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A. 1. a.(1)(a) i) a) 1. 1. 1. a.(1)(a) i) a)#&J\  P6Q&P#"i~'^5>g\\>>>\g0>03\\\\\\\\\\>>ggg\yyrF\yrgyy>3>j\>\gQgQ>\g3>g3g\ggQF>g\\\QI(I_>0_j>>>0>>>>>>\>g3\\\\\QyQyQyQyQD3D3D3D3g\\\\gggg\\g\\\\pg\\\QQ_QyQyQyQyQ\\\_\gjF3FgF>Fgg__gy3ySy>yIy3ggg\\QQQgFgFgFg_y^y>yjgggggg_yQyQyQgy>ggFy>\0\\=2=WxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNBnnBa\>\\\\\\7>\7>\7>>\\\??n\\pBnnBsgg>\\7"yyyy\nlc\gnn\"i~'^ %,77\V%%%7>%7777777777>>>0eOIIOD>OO%*ODaOO>OI>DOOgOOD%%37%07070%777V7777%*77O77055;%;3%%%%%%%%%%%7O0O0O0O0O0aHI0D0D0D0D0%%%%O7O7O7O7O7O7O7O7O7O7O0O7O6O7O7O7>7O0O0O0I0I0I;I0OED0D0D0D0O7O7O7O;O7O;O7%%7%%%7M>;;O7DD,D%D%DO7AO7O7O7O7aOI%I%I%>*>*>*>;D.DD3O7O7O7O7O7O7gOO;D0D0D0O7D%O7>*D%O7E77%%WMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN(BB(37%07777j7#TT7!#TT7T!%%007n&&Bn77lCTn(nBB(A\\>>n%07\n!"IIIITTenn7TnB@;7>lBBn72CKS ZKFZ"i~'^"(22TN"""28"2222222222888,\HBBH>8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""""2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""M\\>>>\}0>03\\\\\\\\\\>>}}}\rryrr>Qygyrr\grrggF3FM\>\\Q\Q3\\33Q3\\\\FF3\QyQQFI3Ic>0cM>>>0>>>>>>\>\3r\r\r\r\r\yyQrQrQrQrQ>3>3>3>3y\\\\\\\\\gQr\\\\gQ\r\r\r\r\yQyQycyQnrQrQrQrQ\\\c\c\>3>\>>>\\ccyQg3gBg>g;g3y\jy\y\\\yrFrFrF\F\F\FccgBg3gM\\\\\\ygcgFgFgF\g>y\\Fg>g\n0\\=(=WddddddddddddddddddddddddddddddddddddddddNBnnB_\F\\\\\\3;\7;\7>>gg\??n\\pBnnBb\\>g\7"yyyy\njc\}nn\2u X   -> S'  #&J\  P6Q&P#Federal Communications Commission`(#ODA 991328 ă   yx}dddy -[Federal Communications Commission HAWashington, D.C. 20554 ` `  hhCqpp  *In reply refer to: ` `  hhCqpp  *1800C1KMS ` `  hhCqpp  *98060071 e &I July 6 &I , 1999   S'\` `  hhCqpp Released: July 7, &I  1999 CERTIFIED MAIL RETURN RECEIPT REQUESTED   Aurio A. Matos Permittee, Station WXZX(FM), Culebra, Puerto Rico P. O. Box 847 Mayaguez, PR 006810847 Dear Permittee:  "EThis letter constitutes a NOTICE OF APPARENT LIABILITY FOR A FORFEITURE pursuant  xto Section 503(b) of the Communications Act of 1934, as amended (the "Act"), for violations of Section  Sk' x319(c) of the Act (construction permits), Sections 73.1620` k5 yO'ԍ Section 73.1620 of the Commission's Rules provides, in pertinent part, that: "(a) Upon completion of construction of an AM, FM, or TV station in accordance with the terms of the construction permit, the technical provisions of the application, the rules and regulations and the applicable engineering standards, program tests may be conducted . . . .  (b) the Commission reserves the right to revoke, suspend, or modify program tests by any station without right of hearing for failure to comply adequately with all terms of the construction permit or the provisions of Sec. 73.1690(c) for a modification of license application, or in order to resolve instances of interference. The Commission may, at its discretion, also require the filing of a construction permit application to bring the station into compliance with the Commission's rules and policies." п (program tests) and 73.1125` k 5 yO'Ѝ Section 73.1125 of the Commission's Rules provides, in pertinent part, that: "(a) Each AM, FM and TV broadcast station shall maintain a main studio within the station's principal community contour . . . .  yO"' (b)(2) Written authority to locate a main studio outside a station's principal community  (#(#contour for the first time must be obtained from [the FCC] before the studio may be moved to that location. . . . Authority for these changes may be requested by filing a letter with an explanation of the proposed changes with the appropriate division. Licensees or permittees should be aware that the filing of a letter request for written authority to locate the main studio outside the principal community contour does not imply approval of the relocation request, because each request is addressed on a casebycase basis. . . ."  (station main  xstudio location) of the Commission's Rules. This action is taken under authority delegated to the Chief, Mass Media Bureau, pursuant to Section 0.283(c)(3) of the Commission's Rules.", * *,,j"Ԍ "ԙInformation contained in your license application (File No. BLH980413KC) indicates that Station  x&WXZX(FM) began operations, pursuant to program test authority, on a channel not authorized by the  xCommission. In that application, you also indicated that Station WXZX(FM)'s main studio is not located  xwithin the city of license or predicted city grade contour of the station, as required by the Commission's main studio rule and policy.  S'f,Background  S'\  "hBy the administrative law judge's November 4, 1993, ruling in MM Docket 9389, you were  xQawarded a permit to construct a station to operate on Channel 293A and serve Culebra, subject, however,  S' xto the ultimate outcome of the ongoing consolidated proceeding in MM Docket No. 91259. See Initial  S' xDecision, 8 FCC Rcd 7920, 7921 (November 4, 1993). Subsequently, the Commission modified the  x^allotment to substitute Channel 254A for Channel 293A, and you were ordered to amend your outstanding  Si ' xapplication (File No. BPH911114MS) to specify Channel 254A. See Report and Order in MM Docket  S6 ' x7No. 91259, 10 FCC Rcd 6673 (June 22, 1995), recon. denied, 11 FCC Rcd 16392, app. for rev. denied   x(FCC 99147), ___ FCC Rcd ___ (June 21, 1999). Thereafter, on August 28, 1997, you filed a  x@modification application to effectuate that channel substitution (File No. BMPH970828IB), and a new  xpermit was granted by the Commission on December 9, 1997. Efforts to construct the facility ensued,  xand on April 8th and April 13, 1998, you filed, respectively, a notice pursuant to Section 73.1620 of the  xCommission's Rules, and a license application (File No. BLH980413KC), which indicated that you had  x"commenced station operations under program test authority but had done so "on Channel 293A as  xgauthorized in BPH91114MS . . . ," and not on Channel 254A, as ordered by the Commission. In your  xlicense application, you also stated that Station WXZX(FM)'s main studio "is not located within the city  xRof license or predicted city grade contour of the station," as required by Section 73.1125 of the  xDCommission's Rules, but submitted that you would seek waiver of the rule to locate the studio in Fajardo,  S'Puerto Rico. / yOm'Ѝ#C\  P6QP#Specifically, your response to Question 17 of FCC Form 302FM indicates that the station's main studio is located at Santiago Iglesias Pantin Avenue, #163, Fajardo, Puerto Rico.   "JBy letter dated May 29, 1998, the Mass Media Bureau ("Bureau") dismissed your license  xapplication because the station's construction had not been completed in accordance with the terms  xauthorized under the construction permit for Channel 254A, and ordered that you immediately cease  S' xoperations with the facilities constructed on Channel 293A. Letter from Assistant Chief, Audio Services  S' x"Division, Mass Media Bureau, to Scott C. Cinnamon, Esq. (WXZX(FM)), May 29, 1998 ("Bureau  Sm' xLetter"). The Bureau further noted that Channel 293A was no longer available because operation on that  xchannel would cause objectionable interference to Station WVIS(FM), Vieques, Puerto Rico, whose  S' xcfacilities had been modified. / yO 'ԍ#C\  P6QP# See Bureau Letter, supra, at footnote 3; File No. BPH970116IF. Thereafter, on June 26, 1998, you amended the license application to  x7specify operation on Channel 254A, in compliance with Section 73.1620 of the Commission's Rules. We  xIinquired concerning these matters by our letter of July 10, 1998, and you submitted responses and supplements dated July 22, 1998, August 6, 1998, and August 18, 1998.  S 'i\DiscussionĐ\  S!' "cUnauthorized operation. Section 73.1620 of the Commission's Rules, supra, provides, in pertinent  xxpart, that program tests may be conducted by permittees, upon appropriate notice to the Commission, and"p",l(l(,, #"  x*that the facilities tested must have been built in accordance with the terms of the construction permit and  xthe relevant technical rules. In response to our inquiry of July 10, 1998, you indicate that the station  xbegan operating on Channel 293A on April 7, 1998, and ceased operating on June 1, 1998, immediately  xupon the receipt of the Bureau's order and license dismissal letter. You argue that, at the time the license  x<application was filed, your operation of WXZX(FM) on Channel 293A was not improper, and was  xundertaken in "good faith" because the rulemaking proceeding which proposed changing your authorized  x/frequency from Channel 293A to Channel 254A was not yet final, pending appeal. Moreover, you  xcontend that before you began operating on Channel 293A, you "made certain" that the operation would  xnot cause interference with any other operating station. Alternatively, you contend that because  S5' xWVIS(FM) has since "elected to return to its preR&O operations," WXZX(FM)'s brief operation on Channel 293A, even if unauthorized, created no cognizable harm to any other broadcaster.  "8A broadcast station must be constructed substantially as set forth in its permit in order to avert  Sj ' xxair navigation hazards and avoid interference to other broadcast stations. See Sections 319(c) of the Act,  S7 ' x}and 73.1620 of the Commission's Rules, supra; Liability of Equivox, Inc., 87 FCC 2d 1099 (1981).  S ' xOtherwise, the station is subject to revocation of license or permit, or imposition of a forfeiture. See Secs.  x312(a)(2), 319(c); and 503(b)(1)(A) of the Act. At the time you constructed Station WXZX(FM), you  xwere specifically authorized to construct on Channel 254A, not Channel 293A. The existence of an appeal  xVof the channel change was not a legitimate reason for you to have concluded that construction and  x7operation on Channel 293A could be properly commenced prior to receipt of the appropriate Commission  xauthorization. Therefore, it appears that from April 7, 1998, until June 1, 1998, you were in violation of  xSection 319(c) of the Act and Section 73.1620 of the Commission's Rules by constructing and operating  xfacilities that deviated from those described in the underlying permit, without first obtaining Commission  x3authorization or consent for modification. In prior cases, the Commission has assessed forfeitures of  xM$20,000.00 for unauthorized operations, under circumstances where the facilities actually constructed  S' xvaried substantially from those specified in the applicable authorization. See Liability of Metro Program  S' xQNetwork, Inc., 5 FCC Rcd 2940 (1990); Liability of Triad Broadcasting Company, Inc., 96 FCC 2d 1235  S' x(1994); and Liability of Equivox, Inc., supra. In these instances, the Commission emphasized the potentially serious hazards to air navigation and radio interference created by the unauthorized operations.  "uIn this case, we note that the facilities built on Channel 293A, while utilizing an unauthorized  x*frequency, appear to have been otherwise consistent with the technical parameters set forth in the permit  xfor Channel 254A, and that no air hazard was created through either the construction or operation of the  xnonconforming facility. Furthermore, we recognize that WXZX(FM)'s unauthorized operation on Channel  x293A was fully disclosed to the Commission. We nevertheless find that your construction and operation  xof Station WXZX(FM) on the wrong frequency was serious in nature. You willfully chose to construct  xand operate on the wrong channel with full knowledge that a frequency change had occurred, and, in so  xydoing, threatened the Commission's orderly administration of a lengthy and complex rulemaking  S<' xproceeding. Moreover, the duration of the violation, two months, was not insubstantial.</ yO!'Ѝ See, e.g., Liability of Equivox, supra ($20,000 forfeiture warranted where, among other factors, unauthorized operation occurred over two and onehalf month period). Finally, as to  xyour claim you did not cause interference or harm, it is noted that Station WVIS(FM) was able to avoid  S ' xglicense cancellation by restoring its broadcast operation in a timely mannerc / yO%'ԍ See Bureau Letter, supra, at footnote 3.c through to its own efforts,  x3notwithstanding the temporary preclusion caused by your unauthorized construction and operation on  xChannel 293A. Lack of interference and WVIS(FM)'s ability to resume broadcasting are not factors"p",l(l(,, #" mitigating the instant violation.  Sg' "VIn determining the appropriate forfeiture amount, we note that the Report and Order "In the Matter  xof the Commission's Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to  S' xIncorporate the Forfeiture Guidelines," 12 FCC Rcd 17087 (July 28, 1997) ("Forfeiture Policy Statement"),  xprovides for a forfeiture of $4,000.00 as the base amount for the willful or repeated use of an  xunauthorized frequency. In the instant case, we believe that this amount must be increased to reflect the  xfull circumstance in which the violation arose, as discussed above, and in view of similar cases involving  ximproper operation stemming from unauthorized station construction. In view of the foregoing, we believe  S' xthat a forfeiture of $7,500.00 is appropriate. Cf. Liability of Rasa Communications Corp., (MMB, October  x16, 1996) (forfeiture of $7,500 for unauthorized operation imposed where deviations were minor, promptly disclosed to the FCC, and quickly rectified by the permittee).  S6 ' "Main studio. At the time you constructed Station WXZX(FM), you also built and used a main  xstudio in Fajardo that was outside the station's community of license, Culebra, or the station's principal  xDcommunity contour. You believed that the use of the main studio in Fajardo would prove consistent with  xthe rule because "by using [an] alternative propagation showing that is allowed under the FCC rules, [it  xZmight be shown] that the Fajardo studio site was actually within the city grade contour of the station."  xDYou concede that the results of the alternative propagation showing, however, ultimately failed to support  S' xthat contention./ yOm'Ѝ Subsequent to ceasing station operations on June 1, 1998, you located a conforming site in Culebra that you intended to utilize while seeking a main studio waiver. Finally, in a supplementary pleading, you submit that, due to the Commission's recent  xxamendment of its main studio rule, WXZX(FM)'s Fajardo site now complies with the Commission's rules,  S' xand the need for waiver is moot. / yO_' x Ѝ The amended rule allows stations to locate their main studios at any location that is within either the principal  xH community contour of any station, of any service, licensed to its community of license or 25 miles from the reference  yO' x& coordinates of the center of its community of license. See Report and Order, "In the Matter of Review of the  xo Commission's Rules Regarding the Main Studio and Local Public Inspection Files of Broadcast Television and Radio  yO'Stations," 13 FCC Rcd 15691 (1998), recon. granted in part, denied in part (FCC 99118) (May 28, 1999).  You urge that we consider this new development in our evaluation of your compliance with the Commission's main studio rule.  "While accepting this explanation as true, we cannot ignore that Section 73.1125 of the  S' xCommission's Rules, supra, in effect at the time of the violation, specifically requires that FM permittees  xmust construct their main studios within the station's principal community contour, or at a collocated main  xstudiotransmitter site of a commonlyowned AM station licensed to the same principal community, or the  xcommunity to which the station is licensed to serve, at a point situated outside the principal community  x*contour, or when good cause exists for construction elsewhere, and prior express authorization has been  S' xobtained. See Report and Order "In the Matter of Amendment of Sections 73.1125 and 73.1130 of the  S' xCommission's Rules, the Main Studio and Program Origination Rules for Radio and Television Broadcast  xStations," 2 FCC Rcd 3215 (1987). In this case, you concede, and the record demonstrates, that a prior  x7waiver to locate the main studio in Fajardo was not secured. We recognize that the Commission recently  xgamended its main studio rule. However, even if the Commission's recent amendment has rendered the  xFajardo site acceptable without the need for a prospective waiver, that development does not nullify the  S' xapparent violation that occurred prior to the effective date of the new main studio rule. / yO''Ѝ See Report and Order, supra, para. 63. The new rule became effective on October 30, 1998. Consequently,"` ,l(l(,,*"  x it appears that you violated the main studio rule on a continuing basis from April 7, 1998 until June 1,  S' x1998. In this connection, the Forfeiture Policy Statement, supra, provides for a forfeiture of $7,000.00  xas the base amount for willful or repeated violation of the main studio rule. Accepting as true your claim  Sg' xthat the Fajardo site complies with the amended main studio rule, g/ yO'Ѝ While we assume that your contention is correct, your submission provided no information enabling us to determine whether the Fajardo site actually complies with the amended rule. and upon consideration of the full  xgcircumstances of the instant violation, we believe that the base forfeiture amount is sufficient, and that further increase is unwarranted.  Sh'l  Sanctions \  "In view of the above, pursuant to Section 503(b) of the Communications Act of 1934, as amended,  xyou, Aurio A. Matos, are hereby advised of your apparent liability for a forfeiture of Fourteen Thousand  x/Five Hundred Dollars ($14,500.00) for your willful and repeated violation of Section 319(c) of the  xCommunications Act of 1934, as amended, and Sections 73.1620 and 73.1125 of the Commission's Rules,  xZon the dates specified above. In regard to this forfeiture, you are afforded a period of thirty (30) days  xfrom the date of this Notice "to show, in writing, why a forfeiture penalty should not be imposed or pay  xZthe forfeiture. Any showing as to why the forfeiture should not be imposed or reduced shall include a  xtdetailed factual statement and such documentation and affidavits as may be pertinent." 47 C.F.R. Sec. 1.80(f)(3). Other relevant provisions of Section 1.80 are summarized in the attachment to this Notice. ` `  hhCFEDERAL COMMUNICATIONS COMMISSION ` `  hhCRoy J. Stewart ` `  hhCChief, Mass Media Bureau cc: Scott Cinnamon, Esq. J. Richard Carr, Esq. Vincent J. Curtis, Esq. John P. Bankson, Jr., Esq. James L. Oyster, Esq.  Sm'