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                            Before the
                Federal Communications Commission
                      Washington, D.C. 20554

In re Application of            )
                                )
PAPPAS TELECASTING OF SIOUX     )  File No. BMPCT-980820KE
CITY, A CALIFORNIA LIMITED      )
PARTNERSHIP                     )
                                )
To Modify the Construction Permit)
For Television Station          )
KPTH(TV), Sioux City, Iowa      )

                  MEMORANDUM OPINION AND ORDER

   Adopted:  November 24, 1998          Released:  November 24, 1998 

By the Chief, Mass Media Bureau:


     1. The Commission, by the Chief, Mass Media Bureau, acting pursuant to delegated
authority, has before it for consideration the above-captioned unopposed application of Pappas
Telecasting of Sioux City, a California Limited Partnership (Pappas) to modify the construction
permit for unbuilt television station KPTH(TV), Channel 44, Sioux City, Iowa.  A commonly-owned
company, Pappas Telecasting of the Midlands, a California Limited Partnership, is the licensee of
KPTM(TV), Channel 42 (FOX), Omaha, Nebraska, which currently holds a construction permit to
modify its facilities.  See File No. BPCT-870902KE.  The predicted Grade B contour of the proposed
facilities of KPTH would overlap the predicted Grade B contour of both the licensed facilities of
KPTM and the facilities specified in its outstanding construction permit.  Such overlap is prohibited
by the Commission's television duopoly rule, 47 CFR  73.3555(b).  To allow common ownership
of the modified facilities of KPTH and KPTM, Pappas requests a waiver pursuant to the conditional
waiver policy announced by the Commission in connection with its pending review of the duopoly
rule.  See Review of the Commission's Regulations Governing Television Broadcasting, Second
Further Notice of Proposed Rule Making, 11 FCC Rcd 21655 (1996) (Television Ownership Second
Further Notice).

     2.  Duopoly Waiver Request.  Pappas's engineering exhibit demonstrates that there will be
no Grade A contour overlap of the facilities of KPTH and KPTM as authorized in their construction
permits.  According to Pappas's calculations, the Grade B overlap area of the modified facilities of
KPTH and KPTM encompasses 22,756 individuals and 3,642 square kilometers, comprising
approximately 2% of the population and 10.4% of the land area within KPTM's proposed Grade B
contour and 5.7% of the population and 10.3% of the land area within KPTH's Grade B contour. 
Pappas maintains that these figures are within the range of overlap the Commission has found
acceptable in prior cases.

     3.  Pappas calculates that 5 television stations provide service to the entire Grade B overlap
area.  An additional 9 television stations provide service to a portion of the overlap area.  In
addition, Pappas demonstrates that 3 AM radio stations and 13 FM radio stations serve the entire
overlap area and 13 AM radio stations and 29 FM radio stations serve a portion of the overlap area. 
Pappas notes that, within the overlap area, there are 3 cable television providers and 6 daily
newspapers.  Consequently, Pappas concludes that a large number of media voices are available in
the overlap area and the common ownership of KPTM and KPTH will not result in any significant
diminishment of media voices.  

     4.  As to the distinctiveness of the markets, Pappas argues that the KPTM market, Omaha,
Nebraska, and the KPTH market, Sioux City, Iowa, are separate and distinct.  Pappas notes that the
Sioux City Designated Market Area (DMA) is the nation's 141st largest market and the Omaha
DMA is the 74th largest.  Pappas also notes that these communities are located in different states and
are approximately 100 miles apart.
          
     5.  Pappas states that, with respect to the independence of the stations, it will operate KPTM
and KPTH on a separate and independent basis.  Both stations will have their own separate sales,
management and traffic staffs and separate staff level employees.

     6.  Finally, Pappas notes that the common ownership of the stations will not result in undue
concentration of economic power within the overlap area because the stations will not engage in joint
advertising or marketing efforts.  Pappas submits that the geographic distance between the stations
makes the possibility of concentration of economic power remote.

     7.  Discussion.  In adopting the duopoly rule's fixed standard of prohibiting overlap of Grade
B service contours, the Commission also acknowledged the need for "flexibility" in that rule's
application, noting that waivers should be granted where rigid conformance to the rule would be
"inappropriate."  Multiple Ownership of Standard, FM and Television Broadcast Stations, 45 FCC
2d 1476, 1479 n.12, recon. granted in part, 3 RR 2d 1554 (1964).  To that end, the Commission has
developed a set of factors to be considered when evaluating an applicant's request for waiver of the
duopoly rule, including the extent of the overlap, the number of media voices available in the overlap
area, the distinctness of the respective markets, the independence of the stations' operations, and the
concentration of economic power resulting from the combination.  See Iowa State University
Broadcasting Corporation, 9 FCC Rcd 481, 487-88 (1993), aff'd sub nom. Iowans for WOI-TV, Inc.
v. FCC, 50 F.3d 1096 (D.C. Cir. 1995); H&C Communications, Inc., 9 FCC Rcd 144, 146 (1993). 
After weighing the factors, the Commission considers any public interest benefits proposed by the
applicant to determine whether, in light of the overlap, the benefits outweigh any detriment which
may occur from grant of the waiver.  See, e.g., Iowa State University, 9 FCC Rcd at 487-88.  As with
any waiver, it will only be granted if the Commission concludes that the waiver is in the public
interest.

     8.  Currently, the Commission is reexamining its broadcast television ownership policies,
including the duopoly rule.  In January 1995, the Commission proposed a new analytical framework
within which to evaluate its broadcast television ownership rules.  See Review of the Commission's
Regulations Governing Television Broadcasting, Further Notice of Proposed Rule Making, 10 FCC
Rcd 3524 (1995) (Television Ownership Further Notice).  Subsequent to the release of the Television
Ownership Further Notice, Congress directed the Commission to conduct a rulemaking proceeding
to determine whether to retain, modify or eliminate existing limitations on the number of television
stations that an entity may control within the same television market.  See Section 202(c) of the
Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (Feb. 8, 1996) ("Telecom Act"). 
In response to this Congressional directive in the Telecom Act and to update the record, the
Commission released the Television Ownership Second Further Notice. 

     9.  The Commission stated in the Television Ownership Second Further Notice that it will
be inclined, during the pendency of the television ownership proceeding, to grant temporary duopoly
waivers involving stations in different DMA's with no overlapping Grade A contours, conditioned
on coming into compliance with the outcome of the proceeding within six months of its conclusion. 
It also noted there its tentative conclusion that the record in that proceeding "supports relaxation of
the geographic scope of the duopoly rule from its current Grade B overlap standard to a standard
based on DMAs supplemented with a Grade A overlap criterion."  Television Ownership Second
Further Notice, 11 FCC Rcd at 21681.  The Commission further stated that "we do not believe
granting waivers satisfying the proposed standard, and conditioning them on the outcome of this
proceeding, will adversely affect our competition and diversity goals in the interim."  Id. 
Additionally, the Commission gave the staff delegated authority to act on applications seeking
waivers consistent with this interim policy.  Id.  

     10.  We believe that grant of a conditional waiver of the duopoly rule, subject to the outcome
of the pending ownership proceeding, is justified in this case.  The temporary common ownership
of the modified facilities of KPTH and the modified facilities of KPTM would be consistent with
the interim policy set forth in the Television Ownership Second Further Notice, as the stations are
in separate DMA's and there is no Grade A overlap between them.  Moreover, our examination of
the record presented here reveals nothing suggesting that we should not follow the established
interim policy in this case.  Accordingly, we conclude that grant of a temporary waiver, conditioned
on the resolution of the pending broadcast television ownership rulemaking, will serve the public
interest, convenience and necessity.  Any requests to extend this conditional waiver should be filed
at least 45 days prior to the end of the six-month period and would be closely scrutinized. 
Additionally, we find Pappas has met our technical requirements for grant of the application for
modification of KPTH.  
     
      11.  Accordingly, IT IS ORDERED, that the request for a conditional waiver of Section
73.3555(b) IS GRANTED to permit the common ownership of the modified facilities of KPTH and
KPTM, subject to the outcome of the Commission's pending broadcast ownership rulemaking in
MM Docket Nos. 91-221 and 87-8.  Should divestiture be required as a result of that proceeding,
Pappas is directed to file, within six months from the release of the final order in MM Docket Nos.
91-221 and 87-8, an application for Commission consent to dispose of such station as would be
necessary for it to come into compliance with the rules as provided in the final order.

     12.  IT IS FURTHER ORDERED, that the application for modification of the construction
permit of KPTH(TV), Sioux City, Iowa (File No. BMPCT-980820KE) IS GRANTED. 
 
                              FEDERAL COMMUNICATIONS COMMISSION



                              Roy J. Stewart
                              Chief, Mass Media Bureau