Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In re Peninsula Communications,  | * | File Nos. BRFT-951124UT, YU, |
| Inc.                             | * | YW, ZE through ZH, ZJ, ZK;   |
|                                  | ) | BRFT-970930U5, YA through YH |
| Applications for Renewal of      | * |                              |
| License for FM Translator        | * | Facility ID Nos.: 52161,     |
| Stations                         |   | 52155, 52151, 52164, 52160,  |
|                                  | * | 52158, 52162, 52154 and      |
| K272DG and K285EG, Seward,       | * | 52148                        |
| Alaska;                          | ) |                              |
|                                  | * | File Nos. BALFT-970701TR     |
| K285EF, Kenai, Alaska;           | * | through TZ                   |
|                                  |   |                              |
| K283AB, Kenai/Soldotna, Alaska;  | * |                              |
|                                  | * |                              |
| K257DB, Anchor Point, Alaska;    | ) |                              |
|                                  | * |                              |
| K265CK, Kachemak City, Alaska;   | * |                              |
|                                  |   |                              |
| K272CN, Homer, Alaska; and       | * |                              |
|                                  | * |                              |
| K274AB and K285AA, Kodiak,       | ) |                              |
| Alaska                           | * |                              |
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| And                              |   |                              |
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| Applications to Assign the       | * |                              |
| Licenses of                      | ) |                              |
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| K272DG and K285EG, Seward,       | * |                              |
| Alaska;                          |   |                              |
|                                  | * |                              |
| K285EF, Kenai, Alaska;           | * |                              |
|                                  | ) |                              |
| K283AB, Kenai/Soldotna, Alaska;  | * |                              |
|                                  | * |                              |
| K257DB, Anchor Point, Alaska;    |   |                              |
|                                  | * |                              |
| K265CK, Kachemak City, Alaska;   | * |                              |
|                                  | ) |                              |
| K272CN, Homer, Alaska; and       | * |                              |
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| K274AB and K285AA, Kodiak,       |   |                              |
| Alaska                           | * |                              |
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| From Peninsula Communications,   | ) |                              |
| Inc. to                          | * |                              |
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| Coastal Broadcast                |   |                              |
| Communications, Inc.             | * |                              |
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+----------------------------------+---+------------------------------+

**MEMORANDUM OPINION AND ORDER AND ORDER TO SHOW CAUSE**

**Adopted: May 10, 2001 Released: May 18, 2001**

By the Commission:

1\. In this Order, we dismiss as untimely a pleading styled "Rejection
of Conditional License Renewal and Assignment of License Grants," filed
on March 15, 2000, by Peninsula Communications, Inc. ("Peninsula"). We
also, on our own motion: (1) rescind the 1995 and 1997 conditional
grants of the above-captioned renewal applications; (2) rescind the
conditional grants of the above-captioned assignment applications; (3)
dismiss the 1995 and 1997 renewal applications, cancel the call signs
and terminate the operating authority for the translator stations
K285EF, Kenai; K283AB, Kenai/Soldotna; K257DB, Anchor Point; K265CK,
Kachemak City; K272CN, Homer; and K274AB and K285AA, Kodiak; (4) grant
unconditionally the above-captioned renewals for translator stations
K272DG and K285EG, Seward; and (5) order Peninsula pursuant to section
316 of the Communications Act of 1934, as amended (the "Act"), 47 U.S.C.
§ 316, to show cause why its licenses for translators K272DG and K285EG,
Seward, should not be modified.[^1] Our reasons follow.

**I. Background**

2\. This case primarily involves our eligibility and signal delivery
requirements for FM translators, which appear in 47 C.F.R.
§§ 74.1231(b), 74.1232(d). Briefly, those provisions provide that
other-area or non-fill-in translators may only retransmit primary FM
station signals received by the translator directly over-the-air and
that authorization for an "other-area" or "non-fill-in" translator will
not be granted to persons interested in or connected with the commercial
"primary FM station."[^2] These rules became effective on June 1, 1991,
with pre-existing translators required to comply no later than June 1,
1994.[^3] As the Commission explained in establishing these rules,
translators are intended to provide "supplementary service to areas in
which direct reception of FM radio broadcast stations is unsatisfactory
due to distance or intervening terrain barriers," and the governing
rules are meant "to ensure that the translator service does not
adversely affect the operation of FM radio broadcast operations."
*Amendment of Part 74 of the Commission's Rules Concerning FM Translator
Stations*, *supra* note 3, 8 FCC Rcd at 5093.

3\. Peninsula is the licensee and assignor of the captioned FM
translator stations K272DG and K285EG Seward; K285EF, Kenai; K283AB,
Kenai/Soldotna; K257DB, Anchor Point; K265CK, Kachemak City; K272CN,
Homer; and K274AB and 285AA, Kodiak, Alaska. Peninsula's nine translator
stations are all non-fill-in stations that rebroadcast primary stations
licensed to Peninsula.[^4] The Seward translators, K272DG and K285EG,
have received and continue to receive their primary stations' signals
for rebroadcast by methods other than directly over-the-air. In
addition, as explained herein, the Seward translators are operating in
conformance with our rules pursuant to waivers, while the seven
remaining translators are operating in violation of our translator rules
and, except for the Kodiak translators,[^5] have been since at least
June 1, 1994.

4\. On November 24, 1995, Peninsula filed license renewal applications
for the nine translator stations ("1995 renewal applications"). On
September 11, 1996, the staff, in addressing petitions to deny filed
against six of the nine 1995 renewal applications, [^6] determined that
Peninsula had operated the non-Seward translator stations in violation
of our translator rules' ownership restrictions since June 1, 1994.
*See* 47 C.F.R. § 74.1232(d). The staff also concluded that, although
the Seward translator stations had previously received waivers of this
rule, continued waivers were not warranted. Finally, the staff deferred
action on the 1995 renewal applications for a period of 60 days to allow
Peninsula to file assignment applications for the nine translators in
order to come into compliance with 47 C.F.R. § 74.1232(d). *See Letter
to Jeffrey D. Southmayd, Esq*., Ref. No. 1800B4-AJS (Chief, Audio
Services Division, Mass Media Bureau, September 11, 1996) ("*September
1996 letter*"). Ultimately, acceptable assignment applications were
filed on July 1, 1997.[^7]

5\. On November 6, 1997, the staff granted the applications to assign
the licenses for all nine translators. So that the assignments could go
forward, the staff also granted all nine 1995 renewal applications,
conditioned upon consummation of the authorized assignments. Finally,
the staff conditioned consummation of the assignments on grant of the
recently-filed 1997 renewal applications. *See* *Letter to Jeffrey D.
Southmayd, Esq*., Ref. No. 1800B3-BSH (Chief, Audio Services Division,
Mass Media Bureau, November 6, 1997) ("*November 1997 staff decision*").
The *November 1997 staff decision* stated that failure to meet the
divestiture condition would render grant of the 1995 renewal
applications null and void. Peninsula did not seek reconsideration or
review of the *November 1997 staff decision*. However, Cobb
Communications, Inc., Glacier Communications, Inc., KSRM, Inc., and King
Broadcasters, Inc. (collectively referred to as "Petitioners") filed
both a petition for reconsideration and an application for review of the
*November 1997 staff decision.* As was the case with respect to the 1995
renewal applications, Petitioners did not challenge the license renewals
or assignments for K257DB, Anchor Point; K265CK, Kachemak City; or
K272CN, Homer.

6\. In December 1998, the Commission dismissed and denied, respectively,
Petitioners' petition for reconsideration and their application for
review. *Peninsula Communications, Inc.*, 13 FCC Rcd 23992 (1998)
("*December 1998 MO&O*"). Essentially, Petitioners had argued that the
staff should have revoked Peninsula's licenses because of the rule
violations and that the staff erred in concluding instead that Peninsula
could sell the subject translator stations. In our decision, we noted
that, in the absence of an unresolved basic character qualification
issue, "there can be no doubt as to the Commission's authority to cure
or remedy \[the violation of the ownership restrictions\] by granting
the renewal applications conditioned on divestiture of the translators."
*December 1998 MO&O,* 13 FCC Rcd at 23996*.* In the *December 1998
MO&O*, we also granted Peninsula's 1997 renewal applications,[^8]
conditioned on consummation of the authorized assignments, and denied
requests for waiver of 47 C.F.R. § 74.1231(b), the over-the-air delivery
restrictions, filed by Coastal for the Kodiak translators. However, with
respect to the Seward translators, we determined that discontinuation of
the previously granted waivers of 47 C.F.R. § 74.1231(b) would require
termination of the operations of those translators and would not serve
the public interest at that time since the translators provided Seward's
only FM service. We noted that a construction permit had been issued to
William M. Holzheimer, one of the principals of Glacier Communications,
Inc., for a new FM station in Seward. In regard thereto, we stated that,
if and when that full service FM station commenced 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." *See* *December 1998 MO&O*, 13 FCC Rcd at 23997-99.

7\. Peninsula and Glacier sought reconsideration of the *December 1998
MO&O*. Peninsula disputed the conditional grants of the 1995 and 1997
renewal applications. It also contested the determination that the seven
subject translators other than the ones in Seward had been operating in
violation of 47 C.F.R. § 74.1232(d) since June 1, 1994 and the
determination that continued waiver of 47 C.F.R. § 74.1232(d) was not
warranted for the two Seward translators. In addition, Peninsula, but
not Coastal, requested reconsideration of the denial of requests for
waivers of 47 C.F.R. § 74.1231(b) for the Kodiak translators. Finally,
Peninsula objected to our statement that we would consider whether to
terminate the Seward translators' 47 C.F.R. § 74.1231(b) waivers if and
when an unbuilt, full service FM station authorized in Seward commenced
operations. Glacier argued that Peninsula's waivers of the over-the-air
reception rule, 47 C.F.R. § 74.1231(b), should be discontinued for the
Seward translators.

8\. On February 14, 2000, we dismissed Peninsula's petition for
reconsideration of the *December 1998 MO&O*. *Peninsula Communications,
Inc.*, 15 FCC Rcd 3293 (2000) ("*February 2000 MO&O*"). We ordered
Peninsula to consummate the authorized assignments within thirty days of
the decision, and we directed the staff to rescind the conditional
grants of the 1995 and 1997 license renewal applications, cancel the
relevant call signs and terminate the translators' operating authority
if Peninsula did not comply with the divestiture requirement. *February
2000 MO&O*, 15 FCC Rcd at 3294. We also granted Mr. Holzheimer's
application for a license to cover the construction permit for full
power FM station KPFN(FM), Seward, Alaska and terminated the waivers of
the 47 C.F.R. § 74.1231(b) signal delivery rule for the subject Seward
translators effective 60 days from the release date of the order. *Id.*
at 3295-96. In so doing, we took note of Glacier's argument that the
Peninsula translators were taking radio revenues out of the small
community of Seward, creating financial difficulties for the new FM full
service station, KPFN(FM), and we concluded that 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. *Id.* On February 23, 2000, Peninsula filed with the
Commission a motion to stay the effect of the *December 1998 MO&O* and
the *February 2000 MO&O* pending the filing and resolution of an appeal
it intended to file.[^9]

9\. On March 8, 2000, Peninsula filed an appeal of the Commission's
*February 2000 MO&O* with the United States Court of Appeals for the
District of Columbia Circuit ("Court"). That same day, Peninsula filed
an Emergency Motion for Stay of the *February 2000 MO&O* with the Court
arguing, *inter alia*, that, pursuant to 47 U.S.C. § 309(k), the
Commission was required to grant its renewal applications
unconditionally and that its operating authority could be terminated
only after a hearing pursuant to 47 U.S.C. § 312.[^10] On March 14,
2000, the Court denied Peninsula's Emergency Motion for Stay. On March
15, 2000, Peninsula filed with the Commission the pleading now before
us, a "Rejection of Conditional License Renewal and Assignment of
License Grants." By order dated July 11, 2000, the Court dismissed
Peninsula's appeal without prejudice to refiling following the
Commission's resolution of the "Rejection of Conditional License Renewal
and Assignment of License Grants."

10\. Peninsula's "Rejection of Conditional License Renewal and
Assignment of License Grants" is premised on 47 C.F.R. § 1.110. Section
1.110 provides that, "\[w\]here the Commission without a hearing grants
any application in part, or with any privileges, terms, or conditions
other than those requested,...the action of the Commission shall be
considered as a grant of such application unless the applicant shall
within 30 days from the date on which such grant is made...file with the
Commission a written request rejecting the grant as made. Upon receipt
of such request, the Commission will vacate its original action upon the
application and set the application for hearing in the same manner as
other applications are set for hearing." In its pleading, Peninsula
rejects the action of the Commission granting Peninsula's 1995 and 1997
license renewal applications conditioned on divestiture of the
translator licenses and "upon the other conditions contained in the
orders." Peninsula also states that it rejects the staff's grant of the
1997 assignment applications "subject to the conditions modifying the
licenses for the two Seward stations, and the other conditions placed
thereon." Peninsula asserts that, pursuant to 47 C.F.R. § 1.110, the
Commission must now vacate its original action on the applications and
set the applications for hearing. Peninsula states that it considers the
Commission's actions in the *December 1998 MO&O* and *February 2000
MO&O* "vacated *ab initio* as of this date, null, void, and of no
further force and effect, and requiring no further action by Peninsula
in accordance therewith." Peninsula continues to operate the subject
nine translator stations.

**II. Discussion**

11\. After carefully considering all the circumstances, we believe that
Peninsula's invocation of 47 C.F.R. § 1.110 is untimely and warrants
dismissal. Peninsula's "Rejection of Conditional License Renewal and
Assignment of License Grants" was not filed until more than two years
after conditional grants of the 1995 renewal applications and 1997
assignment applications, which occurred as a result of the *November
1997 staff decision.* Peninsula did not seek reconsideration of the
*November 1997 staff decision*. Rather, Peninsula actually accepted and
endorsed the November 1997 conditional grants of the 1995 renewal
applications observing that the conditional grants were "fair and
consistent with the facts and existing legal precedent for approving
such applications." *See* Peninsula's December 30, 1997 Opposition to
Application for Review, at page 8. 47 C.F.R. § 1.110 \"does not allow
applicants first to accept a partial grant, yet later to seek
reconsideration of its conditions.\" *Tribune Company v. FCC*, 133 F.3d
61, 66 (D.C. Cir. 1998), *citing Central Television, Inc. v. FCC*, 834
F.2d 186, 190 (D.C. Cir. 1987). An applicant must file a written request
rejecting a conditional grant within 30 days from the date on which the
conditional grant is made; otherwise, the action of the Commission shall
be considered as a grant of the application and that grant is not
subject to appeal by the applicant. *See Mobile Communications
Corporation of America v. FCC*, 77 F.3d 1399, 1404 (D.C. Cir. 1996),
*cert. denied*, 117 S.Ct. 81 (1996), *citing Central Television, Inc. v.
FCC*, 834 F.2d 186, 190-91 (D.C. Cir. 1987). Accordingly, we find the
"Rejection of Conditional License Renewal and Assignment of License
Grants" at issue here to be untimely, and it is hereby dismissed.[^11]
*See* 47 C.F.R. § 1.110; *see also* *Capital Telephone Co. v. FCC*, 498
F.2d 734, 740 (1974).

12\. In light of the dismissal of Peninsula's belated "Rejection of
Conditional License Renewal and Assignment of License Grants," we must
now determine the fate of Peninsula's translators. In this regard, the
failure to consummate the assignments, coupled with Coastal's apparent
unwillingness to go forward with the assignments at any time in the
foreseeable future, compels the conclusion that the conditions attached
to the grants of Peninsula's 1995 and 1997 renewals were not (and likely
will never be) met. Consistent with the *February 2000 MO&O*, we could
rescind the 1995 and 1997 renewal grants and order Peninsula's
translators off the air immediately. However, we believe our ultimate
decision should account for the different factual circumstances
attending the different sets of translators. Accordingly, on our own
motion, we are modifying our *February 2000 MO&O* as set forth in this
Order.[^12]

13\. [K257DB, Anchor Point; K265CK, Kachemak City; K272CN, Homer;
K285EF, Kenai; K283AB, Kenai/Soldotna; and K274AB and K285AA,
Kodiak]{.underline}. The staff correctly concluded in 1996 that
Peninsula had been operating these facilities contrary to the
requirements of 47 C.F.R. § 74.1232(d) since June 1, 1994. *See*
*September 1996 letter*. To rectify this situation, the *November 1997
staff decision* expressly conditioned grant of the translator stations'
1995 renewal applications on consummation of their assignment to
Coastal.[^13] As noted, consummation of the assignments has not occurred
and will not occur. Thus, Peninsula has not fulfilled the condition
notwithstanding our explicit warning that its failure to divest would
result in rescission of the grants of the 1995 and 1997 renewal
applications. *See February 2000 MO&O*, 15 FCC Rcd at 3294. Accordingly,
as to these stations, we rescind the conditional grants of the 1995 and
1997 renewal applications, rescind the 1997 conditional assignment
grants, dismiss the 1995 renewal applications and dismiss, as moot, the
1997 assignment applications and 1997 renewal applications.[^14] *P&R
Termer v. FCC*, 743 F.2d 918, 928 (D.C. Cir. 1984) (termination of
license for failure to meet license condition did not require hearing).
Finally, inasmuch as Peninsula's authority to operate these translators
has expired, Peninsula must cease operations by 12:00 midnight the day
after release of this Order. Further operations by Peninsula after this
time may subject it to serious sanctions, including but not limited to
forfeitures under section 503(b) of the Act. *See also* 47 U.S.C. §§
401, 501 and 502.

14\. [K272DG and K285EG, Seward ("Seward translators")]{.underline}. The
procedural posture of the Seward translators is akin to that of the
other seven translators. However, there is one significant difference.
In this regard, the staff had explicitly granted Peninsula waivers of 47
C.F.R. §§ 74.1231(b) and 74.1232(d), waivers that we declined to rescind
in our *December 1998 MO&O* because of concerns about loss of FM
programming to the public. At the same time, however, we also indicated
that commencement of operations by a new full service FM station in
Seward would justify review of the situation to determine whether the
waivers should continue. In our *February 2000 MO&O*, we ordered
termination of the Seward waivers within 60 days of the release of that
order in light of the commencement of operations of KPFN(FM), Seward.
Peninsula has challenged this result in Court and we believe that
section 316 of the Act affords the most direct and expedient means of
resolving the matter.[^15] Accordingly, we will grant unconditionally
Peninsula's 1995 and 1997 renewals for the Seward translators. In
addition, pursuant to section 316 of the Act, we will order Peninsula to
show cause why its Seward translators' licenses should not be modified
to discontinue the previously granted waivers of 47 C.F.R. §§ 74.1231(b)
and 74.1232(d). Should Peninsula protest the proposed order of
modification, we intend to rule on the matter expeditiously.[^16] If
Peninsula's licenses are modified,[^17] we expect it to operate the
translators in accordance with those authorizations, and, if it is
unable to do so, to terminate their operation immediately.

**III. ORDERING CLAUSES**

15\. Accordingly, IT IS ORDERED that Peninsula Communications, Inc.'s
"Rejection of Conditional License Renewal and Assignment of License
Grants" IS DISMISSED.

16\. IT IS FURTHER ORDERED that the conditional grants of the 1995 and
1997 renewal applications filed by Peninsula Communications, Inc. for
translator stations K257DB, Anchor Point, Alaska; K265CK, Kachemak City,
Alaska; K272CN, Homer, Alaska; K285EF, Kenai, Alaska; K283AB,
Kenai/Soldotna, Alaska; K274AB and K285AA, Kodiak, Alaska; and K272DG
and K285EG, Seward, Alaska, ARE RESCINDED.

17\. IT IS FURTHER ORDERED that the conditional grants of the 1997
applications to assign the licenses for translator stations K257DB,
Anchor Point, Alaska; K265CK, Kachemak City, Alaska; K272CN, Homer,
Alaska; K285EF, Kenai, Alaska; K283AB, Kenai/Soldotna, Alaska; K274AB
and K285AA, Kodiak, Alaska; and K272DG and K285EG, Seward, Alaska, from
Peninsula Communications, Inc. to Coastal Broadcast Communications, Inc.
ARE RESCINDED.

18\. IT IS FURTHER ORDERED that the 1995 and 1997 renewal applications
filed by Peninsula Communications, Inc. for translator stations K257DB,
Anchor Point, Alaska; K265CK, Kachemak City, Alaska; K272CN, Homer,
Alaska; K285EF, Kenai, Alaska; K283AB, Kenai/Soldotna, Alaska; and
K274AB and K285AA, Kodiak, Alaska, ARE DISMISSED.

19\. IT IS FURTHER ORDERED that the 1997 applications to assign the
licenses for translator stations K257DB, Anchor Point, Alaska; K265CK,
Kachemak City, Alaska; K272CN, Homer, Alaska; K285EF, Kenai, Alaska;
K283AB, Kenai/Soldotna, Alaska; and K274AB and K285AA, Kodiak, Alaska,
from Peninsula Communications, Inc. to Coastal Broadcast Communications,
Inc. ARE DISMISSED.

20\. IT IS FURTHER ORDERED that call signs for translator stations
K257DB, Anchor Point, Alaska; K265CK, Kachemak City, Alaska; K272CN,
Homer, Alaska; K285EF, Kenai, Alaska; K283AB, Kenai/Soldotna, Alaska;
and K274AB and K285AA, Kodiak, Alaska, ARE DELETED.

21\. IT IS FURTHER ORDERED that Peninsula Communications, Inc. SHALL
TERMINATE OPERATIONS for translator stations K257DB, Anchor Point,
Alaska; K265CK, Kachemak City, Alaska; K272CN, Homer, Alaska; K285EF,
Kenai, Alaska; K283AB, Kenai/Soldotna, Alaska; and K274AB and K285AA,
Kodiak, Alaska, effective at 12:00 midnight on the day after release of
this Order.

22\. IT IS FURTHER ORDERED that the 1995 and 1997 renewal applications
filed by Peninsula Communications, Inc. for translator stations K272DG
and K285EG, Seward, Alaska, ARE GRANTED UNCONDITIONALLY.

23\. IT IS FURTHER ORDERED that the 1997 applications to assign the
licenses for translator stations K272DG and K285EG, Seward, Alaska, from
Peninsula Communications, Inc. to Coastal Broadcast Communications, Inc.
ARE DISMISSED.

24\. IT IS FURTHER ORDERED that, pursuant to 47 U.S.C. § 316(a) and 47
C.F.R. § 1.87, Peninsula Communications, Inc., IS DIRECTED TO SHOW CAUSE
why the licenses for translator stations K272DG and K285EG, Seward,
Alaska, SHOULD NOT BE MODIFIED:

> \[1.\] To terminate waivers of 47 C.F.R. § 74.1231(b); and
>
> \[2.\] To terminate waivers of 47 C.F.R. § 74.1232(d).

25\. Pursuant to 47 C.F.R. § 1.87, Peninsula Communications, Inc. may,
not later than 30 days from the release of this Order, file a written
protest showing with particularity why the licenses for translator
stations K272DG and K285EG, Seward, Alaska, should not be modified as
proposed. Any protest will be considered fully before the Commission
decides whether to modify the subject licenses. If a hearing is deemed
necessary because the protest raises a substantial and material question
of fact, the Mass Media Bureau shall designate such hearing in a
subsequent order. If no protest is filed by the date referenced above,
Peninsula Communications, Inc. will be deemed to have consented to the
modification as proposed and the Commission will issue a final order to
that effect.

26\. IT IS FURTHER ORDERED that the Mass Media Bureau SHALL SEND, BY
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, a copy of this Memorandum
Opinion and Order and Order to Show Cause to:

Peninsula Communications, Inc.

c/o Jeffrey D. Southmayd, Esquire

Southmayd & Miller

1220 19^th^ Street, N.W., Suite 400

Washington, D.C. 20036

Peninsula Communications, Inc.

Post Office Box 109

Homer, Alaska 99603

Chester P. Coleman and Phoenix Broadcasting, Inc.[^18]

c/o David Tillotson, Esquire

4606 Charleston Terrace, N.W.

Washington, D.C. 20007

Kodiak Island Broadcasting Company, Inc.

c/o Henry A. Solomon, Esquire

Garvey, Schubert & Barer

1000 Potomac Street, N.W., 5^th^ Floor

Washington, D.C. 20007

KSRM, Inc.

c/o Peter Gutmann, Esquire

Pepper & Corazzini, L.L.P.

1776 K Street, N.W., Suite 200

Washington, D.C. 20006

FEDERAL COMMUNICATIONS COMMISSION

Magalie Román Salas

> Secretary

[^1]: ^?^ As explained herein, we believe the Seward translators
    currently have the benefit of waivers of sections 73.1231(b) and
    73.1232(d) of the Commission's rules, which we believe can best be
    addressed by following the procedures set forth in section 316 of
    the Act and section 1.87 of the Commission's rules.

[^2]: ^?^ An "other-area" or "non-fill-in" translator is one whose
    coverage contour extends beyond the protected service contour of its
    primary station. *See* 47 C.F.R. §74.1201(h) and (i). A "primary" FM
    station is the station whose signal a translator retransmits. 47
    C.F.R §74.1201(d).

[^3]: ^?^ *See Amendment of Part 74 of the Commission's Rules Concerning
    FM Translator Stations*, 5 FCC Rcd 7212 (1990), *modified*, 6 FCC
    Rcd 2334 (1991), *recon. denied*, 8 FCC Rcd 5093 (1993).

[^4]: ^?^ The Kodiak translators ceased rebroadcasting Peninsula's
    KPEN-FM, Soldotna and KWVV-FM, Homer, Alaska on November 12, 1997,
    and remained silent between that date and October 29, 1998. On
    October 29, 1998, the Kodiak translators began rebroadcasting the
    signal of a noncommercial FM translator in Kodiak in accordance with
    our translator rules. *See December 1998 MO&O*, 13 FCC Rcd at 23998
    n. 13. However, according to a "Request for Investigation," filed
    February 12, 2001, by Kodiak Island Broadcasting Company, Inc.
    ("KIB"), licensee of stations KVOK and KRXX(FM), Kodiak, the Kodiak
    translators again began to rebroadcast Peninsula's stations KPEN-FM
    and KWVV-FM in late January 2001. KSRM, Inc., licensee of stations
    KSRM, Soldotna, and KWHQ(FM), Kenai, filed comments in support of
    KIB's request on February 15, 2001. On March 15, 2001, Peninsula
    responded to KIB's "Request for Investigation" and reported that the
    Kodiak translators had recently recommenced the rebroadcast of
    stations KPEN-FM and KWVV‑FM.

[^5]: ^?^ *See* footnote 4, *supra*.

[^6]: ^?^ The six challenged translator stations were K272DG and K285EG,
    Seward: K285EF, Kenai; K283AB, Kenai/Soldotna; and K274AB and
    K285AA, Kodiak.

[^7]: ^?^ Peninsula and Coastal Broadcast Communications, Inc.
    ("Coastal") originally filed applications to assign the nine
    translator stations on November 14, 1996. Those applications were
    dismissed as patently not in accordance with the Commission's rules.
    *See Letter to Jeffrey D. Southmayd, Esq., et. al.,* Ref. No.
    1800B3-BSH (Chief, Audio Services Division, Mass Media Bureau, June
    17, 1997) ("*June 1997 Staff Decision*"). The June *1997 Staff
    Decision* afforded the parties ten business days to file assignment
    applications that would fully comply with the Commission's rules.
    Peninsula and Coastal then filed the above captioned assignment
    applications.

[^8]: ^?^ The brevity of the time period between the filing of the 1995
    and 1997 renewal applications was the result of the Commission's
    decision to modify FM translator license terms to run concurrently
    with the terms of FM primary stations. *See In the Matter of
    Modifying Renewal Dates for Certain Stations Licensed under Part 74
    of the Commission's Rules and Revising FCC Form 303-S, Report and
    Order*, 9 FCC Rcd 6504 (1994).

[^9]: ^?^ In a supplement to that motion, filed on March 3, 2000,
    Peninsula attached a letter from Coastal. That letter made plain
    that Coastal was no longer willing to buy Peninsula's translators
    for the price agreed upon in 1996.

[^10]: ^?^ 47 U.S.C. § 309(k)(1) sets forth the standards the Commission
    must reference in determining whether to renew a license for a
    broadcast station. Section 309(k)(2) of the Act provides that if the
    licensee fails to meet one of the renewal standards, the Commission
    may grant the application subject to appropriate terms and
    conditions. That section, in conjunction with section 309(k)(3),
    alternatively provides that the Commission may deny the renewal
    application after a hearing. As our discussion in paragraph 13,
    *infra*, makes clear, we believe that the staff's imposition of a
    divestiture condition upon Peninsula was necessary to correct the
    serious, ongoing violations of our translator rules with respect to
    the translators in Anchor Point, Kachemak City, Homer, Kenai, and
    Kodiak. Finally, inasmuch as we are granting unconditional renewals
    for the Seward translators, Peninsula's section 309(k) argument
    relative to those licenses is now moot.

[^11]: ^?^ In light of our disposition of the 1995 renewal applications,
    we need not address the effect of Peninsula's rejection with respect
    to the 1997 renewal applications. *See* paragraphs 13-14, *infra*.

[^12]: ^?^ In light of our decision to modify our prior order, we do not
    believe enforcement action with respect to our prior order is
    warranted. We instruct the staff to move quickly and strongly,
    however, to recommend or take appropriate enforcement action if
    there is any non-compliance with the provisions of this order.

[^13]: ^?^ Although the Petitioners filed a petition for reconsideration
    and application for review of the *November 1997 staff decision*
    with respect to six of the nine subject translators, Peninsula did
    not timely contest the *November 1997 staff decision*.

[^14]: ^?^ As consummation of the authorized assignments has not
    occurred and will not occur, we also rescind the 1997 conditional
    assignment grants for stations K272DG and K285EG, Seward, and we
    dismiss, as moot, the 1997 assignment applications for those Seward
    translator stations.

[^15]: ^?^ Section 316 of the Act allows us to modify a license
    following notification to the licensee and according the licensee 30
    days within which to protest the proposed order of modification.
    *See also* 47 C.F.R. § 1.87.

[^16]: ^?^ Any order modifying Peninsula's licenses will be issued by
    the Commission. If there are substantial and material questions of
    fact requiring a hearing pursuant to section 316(a)(3) of the Act,
    the Mass Media Bureau shall designate the matter for hearing. The
    staff may also decide not to modify the licenses on delegated
    authority.

[^17]: ^?^ We are aware that termination of the waivers of the
    over-the-air delivery restrictions for the Seward translators may
    result in termination of service to a number of Alaskan citizens who
    claim that the service provided by these translators is critical and
    that the full-service AM and FM stations licensed to Seward will not
    be adequate substitutes. *See* Peninsula's March 6, 2000, Statement
    for the Record with attached letters.

[^18]: ^?^ Mr. Coleman and Phoenix are successors in interest to King
    Broadcasters, Inc. and Glacier Communications, Inc., two of the
    Petitioners first identified in paragraph 5, *supra*.