Cox Television Tulsa, LLC KMYT-TV, Tulsa, OK (Facility ID 54420)
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Cox Television Tulsa, LLC KMYT-TV, Tulsa, OK (Facility ID 54420) WAIVER OF PHASE ASSIGNMENT, TESTNG PERIOD, AND PHASE COMPLETION DATE Cox Television Tulsa, LLC (“Cox” or “Station”) seeks waiver of the post-Incentive Auction Transition Phase assignment, and corresponding testing dates and construction completion deadlines, for KMYT-TV Tulsa, OK (Facility ID 54420) (“Station”). Pursuant to the Closing and Reassignment Public Notice, the Station has been assigned to Transition Phase 2, for which the Phase Completion Date is 4/12/2019.1 Cox seeks to transition the Station early, with expected transition completion on or before September 1, 2018, with a testing period to commence immediately preceding said date. Cox therefore requests a waiver to move to Transition “Phase 0” which is before the start of the Transition Phase 1 testing date. The FCC may grant a waiver for good cause shown.2 A waiver is appropriate where the particular facts make strict compliance inconsistent with the public interest.3 In considering a waiver, the FCC may take into account considerations of hardship, equity, or more effective implementation of overall policy on an individual basis.4 Such a waiver is appropriate if 1 Incentive Auction Closing and Channel Reassignment Public Notice: The Broadcast Television Incentive Auction Closes; Reverse Auction and Forward Auction Results Announced; Final Television Band Channel Assignments Announced; Post-Auction Deadlines Announced, Public Notice, 32 FCC Red 2786 (WTB & MB 2017) (Closing and Channel Reassignment Public Notice). 2 47 C.F.R. § 1.3. 3 Northeast Cellular Tel. Co. v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990). 4 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. 178518191 v4 circumstances warrant a deviation from the general rule, and such deviation will serve the public interest.5 As demonstrated herein, good cause exists for waiver of the assigned Transition Phase and its attendant testing and completion dates. Grant of the waiver will serve the public interest by facilitating an orderly and efficient transition to more swiftly deliver new wireless broadband services to the public while minimizing impacts on broadcast television viewers and post-auction transition resources. KMYT-TV has partnered with T-Mobile to transition early to facilitate broadband service using the 600 MHz band in and around Tulsa, Oklahoma up to 7 months earlier than the scheduled transition for this market. The interplay amongst the four TV stations involved in this early transition is depicted in Table 1. Table 1. Tulsa early transition move package. Call Sign Channel New Ch Dependency LSS ISIX Case for T-Mobile KOZJ 25 35 N/A 9 N/A KXNW 34 25 KOZJ 9 N/A KMYT 42 34 KXNW 9 Case 3 KGEB 49 12 N/A N/A Case 4 Background. KMYT-TV currently operates on Channel 42, which is in a portion of the 600 MHz band acquired by T-Mobile. To expedite the clearing of the 600 MHz band, two other stations, KXNW and KOZJ are both seeking to transition early and their applications are incorporated by reference to this waiver request.6 Because the three stations (KMYT-TV, 5 Northeast Cellular, 897 F.2d at 1166. 6 See also T-Mobile Letter in support of KMYT-TV early transition. 178518191 v4 KXNW and KOZJ) are linked, in order for KMYT-TV to move early, KXNW, and immediately before it KOZJ, must and plan to transition at the same time to avoid impermissible interference. A fourth station in the market, KGEB(DT), also plans to request permission to transition early and on the same schedule, so as to minimize the number of rescans Tulsa area viewers will need to make. Should the FCC grant the instant Phase Waiver request, Cox pledges to coordinate with Tribune Broadcasting of Fort Smith License, LLC, licensee of KXNW(TV), Eureka Springs, Arkansas; the Board of Governors of Missouri State University, licensee of KOZJ(TV), Joplin, Missouri; and University Broadcasting, Inc., licensee of KGEB(DT), Tulsa, Oklahoma, to minimize confusion among viewers in the DMA and ensure that viewers know of the intention of all four stations to transition ahead of the overall Tulsa transition phase. Interference. Attached hereto is an “Engineering Statement Supporting Request for Waiver Television Station KMYT-TV,” prepared by duTreil, Lundin & Rackley, Inc (“Engineering Statement”). As demonstrated in the Engineering Statement, the proposed early transition will cause 0.99% new interference to Station KSJF-CD and 6.19% to KXNW. In the Transition Scheduling PN, the Commission determined that allowing temporary pairwise (station-to-station) interference of up to two percent (2%) during the transition is in the public interest.7 The proposed new interference to KSJF-CD is under this allowable threshold and will be temporary, as it will resolve upon the transition of Station KSJF-CD to its new channel on or before April 12, 2019. Cox pledges to notify and work cooperatively with the licensee of Station KSJF-CD to minimize actual interference, if possible. 7 Incentive Auction Task Force and Media Bureau Adopt A Post-Incentive Auction Transition Scheduling Plan, MB Docket No. 16-306 and GN Docket No. 12-268, 32 FCC Rcd 890, 913 ¶ 16 (MB 2017) (Transition Scheduling Adoption Public Notice), citing Incentive Auction Task Force and Media Bureau Seek Comment on Post-Incentive Auction Transition Scheduling Plan, Public Notice, 31 FCC Rcd 10802 (MB 2016) (Transition Scheduling Proposal Public Notice). 178518191 v4 In addition, as discussed above, the interference to KXNW will be resolved immediately when KXNW moves to channel 25, so no actual interference will occur. No other cases of incoming (received) interference exceeding the normal 0.5% rounding tolerance level to any other protected full-power or Class A television stations now operating will occur, and no new pairwise (station-to-station) interference will be created by the proposed early transition of Station. No new linked station sets are created by the proposal. Impacts to Transition Plan. The proposed transition will further the overall transition plan and will create positive externalities by allowing the unlocking of a linked station set, thereby relieving numerous stations from burdens associated with coordination of resources and timing. Indeed, the transition of KXNW, KOZJ and KMYT-TV will remove three stations from linked station set 9. This will simplify the transition process for the last station, KNWA-TV, which currently operates at channel 50 and will transition to channel 33 in Phase 2. This early out of phase move will also permit better utilization of resources by engaging vendors and service providers early in the process rather than have them potentially overloaded further in the transition. For KMYT-TV, the Station’s current tower will require significant renovations before the Station can replace its antenna and other equipment needed to move to its post-auction channel. Accordingly, KMYT-TV has planned to relocate to an interim tower site while construction on its primary tower takes place. KMYT-TV had planned to relocate to the interim tower site on its current channel. If, however, KMYT-TV is permitted to transition early, KMYT-TV will move to its interim tower site on its post-auction channel. By allowing KMYT- TV to move to its new channel on the interim tower site (instead of moving to the interim site on its current channel), grant of this Phase Waiver request will ease the potential strain on tower companies because KMYT-TV will no longer have a hard deadline by which it must complete 178518191 v4 construction on its current tower (since KMYT-TV will already be on its post-auction channel). This will allow all parties more flexibility, and will ease the repack transition. Furthermore, since KMYT-TV is currently in Phase 2 of the repack, it has already made significant progress in obtaining the services and equipment it needs to transition to its post- auction channel. For example, KMYT-TV has already purchased and received a broadband antenna from its antenna supplier, Dielectric. While KMYT-TV had intended to use the antenna on the interim tower on the Station’s current channel, the antenna can be configured for KMYT- TV’s post-auction channel as well. KMYT-TV has also contacted its other vendors, including its tower contractor for work on the interim tower, Stainless LLC, and Stainless has advised the Station that Stainless can install the KMYT-TV antenna on the interim tower by September 1 without impacting other previously scheduled projects for other stations.8 KMYT-TV has also received confirmation from GatesAir that the Station’s transmission equipment can be delivered by August 1, thereby giving the Station plenty of time to install the new equipment.9 Attached is the “Current KMYT Repack Schedule” showing the station’s current repack plans. The station is using two different tower companies for the installation work on the interim and main towers and Stainless is scheduled to begin work on the interim tower shortly. Cox plans to stay with the current schedule if this waiver is granted, but grant of the waiver will give Rio Steel, the tower company scheduled to work on the main tower, additional timing flexibility should Rio need it for work for KMYT, for Cox, or for other broadcasters. Impact on Viewers. Finally, Cox believes any disruption to viewers will be minimal. The Station recognizes that its request for an early transition may increase the total number of times a 8 See attached letter from Stainless, LLC to Mr. Darin Hall, Cox Media Group Tulsa, dated June 6, 2018. 9 See attached letter from GatesAir to Mr.