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Before the
Federal Communications Commission
Washington, D.C. 20554
In re )
)
Family Broadcasting, Inc. ) EB Docket No. 01-39
)
Order to Show Cause Why the Licenses for )
Stations WSTX(AM) and WSTX-FM, )
Christiansted, U.S. Virgin Islands, )
Should Not Be Revoked )
ORDER TO SHOW CAUSE AND NOTICE OF OPPORTUNITY FOR HEARING
Adopted: February 8, 2001 Released: February 13,
2001
By the Commission:
I. INTRODUCTION
1. In this Order to Show Cause and Notice of Opportunity
for Hearing (``Order''), we commence a hearing proceeding to
determine whether the licenses held by Family Broadcasting,
Inc. (``Family'') for Stations WSTX(AM) and WSTX-FM,
Christiansted, U.S. Virgin Islands, should be revoked. The
evidence before us suggests that Family has willfully and
repeatedly violated the Commission's rules and misrepresented
facts to and/or lacked candor with the Commission.
Accordingly, we believe that an evidentiary hearing is
warranted to determine the extent to which Family has violated
the Commission's rules and to determine whether Family is
qualified to be and remain a Commission licensee.
II. BACKGROUND
2. Station WSTX(AM) is authorized to operate with 5
kilowatts daytime power and 1 kilowatt nighttime power and an
antenna height above ground level of 106.5 meters from a site
at Fort Louise Augusta in Christiansted, U.S. Virgin Islands.
The geographic coordinates of the Fort Louise Augusta site are
17°45'23'' North latitude and 064°41'38'' West longitude.
Station WSTX-FM is authorized to operate with 50 kilowatts
effective radiated power and an antenna height above ground
level of 41 meters from a site at Blue Mountain in
Christiansted. The geographic coordinates of the Blue
Mountain site are 17°45'20'' North latitude and 064°47'55''
West longitude. The stations share a common main studio at
Fort Louise Augusta.
3. On February 13, 1995, an agent from the FCC's San Juan,
Puerto Rico Office (``San Juan Office'') visited WSTX-FM's
authorized transmitter site at Blue Mountain. The site
manager told the agent that Family had been evicted from the
Blue Mountain site due to nonpayment of rent; that the site
manager had filed an action in court and received a court
order authorizing him to keep the FM transmitter unless and
until Family paid the rental monies owed; and that WSTX-FM had
been off the air since October 15, 1994, when the site manager
cut the power to the FM transmitter. On August 16, 1995, the
Mass Media Bureau sent a letter of inquiry (``LOI'') to Family
which noted that FCC records did not reveal any request for
special temporary authority (``STA'')1 to discontinue
operations at WSTX-FM or any notification that WSTX-FM had
resumed operations and requested that Family clarify its
operational status within 30 days.2 Family did not respond to
this LOI. In an amendment to its December 4, 1995, license
renewal application,3 Family stated that WSTX-FM had
experienced ``severe problems with equipment because of its
close proximity and exposure to the sea, and has therefore
been on and off the airwaves intermittently. To add to this
difficulty has been renegotiations relative to the lease for
the location of the FM transmitter.'' Family stated that it
had therefore decided that application should be made to the
Commission to relocate WSTX-FM's transmitter. No such
application was ever filed with the Commission. On May 30,
1996, the Mass Media Bureau designated the renewal application
for WSTX-FM for hearing to determine whether Family had the
capability and intent to resume the broadcast operations of
WSTX-FM.4 On December 6, 1996, in response to a joint request
by Family and the Mass Media Bureau, the Administrative Law
Judge (``ALJ'') issued an order suspending all procedural
dates in the hearing proceeding to afford Family a final
opportunity to resume operation of WSTX-FM.5 Family returned
WSTX-FM to the air on January 18, 1997. On June 18, 1997, the
ALJ issued a summary decision terminating the hearing
proceeding and granting the license renewal application for
WSTX-FM.6
4. On August 19, 1997, an agent from the San Juan Office
conducted an on-site inspection of WSTX(AM) and WSTX-FM. Mr.
G. Luz A. James, the principal owner and president of Family,
accompanied the agent during the inspection. During the
inspection, the agent found no public inspection file and no
station logs available for review. The agent also found that
there was no Emergency Alert System (``EAS'') equipment
installed at the stations. In addition, the agent observed
that both stations were operating substantially at variance
from the terms of their authorizations. WSTX-FM's transmitter
was operating from the Fort Louise Augusta site, instead of
its authorized Blue Mountain site. Both stations were
operating with reduced power and with unauthorized antennas.
WSTX-FM was operating with 100 watts power transmitting from a
one-bay antenna with a height of approximately 50 feet above
ground level, and WSTX(AM) was operating with 2.8 kilowatts
power transmitting from a 110-foot antenna tower. Moreover,
the AM antenna tower did not have adequate fencing to prevent
the public from accessing the radiator. Mr. James was unable
to provide any STAs authorizing operation of the stations at
variance from the terms of their authorizations. In a letter
dated August 25, 1997, the San Juan Office advised Family of
the violations and also advised Family of the need to request
STA to operate at variance from the terms of its station
authorizations. The letter directed Family to submit a report
of actions taken to correct the violations within ten days and
notified Family that the stations would be reinspected at a
later date. Family did not respond to the August 25, 1997,
letter.
5. An agent from the San Juan Office conducted a follow-up
inspection of WSTX(AM) and WSTX-FM on December 4, 1997. Mr.
James again accompanied the agent during the inspection. The
agent observed that EAS equipment had been purchased for the
stations, but had not yet been installed. The agent also
observed that both stations were operating at the same reduced
power levels and with the unauthorized antennas observed
during the previous inspection and that WSTX-FM's transmitter
was operating from the Fort Louise Augusta site. Although a
fence surrounding the AM antenna tower was under construction,
public access to the AM antenna tower was still possible.
Family did not have STA to authorize operation of the stations
at variance from their authorizations. On December 8, 1997,
the San Juan Office issued to Family two separate Notices of
Violations (``NOVs''), one for the violations pertaining to
WSTX(AM) and one for the violations pertaining to WSTX-FM.
The NOVs directed Family to file responses describing what
actions had been taken to correct the violations within ten
days and warned Family that failure to respond would
constitute a violation of the Commission's rules. Family did
not respond to the December 8, 1997, NOVs.7
6. On April 23, 1998, Commission staff sent two LOIs to
Family, one pertaining to violations at WSTX(AM) and one
pertaining to violations at WSTX-FM as observed during the
August 19, 1997, and December 8, 1997, inspections. The LOIs
requested that Family provide responses indicating what steps
had been taken to bring the stations into compliance with the
Commission's rules. Family responded to the LOIs on May 28,
1998. Regarding WSTX-FM, Family stated that the FM
transmitter and tower had been destroyed during Hurricane
Marilyn in September 1995. Family indicated that it was in
the process of purchasing a 30 kilowatt transmitter for WSTX-
FM ``within the next four months.'' Family further indicated
that because the cost of constructing at the authorized Blue
Mountain site was ``prohibitive,'' particularly since the site
was rented, ``it became prudent to use our own site.''
Regarding WSTX(AM), Family stated that the station was
restricted from operating at its authorized power because its
antenna tower, which had been damaged during Hurricane
Marilyn, was now only 110 feet in height. Family did not
indicate whether it was taking any steps to enable WSTX(AM) to
operate at its authorized power. Finally, Family stated that
a fence had been erected around the AM antenna tower.
7. An FCC agent from the San Juan Office conducted another
on-site inspection of WSTX(AM) and WSTX-FM on September 28,
1998. Barbara James-Petersen, General Manager and daughter of
Family's principal owner/president, accompanied the agent
during this inspection. The agent found that the stations'
EAS equipment was installed but was not operational at the
time of the inspection. Additionally, both stations were
operating at the same reduced power levels and with the
unauthorized antennas observed during the previous two
inspections, and the FM transmitter was operating from the
Fort Louise Augusta site, rather than its authorized Blue
Mountain site. There was a chain link fence around WSTX(AM)'s
antenna tower, but the fence had an opening which permitted
access to the radiator. Mr. James appeared briefly during the
inspection to show the agent various documents which
purportedly demonstrated that he was taking steps to resolve
the stations' low power problems. However, none of the
documents presented by Mr. James indicated that the equipment
needed to comply with the terms of the station authorizations
had been purchased or placed on order.
8. On April 13, 2000, an agent from the San Juan Office
conducted another on-site inspection of WSTX(AM) and WSTX-FM.
Ms. James-Petersen accompanied the agent during the
inspection. The agent found no public inspection files or
station logs available for review at the stations' main
studio. Additionally, the agent observed that the stations'
EAS equipment was inoperable and that the stations had no EAS
Handbook. The agent further observed that both stations were
still operating at variance from the terms of their
authorizations. WSTX-FM's transmitter was operating from the
Fort Louise Augusta site, rather than its authorized Blue
Mountain site. WSTX-FM was operating with 100 watts power
using a one-bay antenna with a height of approximately 20 feet
above ground level, and WSTX(AM) was operating with 325 watts
power using a long-wire antenna. Access to the long-wire
antenna feed was possible through the same opening in the
chain link fence observed during the September 28, 1998,
inspection. Ms. James-Petersen indicated that WSTX(AM) had
been using the long-wire antenna as an emergency antenna since
December 1, 1999, because Hurricane Lenny destroyed the
station's previously existing antenna tower on November 17,
1999. Ms. James-Petersen was unable to provide any STAs to
authorize operation of the stations at variance from the terms
of their authorizations.
9. A search of Commission records revealed that, as of
April 17, 2000, no STAs had been issued to Family to permit
operation of the stations at variance from the terms of their
authorizations. On May 1, 2000, the San Juan Office issued to
Family two separate NOVs for the violations observed during
the April 13, 2000, inspection, one for the violations
pertaining to WSTX(AM) and one for the violations pertaining
to WSTX-FM. The NOVs directed Family to provide a written
response to the San Juan Office containing a statement of the
specific actions taken to correct the violations and to
preclude their recurrence. The NOVs also directed Family to
provide specific dates for completion of corrective action for
any violations not corrected at the time of Family's response.
The NOVs warned Family that failure to respond would
constitute a violation of the Commission's rules. Family did
not respond to the May 1, 2000, NOVs.8
10. On May 15, 2000, Family filed STA requests for WSTX(AM)
and WSTX-FM with the Mass Media Bureau's Audio Services
Division (``ASD''). In the STA request for WSTX(AM), Family
requested authority to operate WSTX(AM) with an emergency
antenna. Family stated that Hurricane Lenny caused extensive
damage to WSTX(AM)'s antenna tower on November 18, 1999, and
that it had been operating WSTX(AM) with a long-wire antenna
since that time. By letter dated June 12, 2000, ASD granted
Family STA to operate WSTX(AM) with an emergency long-wire
antenna with reduced power9 until December 12, 2000.10 ASD
found that the STA request, although untimely, otherwise met
the requirements of Section 73.1680 of the Commission's Rules
(``Rules'') regarding use of emergency antennas.11 However,
ASD stated that the STA granted for WSTX(AM) did not cover the
period between November 18, 1999, and June 12, 2000, and is
``without prejudice as to whatever action the Commission may
take with respect to any unauthorized or improper operation of
Station WSTX(AM).''
11. In the STA request for WSTX-FM, Family requested
authority to relocate WSTX-FM from its authorized Blue
Mountain site and to operate it with an emergency antenna.
Family stated that Hurricane Lenny caused extensive damage to
WSTX-FM on November 18, 1999. Family further stated that
because of the damage to WSTX-FM's tower, studio-to-
transmitter link and transmitter, which were located on the
top of Blue Mountain, it immediately decided to relocate WSTX-
FM's transmitter and antenna to a site at Fort Louise Augusta
adjacent to where WSTX(AM) is located. Family also provided
the ``new'' geographic coordinates for WSTX-FM's transmitter
site, which were identical to the coordinates for WSTX-AM's
authorized site. By letter dated June 12, 2000, ASD granted
Family STA to operate WSTX-FM's transmitter at the Fort Louise
Augusta site and to operate WSTX-FM with an emergency antenna
at 100 watts of power until December 12, 2000.12 Based on
Family's claim that it relocated WSTX-FM's transmitter from
its authorized site as a result of damage caused by Hurricane
Lenny, ASD found that Family's STA request satisfied its
criteria for a temporary change in transmitter site. In this
regard, ASD noted that STA requests which involve a change in
transmitter site must include four critical elements: (1)
Loss of the licensed site must be beyond the licensee's
control; (2) STA facilities must continue to provide service
to the licensed community; (3) STA facilities must maintain,
as close as practicably possible, the licensed service area
without extending it; and (4) STA facilities cannot involve
the construction of towers intended for permanent use of the
station requesting the STA. ASD also determined that, apart
from being untimely, the STA request met the requirements of
Section 73.1680 regarding use of emergency antennas.13 As
with the STA granted for WSTX(AM), ASD stated that the STA
granted for WSTX-FM did not cover the period between November
18, 1999, and June 12, 2000, and is ``without prejudice as to
whatever action the Commission may take with respect to any
unauthorized or improper operation of Station WSTX-FM.''
12. The Enforcement Bureau sent a LOI to Family on July 19,
2000, in order to obtain answers to questions raised by
Family's claim in the May 15, 2000, STA request for WSTX-FM
that it relocated WSTX-FM's transmitter from its authorized
site at Blue Mountain to the Fort Louise Augusta site as a
result of damage caused by Hurricane Lenny on November 18,
1999. The LOI noted that information before the Commission
indicates that Family has operated WSTX-FM's transmitter at
the Fort Louise Augusta site since at least 1997 and advised
Family that the Commission views misrepresentation of facts by
a licensee as a serious matter. The LOI directed Family to
respond to questions concerning: (a) the earliest and most
recent date on which Family operated WSTX-FM's transmitter at
its authorized site at Blue Mountain; (b) the date on which
Family relocated WSTX-FM's transmitter from its authorized
Blue Mountain site to the Fort Louise Augusta site; (c) the
reason why Family relocated WSTX-FM's transmitter from its
authorized Blue Mountain site to the Fort Louise Augusta site;
(d) whether Family currently holds a lease for its authorized
Blue Mountain site and, if not, the circumstances surrounding
the termination of the lease; and (e) any steps Family has
taken to return WSTX-FM's transmitter to its authorized Blue
Mountain site. Family did not respond to this LOI.14
III. DISCUSSION
13. The circumstances described above raise serious
questions as to whether Family is qualified to be and remain a
Commission licensee. It appears that Family may have
misrepresented facts to and/or lacked candor with the
Commission regarding its relocation of WSTX-FM's transmitter
from its authorized site. Furthermore, it appears that, by
repeatedly failing to respond to official Commission
correspondence and inquiries, Family has exhibited a pattern
of evasiveness which calls into question its willingness to
deal truthfully with the Commission. Finally, it appears that
Family has operated both WSTX(AM) and WSTX-FM substantially at
variance from the terms of their authorizations for
approximately four years and has committed numerous other
violations of the Commission's rules, including violations
which raise public safety concerns. The seriousness and
duration of these violations, coupled with Family's failure to
take corrective action despite repeated warnings from
Commission staff, suggests a gross indifference to and
disregard for the Commission's rules and raises questions as
to whether Family can be relied upon in the future to fulfill
the duties and responsibilities incumbent upon a Commission
licensee.
14. Misrepresentation/lack of candor. The trait of
truthfulness is one of two key elements of character necessary
to operate a broadcast station in the public interest. See
Policy Regarding Character Qualifications in Broadcast
Licensing, 102 FCC 2d 1179, 1209-1210 (1986) (``Character
Policy Statement'') (subsequent history omitted). The acts of
willful misrepresentation and lack of candor raise immediate
concerns as to whether a licensee will be truthful in future
dealings with the Commission. Id. Misrepresentation is a
false statement of fact made with an intent to deceive the
Commission, while lack of candor is a concealment, evasion or
other failure to be fully informative, accompanied by an
intent to deceive the Commission. Fox River Broadcasting,
Inc., 93 FCC 2d 127, 129 (1983). In Contemporary Media, Inc.
et al. v. FCC, 214 F.3d 187, 193 (D.C. Cir. 2000), the Court
recognized that ``[t]he FCC relies heavily on the honesty and
probity of its licensees in a regulatory system that is
largely self-policing.'' The Court also stated that ``[i]t is
well recognized that the Commission may disqualify an
applicant who deliberately makes misrepresentations or lacks
candor in dealing with the agency.''15
15. The evidence before us raises serious questions as to
whether Family misrepresented facts to and/or lacked candor
with the Commission regarding the relocation of WSTX-FM's
transmitter from its authorized Blue Mountain site. In its
May 15, 2000, STA request, Family stated that because of the
extensive damage caused by Hurricane Lenny on November 18,
1999, to WSTX-FM's tower, studio-to-transmitter link and
transmitter, which were located on the top of Blue Mountain,
it immediately decided to relocate WSTX-FM's transmitter and
antenna to a site at Fort Louise Augusta adjacent to where
WSTX(AM) is located. However, this statement is inconsistent
with other information before the Commission. During the FCC
agent's February 13, 1995, visit to WSTX-FM's authorized
transmitter site at Blue Mountain, the site manager told him
that Family had been evicted from the site for nonpayment of
rent. In an amendment to its December 4, 1995, license
renewal application, Family indicated that it intended to seek
Commission authorization to relocate WSTX-FM's transmitter to
a new site in part because of equipment problems resulting
from its close proximity and exposure to the sea and in part
because of difficulties with renegotiations for the lease for
the Blue Mountain site. In its May 28, 1998, response to a
LOI from Commission staff, Family stated that WSTX-FM's
transmitter and tower had been destroyed during Hurricane
Marilyn in September 1995 and that because the cost of
constructing at the authorized Blue Mountain site was
``prohibitive,'' particularly since the site was rented, ``it
became prudent to use our own site.'' Finally, during his on-
site inspections of WSTX(AM) and WSTX-FM on August 19, 1997,
December 4, 1997, September 28, 1998, and April 13, 2000, an
FCC agent observed that WSTX-FM's transmitter was operating at
the Fort Louise Augusta site rather than at its authorized
Blue Mountain site. Thus, based on the record before us, it
appears that Family did not relocate WSTX-FM's transmitter
from the Blue Mountain site as a result of damage caused by
Hurricane Lenny on November 18, 1999, as Family stated in its
May 15, 2000, STA request. Rather, it appears that Family has
operated WSTX-FM's transmitter from the Fort Louise Augusta
site without Commission authorization since it returned the
station to the air after more than two years of silence on
January 18, 1997. The inconsistencies between the available
evidence and Family's statements regarding the relocation of
WSTX-FM's transmitter require further exploration in a
hearing. Accordingly, we will specify appropriate issues.
16. Failure to respond to Commission correspondence and
inquiries. Section 1.89(b) of the Rules requires the
recipient of an NOV to respond in writing to that NOV within
ten days of receipt or any other time period specified in the
NOV.16 Section 73.1015 of the Rules provides that the
Commission ``may, in writing, require from any applicant,
permittee, or licensee written statements of fact relevant to
a determination whether an application should be granted or
denied, or to a determination whether a license should be
revoked, or to any other matter within the jurisdiction of the
Commission.''17 The NOVs issued on December 8, 1997, and May
1, 2000, directed Family to submit responses and explicitly
warned Family that failure to do so would constitute a
violation of the Commission's rules. Family apparently
violated Section 1.89 by failing to respond to these NOVs. In
addition, the LOI sent to Family on July 19, 2000, directed
Family to respond to five specific questions relating to the
relocation of WSTX-FM's transmitter from its authorized Blue
Mountain site. Family apparently violated Section 73.1015 by
failing to respond to this LOI. Moreover, as noted above, the
trait of truthfulness is a key element of character necessary
to operate a broadcast station in the public interest.
Family's apparently repeated failure to respond to official
Commission correspondence and inquiries raises questions as to
whether it will be likely to be forthright in its future
dealings with the Commission. See Character Policy Statement,
102 FCC 2d at 1209-1210. We will specify an issue to
determine whether Family willfully or repeatedly violated
Sections 1.89 and 73.1015 of the Rules.
17. Technical and other rule violations. Reliability is
the other key element of character necessary to operate a
broadcast station in the public interest. See Character
Policy Statement, 102 FCC 2d at 1209-1210. In this regard,
the Commission is concerned with whether a licensee will in
the future operate its station consistent with the
requirements of the Communications Act of 1934, as amended,18
and the Commission's rules. Id. As set forth in detail
below, it appears that Family has operated both WSTX(AM) and
WSTX-FM substantially at variance from the terms of their
authorizations for approximately four years and has committed
numerous other violations of the Commission's rules. The
seriousness and duration of these violations, together with
Family's failure to take corrective action despite repeated
warnings from Commission staff, raises questions as to whether
Family can be relied upon in the future to operate its
stations in accordance with the Communications Act and the
Commission's rules.
18. Section 73.1350(a) of the Rules provides that ``[e]ach
licensee is responsible for maintaining and operating its
broadcast station ¼ in accordance with the terms of the
station authorization.''19 Section 73.1560(a) provides that
the antenna input power of an AM station ``must be maintained
as near as practicable to the authorized antenna input power
and may not be less than 90% nor more than 105% of the
authorized power,'' and Section 73.1560(b) provides that the
transmitter output power of an FM station ``must be maintained
as near as practicable to the authorized transmitter output
power and may not be less than 90% nor more than 105% of the
authorized power.''20 Section 73.1690(b)(2) provides that any
change in station geographic coordinates may only be made
after the grant of a construction permit application on FCC
Form 301.21 Based on the information before us, it appears
that Family operated both WSTX(AM) and WSTX-FM substantially
at variance from the terms of their authorizations in
violation of Sections 73.1350, 73.1560(a) and (b) and
73.1690(b)(2) of the Rules since at least August 19, 1997.
During the inspections on August 19, 1997, December 4, 1997,
and September 28, 1998, WSTX(AM) was operating at a reduced
power of 2800 watts, which is approximately 56% of its
authorized power of 5 kilowatts, using a 110-foot antenna
tower; WSTX-FM was operating at a reduced power of 100 watts,
which is approximately 0.2% of its authorized power of 50
kilowatts, using a one-bay antenna with a height of
approximately 50 feet above ground level. At the time of the
April 13, 2000, inspection, WSTX(AM) was operating at a
reduced power of 325 watts, which is approximately 6.5% of its
authorized power, using a long-wire antenna; WSTX-FM was again
operating at a reduced power of 100 watts, this time using a
one-bay antenna with a height of approximately 20 feet above
ground level. Family did not have STAs for the unauthorized
antennas22 or the reduced power operation23 until June 12,
2000. In addition, Family operated WSTX-FM's transmitter from
the Fort Louise Augusta site rather than its authorized Blue
Mountain site without Commission authorization from at least
August 19, 1997, until ASD granted Family's STA request on
June 12, 2000. Accordingly, we will specify issues to
determine whether Family willfully or repeatedly operated
WSTX(AM) and WSTX-FM at variance from the terms of their
authorizations in violation of Sections 73.1350(a),
73.1560(a), 73.1560(b) and 73.1690(b)(2) of the Rules.
19. Section 73.49 of the Rules provides that AM antenna
towers having radio frequency potential at the base must be
enclosed within effective locked fences or other enclosures.24
During the inspections on August 19, 1997, December 4, 1997,
September 28, 1998, and April 13, 2000, WSTX(AM)'s antenna was
not enclosed within an effective locked fence. Family
apparently violated Section 73.49 by failing to enclose its AM
antenna within an effective locked fence. This apparent
violation is particularly troubling given that Family has
repeatedly been warned that its failure to maintain an
effective locked fence around its AM antenna constitutes a
serious public safety hazard.25 We will specify an issue to
determine whether Family willfully or repeatedly violated
Section 73.49.
20. Section 11.35 of the Rules provides that broadcast
stations are responsible for ensuring that EAS equipment is
installed and operational.26 During the August 19, 1997, and
December 4, 1997, inspections of WSTX(AM) and WSTX-FM, there
was no EAS equipment installed at the stations' combined main
studio.27 At the time of the September 8, 1998, and April 13,
2000, inspections, the EAS equipment shared by WSTX(AM) and
WSTX-FM was installed but was not operational. Family
apparently violated Section 11.35 by failing to install and
maintain operational EAS equipment. We will add an issue to
determine whether Family willfully or repeatedly violated
Section 11.35.
21. Section 73.3526 of the Rules requires that broadcast
licensees maintain a public inspection file at the main studio
of the station and make the file available for inspection at
any time during regular business hours.28 No public
inspection files for WSTX(AM) and WSTX-FM were available for
review during the April 13, 2000, inspection. Family
apparently violated Section 73.3526 by failing to maintain
public inspection files for WSTX(AM) and WSTX-FM and make the
files available for review. We will add an issue to determine
whether Family willfully or repeatedly violated Section
73.3526.
IV. ORDERING CLAUSES
22. Accordingly, IT IS ORDERED THAT, pursuant to Section
1.91(a) of the Rules, 47 C.F.R. § 1.91(a), and Sections 312(a)
and 312(c) of the Act, 47 U.S.C. §§ 312(a) and 312(c), Family
Broadcasting, Inc. IS DIRECTED TO SHOW CAUSE why the licenses
for WSTX(AM) and WSTX-FM, Christiansted, U.S. Virgin Islands,
should not be REVOKED, at a hearing before an FCC
Administrative Law Judge, at a time and place to be specified
in a subsequent Order, upon the following issues:
(a) To determine whether Family Broadcasting, Inc.
misrepresented facts to and/or lacked candor with the
Commission in its statements regarding the relocation of
WSTX-FM's transmitter from its authorized site in
violation of Section 73.1015 of the Rules;
(b) To determine whether Family Broadcasting, Inc.
willfully or repeatedly violated Sections 1.89 and/or
73.1015 of the Rules by failing to respond to official
Commission correspondence and inquiries;
(c) To determine whether Family Broadcasting, Inc.
willfully or repeatedly violated Sections 73.1350(a),
73.1560(a), 73.1560(b) and/or 73.1690(b)(2) of the Rules
by operating WSTX(AM) and WSTX-FM at variance from the
terms of their authorizations;
(d) To determine whether Family Broadcasting, Inc.
willfully or repeatedly violated Section 73.49 of the
Rules by failing to enclose WSTX(AM)'s antenna within an
effective locked fence;
(e) To determine whether Family Broadcasting, Inc.
willfully or repeatedly violated Section 11.35 of the
Rules by failing to install and maintain operational EAS
equipment for WSTX(AM) and WSTX-FM;
(f) To determine whether Family Broadcasting, Inc.
willfully or repeatedly violated Section 73.3526 of the
Rules by failing to maintain public inspection files for
WSTX(AM) and WSTX-FM;
(g) To determine, in light of the evidence adduced
pursuant to the foregoing issues, whether Family
Broadcasting, Inc. is basically qualified to be or remain
a Commission licensee; and
(h) To determine, in light of the evidence adduced
pursuant to the foregoing issues, whether the licenses
for WSTX(AM) and/or WSTX-FM should be revoked.
23. IT IS FURTHER ORDERED that, pursuant to Section 312(d)
of the Act, 47 U.S.C. § 312(d), and Section 1.91(d) of the
Rules, 47 C.F.R. § 1.91(d), the burden of proceeding with the
introduction of evidence and the burden of proof shall be on
the Enforcement Bureau as to all of the foregoing issues.
24. IT IS FURTHER ORDERED that, irrespective of the
resolution of the foregoing issues, it shall be determined,
pursuant to Section 503(b)(3)(A) of the Act, 47 U.S.C. §
503(b)(3)(A), and Section 1.80 of the Rules, 47 C.F.R. § 1.80,
whether an Order of Forfeiture in an amount not to exceed two
hundred seventy five thousand dollars ($275,000) shall be
issued against Family Broadcasting, Inc. for willfully and/or
repeatedly violating Sections 1.89, 11.35, 73.49, 73.1015,
73.1350(a), 73.1560(a), 73.1560(b), 73.1690(b)(2) and/or
73.3526 of the Rules.
25. IT IS FURTHER ORDERED that, in connection with the
possible forfeiture liability noted above, this document
constitutes notice of an opportunity for hearing, pursuant to
Section 503(b)(3)(A) of the Act and Section 1.80 of the Rules.
26. IT IS FURTHER ORDERED that, to avail itself of the
opportunity to be heard and the right to present evidence at a
hearing in these proceedings, pursuant to Sections 1.91(c) of
the Rules, 47 C.F.R. §§ 1.91(c), Family Broadcasting, Inc., in
person or by its attorney, shall file within 30 days of the
release of this Order, a written appearance stating that it
will appear at the hearing and present evidence on matters
specified in this Order. If the licensee fails to file a
timely written notice of appearance, the right to a hearing
shall be deemed to be waived. See Section 1.92(a) of the
Rules, 47 C.F.R. § 1.92(a). Where a hearing is waived, the
licensee may submit a written, signed statement of mitigation
or justification within 30 days of the release of this Order.
See Section 1.92(b) of the Rules, 47 C.F.R. § 1.92(b). In the
event the right to a hearing is waived, the Chief
Administrative Law Judge (or presiding officer if one has been
designated) shall, at the earliest practicable date, issue an
order terminating the hearing proceeding and certifying the
case to the Commission. See Section 1.92(c) of the Rules, 47
C.F.R. § 1.92(c).
27. IT IS FURTHER ORDERED that a copy of this Order shall
be sent via Certified Mail Return Receipt Requested and
regular first class mail to Family Broadcasting, Inc. at P.O.
Box 3279, St. Croix, U.S. Virgin Islands 00822.
28. IT IS FURTHER ORDERED that the Secretary of the
Commission shall cause to have this Order or a summary thereof
published in the Federal Register.
FEDERAL COMMUNICATIONS COMMISSION
Magalie Roman Salas
Secretary
_________________________
1 A special temporary authorization is the authority granted
to a permittee or licensee to permit the operation of a broadcast
facility for a limited period at a specified variance from the
terms of the station authorization. See 47 C.F.R. § 73.1635.
2 Letter to Family Broadcasting, Inc. from Dennis Williams,
Assistant Chief, Audio Services Division, Mass Media Bureau
(August 16, 1995).
3 Family filed the amendment on March 22, 1996, in response to
a request from Mass Media Bureau staff for answers to questions
omitted from the license renewal application.
4 Family Broadcasting, Inc., 11 FCC Rcd 6647 (Mass Med. Bur.,
1996).
5 Family Broadcasting, Inc., FCC 96M-263 (ALJ, released
December 6, 1996).
6 Family Broadcasting, Inc., 12 FCC Rcd 18700 (ALJ, 1997).
7 The NOVs were sent by Certified Mail Return Receipt
Requested. The United States Postal Service's Return Receipt
Card shows that G. Luz A. James received and signed for the NOVs
on December 12, 1997.
8 The NOVs were sent by Certified Mail Return Receipt
Requested. The United States Postal Service's Return Receipt
Card shows that Barbara James-Petersen received and signed for
the NOVs on May 8, 2000. The NOVs were also faxed to Family on
May 1, 2000.
9 ASD noted that Section 73.1680(b)(1) of the Rules, 47 C.F.R.
§ 73.1680(b)(1), provides that AM stations using an emergency
nondirectional antenna in lieu of authorized directional
facilities shall operate with power reduced to 25 percent or less
of the nominal licensed power, or a higher power, not exceeding
licensed power, while insuring that the radiated field strength
does not exceed that authorized in any given azimuth.
10 Letter to G. Luz A. James, Esq. from Edward P. De La
Hunt, Assistant Chief, Audio Services Division, Mass Media Bureau
(June 12, 2000).
11 Section 73.1680 of the Rules provides for operation
with emergency antenna facilities following damage to authorized
antenna systems, provided that an informal request for continued
use of an emergency antenna is filed with the Commission within
24 hours. 47 C.F.R. § 73.1680.
12 Letter to G. Luz A. James, Esq. from Edward P. De La
Hunt, Assistant Chief, Audio Services Division, Mass Media Bureau
(June 12, 2000).
13 See n. 11.
14 The LOI was sent by Certified Mail Return Receipt
Requested on July 19, 2000. The United States Postal Service's
Return Receipt Card shows that G. Luz A. James received and
signed for the LOI on July 25, 2000. The LOI was also faxed to
Barbara James-Petersen on July 19, 2000.
15 Id. at 196, citing Schoenbohm v. FCC, 204 F.3d 243, 247
(D.C. Cir. 2000).
16 47 C.F.R. § 1.89(b).
17 47 C.F.R. § 73.1015.
18 47 U.S.C. § 151 et seq.
19 47 C.F.R. § 73.1350(a).
20 47 C.F.R. § 73.1560(a) and (b).
21 47 C.F.R. § 73.1690(b)(2).
22 See n. 11.
23 Section 73.1560(d) of the Rules provides that a
licensee must request STA to operate with reduced power for a
period of more than 30 days. 47 C.F.R. § 73.1560(d).
24 47 C.F.R. § 73.49.
25 We note that the Fort Louise Augusta site, where
WSTX(AM)'s antenna is located, is directly adjacent to a public
beach.
26 47 C.F.R. § 11.35.
27 Broadcast stations which are co-owned and co-located
with a combined studio may share EAS equipment. See 47 C.F.R. §§
11.51(j) and 11.52(c).
28 47 C.F.R. § 73.3526.