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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Uniradio Corp., ) File No. EB-04-SE-016
Holder of Permit to Transmit or ) NAL/Acct. No. 200532100003
Deliver ) FRN: 008982407
Programming to a Foreign
MEMORANDUM OPINION AND ORDER
Adopted: January 12, 2005 Released: January
By the Chief, Spectrum Enforcement Division, Enforcement
1. In this Memorandum Opinion and Order (``Order''),
we deny the petition for reconsideration of the Notice of
Apparent Liability for Forfeiture (``NAL'')1 filed by New
Inspiration Broadcasting Company (``NIBC''), licensee of
Station KRLA(AM), Glendale, California.2 The NAL proposed a
forfeiture in the amount of twenty five thousand dollars
($25,000) against Uniradio Corp. (``Uniradio'') for its
apparent willful and repeated violation of the terms and
conditions of its authorization under Section 325(c) of the
Communications Act of 1934, as amended (the ``Act'').3 The
NAL also dismissed as moot NIBC's petition to revoke
Uniradio's Section 325(c) permit.
2. Uniradio's Section 325(c) permit authorizes it to
transmit, from a facility in the United States, broadcast
programming, which will be received in the United States.4
Specifically, Uniradio's Section 325(c) permit authorizes it
to deliver Spanish language sports programming (San Padres
baseball games and related pre-game programming) to Station
XEMO, Tijuana, Mexico, and is expressly conditioned upon
Station XEMO's ``operation in full compliance with
applicable treaties and related provisions concerning
electrical interference to U.S. broadcast stations.'' The
NAL determined that Uniradio's transmittal of cross-border
programming apparently violated the express conditions of
its Section 325(c) permit because Station XEMO modified its
operations5 and those modifications were not coordinated
with and approved by the Commission's International Bureau
(``IB'') as required by the applicable 1986 U.S.-Mexico
treaty6 and were causing harmful interference to Station
KRLA(AM). The NAL further noted the recent completion of
the requisite coordination and approval process,7 and thus
dismissed NIBC's then-pending petition to revoke Uniradio's
Section 325(c) permit as moot.8
3. In its Petition, NIBC contends that the NAL
erroneously dismissed its initial petition to revoke
Uniradio's Section 325(c) permit. NIBC acknowledges that
Station XEMO has reduced its power levels to 5 kW and that
the process under the U.S.-Mexico treaty has been completed.
However, NIBC contends, and provides documentation to show,
that Station XEMO has yet to construct and thus operate a
technically coordinated and approved two-tower directional
antenna system.9 Because Station XEMO currently is
``operating with a different facility which has not been
notified to and accepted by the United States,'' NIBC
contends that Uniradio's Section 325(c) permit should be
4. In response,11 Uniradio characterizes NIBC's
contentions as speculative, which presupposes that that
since Station XEMO is not operating in compliance with the
coordinated technical parameters ``today,'' it will not do
so ``in the future.''12 According to Uniradio, Station XEMO
is ``ordering new broadcast equipment and arranging for the
construction of not one but two antennas'' and will bring
its facilities into full compliance by spring of 2005, the
commencement of baseball season, when Uniradio resumes its
transmittal of the San Padres games and related
5. Reconsideration of a final action is appropriate
where a petitioner either raises additional facts not
previously presented to the Commission and such facts had
not been known or had not existed, or demonstrates that the
Commission's consideration of the then known or existing
facts contained a material error or omission and the public
interest will be served by reconsideration.14
Reconsideration does not lie to re-address previously
considered facts and/or arguments.15
6. We find that NIBC's Petition neither raises new or
otherwise unknown facts nor demonstrates material error or
omission, which would warrant reconsideration. The NAL
noted and recognized the recent completion of the
coordination and approval process under the U.S. Mexico
treaty, which requires Station XEMO to construct a two-tower
directional antenna system at power levels of 10 kW
(daytime) and 7.5 kW (nighttime). Thus, implicit in the
NAL's recognition was the fact that Station XEMO would need
time to construct its new system and bring its operations
into compliance, and in the interim, would continue to
operate at the grandfathered, non-objectionable interference
power levels of 5 kW.
7. Under the circumstances, we believe that
disposition of Station XEMO's future non-compliance would be
premature and conjectural. However, in the event Station
XEMO fails to bring its facilities into compliance with
approved technical parameters when Uniradio resumes
transmittal of programming in spring of 2005, we may revisit
the matter at that time.
8. Accordingly, IT IS ORDERED that, pursuant to
Section 405 of the Act16 and Section 1.106 of the Rules,17
the Petition for Reconsideration filed by New Inspiration
Broadcasting Company of the October 20, 2004 Notice of
Apparent Liability for Forfeiture IS DENIED.
9. IT IS FURTHER ORDERED that a copy of this
Memorandum Opinion and Order shall be sent by first class
mail and certified mail return receipt requested to Gustavo
Enrique Astiazaran, President, Uniradio Corp., 5030 Camino
De La Siesta, Suite 403, San Diego, California 92108, to
counsel for Uniradio Corp., Mark Del Bianco, Esq., 3929
Washington Street, Kensington, Maryland 20895, and to
counsel for New Inspiration Broadcasting Company, Inc., Ann
Bavender, Fletcher, Heald & Hildreth, PLC, 1300 North 17th
Street, 11th Floor, Arlington, Virginia 22209-3801.
Joseph P. Casey
Chief, Spectrum Enforcement
1Uniradio Corp., 19 FCC Rcd 19933 (Enf. Bur., Spectrum Enf.
Div. 2004) (``NAL'').
2Petition for Reconsideration (filed November 14, 2004)
(``Petition''). Prior to filing the Petition, NIBC
informally requested that the NAL be set aside. See
Letter from James. P. Riley, Esq. to Marlene H. Dortch,
Secretary, Federal Communications Commission (filed October
27, 2004) (``NIBC Letter'').
347 U.S.C. § 325(c).
4File No. 325-NEW-20030527-00005 (granted July 16, 2003).
5In this connection, the NAL found that Station XEMO had
modified its operations by increasing its power levels and
relocating its transmitter site, and that at the time
Uniradio applied for and was granted its Section 325(c)
permit, it knew or should have known that the station's
operations had been modified given Uniradio's apparent
control of and relationship to Station XEMO. See NAL at ¶
7 and note 21.
6Agreement Between the Government of the United States of
America and the Government of the United Mexican States
Relating to the AM Broadcasting Service in the Medium
Frequency Band, 1986.
7NAL at ¶ 9. The completion of the requisite process,
however, did not mitigate Uniradio's past apparent
violations of the terms and conditions of its Section
325(c) permit. Id.
8Id. at ¶ 17.
9See Petition at 3; see also NIBC Letter (attaching
statement of consulting engineer attesting to, and
photographs depicting, Station XEMO's continued operation
of a single tower, non-directional antenna system. .
10Petition at 9. Alternatively, NIBC requests that the
portion of the NAL dismissing NIBC's petition to revoke be
set aside, that Uniradio be notified that its Section
325(c) permit will be revoked if it resumes delivering
programming to Station XEMO before the station constructs
and operates its facility as ``notified to and accepted by
the U.S.'' pursuant to the applicable U.S.-Mexico treaty,
and that Uniradio be required to file monthly reports
documenting Station XEMO's progress toward approved
construction and operations. Id. at 10.
11See Response to Petition (filed December 20, 2004)
(``Response''); see also Response to NIBC Letter (filed
November 10, 2004) (``Response Letter''). NIBC contended
that Uniradio's Response should be ignored as informal and
untimely, and ``[a]ccordingly, [NIBC's] Petition must be
deemed unopposed and granted.'' See Reply to Informal
Response for Reconsideration of Notice of Apparent
Liability (filed December 21, 2004). We are considering
Uniradio's Response, which was served on on NIBC but
untimely filed under 47 C.F.R. § 1.106(g), as an informal
objection to NIBC's petition.
12Response Letter at 2. See also Response at 2.
13See Response at 2.
14See 47 C.F.R. § 1.106(c)(1), (2); see also WWIZ, Inc., 37
FCC 685, 666 ¶¶ 2-3 (1964); aff'd sub nom., Lorain Journal
Company v. FCC, 351 F.2d 825 (D.C. Cir. 1965), cert.
denied, 383 U.S. 967 (1966), rehearing denied, 384 U.S. 947
15See WWIZ, Inc., 37 FCC at 686 ¶ 3.
1647 U.S.C. § 405.
1747 C.F.R. § 1.106.