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Yaquina Bay Loses Appeal to Save KYTE’s License

Broadcaster had asked the FCC to consider "equity and fairness" as well as precedent

Yaquina Bay Communications has lost an appeal to save the license of KYTE(FM) in Oregon.

Earlier this year the FCC Media Bureau deleted the call sign of the Class C0 station and rejected the license renewal, saying the station had operated from a location other than its licensed site without a valid STA for an extended period. Now the Media Bureau has upheld its decision.

Here’s the background.

Yaquina Bay Communications owns several stations serving “the central coast of Oregon and beyond.” According to the FCC case summary, in 2014 the company filed an application to change KYTE’s community of license from Newport, Ore., to Independence, Ore., and relocate its transmitter to Bald Mountain.

The Media Bureau granted that and later extended the expiration date. But in May 2018, YBC asked for special temporary authority to operate instead from Otter Crest Mountain, from which it had broadcast while licensed at Newport. It said it was unable to operate from Bald Mountain “until generator is sent and returned from manufacturer for warranty replacement,” and it said the generator was the only power source at Bald Mountain.

The bureau granted the STA until Dec. 1, 2018. According to the commission, YBC did not seek a later extension or additional STA, nor did it seek further authorization until seeking license renewal in September of 2021.

At that time, two other broadcasters — PACNW Broadcasting, licensee of KPPT(FM) in Depoe Bay, Ore., and Outlaw Music Association, licensee of co-channel low-power KIEV(LP) in Camas, Wash. — raised concerns.

They gave evidence indicating that KYTE was still broadcasting from Otter Crest Mountain despite the expiration of its STA. They also produced plots demonstrating that, from Otter Crest, the station could not provide the required 70 dBµ principal community signal over Independence, its community of license.

Because the station apparently had been operating with unauthorized facilities for more than 12 months, the bureau sent a letter to YBC last September asking it to provide a chronology of the station’s operational status starting in December of 2018.

YBC replied that it had moved the station to Bald Mountain and was working with the government of Oregon to have permanent power provided there, where the state had facilities. The company told the commission that due to budget constraints, the state did not provide power to the site, forcing YBC to purchase two generators for its transmitter, but that YBC mistakenly purchased generators designed as backup and not primary generators, one of which failed and was returned to the manufacturer.

It said the manufacturer advised YBC that the generator was not designed for primary use, and further that it had failed due to the use of bad propane. YBC said it wasn’t able to resolve this situation with the manufacturer, propane supplier or its insurer. Also, it said, it could not afford to purchase a new generator because of the pandemic and it had lost its lease to the Bald Mountain site.

According to the FCC summary, YBC said it had “failed to realize that [the Otter Crest STA] was for just a short period of time.” It claimed that to avoid interference to other stations it has been difficult to locate another site from which it could cover Independence. It said it hopes to sell the station and has an interested buyer that would like to reestablish service from Bald Mountain; it asked for a short-term renewal to pursue that.

But in January of this year the FCC issued a decision. It said that when a station fails to transmit with its authorized facilities for a consecutive 12-month period, its license expires. YBC, it said, operated with unauthorized facilities at an unauthorized location for more than 12 months, from December 2018 to February 2022. The FCC also said YBC did not provide a chronological description of KYTE’s operational status as requested.

It rejected YBC’s claim that it was not aware of the limited duration of the STA because the STA itself bore its expiration date, and because all STAs are, by definition, temporary, and an initial grant does not exceed 180 days. Further, it said in January, provisions allowing the commission to extend or reinstate a license did not apply because YBC’s difficulties in operating from Bald Mountain did not justify its unauthorized operation, for over three years, from an unlicensed site from which it could not provide proper coverage of its community.

YBC subsequently filed a petition for reconsideration. It cited “equity and fairness due to the commission’s treatment of other licensees and the once-in-a-lifetime poor economic conditions caused by the COVID-19 pandemic.” It argued that the bureau should have assessed a monetary forfeiture instead of canceling the license. The company also cited a prior case in which the bureau issued a forfeiture to a low-power TV station in a case involving a four-year period of unauthorized operation.

Now Audio Division Chief Al Shuldiner has ruled against YBC.

He said the company didn’t demonstrate any legal error in the decision and that the outcome was consistent with commission precedent.

YBC, he ruled, failed to demonstrate that the pandemic — which didn’t begin until more than a year and a half after the station began unauthorized operations — was relevant.

Shuldiner cited as precedent a different case in which the FCC found that a licensee’s violation “was due to its own actions and its unexcused ignorance of commission rules.” He said the case cited by YBC didn’t involve relevant circumstances.

Shuldiner also said that YBC has not laid out a plan to return the station to operation from its site at Bald Mountain. “It is thus unclear from YBC’s petition exactly what kind of application it intends to file — any license application for the Otter Crest Mountain site or a new site would have to be preceded by an application for, and grant of, a construction permit for that site. YBC has already referred to the difficulty in finding a site from which to cover Independence, Ore.,” he wrote.

“Further … YBC’s options are limited given that changing the community of license from Independence would be disfavored, as the station is the sole local transmission service at that community.”

He rejected YBC’s attempt to blame “once-in-a-lifetime poor economic conditions” caused by the pandemic. “YBC’s difficulties ultimately stemmed from its business decisions in site selection and equipment purchases,” Shuldiner wrote. “YBC cannot rely on its mistaken belief that the initial technical STA need not have been extended beyond the expiration date the STA bore.

“Finally, YBC cannot blame its inability to replace faulty generators on financial problems caused by a pandemic that was 21 months in the future.”