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Kailua Television, LLC KKAI(TV), Kailua, Hawaii (Fac. ID 83180) Request for Further Tolling Waiver

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Kailua Television, LLC KKAI(TV), Kailua, Hawaii (Fac. ID 83180) Request for Further Tolling Waiver Kailua Television, LLC KKAI(TV), Kailua, Hawaii (Fac. ID 83180) Request for Further Tolling Waiver Justification Kailua Television, LLC (“KTL”), licensee of television station KKAI(TV), Kailua, Hawaii (Fac. ID 83180) hereby requests a further waiver of the tolling provisions contained in Section 73.3598 of the Commission’s Rules to provide it with an additional six months to complete construction of its permanent post-incentive auction facilities as approved in FCC File No. 0000105110 (the “CP”). As set forth herein, KTL has been unable to complete the construction of its post-auction facilities due to “rare and exceptional” circumstances beyond its control. I. Background On October 29, 2019, the Commission granted KTL’s request for waiver of the Commission’s tolling provisions and tolling of KKAI’s constriction permit expiration date. See Letter from Barbara A. Kreisman to Kailua Television, LLC (Oct. 29, 2019), LMS File No. 0000086047. In support of its this request, KKAI explained that it initially had been tasked with organizing all six of the Hawaii stations that had been repacked in a single transition plan, but as those discussions progressed, stations’ plans changed, and KTL ultimately entered into a Shared Use Agreement with a single station, KALO. One of the main impediments to KTL’s ability to complete its transition on time involved the construction of a new tower for its DTS 2 site. To increase its ability to complete construction of KKAI’s post auction facilities on time, on February 3, 2020, KTL applied to convert KKAI from a distributed transmission system to a single transmitter facility. See File No. 0000105110.1 KTL was on pace to complete construction of its permanent post-auction facilities by July 1, 2020 when circumstances relating to the novel coronavirus (COVID-19) disrupted those plans. Hawaii has imposed some of the most stringent restrictions in the country to prevent the spread of COVID-19. Specifically: • On March 17, 2020, Governor David Y. Ige announced a direction for high-risk individuals to stay at home, a limit on social gatherings, and a prohibition on discretionary travel.2 • Despite the critical importance of tourism to Hawaii’s economy, on March 21, 2020, Governor Ige announced that all persons traveling to Hawaii (whether residents or visitors) must self- quarantine for 14 days.3 During the quarantine period, individuals and visitors may not leave their quarantine location for any reason other than medical emergencies or to seek medical 1 KTL intends to file a subsequent application to reinstate the DTS using a different transmitter site. 2 See Press Release, Hawaii Governor David Y. Ige, Gov. Ige Announces State Actions to Slow the Spread of COVID- 19 (Mar, 17. 2020), available at https://governor.hawaii.gov/newsroom/latest-news/proper-use-of-covid-19-tests- imperative-there-is-a-current-shortage-of-hand-sanitizers-and-toilet-paper-in-hawaii-in-part-because-of-the- publics-over-reaction-to-covid-19-the-hawai/. 3 See Press Release, Hawaii Governor David Y. Ige, Gov. Ige Orders Mandatory 14-Day Quarantine for All Individuals Arriving or Returning to the State of Hawai’I (Mar. 21, 2020), available at https://governor.hawaii.gov/newsroom/latest-news/governors-office-news-release-gov-ige-orders-mandatory-14- day-quarantine-for-all-individuals-arriving-or-returning-to-the-state-of-hawai%ca%bbi/. 4844-4933-9839.1 care, subject to penalty of a fine up to $5,000 , imprisonment for up to one year, or both. This restriction remains in place through at least June 30, 2020.4 • On March 23, 2020, Governor Ige issued a widespread stay-at-home order, prohibiting non- essential workers from leaving their home other than for healthcare, purchasing food, medicine and gasoline, taking care of the elderly, minors, and those with disabilities, returning to a place of residence outside of Hawai‘i, picking up educational materials for distance learning, receiving meals and any other related services, and outdoor exercise.5 • Finally, on March 31, 2020, Governor Ige issued an order requiring residents and visitors traveling between any of the islands in the State of Hawaii to self-quarantine for 14 days.6 The interisland travel quarantine remains in effect through June 16, 2020.7 Hawaii has aggressively enforced these restrictions, putting out wanted bulletins and arresting tourists and others who have failed to abide by the quarantine orders.8 Moreover, these restrictions and the general slowdown in travel due to COVID-19 have resulted in a reduction in cargo capacity to Hawaii.9 As a result of these restrictions and COVID-19 related safeguards, KTL has been unable to receive and install equipment that was scheduled to arrive from the mainland or to conduct its own construction efforts. Given the uncertainty regarding when the quarantine requirements will be lifted and when KTL’s vendors will be able to safely travel to Hawaii, KTL is unable to estimate at this time when it will be able to complete construction of KKAI’s permanent post-auction facilities. 4 See Press Release, Governor Ige Outlines Re-Opening Recovery Plan – Extends 14-Day Quarantine for Travelers to Hawaii, Inter-Island Travelers (May 18, 2020), available at https://governor.hawaii.gov/newsroom/latest- news/office-of-the-governor-news-release-governor-ige-outlines-re-opening-recovery-plan-extends-14-day- quarantine-for-travelers-to-hawaii-inter-island-travelers/. 5 See Press Release, Hawaii Governor David Y. Ige, Governor Ige Issues Statewide Order to Stay at Home, Work from Home to Fight COVID-19 (Mar. 23, 2020), available at https://governor.hawaii.gov/newsroom/latest-news/office- of-the-governor-news-release-governor-ige-issues-statewide-order-to-stay-at-home-work-from-home-to-fight- covid-19/. 6 See Press Release, Hawaii Governor David Y. Ige, Governor Ige Issues Emergency Order Requiring Self-Quarantine for Inter-Island Travelers (Mar. 31, 2020), available at https://governor.hawaii.gov/newsroom/latest-news/office- of-the-governor-news-release-governor-ige-issues-emergency-order-requiring-self-quarantine-for-inter-island- travelers/. 7 See Press Release, Hawai’i Department of Transportation, Governor Ige Lifting Quarantine Requirement for Interisland Travel on June 16 (June 2, 2020), available at https://hidot.hawaii.gov/airports/governor-ige-lifting- quarantine-requirement-for-interisland-travel-on-june-16/ (explaining that restrictions on travel from out-of-state remain in place). 8 See Hannah Sampson, Hawaii Isn’t Messing Around When It Comes to Enforcing Tourist Quarantines, Washington Post (May 20, 2020), available at https://www.washingtonpost.com/travel/2020/05/20/hawaii-isnt-messing- around-when-it-comes-enforcing-tourist-quarantines/; News Release, College Student Arrested for Quarantine Violation, Hawai’i State Department of Health (June 1, 2020), available at https://hawaiicovid19.com/college- student-arrested-for-quarantine-violation/. 9 See Ryan Finnerty, Hawaii Public Radio, Air Shipping Costs Spike for Goods Coming to Hawaii (Apr. 16, 2020), https://www.hawaiipublicradio.org/post/air-shipping-costs-spike-goods-coming-hawaii#stream/0. 4844-4933-9839.1 II. The Commission Should Toll the CP Under the present circumstances, tolling of the CP is justified. In its 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.”10 All subsequent requests for additional time to construct are subject to the Commission’s tolling provisions of Section 73.3598(b) of the Rules.11 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.12 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.13 Tolling is appropriate here because KTLs inability to complete construction of its permanent post-Incentive Auction channel facilities is due to rare and exceptional circumstances beyond its control. Even before COVID- 19, the Commission recognized that “some stations will face significant challenges in completing the post- auction transition to their new facilities” and committed to “work diligently with stations to ensure that service disruptions are minimized to the fullest extent possible through the use of a variety of mechanisms.”14 The present circumstances, which could not have been anticipated and are well-outside KTL’s control, justify further flexibility. In granting KTL’s most recent tolling request, the Video Division recognized that “KTL’s waiver and tolling request is not likely to delay the overall transition schedule and will not cause interference to other stations” because KKAI had already transitioned to its post-auction channel using an interim facility. An additional six month tolling of the CP is necessary in these unpredictable circumstances and will allow KTL to complete construction in a manner that is safe for its employees and contractors. In short, the public interest will be served by grant of waiver and tolling of the CP. 10 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).
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