FCC Record, Volume 7, No. 12, Pages 3373 to 3754, June 1 - June 12, 1992 Page: 3,617

                                
7 FCC Rcd No. 12

Federal Communications Commission Record

Before the
Federal Communications Commission
Washington, D.C. 20554
In re Application of

K-W TV, INC.

File No. BMPCT-881202KM

For Modification of Construction
Permit for Station WTVU(TV), New
Haven, Connecticut
and
For Petition for Order to Show Cause
MEMORANDUM OPINION AND ORDER

Adopted: May 29, 1992;

Released: June 11, 1992

By the Commission:
1. The Commission has before it for consideration: (a)
the above-captioned application of K-W TV, Inc. (K-W),
permittee of unbuilt Station WTVU(TV) (IND), Channel
59, New Haven, Connecticut, for modification of its construction
permit, and its accompanying request for waiver
of Section 73.610(d) of the Commission's Rules relating to
short spacing; (b) an objection filed by the Association of
Maximum Service Telecasters, Inc. (MST); (c) a joint objection
filed by Arch Communications, Inc. (Arch), licensee
of Station WTIC-TV (FOX), Channel 61, Hartford.
Connecticut,' and by WGBH Educational Foundation
(WGBH), licensee of Station WGBY-TV (PBS), Channel
57, Springfield, Massachusetts; and (d) related pleadings.
We also have before us K-W's Petition for an Order to
Show Cause, requesting enforcement of the "unique site"
rule, Section 73.635 of our Rules.
THE SHORT SPACING WAIVER REQUEST
2. K-W seeks modification of its construction permit to
specify a new site for its proposed Channel 59 operation at
the West Peak of the Hanging Hills in Meriden, Connecticut
(Meriden Mountain). Pursuant to Section 73.610(d) of
the Commission's Rules, a station operating on Channel
59 must maintain a minimum separation of 19.5 miles
(31.4 kilometers) from a station operating on Channel 61
in order to prevent intermodulation interference. However,
K-W's proposed site is 9.7 miles from the site of

1 Arch reorganized after it filed its pleadings in this case and,
following Commission approval of a pro forma application, assigned
the WTIC-TV license to a new, commonly controlled
entity, Channel 61 Licensee Corporation. For ease of reference,
however, we shall retain the name "Arch" to identify this
etitioner.
? This is the basis of K-W's Show Cause petition, which we
discuss at Paragraphs 15-19, below.

Station WTIC-TV, Channel 61, making its proposed site
9.8 miles short spaced. Accordingly, K-W seeks a waiver of
Section 73.610(d).
3. In support of its request for waiver, K-W asserts that,
after the Commission authorized construction at its current
site in North Branford, Connecticut, the site owner
(the New Haven Water Company) subsequently refused to
make the location available to the permittee on any terms.
K-W maintains that, in its effort to locate its antenna, it
looked at 17 potential sites, which it has labelled Sites 1
through 17. The permittee contends that the Commission's
spacing requirements, the Federal Aviation Administration's
airspace restraints, and local zoning ordinances and
environmental concerns served as obstacles to locating an
"acceptable" new site. K-W states that, unable to find a
suitable site, it concluded that it had only three options:
(1) implement a channel exchange with Station
WEDW(TV), Channel 49, Bridgeport, Connecticut; (2)
colocate with Station WTNH(TV), New Haven, Connecticut;
or (3) pursue a short-spaced site at Meriden Mountain
and seek waiver of Section 73.610(d). The applicant claims
that Connecticut Public Broadcasting, Inc., licensee of
WEDW(TV), has no interest in a channel exchange. In
addition, K-W maintains that Cook Inlet Communications
Corporation (Cook Inlet), licensee of WTNH(TV), has refused
to allow K-W to colocate at the site which it owns
and operates.2 Consequently, K-W alleges, it has no choice
but to pursue the Meriden Mountain site. Only from
Meriden Mountain, the applicant contends, can it operate
with technical facilities even reasonably comparable to
those of other television stations in the Hartford-New Haven
market.
4. The proposed site was selected, K-W states, because it
is the only site that will allow the area-wide coverage
necessary for its survival. K-W asserts that "substantial
technical facilities [allowing coverage of most of the Hartford-New
Haven market]... will enhance the prospects for
a competitive, economically viable operation on Channel
59." The permittee cites four factors which it claims mandate
such facilities: (1) the terrain of the market is characterized
by rugged ridges and deep valleys, negatively
affecting signal propagation; (2) the market's population is
configured around several distinct cities, arranged "more
or less" in a straight line, while still being considered as
one market; (3) WTVU(TV) would operate in the upper
portion of the UHF band, resulting in inherent propagation
limitations; and (4) K-W would be competing with at
least six other commercial stations in the market.3 Consequently,
the applicant argues, grant of the waiver request
is critical to the proposed station's economic viability.
5. In its objection to the short spacing proposal, MST
asserts that K-W's underlying premise, that it must serve
all of the Hartford-New Haven market, is an irrelevant
private economic and business objective, rather than a
public interest objective. MST states that channels are
assigned to communities, not markets, citing Satellite Out3
According to the 1992 Television and Cable Factbook, seven
commercial television stations are currently licensed in the
Hartford-New Haven market. Stations WFSB(TV) (CBS),