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

In re Request of                )
                                )
FORUM COMMUNICATIONS COMPANY    )
(Formerly WDAY, Inc.)           )
Permittee of Station KMCY(TV)   )
Minot, North Dakota             )
                                )
For Waiver of Condition         )
of Construction Permit          )
                                )


                    ORDER ON RECONSIDERATION


   Adopted:  December 23, 1999          Released:  December 27, 1999

By the Chief, Video Services Division:

     1.   The Commission, by the Chief, Video Services Division, acting pursuant to delegated
authority, has before it for consideration:  (1) an action of the Chief, Video Services Division, denying the
request of WDAY, Inc. (WDAY) for removal of a condition imposed on the grant of the construction permit
for station KMCY(TV), Channel 14, Minot, North Dakota (WDAY, Inc., 3 FCC Rcd 5126 (1988)); (2)
WDAY's petition for reconsideration of that action; and (3) related pleadings.

     2.   By way of background, on September 28, 1984, the Chief, Mass Media Bureau, granted the
applications of WDAY for renewal of license of Station WDAY-TV, Fargo, North Dakota, and for
construction permits for new stations on Channel 14 in Minot and Channel 17 in Bismarck, North Dakota
(KBMY(TV)).  WDAY, Inc., Mimeo No. 29 (MMB, released October 4, 1984), application for review denied,
103 FCC 2d 507 (1986).  Initially, WDAY had requested waiver of Section 73.3526(d) of the Commission's
rules to locate the Minot station's public inspection file at the WDAY-TV studio in Fargo.  Subsequently,
however, Meyer Broadcasting Company (Meyer), licensee of station KMOT-TV in Minot, which operated
primarily as a satellite of a Bismarck television station, objected to WDAY's proposal to not locate a local
studio in Minot.  Accordingly, on September 20, 1983, WDAY amended both its Bismarck and Minot
applications to state that it would establish studios in those communities within one year of commencement of
program tests, and would commence origination of a substantial amount of local programming at each station. 
Both applications were granted subject to such a condition, and Meyer's objection was dismissed as moot.

     3.   WDAY proceeded with the construction of its Minot station but, on September 15, 1986,
requested waiver of the main studio condition.  WDAY noted that Station KBMY(TV), its Bismarck facility,
became a separate, full-service station, instead of a satellite of Station WDAY-TV in Fargo.  In turn, WDAY
proposed to make its Minot station primarily a satellite of KBMY(TV), with its main studio located in
Bismarck, more than 100 miles away.  In support of its waiver request, WDAY asserted that there had been
a severe economic downturn in the area as a result of falling oil prices during 1986.  It added that operation of
KBMY(TV) as a full-service station in Bismarck was made possible by the operation of the Minot facility as
a satellite.  Accordingly, it requested authority to operate KMCY(TV) primarily as a satellite of KBMY(TV)
with no requirement for local program production or for a main studio in Minot.  

     4.   In denying WDAY's request, the staff noted that WDAY had voluntarily withdrawn its
request for a waiver of the main studio requirements and accepted grant of its Minot application subject to the
condition that it establish a local studio and originate a substantial amount of local programming within one
year after the station commenced operation, and that WDAY did not seek reconsideration during the course of
that proceeding.   Consequently, the staff reasoned that the condition could not be removed except upon a
showing of changed circumstances or facts unknown at the time of grant, and that neither of these
circumstances was demonstrated here.  The staff did, however, modify the condition to specify that the main
studio need only be built within the station's principal community contour, to conform to an amendment to the
Commission's main studio rule.  See 47 C.F.R.  73.1125. 

     5.   WDAY filed a timely petition for reconsideration of that action.  In support, WDAY asserts
that the staff failed to consider a change in circumstances, in that the Minot facility operates primarily as a
satellite of KBMY(TV) in Bismarck instead of WDAY-TV in Fargo, as originally authorized.  WDAY further
argues that the severe economic downturn in the area has had a direct impact on the financial condition of both
the Bismarck and Minot stations, which resulted in operating losses for both stations in 1987 and 1988. 
WDAY concludes that the added expense of constructing separate studio facilities in Minot will only
exacerbate the financial problem.  WDAY argues that the downturn in the economy is also a changed
circumstance that could not have been foreseen at the time the grant was made.  If we do not grant the request,
WDAY advises us, it will consider surrendering the license for the Minot facility.  Finally, WDAY asserts that
the requirement that there be a main studio in Minot is a policy and not a rule, and it asks that we waive the
policy.

     6.   The Commission has consistently declined to unconditionally authorize a 100 percent satellite
station in markets that already have an operating full service station because the satellite station would have an
unfair competitive advantage over the full service station.  In such markets, the Commission has instead
permitted the satellite station to operate initially as a 100 percent satellite so long as the satellite station
constructs a local studio and originates some local programming in the near term, usually within one year of
commencing operation.  See, e.g., KMTR, Inc., 7 FCC Rcd 1025 (1992); KFBB Corporation, 6 FCC Rcd 4637
(1991); Hector Nicolau, 5 FCC Rcd 6370 (1990); Sainte Limited, 3 FCC Rcd 185 (1988); Meyer Broadcasting
Company, 67 FCC 2d 593 (1978), aff'd sub nom., Dickinson Broadcasting Corp. v. FCC, 593 F.2d 1371 (D.C.
Cir. 1979).  In granting WDAY's construction permit for the Minot station, the staff noted that there were
already two television stations in the community -- one full service station on Channel 13 and another station
on Channel 10 operating "primarily" as a satellite of a station in Bismarck.  Both of these Minot stations
established main studios in Minot, and the staff concluded that to allow WDAY to operate without a local
studio might create a competitive imbalance in the market.  The situation has not changed and there are still
two other television stations in Minot besides KMCY(TV), both of which continue to maintain studios there. 
We see no reason why we should waive the Commission's long-standing policy of not authorizing 100 percent
satellites in areas served by conventional television operations, in order to allow WDAY to continue to operate
in violation of its present construction permit, thereby enjoying a possible competitive advantage over other
stations in the market which comply with our main studio rules.
  
     7.   Furthermore, in this case, WDAY's construction permit application was granted only after it
was amended to state that the station would comply with Commission policy by establishing a local studio and
providing a substantial amount of local programming within one year of the commencement of operation. 
Although a station may subsequently request removal of a condition imposed on the grant of its construction
permit, it must first show that removal is warranted due to changed circumstances or facts unknown at the time
of grant.  Otherwise, the Courts have held that a Commission permittee takes its permit subject to the
conditions imposed on its use, and acceptance of the permit constitutes accession to all such conditions. 
Further, "[a]n FCC licensee takes its license subject to the conditions imposed on its use . . . .  Acceptance of
a license constitutes accession to all such conditions.  A licensee may not accept only the benefits of the license
while rejecting the corresponding obligations."  P & R Temmer v. FCC, 743 F.2d 918 (D.C. Cir. 1984); see
also The Audio House, Inc., 2 FCC Rcd 3171 (1987).  WDAY maintains that removal of the condition is
warranted because of the unforeseen downturn in the local economy, caused first by a fall in oil prices and then
by a drought.  It is Commission policy, however, not to allow the depressed state of a local economy to
influence the evaluation of whether an extension of time to construct new broadcast station is warranted. 
Cidra Broadcasters, Inc., 2 FCC Rcd 230 (1987); East Texas Television Network, Inc., 2 FCC Rcd 2931
(MMB, 1987).  Similarly, a downturn in the local economy does not justify the waiver of the main studio rule
under the circumstances presented here.  

     8.   Moreover, WDAY's suggestion that the Minot market is too small to support the operation of
KMCY(TV) with a local main studio and locally originated programming, should have been considered before
it filed an application for a construction permit, and the fact that WDAY amended its application to agree to
these conditions indicates that it considered the size of the market and concluded it was economically feasible
to do so.  See Duluth Media, 2 FCC Rcd 2929 (1987).  That WDAY's economic predictions ultimately proved
to be overly optimistic does not constitute a changed circumstance warranting the removal of the main studio
condition.  Further, although WDAY has threatened to turn in its Minot construction permit if its financial
losses persist, the Commission has long held that it cannot be a guarantor of financial success for its licensees. 
PZ Entertainment Partnership, L.P., 6 FCC Rcd 1240 (1991), recon. denied, 7 FCC Rcd 2696 (1992); Cosmos
Broadcasting Corp., 21 FCC 2d 729 (Rev. Bd.), remanded on other grounds, 28 FCC 2d 630 (1970), aff'd sub
nom., Eagle Broadcasting Co. v. FCC, 514 F. 2d 1852 (D.C. Cir. 1975); Central Alabama Broadcasters, Inc.,
88 FCC 2d 1501 (1982).  Finally, although WDAY contends that operation of the Minot facility as a satellite
of KBMY(TV) in Bismarck instead of WDAY-TV in Fargo is significant, presumably because Bismarck is
only 110, rather than 260 miles from Minot, we do not find this distinction to be persuasive, given the distance
of Bismarck from KMCY(TV)'s community of license.  Consequently, we remain of the opinion that removal
of the condition is unwarranted, and we find no basis for waiver for our satellite policy or of the Commission's
rules to accommodate WDAY's request. 

     9.   Accordingly, WDAY's petition for reconsideration of the denial of its request for removal of
the main studio condition imposed on the grant of the construction permit IS HEREBY DENIED.  IT IS
FURTHER ORDERED that within thirty (30) days of the date of this order, WDAY is required to make its
public inspection file available at a location within its community of license and establish a local telephone
number in Minot or a toll-free number.  IT IS FURTHER ORDERED that WDAY shall establish a local
studio and begin originating a substantial amount of local programming within six (6) months of the date of
this order.  

                              FEDERAL COMMUNICATIONS COMMISSION 



                              Barbara A. Kreisman
                              Chief, Video Services Division
                              Mass Media Bureau