliate WHIO Dayton, Ohio, must-carry rights in a nearby county, saying there was no injury to the broadcasters who brought the challenge so they had no standing to challenge it. 

Editor's note: The story initially said it was the FCC denying the petition, but it was in fact the FCC announcing the court decision. 

After a 2013 Nielsen change to the DMA, which the FCC uses to determine TV station markets, WHIO-TV lost must carry rights in Auglaize County, Ohio, which is between Dayton and Lima, Ohio. The Nielsen DMA reassigned WHIO to the Lima market and Cox petitioned the FCC to modify the FCC's Dayton market to include WHIO. The FCC can, and does, do so on a case by case basis.  

In this case, the FCC's Media Bureau found that there was good cause for the modification and granted it. “'Given the station’s history of carriage, its provision of local programming, and the meaningful viewership shares garnered by WHIO in these communities,' the Bureau [has] granted Cox’s petition to modify its local market, thereby giving WHIO must-carry rights with cable systems in Auglaize County," the FCC said at the time. 

Block Communications had initially sought to block the move, asking the FCC to reconsider its decision and essentially reading it the riot act, saying the decision was "arbitrary, capricious, and an abuse of discretion; violates federal law, including, but not limited to, the Communications Act of 1934, as amended, and FCC regulations, policies and/or procedures promulgated thereunder; is unsupported by the facts or substantial evidence; and is otherwise contrary to law.”  

Block was looking to block the move because it programs a digital affiliate in Dayton with CBS programming, and said it and was concered that MVPDs might drop it in favor of WHIO because, as a low-power station, it has no must-carry rights on MVPDs, the FCC said. 

The full Commission upheld the Media Bureau decision, though it took until 2018 to make that call. Block then petitioned the court to review its 2018 decision. It is that petition that was denied Tuesday (April 6) for lack of standing. 

The court points out that since the move of WHIO back to Dayton, cable systems in Auglaize County have continued to carry Block's programming. Because Block Communications has failed to demonstrate an injury attributable to the FCC order including the Auglaize County communities in WHIO’s television market, we dismiss the case for lack of standing."