Federal Communications Commission DA 12-414 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Reclassification of License of Class A Television Stations KASC-CA Atascadero, California KDFS-CA Santa Maria, California KLDF-CA Lompoc, California KPAO-CA Paso Robles, California KSBO-CA San Luis Obispo, California ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Facility ID No. 10537 Facility ID No. 31351 Facility ID No. 41126 Facility ID No. 68663 Facility ID No. 31354 ORDER TO SHOW CAUSE Adopted: March 15, 2012 Released: March 16, 2012 By the Chief, Video Division, Media Bureau: 1. This is with respect to stations KASC-CA, Atascadero, California; KDFS-CA, Santa Maria, California; KLDF-CA, Lompoc, California; KPAO-CA, Paso Robles, California; and KSBO-CA, San Luis Obispo, California, licensed to commonly-owned Una Vez Mas Atascadero License, LLC; Una Vez Mas Santa Maria License, LLC; Una Vez Mas Lompoc License, LLC; Una Vez Mas Paso Robles License, LLC; and Una Vez Mas San Luis Obispo License, LLC (the “Licensees’). These stations are currently licensed as Class A television stations, which are accorded primary spectrum use status pursuant to the Community Broadcasters Protection Act of 1999 (“CBPA”).1 2. In order to qualify for Class A status, the CBPA provides that, during the 90 days preceding enactment of the statute, a low power television station must have: (1) broadcast a minimum of 18 hours per day; (2) broadcast an average of at least three hours per week of programming produced within the market area served by the station; and (3) been in compliance with the Commission’s rules for low power television stations.2 Class A licensees must continue to meet these eligibility criteria in order to retain Class A status.3 1 Community Broadcasters Protection Act of 1999, Pub. L. No. 106-113, 113 Stat. Appendix I at pp. 1501A-594 – 1501A-598 (1999), codified at 47 U.S.C. § 336. Commission records show that Una Vez Mas San Diego, LLC acquired these stations in early 2006, and shortly thereafter transferred them to the Licensees. 2 47 U.S.C. § 336(f)(2)(A)(i). 3 47 U.S.C. § 336(f)(1)(A)(ii); 47 C.F.R. § 73.6001(b). Federal Communications Commission DA 12-414 2 3. In addition, beginning on the date of its application for a Class A license and thereafter, the CBPA requires that a station must also be “in compliance with the Commission’s operating rules for full-power television stations.”4 In implementing the CBPA and establishing the Class A television service,5 the Commission applied to Class A licensees all Part 73 regulations except for those that could not apply for technical or other reasons. Among the Part 73 requirements that apply to Class A licensees are the Commission’s main studio requirements; rules governing informational and educational children’s programming and the limits on commercialization during children’s programming; the requirement to identify a children’s programming liaison at the station and to provide information regarding “core” educational and informational programming aired by the station to publishers of television program guides; the public inspection file rule, including preparing and placing in the public inspection file on a quarterly basis an issues/programs list and the station’s quarterly-filed FCC Form 398 (Children’s Television Programming Report); the political programming rules; station identification requirements; and the Emergency Alert System (EAS) rules.6 4. Class A television licensees are also subject to the regulations regarding fines and penalties applicable to full power television stations, and are subject to loss of Class A status if they fail to meet these ongoing program service and operating requirements.7 In addition, as the Commission explained in the Class A Memorandum Opinion and Order on Reconsideration: Although Class A licensees will not be subject to loss of license for failure to continue to comply with the eligibility requirements in section (f)(2)(A) of the CPBA [including that they be in compliance with the Commission’s rules for full-power stations after they file for a Class A license], they are subject to loss of Class A status if they fail to meet these ongoing obligations. . . . We [have] also adopted a rule stating that “Licensees unable to continue to meet the minimum operating requirements for Class A television stations . . . shall promptly notify the Commission in writing, and request a change in status [to low power].”8 5. Section 316(a) of the Communications Act, as amended, permits the Commission to modify an authorization if such action is in the public interest.9 Further, pursuant to Section 316(a), we are required to notify the affected station of the proposed action, as well as the public interest reasons for the action, and to afford the licensee at least 30 days to respond. This procedure is set forth in Section 1.87 of the Commission’s Rules.10 6. Commission records show that KASC-CA went silent on December 4, 2006,11 and resumed operations on November 16, 2007. Station KLDF-CA went silent on August 1, 2006,12 and 4 47 U.S.C. § 336(f)(2)(A)(ii). 5 In the Matter of Establishment of a Class A Television Service, MM Docket No. 00-10, Report and Order, 15 FCC Rcd 6355, 6366 (2000)(“R & O”), Memorandum Opinion and Order on Reconsideration, 16 FCC Rcd 8244, 8254- 56 (2001)(“MO & O on Recon”). 6 R & O, 15 FCC Rcd at 6366. 7 MO & O on Recon, 16 FCC Rcd at 8257. 8 Id. 9 47 U.S.C. § 316(a). 10 47 C.F.R. § 1.87. 11 FCC File Nos. BLSTA-20061204AGL and BLESTA-20070604ACP. The reason given was that adjustments needed to made to station equipment to assure compliance with the Commission’s RF radiation limits. Federal Communications Commission DA 12-414 3 resumed operations on January 10, 2007. The Licensees took all five stations silent on November 12 and 13, 2008, stating that each station was “experiencing unfavorable economic conditions and prospects, resulting in a need for the station temporarily to cease operations.”13 The stations did not resume operations until October 7 and 8, 2009, shortly before the stations’ licenses would automatically expire pursuant to Section 312(g) of the Communications Act of 1934, as amended.14 The Licensees took all five stations silent three weeks later, on October 27 and 28, 2009, stating that the stations “ceased operations due to technical difficulties” and that silent authority was necessary so that the Licensees “can resolve the problems and resume operations.”15 Shortly before the licenses would automatically expire, the stations resumed operations between October 20 and October 22, 2010, but again ceased operations on January 27 and 28, 2011 “due to technical difficulties.”16 On January 20, 2012, a week before the stations’ licenses would automatically expire, the Licensees notified the Commission that the stations had resumed operations on January 18 and 19, 2012. 7. We conclude that under these circumstances, the Licensees should have notified the Commission of their inability to meet the ongoing Class A eligibility requirements and requested a change in their stations’ status from Class A to low power television station pursuant to Section 73.6001 of the Commission’s Rules.17 While the Commission has acknowledged that “in appropriately compelling circumstances involving a temporary inability to comply,” a licensee can apply for an STA to operate at variance with the CBPA’s operational and programming requirements without affecting its Class A status,18 the record now before us does not present such a case. The stations have been on the air for only six of the last 40 months, and the record clearly indicates that this was due to the Licensees’ business decisions to cease operations for financial reasons and not to timely resolve unidentified technical difficulties. 8. IT IS THEREFORE ORDERED, That, Una Vez Mas Atascadero License, LLC; Una Vez Mas Santa Maria License, LLC; Una Vez Mas Lompoc License, LLC; Una Vez Mas Paso Robles License, LLC; and Una Vez Mas San Luis Obispo License, LLC show cause why their authorizations for Class A television stations KASC-CA, Atascadero, California; KDFS-CA, Santa Maria, California; (...continued from previous page) 12 FCC File No. BLSTA-20060817ABN. The request for silent authority stated that that station was taken off the air for tower repairs. 13 FCC File Nos. BLSTA-2008111114AAV, BLSTA-20081114AAY, BLSTA-20081114AAQ, BLSTA- 20081114AAT and BLSTA-20081114AAS. In their extension requests, the Licensees stated that “Continuing economic hardship has prevented the stations[s] from resuming operations.” See FCC File Nos. BLESTA- 20090427ACS, BLESTA-20090427ACV, BLESTA-20090427ACU, BLESTA-20090427ACQ and BLESTA- 20090427ACT. 14 47 U.S.C. § 312(g). This section of the Act provides, in pertinent part, that “If a broadcasting station fails to transmit broadcast signals for any consecutive 12-month period, then the station license granted for the operation of that broadcast station expires at the end of the period, notwithstanding any provision, term, or condition of the license to the contrary . . ..” 15 FCC File Nos. BLSTA-20091103ACX, BLSTA-20091103ADC, BLSTA-20091103ACY, BLSTA- 20091103ADA and BLSTA-20091103ADB. In their extension requests, the Licensees represented that each station remained off the air because of unidentified technical difficulties they were unable to resolve. See FCC File No. BLESTA-20100421ACA, BLESTA-20100422AAS, BLESTA- 20100422AAP, BLESTA-20100421ACB and BLESTA-20100421ACD. 16 FCC File Nos. BLSTA-20110128ADU, BLSTA-20110128ADS, BLSTA-20110128ADY, BLSTA- 20110128ADX and BLSTA-20110128ADP. 17 47 C.F.R. § 73.6001(d). 18 M O & O on Recon, 16 FCC Rcd at 8257, n.76. Federal Communications Commission DA 12-414 4 KLDF-CA, Lompoc, California; KPAO-CA, Paso Robles, California; and KSBO-CA, San Luis Obispo, California, should not be modified to specify the stations as low power television stations. 9. Pursuant to Section 1.87 of the Commission’s Rules, the Licensees may, no later than April 23, 2012, file a written statement why the above-captioned licenses should not be modified as proposed herein. The written statements, if any, must be mailed to Office of the Secretary, Federal Communications Commission, 445 12th Street, S.W., Washington, D.C. 20554, ATTN: Barbara A. Kreisman, Chief, Video Division, Media Bureau. An electronic copy should also be sent to joyce.bernstein@fcc.gov. Upon review of the statements and/or additional information, the Commission may grant the modifications, deny the modifications, or set the matter for hearing. If no written statements are filed by April 23, 2012, the Licensees will be deemed to have consented to the modification of their licenses from Class A television status to low power television status, and the modifications proposed in this Order to Show Cause will be deemed to serve the public interest. 10. IT IS FURTHER ORDERED, That a copy of this Order to Show Cause shall be sent by Certified Mail, Return Receipt Requested, to Una Vez Mas Atascadero License, LLC; Una Vez Mas Santa Maria License, LLC; Una Vez Mas Lompoc License, LLC; Una Vez Mas Paso Robles License, LLC; and Una Vez Mas San Luis Obispo License, LLC and their counsel as indicated below: Una Vez Mas Atascadero License, LLC Una Vez Mas Santa Maria License, LLC 703 McKinney Avenue 730 McKinney Avenue Suite 240 Suite 240 Dallas, Texas 75202 Dallas, Texas 75202 Una Vez Mas Paso Robles License, LLC Una Vez Mas Lompoc License, LLC 703 McKinney Avenue 730 McKinney Avenue Suite 240 Suite 240 Dallas, Texas 75202 Dallas, Texas 75202 Una Vez Mas San Luis Obispo License, LLC 703 McKinney Avenue Suite 240 Dallas, Texas 75202 Marnie K. Sarver, Esq. Wiley Rein LLP 1776 K Street, N.W. Washington, D.C. 20006 11. For further information concerning the proceeding, contact Joyce L. Bernstein, Video Division, Media Bureau, at Joyce.Bernstein@fcc.gov or (202) 418-1647. FEDERAL COMMUNICATIONS COMMISSION Barbara A. Kreisman Chief, Video Division Media Bureau