**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In re Applications of )

Peninsula Communications, Inc. )

)

for Renewal of Licenses for FM Translator ) File Nos. BRFT-951124UT, YU,
YW,

Stations ) ZE through ZK; BALFT-970701TR through TZ;

) BRFT-970930U5, YA through YH; and

K285EF, Kenai, K283AB; Kenai/Soldotna, ) BPFT-970616TK and TL

K274AB and K285AA, Kodiak; )

K272DG and K285EG, Seward; )

K257DB, Anchor Point; )

K265CK, Kachemak City; and )

K272CN; Homer, Alaska )

)

**MEMORANDUM OPINION AND ORDER**

**Adopted: February 9, 2000 Released: February 14, 2000**

By the Commission:

1\. The Commission has before it petitions for reconsideration filed by
Glacier Communications, Inc. (\"Glacier\") and Peninsula Communications,
Inc. (\"Peninsula\") on December 18, 1998 and January 11, 1999,
respectively, and various responsive pleadings.[^1] Peninsula is the
licensee of nine FM Alaskan translator stations and of two full service
FM Alaskan stations, KPEN-FM, Soldotna and KWVV-FM, Homer, that those
translators rebroadcast. Glacier is the permittee of KPFN(FM), a
full-service FM station in Seward, Alaska, currently operating on
program test authority and with a license application pending at the
Commission.

2\. Glacier and Peninsula both request reconsideration of a December 10,
1998, decision in which the Commission denied an Application for Review
in this proceeding. *Peninsula Communications, Inc.*, 13 FCC Rcd 23992
(1998) (\"*Peninsula Order*\"). In the *Peninsula Order*, the Commission
addressed the challenge of petitioners Glacier, Cobb Communications,
Inc., King Broadcasters, Inc., and KSRM, Inc., to a Mass Media Bureau
action granting conditionally the renewal applications of six of
Peninsula\'s nine translators: K285EF, Kenai, K283AB; Kenai/Soldotna,
K274AB and K285AA, Kodiak; and K272DG and K285EG, Seward. Specifically,
the Commission affirmed the Bureau\'s determination that Peninsula\'s
ownership of the Alaskan translators was inconsistent with the ownership
restrictions of the revised FM translator rules and thus required
divestiture, conditioning the renewal of the translator licenses on the
consummation of their assignments to an unrelated party. *See* 47 C.F.R.
74.1232(d) (prohibiting common ownership of an FM translator station and
a \"primary\" commercial FM station, *i.e*., a station whose signal is
retransmitted by a translator, where the translator\'s coverage contour
extends beyond the primary station\'s protected contour). Peninsula now
seeks reconsideration of this decision. Additionally, the Commission
denied the request by Peninsula\'s authorized assignee Coastal Broadcast
Communications, Inc. for waiver of the off-air signal delivery
requirement for K274AB and K285AA, Kodiak. 47 C.F.R. § 74.1231(b)
(requiring that \"other-area\" or \"non-fill-in\" translators, *i.e.*,
translators whose predicted coverage contour extends beyond the primary
station\'s coverage contour, retransmit only signals received directly
over the air). Peninsula also appeals this decision. Regarding waivers
for K272DG and K285EG, Seward, the Commission found that discontinuation
of previously-granted off-air signal delivery waivers was not warranted
at that time, but noted that it might consider whether changed
circumstances required a different result if and when an unbuilt full
service FM station authorized in Seward became operational. Glacier and
Peninsula both appeal this later decision. Glacier argues that
termination of the waivers is warranted since it is now operating a full
service FM station in Seward while Peninsula seeks a continuation of the
waivers for the entire current license term, until 2006.

3\. [Peninsula\'s Pleadings.]{.underline} Pursuant to 47 C.F.R. §
1.106(b)(2), the Commission will entertain a petition for
reconsideration of an order denying an application for review only if
the petition relies on facts which relate to events which have occurred
or circumstances which have changed since the last opportunity to
present such matters or the petition relies on facts unknown to the
petitioner until after his last opportunity to present such matters and
those facts could not, through the exercise of ordinary diligence, have
been learned prior to such opportunity.

4\. Generally, Peninsula argues the unfairness of the required
divestitures and the denial or termination of 47 C.F.R. § 74.1231(b)
waivers. None of the arguments it raises meet the standards of 47 C.F.R.
§ 1.106(b)(2). Accordingly, Peninsula\'s Petition for Reconsideration is
dismissed.[^2] 47 C.F.R. § 1.106(b)(3).

5\. In light of this action, we also dismiss as moot Peninsula\'s March
5, 1999, motion to stay its obligation to consummate the assignment of
licenses and assets of the nine translators. Peninsula has already
delayed consummation for more than a full year since release of the
*Peninsula Order*. 47 C.F.R. § 1.106(n) (filing of a petition for
reconsideration does not stay a Commission order). In fact, more than
five years have elapsed since the expiration of the three-year grace
period for coming into compliance with the revised translator rules and
more than two years have elapsed since the Commission granted assignment
applications that would bring Peninsula into compliance. We are
compelled at this point to direct the staff, if Peninsula does not
comply with the divestiture requirements within 30 days from the release
date of this *Order*, to rescind the November 6, 1997 and December 10,
1998 grant of license renewal applications for failure to meet a
Commission imposed condition, to cancel the relevant call signs, and to
terminate operating authority.[^3]

6\. [Glacier\'s Pleadings.]{.underline} Glacier argues that waivers of
47 C.F.R. § 74.1231(b), requiring \"non-fill-in\" translators to
retransmit only signals received directly over the air, should be
discontinued for translators K272DG and K285EG, licensed to Seward,
because Glacier\'s full service station KPFN(FM), also licensed to
Seward, is now fully operational. Hence, according to Glacier, the
Commission\'s justification for continuing the translator signal
delivery waivers is no longer valid.

7\. In the *Peninsula Order*, we noted that initial grant of the 47
C.F.R. § 74.1231(b) waivers was in fact erroneous because there was no
showing that the waivers were necessary to provide service to white
areas. We also noted, however, that the off-air signal delivery waivers
had been in effect for several years since the translator rules were
revised and that circumstances had not changed since the waivers were
granted. Specifically, we indicated that \"the community of Seward . . .
has only one full service commercial station, KSWD(AM), and the Seward
translators continue to provide Seward\'s only commercial FM service.\"
*Peninsula Order*, 13 FCC Rcd at 23998. We also noted that
discontinuation of the waivers would result in a loss of existing
service which could not be replaced except by a new full service
commercial station licensed to Seward, *id.* at 23998-99, but plainly
stated that \"if and when the unbuilt, nonoperational full service FM
station \[KPFN\] authorized in Seward commences operation . . . we may
consider whether the circumstances under which the waivers were granted
have so changed as to warrant termination of the Seward translator
operations.\" *Id.* at 23999.

8\. Station KPFN has now been constructed and has filed a license
application, which we grant below. As explained in detail in the
*Peninsula Order*, the very purpose of our translator rule revisions was
to return the translator service to its original secondary role and \"to
promote incentives for full service FM and AM broadcast development and
prevent such stations from being forced to compete economically with
translators.\" *Peninsula Order* 13 FCC Rcd at 23998 *citing* *Amendment
of Part 74 of the Commission\'s Rules Concerning FM Translator Stations,
Report and Order* in MM Docket 88-140, 5 FCC Rcd 7212, 7213-16, 7220-21
(1990) (\"*Report and Order*\"), *recon. den., Memorandum Opinion and
Order*, 8 FCC Rcd 5093, 5093-95 (1993) (\"*MO&O*\"). As also explained
in the *Peninsula Order*, we have previously specifically rejected the
contention that waivers should be available for the provision of
translator service to \"underserved\" areas with fewer than five
full-time aural services. *Peninsula Order*, 13 FCC Rcd at 23993 *citing
MO&O*, 8 FCC Rcd at 5094-95. Rather, waivers of sections 74.1231(b) and
74.1232(d) are available only upon a showing of service to a \"white
area;\" that is, an area outside the coverage contour of any full-time
aural broadcast service. *Peninsula Order*, 13 FCC Rcd at 23993 *citing*
*Report and Order*, 5 FCC Rcd at 7216, 7221; *Id.* at 23998, n.12
*citing Report and Order*, 5 FCC Rcd 7245, n.59.

9\. Our independent engineering analysis confirms that the two Seward
translators at issue here do not serve any white areas. Moreover, Seward
now has not only a full service AM station, KSWD(AM), but also a new
full service FM station, KPFN. KPFN claims that Peninsula\'s Seward
translators are taking between \$4,000 and \$6,000 per month in radio
revenues out of Seward, which is a community of fewer than 5,000 people
with limited sources of advertising revenue. Peninsula does not dispute
this claim. Given the totality of circumstances, we conclude that waiver
of 47 C.F.R. § 74.1231(b), permitting Peninsula to continue to deliver a
distant signal to Seward, would be a clear detriment to the continued
viability of full service broadcast stations licensed to Seward.
Accordingly, those waivers will be terminated 60 days from the release
date of this *Order*.

10\. Accordingly, IT IS ORDERED, that pursuant to 47 C.F.R. §
1.106(b)(3), the Petition for Reconsideration filed by Peninsula
Communications, Inc. IS DISMISSED.

11\. IT IS FURTHER ORDERED, that pursuant to 47 C.F.R. § 1.106(c)(1),
the Petition for Partial Reconsideration filed by Glacier
Communications, Inc., IS GRANTED.

12\. IT IS FURTHER ORDERED, that pursuant to 47 C.F.R. § 1.106(f),
Peninsula Communications, Inc.\'s Petition for Leave to File Supplement
to Petition for Reconsideration IS DENIED, Supplement to Petition for
Reconsideration IS DISMISSED, and Motion for Stay IS DISMISSED.

13\. IT IS FURTHER ORDERED, that Peninsula, within thirty days from the
release date of this *Order* consummate the authorized assignments of
the nine translators: K257DB, Anchor Point; K265CK Kachemak City; K272CN
Homer; K272DG and K285EG, Seward; K274AB and K285AA Kodiak; K283AB
Kenai/Soldotna; K285EF, Kenai, Alaska (File Nos. BALFT-970701TR through
TZ) and that, if Peninsula fails to consummate the authorized
assignments, the staff rescind the November 6, 1997 and December 10,
1998 license renewal grants, cancel the relevant call signs, and
terminate the translators\' operating authority.

14\. IT IS FURTHER ORDERED, that the application for a license to cover
the construction permit of station KPFN(FM), Seward, Alaska, (File
Number BLH-990125KE), IS GRANTED.

15\. IT IS FURTHER ORDERED, that the waivers of 47 C.F.R. § 74.1231(b),
for K272DG and K285EG, Seward, Alaska, ARE TERMINATED 60 days from the
release date of this order.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

[^1]:     ^?^ In addition, the following pleadings were filed: Cobb
    Communications, Inc.\'s (\"Cobb\") Opposition to Peninsula\'s
    Petition for Reconsideration filed on January 22, 1999; Glacier\'s
    Opposition to Peninsula\'s Petition for Reconsideration filed on
    January 26, 1999; Peninsula\'s Reply to Glacier\'s Opposition filed
    on February 4, 1999; Peninsula\'s Reply to Cobb\'s Opposition filed
    on February 4, 1999; Peninsula\'s Petition for Leave to File
    Supplement to Petition for Reconsideration filed on March 5, 1999;
    Peninsula\'s Supplement to Petition for Reconsideration filed on
    March 5, 1999; Peninsula\'s Motion for Stay filed on March 5, 1999;
    Cobb\'s Opposition to Motion to Stay filed on March 10, 1999;
    Cobb\'s Opposition to Petition for Leave to File Supplement to
    Petition for Reconsideration filed on March 18, 1999; Glacier\'s
    Opposition to Petition for Leave to File Supplement to Petition for
    Reconsideration filed on March 29, 1999.

[^2]: ^    ?^ Peninsula filed a request to supplement its petition for
    reconsideration and a supplement based on the release of the
    *Creation of a Low Power Radio Service*, *Notice of Proposed Rule
    Making*, MM Docket No. 99-25, 14 FCC Rcd 2471 (1999). We deny that
    request and dismiss the supplement. The *NPRM* is unrelated to the
    established policies underlying FM translators and Peninsula\'s
    attempt to rely on it to avoid the restrictions of 47 C.F.R. §
    1.106(f) and 47 C.F.R. § 1.106(b)(2) is unavailing.

[^3]: ^    ?^ Certified notice of consummation should be mailed directly
    to Federal Communications Commission, Mass Media Bureau, Audio
    Services Division, 445 12th Street, S.W., Washington, D.C. 20554.