*Pages 1--9 from  Microsoft Word - 9034.doc*
 Federal  Communications  Commission  FCC  01-  159
 Before  the
 Federal  Communications  Commission
 Washington,  D.  C.  20554
 In  re  Peninsula  Communications,  Inc.
 Applications  for  Renewal  of  License  for  FM
 Translator  Stations
 K272DG  and  K285EG,  Seward,  Alaska;
 K285EF,  Kenai,  Alaska;
 K283AB,  Kenai/  Soldotna,  Alaska;
 K257DB,  Anchor  Point,  Alaska;
 K265CK,  Kachemak  City,  Alaska;
 K272CN,  Homer,  Alaska;  and
 K274AB  and  K285AA,  Kodiak,  Alaska
 And
 Applications  to  Assign  the  Licenses  of
 K272DG  and  K285EG,  Seward,  Alaska;
 K285EF,  Kenai,  Alaska;
 K283AB,  Kenai/  Soldotna,  Alaska;
 K257DB,  Anchor  Point,  Alaska;
 K265CK,  Kachemak  City,  Alaska;
 K272CN,  Homer,  Alaska;  and
 K274AB  and  K285AA,  Kodiak,  Alaska
 From  Peninsula  Communications,  Inc.  to
 Coastal  Broadcast  Communications,  Inc.
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 File  Nos.  BRFT-  951124UT,  YU,  YW,  ZE
 through  ZH,  ZJ,  ZK;  BRFT-  970930U5,  YA
 through  YH
 Facility  ID  Nos.:  52161,  52155,  52151,
 52164,  52160,  52158,  52162,  52154  and
 52148
 File  Nos.  BALFT-  970701TR  through  TZ
 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
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 Federal  Communications  Commission  FCC  01-  159
 2
 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
 Commissions  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.  Peninsulas  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.
 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  Commissions  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  Commissions  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  Commissions  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  Peninsulas  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  Peninsulas  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  KIBs  request  on  February  15,
 2001.  On  March  15,  2001,  Peninsula  responded  to  KIBs  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.
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 Federal  Communications  Commission  FCC  01-  159
 3
 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  Peninsulas  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  Commissions
 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  Peninsulas  1997  renewal  applications,  8
 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  Commissions  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  Commissions  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  Commissions  decision  to  modify  FM  translator  license  terms  to  run  concurrently  with  the  terms  of
 (continued.)
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 Federal  Communications  Commission  FCC  01-  159
 4
 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  Sewards  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  Peninsulas  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  Peninsulas  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.
 Holzheimers  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  Glaciers  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  Commissions  February  2000  MO&  O  with
 the  United  States  Court  of  Appeals  for  the  District  of  Columbia  Circuit  (  Court).  That  same  day,
 (Continued  from  previous  page)
 FM  primary  stations.  See  In  the  Matter  of  Modifying  Renewal  Dates  for  Certain  Stations  Licensed  under  Part  74
 of  the  Commissions  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  Peninsulas  translators  for  the  price  agreed  upon
 in  1996.
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 Federal  Communications  Commission  FCC  01-  159
 5
 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  Peninsulas  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
 Peninsulas  appeal  without  prejudice  to  refiling  following  the  Commissions  resolution  of  the  Rejection  of
 Conditional  License  Renewal  and  Assignment  of  License  Grants.
 10.  Peninsulas  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  Peninsulas  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  staffs  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  Commissions  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  Peninsulas  invocation  of
 47  C.  F.  R.    1.110  is  untimely  and  warrants  dismissal.  Peninsulas  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  Peninsulas  December  30,  1997
 Opposition  to  Application  for  Review,  at  page  8.  47  C.  F.  R.    1.110  "does  not  allow  applicants  first  to
 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  staffs  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,
 Peninsulas  section  309(  k)  argument  relative  to  those  licenses  is  now  moot.
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 Federal  Communications  Commission  FCC  01-  159
 6
 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  Peninsulas  belated  Rejection  of  Conditional  License  Renewal  and
 Assignment  of  License  Grants,  we  must  now  determine  the  fate  of  Peninsulas  translators.  In  this  regard,
 the  failure  to  consummate  the  assignments,  coupled  with  Coastals  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  Peninsulas  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
 Peninsulas  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.  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  Peninsulas  authority  to
 11  In  light  of  our  disposition  of  the  1995  renewal  applications,  we  need  not  address  the  effect  of
 Peninsulas  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.
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 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).  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  Peninsulas  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  Peninsulas  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;
 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  Peninsulas  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  Peninsulas  March  6,  2000,  Statement  for  the  Record  with  attached  letters.
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 Federal  Communications  Commission  FCC  01-  159
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 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.
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 Federal  Communications  Commission  FCC  01-  159
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 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  Romn  Salas
 Secretary
 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.
9