Gray Television Licensee, LLC KOLN(TV), Lincoln, NE (Fac. ID No. 7890)

Request for Waiver of Freeze on Modifications Expanding Station Contours

Gray Television Licensee, LLC (“Gray”), licensee of full power

KOLN(TV), Lincoln, NE (Fac. ID No. 7890) (“KOLN”), respectfully requests a waiver of the

Commission’s 2013 freeze on the filing and processing of full power television modifications1 to permit the grant of this application to rebuild KOLN’s facilities. As described more fully below, good cause exists for the grant of this waiver to allow Gray to improve service to viewers in the

Lincoln & Hastings-Kearney designated market area (the “Lincoln DMA”) in connection with the rebuilding of KOLN’s tower, which collapsed earlier this year.

I. Background

On January 18, 2020, KOLN’s 1,500-foot tower near Beaver Crossing, collapsed during an ice storm.2 As a result, KOLN, which is the market’s CBS , has been forced to remain silent for over six months.3 Although KOLN has restored service through fiber optic connections to MVPDs, carriage on a commonly owned low-power station, and carriage on the digital multicast channel of another station in the market, its over-the-air coverage has suffered.4 Gray needs to completely rebuild this tower and the KOLN technical facility.

1 See Limitations on the Filing and Processing of Full Power and Class A Television Station Modification Applications, Public Notice, 28 FCC Rcd. 4364 (MB 2013) (“Expansion Freeze PN”). 2 See 10/11 Signal Available to Most Viewers After Tower Collapse, 1011now.com (updated Jan. 21, 2020), https://www.1011now.com/content/news/KOLN-TV-tower-in-Beaver- Crossing-collapses-due-to-ice-storm-567106121.html. 3 LMS File No. 0000098791. 4 KOLN is currently providing a signal to all the major MVPDs in the market via fiber. Gray has also arranged for carriage of KOLN’s programming on low power station KCWH (also licensed to Gray) and on a multicast stream of ABC network affiliate KLKN (licensed to KLKN Lincoln License LLC).

1

Gray Television Licensee, LLC KOLN(TV), Lincoln, NE (Fac. ID No. 7890)

Gray desires to take advantage of this once-in-a-generation opportunity to rebuild and invest in Gray’s Lincoln DMA stations to ensure that they are best positioned to serve viewers for decades to come. Accordingly, Gray is seeking authority to construct the maximum facility permitted by Section 73.622(f)(7) of the Commission’s Rules,5 which will allow KOLN to expand its service to underserved portions of the market. Concurrently herewith, Gray is filing a

Petition for Rulemaking that will allow Gray to relocate commonly owned KSNB-TV, Superior,

Nebraska (Fac. ID No. 21161) to the rebuilt KOLN tower site on UHF Channel 24.

II. Request for Waiver

The Commission should waive its freeze on the filing and processing of full power television modifications to permit the grant of this application to rebuild KOLN’s facilities (the

“Expansion Freeze”). The Expansion Freeze prohibits the filing or processing of modification applications (or amendments to pending modification applications) by full power and Class A television broadcast licensees and permittees for changes to existing television service areas that would increase a full power station’s noise-limited contour or a Class A station’s protected contour in one or more directions beyond the area resulting from the station’s parameters as represented in its authorizations (license and/or construction permit).6 When it adopted the

Expansion Freeze, the Media Bureau explained that the freeze was necessary “to facilitate analysis of repacking methodologies and to assure that the objectives of the broadcast television incentive auction are not frustrated.”7 While the Media Bureau partially lifted the freeze in July

2019, the relief only applied to full power and Class A television stations that were reassigned to

5 47 C.F.R. § 73.622(f)(7). 6 Expansion Freeze PN at 2. 7 Id. at 1.

2

Gray Television Licensee, LLC KOLN(TV), Lincoln, NE (Fac. ID No. 7890) new channels as part of the incentive auction and repacking process and have not yet completed the transition to their post-auction channels.8 The July 2019 Public Notice expressly preserved the Expansion Freeze for all other stations, which includes KOLN.

The Commission may waive any provision of its rules if it determines good cause has been shown.9 The Commission may exercise its discretion to waive a rule where the particular facts make strict compliance inconsistent with the public interest.10 In addition, the Commission may take into account considerations of hardship, equity, or more effective implementation of overall policy on an individual basis.11 Waiver of the Commission’s rules is appropriate if special circumstances warrant a deviation from the general rule, and such deviation will serve the public interest.12

Whatever purpose continued application of the Expansion Freeze may serve now that the repack is over, strict compliance with the freeze in these circumstances is inconsistent with the public interest. As a result of the January 2020 tower collapse, Gray has no choice but to completely rebuild the tower and the KOLN technical facilities. The only question is whether it must artificially restrict such facilities to KOLN’s prior service area or whether it may take this opportunity to invest in providing stronger service throughout the Lincoln DMA, including through improved service to underserved portions of the market. As shown in the attached

8 See Media Bureau Lifts Freeze on Filing of Minor Modification Applications, 34 FCC Rcd. 6222 (MB 2019). 9 See 47 CFR § 1.3. 10 Northeast Cellular Telephone Co. v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990) (“Northeast Cellular”). 11 WAIT Radio v. FCC, 418 F.2d 1153, 1159 (D.C. Cir. 1969), cert. denied 409 U.S. 1027 (1972); Northeast Cellular, 897 F.2d at 1166. 12 Northeast Cellular, 897 F.2d at 1166.

3

Gray Television Licensee, LLC KOLN(TV), Lincoln, NE (Fac. ID No. 7890)

Engineering Statement of Joseph M. Davis, Gray’s proposal would expand the availability of

KOLN’s over-the-air signal to more than 220,000 additional people.13 Importantly, this includes

168 people who currently do not receive any over-the-air television service, 5,174 people who only receive one other television service, and 9,516 people who only receive two other television services.

Absent a grant of the instant waiver request, it is unlikely that KOLN will be able to expand its service to reach these viewers. Gray does not have the luxury of waiting for the

Commission to lift the freeze at some unknown date in the future. KOLN has already been silent for more than six months, and Gray is working to restore KOLN’s over-the-air signal as quickly as possible. Moreover, the collapse of KOLN’s tower has provided Gray with a unique opportunity to evaluate how it can better serve viewers in the Lincoln DMA. Gray has allocated significant capital for this project. Once the replacement facilities have been installed, however,

Gray does not anticipate making an additional multimillion-dollar capital investment in this market anytime soon.

There is no countervailing reason not to grant this request. First, with the repack now substantially complete, the original purpose of the Expansion Freeze (facilitating the analysis of repacking methodologies) is no longer relevant. Indeed, the time has come to lift the freeze altogether. In any event, application of the freeze here will only serve to deny the availability of

KOLN’s over-the-air signal to additional viewers. Second, grant of the waiver will not require the diversion of any engineering resources, given the need to rebuild KOLN’s tower and technical facilities whether the waiver is granted. Finally, as demonstrated in the Davis

13 See Engineering Statement of Joseph M. Davis, attached hereto as Exhibit A (“Davis Engineering Statement”), 2-3 & Figure 2.

4

Gray Television Licensee, LLC KOLN(TV), Lincoln, NE (Fac. ID No. 7890)

Engineering Statement, grant of this waiver will not result in impermissible interference to any other television stations.14

III. Conclusion

For the foregoing reasons, the Commission should waive the Expansion Freeze and grant the accompanying application to improve KOLN’s technical facilities, which will allow Gray to strengthen its service in the Lincoln DMA.

14 See Davis Engineering Statement at 4 & Table 1.

5