, Inc. WEDW(TV), Bridgeport, CT (Fac. ID 13594) Request for Tolling – Permit No. 0000036047

Justification for Tolling

Connecticut Public Broadcasting, Inc. (“Licensee”), licensee of WEDW(TV), Bridgeport, Connecticut (Fac. ID 13594) (“Station”) hereby submits this request for tolling its post‐Incentive Auction facilities construction permit for a distributed transmission system, File No. 0000036047 (the “CP”) while the grant of the CP remains subject to administrative review.1

Background

On April 13, 2017, the FCC released the Incentive Auction Closing and Channel Reassignment Public Notice, in which it reassigned WEDW from pre‐auction DTV channel 49 to post‐auction DTV channel 21. On June 26, 2017, Licensee filed its initial filing window application for a construction permit for WEDW to operate on the baseline channel 21 facility specified in the Closing and Channel Reassignment PN, which the FCC granted on June 29, 2017. File No. 000025204. On December 6, 2017, Licensee filed an application to implement a distributed transmission system (the “DTS Application”). File No. 0000036047. The DTS Application proposed to utilize WEDW’s existing tower in Bridgeport (the “Bridgeport Facility”) as DTS Site 1 and a new antenna on Empire State Building as DTS Site 2 (the “ESB Facility”).

PMCM TV, LLC (“PMCM”) filed an informal objection to the DTS Application on February 12, 2018, to which Licensee timely responded. See Pleading File No. 0000041948. While the DTS Application was still pending, PMCM filed a supplement to its informal objection on September 26, 2018, to which Licensee also timely responded. See Pleading File No. 000059901. On June 12, 2019, the Media Bureau issued a Letter Order denying PMCM’s informal objection and granting the DTS Application.2

Because the Media Bureau did not grant the DTS Application until less than two months before the CP expiration date, Licensee sought and received an initial six month extension of the CP expiration date until and including January 23, 2020. In granting the extension, the Media Bureau found that the delays were “due to an adjudicatory proceeding” and outside the Licensee’s control.3 The Bureau also determined that grant of the extension was “not likely to negatively impact the overall transition schedule” because Licensee planned to (and did) cease

1 Licensee is a party to channel sharing agreements with full power television station WZME(TV), Bridgeport, Connecticut (Fac. ID 70493) and low power television station WTXX‐LD, New Haven, Connecticut (Fac. ID 31453). 2 See Letter from Barbara A. Kreisman, Chief, Video Division, Media Bureau to Connecticut Public Broadcasting, Inc. (June 12, 2019) (the “Letter Order”). 3 See Letter from Barbara A. Kreisman, Chief, Video Division, Media Bureau to Connecticut Public Broadcasting, Inc. (Aug. 16, 2019).

1

Connecticut Public Broadcasting, Inc. WEDW(TV), Bridgeport, CT (Fac. ID 13594) Request for Tolling – Permit No. 0000036047

operations on its pre‐auction channel and operate an interim facility on its post‐auction channel.

While Licensee’s request for an extension of the CP was pending, PMCM filed an Application for Review of the Letter Order on July 15, 2019. Although the pleading cycle on the Application for Review closed on August 13, 2019, the Commission has not yet issued a decision. Due to the resulting uncertainty, Licensee has been unable to make the investment necessary to prepare for and construct the DTS authorized in the CP.

Argument

The Commission should grant the instant request and toll the CP as of the date Licensee filed its initial request for an extension of the CP, providing Licensee with 196 days from the date the Commission releases a final order disposing of the Application for Review to complete construction of the DTS.

In the Public Notice adopting the post‐Incentive Auction transition scheduling plan, the Media Bureau and the Incentive Auction Task Force declared that “[r]eassigned stations and band changing stations that are unable to complete construction of their post‐auction channel facilities by their deadlines may seek a single extension of up to 180 days.”4 All subsequent requests for additional time to construct are subject to the Commission’s tolling provisions of Section 73.3598(b) of the Rules.5 The Commission’s tolling provisions provide that a construction permit deadline may be tolled under specific circumstances such as acts of God, delays due to administrative or judicial review, or construction that is delayed by any cause of action pending before a court of competent jurisdiction relating to any necessary local, state, or federal requirement for the construction or operation of the station, including any zoning or environmental requirement.6 If a station does not qualify for tolling under these criteria, good cause may exist to waive the Commission’s tolling provisions and still toll the expiration of the Station’s construction permit where the station can demonstrate that “rare and exceptional circumstances” prevented construction.7

4 Incentive Auction Task Force & Media Bureau Adopt A Post‐Incentive Auction Transition Scheduling Plan, Public Notice, 32 FCC Rcd. 890 ¶ 40 (MB & IATF 2017); 47 CFR § 73.3700(b)(5). 5 47 C.F.R. § 73.3598(b). 6 Id. 7 See 1998 Biennial Regulatory Review ‐‐ Streamlining of Mass Media Applications, Rules, and Processes, Memorandum Opinion and Order, 14 FCC Rcd. 17525 ¶ 42 (1999) (recognizing that there may be “rare and exceptional circumstances” beyond the control of the licensee that do not fall under the tolling provisions, but “which would warrant the tolling of construction time.”

2

Connecticut Public Broadcasting, Inc. WEDW(TV), Bridgeport, CT (Fac. ID 13594) Request for Tolling – Permit No. 0000036047

Tolling is appropriate under the present circumstances. The Commission’s rules provide for tolling of the broadcast construction period when construction is prevented by “administrative review,” which the rules define as “petitions for reconsideration and applications for review of the grant of a construction permit.”8 Here, the Bureau’s grant of the CP in the Letter Order is the subject of a pending application for review.9 Accordingly, the present circumstances fall squarely within the eligibility for tolling.

In the alternative, the Commission should waive Section 73.3598(b) of the Rules for good cause. The Media Bureau has recognized, in the context of the post‐Incentive Auction transition, that waiver of the tolling provisions is appropriate where: (1) a station was unable to complete construction of its post‐auction facilities due to circumstances that were outside of its control, and (2) the tolling request is not likely to negatively impact the overall transition schedule and will not cause interference to other stations.10 As the Bureau acknowledged in granting Licensee’s request to extend the CP, Licensee’s inability to complete construction of the Stations’ permanent facilities is due to circumstances beyond its control and the result of pending adjudicatory proceedings. Furthermore, grant of the instant request is not likely to negatively impact the overall transition schedule and will not cause interference to other stations because the Station is already operating on its post‐auction channel using interim facilities.

The period of tolling that Licensee is seeking—196 days—is appropriate given the nature of the CP to construct a DTS. Once the grant of the DTS Application becomes final and unappealable, Licensee will need to execute a lease for the ESB Facility, complete the engineering for the DTS, and order and install the equipment necessary to operate a second transmitter site. Even accounting for the tolling period, Licensee will still need to construct a complex DTS facility in well under the three year construction period that the Commission typically provides.

8 47 C.F.R. § 73.3598(b)(ii). 9 To the extent necessary, Licensee seeks a waiver of the requirement to notify the Commission of the event necessitating tolling within 30 days. See id. § 73.3598(c). At the time PMCM filed its Application for Review, Licensee had already notified the Commission regarding the need to extend the CP, and Licensee’s request remained pending. Moreover, the Commission was on notice of the Application for Review when PMCM filed its pleading with the Commission. 10 See, e.g., Letter from Barbara A. Kreisman, Chief, Video Division, Media Bureau, to Christian Television of Palm Beach County, Inc. (Oct. 2, 2019) (File No. 0000080773); Letter from Barbara A. Kreisman, Chief, Video Division, Media Bureau, to The School Board of Miami — Dade County, FL (Oct. 2, 2019) (File No. 0000080759); Letter from Barbara A. Kreisman, Chief, Video Division, Media Bureau, to WNWO Licensee. LLC (Oct. 2, 2019) (File No. 0000073443).

3

Connecticut Public Broadcasting, Inc. WEDW(TV), Bridgeport, CT (Fac. ID 13594) Request for Tolling – Permit No. 0000036047

Conclusion

Because Licensee’s inability to complete construction of the Station’s permanent facilities is due to administrative review beyond Licensee’s control and the Station has already transitioned to its post‐transition channel using interim facilities, good cause exists to toll the CP or waive Section 73.3598(b) of the Rules. Accordingly, the Commission should toll the Station’s CP until the date that is 196 days after the Commission releases an order disposing of the Application for Review.

4