********************************************************    
                         NOTICE
********************************************************

This document was converted from
WordPerfect to ASCII Text format.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
WordPerfect version or Adobe Acrobat version, if available.

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

In re: Applications of                  )
                              )
Peninsula Communications, Inc.          )
                              )
For Renewal of Licenses for FM Translator    )    File Nos. BRFT-951124UT, YU, ZG, ZH, ZJ, 
Stations                      )    ZK, BRFT-970930U5, YA through YH and  
                              )    BPFT-970616TK and TL
K285EF, Kenai, K283AB, Kenai/Soldotna,  )
K274AB and K285AA, Kodiak,         ) 
K272DG and K285EG, Seward, Alaska  )
 
                  MEMORANDUM OPINION AND ORDER

Adopted:  November 24, 1998                  Released:  December 10, 1998

     By the Commission:

     1.  The Commission has before it:  (1) an application for review filed December 15, 1997 by
Cobb Communications, Inc. ("Cobb"), Glacier Communications, Inc. ("Glacier"), KSRM, Inc. and King
Broadcasters, Inc. (collectively referred to as "Petitioners"), challenging the Mass Media Bureau's
("Bureau") action granting Peninsula Communications, Inc.'s ("Peninsula") above-captioned 1995
applications for renewal of the licenses of six commercial FM translator stations, subject to Peninsula's
divestiture of the translators, Letter to Jeffrey D. Southmayd, Esq., Ref. No. 1800B3-BSH (Chief, Audio
Services Division, November 6, 1997) ("11/6/97 letter"); (2) Peninsula's above-captioned 1997 renewal
applications, Petitioners' January 8, 1998 petition to deny the 1997 renewal applications for the six
subject translators, and Peninsula's February 6, 1998 motion to strike the petition to deny; and (3)
Peninsula's June 16, 1997 minor modification applications to use an alternative signal delivery system
for two of the subject translators and related requests for waiver of 47 C.F.R.  74.1231(b).

     2.  Background.  This case implicates the Commission's eligibility and signal delivery
requirements for FM translators.  47 C.F.R.  74.1231(b), 74.1232(d).  A brief discussion of the history
of these rules may be helpful in understanding this case.  In Amendment of Part 74 of the Commission's
Rules Concerning FM Translator Stations, Report and Order in MM Docket 88-140, 5 FCC Rcd 7212,
7213-14 (1990) ("Report and Order"), recon. den., Memorandum Opinion and Order, 8 FCC Rcd 5093,
5093-94 (1993) ("MO&O"), the Commission tightened and clarified a number of translator rules in order
to confine or return the service to its original secondary role.  Among other things, the Commission
revised Section 74.1232(d) to provide that authorization for an "other area" translator will not be granted
to persons interested in or connected with the commercial "primary FM station."  47 C.F.R. 
74.1232(d); Report and Order, 5 FCC Rcd at 7214-16.  This provision became effective on June 1,
1991, with pre-existing translators required to comply no later than June 1, 1994.  Report and Order, 5
FCC Rcd at 7231-32, modified, 6 FCC Rcd 2334 (1991).  The Commission provided this three-year grace
period for enforcement of the revised rule in order to avoid unnecessary disruption of service to the
public.  Report and Order, 5 FCC Rcd at 7232.  In addition, the Commission concluded that waiver of
Sections 74.1232(d) or 74.1231(b), the signal delivery rule, should be available only upon a showing of
service to a "white area," that is, an area outside the coverage contour of any full-time aural broadcast
service.  Id. at 7216, 7221; see MO&O, 8 FCC Rcd at 5094-95 (1993) (rejecting contention that waivers
should be available for the provision of translator service to "underserved" areas with fewer than five
full-time aural services).  Prior to the MM Docket 88-140 proceeding, however, and even after the
Commission's adoption of the Report and Order, the staff sometimes waived these and other rules for
Alaska translators based on the assumption that "Alaska's unique terrain, its remoteness and isolation,
justify special treatment[.]"  Wrangell Radio Group, 75 FCC 2d 404, 407 (1979); see, e.g., Letter to
Peninsula Communications, Inc., Ref. No. 8930-MER (Chief, Auxiliary Services Branch, February 18,
1992) ("2/18/92 letter").

     3.  Peninsula owns a total of nine translators in Alaska, as well as the translators' two primary
FM stations, KPEN-FM, Soldotna and KWVV-FM, Homer, Alaska.  Petitioners have challenged the
Bureau's action with regard to only six of these translators and, therefore, our discussion here is limited
to those six:  K285EF, Kenai, K283AB, Kenai/Soldotna, K274AB and K285AA, Kodiak ("Kodiak
translators"), and K272DG and K285EG, Seward ("Seward translators").  All six are "other area"
translators, that is, they extend the coverage of their commonly-owned primary stations' contours. 
Moreover, all but the two Kenai-area translators must receive the signals of their primary stations by
delivery means other than off-air reception.  Thus, under current rules, absent waiver of Section
74.1232(d), Peninsula cannot own any of these six translators and, absent waiver of Section 74.1231(b),
no one can operate the Seward and Kodiak translators using the non-off-air delivery systems which these
translators require.  

     4.  Peninsula obtained authorizations for three of the subject translators -- K283AB,
Kenai/Soldotna and the two Kodiak translators -- prior to June 1, 1991, the effective date of the Report
and Order.  It requested waiver of former Section 74.1232(d) in connection with K283AB because the
translator would operate within the protected service contour of another commercial FM station licensed
to a different community.  See supra, n. 4.  The staff granted the authorization without ruling on the
waiver request.  Waivers of former Section 74.1232(d) also were necessary for the two Kodiak
translators, but were not requested by Peninsula, and the staff granted the authorizations without
reference to the rule.  The other three subject translators -- K285EF, Kenai and the two Seward
translators -- were initially authorized after June 1, 1991.  The staff granted the K285EF authorization
without reference to the revised ownership rule in Section 74.1232(d), and granted waivers of that rule
for the two Seward translators in the 2/18/92 letter, citing the Wrangell policy of special treatment for
Alaska translators.  On the same ground, the staff also waived the off-air delivery requirement of Section
74.1231(b) for the Seward translators, thus allowing Peninsula to utilize an alternative signal delivery
system for the Seward translators.

     5.  Following receipt of Peninsula's 1995 renewal applications, the Bureau determined that
Peninsula had obtained valid waivers of Section 74.1232(d) only for the two Seward translators and,
therefore, had been operating the four other subject translators in violation of Section 74.1232(d) since
June 1, 1994, when the three-year grace period for application of the revised rule ended.  Letter to Jeffrey
D. Southmayd, Esq., Ref. No. 1800B4-AJS (Chief, Audio Services Division, September 11, 1996)
("9/11/96 letter").  Relying on the Commission's pronouncements in MM Docket 88-140, the Bureau
also found that neither grant of new Section 74.1232(d) waivers, nor continuation of the Section
74.1232(d) waivers previously granted for the Seward translators, was warranted.  Accordingly, the
Bureau ordered Peninsula to divest the six translators.  The Bureau explained that it was not terminating
the service provided by the translators or otherwise sanctioning Peninsula for violation of Section
74.1232(d) due to the staff's previous actions with regard to the translators, including special treatment of
Alaska translators.  See supra,  4.  In view of these circumstances, the Bureau reasoned that Peninsula
reasonably could have believed itself to be in compliance with the Commission's translator ownership
restrictions.  The Bureau did not address Peninsula's Section 74.1231(b) waivers for the Seward
translators in its 9/11/96 letter.

     6.  On November 6, 1997, in accordance with its findings in the 9/11/96 letter, the Bureau
granted both the 1995 renewal applications and Peninsula's applications to assign the translators to
Coastal Broadcast Communications, Inc. ("Coastal"), conditioning grant of the 1995 renewal
applications on consummation of the assignments.  11/6/97 letter at 4-5.  The Bureau also conditioned
approval of the assignments on grant of the 1997 renewal applications.  In addition, the Bureau denied
Petitioners' August 6, 1997 petition to deny the assignment applications and dismissed as prematurely
filed Petitioners' October 10, 1996 application for review of the 9/11/96 letter, stating that the Bureau's
deferral of the 1995 renewal applications therein was not an action subject to appeal.  See supra, n. 1.

     7.  In the instant application for review, Petitioners contend that the Bureau's finding that
Peninsula is ineligible to continue to hold the subject translator licenses necessitates revocation of the
licenses, and that the Bureau could not avoid this necessity by conditioning grant of the 1995 renewal
applications on Peninsula's divestiture of the licenses.  In support of this contention, Petitioners rely on
the Commission's longstanding policy, as approved in Jefferson Radio Co. v. FCC, 340 F.2d 781, 783
(D.C.Cir. 1964), that "assignment of broadcast authorization will not be considered until the Commission
has determined that the assignor has not forfeited the authorization."  Id.  Similarly, Petitioners contend
in their petition to deny that under the Jefferson Radio policy, grant of the 1997 renewal applications is
precluded by the Bureau's finding.  Furthermore, Petitioners contend in their petition to deny that the
1997 renewal applications for the Kodiak and Seward translators should be denied because continuation
or grant (in the case of the Kodiak translators) of Section 74.1231(b) waivers for their operation is not
justified under the Commission's rules.     

     8.  Discussion -- Assignment of Translators.  Under the Commission's Jefferson Radio policy,
action on an assignment or transfer application generally must be deferred where there are unresolved
basic character qualifications issues concerning the seller in a renewal proceeding for the station sought
to be transferred.  See, e.g., RKO General, Inc., 3 FCC Rcd 5057, 5060-61 (1988), appeal dismissed sub
nom. Los Angeles Television, FCC No. 88-1673 (D.C.Cir. August 4, 1989).  Established on the premise
that "a licensee . . . has nothing to assign or transfer unless and until he has established his own
qualifications[,]" the policy "stems from the Commission's concern that, where an evidentiary hearing
has been designated on a renewal application or show cause order to determine disqualifying questions,
permitting the suspected wrongdoer to evade a sanction by transferring his interest or assigning the
license without hearing will diminish the deterrent effect which revocation and renewal proceedings
should have on broadcast licensees."  Northland Television, Inc., 42 RR 2d 1107, 1110 (1980); see RKO
General, Inc., 3 FCC Rcd at 5060-61.

     9.  Petitioners' reliance on the Jefferson Radio policy is misplaced because, consistent with its
underlying concern for deterrence, the Commission has stated that the policy is applicable only where an
applicant's basic character qualifications are at issue.  Pinelands, Inc., 7 FCC Rcd 6058, 6061 n. 11
(1992) (citing Boise Valley Broadcasters, Inc., 53 FCC 2d 823, 824-25 (1975)); Questions Concerning
Basic Qualifications of Broadcast Applicants, 28 RR 2d 705, 705-06 (1973).  Although any violation of
the Communications Act or the Commission's rules raises character concerns, all violations do not rise to
the level of potentially disqualifying an applicant.  See Virginia RSA 6 Cellular Ltd. Partnership, 6 FCC
Rcd 405, 407 (1991) (citing Policy Regarding Character Qualifications in Broadcast Licensing, 102
FCC 2d 1179, 1210 ("Policy Statement") (subsequent history omitted)).  Here, no substantial and
material questions of fact have been raised in the subject renewal proceedings regarding Peninsula's
basic character.  There is no evidence that Peninsula attempted to deceive or mislead the Commission as
to its compliance with Section 74.1232(d).  Indeed, the staff's previous actions reasonably could have led
Peninsula to believe that the Alaska translators were being accorded special treatment.  See infra,  14. 
Although Peninsula had valid waivers of Section 74.1232(d) only for the two Seward translators and,
therefore, violated the Commission's rules by operating the other four subject translators without valid
waivers of the rule, there is nothing in the record to suggest a likelihood that in the future it will not deal
truthfully with the Commission and comply with the Communications Act and the Commission's rules
and policies.  See Virginia RSA 6 Cellular Ltd. Partnership, 6 FCC Rcd at 407 (premature construction
did not warrant inquiry into applicant's fitness to be a Commission licensee where violations apparently
were inadvertent and there was no evidence of misrepresentation or lack of candor).  Therefore, the
Jefferson Radio policy is inapposite here.

     10.  Of course, the Bureau's findings did render Peninsula ineligible to continue to hold the
subject translator licenses.  In the absence of an unresolved basic character qualifications issue, however,
there can be no doubt as to the Commission's authority to cure or remedy this situation by granting the
renewal applications conditioned on divestiture of the translators.  See 47 U.S.C.  303(r) (authorizing
the Commission to "prescribe such restrictions and conditions" as may be necessary to carry out its
duties); The Petroleum V. Nasby Corp., 10 FCC Rcd 6029, 603 (Rev.Bd. 1995) (conditioning grant of
license renewal and transfer applications on divestiture of stock ownership and corporate membership
resulting from illegal transfers), recon. granted in part, 10 FCC Rcd 9964, remanded on other grounds,
11 FCC Rcd 3494 (1996); Spanish Int'l Communications Corp., 2 FCC Rcd 3336, 3339 (1987) (in case
involving violation of alien ownership restrictions, approving settlement agreement providing for grant
of renewal applications subject to immediate transfer of stations), aff'd sub nom. Coalition for the
Preservation of Spanish B'casting v. FCC, 931 F.2d 73 (D.C.Cir.), cert. den., 502 U.S. (907) (1991). 
Accordingly, we will deny the instant application for review, as well as the petition to deny to the extent
that it raises the same argument based on the Jefferson Radio policy.

     11.  Petition to Deny -- Kodiak and Seward Translators.  Petitioners also contend that the 1997
renewal applications for the Kodiak and Seward translators should be denied because grant or
continuation of Section 74.1231(b) waivers for their operation is not justified under the Commission's
rules.  Section 74.1231(b) provides that other area translators may only retransmit primary FM station or
translator signals received directly over the air.  47 C.F.R.  74.1231(b); Report and Order, 5 FCC Rcd at
7220-21.  As in the case of the translator ownership rule, the Commission restricted waivers of this rule
to "white area" situations in the Report and Order.  Id.; see supra,  2.  Nevertheless, the staff waived
this rule in the 2/18/92 letter for Peninsula's operation of the two Seward translators in the absence of a
"white area" showing, relying on Wrangell, Peninsula's showing that an alternative signal delivery
system was the only means by which the translators could be operated, and the fact that the translators
would provide a first commercial FM service to Seward.  Petitioners argue that the waivers should be
discontinued because Seward has a full service AM station, KSWD(AM), licensed to Petitioner Glacier,
and "competition from the Seward translators makes it difficult for KSWD to survive and prosper in a
community as small as Seward."  Petition to Deny at 6.  Petitioners also assert that Glacier has obtained a
construction permit for a FM station on a channel allotted to Seward, and that the translator operations
threaten the financial viability of the unbuilt, non-operational FM station.  We note that discontinuation
of the waivers would require termination of the Seward translator operations because, unlike the
previously-discussed Section 74.1232(d) violations, signal delivery rule violations could not be cured by
assignment of the translators to a different licensee.  

     12.  With regard to the two Kodiak translators, Coastal (the authorized assignee) has filed minor
modification applications and requests for waiver of Section 74.1231(b), representing that the two off-air
reception antennas that were used to deliver the translators' signals to Kodiak for the past 12 years
recently were destroyed, and that an alternative microwave or satellite signal delivery system is the only
means by which the translators can continue to retransmit their respective primary stations.  See supra, 
3.  Coastal asserts that the translators provide a valuable service to the community of Kodiak, serving a
combined total of nearly 7,000 listeners per week, and that the staff granted waivers for the Seward
translators under similar circumstances.  Petitioners, however, argue that the waiver requests should be
denied because the translators threaten the economic viability of two local full service stations,
KVOK(AM) and KJJZ(FM), Kodiak, both licensed to Petitioner Cobb.

     13.  We conclude that grant of Section 74.1231(b) waivers for the Kodiak translators is not
warranted under the Commission's translator rules.  In restricting waivers of Sections 74.1231(b),
74.1232(d) and other service rules to "white area" situations, the Commission sought to promote
incentives for full service FM and AM broadcast station development and prevent such stations from
being forced to compete economically with translators.  See Report and Order, 5 FCC Rcd at 7213-16,
7220-21; MO&O, 8 FCC Rcd at 5093-95.  The Commission's action left no room for waiver of these
rules for the operation of other area translators in Alaska or elsewhere in the absence of "white area"
showings.  See Report and Order, 5 FCC Rcd at 7213-16, 7220-21; MO&O, 8 FCC Rcd at 5093-95; cf.
Letter to Kevin C. Boyle, Esq., 11 FCC Rcd 2348, 2350 (Acting Chief, Audio Services Division, 1996)
(staff denied Section 74.1232(d) waivers for operation of translators providing service to "gray" or
"underserved" areas of rural Utah).  Our engineering staff review has determined that the Kodiak
translators do not provide service to any "white area" not served by the full service AM and FM stations
in the community.  Accordingly, grant of Section 74.1231(b) waivers for the Kodiak translators is not
warranted under the Commission's rules.  We shall, therefore, deny Coastal's minor modification
applications and related waiver requests for the Kodiak translators.

     14.  The situation is different with regard to the two Seward translators.  As indicated above,
initial grant of a waiver would not be justified here absent a showing that the Seward translators provide
"white area" service, and we disagree with the staff's application of Wrangell in the 2/18/92 letter.  See
supra, n. 11.  Nevertheless, over six years have elapsed since the Bureau's waivers of the current
translator rules became final, and the circumstances have not changed since the waivers were granted: 
the community of Seward still has only one full service commercial station, KSWD(AM), and the
Seward translators continue to provide Seward's only commercial FM service.  Discontinuation of the
Section 74.1231(b) waivers would require termination of the Seward translator operations and a loss of
existing service to the public.  In view of these circumstances, we do not believe that termination of the
Seward translator operations would serve the public interest at this time.  We note, however, that if and
when the unbuilt, nonoperational full service FM station authorized in Seward commences operation, see
supra, n. 10, we may consider whether the circumstances under which the waivers were granted have so
changed as to warrant termination of the Seward translator operations.  Accordingly, we find that the
public interest would be served by renewal of the Seward translator authorizations and, therefore, will
grant the 1997 renewal applications for these translators with the same condition as the Bureau attached
to grant of the 1995 renewal applications.  Likewise, we will grant the 1997 renewal applications for the
remaining two subject translators, K285EF, Kenai and K283AB, Kenai/Soldotna, as to which Petitioners
raised no signal delivery issues.  We also will grant the 1997 renewal applications for the three additional
Peninsula translators in Alaska whose authorizations Petitioners have not challenged (K257DB, Anchor
Point, K272CN, Homer and K265CK, Kachemak City).
     
     15.  For the foregoing reasons, IT IS ORDERED that Petitioners' December 15, 1997 application
for review IS DENIED, and Petitioners' December 15, 1997 petition for reconsideration IS DISMISSED
pursuant to 47 C.F.R.  1.104(b).  
          
     16.  IT IS FURTHER ORDERED that Peninsula's February 6, 1998 motion to strike IS
DENIED, and Petitioners' January 8, 1998 petition to deny IS GRANTED TO THE EXTENT
INDICATED ABOVE, and IS DENIED in all other respects.  

     17.  IT IS FURTHER ORDERED that Coastal's minor modification applications (File Nos.
BPFT-970616TK, TL) and related requests for waiver of 47 C.F.R.  74.1231(b) for translators K274AB
and K285AA, Kodiak ARE DENIED.          

     18.  IT IS FURTHER ORDERED that Peninsula's 1997 applications for the renewal of the
licenses of translators K257DB, Anchor Point, K272CN, Homer, K265CK, Kachemak City, K285EF,
Kenai, K283AB, Kenai/Soldotna, K274AB and K285AA, Kodiak, and K272DG and K285EG, Seward,
Alaska (File Nos. BRFT-970930U5, YA through YH) ARE GRANTED, conditioned on consummationof the authorized assignments of the translators (File Nos. BALFT-970701TR through TZ).

                              FEDERAL COMMUNICATIONS COMMISSION



                              Magalie Roman Salas
                              Secretary