Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) )
File No. EB-03-TP-231 ) File No. EB-04-SE-017
Metro Networks Communications, ) )
Inc. ) FRN 0007006884
)
NAL/Acct. No. 200332700030
Houston, Texas )
FRN 0007006884
MEMORANDUM OPINION AND ORDER
Adopted: February 9, 2005
Released: February 11, 2005
By the Chief, Spectrum Enforcement Division, Enforcement
Bureau:
1. In this Memorandum Opinion and Order
(``Order''), we dismiss as moot a Petition for
Partial Revocation filed by New Inspiration
Broadcasting Company, Inc. (``NIBC'') of a permit
issued to Metro Networks Communications, Inc.
(``Metro'') pursuant to Section 325(c) of the
Communications Act of 1934 (``Act''), as amended.1
In addition, we find that Metro's transmittal of
information to a Mexican AM broadcast station via
textual emails did not come within the scope, and
thus did not violate the terms and conditions, of
its Section 325(c) permit.
2. Under Section 325(c) of the Act, the
transmission or delivery of broadcast programming
from a facility in the United States to a foreign
broadcast station, which will be received in the
United States, requires an application to and
permit granted by the Commission. On January 12,
2000, Metro filed with the Commission an
application for renewal of its Section 325(c)
permit to supply programming information to 23
broadcast stations located in Mexico, including
Station XEMO, 860 MHz, Tijuana, Mexico. On
February 29, 2000, the Commission's International
Bureau granted Metro's renewal application.2 The
Section 325(c) permit, which authorizes Metro to
deliver programming ``consisting of self-contained
broadcasts of local, regional and/or national
news,'' is expressly conditioned upon the Mexican
stations ``operation in full compliance with
applicable treaties and related provisions
concerning electrical interference to U.S.
broadcast stations.''
3. On December 11, 2003, NIBC, licensee of
Station KLRA (AM) Glendale, California, filed a
Petition for Partial Revocation (``Petition'') of
Metro's Section 325(c) permit, to the extent that
it authorizes Metro to transmit programming to
Station XEMO. NIBC maintained, and provided
engineering and technical supporting documentation
to demonstrate, that Station XEMO had been
operating at increased power levels from a new
site, and that such operations was causing
prohibited interference to Station KRLA(AM). NIBC
further maintained that Station XEMO's operations
were not coordinated under, and thus did not comply
with, the 1986 Agreement 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
(``U.S.-Mexican Agreement''). 3
4. In response to the Petition, the Bureau
issued a Letter of Inquiry (``LOI'') to Metro. In
its response to the LOI, Metro stated that it was
unable to independently confirm or deny that
Station XEMO's operations caused interference and
did not comply with the US-Mexican Agreement.
Metro further noted that Station XEMO informed
Metro that representatives of Station XEMO had been
in contact with Station KLRA and that Station XEMO
believes that the interference issue has been
resolved. Moreover, Metro claimed that it has
transmitted programming consisting of traffic and
border information via textual emails to Station
XEMO since 1992, and that such transmissions did
not fall within the purview of Section 325(c).
5. In reply, NIBC maintained that Station
XEMO continued to cause interference to Station
KLRA(AM). NIBC also reiterated its claim that the
station's operations violated the US-Mexican
Agreement. On April 8, 2004, Metro supplemented
its response and voluntarily withdrew its Section
325(c) permit as it relates to Station XEMO.4
6. In light of Metro's decision to
voluntarily withdraw its Section 325(c) permit as
it relates to Station XEMO, we find that NIBC's
petition for partial revocation of Metro's Section
325(c) permit is moot and we accordingly dismiss
it.
7. Nevertheless, given that we have
previously found that a Section 325(c) permittee
violated the terms and conditions of its Section
325(c) permit by providing programming to a foreign
station that was not in compliance with applicable
treaties concerning interference to U.S. broadcast
stations, notwithstanding that the permittee had
subsequently tendered its Section 325(c) permit for
cancellation,5 we turn to the issue of whether
Metro violated the terms and conditions of its
Section 325(c) permit. Section 325(c) provides:
No person shall be permitted to locate, use, or
maintain a radio broadcast studio or other place
or apparatus from which or whereby sound waves are
converted into electrical energy, or mechanical or
physical reproduction of sound waves produced, and
caused to be transmitted or delivered to a radio
station in a foreign country for the purpose of
being broadcast from any radio station there
having a power output of sufficient intensity
and/or being so located geographically that its
emissions may be received consistently in the
United States, without first obtaining a permit
from the Commission upon proper application
therefore.
8. In interpreting statutory language, the
Supreme Court has directed that when the words of a
statute are unambiguous, judicial inquiry is
complete.6 The plain language of the Section
325(c) is unambiguous. Section 325(c) only
requires a permit for the transmissions of cross-
border programming if such transmissions involve
the conversion of sound waves into electrical
energy or the mechanical or physical reproduction
of sound waves. Metro's transmission of
information by textual emails clearly did not
involve the conversion of sound waves into
electrical energy or the mechanical or physical
reproduction of sound waves.7
9. Based on our plain meaning application
of the unambiguous statutory language, we find that
Metro's transmission of programming information via
textual emails to Station XEMO did not come within
the scope of Section 325(c), and thus did not
violate the terms and conditions of its Section
325(c) authorization.8
10. Accordingly, IT IS ORDERED that,
pursuant to Sections 4(i) and 325(d) of the Act,
the investigation of Metro Networks Communications,
Inc. IS TERMINATED.
11. IT IS FURTHER ORDERED that the Petition
for Partial Revocation filed by New Inspiration
Broadcasting Company, Inc., on December 11, 2003,
IS DISMISSED as moot.
12. 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 counsel for New Inspiration
Broadcasting Company, Inc., Ann Bavender, Esq.,
Fletcher, Heald & Hildreth, PLC, 1300 North 17th
Street, 11th Floor, Arlington, Virginia 22209-3801,
and to counsel for Metro Networks Communications,
Inc., John D. Poutasse, Esq. Leventhal Senter &
Lerman PLLC, 2000 K St. NW, Suite 600, Washington,
DC 20006-1809.
FEDERAL COMMUNICATIONS
COMMISSION
Joseph P. Casey
Chief, Spectrum Enforcement
Division
Enforcement Bureau
_________________________
147 U.S.C. § 325(c)
2See File No. 325-NEW-20000112-0001 (granted February 29,
2000) (``Section 325(c) permit'').
3It should be noted that the Spectrum Enforcement Division
of the Enforcement Bureau found in another case that
Station XEMO's operations violated the U.S.-Mexican
Agreement, and caused harmful interference to Station
KRLA(AM). See Uniradio Corp., 19 FCC Rcd 19933 (Enf. Bur.,
Spectrum Enf. Div., 2004) (proposing a $25,000 forfeiture
against a Section 325(c) permittee for providing
programming to Station XEMO in apparent violation of the
terms and conditions of its permit).
4Metro reserved the right to reapply for authority under
Section 325(c) to provide programming to Station XEMO, when
that station's technical operations are brought to
compliance with the U.S.-Mexican Agreement. We note that
coordination of Station XEMO's operations has been completed
in compliance with the U.S.-Mexican Agreement.
5 Pacific Spanish Network, Inc., 19 FCC Rcd 14427 (Enf.
Bur. 2004), forfeiture ordered, DA 05-23 (Enf. Bur.,
Spectrum Enf. Div., 2005).
6See U.S. v. Ron Pair Enterprises, 489 U.S. 235 (1989);
Rubin v United States, 449 U.S. 424, 430 (1981).
7
8