WPCK 2BJZ Courier3|dBx6X@`7X@HP LaserJet 4_230_1HPLAS4.PRS 4x  @\oeX@26 ZF 3|dHP LaserJet 4_230_1HPLAS4.PRS 4d6X@8;\oe@CourierCourier Bold2XFZI<r5ddd,Oed6X@`7@s4ddd,鑡d `7<E<<<,΃<6X@`7,@@j` `  @   $//500.2xx, ID (Presque Isle, ME) MM Dkt. 93299, FCC 95D02//S $/500.120, licensee responsibility/$ $///newjob///$ $///FCC 95D2,3/14/95///$  s5- FCC 95D2 EBefore the z Federal Communications Commission nWashington, D.C. 20554lU  r5q -In the Matter of hh,V)ppMM Docket No. 93299 ` `  hh,V) ` `  hh,V)  r5f -CAVAN COMMUNICATIONShh,V) ` `  hh,V)  r5 -License of Station WTMS (AM)hh,V)  r5[-Presque Isle, Mainehh,V) ` `  hh,V)  r5-Order to Show Cause Why thehh,V)  r5P-License for Station WTMS (AM),V)  r5-Presque Isle, Maine Shouldhh,V)  r5-Not Be Revoked. hh,V)pp ` `  s4- @APPEARANCES  r5:-` `  J. Dominic Monahan, Esq. on Cavan Communications   Corporation; and  r5-Gary P. Schonman, Esq. on behalf of the Mass Media Bureau.  s4/-T  INITIAL DECISION OF ADMINISTRATIVE LAW JUDGE  s4-< EDWARD LUTON ÐlU  r5$- Z  Issued: March 10, 1995 ; Released: March 17, 1995 ÐlU  s4-< I. Preliminary Statement  r5g-` ` 1. By Order to Show Cause and Hearing Designation Order, 8 FCC  r5-Rcd 8414 (MMB 1993) ("Show Cause Order"), the Chief, Audio Services Division, Mass Media Bureau, ordered Cavan Communications Corporation ("Cavan') to show  r5\-cause why its license for Station WTMS(AM)C\4 r5-ԍ/ At that time Station WTMS(AM) operated under the call sign WEGP(AM). This call sign was changed to WTMS(AM) in 1989. On March 3, 1994 Cavan requested and was granted application to return the call sign to its original call letters, WEGP(AM). (Cavan Ex 1, Attachments L and O, Tr. 86, 87). Herein, the station will be referred to as Station WTMS(AM). , Presque Isle, Maine, should not be revoked upon the following issues:  r5Q-(a) ` ` To determine whether Cavan Communications Corporation has the capability and intent to expeditiously resume broadcast operations of WTMS(AM) consistent with the Commission's Rules.x`  r5!-   r5"-  (b) ` ` To determine whether Cavan Communications Corporation has violated Sections 73.1740 and/or 73.1750 of the Commission's Rules.x` "$0*0*0*-"Ԍ r5-(c) ` ` To determine, in light of the evidence adduced pursuant to the foregoing issues, whether Cavan Communications Corporation is qualified to be and remain the licensee of Station WTMS(AM). x`  r58-` ` 2. The Show Cause Order placed the burden of proceeding with the introduction of the evidence and the burden of proof with respect to the  r5-designated issues upon the Mass Media Bureau. The Show Cause Order also directed that, if it is determined that revocation of the WTMS(AM) license is  r5-  -not warranted, the Presiding Judge shall determine, pursuant to  503(b) of the   g -Communications Act of 1934, as amended, whether to issue an Order of Forfeiture   9!-against Cavan in an amount not to exceed $250,000 for the willful and/or repeated  r5 -violation of   73.1740 and/or 73.1750 of the Commission's Rules.  r5 -  -` ` 3. A hearing in this proceeding was held in Washington, D.C., on  r5 -  -March 24, 1994, after which the record was closed. See Order, FCC 94M198 (released March 28, 1994).  s4 - II. Findings of Fact ĐlU   - I. A. 1. a.(1)(a) i) a) I. A. 1. a.(1)(a) i) a)` ` 4. Cavan purchased WTMS(AM) and colocated sister station WTMSFM   -(also licensed to serve Presque Isle, Maine) On November 1, 1987. Initially, the   9!-AM and FM stations were programmed separately, and WTMS(AM) employed its own live   9!-onair staff. From the outset, revenues from the operation of WTMS(AM) fell short   -of Cavan's expectations. In an effort to trim expenses, Cavan commenced   -simulcasting the two stations in the fall of 1989. Nevertheless, the cashflow   -from the combined operation of the two stations remained disappointing. (Cavan Ex. 1, p. 1).   - I. A. 1. a.(1)(a) i) a) I. A. 1. a.(1)(a) i) a)` ` 5. On or about March 29, 1991, the main transmitter tube for   9!-WTMS(AM) failed, and the station went off the air. Cavan determined that it could   -not afford the expense of replacing the $2,000 tube, and the station remained silent. (Cavan Ex. 1, p. 1).   @-` ` 6. About two months later, by letter dated May 17, 1991, Cavan   -filed with the Commission its first request for authority for WTMS(AM) to stay   -off the air. (MMB Ex. 1) The letter was signed by Cavan's President, J. Dominic   g -Monahan ("Monahan"), who is, and was at the time, an experienced communications   -attorney. (Tr. 5051). As was his practice, Monahan obtained a datestamped copy   g -of the submission demonstrating that it has been properly filed with the Office   g -of the Secretary of the Commission. (Tr. 52). The letter does not state exactly   ,-when the station first went off the air. (MM Ex. 1). The Commission acted on   Z-Cavan's request within a matter of days. By letter dated May 23, 1991, the   g -Commission granted Cavan temporary authority for WTMS(AM) to remain silent. The   9!-letter provided that WTMS(AM) could stay off the air through August 23, 1991. (MM Ex. 2; Tr. 5960).   -` ` 7. After WTMS(AM) first went dark, Cavan intended to restructure its   -financing so that the company could make necessary repairs and place the station   -back on the air. Shortly, however, in the summer or fall of 1991, Cavan   ,-abandoned plans to operate WTMS(AM)and decided instead to direct its efforts toward selling the station (Cavan Ex. 1, p.2; Tr. 5759).   -` ` 8. On August 23, 1991, Cavan's authority for WTMS(AM) to remain   9!-silent expired. Cavan did not file a request for further silent authority by that   ,-date. Approximately six months later, by letter dated February 28, 1992, the   -Commission advised Cavan that WTMS(AM) was off the air without authority. The   9!-Commission's letter of inquiry required Cavan to submit a written response within   -30 days informing the Commission of the status of WTMS(AM). (MM Ex. 3; Tr. 60"'0*(( 2"ԫ61).   {-` ` 9. By letter dated March 11, 1992, Cavan submitted its response to   Z-the Commission's letter of inquiry. In its response, Cavan made its second   -request for authority to keep WTMS(AM) silent. The letter was signed by Monahan,   -who, consistent with his practice, obtained a datestamped copy of the   g -correspondence demonstrating that it had been properly filed with the Office of   ,-the Secretary of the Commission. (MM Ex. 4; Tr. 61). The Commission acted on"'0*(( 2"   g -Cavan request within a month. By letter dated April 10, 1992, the staff granted   9!-Cavan authority to keep WTMS(AM) silent through July 10, 1992. (MM Ex. 5; Tr. 6162).   M-` ` 10. By letter dated July 10, 1992, Cavan filed its third request for   -authority for WTMS(AM) to remain silent. Monahan authorized the filing of the   -letter, and consistent with his practice, obtained a datestamped copy   -demonstrating that the correspondence had been properly filed with the Office of the Secretary of the Commission. (MM Ex. 6; Tr. 6364).   {-` ` 11. Less than two weeks later, the Commission responded to Cavan's   9!-request. A letter to Monahan dated July 23, 1992, stated that the Commission was   9!-deferring action on Cavan's request for further silent authority pending receipt   -of an executed AntiDrug Abuse Act certification. (MM Ex. 7; Tr. 64). Nearly a   -month later, Cavan filed an executed AntiDrug Abuse Act certification.   -Consistent with his practice, Monahan obtained a datestamped copy of the   -certification and accompanying transmittal letter, dated August 20, 1992,   -demonstrating that the correspondence had been properly filed with the Office of   -the Secretary of the Commission. (MM Ex. 8; Tr. 6465). In response to a   9!-subsequent informal request by the Commission staff, Cavan tendered a copy of the   -same certification on October 23, 1992. Consistent with his practice, Monahan   g -obtained a datestamped copy of the October 23, 1992, submission, demonstrating   -that it had been properly filed with the Office of the Secretary of the   -Commission. (MM Ex. 9; Tr. 66). One week later, on October 30, 1992, the   -Commission granted Cavan further authority for WTMS(AM) to remain silent. The station's silent authority extended to January 30, 1993. (MM Ex. 10; Tr. 67).   {-` ` 12. On January 30, 1993, Cavan's authority for WTMS(AM) to remain   -silent expired. Cavan did not submit a request for further silent authority by   g -that date. Three weeks later, by letter dated February 18, 1993, the Commission   g -advised Cavan that WTMS(AM) was off the air without authority. The Commission's   g -letter required Cavan to submit a written response within 30 days informing the Commission of the status of WTMS(AM). (MM Ex. 11).   M-` ` 13. Cavan did not respond to the Commission letter of inquiry within   9!-30 days. However, on March 22, 1993, Cavan filed its fourth request for authority   -to keep WTMS(AM) silent. As was his practice, Monahan obtained a datestamped   g -copy of the correspondence demonstrating that it had been filed with the Office   -of the Secretary of the Commission. (MM Ex. 12; Tr. 69) Approximately one week   g -later, by letter dated March 30, 1993, the Commission granted Cavan request for   -authority for WTMS(AM) to remain silent. Cavan was authorized to keep WTMS(AM) dark through June 30, 1993. (MM Ex. 13; Tr. 69).   -` ` 14. On June 30, 1993, Cavan's authority to keep WTMS(AM) silent   -expired. Cavan did not request further silent authority by that date. Nearly one   -month later, by letter to Monahan dated July 26, 1993, the Commission informed   -Cavan that WTMS(AM) was off the air without authority. The Commission's letter   9!-required Cavan to file a written response within 30 days informing the Commission of the status of WTMS(AM). (MM Ex. 14; Tr. 70).   -` ` 15. Commission records do not reveal that Cavan filed a response to the July 26, 1993, letter of inquiry. Although Monahan claims that he transmitted   Z-to the Commission a fifth request for silent authority on August 26, 1993,   -Monahan did not obtain (and consequently Cavan was unable to produce at hearing)   -a datestamped copy of any such filing with the Commission. (Cavan Ex. 1,   g -Attachment J; Tr. 71). Furthermore, the Commission never acknowledged receiving   -a further request for silent authority from Cavan; no further authority was ever   -granted, and, despite the passage of several months without any action, at no   9!-time subsequent to August 26, 1993 did Monahan inquire of the Commission's staff   9!-about the status of Cavan's purported request. (Tr. 6475). Monahan learned that   Z-the Commission had commenced this proceeding to revoke Cavan's license for  s4'-  -WTMS(AM) shortly after the Show Cause Order was released on November 30, 1993."'0*(( 2" (Tr. 75).  s4N-  -` ` 16. Upon release of the Show Cause Order, Cavan made the decision   -to take all actions necessary to return WTMS(AM) to the air as soon as possible.   -Repairs were made at a cost of approximately $13,000. (Tr. 88). Within four   -months, on March 18, 1994, WTMS(AM) commenced broadcasting pursuant to Special   -Temporary Authority. (MM Exs. 16 and 17; Tr. 81). On March 22, 1994, Cavan filed  s=-its required application on FCC Form 302. WB s=-ԍ/ The Commission requires AM stations which are silent for more than six months to file an FCC Form 302 prior to returning to the air. (MM Ex. 18; Tr. 85).   -` ` 17. On March 23, 1994, Cavan entered into a Local Marketing   g -Agreement ("LMA") with Lobster Radio Network, Inc. ("Lobster"). The LMA permits   -Lobster to operate WTMS(AM) on behalf of Cavan until such time as: (a) either   -party terminates the contract upon 90days written notice to the other; (b) both   9!-parties terminate the contract by mutual written agreement; (c) Lobster purchases   -the station from Cavan; or (d) the contract is determined to be illegal or in   Z-violation of the Commission's Rules or the Communications Act of 1934, as amended. (Cavan Ex. 1, Attachment K).   -` ` 18. Although WTMS(AM) has a main studio with program origination   g -capability, the station is presently broadcasting programming which is produced   -in, and delivered by satellite from, Florida by a company called International   g -Broadcast Network ("IBN"). IBN provided its programming to WTMS(AM) pursuant to   -a written contract with Lobster. Monahan has never seen, and is unfamiliar with,   -the terms of IBN's contract with Lobster. Furthermore, Monahan is unaware of how long WTMS(AM) will continue to broadcast IBN programming. (Tr. 9194).   M-` ` 19. Cavan does not have a written operating budget for WTMS(AM). Tr.   -9798). Nor does Cavan have any contingency plans for operating the station in   ,-the event the LMA with Lobster is terminated. If, for any reason, the LMA is   g -terminated, Cavan would be unable financially to operate the station without an immediate infusion of money from Cavan shareholders. (Tr. 103104).  s4B-l U` `    -` ` 20. Cavan has experienced severe financial hardship since it   -acquired WTMS(AM) and WTMSFM in 1987; the company reported a net income of   -$5,553 in the year ending December 31, 1993. The company has not prepared any   9!-projected financial statements for the 1994 fiscal year. (Cavan Ex. 1, Attachment N; Tr. 107).  r5,- nIII. Conclusions of Law ă   s4z-<A. Section 73.1740 Issue  s4-Section 73,1740(a)(4) of the Commission's Rules provides:  s4o-  s4- -XIn the event that causes beyond the control of a licensee make it  -impossible to adhere to the operating schedule of this section or to  -continue operating, the station may limit or discontinue operation  -for a period of not more than 30 days without further authority from  -the FCC. Notification must be sent to the FCC in Washington, D.C.,  -not later than the 10th day of limited or discontinued operation.  @-During such period, the licensee shall continue to adhere to the  -requirements in the station license pertaining to the lighting of  -antenna structures. In the event normal operation is restored prior  {-to the expiration of the 30 day period, the licensee will so notify  n-the FCC of this date. If the causes beyond the control of the  @-licensee make it impossible to comply within the allowed period,  {-informal written request shall be made to the FCC no later than the 30th day for such additional time as may be deemed necessary. "$0*((."Ԍ s5-  \-ԙ  ` ` 21. Cavan has violated  73.1740 of the Commission's Rules on several   -occasions since 1991. Station WTMS(AM) initially went off the air on or about   9!-March 29, 1991. However, it was not until May 17, 1991 nearly two months later   9!-ԩ that Cavan sought authority from the Commission to keep WTMS(AM) silent. Since  s4-  9!-Cavan was required by   73.1740 to submit its request for silent authority within   ,-30 days of the date on which the station first went silent, and Cavan waited  s4-  -nearly twice that long to do so, it is concluded that Cavan violated   73.1740 of   Z-the Commission's Rules in May 1991 by failing to seek in a timely manner Commission authority for WTMS(AM) to remain silent.  s4-  -` ` 22. Cavan violated   73.1740 a second time during the period from   g -August 1991 to April 1992. The evidence is that on May 23, 1991, the Commission   -granted Cavan's initial request for authority to keep WTMS(AM) off the air, and   g -that such authority expired on August 23, 1991. Cavan, however, did not request   g -further silent authority until March 11, 1992, and the Commission did not grant   ,-such further authority until April 10, 1992. Since WTMS(AM) was off the air   -without Commission authority during the entire period from August 23, 1991,  s4 -  -through April 10, 1992, and  73.1740 required Cavan to obtain Commission   -authority to keep WTMS(AM) silent during that period, it is concluded that Cavan  s4f -  g -violated  73.1740 for approximately eight continuous months by keeping WTMS(AM) silent without authority.  s4[-  -` ` 23. Cavan violated   73.1740 a third time during the months of   -February and March 1993. The evidence shows that on October 30, 1992, the   Z-Commission granted Cavan further authority to keep WTMS(AM) silent through   -January 30, 1993. However, Cavan did not request any additional authority for   9!-WTMS(AM) to remain silent until March 22, 1993. Moreover, the Commission did not   -grant Cavan's request for additional time to keep WTMS(AM) off the air until   9!-March 30, 1993. Since WTMS(AM) was off the air without Commission authority from  s4-  -January 30, 1993, until March 30, 1993, and   73.1740 required Cavan to obtain   g -Commission authority in order to keep WTMS(AM) silent during that period, it is  s4:-  9!-concluded that Cavan violated   73.1740 again, this time for two continuous months during which time the station was silent without authority.  s4/-  {-` ` 24. Cavan's fourth and most recent violation of  73.1740 occurred  s4-  g -between June 1993 and March 1994. The record evidence reveals that on March 30,   ,-1993, the Commission granted Cavan further authority to keep WTMS(AM) silent   -through June 30, 1993. After that authority expired, however, Cavan failed to   -request any additional authority for WTMS(AM) to remain silent. The station   -returned to the air on March 18, 1994. Since WTMS(AM) was off the air without   -Commission authority from June 30, 1993, until the station returned to the air  s4-  -on March 19, 1994, and 73.17  40 required Cavan to obtain Commission authority in   ,-order to keep WTMS(AM) silent during that period, it is concluded that Cavan  s4-  -violated  73.1740 yet again, this time for nine continuous months during which the station was silent without Commission authorization.  s4-  -` ` 25. Evidence concerning all of Cavan violations of   73.1740 is  s4-  9!-relevant despite the fact that the Show Cause Order makes specific reference only  s4Q-  -to Cavan's most recent transgression of that rule section. Show Cause Order,  s4-  9!-at   23. "It is well established that evidence relevant to the designated issues   -should not be excluded 'merely because it was not included among the specific  s4F!-  g -instances which warranted the hearing.'" Clay Frank Huntington, 61 FCC 2d 123,  s4!-  9!-124 (Rev. Bd. 1976), citing, Chronicle Broadcasting Co., 20 FCC 2d 33, 39 (1969);  s4"-  ,-Belk Broadcasting Co. of Florida, Inc., 27 FCC 2d 921 (Rev. Bd. 1971); WPIX,  s4;#-  9!-Inc., 25 FCC 2d 678 (Rev. Bd. 1970). Moreover, the Show Cause Order specifically  s4#-  -contemplated that evidence of Cavan's other, prior violations of  73.1740 should  s4$-  ,-be considered. The Show Cause Order, at   7, directed the Presiding Judge to   g -determine whether to issue an Order of Forfeiture against Cavan for its willful  s4%-  -and/or "repeated" violation of 73  .1740. It would render the reference to   -"repeated" superfluous if the only evidence that could be considered was  s4%'-  9!-evidence involving Cavan's single most recent violation of   73.1740. Furthermore,  s4'-  -evidence of Cavan's multiple violations of 7  3.1740 is relevant to determining the extent of any forfeiture directed against Cavan. "+-,,__6"Ԍ r5-   <   B.  Section 73.1750 Issue ĐlU ` ` Section 73.1750 of the Commission's Rules provides:  @-XThe licensee of each station shall notify the FCC in Washington,  @-D.C. of permanent discontinuance of operation at least two days  -before operation is discontinued. Immediately after discontinuance  @-of operation, the licensee shall forward the station license and  {-other instruments of authorization to the FCC, Washington, D.C. for cancellation.   s4--  {-lU` ` 26. The issue as to whether Cavan violated 7  3.1750 is resolved in   -Cavan's favor. Although the station was off the air for some two years, the   -evidence plainly reveals that WTMS(AM) has commenced broadcasting again. Indeed,   9!-Cavan obtained Special Temporary Authority to return WTMS(AM) to the air, and the   9!-licensee has filed an application on FCC Form 302, as required by the Commission.   g -The question as to whether Cavan permanently discontinued operating WTMS(AM) is   -adequately answered by the fact that Cavan has taken all necessary steps to make the station operational again.  r5 -  C. Resumption of Operation Issue ĐlU  s4Z-  M-   l U ` ` 27. Cavan does have the capability and intent to expeditiously resume broadcast operations of WTMS(AM) consistent with the Commission's Rules.   9!-Cavan has managed to return WTMS(AM) to the air on what appears to be a longterm   g -basis. Cavan obtained Special Temporary Authority prior to commencing broadcast   -operations, and it has filed an application on FCC Form 302. Furthermore, Cavan   -has entered into a Local Marketing Agreement with a company that itself has   -contracted for the broadcast of syndicated programming. Based on the foregoing,   ,-the issue as to whether Cavan has the capability and intent to expeditiously resume broadcast operations of WTMS(AM) will be resolved in Cavan favor.   s5-  <  IV.  Ultimate Conclusions ă   n-  ` ` 28. The ultimate question to be decided in this proceeding is   ,-whether, on the basis of the evidence adduced at hearing, Cavan's license to   -operate WTMS(AM) should be revoked. It is concluded that Cavan has the   -capability and intent to expeditiously resume broadcast operations of WTMS(AM)   9!-consistent with the Commission's Rules. Furthermore, it is concluded that Cavan  s4r-  9!-has not violated 7  3.1750 of the Commission's Rules. However, the facts plainly  s4-  -demonstrate that Cavan has repeatedly violated 73.1740 of the   Commission's   -Rules. Nevertheless, license revocation is not warranted for these transgressions.  s5-   -` ` 29. The Show Cause Order, at 7, directed that, if it is determined   -that revocation of the WTMS(AM) license is not warranted, the Presiding Judge  s5-  i-shall determine, pursuant to   503(b) of the Communications Act of 1934, as   g -amended, whether to issue an Order of Forfeiture against Cavan in an amount not  s4S-to exceed $250,000 for the willful and/or repeated violation of   73.1740 and/or   s4- 73.1740 of the Commission's Rules.  s4H!-  -` ` 30. Cavan has repeatedly violated 73.1  740 of the Commission's   -Rules, and the violations are wholly inexcusable. However, given Cavan's   g -difficult financial condition, the imposition of a substantial forfeiture could   Z-have a decidedly negative impact on the ability of the company to continue   -operating both its AM and FM stations in Presque Isle, Maine. It is concluded   -that the public interest will be served by the imposition of a forfeiture in the amount of $1,000.00. ` ` "'0*(( 2"Ԍ  M-` ` 31. Accordingly, IT IS ORDERED THAT Cavan Communications Corporation   -forfeit to the United States the sum of $1,000.00 for its repeated violations of  s=N-Section 73.1740 of the Commission's Rules. RLNB s=-ԍ/ In the event exceptions are not filed within (3) days after the release of this Initial Decision, and the Commission does not review the case on its own motion, this Initial Decision shall become effective fifty (50) days after its release pursuant to Section 1.276 (d) of the Commission's Rules.R/ ` ` ` `  hh,Vpp ` `  hh,VppFEDERAL COMMUNICATIONS COMMISSION ` `  hh,Vpp  ` `  hh,Vpp Edward Luton ` `  hh,VppAdministrative Law Judge