REQUEST TO WAIVE FILING DEADLINE FOR CONSTRUCTION PERMIT APPLICATION

Brigham Young University (“BYU”), licensee of non-commercial educational television station KBYU-TV, Provo, Utah (the “Station”), has determined it is unable to construct the post- Incentive Auction facilities assigned to the Station in the Closing and Reassignment PN.1 Accordingly, the Station hereby requests a waiver of the initial construction permit application deadline for reassigned stations so that the Station — in coordination with the seven other television stations co-located with the Station (together, the “Utah Stations”) — may apply for alternate facilities in the first priority window.2 Each of the Utah Stations that is being repacked concurrently is filing a parallel waiver request. In addition, the Station and each other repacked Utah Station concurrently is filing a request to modify the Utah Stations’ transition schedule to allow the Utah Stations to begin the testing of their post-Auction channels earlier than is contemplated in the Commission’s current Phase 1 schedule, on a rolling basis.

Grant of these waivers will serve the public interest by allowing the Utah Stations to efficiently construct post-Auction facilities while maintaining service to their communities. Moreover, the waivers requested in this filing and the parallel filings by other Utah Stations, and the alternate facilities for which the Utah Stations intend to apply, will not impede or delay any other station’s post-Auction transition or cause additional interference to any station. The Commission therefore should grant these waivers expeditiously.

Background

KBYU-TV is a member of DTV Utah, LC (“DTV Utah”), which is made up of eight full power television stations in the Utah market (five commercial and three non-commercial) who came together in 1998 in a collective effort to more effectively implement the DTV transition in the Utah market.3 As part of this effort and in coordination with the Commission, the eight Utah Stations entered into an operating agreement to fund the design and construction of, and to co- locate their digital operations to, a single tower located on Farnsworth Peak. Since that time, the Utah Stations have continued to share facilities, thereby significantly reducing the respective operational costs and overhead of providing television broadcast services in Utah. Currently, the stations share two combiners and two antennas, with each station maintaining its own transmitter.

1 See Incentive Auction Closing and Channel Reassignment Public Notice, Docket No. 12-268 et al., Public Notice, DA 17-314 (MB & WTB April 13, 2017) (“Closing and Reassignment PN”). 2 See Closing and Reassignment PN ¶ 70. 3 The licensees of these eight stations are: KUTV Licensee, LLC (licensee of Station KUTV); Utah State Board of Regents (licensee of NCE station KUEN); Bonneville International Corporation (licensee of Station KSL-TV); Nexstar Broadcasting, Inc. (licensee of Stations KTVX and KUCW); University of Utah (licensee of NCE Station KUED); Brigham Young University (licensee of NCE Station KBYU- TV); and Larry H. Miller Communications Corp. (licensee of Station KJZZ-TV).

DC: 6439804-2 The Utah Stations are Unable to Construct the Assigned Post-Auction Facilities

Six of the eight Utah Stations, including KBYU-TV, have been reassigned to new channels in the post-Auction repack, and all six of these repacked stations have been assigned to transition in Phase 1.4 However, the Utah Stations have determined that it is not possible to construct their assigned post-Auction facilities at the Farnsworth Peak site.

Specifically, an engineering analysis by William Meintel of Meintel, Sgrignoli & Wallace determined that the new shared antennas required for the Utah Stations to continue operating at the site would not allow any of the repacked Utah Stations to duplicate its pre- Auction contour on its new channel without expanding its contour by more than one percent in any direction.5 Contour maps comparing each Utah Station’s allotted contour with the contour produced by the new antennas are attached hereto as Attachment A.

In addition, the Utah Stations’ antenna manufacturer, Kathrein, has determined that it will be far more difficult to design a new antenna system that can accommodate all eight Utah Stations if KUED is required to construct its post-Auction facility on Channel 15, as it is currently assigned.6 The Utah Stations’ antenna system is protected from the site’s harsh environment by a hardened GRP cylinder, which the Utah Stations intend to reuse for the new antenna system. However, relocating KUED to Channel 15, while retaining the existing cylinder, would result in KUED’s wavelength increasing by 39 percent; designing measures to mitigate the effect of this increase on the antenna patterns of KUED and the other Utah Stations would require significant effort. Instead, KUED intends to apply in the first priority window for authority to construct its post-Auction facility on Channel 27, which Kathrein has determined can be accommodated with far less effort.

Because KBYU-TV and the other repacked Utah Stations cannot “construct facilities that meet the technical parameters specified in the Closing and Reassignment Public Notice within the permissible contour coverage variance,” these stations qualify for “unable to construct” waivers of the initial construction permit application deadline.7 Moreover, there is good cause for granting the requested waivers.8 A waiver is appropriate “where the particular facts make strict compliance inconsistent with the public interest” and a deviation from the general rule would relieve hardship or produce a “more effective implementation of overall policy on an individual basis.”9 In this case, it would not be consistent with the public interest to require KBYU-TV and the other Utah Stations to apply for post-Auction facilities that their engineering

4 The Commission did not reassign KUTV or KUEN. 5 See 47 C.F.R. § 73.3700(b)(1)(ii)(B). 6 Kathrein’s report and recommendation is attached hereto as Attachment B. 7 See Incentive Auction Task Force and Media Bureau Announce Procedures for the Post-Incentive Auction Broadcast Transition, Public Notice, 32 FCC Rcd 858, 865 ¶ 24 (MB 2017) (“Procedures PN”). 8 See Procedures PN, 32 FCC Rcd at 865 ¶ 24 n.36 (citing 47 C.F.R. § 1.3). 9 Id. (citing Northeast Cellular Telephone Co. v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990) and WAIT Radio v. FCC, 418 F.2d 1153, 1159 (D.C. Cir. 1969)). analysis shows cannot be constructed in compliance with the Commission’s contour-expansion restrictions. Nor would it be in the public interest to require KUED to construct its post-Auction facility on a channel that, due to antenna design challenges, would risk causing additional delay in a construction schedule that – as described below – already will be extremely challenging.

To the contrary, the Utah Stations’ experience during and after the DTV transition demonstrates that the Commission’s overall policy goals — maintaining broadcast television service to the public, supporting the provision of non-commercial television service, and providing for an efficient and cost-effective post-Auction transition — are far better served by allowing the repacked Utah Stations to apply for alternate post-Auction facilities that would allow these stations to continue sharing combiners and antennas at their existing site.

The Commission has recognized that “alternative transition solutions” proposed by repacked stations “may reduce reimbursement costs or implement a market-wide transition plan that could allow stations to more efficiently utilize limited resources, facilitate coordination, or reduce the impact of the transition on television viewers.”10 Such is the case with the Utah Stations’ requested waivers, which will facilitate the stations’ ability to construct coordinated, cost-effective post-Auction facilities. In addition, the alternate facilities the Utah Stations intend to apply for would not impact any other stations. The Utah Stations’ proposal would not create any new linked-station sets, cause new interference (beyond the Commission’s 0.5 percent de minimis standard) to any other station, or otherwise delay or disrupt any station’s transition.

Accordingly, the Commission should waive the initial construction permit application deadline for KBYU-TV and the other repacked Utah Stations.

The Utah Stations Require Greater Flexibility in Their Transition Schedule

In addition to seeking alternate facilities, the repacked Utah Stations concurrently are filing requests to deviate from the Phase 1 transition schedule. Specifically, given the severe geographic, climate, and other limitations of the shared Farnsworth Peak site, it would not be possible for the stations to test all of their post-Auction facilities in the two-and-a-half month testing period scheduled for Phase 1. The Utah Stations accordingly request that the Commission waive its prohibition on stations testing their post-Auction facilities prior to the scheduled start of the Phase 1 testing period.11

Construction at the Farnsworth Peak site presents significant challenges. The site is located about 17 miles southwest of Salt Lake City, in the Oquirrh mountain range, on a small mesa at an altitude of 9,050 feet. Vehicles typically can access the site only from June until the first heavy snow, usually in October; access to the site is restricted to snow-cat or helicopter the rest of the year. This means the Utah Stations have only two June-October construction windows prior to the Phase 1 completion deadline of November 30, 2018, with the 2017 window already underway and likely to be mostly over before the Utah Stations have received approved

10 See Incentive Auction Task Force and Media Bureau Adopt Post-Incentive Auction Transition Scheduling Plan, Public Notice, 32 FCC Rcd 890, 913 ¶ 50 (MB 2017) (“Transition Scheduling PN”). 11 See id. at 910-11 ¶ 44. post-Auction facilities and reimbursement allocations. Even during the windows when construction is possible, travel up the mountainside for large vehicles requires a slow trip up a single-lane dirt road, as well as careful coordination among the site’s more than 25 tenants for the use of the site’s limited parking and storage space.

Given these myriad challenges, completing construction of the Utah Stations’ shared post-Auction facilities by the Phase 1 deadline — with most of the work having to occur in the 2018 construction window — will be extremely difficult under the best of circumstances, and may be possible only because of the Utah Stations’ close coordination in designing the alternate post-Auction facilities the stations intend to request in the first priority window.

At a minimum, however, the Utah Stations must be permitted to test their new transmitters on a rolling basis as soon as each transmitter is installed. Power at the site, which must be trenched up from Tooele County on the west side of the mountain range, is limited, and the site already is operating near its power capacity. The site accordingly cannot support the testing of all six new transmitters, along with the continued operation of the Utah Stations’ existing transmitters, during the scheduled Phase 1 testing window. Instead, each of the Utah Stations should be permitted to begin testing its post-Auction transmitter once it is installed, and to cease operating on its pre-Auction channel once its testing is complete (subject to satisfying the applicable notification requirements to viewers and MVPDs).

The Transition Scheduling PN states that the prohibition on stations beginning their tests before the scheduled testing period is intended to “minimize interference, incentivize the distribution of resources across the phases, and encourage stations within a phase to switch to their post-auction channels at roughly the same time, which will minimize confusion to television viewers.”12 In this case, however, these considerations either do not apply or are outweighed by other factors. First, as noted above, the Utah Stations’ proposed post-Auction facilities are not part of any linked-station set and will not cause more than de minimis interference to each other (on either their pre-Auction or post-Auction channels) or to any other station. Second, because the Utah Stations are assigned to Phase 1, permitting them to begin testing early cannot draw resources away from any other phase. Finally, although it would be ideal for the Utah Stations to switch to their post-Auction channels at roughly the same time, maintaining each station’s pre-Auction service until all of the stations have completed their testing is not feasible given the power limitations of the Farnsworth Peak site. Nonetheless, each station will complete the required notifications to viewers and MVPDs,13 thus ensuring that all stakeholders are fully informed and prepared for each station’s transition.

* * *

For the reasons set forth herein, public interest would be best served by (1) waiving the initial construction permit deadline for KBYU-TV and the other repacked Utah Stations, and (2)

12 Id. 13 See Procedures PN, 32 FCC Rcd at 874 ¶¶ 50-51. permitting the Utah Stations to test and transition to their post-Auction facilities on a rolling basis as soon as their new facilities are ready. Attachment A

Attachment B

KATHREIN-Werke KG ● Postfach 10 04 44 ● 83004 Rosenheim ● Germany

To : DR. ANDREAS KIRSCHNER KUED-42 Head of Projects Kathrein 101 South Wasatch Drive Business Unit Broadcast Salt Lake City, UT. 84112 Attention : Phil Titus KATHREIN-Werke KG Anton-Kathrein-Straße 1–3 Rosenheim, 06-09-2017 83022 Rosenheim Germany Phone: +49 8031 184-2984 Fax: +49 8031 184-495 New Kathrein antenna system DTV Utah, Salt Lake City [email protected] www.kathrein.com

Dear Sir or Madam, Your reference: the new Kathrein antenna system for DTV Utah, Salt Lake City is a development for this Your letter of: site with its special GRP cylinder. Hereby, actual antenna concepts from Kathrein group are adapted and tailor-suited to meet customer needs. Our reference: DTV Utah The self-supporting GRP cylinder itself (it sustains the antenna system inside) exhibits a higher thickness as usual which guarantees prevention of deformation by dynamic pressure due to high wind speeds on site. Furthermore, it protects the antenna system VAT Reg. No.: DE 131 158 993 Tax ID No.: 156/117/30702 inside of the harsh environmental conditions such as heavy ice attachment on radiators, WEEE Reg. No. : DE 38438502 UV radiation on cable jackets etc. With regular inspections and negligible maintenance, GLN: 40 21121 00000 3 the lifecycle of this cylinder can take several decades. For shaping electrical parameters Company Headquarters: Rosenheim of the radiating elements, horizontal wire rings are mounted inside on the skin surface. HRA 460 Traunstein

The antenna system will consist of two separate 8 bay sub-systems. Bank details:

Hereby the top sub-system is actually assigned to the US channels: EUR accounts: 30, 34, 35, 36. UniCredit Bank AG Whereas the bottom sub-system is either excited with the US channels: IBAN: DE71 7112 0077 0003 8322 44 15, 17, 19, 23, or: 17, 19, 23, 27. BIC: HYVEDEMM448

The actually installed system 773 928 was optimized for the US channels 34-48. The Deutsche Bank IBAN: DE54 7007 0010 0833 7701 00 vertical separation of wire rings had been chosen accordingly. Although designed for BIC: DEUTDEMMXXX higher channels, the same ring configuration can be re-used for the repack channels, thus also for lower channels such as CH 15 or CH 17. The radiating elements will be Commerzbank adapted in design accordingly. From a purely technical view, the new antenna system IBAN: DE20 7114 0041 0610 0887 00 will be capable to radiate CH 15 or CH 17 at acceptable values of return loss. BIC: COBADEFFXXX

USD account: Nevertheless, especially KUED was supposed to migrate from CH 42 to CH 15 at the HSBC Trinkaus & Burkhardt same shape of pattern. For the service of KUED, this would have caused a wavelength IBAN: DE52 3003 0880 4700 1240 08 which is approximately 39% larger than the original one. Due to fundamental physics BIC: TUBDDEDD the shape of pattern highly depends on the relation between antenna dimension and wavelength (aperture). With a change in wavelength, at constant antenna dimension, this relation changes and therefore the shape of pattern must change, too. High tech- nical effort such as e.g. radial or tangential offsets would be required to reshape the pattern to its old shape. Besides that, this would possibly cause drawbacks for other channels and therefore operators such as e.g. azimuthal rotation of pattern in other

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channels. Furthermore, the cylinder provides only limited space for mechanical countermeasures like antenna offsets. In addition, especially at tangential offsets, the antenna elements would be detached from the cylinder’s central axis which would also affect the electrical parameters of system in turn. In this case, the antenna element design would have to be adapted accordingly. This is possible, but causes again efforts in R&D.

With a migration from CH 42 to CH 27, the increase of wavelength reduces to 16%. The difference in pattern is reduced significantly. The shaping of pattern is connected to lower efforts with reduced drawbacks for other channels and operators. Furthermore, the antenna provides a higher gain in CH 27 than in CH 15, which would lead to a higher ERP in CH 27 than in CH 15.

Summary: With the new antenna concept, the cylinder itself can be fully reused. An operation in CH 15 is possible without the drawback of high values in VSWR. However, we would recommend to migrate to CH 27 instead of CH 15 leading to higher values in ERP. Furthermore, regarding the acceptance of pattern by federal authorities such FCC or others, we would highly recommend to migrate from CH 42 to CH 27 instead of CH 15. The tolerances or mismatch to actual accepted pattern is smaller, efforts in design become therefore smaller at lower influence to other channels.

Yours faithfully,

Dr. Andreas Kirschner Head of Projects Kathrein, Business Unit Broadcast

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