TV station seeks FCC action in complaint

Tuesday, Aug. 26, 1997 | 2:07 a.m.

When airwave space is at a premium, the smaller players in the television game can put up a pretty big fight.

Such a battle is brewing between KLVX Channel 10, the local public broadcasting station that constantly is scratching for financing, and SuperChannels of Las Vegas, a wireless company looking to make inroads against local cable companies.

And it looks like only a showdown before the Federal Communications Commission will resolve the matter.

Last Friday, KLVX filed an FCC complaint against WANTV, operators of SuperChannels, alleging that the company is illegally using four frequencies that the FCC recently awarded to the PBS station, which is owned by the Clark County School District.

"This is what we call in the business air piracy," said Tom Axtell, general manager of KLVX. "This is a very serious crime in our industry."

Dan Lawrence, president pf SuperChannels, which is currently using the four frequencies to broadcast CNN, USA, Lifetime and TNT cable networks to its Southern Nevada subscribers, says he is doing nothing wrong.

"I categorically deny that we have done anything illegal," said Lawrence, who possesses an FCC-issued "experimental" license that has allowed his Henderson-based company to use those very frequencies since Oct. 17, 1994.

"I believe when the FCC looks at this complaint, they will laugh at it and kick it out."

Axtell, however, isn't laughing.

"They have been transmitting illegally on air frequencies they have no right to use," Axtell said. "And we don't know how long they have been doing this, but they have charged people for it and have made a considerable profit."

For several years, the two entities have battled over use of the four channels that are called "instructional television fixed service" frequencies by public broadcasting firms or "multiple multipoint distribution service" frequencies by wireless companies.

Each community gets 30 such frequencies, and in Southern Nevada the rest are taken -- eight of them by KLVX, not including the four channels in question.

The North American Catholic Education Programing Foundation, a Rhode Island company that had agreed to lease air time to SuperChannels had it won the contract to the frequencies in question, has filed an appeal with the FCC, asking it to rescind its decision to award the contract to KLVX.

"Basically they are using them (NACEPF) as a pass-through for their own corporate activities," Axtell said of SuperChannels' use of that company's greater resources to fight KLVX.

"Yes, we are supporting their (NACEPF's) efforts," Lawrence said. "They will lease us the air time that they won't be using. If KLVX would have offered us the air time, we would have thrown our support behind them."

Axtell said his company discovered SuperChannels was using the frequencies when KLVX went to test the system after the FCC granted it the right to use the channels.

"The Clark County School District has not won the channels yet," said Ed Zolt, a Washington attorney who specializes in FCC law and represents WANTV. "The grant was not a final order. It is pending a reconsideration hearing."

Axtell says that because SuperChannels has vowed to go through a lengthy litigation to defend itself, tying up use of the channels for many years, KLVX attorneys are pursuing "abuse of regulatory process" allegations as well.

Lawrence says a long battle may not occur because of a single piece of paper he keeps on file at his office -- permit No. 3287-EX-96, an FCC license allowing SuperChannels to use the four frequencies in question on an experimental basis through Oct. 1, 1998.

Besides, Lawrence says, in many communities public television gets just four channels. He said if KLVX is successful "in gobbling up these channels," it will control three times the number of frequencies such stations generally operate.

KLVX says it needs the channels to provide up to 50 hours per week of educational television for school children.

The complaint alleges, in part, that "SuperChannels' unlawful conduct could seriously impede CCSD's ability to construct and operate its own authorized ... station for the benefit of the School District's student body.

"Accordingly, the commission should expeditiously investigate SuperChannels' conduct and compel it to immediately cease its illegal operations."

Lawrence said he has offered an olive branch to KLVX in the form of new wireless technology in exchange for being allowed to lease air time.

"We are willing to offer KLVX digital compression, which will condense data into a much smaller frequency spectrum and enable them to offer 10 times as much data on one channel," Lawrence said.

"That would free up air time which they could in turn lease to us and receive the additional revenues that they are constantly looking for."