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A. 1. a.(1)(a) i) a)#)a [ PQ)P# ## b, oT9 !#)^ `> XiQ)X#   Page ``e%)Copyright  Portola Systems, Inc. 1987, 1988 58Ç.7=@6FFormat Downloaded Document=F*'Ç.7=.EUOP XX    #\ #d6X@7@#Bld/Und7=@6FBold and Underline Text87=F*'Ç.7=.EQR  2I-u+q+qg,q,a1Agenda.E+'*Ç.Agenda Items=('87=FGD!*'7=*'%STD*  a2Agenda.E+'*Ç.Agenda Items=('87=FGD!*'7=*'UVa3Agenda.E+'*Ç.Agenda Items=('87=FGD!*'7=*'WXa4Agenda.E+'*Ç.Agenda Items=('87=FGD!*'7=*'YZ2?/q{-q-q].q.a5Agenda.E+'*Ç.Agenda Items=('87=FGD!*'7=*'[\a6Agenda.E+'*Ç.Agenda Items=('87=FGD!*'7=*']^a7Agenda.E+'*Ç.Agenda Items=('87=FGD!*'7=*'_`a8Agenda.E+'*Ç.Agenda Items=('87=FGD!*'7=*'ab21q/00B1a159.E+'*Ç.Right-Aligned Paragraph Numbers'87=F*'8st@   a259.E+'*Ç.Right-Aligned Paragraph Numbers'87=F*'Auv@` `  ` ` ` a359.E+'*Ç.Right-Aligned Paragraph Numbers'87=F*'Jwx` ` @  ` `  a459.E+'*Ç.Right-Aligned Paragraph Numbers'87=F*'Syz` `  @  2/5!223^4a559.E+'*Ç.Right-Aligned Paragraph Numbers'87=F*'\{|` `  @hh# hhh a659.E+'*Ç.Right-Aligned Paragraph Numbers'87=F*'e}~` `  hh#@( hh# a759.E+'*Ç.Right-Aligned Paragraph Numbers'87=F*'n` `  hh#(@- ( a859.E+'*Ç.Right-Aligned Paragraph Numbers'87=F*'w` `  hh#(-@pp2 -ppp 27a55627a160.E+'*Ç.Right-Aligned Paragraph Numbers'87=F*'8@   a260.E+'*Ç.Right-Aligned Paragraph Numbers'87=F*'A@` `  ` ` ` a360.E+'*Ç.Right-Aligned Paragraph Numbers'87=F*'J` ` @  ` `  a460.E+'*Ç.Right-Aligned Paragraph Numbers'87=F*'S` `  @  2;889N:a560.E+'*Ç.Right-Aligned Paragraph Numbers'87=F*'\` `  @hh# hhh a660.E+'*Ç.Right-Aligned Paragraph Numbers'87=F*'e` `  hh#@( hh# a760.E+'*Ç.Right-Aligned Paragraph Numbers'87=F*'n` `  hh#(@- ( a860.E+'*Ç.Right-Aligned Paragraph Numbers'87=F*'w` `  hh#(-@pp2 -ppp 2=Q;;<%=a129f—+b—!tRight-Aligned Paragraph NumberswH(RK+P8@   a229f—+b—!tRight-Aligned Paragraph NumberswH(RK+PA@` `  ` ` ` a329f—+b—!tRight-Aligned Paragraph NumberswH(RK+PJ` ` @  ` `  a429f—+b—!tRight-Aligned Paragraph NumberswH(RK+PS` `  @  2A>>|?E@a529f—+b—!tRight-Aligned Paragraph NumberswH(RK+P\` `  @hh# hhh a629f—+b—!tRight-Aligned Paragraph NumberswH(RK+Pe` `  hh#@( hh# a729f—+b—!tRight-Aligned Paragraph NumberswH(RK+Pn` `  hh#(@- ( a829f—+b—!tRight-Aligned Paragraph NumberswH(RK+Pw` `  hh#(-@pp2 -ppp 2iDIABloCCNORMAL INDENT ' 4 <DL!T$#&n P&P##&n P&P#footnote referencefootnote reference4#V\  PUP#Default Paragraph FoDefault Paragraph Font footnote textfootnote text US????US2GD[EgF|Fendnote referenceendnote reference44#XO\  PUXP##B\  PUP#_Equation Caption_Equation Caption11#XX2PQXP##I2PQP#FM7V,,6%TriangleoF4=(g4O7V ,*g4çFM7VE/0a11I.E+')*'0Right-Aligned Paragraph Numbers')8?I u*')8ij@   2K@GGZHa21I.E+')*'0Right-Aligned Paragraph Numbers')8?I u*')Akl@` `  ` ` ` a31I.E+')*'0Right-Aligned Paragraph Numbers')8?I u*')Jmn` ` @  ` `  7jC:,9Xj\  P6G;XPy.X80,X\  P6G;P7nC:,|Xn4  pG;Xy.\80,T\4  pG;\5hC:,%2Xh*f9 xr G;XXW!@(#,h@\  P6G;hPH5!,i,5\  P6G;,P\{,W80,%B[W*f9 xr G;XX(@Xn-6F[w!/DTc)1>Rd{f7w!X"i~'2\ LiO7jC:,9Xj\  P6G;XPy.X80,X\  P6G;P7nC:,|Xn4  pG;Xy.\80,T\4  pG;\5hC:,%2Xh*f9 xr G;XXW!@(#,h@\  P6G;hPH5!,i,5\  P6G;,P\{,W80,%0W*f9 xr G;X&=NX@ J:\STAFF\MAHER\ACTIVE\PUEBLO X4  _u X4 w  Federal Communications Commission`(#AFCC 99162 ă   yxdddy vf#X\  P6G;P# Before the Federal Communications Commission  yO'}9Washington, D.C. 20554 ă  XA4#Xj\  P6G;9XP#In the Matter of #Xj\  P6G;9XP#) )  X4 Amendment of Section 73.606(b)  )MM Docket No. 93191  X4 Table of Allotments )RM8088  X4 TV Broadcast Stations.)  X4(Pueblo, Colorado) )  X '  MEMORANDUM OPINION AND ORDER ON REMAND Đ\  Xr ' Adopted: July 2, 1999 hhCq ppReleased: July 7, 1999  XD ' By the Commission:  X4 "S  1. 1. 1. a.(1)(a) i) a) 1. 1. i.(1)(a)(i) 1) a)1. This Memorandum Opinion and Order on Remand concerns the petition for  xrulemaking to exchange channels filed by the University of Southern Colorado (USC) and Sangre  xDe Cristo Communications, Inc., (Sangre) (referred to jointly as Petitioners). Upon further  X4 xgreconsideration, we affirm our earlier decision denying the exchange of channels. See Report and  X4 x3Order, 10 FCC Rcd 7662 (1995), review denied, 11 FCC Rcd 19649 (1996). This action is taken  xin response to the order of the United States Court of Appeals for the District of Columbia  X4 x}Circuit remanding for further consideration our prior decision denying the exchange of channels.  X}4 xSee Sangre de Cristo Communications, Inc. v. FCC, 139 F. 3d 953 (D.C. Cir. 1998) (Court  Xh4Decision).  X<'X\ (#YPI. Background ă  X%4  X4 "2. Cheyenne Mountain Construction Permit. USC is the licensee of noncommercial  xIeducational television station KTSC(TV), Channel *8, Pueblo, Colorado. Sangre is the licensee  xNof commercial television station KOAATV, Channel 5, Pueblo, Colorado. Both stations  x/currently operate from transmitter sites located on Baculite Mesa which is north of Pueblo. At  x"one time, USC operated a television translator providing service to Colorado Springs, Colorado,  xbut that station was forced to cease operation to accommodate a full service station. USC  xsubsequently applied for and, on February 28, 1991, was granted a construction permit to relocate  xits transmitter to a new site on Cheyenne Mountain, so that KTSC(TV) could once again provide  XX!4 xservice to Colorado Springs. See File No. BPET900122KE. However, USC's proposed  xtransmitter site on Cheyenne Mountain was shortspaced by 8.8 kilometers (296.1 kilometers  xinstead of 304.9 kilometers or 2.9%) to KJCT(TV), Grand Junction, Colorado, and 13 kilometers  x(291.9 kilometers instead of 304.9 kilometers or 4.3%) to the reference coordinates for the vacant  xallotment on Channel 8 at Laramie, Wyoming. To reconcile these shortspacings, USC requested  X%4 xand was granted a waiver of Section 73.610 of the Commission's Rules. See Letter from Chief,"%0*''ZZ$"  X4 xVideo Services Division to Thomas Aube, Ref: 8940MLB, February 28, 1991 (ShortSpacing  X4Letter).  X4 "3. In the ShortSpacing Letter, the staff focused on the fact that KTSC(TV), as a  xynoncommercial educational television station, was serving both Pueblo and Colorado Springs,  xColorado, and that permitting KTSC(TV) to relocate its transmitter site to Cheyenne Mountain  xwould improve service to the latter of these communities. The staff further found that USC had  xbeen unable to find another translator to serve Colorado Springs, and that it would not be possible  xfor USC to apply for a new full power television station in that community given the freeze on  xthe filing of applications for new stations. In addition, the staff recognized that USC could not  xRmodify the existing facilities of KTSC(TV) on Baculite Mesa to provide a viewable signal to  xColorado Springs. The staff also found that USC had demonstrated the unsuitability of any other  xtransmitter sites and that the mountainous terrain and USC's offer to reduce effective radiated  x/power to the north and west would greatly reduce the possibility that objectionable interference  xwould be caused to KJCT(TV) and any future station at Laramie, Wyoming. Finally, the staff  xnoted that the licensee of KJCT(TV) had not objected to USC's proposal. Based upon these  xfacts, the staff found that grant of USC's request for shortspacing waiver would serve the public  X4interest and it granted the Cheyenne Mountain permit application.S {O' " ԍOn February 16, 1993, USC filed an application to extend the permit. See File No. BMPET930216KE.  xH By a separate letter issued today, the staff granted the extension application and, pursuant to the Commission's new  {O' x extension procedures, extended the permit for one year. See Letter to University of Southern Colorado from Chief  {OT' xU ԩ Video Services Division, DA 991338, released July 7, 1999; and 1998 Biennial Regulatory Review Streamlining  {O'of Mass Media Applications, Rules and Processes, Report and Order, 13 FCC Rcd 23056 (1998).  XQ4 "4. Petition for Rulemaking. On September 8, 1992, USC and Sangre filed a petition for  xrulemaking proposing an exchange of channels pursuant to Section 1.420(h) of the Commission's  xlRules, 47 C.F.R.  1.420(h). Under their proposal, Channel 5 at Pueblo, Colorado, would be  xreserved for noncommercial educational use and Channel *8 at Pueblo would become a non xreserved allotment. The Petitioners proposed that KTSC(TV)'s noncommercial license would be  x modified to specify operation from KOAATV's licensed site at Baculite Mesa, and KOAATV's  xcommercial license would be modified to specify operation on KTSC(TV)'s new construction  xIpermit site on Cheyenne Mountain. Therefore, it would be KOAATV that would be operating  xon Channel 8 from the shortspaced Cheyenne Mountain site. The Petitioners argued that the  xexchange of channels would permit Sangre to enhance KOAATV's service to Pueblo and its  xsurrounding area by the more favorable facilities at Cheyenne Mountain. USC argued that it  xMwould benefit from the channel exchange because, although KTSC(TV) would continue to operate  xfrom the same transmitter site, only with a different channel, it would receive donated facilities  xand funds that USC could use to improve the station's facilities and enhance its existing translator services.  "0*%%ZZ"Ԍ X4 "y5. Notice of Proposed Rulemaking. In the Notice of Proposed Rulemaking, 8 FCC Rcd  X4 x4752 (1993) (Notice), the staff stated that the channel exchange appeared to comply with the  X4 x"Commission's criteria established for channel exchanges. See Intraband Television Channel  X4 x}Exchanges, 59 RR 2d 1455 (1986). The staff noted that both stations are within the same band  X4 xand serve the same community of license. Notice, 8 FCC Rcd at 4753. At the same time, the  xstaff expressed some concerns about the proposal and only proposed to permit KOAATV to  xoperate from KTSC(TV)'s existing site on Baculite Mesa and not from the proposed new site on  Xi4 xCheyenne Mountain. The staff did not consider the construction permit for the Cheyenne  XT4 xMountain site because USC had not completed construction of those facilities. The staff further  xstated that, because USC's shortspacing waiver was based upon the need to continue to provide  xnoncommercial educational television service to Colorado Springs, it was not appropriate at the  xrulemaking stage to consider whether a similar shortspacing request from Sangre, a commercial  X 4licensee, would be granted at the application stage. Id. at n. 5.  X 4 "6. Report and Order. The staff subsequently denied the channel exchange in its Report  X 4 x@and Order, 10 FCC Rcd 7662 (1995) (Report and Order). The staff found that Section 1.420(h)  xof the Rules did not require that the Cheyenne Mountain permit be included as part of the  X4 xPetitioners' channel exchange. Report and Order, 10 FCC Rcd at 7667. The staff rejected the  xCommission precedent cited by the Petitioners, where channel exchanges involving unbuilt  X_4 xconstruction permits were permitted, finding that none of those cases involved a shortspaced  XH4 xtransmitter site. Id. In the staff's view, the Petitioners' proposal was a request to amend the TV  X34 xTable of Allotments to propose a shortspaced allotment, and it noted that the vast majority of  xsuch requests have been denied because the Commission has a "strong interest in preserving the  xintegrity of the Table of Allotments and the mileage separation criteria upon which the Table is  X4 xDbased." Report and Order, 10 FCC Rcd at 7668 (citing Chester and Wedgefield, South Carolina,  x5 FCC Rcd 5572 (1990)). The only time the Commission has allowed shortspaced allotments,  X4 xstated the staff, was based on highly unusual circumstances. See, e.g., Amendment of Television  X4 xTable of Allotments to Add New VHF Stations in the Top 100 Markets, Memorandum Opinion  X4 xand Order, 63 FCC 2d 840 (1977) (VHF DropIn). The staff found that shortspaced allotments  xIare only permitted where the public interest benefits of the shortspaced allotment outweigh the  Xl4 xppublic interest benefits of the minimum spacing rules. See, e.g., London, KY, 7 FCC Rcd 5936,  x}5937 (MMB 1992). The staff also noted that a petitioner seeking a shortspaced allotment must  X@4 xpshow a "compelling need for departure from established interstation separation standards." See,  X+4e.g., Portland, TN, 35 FCC 2d 601, 602 (1972).  X4 " 7. In this case, the staff found that the Petitioners had failed to make a compelling case  xpfor allowing the shortspaced allotment that would occur if Sangre were permitted to operate on  X!4 x<Channel 8 from USC's previouslyauthorized Cheyenne Mountain transmitter site. Report and  X"4 xOrder, 10 FCC Rcd at 7667. The staff found that the public interest benefits to be derived from  xVthe shortspaced allotment would not be great enough to outweigh the public interest benefits of  X$4 xthe integrity of the TV Table of Allotments. Most of the noncommercial benefits to be gained"$0*%%ZZ""  xfrom the channel exchange, reasoned the staff, would be achieved through the use of translators  xwhich may be displaced by full power stations and, as such, it would be inappropriate to consider  X4 xthem. The staff also found that USC appeared ready to implement service to the Western slope  xVof Colorado through a series of translators whether or not the channel exchange was approved.  X4 xThe staff concluded that, if the channel exchange were approved, only 5,398 persons would gain  X4 xa new noncommercial educational service not attributable to translators. This was not a great  xenough public interest benefit to warrant a shortspaced allotment. Therefore, the staff concluded  xthat it would not consider the Cheyenne Mountain permit as part of the channel exchange  XH4 xcproposal. Because the Petitioners had stated that their channel exchange was conditioned upon  xinclusion of the Cheyenne Mountain permit, the staff decided that there was no need to further  X 4 x/consider whether the proposal was in the public interest and the channel exchange was denied.  X 4  X 4 "'8. Memorandum Opinion and Order. In their Application for Review, the Petitioners  xargued that grant of USC's shortspacing waiver for Cheyenne Mountain was based on USC's  xtechnical showing under Section 73.610 and not KTSC(TV)'s noncommercial educational status.  xpThe Petitioners maintained that the staff's application of allotment waiver policies to the channel  xIexchange proposal was improper and the question of whether to permit Sangre to take over the  xVCheyenne Mountain permit should have been considered as if it were an assignment or transfer  xapplication in which technical waivers are not revisited. The Petitioners also argued that the staff  xshould not have discounted the service gains that KTSC(TV) would achieve by expanding its translator service.  X4 "l9. We affirmed the staff's decision in our Memorandum Opinion and Order, 11 FCC Rcd  x19649 (1996). We disagreed with Sangre that technical factors were the only appropriate matters  X4 xgconsidered in the ShortSpacing Letter and that there was no reason to revisit these matters again  X4 xin the context of the rulemaking proceeding. Id. at 19652. We found that the waiver granted  xto USC was also based upon the clear and substantial benefits to noncommercial educational  xservice which the relocation of KTSC(TV)'s transmitter site to Cheyenne Mountain would permit.  X4 xSimply because the technical characteristics of Sangre operating from Cheyenne Mountain on  xChannel 8 would be identical to those of USC operating from that site, we did not believe that  XV4 xthe shortspacing waiver granted to USC must be transferred to USC. Id. at 19653. We  xconcluded that USC would no longer enjoy the noncommercial benefits of the shortspaced  xlCheyenne Mountain site under the subject channel exchange proposal and that the staff was  xcrequired to determine anew, for a commercial station, whether a shortspacing waiver would be  X4 x+appropriate. Id. We concurred with the staff's conclusion that a waiver for a shortspaced  X4commercial allotment at Cheyenne Mountain was not justified.  X!4 " 10. In support of that finding, we noted the staff's determination that the overall public  xinterest is better served by denial of the waiver request and preservation of the integrity of the  X#4 xspacing requirements in this case. We noted the staff's finding that as many as 20,000 people  xor more would lose their only commercial offair service if the waiver were granted and KOAA"t$0*%%ZZ""ԫ X4 xTV were to change its transmitter site. Id. Finally, we rejected the Petitioners' claim that we  x+should not have considered the noncommercial educational status of KTSC(TV) in deciding  xhwhether to grant the shortspaced allotment because such consideration violated the First  X4 xAmendment. Id. at 19654. We found that the Commission and Congress has long recognized  xa need, grounded in substantial public interest reasons, to take into account the differences  xbetween commercial and noncommercial educational stations in the regulatory scheme for  xlbroadcasting, particularly the development of the TV Table of Allotments and in creating the  Xc4 x@channel exchange rule. See Sixth Report and Order in Docket Nos. 8736 and 8975, 41 FCC 148  XN4(1952) and Rainbow Broadcasting Co. v. FCC, 949 F. 2d 405 (D.C. Cir. 1991).  X" 4 " 11. Court of Appeals Decision. In its opinion released April 17, 1998, the U.S. Court  xof Appeals for the District of Columbia Circuit found that it was "unclear what the FCC believes  X 4 xto be the 'relevant factors' in its ruling." Court Decision, 139 F. 3d at 962. The Court noted  X 4 xit was undisputed that, prior to the issuance of the ShortSpacing Letter, we did not consider the  X 4 x}commercial or noncommercial educational status of shortspacing waiver applicants. The Court  xEfound that we did not adequately explain why the public interest benefits of the TV Table of  xAllotments and the minimum spacing rules would be outweighed by USC's operation on  X4 xCheyenne Mountain but not by Sangre's operation from the same location. Id. at 963. The Court  xremanded this case to us with the instruction to "better explain the basis" for our action  x:particularly in light of our past practice in which we did not consider the  XD4 xJcommercial/noncommercial status of the applicant. Should we decide to consider the  xEcommercial/noncommercial status of an applicant, the Court stated that we must ground our  X4modification in a manner consistent with the First Amendment.  X4 " 12. Supplemental Filings. In response to the Court's remand, the staff issued a letter on  xAugust 10, 1998, seeking updated technical information regarding the proposed channel exchange.  x/On September 18, 1998, the Petitioners submitted their updated information and on October 16,  xE1998, we received responsive filings from Pikes Peak Broadcasting Company (Pikes Peak),  xclicensee of KRDOTV, Colorado Springs, Colorado, and KJCT(TV), Grand Junction, Colorado;  xAK Media Group, Inc. (AK Media), licensee of KKTV(TV), Colorado Springs, Colorado, and  xVCentral Wyoming College (Central), applicant for Channel 8 at Laramie, Wyoming, all of whom  XI4were original commenters in the rulemaking proceeding.IS yO'ԍAK Media is the successorininterest to KKTV, Inc., the previous licensee of KKTV(TV).  X4 "4 13. In their filing, the Petitioners focus on the service gains and loss that will result from  x/the change to both stations' transmitter sites. According to the Petitioners, the only change will  xlbe that some areas will no longer receive commercial programming from the NBC television  xInetwork currently broadcast on KOAATV (loss area). According to their current engineering  xfigures, the Petitioners find that KOAATV's operation from Cheyenne Mountain would result"!X0*%%ZZ "  xin a gain in commercial service covering an area of 8,668 sq. kilometers and 1,272,075 persons  xVwith a loss of the only commercial service covering an area of 13,047 sq. kilometers and 23,012  X4 xRpersons.B$S yOK' "V ԍThe Petitioners also provided figures based upon KOAATV's operation from a transmitter site proposed  x& in USC's application for modification of construction permit, File No. BMPCT931129KE. By a letter released  {O' x today, the staff has denied that application. See Letter to University of Southern Colorado from Chief Video  {O'Services Division, DA 991338, released July 7, 1999. Therefore, we will not consider those figures. B The Petitioners note that much of the loss area is south of Pueblo on the fringe of  xKOAATV's current Grade B contour in rural, sparsely populated areas. The Petitioners note  X4 xthat, in the ShortSpacing Letter, the staff found this area to be "largely unpopulated" and that  xthe withdrawal of service to this area would not have an adverse impact on the public interest.  Xx4Therefore, the Petitioners conclude that the loss area would be de minimis.  XL4 " 14. According to the Petitioners, the loss area is also wellserved by existing and  x+proposed television translators, cable television service, and direct broadcast satellite (DBS)  xpservice. The Petitioners note that at least five existing television translators provide commercial  xservice (albeit not from the NBC television network) to 10,423 persons within the loss area. One  xof these translators, K15EC, Westcliffe, Colorado, rebroadcasts the signal of KOAATV and,  xytherefore, approximately 600 recipients of the signal of K15EC will continue to receive NBC  xservice. Sangre also notes that it is planning on constructing a series of television translators that  x'would reduce the number of persons in the loss area to 1,322 persons. Furthermore, the  xPetitioners cite to the fact that the outlying portions of the loss area are served by DBS and cable  xNtelevision service. Only two communities located in the loss area (Cheraw and La Veta, Colorado) do not have cable service, but both communities have DBS service.  X84 "`15. The Petitioners argue that their proposal to reduce the size of the loss area by  xcalculating existing service from translators, cable and DBS is consistent with Commission  xprecedent. The Petitioners maintain that the Commission has explicitly recognized that in rural  xremote areas, the availability of translator, cable and satellite services can be used to reduce loss  X4 xVarea size. See KTVO, Inc., 57 RR 2d 648 (1984); Elba Development Corp., 5 FCC Rcd 6767  X4 x(1990); Coronado Communications Co., 8 FCC Rcd 159 (1992); Daytona Broadcasting Co., 59  X4 x<RR 2d 1303, 1305 (1985); Apogee, Inc., 59 RR 2d 941, 945 (1986); and TeleBroadcasters of  X4 xcCalifornia, Inc., 58 RR 2d 223, 232, n. 38 (Rev. Bd. 1985). The Petitioners argue that there is no reason to depart from Commission precedent in this case.  XZ4 "16. With respect to the proposed change in KTSC(TV)'s transmitter site at Baculite Mesa,  x<the Petitioners demonstrate that there will be no loss of noncommercial educational service and  xthere will be a gain in noncommercial service of 16,317 kilometers and 5,324 persons (gain area).  xThe Petitioners also argue that the service gains will be even larger if the Commission were to  x_consider that, as part of the channel exchange, Sangre will be donating to USC its translator,  xcK30AA, Colorado Springs, Colorado. This translator provides service to approximately 334,077"0*%%ZZ^"  xppersons and an area of 929 sq. kilometers. The Petitioners maintain that it is highly unlikely that  xIthis translator will be displaced. With this translator, the Petitioners argue that USC will greatly  ximprove its service to the shadowed areas of Colorado Springs. In addition, the Petitioners  x<contend that the Commission should consider increased service from the network of translators  xthat USC intends to construct with funds received as a result of the channel exchange. The total  xgain, taking into account the proposed translators, would be 10,406 persons and KTSC(TV) would be providing a first noncommercial service in a majority of the gain areas.  XH4 "A17. AK Media and Pikes Peak continue to oppose a grant of channel exchange, arguing  X14 xthat it would violate the fundamental objectives of Section 1.420(h) of the Rules.$1S yO ' " ԍPikes Peak, AK Media and Central also make arguments concerning the pending applications to extend and  x modify USC's Cheyenne Mountain permit. Those arguments have been considered in conjunction with the  {O: ' xU Memorandum Opinion and Order released today wherein the staff granted the extension application and denied the  {O 'modification application. Id. Pikes Peak  xycompares the coverage if KTSC(TV) were to relocate to the transmitter site specified in the  xCheyenne Mountain permit to the coverage it would provide from the KOAATV transmitter site  x&(the site KTSC(TV) would be using following the channel exchange). Pikes Peak notes that from  x}the Cheyenne Mountain site, KTSC(TV) would provide service to 1,853,009 persons and 34,053  xsquare kilometers. From the KOAATV site, KTSC(TV) would provide service to only 603,946  x@persons and 48,698 square kilometers. Because KTSC(TV) would serve 1,249,063 fewer persons  xas a result of the channel exchange than it would if it simply constructed its facilities at its  xhauthorized transmitter site on Cheyenne Mountain, Pikes Peak maintains that the channel  x8exchange would be inconsistent with the fundamentals of Section 1.420(h). In addition, AK  xMedia submits engineering data to show that of the 5,324 persons in the gain area that will result  xfrom KTSC(TV) changing transmitter sites, only 2,906 persons will be gaining their first noncommercial educational service.  X4 "18. As for KOAATV, Pikes Peak argues that the alleged gain area is already served by  x+the Grade B signal from between 13 and 15 other fullpower television stations. AK Media  xargues that the channel exchange will not provide first commercial service (or first NBC service  xfor that matter) to anyone. Pikes Peak also argues that the Commission properly did not include  x/the Cheyenne Mountain permit in the channel exchange because of the loss of commercial and  x_network service to 23,012 persons that would result if KOAATV is permitted to relocate to  xCheyenne Mountain. AK Media actually calculates the loss to be 29,367 persons. Both Pikes  XN4 xPeak and AK Media conclude that any loss of service is prima facie inconsistent with the public  X94interest. See Coronado Communications, 8 FCC Rcd 159 (VSD 1992).  X 4 "19. Both AK Media and Pikes Peak continue to argue that service gains that would result  xpfrom both Sangre's and USC's implementation of television translators should not be considered,  xbecause they are too speculative due to the secondary nature of such service. Finally, AK Media"0*%%ZZ^"  xhand Pikes Peak contend that service gains that would occur from USC operating existing  xItranslator K30AA must also not be considered because K30AA is subject to displacement by a  xpending application for fullpower television station to operate on Channel 32 at Pueblo. Pikes  xPeak maintains that K30AA ultimately will be displaced by Channel 32 at Pueblo and that this  xwill substantially reduce the proposed KTSC(TV) secondary service to Colorado Springs that the  X4Petitioners are relying on to justify their channel exchange.S yO' "" ԍPikes Peak also makes Constitutional arguments as to whether the Commission may distinguish between commercial and noncommercial applicants for shortspacing waivers.  X_4 "20. Finally, AK Media argues that the existence of cable and DBS service in the loss area  xshould not be considered as a mitigating factor because the Petitioners have not provided specific  x@calculations on the number of cable and DBS subscribers in that area. AK Media notes that, even  xif the Commission considers service from translators as a mitigating factor in the loss area, there  xhwould still be 21,886 persons that would lose their only commercial service. Such a large  xVpopulation losing their only commercial service is not in the public interest, AK Media contends.  X 4Q II. Discussion ă  X4 "'21. In its decision remanding this proceeding to us, the Court concluded that we had not  xadequately explained why we permitted USC to operate on Channel 8 from a shortspaced  Xb4 xtransmitter site on Cheyenne Mountain, but not Sangre. Court Decision at 10. The Court  xdirected us to better explain this distinction and, if the distinction was predicated on the  xcommercial/noncommercial status of the entity seeking the shortspacing waiver, then to support  X4 x}this distinction in a manner consistent with the First Amendment. Id. at 1011. In reconsidering  xthis case on remand, we determine the grant of a shortspacing waiver to USC and the denial of  xca shortspacing allotment to Sangre may be justified on two independent grounds, neither having  x<to do with the commercial/noncommercial status of the applicants. In addition, because we do  xnot base our decision on the commercial/noncommercial differences in USC's and Sangre's  xproposed operations, we need not reach the question, as posed by the Court and argued by the  xPetitioners, of whether such a distinction is consistent with the First Amendment of the  X4Constitution. See Court Decision at 11.  XT4 "422. The Petitioners view a channel exchange proceeding as one in which issues relating  xto the permit for an unbuilt station, whose exchange is a part of the proposal before us, are  x+beyond the scope of the proceeding. We reject Petitioners' understanding of the scope of a  xchannel exchange proceeding in a situation where the proposal calls for the exchange of a permit  xfor an unbuilt station which required a shortspacing waiver at the time of its initial grant. Our  xrejection is for two independent reasons, each of which is explained more fully herein. First, a  xchannel exchange proceeding involves rulemaking and we have long been more demanding in  xthe rulemaking, as distinguished from the adjudicatory, context before we will approve a short"! 0*%%ZZ% "ԫ xspacing. Second, even from the less demanding adjudicatory perspective, a shortspacing waiver  x/analysis is highly fact specific and the considerations that on balance persuade us that a waiver  xis appropriate in the case of the original waiver applicant may not be present in the case of the  xsubsequent party to a proposed exchange who seeks to benefit from the original shortspacing waiver grant.   Xv4 "q23. Upon reconsideration of this case, we conclude that a critical distinction justifying  xour dissimilar treatment of the two apparently similar shortspacing proposals is that USC sought  xVand received its shortspacing waiver at the application stage, while Sangre effectively sought a  xshortspaced allotment through a rulemaking proceeding. The Commission has for over a quarter  xlcentury applied stricter standards to shortspaced allotments than to shortspaced application  xwaivers. Following public comment in MM Docket No. 8541, the Commission concluded that  xthe appropriate method for implementing its new channel exchange policy was through allotment  X 4 xrulemaking proceedings. See Report and Order, entitled "Amendments to the Television Table  xof Assignments to Change Noncommercial Education Reservations," 59 RR 2d 1455 (1986).  xBecause they require a change to Section 73.606 of the Commission's Rules (the TV Table of  xAllotments), channel exchanges are treated as allocation rulemakings. If a channel exchange  xinvolves a shortspacing, then it is treated as a proposed shortspaced allotment. While we  xoccasionally permit shortspacings at the application stage, shortspaced allotments are rarely  XK4 xpermitted. We first explained our rationale for adopting this distinction in Portland, ME, 35 FCC 2d 601 (1972), where we stated that: ` `  XWhile we have on occasion granted requests for waiver of the minimum mileage  requirements, this has only been done in connection with applications for existing  $channels. In each situation, our favorable action has been premised on the  eimpossibility of attainment of the expectation of compliance or of other new  matters sufficient to demonstrate the clear public gain in so doing. In rule  mmaking, on the other hand, we have never granted such waiver, for to do so would  Sbe to knowingly undermine the very objectives we are attempting to serve. When  assigning (or reassigning) channels, it is on the expectation that obstacles to their  effectuation can be overcome be they in terms of spacing, city coverage or  whatever. Needless to say, not all expectations are realized, and when an  applicant demonstrates that in fact realization is not possible, we have permitted  minor deviations so that the purposes of the assignment may be served. This is  a far cry from intentionally making a substandard assignment, as is sought here.  If such a course of action could ever be justified, it would only be on the basis of an extraordinary situation warranting such unusual remedial relief.   X"4 x 35 FCC 2d at 602; see Section 73.610 of the Commission's Rules and also Toms River, NJ, 43"" 0*%%ZZ "  X4 xFCC 2d 414 (1973).S yOy' "I ԍWhile those cases involved FM allotments, and this is a TV allotment case, that is a distinction without a difference as both FM and TV stations are allocated based upon a table of allotments. In short, by maintaining strict adherence to a fullyspaced allotment  xNscheme, we preserve the capacity to permit necessary adjustments to spacing where the  x construction of actual facilities so requires, while minimizing potential adverse interference effects  xfrom such adjustments. This is because, when a party files a petition for rulemaking to amend  xthe Table of Allotments, a hypothetical set of reference coordinates are used for purposes of  xmaking the allotment. The petitioner is not required to specify an actual transmitter site where  xthe station will be operated, only a theoretical fullyspaced transmitter site location. At this point,  xthe Commission disfavors making a shortspaced allotment because it does not want to begin the  xprocess with a substandard allotment. In order to protect the integrity of the Table, the  xCommission demands that the process of creating a new station begin with an allotment that is  xnot already shortspaced. However, later, when a party files an application to construct its actual  x_transmitter site, and the Commission examines the actual facilities that will be constructed to  xcoperate the station, it may be determined that no fullyspaced transmitter sites are available. At  xthat later point in the process, the Commission may allow a deviation of its spacing rules when it is demonstrated that the public interest benefits are great enough to support a waiver.  X4 "24. Consistent with that approach, we have only permitted shortspaced allotments where  xthe petitioner has demonstrated a "compelling need for departure from the established interstation  Xb4 xcseparation standards." See London, Kentucky, 7 FCC Rcd 5936, 5937 (MMB 1992); see also  XM4 xChester and Wedgefield, South Carolina, 5 FCC Rcd 5572 (1990). This was the threshold  xIquestion in determining whether to permit the channel exchange in this case because it involved  X!4 xa shortspaced allotment. See Report and Order, 10 FCC Rcd at 76678. In this case, the staff  xfound that the Petitioners had not met the "compelling need" standard and we affirmed that decision.  X4 "y25. We recognize the Court's concern that, in our prior Memorandum Opinion and Order,  x"we did not simply review the staff's decision under the "compelling need" standard, but we also  xfocused on the benefits to be gained from USC's proposed noncommercial educational operation  xon Cheyenne Mountain and the fact that those benefits would be lost if we were to permit Sangre  Xm4 xto operate a commercial station from that site. See Court Decision at 1011. The Court stated  XX4 x/that we may well decide to factor the commercial status vel non of an applicant into our short xspacing waiver decisions, however, the Court found that such a decision would be inconsistent  X,4 x}with our earlier decision in Open Media Corp., 8 FCC Rcd 4070 (1993). Id. at 10. The Court  X4 xstated that, whatever we decide, we should better explain the basis for our action. We now find  xthat our examination of the effects the channel exchange would have upon USC's noncommercial  xloperation, in conjunction with our consideration of the Sangre shortspacing allotment waiver  X 4 xrequest, was unnecessary. In reviewing the staff's decision in this case, we can properly confine  xour concern to whether the staff examined independently the technical considerations of Sangre's"! 0*%%ZZ "  xrequested shortspacing allotment waiver and properly applied the "compelling need" standard  X4 xwith respect to that proposal. We find that, in its Report and Order, the staff properly evaluated  xthe service gains and losses that would result from Sangre's proposed Cheyenne Mountain  xoperation and, based upon that technical analysis, found that Sangre had not shown a "compelling  xneed" to adopt a shortspaced allotment. As the staff found, the loss of service from KOAA(TV)  X4 x+that would result is substantial 23,012 persons would lose their only commercial and NBC  Xx4 xnetwork service.r\xS yO' "I ԍAK Media's engineering analysis finds the loss area population to be 29,367. However, as we previously  {O' x! found, the difference between these figures is not significant in this consideration. See Memorandum Opinion and  {O 'Order, 11 FCC Rcd at 19653, n. 8.r Therefore, the staff correctly found that the service gains that would result  Xa4 xfrom Sangre's shortspaced allotment did not outweigh this significant loss of service. "aS yO ' " ԍAlthough the Commission has a policy of generally "refusing to base waivers of rules designed to prevent  {O ' x interference upon nontechnical considerations such as ownership or programming," see e.g., Open Media Corp., 8  x FCC Rcd 4070, 4071 (1993), this policy does not preclude us from denying a technical waiver where it would result in the loss of service to a large number of viewers or listeners.  Report  XL4and Order, 10 FCC Rcd at 7668.  X 4 "#26. Moreover, even if there had been no loss of service resulting from KOAATV's  xproposed operation from the shortspaced Cheyenne Mountain site, creation of a shortspaced  x}allotment would not have been warranted in this case. The principal public interest benefit to be  x gained by permitting KOAATV to operate from the shortspaced Cheyenne Mountain site would  xcbe the addition of television service to 1,272,075 persons. However, the entire population within  xthe gain area is already wellserved by the Grade B signal from between 13 and 15 other full xpower television stations including another NBC affiliate (KUSATV, Channel 9, Denver).  xTherefore, the shortspaced allotment would not provide first NBC network service to anyone.  xtWith respect to the asserted benefits to KTSC(TV)'s service from the proposed channel exchange,  x<we do not find them to be a convincing basis for granting KOAATV a shortspaced allotment.  xWhile it is alleged that 5,324 persons will now receive KTSC(TV)'s service as a result of that  x<station's use of KOAATV's site at Baculite Mesa, this gain is relatively small and substantially  xless than the gain in service that KTSC(TV)'s use of its Cheyenne Mountain site would have  xprovided. Such a slim public interest benefit to be derived from creation of a shortspaced allotment certainly does not meet the "compelling need" standard to justify such an allotment.  X4 "27. Furthermore, even if we accept the Petitioners' argument and we review the proposal  xto permit KOAATV to operate from the shortspaced Cheyenne Mountain site under the criteria  xIemployed for reviewing shortspacing waivers at the application stage, we find that a grant of a  xpshortspacing waiver would not have been justified. We examine short spacing waiver requests  xunder a number of public interest factors, including: (1) the unsuitability of the existing site,  xeither in terms of the economic viability of the station, in technical terms, or in a licensee's"= 0*%%ZZ"  xinability to reach areas containing a significant number of viewers who lack service, a network  X4 xgservice, or "independent" service; see Roy H. Park Broadcasting, Inc., 45 RR 2d 1083 (B/C Bur.  X4 xg1972); and WSET Incorporated (WSETTV), 80 FCC 2d 233 (1980); and (2) the nature and extent  X4 x}of any predicted loss of service that would result from a grant of the shortspacing; \S yO8' "  ԍIn this regard, we will evaluate the extent to which a proposal creates or eliminates unserved or underserved  {O' x areas. See Hall v. FCC, 237 F. 2d 567, 572 (D.C. Cir. 1956); Television Corporation of Michigan v. FCC, 294 F.  {O'2d 730, 732 (D.C. Cir. 1961); and KTVO, Inc., 57 RR 2d 648 (1984). see Roy H.  X4 xQPark Broadcasting, Inc., supra; and Blair Broadcasting of California, Inc., 55 RR 2d 619 (MMB 1984).  Xg4 "28. Under those factors, we would not have found that grant of a shortspacing waiver  xto permit KOAATV to operate from the shortspaced Cheyenne Mountain site was justified.  x3While the staff permitted KTSC(TV) to relocate to the shortspaced Cheyenne Mountain site, that  xdecision was largely based upon the gain of unique programming for approximately 1,149,529  x"persons compared to a loss of only 19,591 persons. As outlined above, the Petitioners will only  xtprovide a duplicative network service to a wellserved area if KOAATV were allowed to relocate  x3to the same Cheyenne Mountain shortspaced site. Therefore, even if examined under the criteria  xused for reviewing shortspacing waivers sought at the application stage, the Petitioners would not have been able to justify a shortspacing waiver.  X4   X4 "29. For the above outlined reasons, we continue to believe that the staff properly found  xthat the public interest benefits to be derived from the channel exchange proposal were simply  xNtoo small to outweigh the greater loss of service. Without considering the commercial or  xnoncommercial status of the parties, we find that there was ample basis for the staff to deny the  xchannel exchange proposal, which was expressly contingent on a grant of Sangre's shortspacing allotment waiver request, and we once again affirm that decision.  X4 "u30. ACCORDINGLY, IT IS ORDERED, That pursuant to the authority of Sections 4(i)  xand (j) and 403 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 154(j)  X4 xpand 403, the Memorandum Opinion and Order, FCC 96451, released December 16, 1996, IS AFFIRMED.  "h31. IT IS FURTHER ORDERED, That a copy of this Memorandum Opinion and Order  xIon Remand WILL BE SENT by Certified Mail, Return Receipt Requested, to the University of Southern Colorado and to Sangre de Cristo Communications, Inc. "*  0*%%ZZ" 1&x[ 32.1 32. IT IS FURTHER ORDERED, That this proceeding IS TERMINATED. ` `  hhCFEDERAL COMMUNICATIONS COMMISSION  ` `  hhCMagalie Roman Salas ` ` hhCSecretary