WPCK 2BPZCourier 10cpi#|xwx6X@8;X@HP LaserJet IIISiHPLASIII.PRSx  @HCtX@22 ZB##|xHP LaserJet IIISiHPLASIII.PRSx  @8;HCt@Courier 10cpiCourier 10cpi (Bold)2XF`I?xxx,wx6X@8;X@?xxx,x `B;X@4 6:NHxpx@BBH @p|@ 'A ?<    $//Ringer, D., (Westerville, OH), FM, 93107, FCC 94126//$ $/ 1.80 forfeiture proceedings /$  ?<$/ 500.3105 misrepresentation /$  ?<' Before the 0 FEDERAL COMMUNICATIONS COMMISSION  ?x<Washington, D.C. 20554 ă  ?<x` `  hh@hpp  FCC 94126(#(#Xx` ` hh@hpp  ?<In re applications ofhh@h)ppMM DOCKET NO. 93107 x` ` hh@h)  ?( <DAVID A. RINGERhh@h)ppFile No. BPH911230MA x` ` hh@h)  ? <ASF BROADCASTING CORPORATION@h)ppFile No. BPH911230MB x` ` hh@h)  ?H <WILBURN INDUSTRIES, INC.hh@h)ppFile No. BPH911230MC x` ` hh@h)  ?<SHELLEE F. DAVIShh@h)ppFile No. BPH911231MA x` ` hh@h)  ?h<WESTERVILLE BROADCASTING COMPANYh)ppFile No. BPH911231MB  ?0<LIMITED PARTNERSHIPhh@h) x` ` hh@h)  ?<OHIO RADIO ASSOCIATES, INC.@hpph)ppFile No. BPH911231MC x` ` hh@h)  ?P<For construction permit for@h)  ?<an FM station on Channel 280A, h)  ?<in Westerville, Ohiohh@h)  ?<  ?p<\ MEMORANDUM OPINION AND ORDERă  ?8<  ?<xAdopted: May 27, 1994; @hReleased: By the Commission: Commissioners Ness and Chong not participating. m    0<x1. On September 23, 1993 the Commission released a notice  x<pursuant to 47 C.F.R. 1.80(f) and (g)(3) to advise Westerville  x<Broadcasting Company Limited Partnership (WBC) that the Commission  x<had information indicating that WBC may have misrepresented  xh<material facts with deceitful intent in a pleading filed on June 9,  x<1993, in violation of 47 C.F.R. 1.17, that a determination of  x<liability would be made unless WBC were to remit $25,000 within  x<thirty days, and that WBC would be allowed thirty days in which to  xx<file a response. 8 FCC Rcd 7037 (1993). WBC filed a response on October 22, 1993 and an erratum on October 25, 1993.   @<x2. WBC was one of seven applicants for a new Class A FM  x<station at Westerville, Ohio that were designated for hearing in  xx<April, 1993. The official application form that it used required  x<the applicant to indicate by checking "yes" or "no" whether it had  x<enough net liquid assets or funds available through borrowing from  xx<committed creditors to construct the proposed station and operate"h)0*0*0*1"  x <it for three months without revenue. WBC represented in its  x0<application that it would need a total of $300,000 to fund  x<construction and operation for three months, and it checked the  xh<"yes" box to attest that it had enough available funds to meet that need.    <x3. On May 10, 1993, pursuant to the discovery provisions of  xx<47 C.F.R. 1.325(c)(1), WBC produced various documents, including  x<a onepage "Construction Summary" listing ten expense categories  x<and giving dollar estimates for each, amounting to a total of  xx<$293,000. A competing applicant subsequently called attention to  xh<the fact that WBC's cost summary said nothing about the expenses of  x<the first three months of operation and contended that a hearing  ?( < x<issue should therefore be specified concerning the veracity of  xh<WBC's financial certification. WBC responded to that contention in  xx<an opposition pleading filed on June 9, 1993, denying that it had  x<neglected to include threemonths' operating expenses; it alleged,  xx<rather, that the principal who had prepared the cost summary, WBC  x<general partner Freeman Edwards II, had made allowance for such  x<expenses by including an estimate of them in the $39,000 amount  x@<identified in the summary as "Miscellaneous, spares, and  x <contingency." It is to this allegation that we specifically  x<referred when we notified WBC that it was apparently liable for misrepresenting facts in its June 9 opposition pleading.   <x4. We conclude in light of WBC's response that an assessment  x<of liability is unwarranted. WBC asserts that in preparing its  xh<cost statement Edwards followed the format of a sample cost summary  xh<in a brochure that had been prepared for the FCC and distributed to  x<members of the public at an FCCsponsored seminar that he had  xx<attended. The brochure advised that applicants must certify that  xx<enough liquid assets are available for construction and operation  xx<of their proposed facilities for three months without revenue and  x<referred to the sample cost summary as an illustrative set of cost  x<estimates for a Class A FM station, such as WBC proposed. None of  x<the numerous expenses itemized in the sample cost summary was  xx<specifically identified as operating expenses. The line items in  xh<the sample cost summary were grouped into three general categories:  x<"Transmitter Plant," "Studio Equipment," and "Other," and the last  x`<item in the "Other" category was an entry designated  x<"Miscellaneous, spares and contingency." Significantly, a note on  xh<the sample cost summary explaining that certain enumerated kinds of  ? < xh<expenses were not included made no reference to operating expenses,  x<and the indicated expense of "Miscellaneous, spares and  xx<contingency" was larger than any other itemized expense listed in  x <the sample, comprising approximately fourteen percent of the  x<overall total. An inference might understandably be drawn from  x<these indications that the "Miscellaneous, spares and contingency"  xh<entry included an allowance for operating expenses, notwithstanding  xx<the entry's literal inaptness for that purpose. In view of these  x<circumstances, and in view of the fact that no question was ever  xx<raised as to the adequacy of WBC's overall cost estimate, we find"'0*((@@/"  xh<that WBC's explanation is plausible. Hence, we hold that there are  x<insufficient grounds in the information before us for concluding  xx<that WBC made an actionable misrepresentation in asserting in its  xx<June 9, 1993 pleading that it had made allowance for its expected initial operating expenses in its summary of estimated expenses.   <x5. ACCORDINGLY, IT IS ORDERED, pursuant to 47 C.F.R.  x <1.80(f)(4), that the forfeiture inquiry against Westerville  x<Broadcasting Company Limited Partnership (File No. BPH911231MB)  xh<instituted by notice of potential liability, 8 FCC Rcd 7037 (1993), IS TERMINATED. x   x` ` hh@FEDERAL COMMUNICATIONS COMMISSION x` ` hh@William F. Caton x` ` hh@Acting Secretary