Federal Communications Commission Record 11 FCC Red No.5

DA 96-179 Federal Communications Commission Record 11 FCC Red No.5

Dear Counsel: Before the Federal Communications Commission This letter refers to: (i) the captioned applications to Washington, D.C. 20554 assign the licenses of the listed FM translator stations from Apollo Radio of Salt Lake City, Inc. ("Apollo") to Regent Licensee of Salt Lake City, Inc. ("Regent"); (ii) Apollo's LETTER June 1, 1995 request for waiver of 47 C.F.R. §74.1232(d) to February 8, 1996 permit it to own (and therefore ultimately to sell to Re- gent) five FM translator stations operating outside the ser- Released: February 22, 1996 vice contour of their primary station; and (iii) Apollo's November 22, 1995 supplement to the waiver request. For IN REPLY REFER TO: the reasons stated below, we will grant the waiver request and assignment application 1 800B3-MFW with respect to Station K288AD, Myton, Utah, and deny the waiver request and Kevin C. Boyle, Esq. dismiss the assignment applications for the other listed FM translator stations. Melissa A. McOonigal, Esq. Tize waiter request. Apollo, the former license of, inter Latham & Watkins alia, station KODJ(FM) Salt Lake City, Utah, is also the Suite 1300 licensee of FM Translator Stations K22IAC, Manti, Utah; 1001 Pennsylvania Avenue, N.W. K257AA, Vernal, Utah; K258AB, Price, Utah; K288AA, Washington, D.C. 20004-2505 Evanston, Wyoming; and K288AD, Myton, Utah (collectively, the "affected translators"), which rebroadcast Peter Gutmann, Esq. KODJ(FM). The coverage contours of the affected translators extend beyond the protected Contour of Pepper & Corazzini KODJ(FM) in violation of 47 C.F.R. §74.1232(d) which Suite 200 provides, in pertinent part: 1776 K Street, N.W. Washington, D.C. 20006 An FM translator station in operation prior to June 1, 1991,1 which is owned by a commercial FM radio In re: K257AA, Vernal, Utah broadcast station and whose coverage contour extends BALFT-950628GN beyond the protected contour of the primary station, may continue to be owned by a commercial FM K285AB, Price, Utah radio broadcast station until June 1, 1994. Thereafter, any such FM translator station must be owned by BALFT-950628G0 independent parties.

K221AC, Manti, Utah On January 1, 1993, Apollo acquired the license and BALFT-950628GP assets of KODJ(FM) as well as those of the affected translators. Apollo requested a waiver of Section 74.1232(d) K288AD, Myton, Utah on June 1, 1994, the day compliance with that rule was BALFT-950628G0 mandated. On June 28, 1995, Apollo applied to sell KODJ(FM) and the affected translators, as well as its other K288AA, Evanston, Wyoming stations, to Regent. Because of ownership questions raised by Apollo's waiver request, the Mass Media Bureau de- BALFT-950628GS ferred action on the applications for assignment of the affected translators. Apollo Radio of Salt Lake City. Inc., Assignor In support of the waiver request, Apollo states that, Regent Licensee of Salt Lake City, Inc., Assignee absent a waiver, it would be required to divest itself of the affected translators, which would be tantamount to requir- Request for Waiver of 47 C.F.R. §74.1232(d) ing that they cease operations. Apollo claims that there is "little primary FM broadcast service in the rural areas that KODJ(FM) can reach"2 through the affected translators, and "terminating long-standing services in already underserved areas clearly would be contrary to the public interest."3 Apollo argues that the Commission has stated

Apollo states that Stations K22IAC, Manti, K257AA, Vernal, On August 25, 1995, we approved the sale of station K285AB, Price, and K288AD, Myton have been in operation for KODJ(FM) (among others) and FM translator K285BH, Park over 21 years. while station K288AA, Evanston, Wyoming, has City. Utah from Apollo to Regent. We also waived Section been in operation for over 11 years. 2 74.1232(d) for 120 days in order for Apollo to amend its perma- Apollo indicates that two Class A FM stations (KARB and nent waiver request to supply certain specified additional in- KRPO) are licensed to serve Price, Utah, and that Class A formation. Letter to Kevin C. Boyle, Eric L. Bernihal, Esq., and stations KLCY and KIFX are licensed to Vernal and Roosevelt, Peter Gutmann, Esq., Utah, respectively. It does not indicate what other signals may reference 1800B3-MFW (Chief, Audio Ser- vices Division, August 25, 1995). Apollo and Regent consum- be received in the area covered by the affected translators. mated the KODJ and K285BH sale on October 26. 1995.

2348

11 FCC Red No.5 Federal Communications Commission Record DA 96-179

that "it will be favorably disposed" toward granting waivers o Complete coverage by KSL(AM), KMXU(FM), where translators outside the protected contour of their Manti primary station serve "white areas," and has suggested that waivers are appropriate to allow continued provision of K257AA, Vernal, UT (pop. 6644) service to remote areas experiencing limited radio service. Grant of the waiver, claims Apollo, will not undermine the o 2 services cover most of contour, 3 cover the rest Commission's stated policy in enacting the FM translator o complete coverage by KLCY, Vernal, KIFX, Roo- eligibility rules -- that FM service develops primarily sevelt through full-service FM stations and not through o partial coverage by KVEL, Vernal translators -- because the affected translators do not operate as a substitute for an upgrade of KODJ(FM). Rather, they act as "true translators, bringing secondary reception ser- K285AB, Price, UT (pop. 8712) vice to remote, sparsely populated areas." o 1 service to majority of contour; remainder of the In its November 22 amendment, submitted at the request contour gets 2 or 3 signals of the Audio Services Division Chief, Apollo submits the o Complete coverage by KOAL(AM), Price following specific information with respect to its attempt to divest the translators and the areas served by the affected o Predicted coverage by KMXU, Manti, but no actual translators: I mV/rn coverage due to terrain o KARB(FM), KPRQ(FM), Price provide partial coverage EFFORTS PRIOR TO 6-1-94 TO LOCATE AN INDEPEN- DENT OWNER K288AA, Evanston, WY (pop. 10,903) o Before Apollo bought the stations in 1993, the o complete coverage by 2 stations, partial coverage by prior licensee's President, George C. Hatch, directed a third station his Chief Engineer to contact the 5 cities served. None were interested or economically capable of o KOTB, Evanston and KSL provide complete cov- running the affected translators erage o Mr. Hatch's subsequent "reasonable efforts" to find o KEVA, Evanston provides partial coverage an independent party capable of supporting the affected translators were not successful Apollo argues that the affected translators provide service to unserved and "underserved" (fewer than o More recently, Apollo contacted the mayors of the 5 stations)4 areas, provide "valuable first and second service" to 5 cities. While the mayors think that the affected white/gray areas, and provide a diversity of choice to other translators are important to their communities, they areas. remain unwilling or unable to operate them o "To the best of its knowledge," there are no interested independent operators willing to operate the IMPACT ON FULL-SERVICE STATIONS affected translators o Apollo receives no advertising revenue from any of the 5 translator towns, does not sell advertising there, and has no plans tO do so WHITE (0 STATIONS)/GRAY (1 STA- TION)/UNDERSERVED AREAS o Affected translators do not retransmit signal of small-market station into a large market and there- K288AD, Myton, UT (pop. 468) fore dont inflict economic harm or restrain the development of full-service FM broadcasting o No station serves entire contour, there is some white area, some "gray" area Discussion. In MM Docket No. 88-l40, the Commission o 4 FM stations in Provo serve parts of the contour tightened and/or clarified several technical and operational o KSL(AM), Salt Lake City, serves another part of requirements for FM translators after affirming that the the contour proper role for FM translators was to supplement the service provided by FM radio broadcast stations.6 K221AC, Manti, UT (pop. 2268) Among the amended regulations was that contained in Section 74.1232(d) prohibiting a commercial FM broad- o There are areas of contour which receive 5, 4, 3, or caster from owning an FM translator if the translator's 2 full-time services coverage contour extends beyon,d the primary station's cov- o Partial coverage by 4 stations (2 AM, 2 FM) erage contour. However, the Commission also stated that:

' In proceedings in which 47 U.S.C. §307(b) is at issue, the ing additional FM service nationwide is by creating opportu- commission has defined an underserved area as one receiving nities for the establishment and development of full-service FM fewer than five aural signals. stations. We believe that a modification of our rules to permit Notice of Inquiry, 3 FCC Rcd 3664 (1988); Report and Order, the expansion of FM service through the use of translators 5 FCC Rcd 7212 (1990); Memorandwn Opinion and Order, 8 would be inconsistent with our basic FM allotment scheme." FCC Rcd 5093 (1993). Report and Order in MM Docket No. 88-140, 5 FCC Rcd at 6 In so doing, the Commission wrote that it continued "to 7215. believe that the most appropriate and efficient means of provid-

2349

DA 96-179 Federal Communications Commission Record 11 FCC Red No. 5

in situations where a licensee establishes that [full- ators in the relevant communities. However, the decision time aural] service is indeed unavailable, we will be was based not only on the potential for economic harm to favorably disposed toward requests for waivers of this full-service station operators but also on the Commission's rule to address these unique circumstances. Within conclusion that "any enhancements to FM service are most the context of this proceeding, we will define a efficiently provided by full-service FM stations .... [Tjhe "white area" as any area outside the coverage contour new ownership and financial support limitations adopted of any full-time aural service. We emphasize that in in [the Report and Order j will best serve the public interest order for commercial primary stations to own by promoting incentives for primary station development." translators in such areas, the Commission will re- Id., at 5094. In any event, we are constrained by the strong quire a showing of a lack of service in accordance and unequivocal Commission pronouncements quoted with the "white area" definition given above. above that permanent waivers of the FM translator ownership restrictions may only be granted if the licensee dem- Report and Order in MM Docket No. 88-140, 5 FCC Rcd onstrates that the subject translator provides service to a at7216. Realizing that rapid compliance with this require- white area. Waiver will be denied and the assignment ment could result in disruption of service to the public for applications dismissed for all translator stations except FM translator operators with limited financial means, the K288AD, where the service contour appears to consist of Commission gave existing FM translator operators three approximately 60% white area.9 years to come into compliance with the new service rules. With respect to Station K288AD, we believe that waiver However, the Commission clearly anticipated that the new is warranted in accordance with the "white area" waiver rules might require the termination of certain FM provision. By providing a first aural service to the majority translator operations, because it made no provision MM of its coverage contour, Station K288AD fundamentally Docket 88-140 for permanent waiver of the ownership fulfills the traditional purpose of an FM translator -- bring- requirements in situations other than those involving ing a first aural service to a small pocket of population "white areas." To this end, it established a procedure for whose needs are unlikely to be served by a full-service FM extending the time within which existing translator oper- station -- and thus complies with the letter and spirit of ations must come into compliance: MM Docket No. 88-140. Waiver of Section 74.1232(d) and assignment application No. BALFT-950628GQ therefore The Commission recognizes the limited resources of will be granted for Station K288AD. many FM translator licensees affected by the new Conclusions/Ordering Clauses. In light of our dismissal of rules and desires to refrain from imposing an extraor- Apollo's Vernal, Price, Manti, and Evanston FM translator dinary burden through the compliance process. assignment applications, the licenses for these stations re- Therefore, we will also entertain waivers for extended main in Apollo's hands. Apollo may continue to own and grandfathering periods for those licensees showing operate these translators in its own right, so long as it that the public would unduly lose service if compli- receives no support, directly or indirectly, from Regent, the ance with the new service rules were required within newlicensee of KODJ(FM). Alternatively, Apollo may seek three years. to assign these station licenses to any other qualified ap- plicant. Id., at 7232. Accordingly, in light of the above discussion. IT IS OR- DERED, that the petition for waiver of Section 74.1232(d) In this case, it is clear that, with the exception of Station filed by Apollo Radio of Salt Lake City, Inc. IS GRANTED K288AD, Myton, Utah, none of the affected translators with respect to station K288AD, Myton, Utah and IS DE- provides first aural service to any "white area."8 These NIED in all other respects. IT IS FURTHER ORDERED stations therfore do not come under the white area waiver that the application for assignment of the license and sale provision. of the assets of Station K288AD from Apollo Radio of Salt Furthermore, the Commission has expressly refused to Lake City, Inc. to Regent Licensee of Salt Lake City. Inc. accept an argument that waiver could be based either on (File No. BALFT-950628G0) IS GRANTED, and the ap- the provision of a second service to a "gray" area or the plications for assignment of license and sale of the assets of provision of an additional service to an "underserved" area stations K257AA, Vernal, Utah; K285AB, Price Utah; K221AC, Manti, Utah; and K288AA, Evanston, Wyoming which receives fewer than five aural services. See Memoran- dum Opinion and Order in MM Docket No. 88-140, 8 FCC (File Nos. BALFT-950628G N. BALFT-950628G0, BALFT- Rcd at 5094-5. Apollo recognizes this fact, hut argues that 950628GP, and BALFT-950628GS, respectively) ARE DIS- the Commission's analysis in rejecting that argument fo- MISSED. cused on the potential for economic harm to full-service station operators from FM translators. Apollo reiterates that its translators inflict no such harm on station oper-

On reconsideration, the Commission affirmed that "an indefi- vice contour consists of white area. nite grandfathering period would undermine the effectiveness of We note that our actions here may not result in an imminent the new rules in returning the FM translator service to its loss of service to the four affected communities, because we are original secondary role. Instead, we continue to believe that the not requiring that Apollo cease operating the affected translators Report 's provision for extended waivers will adequately prevent and because apparently Apollo's predecessor, Communications the public from unduly losing service in unique circumstances." Investment corporation (or its corporate successor entities) has Memorandum Opinion and Order in MM Docket No. 88-140, 8 a contractual obligation to operate the affected translators for FCC Rcd at 5100. ten years in the event that the waiver request is denied. See 8 Ii appears that approximately 60% of Station K288DA's ser- November 22 amendment, at 7, n.5.

2350

11 FCC Rcd No.5 Federal Communications Commission Record DA 96-179

Sincerely,

Linda B. Blair Acting Chief, Audio Services Division Mass Media Bureau

2351