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Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
In the Matter of )
)
Telemedia Broadcasting, Inc. ) File No. EB-01-IH-0456
WGRQ(FM) ) Facility ID No. 64922
Colonial Beach, Virginia )
)
and )
)
Rappahannock River )
Broadcasting, LLC ) Facility ID No. 62205
WGRX(FM) )
Falmouth, Virginia )
)
)
)
MEMORANDUM OPINION AND ORDER
Adopted: July 30, 2002 Released: July
31, 2002
By the Chief, Investigations and Hearings Division,
Enforcement Bureau:
I. INTRODUCTION
1. On July 3, 2001, the Free Lance-Star Publishing Co.
of Fredericksburg, Virginia (``Free Lance-Star'') filed a
complaint against Telemedia Broadcasting Company, Inc.
(``Telemedia''), licensee of WGRQ(FM), Colonial Beach,
Virginia and Rappahannock River Broadcasting, LLC.
(Rappahannock''), licensee of WGRX(FM), Falmouth, Virginia.
The complaint alleged: 1) that Telemedia failed to maintain
a main studio for Station WGRQ(FM) at a proper location as
required by Section 73.1125 of the Commission's rules, 47
C.F.R. § 73.1125, 2) that Telemedia failed to maintain and
provide public access to a complete local public inspection
file for Station WGRQ(FM) as required by Section 73.3526 of
the Commission's rules, 47 C.F.R. § 73.3526, and 3) that
Rappahannock filed a pleading interposed solely for the
purpose of delay contrary to Commission policy prohibiting
the filing of frivolous pleadings. The complaint asserts
that both Telemedia and Rappahannock are controlled by the
same owner, Carl Hurlebaus. For the reasons discussed below,
we admonish Telemedia for its failure to provide access to
the entire local public inspection file on one occasion. We
deny the complaint with respect to the allegation that
Telemedia violated the main studio rule and the allegation
that Rappahannock filed a frivolous pleading.
II. BACKGROUND
2. Free Lance-Star first alleges that Telemedia's main
studio does not comply with Section 73.1125 of the
Commission's rules.1 Free Lance-Star asserts that Station
WGRQ(FM)'s main studio (located in Fredericksburg, Virginia)
is outside the station's community of license, is 28.8 miles
(more than 25 miles) from the reference coordinates of the
center of its community of license and is outside its
principal community contour. Thus, according to Free Lance-
Star, Telemedia has not conformed to any of the three
options provided for in the main studio rule. Free Lance-
Star submitted an engineering statement including a map of
what it asserts is Station WGRQ(FM)'s principal community
contour. (Station WGRQ(FM) is the only broadcast station in
its community of license.)
3. Telemedia claims that the location of the WGRQ(FM)
main studio is not in violation of the main studio rule
because although its main studio is slightly more than 25
miles from the center of its community of license, due to
unique terrain, the station's own principal community
contour includes the main studio location. Thus the main
studio is within the contour of a Colonial Beach, Virginia
broadcast station. Telemedia has submitted an alternative
engineering statement which relies on a Longley Rice
irregular terrain model of Station WGRQ(FM)'s principal
community contour with its response.
4. Free Lance-Star also alleges that Telemedia
violated Section 73.3526 of the Commission's rules which
requires that each commercial broadcast station maintain and
provide public access to a local public inspection file. In
support of this allegation, Free Lance-Star states that one
of its employees, Gary C. Harrison, and Free Lance-Star's
counsel, George Snead, visited the Telemedia main studio for
Station WGRQ(FM) on June 27, 2001 and asked to see the
public inspection file. Mr. Harrison states that Tom
Cooper, the station manager, tendered the public inspection
file, but the file that they were provided was missing
several documents required to be maintained in the file.
Free-Lance Star also asserts that when its agents requested
a copy of the contents of the file, the WGRQ(FM) station
manager, Thomas Cooper, stated, ``I would prefer not to.''
5. Telemedia responded that the events alleged are
largely accurate, but that the failings were inadvertent.
Mr. Harrison and Mr. Snead's visit occurred at a time when
Telemedia was remodeling the main studio. The station
manager, Tom Cooper, provided access to what he believed to
be the entire public inspection file and then asked that the
Free-Lance Star personnel direct any questions to another
station employee. Mr. Harrison asked if Mr. Cooper could
make a copy of the file, which Mr. Cooper interpreted as a
request for an immediate copy of the entire file. Mr.
Cooper explained that he made the statement, ``I would
prefer not to'' relating only to a request that he make an
immediate copy of the entire file. Mr. Cooper explained
that he had to leave to take care of matters relating to the
remodeling of the main studio. He believes that, under the
circumstances, the Free-Lance Star personnel should have
both made their request for copies of his assistant and
asked about the missing parts of the file before engaging in
a game of ``gotcha.''2 Mr. Cooper attested that at all
pertinent times the station has maintained a complete local
public inspection file, and that the failure to provide the
complete file was accidental.
6. With respect to the allegation that Rappahannock
filed a frivolous pleading, Free Lance-Star alleges that
Rappahannock filed a petition to deny an application to
assign Station WWUZ(FM) Bowling Green, Virginia to Free
Lance Star for purposes of delay. The former Mass Media
Bureau dismissed Rappahannock's Petition to Deny, considered
the Petition as an informal objection which it then denied,
and granted the underlying application.3
III. DISCUSSION
7. Telemedia asserts that its main studio location is
compliant because one of the options in our main studio rule
permits it to locate its main studio anywhere within its
principal community contour. With its response, Telemedia
submitted a supplemental engineering showing that utilizes
the Longley-Rice irregular terrain model, arguing that, due
to irregular terrain, its main studio lies within its
principal community contour. The Commission has approved
the use of supplemental showings (including the Longley-Rice
analysis) to show compliance with main studio requirements
in situations involving irregular terrain. See In the
Matter of Amendments of Parts 73 and 74 of the Commission's
Rules To Permit Certain Minor Changes in Broadcast
Facilities Without A Construction Permit, 12 FCC Rcd. 12371,
12401-03 (1997).4 We have reviewed the engineering
submissions by Free-Lance Star and Telemedia. Because the
terrain involved would result in better signal propagation
than is assumed in the standard contour prediction methods
described in Section 73.313 of the Commission's rules, 47
C.F.R. § 73.313, we find that the location of the WGRQ(FM)
main studio is not in violation of the Commission's rule.
8. With respect to Free-Lance Star's allegations regarding
the public inspection file, we find that Telemedia failed to
fully comply with the rules. It appears that the station
personnel were involved in remodeling the main studio of
Station WGRQ(FM) at the time of the request and that the
failure to provide the complete public inspection file was
the result of oversight. We find, nevertheless, that
station personnel failed to provide access to the complete
public inspection file upon request and failed to meet its
obligation to provide copies for a reasonable duplication
fee within 7 days upon request. In light of all the facts
and circumstances in this case, we hereby admonish Telemedia
for its failure to fully comply with the public inspection
file rule. See In re Application of Tabback Broadcasting
Company for Renewal of License Station KAZM(AM), Sedona,
Arizona, 15 FCC Rcd 11899 (2000) (Commission affirmed staff
decision to admonish licensee for violation of the public
inspection file in similar circumstances). 9. Finally,
with respect to the allegation that Rappahannock filed a
frivolous petition to deny an application to assign station
WWUZ(FM) to Free-Lance Star, we cannot conclude that the
petition to deny was frivolous. Rappahannock alleged that
Free-Lance Star engaged in anti-competitive conduct
involving its other stations and its newspaper.
Rappahannock argued that given this behavior, it was
contrary to the public interest to permit it to acquire any
additional stations. While the former Mass Media Bureau
denied the relief requested, the Bureau carefully considered
the allegations and the applicable law before doing so. We
decline to issue any sanction relating to such filing.
IV. CONCLUSION 10. ACCORDINGLY, Telemedia Broadcasting,
Inc. is HEREBY ADMONISHED for violating Section 73.3526 of
the Commission's Rules, 47 C.F.R. § 73.3526. The remainder
of the complaint filed by Free-Lance Star Publishing Co. on
July 3, 2001 is HEREBY DENIED. 11. IT IS FURTHER
ORDERED that a copy of this Memorandum Opinion and Order
SHALL be sent via certified mail/return receipt requested to
William H. Crispin, Esquire, Crispin & Brenner, P.L.L.C.,
1156 15th Street, N.W., Suite 1105, Washington, D.C. 2005
and via regular mail to Arthur M. Belendiuk, Esquire,
Smithwick & Belendiuk, P.C., 5028 Wisconsin Avenue, N.W.
Suite 301, Washington, D.C. 20016.
FEDERAL COMMUNICATIONS COMMISSION
Charles W. Kelley Chief,
Investigations and Hearings Division
Enforcement Bureau
_________________________
1 Section 73.1125 requires that the main studio must be
either 1) within the station's community of license, 2) at
any location within the principal community contour of any
AM, FM, or TV broadcast station licensed to the station's
community of license or 3) within 25 miles from the
reference coordinates of the center of its community of
license.
2 Response to Complaint at 6.
3 Letter from Peter H. Doyle, Chief, Audio Services
Division, Mass Media Bureau to Arthur B. Belendiuk, Esquire,
dated August 23, 2001 (File No. BALH-20010511AAF).
4 In a Report and Order the following year, the Commission
further relaxed (in ways not applicable here) the main
studio requirements in order to lessen the burden on the
licensee. In the Matter of Review of the Commission's Rules
Regarding the Main Studio and Local Public Inspection Files
of Broadcast Television and Radio Stations, 13 FCC Rcd.
15691 (1998).