> **DA 08-1536**

In Reply Refer to:

> 1800B3-KD

Released: June 30, 2008

Dan Alpert, Esq.

2120 North 21^st^ Rd., Suite 400

Arlington, VA 22201-3602

A. Wray Fitch III, Esq.

Gammon & Grange, P.C.

8280 Greensboro Dr., 7^th^ Floor

McLean, VA 22012

Joseph E. Dunne III

1000 Thomas Jefferson St., N.W.

Suite 304

Washington, D.C. 20007

In re: KLFF-FM, San Luis Obispo, CA

Facility ID No. 38281

Logos Broadcasting Corporation

> Application for License
>
> File No. BLH-19950929KC
>
> Informal Objection
>
> Application for Extension of Time to Construct

File No. BMPED-19940706JA

Informal Objection

Petition to Revoke Construction Permit

Dear Counsel:

We have before us: (1) the referenced application of Logos Broadcasting
Corporation ("Logos") for an extension of time to construct
noncommercial educational ("NCE") Station KLFF-FM, San Luis Obispo,
California ("Station"); (2) a "Formal Opposition to Application" filed
by Radio Representatives, Inc. ("RRI") on October 27, 1994
("Objection");[^1] (3) a "Petition to Revoke Construction Permit" filed
by RRI on January 26, 1995 ("Petition to Revoke"); [^2] (4) an
Application for License, filed by Logos on September 29, 1995
("Application");[^3] and (5) related pleadings.

I.  **Background**

Despite the voluminous pleadings filed in this proceeding, the main
arguments advanced by RRI can be distilled to the following issues: (1)
whether Logos made misrepresentations regarding the availability of the
tower site proposed in its extension application; (2) whether Logos had
reasonable assurance of the tower site's availability; (3) whether Logos
misrepresented the nature of its NCE programming in its permit
application; (4) whether Logos is qualified to be an NCE licensee based
on its current programming; (5) whether Logos was financially qualified
to construct and operate the Station when it filed its application; (6)
whether Logos misrepresented facts or lacked candor in certifying that
it was financially qualified to construct and operate the Station; and
(7) whether Logos' operation of the Station is in compliance with the
Commission's radiofrequency ("RF") radiation safety standards.

II. **Discussion**

Informal objections must, pursuant to Section 309(e) of the
Communications Act of 1934, as amended (the "Act"),[^4] provide properly
supported allegations of fact that, if true, would establish a
substantial and material question of fact that grant of the Application
would be *prima facie* inconsistent with Section 309(a) of the Act,[^5]
which governs our evaluation of license to cover applications.
Specifically, Section 309(a) provides that we are to grant an
application if, upon consideration of the application and pleadings and
other such matters of which we may officially take notice, we find that
the public interest, convenience, and necessity will be served by the
granting of such application. If, however, the applicant fails to meet
that standard, the Commission may deny the application after notice and
opportunity for a hearing under Section 309(e) of the Act. After
consideration of the totality of the evidence before us, we find that
RRI has failed to raise a substantial and material question of fact
calling into question Logos'

character or its basic qualifications as a licensee as to require an
evidentiary hearing. Accordingly, we

deny RRI's objections and grant the Application.

A.  **Site Issues**

*Misrepresentation Claim*. Logos filed its initial permit application on
February 19, 1991.[^6] The application originally specified a
transmitter at a height of 87 meters on the tower of Station KSBY-TV,
San Luis Obispo. On September 30, 1991, Logos amended its application,
proposing a height of 53 meters on the KSBY-TV tower. Attached to the
amendment was a September 26, 1991, letter to Logos from the tower owner
(the \"Brodsky Letter\") indicating that, although it had previously
leased space at 87 meters (to the permittee of Station KWWV(FM), Morro
Bay, California), Logos, nevertheless, could negotiate for space at 53
meters and could continue to specify the tower in its permit
application. The letter also indicated that since the tower was fully
loaded, in order to add KLFF(FM), any necessary analysis and
reinforcement would be at Logos\' expense. In early February 1992,
KWWV(FM) commenced operations at Logos\' former 87-meter elevation.

Logos\' permit application, as amended, was granted January 27, 1993,
with a July 27, 1994, completion deadline. On July 6, 1994, Logos filed:
(1) an application to modify its permit to specify a new, nearby site at
Cuesta Peak;[^7] and (2) an application for extension of time to
construct.[^8] As justification for the proposed move, Logos stated the
following:

> After long negotiations, Logos Broadcasting Corporation has discovered
> within the last few months that the site specified in its original
> application is no longer available because the site owner leased the
> space to another tenant.

Despite filing the modification application, Logos constructed its
facility and commenced operations in September 1995 pursuant to program
test authority at the 53-meter location on the KSBY-TV tower. On
February 10, 1999, Logos' construction permit was extended through
August 16, 2000, by virtue of the *Streamlining Report and Order*. [^9]
Its extension application was subsequently dismissed on February 16,
1999.[^10]

RRI first alleges that Logos\' assertion in the extension application
that it \"discovered *within the last few months* that the site
specified in the original application is *no longer available because
the owner* . . . *leased the space to* *another tenant*\" (emphasis
added) constitutes a misrepresentation.[^11] According to RRI, Logos was
aware as far back as September 30, 1991, that KWWV(FM) was to locate at
its previously specified elevation.[^12] RRI maintains that since the
53-meter location was unoccupied and thus not, as represented,
unavailable, Logos\' move to a new tower was not forced, but voluntary.
RRI alleges that Logos achieved no significant construction progress and
misrepresented that it only recently lost its site in order to
demonstrate circumstances beyond its control to justify an extension and
relocation. RRI adds that Logos was motivated to avoid spending \$10,000
to \$50,000 to analyze and reinforce the KSBY tower.[^13]

Logos admits that its representation that it needed to change sites
because its designated location on the KSBY tower was occupied by
another tenant, while \"not literally accurate,\" is \"accurate in a
larger sense.\"[^14] According to Logos, it sought another site because,
as a practical matter, installation of the KWWV(FM) facilities meant
that the tower was fully loaded and no longer available to it. Logos
adds that the tower owner expressed doubt whether the structure could be
strengthened to accommodate KLFF(FM) and recently required that any
lease be subject to an \"unacceptable\" six-month cancellation
provision.[^15] Finally, Logos argues that its ability to receive an
extension grant was not dependent on site availability since Logos had
already substantially constructed the Station when the extension
application was filed.[^16] As such, it asserts that it had no motive to
deceive the Commission regarding site availability.[^17]

Section 1.17(a) of the Rules provides that no person, in any written or
oral statement of fact, may provide material factual information that is
incorrect or misleading.[^18] It also provides that no person may
provide in any written statement of fact, "material factual information
that is incorrect or omit material information that is necessary to
prevent any material factual statement that is made from being incorrect
or misleading without a reasonable basis for believing that any such
material factual statement is correct and not misleading."[^19] Any
applicant for a Commission authorization is subject to this rule.[^20]
Recently, the Commission expanded the scope of Section 1.17 of the
Rules,[^21] with respect to investigations and adjudications, to
prohibit written and oral statements of fact that are intentionally
incorrect or misleading and written statements that are made without a
reasonable basis for believing the statement is correct and not
misleading.[^22] Misrepresentation involves false statements made with
an intent to deceive.[^23] Lack of candor involves concealment, evasion,
or other failure to be fully forthcoming, accompanied by an intent to
deceive.[^24] However, "a false statement, even absent an intent to
deceive, may constitute an actionable violation of Section 1.17 of the
Rules."[^25]

We agree with Logos that the extension would have been warranted on the
basis of substantial construction.[^26] While nothing in the record
evidences an intent to mislead the Commission, we find, however, that
Logos' representation regarding the availability of the KSBY tower site
in its extension application was demonstrably false. By Logos' own
admission and as demonstrated by the fact that it ultimately utilized
the KSBY tower site, the KSBY tower site was available. As such, we
believe there was no reasonable basis for Logos' representation that the
KSBY tower site was no longer available.

The Commission and the courts have recognized that \"\[t\]he FCC relies
heavily on the honesty and probity of its licensees in a regulatory
system that is largely self-policing.\"[^27] Full and clear disclosure
of all material facts in every application is essential to the efficient
administration of the Commission\'s licensing process, and proper
analysis of an application is critically dependent on the accuracy and
completeness of information and data which only the applicant can
provide. Because the violation here occurred more than one year ago, the
statute of limitations prohibits us from initiating a forfeiture
proceeding in this case.[^28] For this reason, we admonish Logos for its
violation of Section 1.17 of the Rules. But for the running of the
statute of limitations, we would have proposed a forfeiture in this
case. We remind Logos that we expect it to provide full disclosures in
its communications with the Commission and caution it that we will not
hesitate to impose appropriate sanctions against it for any further
violations.

*Site Assurance Issue*. RRI next argues that inasmuch as Logos failed to
satisfy the structural analysis and reinforcement contingencies for the
KSBY tower as outlined in the Brodsky Letter, it lacked reasonable site
assurance.[^29] RRI further argues that in light of the owner\'s
expressed doubt whether the tower could accommodate KLFF(FM), Logos had
only an indeterminate chance of obtaining a lease and, thus,
misrepresented its site assurance from as far back as February 1992.

Reasonable assurance ordinarily requires only a clear indication from
the owner that it is amenable to entering a future arrangement for use
of the property as a transmitter site.[^30] Where a site owner
establishes conditions precedent to negotiating a lease, the applicant
cannot ignore the conditions and still claim reasonable assurance.[^31]
However, given the KSBY-TV tower owner\'s amenability to leasing space
to Logos, in particular as evidenced by the current KLFF(FM) operations
at 53 meters on the KSBY-TV tower, it does not appear that the analysis
and reinforcement were conditions precedent for consent to designate the
site in applications to the Commission.[^32] Accordingly, we conclude
that Logos had reasonable assurance of the KSBY tower site when it filed
its application.

B.  **NCE Programming Issues**

RRI alleges that Logos misrepresented its programming plans to obtain an
NCE permit.[^33] In support of its permit application Logos specified
that it would broadcast programming geared to the educational needs of
local prison inmates, educational and instructional programming geared
to a local school, and religious instruction. It also stated that it
would develop a student internship program. Referencing 1994
promotional/fundraising materials, RRI asserts that Logos abandoned the
programming proposed in its permit application in favor of predominately
music and entertainment programming with little or no educational
component.[^34] According to RRI, Logos on several occasions in 1994
indicated to its supporters that KLFF(FM)\'s format would include a
significant Christian music component, if not exclusively music
programming.[^35] Moreover, RRI, in its \"Supplement\" to its revocation
petition, references a November 4, 1994 \"Position Statement\" of Logos
which indicates: \"KLFF(FM) is being developed to broadcast contemporary
Christian Music . . . .\"[^36] According to RRI, this shows that the
Logos\' purpose is not educational and that its programming does not
fulfill its programming responsibilities as the holder of an NCE
authorization.

Logos asserts that its references to KLFF(FM) as a \"Christian music
station\" are merely format descriptions which do not accurately reflect
its programming.[^37] A March 12, 1998, staff inquiry letter[^38]
requested evidence that programming since commencement of operations
pursuant program test authority in late September 1995 has been
consistent with representations in Logos\' permit application. In its
April 8, 1998, response, Logos indicates several reasons for not
adhering to the programming plans outlined in its permit
application.[^39] First, it suggests that Station KGDP, Santa Maria,
California, provides religious and Christian programming. Second, Logos
references a subsequent decision to reach a younger audience through a
more music-oriented format with shorter programs. Third, Logos asserts
that some proposed programming proved to be unavailable. Fourth, Logos
states that it does, in fact, broadcast some biblical and educational
programming. Specifically, Logos states that the Station has been
broadcasting at least one educational program referenced in its permit
application, called "Focus on the Family," Monday through Friday since
the Station commenced operation. It also regularly broadcasts an
educational program called "Family Life Today." According to Logos,
program topics have included "the absolute quickest way to help your
child change," "the secrets of a lasting marriage," and "how to be your
mate's best friend." Similarly, Logos points to a daily program called
"How to Manage Your Money," which offers financial advice from a
spiritual perspective. Logos admits that it has not broadcast programs
geared to the curriculum of the local Christian School, referencing a
lack of resources and unforeseen problems of the school, specifically,
allegations of child abuse. Citing a lack of staff resources, Logos also
admits to a lack of programming geared to the local prison inmate
population, although it stresses that its programming fills a need in
the prison community.

In 1981, the Commission adopted rules substantially deregulating
programming requirements.[^40] The *Deregulation* *Order* removed the
formal ascertainment requirements, quantitative programming guidelines,
and the "promise vs. performance" programming standard. These rule
changes were intended to increase a licensee's flexibility in meeting
the changing needs of the community. Since that time, radio stations
have been directed to use their good faith discretion in determining the
type of programming that they will offer and the Commission does not
prescribe the nature or amount of non-entertainment programming that
each radio broadcast station should broadcast.[^41] The Commission will
not substitute its judgment for that of the station regarding
programming matters.[^42] With certain limited exceptions not applicable
here, licensees are afforded broad discretion in the scheduling,
selection, and presentation of programs aired on their stations.
Moreover, Section 326 of the Act and the First Amendment of the
Constitution prohibit any Commission actions which would improperly
interfere with the programming decisions of licensees.[^43]

Based on the record before us, we find insufficient evidence that Logos
intentionally misrepresented its programming plans.[^44] While it may
have departed from its initial programming plans, there is no evidence
that Logos was disingenuous when it described in its initial permit
application how the Station would be used to advance educational
purposes. It also has adequately explained its departure from its
initial programming objectives.

Moreover, we find that the programming offered by Logos fulfills its
responsibilities as the holder of an NCE authorization. In applying
Section 73.503 of the Rules, the Commission has required that NCE
applicants be: (a) a government or public educational agency, board or
institution; (b) a private, nonprofit educational organization; or (c) a
nonprofit entity with a demonstrated educational purpose.[^45] We
require that an applicant described in (a) or (b) above have an
educational program and demonstrate how its programming will be used for
the advancement of that program. An applicant applying as (c) above must
specifically show: (i) that it is, in fact, a nonprofit educational
organization, (ii) that it has an educational objective, and (iii) how
its programming will further that objective.[^46] The requirement that
NCE licensees provide programming that advances an educational objective
may be satisfied by a variety of programs, including, but not limited
to, "instructional programs, programming selected by students, bible
study, cultural programming, in-depth news coverage, and children's
programs such as Sesame Street that entertain as they teach."[^47] We
have also stated that "in order to qualify as an educational station, it
is not necessary that the proposed programming be exclusively
educational."[^48] Finally, we note that the Commission historically
"has had the appropriately limited role of facilitating the development
of the public broadcasting system rather than determining the content of
its programming."[^49]

Given these considerations, we find that Logo has adequately satisfied
its programming requirements as a nonprofit entity with a demonstrated
educational purpose. The Station broadcasts several educational
programs, as well as short teachings. Moreover, Logos has demonstrated
that it has not abandoned its efforts to coordinate internship programs
with area schools. Finally, as established by the numerous letters sent
to the Station from prison inmates and submitted by Logos in support of
its programming, Logos clearly has created a relationship with the local
men's prison and appears to serve a need in that community. Accordingly,
we conclude that Logos' programming sufficiently advances its
educational purpose.

C.  **Financial Qualifications Issue**

RRI alleges that Logos falsely certified as to its financial
qualifications in its permit application. It bases this contention on
that fact that, subsequent to grant of its permit, Logos relied on donor
support for construction and initial operating funds.[^50] RRI cites to
funding appeals directed to Logos\' supporters indicating a need for
contributions for construction and initial operations.[^51]

In its March 20, 1998, response to a staff letter[^52] inquiring about
its initial estimates of construction and initial operating funds as
well as its funding source, Logos points to a bank letter from Mid-State
Bank indicating a willingness to consider a \$250,000 loan for
construction and initial operation \"based on the financial strength and
credit-worthiness of all five principals. . . .\" as well as the
establishment \"a full banking relationship (by the principals).\"[^53]
The letter also stated the loan term, interest rate, and estimated
monthly payments. In response to a subsequent staff inquiry asking for
evidence that the conditions set forth in the letter had been fulfilled,
Logos states it never actually took out a loan but always planned to
construct with donated funds, keeping open its option to secure a bank
loan if necessary.[^54] It further states that at least two of Logos'
directors had private banking relationships with the bank and that the
bank was well-aware of their creditworthiness - one director was a
"substantial shareholder in the bank" at the time, had been a bank
customer for almost 30 years, had a balance sheet showing assets of
nearly 3 million dollars, and had previously received at least one loan
from the bank.[^55] In terms of providing evidence of a "full banking
relationship" Logos submits a copy of a bank statement demonstrating
that Logos had a checking account with the bank. Finally, as evidence
that it made the certification in good faith, Logos provides copies of
its correspondence with legal counsel discussing at length the financial
certification requirement and Logos' effort to come into compliance.

In order to be financially qualified at the time of its application
filing, an applicant must have reasonable assurance of having sufficient
funds to construct and then operate the station for three months.[^56]
The Commission has defined "reasonable assurance" as "\[a\] present firm
intention to make a loan, future conditions permitting\...."[^57] Where
an applicant relies on a bank loan, it is not Commission "practice to
second guess the bank\'s lending judgment."[^58] Rather, the
Commission\'s concern is whether the bank letter affords "reasonable
assurance." To determine whether the "reasonable assurance" standard has
been met, the Commission considers the following factors: "whether the
borrower\'s qualifications have been preliminarily reviewed by the bank;
whether adequate collateral has been demonstrated; and whether the
tentative terms are specifically identified and acceptable to the lender
as well as the borrower."[^59] Preliminary review by the bank of the
borrower\'s individual qualifications can be established either by a
showing that the bank has a long and established relationship with the
borrower or that the borrower has provided the bank with appropriate
information as to its current business proposal, its assets, and credit
history.[^60]

We find that Logos failed to establish that it had reasonable assurance
of sufficient funds on hand or available to it at the time of its
application filing. While the bank letter outlined certain terms and
conditions of the proposed loan, it did not demonstrate its "present
firm intention" to commit to the proposed financing. Moreover, the
record in this case does not support a finding that Logos'
qualifications were preliminarily reviewed by the bank, that it passed
initial muster for a loan, or that the bank relied on its banking
relationships with two of Logos' principals in establishing Logos'
creditworthiness. Accordingly, we find that the financial certification
was false, and we admonish Logos for its violation of Section 1.17 of
the Rules.[^61]

Despite our finding of false certification, there is no evidence of any
intent to deceive by Logos when it certified its financial
qualifications and, thus, no basis for finding any misrepresentation to
the Commission. The correspondence between Logos and its counsel clearly
indicates that its certification was made in good faith.[^62] Logos'
attorney reviewed the bank letter but never questioned its sufficiency.
Instead, the attorney advised Logos to revise its estimated budget in
order to comport with the \$250,000 commitment outlined in the letter,
which Logos promptly did.[^63] Moreover, the Station has been
constructed and operating for nearly thirteen years, demonstrating that
Logos is currently financially qualified.[^64] Thus, given the facts of
this case, it would serve no useful purpose to designate the application
for hearing at this late date on a financial qualifications issue.[^65]

D.  **RF Compliance Issue**

RRI, opposing the license application, argues that Logos should be
required to discontinue its current \"illegal\" operations from the KSBY
tower.[^66] According to RRI, Logos in November 1995 abandoned its
application to change sites and completed construction at the KSBY tower
in order to evade Commission monitoring of RF radiation.[^67] RRI argues
that Logos' operation of the Station causes the generation of RF
radiation in excess of the Commission's permitted guidelines.[^68] RRI
is wrong in this regard. Specifically, the Commission's engineering
staff has determined that all operations at the KSBY site appear to be
in compliance with Commission RF radiation exposure requirements.

RRI further asserts that members of the Cuesta Peak Broadcasters Group
(of which Logos is a member) have not been allowed to commence
operations pursuant to PTA. Rather, states RRI, upon completion of
construction of their facilities and before commencing operations, they
have been required to take RF field strength measurements and submit to
the Commission documentation that they have taken measures to protect
workers from excessive RF radiation. RRI claims that these requirements
are "consistent" with the restrictions set forth in a January 5, 1995,
letter from the Commission to the Cuesta Peak Broadcasters Group, and
asserts that Logos unilaterally commenced operations in contravention of
the Commission's directives.[^69] We disagree. Neither the January 5^th^
letter[^70] nor the Station construction permit require Logos to submit
a report regarding its RF compliance before commencing operations
pursuant to PTA.[^71] Accordingly, we will not consider this issue
further.

III. **Conclusion**

Based on the above, we find that RRI has failed to raise a substantial
and material question of fact warranting further inquiry. We further
find grant of the Application is consistent with the public interest,
convenience and necessity.

Accordingly, IT IS ORDERED, that Logos Broadcasting Corporation IS
ADMONISHED for its violations of Section 1.17 of the Rules.

IT IS FURTHER ORDERED, that the objections filed by Radio
Representatives, Inc., ARE GRANTED to the extent indicated herein and
ARE DENIED IN ALL OTHER RESPECTS.

IT IS FURTHER ORDERED that the application for license to cover Station
KLFF-FM, San Luis Obispo, CA (File No. BLH-95029KC) IS GRANTED.

Sincerely,

Peter H. Doyle

Chief, Audio Division

Media Bureau

cc: Logos Broadcasting Corp.

[^1]: Logos filed an Opposition to Formal Opposition to Application on
    December 8, 1994 ("Opposition"). RRI submitted a reply to the
    Opposition on January 18, 1995 ("Reply"). RRI filed a Supplement to
    Formal Opposition to Application on February 9, 1998.

[^2]: Logos filed an Opposition to Petition to Revoke on February 27,
    1995 ("Opposition to Petition to Revoke"). RRI filed a "Supplement
    to Petition to Revoke Construction Permit" on April 20, 1995 ("April
    20^th^ Supplement"). Logos filed an "Opposition to Supplement to
    Petition to Revoke Construction Permit" on May 30, 1995 ("Opposition
    to April 20^th^ Supplement"). RRI filed a "Reply to Opposition to
    Supplement to Petition to Revoke Construction Permit" on July 24,
    1995. Logos filed a further "Supplement to Petition to Revoke
    Construction Permit and Opposition to Application for License" on
    April 9, 1996 ("April 9^th^ Supplement"). Logos filed an "Opposition
    to \[Further\] Supplement to Petition to Revoke Construction Permit
    and Opposition to Application for License" on May 22, 1996, and
    filed a "Correction" to this pleading on June 13, 1996. Logos filed
    a "Supplement to Opposition to Supplement to Petition to Revoke
    Construction Permit and Opposition to Application for License" on
    June 24, 1996. RRI filed a "Supplement to Petition to Revoke
    Constriction Permit" on April 30, 1998. Logos filed an "Opposition
    to Supplement to Motion to Revoke Construction Permit" on May 22,
    1998. RRI filed a "Reply to Opposition to Supplement to Petition to
    Revoke Construction Permit" on June 8, 1998. RRI requests that its
    pleadings be treated as informal objections pursuant to Section
    73.3587 of the Rules. *See* 47 C.F.R. 73.3587

[^3]: File No. BLED-19950929KC.

[^4]: 47 U.S.C. § 309(e).

[^5]: 47 U.S.C. § 309(a). *See, e.g., WWOR-TV, Inc.,* Memorandum Opinion
    and Order, 6 FCC Rcd 193, 197 n.10 (1990), *aff'd sub nom. Garden
    State Broadcasting L.P. v. FCC,* 996 F.2d 386 (D.C. Cir. 1993),
    *rehearing denied* (Sept. 10, 1993); *Area Christian Television,
    Inc.,* Memorandum Opinion and Order, 60 RR 2d 862, 864 (1986)
    (informal objections, like petitions to deny, must contain adequate
    and specific factual allegations sufficient to warrant the relief
    requested).

[^6]: File No. BPED-910219MJ.

[^7]: File No. BMPED-940706IA.

[^8]: File No. BMPED-940706JA.

[^9]: The Commission\'s *Streamlining Order* gave all broadcast
    permittees with valid authorizations or extensions on the effective
    date of the order additional time to construct. *See 1998 Biennial
    Regulatory Review - Streamlining of Mass Media Applications, Rules,
    and Processes,* Report and Order, MM Docket No. 98-43, 13 FCC Rcd
    23056 (1998); Memorandum Opinion and Order, 14 FCC Rcd 17525 (1999).

[^10]: *Letter to Logos Broadcasting Corp. from Linda Blair*, reference
    1800B3-MFW (MB Feb. 16, 1999).

[^11]: *See* Objection at 3.

[^12]: *See id*. at 2.

[^13]: *See id*. at 4.

[^14]: *See* Opposition at 6.

[^15]: *Id*. at 7.

[^16]: Specifically, Logos claims the following construction progress at
    the KSBY site: execution of a three year satellite program contract;
    purchase of satellite dish and associated hardware; commencement of
    studio construction; purchase and storage of transmitter; and
    substantial down payment towards purchase of antenna, remote
    control, monitoring, and EBS equipment. *See* Opposition at 4.

[^17]: *See* Opposition at 10.

[^18]: 47 C.F.R. § 1.17(a).

[^19]: 47 C.F.R. § 1.17(a)(2).

[^20]: *See* 47 C.F.R. §1.17(b)(1).

[^21]: 47 C.F.R. §1.17.

[^22]: *In the Matter of Amendment of Section 1.17 of the Commission's
    Rules Concerning Truthful Statements to the Commission,* Report and
    Order, 18 FCC Rcd 4016 (2003).

[^23]: *Fox River Broadcasting, Inc.,* Order, 93 FCC 2d 127, 129 (1983)
    ("*Fox River*").

[^24]: *Id.*

[^25]: *See e.g., Southern Skies Corporation,* Memorandum Opinion and
    Order, 11 FCC Rcd 19176, 19182 (1996).

[^26]: Under Commission Rules in effect at the time Logos filed its
    extension application, in order to establish an entitlement to an
    extended construction permit, Logos was required to establish either
    that construction had not been completed due to circumstances
    "beyond the control of the permittee", that "substantial progress"
    had been made, or that construction was "completed." 47 C.F.R. §
    73.3634(b). 47 C.F.R. §73.3534(a)(2) (\"*i.e.*, demonstration that
    equipment is on order or on hand, site acquired, site cleared and
    construction proceeding toward completion\"). We find that the
    circumstances here are similar to past cases in which we granted
    permit extensions based on substantial construction of the station.
    *See Benko Broadcasting Co.*, 5 FCC Rcd 1301 (MMB 1991); *Horseshoe
    Bay Centrex Broadcasting Co.*, Memorandum Opinion and Order, 5 FCC
    Rcd 7125 (1990). We note, however, that extension requests filed
    since 1999 are currently evaluated under the stricter standard set
    forth in revised Section 73.3598(b) of the Rules. See 47. C.F.R. §
    73.3598(b).

[^27]: *See Commercial Radio Service, Inc*., Order to Show Cause, 21 FCC
    Rcd 9983, 9986 (2006)(*citing, e.g.,* *Contemporary Media, Inc., v.
    FCC*, 214 F.3d 187, 193 (D.C. Cir. 2000)).

[^28]: *See* 47 U.S.C. § 503(b)(6)(B).

[^29]: *See* Reply at 9.

[^30]: *Elijah Broadcasting Corp*. Memorandum Opinion and Order, 5 FCC
    Rcd 5350, 5351 (1990). *See Cuban-American Limited*, Decision, 2 FCC
    Rcd 3264, 3264 (Rev. Bd. 1987) ("*Cuban-American*") (touchstone for
    reasonable assurance is owner\'s express approval of site
    specification); *Shirley Marchant*, Initial Decision, 5 FCC Rcd
    2616, 2619 (I.D. 1990) (owner\'s conduct in permitting site
    specification, among other things, mislead applicant into believing
    she had reasonable assurance).

[^31]: *Cuban-American*, 2 FCC Rcd at 3266.

[^32]: *See Puopolo Communications, Inc.*, Order, 60 RR 2d 964 (Rev. Bd.
    1986) (owner\'s express assurances of availability provided tower
    was strong enough to support additional antenna were sufficient,
    although owner later concluded tower wouldn\'t be strong enough).

[^33]: *See* Petition to Revoke at 8.

[^34]: *See id*. at 6-7.

[^35]: *See* Petition to Revoke Attachments 6-9.

[^36]: *See* April 20^th^ Supplement at 3.

[^37]: *See* Opposition to Petition to Revoke at 2-3.

[^38]: *Letter to Logos Broadcasting Corporation from the Chief, Audio
    Services Division, Mass Media Bureau* (reference 1800B3-JR).

[^39]: *See* April 8, 1998 Response to Commission Inquiry, Verified
    Statement of Dan M. Lemburg.

[^40]: *Deregulation of Radio*, Report and Order, 84 FCC 2d 968, *recon.
    granted in part*, 87 FCC 2d 797 (1981) ("*Deregulation Order*").
    *Accord,* *Programming Information in Broadcast Applications*,
    Memorandum Opinion and Order, 3 FCC Rcd 5467, 5468 (1988) (the
    Commission deleted the requirement for applicants to submit detailed
    programming proposals that established "promises" from which to
    later evaluate a licensee's performance, replacing it with a
    requirement to provide a brief narrative description of proposed
    community programming. "To mandate a specific, detailed proposal
    from applicants would be inconsistent with the flexibility accorded
    licensees to adapt programming to changing marketplace incentives
    without regulatory intrusion." *Id*.)

[^41]: *Id*.

[^42]: *See* *Entertainment Formats*, Memorandum Opinion and Order, 60
    FCC 2d 858 (1976), *recon. denied*, 66 FCC 2d 78 (1977) and *FCC v.
    WNCN Listeners Guild*, 450 U.S. 582, 595-98 (1981) (\"Commission has
    provided a rational explanation for its conclusion that reliance on
    the market is the best method of promoting diversity in
    entertainment formats.\").

[^43]: Section 326 of the Act states in part: \"Nothing in this chapter
    shall be understood or construed to give the Commission the power of
    censorship \... and no regulation or condition shall be promulgated
    or fixed by the Commission which shall interfere with the right of
    free speech by means of radio communication.\" 47 U.S.C. § 326.

[^44]: *See* *Fox River, supra* n.23.

[^45]: ^?^ 47 C.F.R. 73.503.

[^46]: *See, e.g.,* *Music Ministries, Inc.,* Hearing Designation Order,
    9 FCC Rcd 3628 (MMB 1994).

[^47]: *In the Matter of Reexamination of the Comparative Standards for
    Noncommercial Educational Applicants,* Further Notice of Proposed
    Rulemaking, 13 FCC Rcd 21167, 21169 (1998).

[^48]: *Lower Cape Communications, Inc*., Memorandum Opinion and Order,
    FCC 80-453, 47 RR 2d 1577, 1579 (1980). *See also* *Florence
    Bridges,* Memorandum Opinion and Order, FCC 78-719, 44 RR 2d 667,
    668 (1978), and *LPFM Report and Order*, 15 FCC Rcd at 2214.

[^49]: *Revision of Programming Policies and Reporting Requirements
    Related to Public Broadcasting Licensees,* Notice of Proposed Rule
    Making, 87 FCC 2d 716, 732 (1981). *See also License Renewal
    Applications of Certain Commercial Radio Stations Serving
    Philadelphia, Pennsylvania,* Memorandum Opinion and Order, 8 FCC Rcd
    6400, 6401 (1993) (licensees have broad discretion over programming
    decisions).

[^50]: ^ ?^ *See* Petition to Revoke Attachments 8, 9, 11, and 12.

[^51]: *See* Petition to Revoke at 12.

[^52]: ^ ?^ *Letter to Logos Broadcasting Corporation from the Chief,
    Audio Services Division, Mass Media Bureau*, March 12, 1998
    (reference 1800B3-JR).

[^53]: *See* March 20, 1998 Response to Commission Inquiry.

[^54]: *See* August 31, 1998 Response to Commission Inquiry, Verified
    Statement of Dan M. Lemburg.

[^55]: *See id*., Verified Statement of Leon Maksoudian.

[^56]: When it filed its construction permit application, Logos
    certified that it had sufficient net liquid assets on hand or that
    sufficient funds were available from committed sources to construct
    and operate the Station for three months without additional funds.
    *See* File No BPED-19910219MJ.

[^57]: *Merrimack Valley Broadcasting, Inc*., Hearing Designation Order,
    82 FCC 2d 166, 167 (1980)

[^58]: *Liberty Productions*, Memorandum Opinion and Order, 7 FCC Rcd
    7581, 7584 (1992*); see also Harrison County Broadcasting Co*.,
    Decision, 6 FCC Rcd 5819, 5821-5822 (Rev.Bd.1991); *Annette B.
    Godwin*, Decision, 8 FCC Rcd 4098, 4101 (Rev.Bd.1993).

[^59]: *Liberty Productions,* 7 FCC Rcd at 7584.

[^60]: *Scioto Broadcasters,* Decision, 5 FCC Rcd 5158, 5160 (Rev. Bd.
    1990)

[^61]: *See* 47 C.F.R. § 1.17. Because the violation here occurred more
    than one year ago, the statute of limitations prohibits us from
    initiating a forfeiture proceeding in this case. *See* n.28,
    *supra*.

[^62]: *See Abacus Broadcasting Corp*., Decision, 8 FCC Rcd 5110, 5113
    (Rev.Bd. 1993) (noting that the Commission is reluctant to impute a
    disqualifying lack of candor to an applicant where the record shows
    good faith reliance on counsel) (*citing WEBR, Inc. v. FCC*, 420
    F.2d 158, 167-78 ( D.C. Cir. 1969) (good faith reliance on counsel
    is relevant to determining who is acting with candor); *Professional
    Radio, Inc*., Memorandum Opinion and Order, 2 FCC Rcd 6666 (1987)
    (applicant not penalized for giving name of new site owner without
    first getting his consent where amendment was made on advice of
    counsel and site owner later gave consent); *Broadcast Associates of
    Colorado*, Memorandum Opinion and Order, 104 FCC 2d 16 (1986)
    (applicant who improperly certified application on advice of counsel
    not disqualified)).

[^63]: *See* March 20, 1998 Response to Commission Inquiry.

[^64]: *See Cannon Communication Corp*., Order, 6 FCC Rcd 570, 573
    (1991) (fact that licensee constructed and operated station for
    three years dispelled any doubts regarding its financial
    qualifications).

[^65]: *See Georgia Public Telecommunications Commission*, Decision, 7
    FCC Rcd 2942, 2949 (Rev.Bd.1992), *rev. denied*, Memorandum Opinion
    and Order, 7 FCC Rcd 7996 (1992) (no useful purpose served by
    remanding to determine whether applicant was financially qualified
    at the time the application was filed since applicant is currently
    financially qualified).

[^66]: *See* Further Supplement at 7-8.

[^67]: *See id*. at 9-10. RRI also takes issue with the fact that Logos
    commenced PTA despite the fact that its construction permit had
    expired. We note, however, that the construction permit was not
    expired, but was in fact extended through August 16, 2000, pursuant
    to the *Streamlining Order*. *See* note 9, *supra*. Moreover,
    contrary to RRI's argument that Logos failed to give the Commission
    notice of its commencement of equipment tests and PTA as required by
    the Rules, Commission records show that Logos in fact notified the
    Commission on September 29, 1995, that it had commenced service
    pursuant to PTA on September 26, 1995.

[^68]: *See* April 9^th^ Supplement at 6.

[^69]: *See id.* at 5.

[^70]: *See Letter to KCEX, Inc. et al. from the Chief, Audio Services
    Division, Mass Media Bureau*, reference 1800B3-MFW (January 5,
    1995).

[^71]: Logos' construction permit stated that Logos could not commence
    operations pursuant to automatic PTA if it used an antenna other
    than the Harris FML-4E. Because Logos purchased and installed the
    specified antenna, it was not required to request PTA.