KETD Request for Waiver.Pdf

REQUEST FOR EXTENSION OF TRANSITION PHASE COMPLETION DATE AND WAIVER OF DEADLINE TO CEASE OPERATIONS ON PRE-AUCTION CHANNEL Estrella Television License LLC (“Estrella”), licensee of television station KETD(TV), Castle Rock, CO (“KETD” or “Station”) hereby submits this request for an extension of the Phase Completion Date for KETD and a waiver of the requirement in Section 73.3700(b)(4)(iii) of the Commission’s Rules that KETD must cease operating on its pre-auction channel within 39 months of the issuance of the Closing and Channel Reassignment Public Notice, or by July 3, 2020.1 As demonstrated below, grant of the requested extension and waiver will not frustrate the underlying policy of the Federal Communications Commission (“FCC” or “Commission”) and good cause exists for a grant of the requested relief to allow the Station to continue to operate on its pre-auction channel until it can transition to its post-auction channel. I. INTRODUCTION AND SUMMARY When the FCC adopted the Incentive Auction Report and Order in 2014, it sought to strike a balance between the interests of various stakeholders by “provid[ing] sufficient flexibility to both broadcasters and the Commission to ensure a successful, expeditious transition, while minimizing disruption to consumers and providing appropriate certainty to the wireless industry.”2 Accordingly, the Commission adopted a 36-month post-incentive auction transition period (the “Broadcast Construction Period”), designating authority to the Media Bureau to establish individual deadlines within the construction period subject to an outside date after which no stations may operate on their pre-auction channels. At the time, the Commission recognized that “the transition will be complex and time-consuming for a number of stations” 1 See 47 C.F.R. § 73.3700(b)(4)(iii); Expanding the Economic and Innovation Opportunities of Spectrum Through Incentive Auctions, Report and Order, 29 FCC Rcd. 6567, 6797, para. 563 (2014) (“Incentive Auction Report and Order”), aff’d, Nat’l Assoc. of Broadcasters, et al. v. FCC, 789 F.3d 165 (D.C. Cir. 2015); Incentive Auction Closing and Channel Reassignment Public Notice, 32 FCC Rcd. 2786, para. 68 (2017) (“Closing and Channel Reassignment Public Notice”). 2 Incentive Auction Report and Order, para. 561. Although a number of parties petitioned for reconsideration of the 36-month construction period, the Commission deferred consideration of those arguments. See Expanding the Economic and Innovation Opportunities of Spectrum Through Incentive Auctions, Second Order on Reconsideration, 30 FCC Rcd. 6746, para. 160 (2015). Estrella Television License LLC KETD(TV), Castle Rock, CO (Fac ID 37101) and that some stations would require “up to the full 36 months” to complete their transitions.3 The Commission committed to “work diligently with stations to ensure that service disruptions are minimized to the fullest extent possible.”4 Now, as the final repack deadline approaches, the Commission has acknowledged that “some limited number of . stations may . need to seek waivers of the phase 10 phase completion date and the post-auction transition period end date.”5 Estrella worked diligently to complete the KETD repack facility by the Phase 10 deadline. However, as the July 3, 2020 deadline approached, Estrella determined that the new pole on the ice bridge where KETD’s antenna was to be located did not have steps and, therefore, could not facilitate the climbing required to install KETD’s antenna. This request seeks a brief 30 day extension to allow KETD to install the antenna for its post-transition facilities and commence operation on its post-auction channel. Without a grant of the relief sought herein, KETD’s viewers will experience the very disruption that the Commission sought to avoid. Importantly, KETD’s continued operation on its pre-auction channel will not interfere with or delay any other station’s repack transition or the use of spectrum by 600 MHz licensees. Accordingly, it is in the public interest to extend KETD’s Phase Completion Date until August 3, 2020. II. SUMMARY OF CONSTRUCTION EFFORTS In the Closing and Reassignment Public Notice, the FCC assigned KETD to Transition Phase 9, for which the Phase Completion Date was May 1, 2020. On April 23, 2020, the Commission granted Estrella’s request to reassign KETD to Transition Phase 10, with a Phase Completion Date of July 3, 2020. See File No. 0000112376. The basis for that extension was the need to complete a structural analysis to determine what, if any, structural modifications may be necessary to ensure the ice bridge’s integrity before KETD mounts its antenna. A substantial portion of the work required for KETD to commence operations on its post- transition channel 15 is complete. The Station’s transmission facilities are located at a multi-use 3 Id., para. 569. 4 Incentive Auction Report and Order, para. 569; see also Post-Incentive Auction Transition Request for Waiver of Cox Television Jacksonville LLC, FCC 20-82, para. 16 (WFOX Order) (directing the Media Bureau to “consider future requests seeking such waivers consistent with the considerations” established in the WFOX Order). 5 WFOX Order, para. 16. 2 Estrella Television License LLC KETD(TV), Castle Rock, CO (Fac ID 37101) tower site atop Mount Morrison. The Station’s new transmitter has been installed and its new antenna is on site. However, Estrella recently learned that the pole on which KETD’s antenna will be mounted does not have the necessary steps/support for its riggers to install the antenna. Although Estrella is working to promptly resolve this issue, it will not be able to do so ahead of the July 3, 2020 deadline. III. ALTERNATIVE APPROACHES Estrella has considered alternate methods for KETD to cease operations on its pre-auction channel by the Phase 10 deadline, including those suggested by the Commission of moving to interim facilities on the post-auction channel, operating on a vacant channel, and temporary channel sharing.6 However, given that completion of the KETD repack facility is imminent and operating on channel 45 for an additional 30 days will not delay the transition or disrupt the plans of 600 MHz licensees, Estrella has determined that these options are impractical and would not serve the public interest. First, moving to interim facilities and/or operating on a vacant channel would not be practical. The tower on which KETD’s antenna is located is heavily utilized, and construction of a new facility near Mount Morrison would take months if not years. As the Commission is aware, applications to rezone mountaintop sites in the Denver area for telecommunications purposes have faced fierce opposition. During the DTV transition, Congress had to intervene to exempt neighboring Lookout Mountain from Jefferson County’s land use regulations so that Denver-area television stations could construct their digital facilities. The legislation did not extend to Mount Morrison, however, and the opposition group, Canyon Area Residents for the Environment, continued its aggressive opposition to the tower owner’s proposed changes that resulted in litigation that extended for six years. Not only would such effort be impractical to 6 See Incentive Auction Report & Order, 29 FCC Rcd 6567 (2014); Incentive Auction Task Force and Media Bureau Adopt a Post-Incentive Auction Transition Scheduling Plan, Public Notice, 32 FCC Rcd 890 (2017); Incentive Auction Task Force and Media Bureau Remind Repacked Stations of Certain Post-Auction Transition Requirements and Deadlines, Public Notice, 33 FCC Rcd 8240 (2018). 3 Estrella Television License LLC KETD(TV), Castle Rock, CO (Fac ID 37101) accommodate a mere 30 days of interim operations, but it would be impossible to obtain the necessary approvals in time to construct interim facilities. Furthermore, Estrella has not been able to identify a suitable station with which KETD can channel share. The full power stations in the Denver market broadcast numerous digital subchannels and would not be able to provide an acceptable bitstream for KETD. Moreover, even if channel sharing could be achieved from a technical standpoint, the resulting expense and consumer disruption to channel share for 30 days or less would not be worthwhile. Ultimately, Estrella determined that the most practical solution with the least disruption to viewers is to continue operating on its pre-auction facilities and channel until its channel 15 antenna can be installed. Estrella requests authority to continue to operate KETD on its pre- auction channel for no more than 30 days until construction of its post-auction facilities is complete. KETD can continue to operate on Channel 45 after July 3, 2020 with no outgoing and incoming interference. Because KETD’s pre-auction channel is situated in the new 600 MHz band, the proposed transition plan will not impede or delay the transition of any other station.7 Moreover, although Channel 45 is situated in the duplex gap, the two adjacent 600 MHz licensees—Bluewater Wireless and Parker B—have confirmed that they do not intend to utilize this spectrum for 30 days and that they consent to the requested extension. Accordingly, granting Estrella’s request will not delay any wireless licensee that purchased 600 MHz wireless licenses in the forward auction from accessing their spectrum.8 IV. GOOD CAUSE EXISTS TO WAIVE SECTION 73.3700(B)(4)(III) OF THE COMMISSION’S RULES AND EXTEND KETD’S PHASE TRANSITION DATE. Given the factors beyond KETD’s control that have contributed to its inability to transition to its post-auction channel by July 3, 2020, Estrella requests that the Commission extend KETD’s Phase Transition Date and waive the requirement for KETD to cease operations on its pre-auction channel by July 3, 2020. The Commission may waive any provision of its rules on its own motion and for good cause shown.9 A rule may be waived where the particular facts 7 See WFOX Order at para.

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