DA 96-179 Federal Communications Commission Record
	
11 FCC Red No.5
Before the
Federal Communications Commission
Washington, D.C. 20554
LETTER
February 8, 1996
Released: February 22, 1996
IN REPLY REFER TO:
1 800B3-MFW
Kevin C. Boyle, Esq.
Melissa A. McOonigal, Esq.
Latham & Watkins
Suite 1300
1001 Pennsylvania Avenue, N.W.
Washington, D.C. 20004-2505
Peter Gutmann, Esq.
Pepper & Corazzini
Suite 200
1776 K Street, N.W.
Washington, D.C. 20006
In re: K257AA, Vernal, Utah
BALFT-950628GN
K285AB, Price, Utah
BALFT-950628G0
K221AC, Manti, Utah
BALFT-950628GP
K288AD, Myton, Utah
BALFT-950628G0
K288AA, Evanston, Wyoming
BALFT-950628GS
Apollo Radio of Salt Lake City. Inc., Assignor
Regent Licensee of Salt Lake City, Inc., Assignee
Request for Waiver of 47 C.F.R. §74.1232(d)
Apollo states that Stations K22IAC, Manti, K257AA, Vernal,K285AB, Price, and K288AD, Myton have been in operation for
over 21 years. while station K288AA, Evanston, Wyoming, hasbeen in operation for over 11 years.2 Apollo indicates that two Class A FM stations (KARB andKRPO) are licensed to serve Price, Utah, and that Class A
stations KLCY and KIFX are licensed to Vernal and Roosevelt,Utah, respectively. It does not indicate what other signals maybe received in the area covered by the affected translators.
Dear Counsel:
This letter refers to: (i) the captioned applications to
assign the licenses of the listed FM translator stations from
Apollo Radio of Salt Lake City, Inc. ("Apollo") to Regent
Licensee of Salt Lake City, Inc. ("Regent"); (ii) Apollo's
June 1, 1995 request for waiver of 47 C.F.R. §74.1232(d) to
permit it to own (and therefore ultimately to sell to Re-
gent) five FM translator stations operating outside the ser-
vice contour of their primary station; and (iii) Apollo's
November 22, 1995 supplement to the waiver request. For
the reasons stated below, we will grant the waiver request
and assignment application with respect to Station
K288AD, Myton, Utah, and deny the waiver request and
dismiss the assignment applications for the other listed FM
translator stations.
Tize waiter request. Apollo, the former license of, inter
alia, station KODJ(FM) Salt Lake City, Utah, is also the
licensee of FM Translator Stations K22IAC, Manti, Utah;
K257AA, Vernal, Utah; K258AB, Price, Utah; K288AA,
Evanston, Wyoming; and K288AD, Myton, Utah(collectively, the "affected translators"), which rebroadcast
KODJ(FM). The coverage contours of the affected
translators extend beyond the protected Contour of
KODJ(FM) in violation of 47 C.F.R. §74.1232(d) which
provides, in pertinent part:
An FM translator station in operation prior to June
1, 1991,1 which is owned by a commercial FM radio
broadcast station and whose coverage contour extends
beyond the protected contour of the primary station,
may continue to be owned by a commercial FM
radio broadcast station until June 1, 1994. Thereafter,
any such FM translator station must be owned by
independent parties.
On January 1, 1993, Apollo acquired the license and
assets of KODJ(FM) as well as those of the affected
translators. Apollo requested a waiver of Section 74.1232(d)
on June 1, 1994, the day compliance with that rule was
mandated. On June 28, 1995, Apollo applied to sell
KODJ(FM) and the affected translators, as well as its other
stations, to Regent. Because of ownership questions raised
by Apollo's waiver request, the Mass Media Bureau de-
ferred action on the applications for assignment of the
affected translators.
In support of the waiver request, Apollo states that,
absent a waiver, it would be required to divest itself of the
affected translators, which would be tantamount to requir-
ing that they cease operations. Apollo claims that there is
"little primary FM broadcast service in the rural areas that
KODJ(FM) can reach"2 through the affected translators,
and "terminating long-standing services in already
underserved areas clearly would be contrary to the public
interest."3 Apollo argues that the Commission has stated
On August 25, 1995, we approved the sale of stationKODJ(FM) (among others) and FM translator K285BH, ParkCity. Utah from Apollo to Regent. We also waived Section74.1232(d) for 120 days in order for Apollo to amend its perma-
nent waiver request to supply certain specified additional in-formation. Letter to Kevin C. Boyle, Eric L. Bernihal, Esq., andPeter Gutmann, Esq., reference 1800B3-MFW (Chief, Audio Ser-
vices Division, August 25, 1995). Apollo and Regent consum-
mated the KODJ and K285BH sale on October 26. 1995.
2348
11 FCC Red No.5
	
Federal Communications Commission Record DA 96-179
that "it will be favorably disposed" toward granting waivers
where translators outside the protected contour of their
primary station serve "white areas," and has suggested that
waivers are appropriate to allow continued provision of
service to remote areas experiencing limited radio service.
Grant of the waiver, claims Apollo, will not undermine the
Commission's stated policy in enacting the FM translator
eligibility rules -- that FM service develops primarily
through full-service FM stations and not through
translators -- because the affected translators do not operate
as a substitute for an upgrade of KODJ(FM). Rather, they
act as "true translators, bringing secondary reception ser-
vice to remote, sparsely populated areas."
In its November 22 amendment, submitted at the request
of the Audio Services Division Chief, Apollo submits the
following specific information with respect to its attempt to
divest the translators and the areas served by the affected
translators:
EFFORTS PRIOR TO 6-1-94 TO LOCATE AN INDEPEN-
DENT OWNER
o Before Apollo bought the stations in 1993, the
prior licensee's President, George C. Hatch, directed
his Chief Engineer to contact the 5 cities served.
None were interested or economically capable of
running the affected translators
o Mr. Hatch's subsequent "reasonable efforts" to find
an independent party capable of supporting the af-
fected translators were not successful
o More recently, Apollo contacted the mayors of the
5 cities. While the mayors think that the affected
translators are important to their communities, they
remain unwilling or unable to operate them
o "To the best of its knowledge," there are no inter-
ested independent operators willing to operate the
affected translators
WHITE (0 STATIONS)/GRAY (1 STA-
TION)/UNDERSERVED AREAS
K288AD, Myton, UT (pop. 468)
o No station serves entire contour, there is some
white area, some "gray" area
o 4 FM stations in Provo serve parts of the contour
o KSL(AM), Salt Lake City, serves another part of
the contour
K221AC, Manti, UT (pop. 2268)
o There are areas of contour which receive 5, 4, 3, or
2 full-time services
o Partial coverage by 4 stations (2 AM, 2 FM)
' In proceedings in which 47 U.S.C. §307(b) is at issue, the
commission has defined an underserved area as one receiving
fewer than five aural signals.
Notice of Inquiry, 3 FCC Rcd 3664 (1988); Report and Order,
5 FCC Rcd 7212 (1990); Memorandwn Opinion and Order, 8
FCC Rcd 5093 (1993).6 In so doing, the Commission wrote that it continued "to
believe that the most appropriate and efficient means of provid-
o Complete coverage by KSL(AM), KMXU(FM),
Manti
K257AA, Vernal, UT (pop. 6644)
o 2 services cover most of contour, 3 cover the rest
o complete coverage by KLCY, Vernal, KIFX, Roo-
sevelt
o partial coverage by KVEL, Vernal
K285AB, Price, UT (pop. 8712)
o 1 service to majority of contour; remainder of the
contour gets 2 or 3 signals
o Complete coverage by KOAL(AM), Price
o Predicted coverage by KMXU, Manti, but no actual
I mV/rn coverage due to terrain
o KARB(FM), KPRQ(FM), Price provide partial cov-
erage
K288AA, Evanston, WY (pop. 10,903)
o complete coverage by 2 stations, partial coverage by
a third station
o KOTB, Evanston and KSL provide complete cov-
erage
o KEVA, Evanston provides partial coverage
Apollo argues that the affected translators provide service
to unserved and "underserved" (fewer than 5 stations)4
areas, provide "valuable first and second service" to
white/gray areas, and provide a diversity of choice to other
areas.
IMPACT ON FULL-SERVICE STATIONS
o Apollo receives no advertising revenue from any of
the 5 translator towns, does not sell advertising there,
and has no plans tO do so
o Affected translators do not retransmit signal of
small-market station into a large market and there-
fore dont inflict economic harm or restrain the de-
velopment of full-service FM broadcasting
Discussion. In MM Docket No. 88-l40, the Commission
tightened and/or clarified several technical and operational
requirements for FM translators after affirming that the
proper role for FM translators was to supplement the
service provided by FM radio broadcast stations.6
Among the amended regulations was that contained in
Section 74.1232(d) prohibiting a commercial FM broad-
caster from owning an FM translator if the translator's
coverage contour extends beyon,d the primary station's cov-
erage contour. However, the Commission also stated that:
ing additional FM service nationwide is by creating opportu-
nities for the establishment and development of full-service FM
stations. We believe that a modification of our rules to permit
the expansion of FM service through the use of translators
	
would be inconsistent with our basic FM allotment scheme."
Report and Order in MM Docket No. 88-140, 5 FCC Rcd at
7215.
2349
DA 96-179 Federal Communications Commission Record
	
11 FCC Red No. 5
in situations where a licensee establishes that [full-
time aural] service is indeed unavailable, we will be
favorably disposed toward requests for waivers of this
rule to address these unique circumstances. Within
the context of this proceeding, we will define a
"white area" as any area outside the coverage contour
of any full-time aural service. We emphasize that in
order for commercial primary stations to own
translators in such areas, the Commission will re-
quire a showing of a lack of service in accordance
with the "white area" definition given above.
Report and Order in MM Docket No. 88-140, 5 FCC Rcd
at7216. Realizing that rapid compliance with this require-
ment could result in disruption of service to the public for
FM translator operators with limited financial means, the
Commission gave existing FM translator operators three
years to come into compliance with the new service rules.
However, the Commission clearly anticipated that the new
rules might require the termination of certain FM
translator operations, because it made no provision MM
Docket 88-140 for permanent waiver of the ownership
requirements in situations other than those involving
"white areas." To this end, it established a procedure for
extending the time within which existing translator oper-
ations must come into compliance:
The Commission recognizes the limited resources of
many FM translator licensees affected by the new
rules and desires to refrain from imposing an extraor-
dinary burden through the compliance process.
Therefore, we will also entertain waivers for extended
grandfathering periods for those licensees showing
that the public would unduly lose service if compli-
ance with the new service rules were required within
three years.
Id., at 7232.
In this case, it is clear that, with the exception of Station
K288AD, Myton, Utah, none of the affected translators
provides first aural service to any "white area."8 These
stations therfore do not come under the white area waiver
provision.
Furthermore, the Commission has expressly refused to
accept an argument that waiver could be based either on
the provision of a second service to a "gray" area or the
provision of an additional service to an "underserved" area
which receives fewer than five aural services. See Memoran-
dum Opinion and Order in MM Docket No. 88-140, 8 FCC
Rcd at 5094-5. Apollo recognizes this fact, hut argues that
the Commission's analysis in rejecting that argument fo-
cused on the potential for economic harm to full-service
station operators from FM translators. Apollo reiterates
that its translators inflict no such harm on station oper-
On reconsideration, the Commission affirmed that "an indefi-
nite grandfathering period would undermine the effectiveness of
the new rules in returning the FM translator service to its
original secondary role. Instead, we continue to believe that the
Report 's provision for extended waivers will adequately prevent
	
the public from unduly losing service in unique circumstances."
Memorandum Opinion and Order in MM Docket No. 88-140, 8
FCC Rcd at 5100.8 Ii appears that approximately 60% of Station K288DA's ser-
ators in the relevant communities. However, the decision
was based not only on the potential for economic harm to
full-service station operators but also on the Commission's
conclusion that "any enhancements to FM service are most
efficiently provided by full-service FM stations .... [Tjhe
new ownership and financial support limitations adopted
in [the Report and Order j will best serve the public interest
	
by promoting incentives for primary station development."
Id., at 5094. In any event, we are constrained by the strong
and unequivocal Commission pronouncements quoted
above that permanent waivers of the FM translator owner-
ship restrictions may only be granted if the licensee dem-
onstrates that the subject translator provides service to a
white area. Waiver will be denied and the assignment
applications dismissed for all translator stations except
K288AD, where the service contour appears to consist of
approximately 60% white area.9
With respect to Station K288AD, we believe that waiver
is warranted in accordance with the "white area" waiver
provision. By providing a first aural service to the majority
of its coverage contour, Station K288AD fundamentally
fulfills the traditional purpose of an FM translator -- bring-
ing a first aural service to a small pocket of population
whose needs are unlikely to be served by a full-service FM
station -- and thus complies with the letter and spirit of
MM Docket No. 88-140. Waiver of Section 74.1232(d) and
assignment application No. BALFT-950628GQ therefore
will be granted for Station K288AD.
Conclusions/Ordering Clauses. In light of our dismissal of
Apollo's Vernal, Price, Manti, and Evanston FM translator
assignment applications, the licenses for these stations re-
main in Apollo's hands. Apollo may continue to own and
operate these translators in its own right, so long as it
receives no support, directly or indirectly, from Regent, the
newlicensee of KODJ(FM). Alternatively, Apollo may seek
to assign these station licenses to any other qualified ap-
plicant.
Accordingly, in light of the above discussion. IT IS OR-
DERED, that the petition for waiver of Section 74.1232(d)
filed by Apollo Radio of Salt Lake City, Inc. IS GRANTED
with respect to station K288AD, Myton, Utah and IS DE-
NIED in all other respects. IT IS FURTHER ORDERED
that the application for assignment of the license and sale
of the assets of Station K288AD from Apollo Radio of Salt
Lake City, Inc. to Regent Licensee of Salt Lake City. Inc.
(File No. BALFT-950628G0) IS GRANTED, and the ap-
plications for assignment of license and sale of the assets of
stations K257AA, Vernal, Utah; K285AB, Price Utah;
K221AC, Manti, Utah; and K288AA, Evanston, Wyoming
(File Nos. BALFT-950628G N. BALFT-950628G0, BALFT-
950628GP, and BALFT-950628GS, respectively) ARE DIS-
MISSED.
vice contour consists of white area.
We note that our actions here may not result in an imminent
loss of service to the four affected communities, because we are
not requiring that Apollo cease operating the affected translators
and because apparently Apollo's predecessor, Communications
Investment corporation (or its corporate successor entities) has
a contractual obligation to operate the affected translators for
ten years in the event that the waiver request is denied. See
November 22 amendment, at 7, n.5.
2350
11 FCC Rcd No.5
	
Federal Communications Commission Record DA 96-179
Sincerely,
Linda B. Blair
Acting Chief, Audio Services Division
Mass Media Bureau
2351