**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In re Peninsula Communications,  | *  |                              |
| Inc.                             | *) |                              |
|                                  | ** |                              |
| Order to Show Cause Why the      |    |                              |
| Licenses for Translator Stations | *  |                              |
| K272DG and K285EG, Seward,       | *) |                              |
| Alaska Should not be Modified    | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
+----------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted:** **March 4, 2003 Released: March 10, 2003**

By the Commission:

1\. The Commission has before it the June 18, 2001, Protest and
Opposition of Peninsula Communication, Inc. ("Peninsula") to the
Commission's Order to Show Cause why the licenses of translator stations
K272DG and K285EG, Seward, Alaska, ("Seward Translator Stations") should
not be modified, pursuant to Section 316 of the Communication Act of
1934, as amended,[^1] and Section 1.87 of the Commission's rules, [^2]
to terminate previously granted waivers of Sections 74.1231(b) and
74.1232(d)[^3] of the Commission's rules. [^4] Also before us is a July
5, 2001, Opposition to Peninsula's Protest and Opposition to the
Commission's *Order to Show Cause* filed by Phoenix Broadcasting, Inc.,
licensee of KSWD(AM) and KPFN(FM) Seward, Alaska ("Phoenix"). In this
Order, we deny Peninsula's Protest and Opposition and modify the Seward
Translator Stations' licenses to terminate the waivers of Sections
74.1231(b) and 74.1232(d), effective 60 days from release of this Order.

**I. Background**

2\. The most appropriate and efficient means of providing additional FM
service nationwide is by creating opportunities for the establishment
and development of full service broadcast stations.[^5] FM translator
stations provide supplementary service to areas that either are
underserved or receive service limited by terrain.[^6] Due to the
potential competitive impact that translator stations can have on FM
radio broadcast stations and the development of full service radio in
less populated areas, the Commission authorizes FM translators on a
secondary basis only under rules that restrict their service, ownership,
sources of financial support, and program origination.[^7] In 1990, the
Commission substantially amended these rules to ensure that FM
translator stations serve their intended secondary role. At issue in
this case are Sections 74.1231(b) and 74.1232(d), which provide that an
other-area or non-fill-in translator station may only retransmit a
commercial FM station signal that is received directly off-air[^8] and
that an authorization for such a translator station will not be granted
to any person interested in or connected with the translator's primary
commercial FM station.[^9] A primary station is the full service station
whose signal a translator retransmits. An other-area or non-fill-in
translator is one whose coverage contour extends beyond the protected
service contour of its primary station.

3\. The Commission may grant a waiver of its rules for good cause.[^10]
Waiver of a Commission rule is appropriate if: (1) special circumstances
warrant deviation from the general rule; (2) waiver will not undermine
the policy served by the rule; and (3) deviation from the rule will
serve the public interest.[^11] The Commission will favorably consider
requests for waivers of Sections 74.1231(b) and 74.1232(d) for
translators that provide service to a white area, *i.e.*, an area
outside the coverage contour of any full-time aural broadcast
service.[^12] A showing of service to a white area generally is required
in order for a commercial primary station to own another-area
translator.[^13] The Commission has rejected the contention that waiver
of the ownership restrictions set forth in Section 74.1232 of the
Commission's rules also should be presumptively available for the
provision of FM translator service to "underserved" areas, defined as
areas receiving fewer than five full-time aural services.[^14]

4\. Peninsula is the licensee of the Seward Translator Stations and the
primary full service stations that those translators rebroadcast
KPEN-FM, Soldotna, Alaska, and KWVV-FM, Homer, Alaska. The Seward
Translator Stations are located outside the protected service of their
primary stations and require non-off-air delivery systems to rebroadcast
the signals of those stations. At the time the applications for
construction permits for the Seward Translator Stations were filed, KSWD
(AM), Seward, Alaska, provided the only primary broadcast service to
Seward. Thus, both Seward Translator Stations are non-fill-in
translators that do not serve (and have never served) any white area. On
February 18, 1992, the staff granted Peninsula's original construction
permit applications for the Seward Translator Stations and granted
waivers of the eligibility and signal delivery requirements set forth in
Sections 74.1231(b) and 74.1232(d).[^15] The staff noted that Peninsula
reported that Seward was a somewhat isolated area for radio due to the
mountainous terrain and that the Seward Translator Stations would
provide a much needed first commercial FM service. The staff found that
off-air broadcast signals were not readily available in Seward and,
relying on *Wrangell Radio Group,*[^16] determined that waivers were
justified. It noted the Commission's "special concern for the
availability of broadcast services in Alaska" and the number of people
who would receive programming.[^17] On February 1, 1993, the staff
granted Peninsula's applications for licenses to cover the construction
permits for the Seward Translator Stations.

5\. When reviewing Peninsula's November 1995 and September 1997 renewal
applications for the Seward Translator Stations, the Commission
determined that continuation of the waivers of 47 C.F.R. § 74.1232(d)
was not warranted and granted the renewal applications conditioned on
assignment of the licenses to unrelated parties in order to bring the
stations into compliance with the Commission's FM translator rules.[^18]
Peninsula filed an appeal of the *February 2000 MO&O* with the United
States Court of Appeals for the District of Columbia Circuit. Peninsula
also filed a pleading with the Commission. The Court dismissed the
Peninsula appeal without prejudice to refiling following the
Commission's resolution of the issues pending before the Commission. In
the *Order to Show Cause*, the Commission dismissed Peninsula's newly
filed pleading, granted the Seward Translator Stations' renewal
applications,[^19] and, finding that Section 316 of the Act afforded the
most direct and expedient means of resolving outstanding matters,
ordered Peninsula to show cause why the Seward Translator Stations'
licenses should not be modified, pursuant to Section 316 of the Act and
1.87 of the Commission's rules, to discontinue the previously granted
waivers of 47 C.F.R.  74.1231(b) and 74.1232(d). The Commission afforded
Peninsula thirty days to file a written protest to the proposed license
modifications. On June 18, 2001, Peninsula filed a "Protest and
Opposition Order to Show Cause for Modification of Licenses," in which
it opposed the proposed license modifications and requested a hearing
prior to any Commission action. On July 5, 2001, Phoenix, the licensee
of the only AM and FM full service stations in Seward, filed an
Opposition to Peninsula's pleading asserting that the Commission should
modify the Seward Translator Stations' licenses to discontinue the
waivers of 47 C.F.R. Sections 74.1231(b), 74.1232(d).

**II. Discussion**

6\. Pursuant to our authority, under Section 316 of the Act and Sections
1.87 and 74.1232(h) of the Commission's rules, to modify any license if
we determine that such action will promote the public interest,
convenience, and necessity, we modify the Seward Translator Stations'
licenses to terminate the waivers of Sections 74.1231(b) and 74.1232(d).
Continued waivers of Sections 74.1231(b) and 74.1232(d) are not
warranted because: (1) the facts upon which the staff waiver was based
have changed materially; (2) Section 74.1232(h) specifically
contemplates the termination of Section 74.1232(d) waivers as a result
of changed circumstances; (3) these waivers undermine the policy
objectives of Sections 74.1231(b) and 74.1232(d); and (4) continuation
of the rule waivers would result in discriminatory application of the
Commission's rules.

7\. Changed circumstances in Seward since the grant of these waivers
support their termination at this time. In February 1992, the staff
noted that: (1) Peninsula asserted that the Seward Translator Stations
would provide a much needed first commercial FM service to the
community; (2) the Commission was concerned about the availability of
broadcast services in Alaska; and (3) broadcast signals were not readily
available off-air in Seward. In February 2000, the Commission granted
the application for a license to cover the construction permit of
station KPFN (FM), Seward, Alaska (File No. BLH-990125KE). Seward is now
served by full service AM and FM radio stations. Therefore, the basis
for these waivers no longer exists and their continuation is
unwarranted. We note that the Seward Translator Stations' Section
74.1232(d) waivers are subject to the condition set forth in Section
74.1232(h) that permits the Commission to terminate such waivers upon
sixty days written notice if changed circumstances would have prohibited
grant of the initial authorization.[^20]

8\. Peninsula asserts that, after station KPFN (FM) commenced broadcast
operations,[^21] the Commission granted the Seward Translator Stations'
licenses to operate pursuant to the subject rule waivers in January 1999
and granted in May 2001 the stations' renewal applications without
taking any action against the waivers. Peninsula contends that there
have been no changes in the number of broadcast stations operating in
Seward and no changes in the Commission's translator rules and policies
since January 1999 or May 2001 that would justify modification of the
Seward translators' licenses by terminating the subject rule waivers. We
reject Peninsula's selective and otherwise flawed parsing of the record
and conclude that it has failed to raise a substantial and material
question of fact as to whether the proposed modifications of the Seward
Translator Stations' licenses are in the public interest. To the extent
that the Commission has revisited these 1992 and 1993 waivers, it has
consistently focused on the possibility that changed circumstances may
require their termination. Prior to KPFN (FM) becoming operational, we
specifically noted that it might be necessary to "consider whether the
circumstances under which the waivers were granted have so changed as to
warrant termination of the Seward translator operations."[^22] It also
appears that the Commission was unaware of the filing by Glacier,
several days before the 1998 MO&O was adopted, which advised the
Commission of the commencement of program tests by KPFN(FM). Moreover,
the KPFN(FM) license application and fee were received by Mellon Bank on
January 25, 1999, two months after adoption of the December 1998 MO&O.
Plainly, the routine staff grants[^23] on January 27 and 28, 1999, of
licenses to cover minor changes in the Seward Translator Stations
occurred without consideration of the impact of the receipt of the KPFN
(FM) license application by the Commission several days earlier.
Finally, Peninsula's reliance on the May 2001 *Order to Show Cause* is
misplaced. In this action the Commission explicitly ordered Peninsula to
show cause why the Seward Translators Stations' licenses should not be
modified to discontinue the subject waivers.[^24] The Commission stated
that it believed that this afforded the most direct and expedient means
of resolving this matter.

9\. Waivers of Commission rules must not undermine the policy objectives
of those rules which the Commission has determined serve the public
interest.[^25] We find that the Seward Translator Stations' waivers of
Sections 74.1231(b) and 74.1232(d) adversely affect the operation of
local full-service FM radio broadcast stations by impermissibly
expanding the service area of a non-local primary station.[^26] Here,
adherence to the rule will promote local full-service radio
service.[^27] White area waivers are consistent with these policies;
waivers to areas served by two full service radio stations are not.[^28]
Additionally, continuation of these waivers would result in the Seward
Translator Stations being treated differently than other similarly
situated non-fill-in translators without justification.[^29] Therefore,
modification of the Seward Translator Stations' licenses to terminate
these rule waivers is in the public interest.

10\. Peninsula asserts that there is no evidence in the Commission's
records to indicate that the operation of the Seward translators causes
economic harm to any other broadcast station in the Seward radio market.
We conclude that Peninsula has failed to raise a substantial and
material question regarding whether the proposed modification of
licenses is warranted. Phoenix states that, during a previous license
renewal proceeding, the licensee and permittee of stations KSWD(AM) and
KPFN(FM) asserted that competition from the Seward translators made it
difficult for station KSWD(AM) to survive and prosper in the small
community of Seward, that the Seward translators would threaten the
financial viability of station KPFN(FM), and that the Seward translators
were taking between \$4,000 and \$6,000 per month in radio revenues out
of Seward, a community of fewer than 5,000 people with limited sources
of advertising revenue.[^30] Phoenix now contends that the Seward
translators continue to have an adverse economic impact on Seward's full
service stations because they siphon substantial advertising revenues
out of Seward which would otherwise be available to support the full
service stations. Peninsula has not disputed the claim that the Seward
translators generate \$4,000 to \$6,000 per month from Seward
advertisers. We find that permitting Peninsula to continue the Seward
translators current operations pursuant to waivers of 47
C.F.R. 74.1231(b) and 74.1232(d) would be a clear detriment to
full-service broadcast stations licensed to Seward, given the size of
the market.

11\. Peninsula also asserts that termination of the Seward Translator
Stations' rule waivers would force these stations, which have a
significant number of listeners, to cease operations and would result in
a significant loss of broadcast service to Seward. Peninsula's arguments
in this regard are unavailing and fail to raise a substantial and
material question of fact regarding whether the proposed license
modifications serve the public interest. The Commission contemplated
such a loss of translator service to the public when it created a
service that is permitted to operate on a secondary basis only, and
adopted rules that impose strict FM translator eligibility service and
waiver standards. Section 74.1232(h), which permits the termination of
certain translator authorizations based on changed circumstances,
codifies this policy with regard to white area waivers. Therefore, this
loss of translator service is not a special circumstance but an outcome
specifically contemplated by the rules.

12\. Peninsula's protest to our proposed modification of the Seward
translators' licenses is subject to the requirements of Section 309 of
the Act for petitions to deny.[^31] Therefore, Peninsula is entitled to
a hearing only if it presents a substantial and material question of
fact as to whether the proposed modification serves the public
interest.[^32] The record establishes that KPFN(FM) has operated as a
licensed station in Seward since February, 2000, and that AM and FM
service is now readily available in Seward. As an initial licensing
matter, the Commission would not have waived its rules in these
circumstances to grant an other-area FM translator station construction
permit to Peninsula. Section 74.1232(h) contemplates the termination of
an FM translator station authorization in precisely this situation.
Moreover, our order to terminate operations complies with the sixty-day
notification period codified in this subsection. We conclude that
Peninsula has failed to raise a substantial and material question of
fact regarding whether the proposed modification of the Seward
Translator Stations' licenses is in the public interest. Accordingly, we
deny Peninsula's request for a hearing.

13\. Peninsula's Protest is denied. Pursuant to Section 316 of the Act
and Sections 1.87 and 74.1232(h) of the Commission's rules, we modify
the Seward translators' licenses to terminate the waivers of Sections
74.1231(b) and 74.1232(d), effective 60 days from release of this Order.
Thereafter, Peninsula must operate the Seward Translator Stations in
accordance with their modified licenses and, if it is unable to do so,
it must terminate operations immediately.[^33] Within 60 days from
release of this order, Peninsula must file with the Secretary of the
Commission, with a copy to the Chief, Media Bureau, an affidavit
executed by an officer or director certifying that the Seward Translator
Stations are operating in compliance with their modified licenses and
stating how such compliance was achieved, or certifying that the Seward
Translator Stations have ceased operations.

**III. ORDERING CLAUSES**

14\. Accordingly, IT IS ORDERED, that Peninsula Communications, Inc.'s
June 18, 2001 "Protest and Opposition Order to Show Cause for
Modification of Licenses" IS DENIED.

15\. IT IS FURTHER ORDERED, that pursuant to Section 316 of the
Communications Act of 1934, as amended, and Section's 1.87 and
74.1232(h) of the Commission's rules, the licenses for translator
stations K272DG and K285EG, Seward, Alaska ARE MODIFIED to terminate the
waivers of Sections 74.1231(b) and 74.1232(d) of the Commission's rules,
effective sixty days from release of this Order.

16\. IT IS FURTHER ORDERED, that no later than sixty days after release
of this Order, Peninsula SHALL FILE with the Secretary of the
Commission, with a copy to the Chief, Media Bureau, an affidavit signed
by an officer or director indicating: (1) that stations K272DG and
K285EG, Seward Alaska are operating in compliance with their modified
licenses and in compliance with Sections 74.1231(b) and 74.1232(d) of
the Commission's rules and stating the basis on which such compliance
was achieved; or (2) that stations K272DG and K285EG, Seward Alaska are
unable to operate in accordance with their modified licenses and have
terminated operations.

17\. IT IS FURTHER ORDERED that the Media Bureau SHALL SEND, BY
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, a copy of this Memorandum
Opinion and Order 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

Phoenix Broadcasting, Inc.

c/o David Tillotson, Esquire

4606 Charleston Terrace, N.W.

Washington, D.C. 20007

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

> Secretary

[^1]: 47 U.S.C. § 316.

[^2]: 47 C.F.R. § 1.87.

[^3]: *Id.* § 74.1231 (b) and 74.1232 (d).

[^4]: *See Peninsula Communications, Inc.* 16 FCC Rcd 11364 (2001)
    (*"Order to Show Cause"*).

[^5]: *See Amendment of Part 74 of the Commission's Rules Concerning FM
    Translator Stations, Report and Order*, 5 FCC Rcd 7212, 7215 (1990)
    ("*Translator R&O"), modified,* 6 FCC Rcd 2334 (1991), *recon.
    denied and clarified,* 8 FCC Rcd 5093, 5094 (1993) ("*Translator
    MO&O")*.

[^6]: *See* *Translator R&O*, 5 FCC Rcd at 7212-13; *Translator MO&O*, 8
    FCC Rcd at 5093.

[^7]: *See* *Translator R&O*, 5 FCC Rcd at 7212 (citing *Amendment of
    Part 74 of the Commission\'s Rules and Regulations to Permit the
    Operation of Low Power FM Broadcasting Translator and Booster
    Stations, Report and Order*, 20 Rad. Reg. 2d (P&F) 1538, 1541
    (1970)).

[^8]: The Commission concluded that off-air reception should be adequate
    for most translator operations and that any further relaxation of
    this policy "would be inconsistent with the role of FM translators
    as a secondary service not intended to supplement the services
    provided by radio broadcasters." *Translator R&O*, 5 FCC Rcd at
    7221.

[^9]: The Commission imposed this restriction to promote the
    establishment of full service FM broadcast stations. *Id.* at 7215.

[^10]: *See* 47 C.F.R. § 1.3; *see also WAIT Radio v. FCC*, 418 F.2d
    1153, 1157 (D.C. Cir. 1969) ("*WAIT Radio*").

[^11]: *See Northeast Cellular Telephone Company, L.P., et al., v. FCC*,
    897 F.2d 1164, 1166 (D.C. Cir. 1990) ("*Northeast Cellular*"); *see
    also* *WAIT Radio,* 418 F.2d at 1157, 1159; Capital *Cities/ABC,
    Inc*., *ET. al*., 11 FCC Rcd 5841, 5872-73, 5898 (1996).

[^12]: *See Translator R&O*, 5 FCC Rcd at 7213-16, 7220-21; *Translator
    MO&O*, 8 FCC Rcd at 5094-95.

[^13]: *See Translator Report and Order*, 5 FCC Rcd at 7216.

[^14]: *See id.* at 7215-16; *Translator MO&O,* 8 FCC Rcd at 5094-95.

[^15]: *Letter to Peninsula Communications, Inc.*, Ref. No. 8930-MER
    (Chief, Auxiliary Services Branch, Audio Services Division, Mass
    Media Bureau, Feb. 18, 1992).

[^16]: *See Wrangell Radio Group,* 75 F.C.C. 2d 404 (1980) ("Wrangell").

[^17]: In *Wrangll,* the Commission granted rule waivers for the
    operation of 10-watt television translators in remote and isolated
    Alaskan communities where there was no off-air television
    programming available. The Commission noted that there are numerous
    small, isolated, and remote villages in Alaska, many of which are
    more than 500 miles apart, and that television broadcast signals are
    not readily available off-air in most Alaskan communities. 75 F.C.C.
    2d at 405, 407.

[^18]: *See Letter to Jeffrey D. Southmayd, Esq.*, Ref. No. 1800B4-AJS
    (Acting Chief, Audio Services Division, Mar. 4, 1996); *Letter to
    Jeffrey D. Southmayd, Esq.*, Ref. No. 1800B4-AJS (Chief, Audio
    Services Division, Sept. 11, 1996); *Letter to Jeffrey D. Southmayd,
    Esq.*, Ref. No. 1800B3-BSH (Chief, Audio Services Division, Nov. 6,
    1997); *Peninsula Communications, Inc.*, 13 FCC Rcd 23992 (1998)
    ("*December 1998 MO&O*"); *Peninsula Communications, Inc.*, 15 FCC
    Rcd 3293, 3295 (2000) (*February 2000 MO&O*). In the *February 2000
    MO&O*, the Commission also found that continued waivers of 47 C.F.R.
    § 74.1231(b) were not warranted.

[^19]: The renewal application proceeding is now final. For a complete
    history of this proceeding, see *Order to Show Cause*, 16 FCC Rcd at
    11365-70.

[^20]: *See* 47 C.F.R. § 74.1232(h) (any authorization for a FM
    translator station whose coverage contour extends beyond the
    protected contour of the commercial primary station that is issued
    to an applicant who is the licensee of the commercial primary FM
    radio broadcast station will be issued subject to the condition that
    it may be terminated at any time, upon not less than sixty days
    written notice, where the circumstances in the community or area
    served are so altered as to have prohibited grant of the application
    had such circumstances existed at the time of its filing).

[^21]: On November 13, 1998, Glacier notified the Commission that
    KPFN(FM) had commenced program tests.

[^22]: 13 FCC Rcd at 23999.

[^23]: *See* License Authorizations issued January 27 and 28, 1999 (File
    Nos. BLFT-19981022TC-TD).

[^24]: Peninsula had argued, citing 47 U.S.C. § 309(k) (1), that the
    Commission was required to grant its renewal applications
    unconditionally and had no authority to terminate the subject
    waivers or terminate operating authority in the context of that
    renewal proceeding.

[^25]: *See WAIT Radio*, 418 F.2d at 1157; *see also supra* note 6.

[^26]: 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. *Translator R&O*, 5 FCC Rcd at 7215;
    *Translator MO&O*, 8 FCC Rcd at 5094. The rules which generally
    limit FM translators to re-broadcasting off-air signals are designed
    to eliminate disincentives for service by full-service radio
    broadcast stations in instances where sufficient community interest
    exists for additional services, but where the existence of 'other
    area' translators financed by primary stations would work to limit
    the economic viability of such stations. *See Translator MO&O*, 8
    FCC Rcd at 5098.

[^27]: The public interest is best served by promoting the broad
    distribution of full service FM radio broadcast stations.
    *Translator R&O*, 5 FCC Rcd at 7215; *Translator MO&O*, 8 FCC Rcd at
    5094.

[^28]: *See supra* at ¶¶ 2, 3.

[^29]: *See Melody Music, Inc. v. FCC*, 345 F.2d 730 (D.C. Cir. 1965)
    (the Commission must treat similarly situated parties alike unless
    it explains its reasons for differential treatment in light of the
    purposes of the Communications Act).

[^30]: *See* Phoenix Opposition at 5-7; *see also December 1998 MO&O*,
    13 FCC Rcd at 23997; *February 2000 MO&O*, 15 FCC Rcd at 3295.

[^31]: *See* 47 U.S.C. § 316(a) (3); *see* *also* 47 C.F.R. § 1.87(d).

[^32]: *See* 47 U.S.C. § 309(d), (e); *see also Amendment of Section
    73.606(b), Table of Allotments, Television Broadcast Stations
    (Crandon, Wisconsin),* 3 FCC Rcd 6765 (1998); *Paul and Nancy
    Schumacher,* 3 FCC Rcd 7148 (1988), *recon. denied,* 4 FCC Rcd 3605
    (1989).

[^33]: *See Order to Show Cause*, 16 FCC Rcd at 11370.