Federal Communications Commission Washington, DC 20554 Released: July 7, 1999 University of Southern Colorado c/o Malcolm G. Stevenson, Esq. Schwartz, Woods & Miller 1350 Connecticut Avenue, N.W. Suite 300 Washington, DC 20036 Re: KTSC(TV), Pueblo, Colorado File Nos. BMPET-930216KE BMPET-931129KE BAPET-930902KE This concerns the above-referenced applications of the University of Southern Colorado (USC) for: (1) extension of the construction permit to relocate the licensed facilities of noncommercial educational television station KTSC(TV), Channel 8, Pueblo, Colorado, to a new transmitter site on Cheyenne Mountain near Colorado Springs, Colorado (Cheyenne Mountain permit); (2) modification of the Cheyenne Mountain permit to specify a replacement transmitter site; and (3) assignment of the Cheyenne Mountain permit, as modified, to Sangre de Cristo Communications, Inc. (Sangre). Pikes Peak Broadcasting Company (Pikes Peak), licensee of KJCT(TV), Grand Junction, Colorado, and AK Media Group, Inc., licensee of KKTV(TV), Colorado Springs, Colorado, filed separate petitions to deny these applications. For the reasons set forth below, we grant the extension application, deny the modification application and return the assignment application. Background. On January 22, 1990, USC submitted an application for construction permit to modify the license of KTSC(TV). See File No. BPET-900122KE. In that application, USC proposed to relocate the station's transmitter site to a new location on Cheyenne Mountain southwest of Colorado Springs, Colorado. At that time, the proposed Cheyenne Mountain transmitter site was short-spaced to KJCT(TV) and to the reference coordinates for the vacant allotment on Channel 8 at Laramie, Wyoming. Therefore, USC requested a waiver of Section 73.610 of the Commission's Rules. While the licensee of KJCT(TV) did not object to USC's proposal, the Association for Maximum Service Television, Inc. (AMST) filed an informal objection arguing that USC had not made a compelling public interest justification necessary for waiver of the Rules. On February 28, 1991, the Commission denied the informal objection, approved the short-spacing waiver and granted the KTSC(TV) modification application. See Letter from Barbara A. Kreisman, Chief, Video Services Division to Thomas Aube, Ref: 8940-MLB, February 28, 1991. Therefore, USC had until February 28, 1993, to complete construction of its new facilities on Cheyenne Mountain. On February 16, 1993, USC filed the above-captioned extension application, stating that it had not yet begun the construction of its new facilities on Cheyenne Mountain. USC explained that it had entered into an agreement with Sangre, licensee of KOAA-TV, Channel 5, Pueblo, Colorado, under which they had filed a joint petition for rulemaking, on September 8, 1992, to provide for an exchange of their facilities. USC stated that its was awaiting action on the petition for rulemaking and could not begin the construction process until Commission action was taken. The channel exchange was subsequently denied by the Commission. See Report and Order, 10 FCC Rcd 7662 (1995), review denied, 11 FCC Rcd 19649 (1996). The Commission's decision was appealed to the United States Court of Appeals for the District of Columbia Circuit which remanded it for further consideration. See Sangre de Cristo Communications, Inc. v. FCC, No. 97-1030, slip. op., April 17, 1998. By separate action today, the Commission has affirmed its earlier decision denying the channel exchange between USC and Sangre. See Memorandum Opinion and Order on Remand, FCC 99-162, released July 7, 1999. On February 19, 1999, USC filed a letter requesting the tolling of the construction period for the Cheyenne Mountain permit pursuant to the Commission's new extension procedures which took effect February 16, 1999. See 1998 Biennial Regulatory Review -- Streamlining of Mass Media Applications, Rules and Processes, Report and Order, 13 FCC Rcd 23056 (1998), recon. pending (Streamlining Report and Order). USC argues that the construction period has been encumbered since a Petition for Reconsideration was filed by Pikes Peak on October 5, 1992, which began a long series of filings by Pikes Peak and AK Media challenging the legitimacy of the Cheyenne Mountain permit. USC calculates that, upon favorable resolution of the matters raised by Pikes Peak by a final Commission order, it should be permitted an additional construction period of at least 16 months and 23 days to provide for a full unencumbered three-year construction period. In their filings, Pikes Peak and AK Media argue that USC has not met the requirements of former Section 73.3534 of the Commission's Rules governing extension of a construction permit. They argue that, because no construction has commenced, USC's only explanation can be that factors beyond its control have prevented construction. Pikes Peak and AK Media maintain that this is not the case and that USC's sole basis for not constructing the Cheyenne Mountain facility is that it voluntarily filed the channel exchange proposal. However, they argue that the pendency of a voluntary channel exchange proposal cannot justify the lack of construction. See MGM, Inc., 63 RR 2d 1198 (MMB 1978). Pikes Peak also argues that tolling of the Cheyenne Mountain permit under the Commission's new procedures would not be appropriate here because USC has no intention of constructing or operating the facility on Cheyenne Mountain. USC and Sangre also filed the above-captioned application to assign the Cheyenne Mountain construction permit from USC to Sangre. They maintain that this is a procedural filing whereby, in conjunction with the proposed channel exchange, the Cheyenne Mountain permit would be assigned from USC to Sangre. Pikes Peak and AK Media both oppose the assignment application raising the same arguments that they raised against the extension application. In addition, on September 14, 1993, USC filed a supplement to its extension application. USC explained that it was pursuing a different transmitter site on Cheyenne Mountain and that it had entered into an option for a lease with the owner of a site adjacent to the site specified in the outstanding Cheyenne Mountain permit. On September 28, 1993, USC filed a letter with attachments that it mistakenly described as an "amendment" seeking to modify the Cheyenne Mountain permit to specify the new transmitter site. Two months later, on November 29, 1993, USC filed the above-captioned application to modify the Cheyenne construction permit. In that application USC acknowledged that the new transmitter site is short-spaced to the licensed facilities of KJCT(TV), Grand Junction, Colorado, but USC incorrectly stated that the new transmitter site was short-spaced only to the vacant allotment of Channel 8 at Laramie, Wyoming. However, on December 10, 1992, almost a year before USC filed this modification application, Central had submitted an application for the vacant allotment on Channel 8 at Laramie, Wyoming. See File No. BPET-921210KE. Central's application was accepted for filing on January 29, 1993, and cut-off on March 16, 1993. See Public Notice, Report No. A-181, released January 29, 1993. In order to be considered along with Central's application, any other mutually exclusive application would have had to have been filed by March 16, 1993. USC's modification application is precluded by Central's previously cut-off application because of the short-spacing. The modification application is silent to this fact. In its Petition to Deny, Pikes Peak argues that the modification application violates former Section 73.3535 of the Commission's Rules concerning modification of unbuilt construction permits because USC did not make an affirmative showing why it was modifying its permit after the first 12 months following its issuance. Furthermore, Pikes Peak notes that former Section 73.3535(d) states that the Commission will not entertain an application for modification of an authorized but unbuilt facility if filed after the expiration of the initial construction period. Because the initial construction period for the Cheyenne Mountain permit expired on February 28, 1993, Pikes Peak concludes that the modification application is barred by former Section 73.3535(d). Furthermore, Pikes Peak argues that the modification application exacerbates the short-spacing to KJCT-TV. Pikes Peak contends that this requires a new short-spacing waiver. Such a waiver cannot be granted, Pikes Peak maintains, because the circumstances that existed at the time of the grant of the original permit no longer exist. For example, Pikes Peak notes that, at the time, USC claimed that it needed to operate from Cheyenne Mountain to expand its noncommercial educational coverage to Colorado Springs. USC would no longer be providing such coverage given the proposed channel exchange with Sangre which would result in KTSC(TV) continuing to operate from its existing transmitter site on Baculite Mesa. Furthermore, Pikes Peak maintains that USC has been operating a television translator (K15BX) that provides service to Colorado Springs and that USC is apparently satisfied with this arrangement. USC responds that the requested change in transmitter site location represents only a 2 second change (approximately 200 feet) and that such a change is de minimis and does not require a new short-spacing waiver. USC argues that the issue to be decided by the Commission in determining whether to grant the modification application is whether the proposal is in the public interest. Extension and Assignment Applications. On February 16, 1999, the Commission's new rules concerning extensions of broadcast construction permits went into effect. At that time, the old rule (Section 73.3534) which required that applicants meet the "one-of-three" test was deleted. Because Section 73.3534 no longer exists, the arguments as to whether USC met the "one-of-three" test are now moot. Under the Commission's new extension procedures, when a construction permit is in its initial construction period or an initial extension request is pending, construction permits will be automatically extended to three years from the date of an initial grant upon a timely request from the permittee. Streamlining Report and Order at 89. Any pending application for first extension of a construction permit will be considered a request for extension from three years from the date of the initial grant. In this case, USC received a grant of its construction permit and is awaiting resolution of its first extension request. USC has already had two years within which to construct the Cheyenne Mountain facilities. Therefore, under the new extension procedures, USC is permitted one additional year to complete construction on Cheyenne Mountain. Should there be an event that tolls the one-year construction deadline, further requests for extension will be considered pursuant to the Commission's new extension procedures. USC claims that it has not had two unencumbered years to complete construction of its permit. Under the Commission's new extension procedures, any period when the permit was "encumbered" will not count against a permittee's three years. However, permits may only be encumbered by administrative or judicial review or by an act of God. Administrative review is defined as petitions for reconsideration and applications for review within the Commission of the grant of a construction permit or a permit extension, and any appeal of any Commission action thereon. Streamlining Report and Order, at 86. USC argues that, on October 5, 1992, more than 19 months after its grant, the Cheyenne Mountain permit became encumbered when Pikes Peak first began challenging its validity. USC argues that it should have the remainder of its initial construction period, from October 5, 1992 (when Pikes Peak filed its first pleading) to February 16, 1993 (when USC filed its extension application) or 4 months and 23 days added to its one additional year for a total extension of 16 months and 23 days. We do not agree that the Cheyenne Mountain permit should be extended for more than one additional year. It is clear from the record that Pikes Peak and AK Media began filing against the Cheyenne Mountain permit 20 months after its grant only because USC had filed its petition for rulemaking proposing the channel exchange with Sangre. It was a voluntary action on USC's part that triggered this challenge. Therefore, the fact that Pikes Peak and AK Media began challenging the Cheyenne Mountain permit was not a factor outside of USC's control and we do not view those filings as an encumbrance on the permit. USC had two unencumbered years to construct on Cheyenne Mountain and the extension will be limited to only one additional year. As for the assignment application, we find that USC mistakenly believed that the Cheyenne Mountain permit must be assigned to Sangre in conjunction with then channel exchange rulemaking. However, the Commission does not view channel exchanges as assignments of license or permit but treats them as petitions for rulemaking to amend the TV Table of Allotments. See Report and Order in MM Docket No. 85-41, 59 RR 2d 1455, 1457 and n. 14 (1986). Therefore, the filing of an assignment application in conjunction with the channel exchange rulemaking was not proper and the assignment application will be dismissed. Modification Application. While we grant USC an additional one year to complete construction of its facilities on Cheyenne Mountain, we must deny the modification application. The new transmitter site specified in the modification application is short-spaced to KJCT(TV), Grand Junction, Colorado, and to Central's pending application for Channel 8 at Laramie, Wyoming. USC's authorized Cheyenne Mountain transmitter site was short-spaced to KJCT(TV) by 8.8 kilometers (approximately 3%) and short-spaced to the reference coordinates of the vacant Channel 8 allotment at Laramie, Wyoming, by 13 kilometers (approximately 4.2%). The short-spacing from the new transmitter site would increase to 8.9 kilometers (0.1 kilometer increase) to KJCT(TV) and to 15.7 kilometers (2.7 kilometers increase) to Central's earlier-filed application. While USC's new transmitter site is located adjacent to its authorized transmitter site, we disagree with USC's consideration of only the increase in the short-spacing and its theory that a new short-spacing waiver is not necessary. In terms of both the size and type of short-spacing from USC's new transmitter site, the short-spacing is not de minimis in reference to either KJCT(TV) or to Central's earlier-filed application. More importantly, in this case, there is short-spacing for the first time to an earlier-filed application. Under our television processing rules, Central filed its application, it was accepted for filing, "cut- off" and protected from conflicting applications several months before USC even filed its modification application. See 47 C.F.R.  73.3572. At the time it was cut-off, Central's application was afforded spacing protection from subsequently-filed applications. For these reasons, USC's failure to even consider Central's cut-off application for Channel 8 at Laramie, Wyoming, must result in the dismissal of its modification application. USC cannot rely on the fact that it had previously received a short-spacing waiver for an adjacent transmitter site because such waiver was based on spacing to the vacant Laramie allotment and not to Central's application. Once USC chose to modify its construction permit to a new site, it was required to consider Central's earlier-filed and cut-off application when choosing a new site and it was required to seek a new short-spacing waiver. Even if USC had considered Central's application and requested a new short-spacing waiver, it is less likely that it would have qualified for a waiver. When the original short-spacing waiver was considered, there was a vacant allotment at Laramie. The February 28, 1991, letter granting the short-spacing waiver focused on this fact when considering the likelihood of interference. The fact that there is now an applicant for the Laramie facility and that USC is proposing greater short-spacing to that proposed facility means the likelihood of interference would be greater. This would have made waiver of the short-spacing rule more difficult. In addition, USC's prior short-spacing waiver was unopposed by Pikes Peak and its modification application is now opposed by both Pikes Peak and Central. Therefore, absent a waiver of the short-spacing rule, we cannot approve USC's new short-spaced transmitter site and its modification application must be denied. Accordingly, it is ordered, that the petitions to deny filed by Pikes Peak Broadcasting Company and AK Media Group, Inc., ARE GRANTED IN PART AND DENIED IN PART as set forth herein. It is further ordered, that the application (File No. BMPET-930216KE) of the University of Southern Colorado for extension of the construction permit (File No. BPET-900122KE) for modification of the licensed facilities of KTSC(TV), Pueblo, Colorado, IS GRANTED and the permit IS EXTENDED for a period of one year from the date of this Order. It is further ordered, that the application (File No. BAPET-930902KE) for assignment of construction permit (File No. BPET-900122KE) from the University of Southern Colorado to Sangre de Cristo Communications, Inc. IS DISMISSED. It is further ordered, that the application (File No. BMPET-931129KE) of the University of Southern Colorado for modification of construction permit (File No. BPET-900122KE) IS DENIED. Sincerely, Barbara A. Kreisman Chief, Video Services Division Mass Media Bureau cc: Richard Hildreth, Esq. - Counsel for Pikes Peak Broadcasting Company Kevin F. Reed, Esq. - Counsel for Sangre de Cristo Communications, Inc. James L. Winston, Esq. - Counsel for AK Media Group, Inc. Anne Goodwin Crump, Esq. - Counsel for Central Wyoming College