Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File Nos. BLH-20010924AAM    |
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| A-O Broadcasting Corporation     | ) | BRH-20030703ACC              |
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| License Status of Silent Station | * | BLH-20030703ACD              |
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| DKTMN(FM), Cloudcroft, New       | * | BLSTA-20040413ABX            |
| Mexico                           | * |                              |
|                                  | ) | BLSTA-20040415AGE            |
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|                                  | * | BRH-20050601AYL              |
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|                                  | * | Facility I.D. No. 89049      |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: January 15, 2008 Released: January 18, 2008**

By the Commission:

I.  **BACKGROUND**

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1.  The Commission has before it an Application for Review filed by A-O
    Broadcasting Corporation ("A-O"), which had been authorized to
    construct an FM broadcast station at Cloudcroft, New Mexico. A-O
    seeks review of a staff decision[^1] which affirmed an earlier
    decision[^2] that the station's license and all associated
    authorizations expired as a matter of law due to the station's
    failure to broadcast for one year. The staff also has referred
    related matters to the Commission and we address them herein.[^3]
    For the reasons set forth below, we deny the Application for Review
    and the related requests.

2.  Until a legislative change in December 2004,[^4] Section 312(g) of
    the Communications Act of 1934, as amended (the "Act"), provided
    that "if a broadcasting station fails to transmit broadcast signals
    for any consecutive twelve-month period," the station's license
    expires as a matter of law "notwithstanding any provision, term or
    condition to the contrary," and the license is automatically
    forfeited.[^5] At the time of the staff action under review, the
    Commission had no discretion to waive Section 312(g)'s expiration
    provision.[^6] At issue here is whether the staff properly found
    that KTMN(FM) had failed to broadcast for twelve consecutive months,
    and therefore whether the license expired pursuant to Section
    312(g). We also consider what impact, if any, subsequent revisions
    to Section 312(g) \-- granting the Commission authority to reinstate
    expired licenses \-- have on the outcome of this case.

3.  KTMN(FM) was first licensed on October 5, 2001, at a site known as
    James Ridge. The Commission's Denver, Colorado Field Office ("Denver
    Office"), responding to a complaint, inspected the James Ridge
    facilities on November 14, 2001. The inspection revealed that the
    station was not operating; A-O informed the inspectors that it had
    suspended operations on November 7, 2001.[^7] The inspection also
    revealed numerous violations, leading to a \$25,000 fine.[^8] Of
    particular concern was A-O's unauthorized installation of the
    KTMN(FM) transmitting antenna at a low position on an observation
    tower used by U.S. Forest Service rangers to watch for wildfires,
    potentially exposing the rangers and other members of the public to
    hazardous radiofrequency radiation ("RFR").[^9] The Denver Office
    required KTMN(FM) to remain off air until rectification of this
    hazard. Thereafter, the U.S. Forest Service revoked A-O's authority
    to use the James Ridge site. On March 14, 2002, A-O requested
    special temporary authorization ("STA") to remain silent. The Media
    Bureau staff granted silence authority through November 7, 2002, but
    warned that the station's license would automatically expire as a
    matter of law at 12:01 a.m., November 8, 2002, if the station did
    not resume broadcasting before then.

4.  A-O applied to the Commission on August 22, 2002, for authority to
    relocate to a new site \-- Wofford Peak. The staff granted a
    conditional construction permit on September 30, 2002. The permit
    authorized A-O to construct at Wofford Peak and to conduct
    *equipment* tests. Rather than permitting automatic program tests,
    however, the permit explicitly conditioned *program* test authority
    ("PTA") on (1) the filing of a formal PTA request with a license
    application, and (2) the submission of RFR documentation
    demonstrating compliance with Commission rules. Both were to be
    submitted at least ten days prior to commencing broadcasts.[^10]
    Such conditions are not uncommon and allow the Commission to verify
    that facilities will not expose either workers or the public to RFR
    in excess of established limits. A-O accepted the permit with these
    conditions, knowing also that it would need to file

    the PTA request and license application in time to commence
    broadcasts prior to the Section 312(g) deadline.

5.  On November 21, 2002, A-O filed a letter acknowledging that it had
    not yet taken the steps needed to obtain PTA.[^11] Nevertheless, the
    letter stated that "KTMN returned to the air for a brief period of
    *signal tests* on November 7, 2002, and has been conducting tests
    intermittently since that date."[^12] The staff considered the
    letter, which was captioned "Notification of Return to Air," as an
    argument that A-O's signal tests qualified as the "transmission of
    broadcast signals" for purposes of Section 312(g). The staff
    determined in the *Initial Decision*, however, that A-O's
    transmissions did not qualify as "broadcasting," which the Act
    defines as "the dissemination of radio communications intended to be
    received by the public."[^13] Rather, the staff found that the
    November 7^th^ transmissions were equipment tests for A-O's own use
    in determining the station's technical performance.[^14] The staff
    thus concluded that the station's license had expired on November 8,
    2002, and deleted call sign KTMN(FM) from the Commission's database.

6.  On reconsideration,[^15] A-O for the first time claimed to have
    transmitted "broadcast signals" on November 5, 2002 (*i.e.,* two
    days prior to the November 7^th^ "signal tests"). A-O provided the
    sworn declaration of an employee claiming to have aired six or seven
    songs and two station identification announcements from the Wofford
    Peak facilities prior to a power failure.[^16] In its
    *Reconsideration Decision*,[^17] the staff found A-O's submission
    procedurally defective because A-O had not raised the claimed
    November 5^th^ transmissions previously nor shown that consideration
    of that late-filed argument was required in the public
    interest.[^18] The staff also determined that the claimed
    operations, if considered as either programming or program tests,
    were unauthorized. The staff observed that A-O held no license or
    STA for the facilities from which it claimed to "resume" operations,
    and that it had not requested (and therefore has not received) PTA,
    as required by the terms of its permit.[^19] Thus, the staff
    determined that such operations could not have preserved the
    KTMN(FM) license under Section 312(g). The staff relied in part on a
    staff-level decision holding that a broadcaster cannot avoid the
    consequences of Section 312(g) by operating substantially
    non-conforming facilities without authority.[^20] A-O then filed its
    Application for Review on April 11, 2003.

7.  Despite the deletion of the KTMN(FM) call sign and all associated
    authorizations, A-O continued and eventually completed construction
    at Wofford Peak. On July 3, 2003, A-O filed two applications: one
    requesting "renewal" of the station's expired license, and the other
    seeking a license to cover the newly completed Wofford Peak
    facilities. The license renewal application contained a request for
    waiver of Section 73.3539 of the Commission's Rules (the "Rules")
    concerning timeliness of license renewal applications, because the
    application was filed more than a year before the June 1, 2005,
    filing deadline for New Mexico radio station renewals.[^21] Both
    applications indicated that A-O had operated the station after the
    November 8, 2002, Section 312(g) forfeiture of its license.[^22] A-O
    claimed that such operations were authorized pursuant to Section
    73.1615 of the Rules, pertaining to modification of facilities.

8.  On July 31, 2003, the staff dismissed both applications along with
    the associated waiver request, without written decision, and updated
    its database to reflect those actions. On August 6, 2003, the staff
    sent a letter to A-O explaining the basis for its July 31, 2003
    actions. The staff stated that the applications had been
    inadvertently accepted; KTMN(FM) had neither a valid station license
    which could be renewed nor a valid construction permit and thus, no
    facility which could be licensed. The staff also advised that
    construction and operation after license expiration were
    unauthorized and advised A-O to cease operating immediately. On
    April 8, 2004, the Denver Office received complaints that KTMN(FM)
    was operating from Wofford Peak.[^23] On April 13, 2004, the Media
    Bureau staff faxed a letter to A-O's counsel emphasizing A-O's lack
    of authority to operate and requiring A-O to report whether it
    ceased operations. A-O did not cease operations, instead requesting
    STA pending final action

    in the instant proceeding. Following an investigation, the Denver
    Office issued a Notice of Apparent Liability for \$10,000 for
    unlicensed operations.[^24] On June 1, 2005, Eagle filed an
    additional license renewal application. The staff dismissed that
    application and Eagle filed a petition for reconsideration.

    **II. DISCUSSION**

9.  **License Expiration Under Section 312(g).** As discussed above,
    A-O's arguments on reconsideration were untimely because it had not
    raised the claimed November 5^th^ transmissions previously, nor did
    A-O show that consideration of such late-filed argument was required
    in the public interest. The staff properly dismissed A-O's arguments
    on those procedural grounds, and we affirm the *Reconsideration
    Decision* on that basis. Nevertheless, in the interest of developing
    a complete record, we address the merits of A-O's primary arguments
    and find them unavailing.[^25] A-O presents several conflicting
    theories concerning the lawfulness and sufficiency of its alleged
    operations. First, A-O argues that its November 5^th^ transmissions
    broke the station's silence for purposes of Section 312(g), even if
    those transmissions were unauthorized under the conditions on its
    permit. Noting the lack of the word "authorized" in Section 312(g),
    A-O argues that Congress never intended to require stations to
    resume operations lawfully to prevent Section 312(g)
    expiration.[^26] A-O contends that had Congress intended the staff's
    approach, Congress would have included explicit language to override
    a policy enunciated in a 1984 Public Notice.[^27] The Notice
    explains processing guidelines in situations involving premature or
    nonconforming construction. It states, for example, that
    nonconforming facilities will not be allowed on the air if
    interference would result, and that appropriate action will be
    determined on a case-by-case basis. A-O argues that pursuant to such
    a policy, it should not lose its license, noting that its operations
    caused no interference. A-O also states that the *IBC* case, which
    formed a basis for the staff's decision,[^28] is distinguishable
    because *IBC* involved transmissions from facilities constructed at
    considerable variance from those permitted, whereas A-O used
    facilities specified in the Wofford Peak construction permit. A-O
    further contends that by requiring A-O to resume authorized
    operations in accordance with the conditions on its construction
    permit, the staff held A-O to a "letter perfect" standard, whereas
    the Commission has used a more lenient "substantial compliance"
    standard in other cases.[^29] A-O also argues that the staff went
    beyond its delegated authority because the issue of whether Section
    312(g) requires authorized transmissions is novel and requires
    referral to the full Commission under Section 0.283(a)(1) of the
    Rules.

10. We disagree with A-O's initial contention that unauthorized
    transmissions are sufficient to avoid the consequences of Section
    312(g). Section 301 of the Act provides that no person shall
    transmit radio signals except in accordance with authority granted
    by the Commission.[^30] It further provides that no license shall be
    construed to create any right beyond the terms, conditions, and
    authority of the license. Section 319 of the Act provides that all
    terms of a construction permit must be fully met before the
    Commission can license a station.[^31] The sanctions set forth in
    Section 312 enforce these provisions[^32] and Section 312(g)
    establishes the specific sanction for extended failure to broadcast.
    Indeed, if read to permit unauthorized operation to avoid license
    expiration, Section 312(g) would encourage violation of Section 301
    and defeat its own purpose of ensuring timely construction and
    operation of authorized facilities that serve the public. A-O's
    unsupported contention that unauthorized transmissions prevent
    cancellation under Section 312(g) is inconsistent both with the
    purpose of Section 312(g) and with other provisions of the Act.[^33]
    Accordingly, we reject that argument.

11. The 1984 Public Notice and Section 312(g) are not in conflict. The
    former sets forth administrative processing guidelines with regard
    to premature construction, the latter federal legislation with
    regard to stations that fail to provide service for extended
    periods. In any event, the statutory provision would prevail over a
    Commission processing policy without further action by
    Congress.[^34] A-O also has not shown that requiring resumption of
    legal broadcasts holds A-O to a higher standard than other stations,
    without adequate notice. A-O's reliance on cases which do not
    involve Section 312(g) is misplaced.[^35] The Commission clearly
    stated that the former Section 312(g) was nondiscretionary.[^36] We
    find that the staff did not act beyond its delegated authority when
    it concluded that the KTMN(FM) license had expired, and in any
    event, the delegated authority issue is moot in light of our
    affirmation in this order.

12. Alternatively, A-O contends that its alleged November 5^th^
    transmissions were authorized broadcast signals pursuant to Section
    73.1610 of the Rules, which governs equipment tests.[^37] This
    argument has no merit.  Equipment tests are "a necessary part of
    construction."[^38] Such tests may entail "adjustments and
    measurements as may be necessary to assure compliance with the terms
    of the construction permit";[^39] they are not transmissions of
    broadcast signals as required by Section 312(g).[^40] It is
    immaterial if A-O performed its tests using music and voice
    recordings rather than limiting the tests to tones or unmodulated
    carrier signals.  Using music or voice cannot transform equipment
    tests into broadcast service, even if the test signals are audible
    by the public.[^41]  Indeed, Section 73.1610 clearly states that
    authorization to conduct equipment tests "shall not be construed as
    constituting a license *to operate*." [^42]

13. Similarly without merit is A-O's claim that the alleged November
    5^th^ transmissions from Wofford Peak were authorized broadcasts
    pursuant to Section 73.1615 of the Rules. Under Section 73.1615(a),
    FM licensees that cannot maintain licensed operations during
    facilities modification may for a 30-day period *either* discontinue
    operations *or* operate from temporary facilities,[^43] "as
    necessary to accommodate construction and maintain the size of the
    presently licensed coverage area."[^44] KTMN(FM) had been
    nonfunctional for more than 30 days at the licensed James Ridge
    site, and its equipment had been removed from that site by the time
    A-O received its September 30, 2002, permit to construct on Wofford
    Peak. Even if we were to accept *arguendo* that Section 73.1615 is
    applicable, A-O's could not invoke the rule's "temporary facilities"
    prong to operate from Wofford Peak; A-O had already used the
    alternative "discontinued operations" prong by keeping KTMN(FM)
    off-the-air for an additional 30 days following grant of the Wofford
    Peak construction permit. Moreover, A-O has not shown that operation
    with temporary facilities on November 5, 2002, was necessary to
    maintain existing service to listeners or to accommodate removal of
    equipment from operating facilities. Further, Section 73.1615 cannot
    be invoked after-the-fact to permit otherwise unauthorized
    transmissions; temporary operation may begin only upon notification
    to the Commission.[^45] A-O provided no such notification before its
    alleged November 5, 2002, transmissions. Indeed, as noted above, A-O
    first disclosed these transmissions in its February 5, 2003,
    petition for reconsideration and made no assertions regarding
    Section 73.1615 as a basis for its operating authority until April
    2003, when it filed the Application for Review.[^46]

14. Citing two Enforcement Bureau cases, A-O argues that if its
    operations were unauthorized, the appropriate sanction is, at most,
    a monetary forfeiture. A-O contends that it should be treated no
    more harshly than the licensee in *M.C. Allen Productions*, where
    the staff assessed a \$4,000 forfeiture for operations at an
    unauthorized location for over one year.[^47] A-O also contrasts its
    actions with those of a broadcaster which received a \$6,000
    forfeiture for unauthorized operations in *WRHC Broadcasting Corp*.;
    A-O emphasizes its own use of the site specified in its construction
    permit whereas the other broadcaster operated intentionally from a
    site for which it held no permit.[^48] In its 2004 Supplement, A-O
    cites additional cases in which the Commission opted for lesser
    sanctions when stations failed to construct as authorized.[^49] A-O
    argues that it should be viewed as a responsible broadcaster for not
    attempting to return to the air from James Ridge given the history
    of that site.

15. A-O fails to comprehend the critical differences between rule
    violations and Section 312(g). The Commission has discretion to
    shape a remedy for rule violations.[^50] As emphasized previously,
    however, Section 312(g), as in effect during the period at issue
    here, afforded the Commission no discretion to impose a fine while
    allowing the station to operate. It was thus not within the
    Commission's power to fashion an individually-tailored remedy, such
    as a monetary forfeiture, for KTMN(FM)'s failure to resume
    authorized operations within 12 months of going silent. The cases
    A-O cites do not persuade us otherwise. They do not address Section
    312(g), focusing only on other rule violations. In fact, several of
    these cases pre-date Section 312(g) or involve non-broadcast
    services or permits which are not subject to Section 312(g).

16. **License Applications.** A-O argues that notwithstanding the
    language of Section 312(g), the Commission can renew the licenses of
    stations that have been silent for more than 12 months and license
    new construction by such stations.[^51] It argues that we should
    reinstate its renewal application as well as its license-to-cover
    application *nunc pro tunc* and process the applications to
    grant.[^52] A-O relies primarily on two staff actions. In one case,
    *Morradio,*[^53] the Commission staff simultaneously issued a
    \$4,000 forfeiture, accepted a late-filed license renewal
    application, and granted partial STA for the station, which had
    operated 10 miles from its licensed site. The license for which
    renewal was sought had expired by its own terms, however, not by
    operation of Section 312(g).[^54] The second staff action renewed
    the license of a previously silent station in Lordsburg, New Mexico,
    apparently without written decision.[^55] A-O acknowledges that the
    record contained conflicting information about the date the station
    resumed operations, and its arguments that the staff renewed the
    license despite Section 312(g) relies on pleadings that were
    withdrawn and dismissed. We find both the *Morradio* decision and
    the Lordsburg action to be irrelevant to our analysis here.

17. A-O's arguments for renewal of its expired license are virtually
    identical to arguments rejected by the United States Court of
    Appeals for the D.C. Circuit on two occasions. In *Aerco
    Broadcasting*,[^56] the court affirmed the Commission's dismissal of
    a license renewal application that was pending on the 12-month
    deadline for resumption of broadcasting. The renewal application in
    that case was held moot because "\[t\]he subject license was
    automatically forfeited as a result of \[the station's\] inactivity
    over a 12-month period . . . ."[^57] Similarly, in *OCC
    Acquisitions,* the court upheld the Commission's dismissal of
    applications for license renewal and license modification, as well
    as a request for STA. The court agreed with the Commission that
    "when a license expires by operation of law under 47 U.S.C.
    \[Section\] 312(g) the Commission lacks discretion to extend the
    license term," and found that the Commission had adequately
    explained why "expiration by operation of Section 312(g) is unique."
    [^58] The court therefore rejected a claim that the Commission
    should have reinstated a station's deleted call letters for the
    purpose of considering an application for renewal of license. As in
    *Aerco Broadcasting* and *OCC Acquisitions,* A-O's license and
    associated authorizations were forfeited pursuant to Section
    312(g).[^59] When a license terminates by operation of law, neither
    it nor associated applications can be revived through the
    Commission's license renewal process. The construction permit for
    Wofford Peak was thus forfeited along with the license, and any
    subsequent construction was unauthorized. The license renewal and
    license-to-cover applications were thus appropriately
    dismissed.[^60]

18. **Operating Authority/STA.** As discussed above, A-O completed
    construction at Wofford Peak and began to operate in July 2003, well
    after the forfeiture of A-O's authorizations. In response to A-O's
    disclosure of such operations in its July 3, 2003, applications, the
    staff contacted A-O on August 6, 2003, stating that "you are hereby
    advised to cease such operation immediately . . . ." As also
    discussed above, A-O nevertheless activated the station again in
    April 2004, arguing that it was qualified to broadcast under the
    emergency provisions of Section 73.1250 of the Rules[^61] and
    pursuant to Section 307(c)(3) of the Act, which provides that a
    license shall continue in effect pending final decision on a license
    renewal application. A-O also cited Section 73.3542(a), which allows
    the Commission to grant temporary authority "in extraordinary
    circumstances requiring emergency operation to serve the public
    interest."[^62] On April 13, 2004, following complaints to the
    Denver Office about those operations, the Media Bureau staff advised
    A-O that the station was without authority to operate, and that any
    operation would subject the station to monetary forfeitures. The
    staff rejected A-O's reliance on Section 73.1250 because that rule
    does not permit broadcasting but rather point-to-point messages for
    dispatch and rescue; the rule also does not authorize operations
    when a station's license has been forfeited. In response, A-O filed
    a request for STA to operate from Wofford Peak.

19. A-O argues that grant of STA would serve the public interest because
    Cloudcroft would otherwise lack public safety information that
    residents need to respond to snow, forest fires, drought, and mud
    slides. A-O submits statements from Alan Hale (a Cloudcroft
    resident) stating that KTMN(FM) provides information unavailable on
    more distant stations, and Gene Green, Cloudcroft's Chief of Police,
    stating that the station's snowstorm coverage was helpful. A-O also
    supplements its submission with a statement from Dave Venable, Mayor
    of Cloudcroft, stating that KTMN(FM) could be an asset to Cloudcroft
    if it disseminated information concerning fires, water rationing,
    and evacuations. A-O contends that other stations do not provide
    adequate service to Cloudcroft and that it could take years under
    the Commission's auction procedures to authorize another station on
    KTMN(FM)'s channel. In May 2005, A-O submitted a three-page petition
    signed by Cloudcroft residents and visitors stating that KTMN(FM)
    was an asset to Cloudcroft when it was on the air and that they
    would like the station to resume broadcasting.

20. The Commission's rules specify that authority to operate a station
    pursuant to STA is limited to permittees or licensees.[^63] As of
    November 8, 2002, A-O no longer held a permit or license for
    KTMN(FM). Moreover, KTMN(FM)'s service record belies A-O's claim
    that it would be a reliable community resource during any local
    emergencies. KTMN(FM) was licensed for approximately thirteen
    months. During that time, it operated for only one month,[^64] was
    unable to achieve full authorized power, and violated numerous rules
    \-- including lack of an operating emergency alert system and an RFR
    violation that could have jeopardized the health of the forest
    rangers whose firefighting efforts A-O now champions. A-O has not
    shown that Cloudcroft is without any other radio service in the
    event of an emergency.[^65] There are two other FM stations licensed
    to Cloudcroft. One of these is noncommercial educational station
    KHII(FM), which is controlled by A-O's principal.[^66] Additionally,
    engineering data indicate that Cloudcroft receives signals from
    stations licensed to other communities. While A-O observes that such
    stations generally direct programming to listeners outside
    Cloudcroft, it submits no evidence that such stations could not
    convey vital public safety information to their Cloudcroft listeners
    if so requested by local authorities in an emergency. Nor has A-O
    demonstrated the "extraordinary circumstances" required for grant of
    an emergency authorization under Section 73.3542. A-O supplies a
    June 4, 2004, letter from the Mayor of Cloudcroft stating that
    "currently we do not have any means of getting critical warning and
    essential information disseminated in a timely and life-saving
    manner to our residents."[^67] Nevertheless, there is no indication
    or explanation of why the other stations licensed to Cloudcroft,
    including KHII(FM), would be unable to assist if an emergency arose.
    At the time of the Mayor's letter, KHII(FM) had been silent for an
    extended period. It resumed operations, however, on July 1, 2004.
    Furthermore, the loss of KTMN(FM) does not permanently remove a
    station from Cloudcroft. As the staff observed, a channel will
    remain allotted to Cloudcroft, and all interested entities will have
    the opportunity to apply for the vacant allotment. We find
    unpersuasive A-O's claim that the Commission should grant STA
    because it has not yet scheduled a filing window for the now-vacant
    Cloudcroft allotment.

21. A-O contends that, even without STA, it has authority to operate
    KTMN(FM) until the Commission or a court takes final action on its
    license renewal applications.[^68] In support, A-O cites two
    Commission decisions and one court case.[^69] We reject A-O's
    contention. First, these cases pre-date Section 312(g). Second, when
    the Commission has allowed licensees whose renewal applications have
    been denied to continue operating pending the exhaustion of a
    judicial appeal, it has done so as a matter of discretion.[^70] A
    court also has recognized the Commission's ability to prohibit
    operations during the appeal of an unfavorable license renewal
    decision.[^71] Finally, as discussed above, when a station's license
    expires pursuant to Section 312(g), all associated authorizations
    and applications are nullified. A license renewal application for a
    station whose license has already expired under Section 312(g) is
    thus a nullity and cannot give rise to any operating authority.

22. A-O was advised on January 3, 2003, that its license had expired
    automatically on November 8, 2002. As the staff subsequently
    advised, A-O's administrative appeal of that determination provided
    no operating authority. Non-hearing actions taken pursuant to
    delegated authority, unless otherwise ordered by the designated
    authority, are effective upon release.[^72] The staff's January 3,
    2003, letter did not otherwise order. Nor did A-O's Application for
    Review stay the effectiveness of that decision. Although the
    Commission has discretion to stay the effectiveness of an order for
    which review is sought, it has not done so here.[^73] Similarly, the
    filing of the September 4, 2003, petition for reconsideration of the
    dismissal of the license-to-cover and license renewal applications
    has no impact on the effectiveness of those actions.[^74] The staff
    properly advised A-O multiple times that the station was without
    authority to operate.[^75]

23. In its 2004 Supplement, A-O argues that support for its operations
    can also be found in Section 307(c) of the Act, Section 558(c) of
    the APA, and Section 1.62 of the Commission's rules.[^76] All of
    these provisions permit station operations while a renewal
    application is pending, but all presuppose that the application was
    properly filed. During the relevant time period, Section 307(c) of
    the Act stated that "the Commission *may by rule prescribe* *the
    period* or periods of which licenses shall be granted and renewed .
    . . Pending any hearing and final decision on such an application .
    . . the Commission shall continue such license in effect." (Emphasis
    added.) By subsequent legislation (*see supra* note 4) the term "any
    hearing" has been changed to "any administrative or judicial
    hearing," a change that does not affect the outcome of this case.
    Section 558(c) of the APA states: "When the licensee has made a
    *timely and sufficient* application for a renewal or a new license
    *in accordance with agency rules,* a license with reference to an
    activity of a continuing nature does not expire until the
    application has been finally determined by the agency*.*" (Emphasis
    added.) Section 1.62 of our Rules provides for continued operations
    "where there is pending before the Commission *at the time of
    expiration* of license any *proper and timely* application for
    renewal of license." (Emphasis added.) A license-to-cover or license
    renewal application filed after Section 312(g) forfeiture of the
    station's license is neither proper, timely, sufficient, nor filed
    within the period prescribed by rule.

24. Section 307(c) is designed to permit stations to continue operations
    when the agency is considering renewal of a license that has expired
    on its own terms.[^77] To the extent that A-O equates Section
    312(g)'s use of the word "expire" with license expiration at the end
    of a station's normal eight-year license term, A-O's understanding
    is inconsistent with Section 312(g)'s legislative history. Congress
    designed Section 312(g) to "terminate"[^78] licenses by "automatic
    cancellation,"[^79] and, as discussed above (at paragraph 2) the
    result is license forfeiture. Section 307(c) does not operate as an
    exception to Section 312(g), which was adopted after Section 307(c)
    and which provided no exemption from its terms based on the pendency
    or subsequent filing of any application. We find that all of the
    staff's actions with respect to KTMN(FM) were in accordance with
    Section 312(g), as then in effect.

25. **Effect of Legislation.** On December 8, 2004, legislation was
    signed into law which, *inter alia*, revised Section 312(g). The
    revised law retains all of the existing language of Section 312(g)
    but adds new language that provides, "the Commission may extend or
    reinstate \[a\] station license if the holder of the station license
    prevails in an administrative or judicial appeal, the applicable law
    changes, or for any other reason to promote equity and
    fairness."[^80] In its 2005 Supplement,[^81] A-O argues that the
    Commission must reinstate its license pursuant to this provision.
    A-O observes that the Act does not define "equity and fairness," and
    urges the Commission to adopt four "equitable maxims" for deciding
    Section 312(g) cases. One maxim urged by A-O \-- and the only one of
    the four allegedly grounded in case law \-- is that "equity abhors a
    forfeiture."[^82] A-O also argues that the Commission should follow
    non-Section 312(g) cases in which the Commission acted leniently
    based on concerns for equity and fairness.[^83]

26. We reject A-O's reading of the legislation. The new provision does
    not change the automatic cancellation provision of 312(g) nor
    mandate any particular Commission action with respect to stations
    located outside Alaska. It states that the Commission "*may* extend
    or reinstate" non-Alaska licenses in certain circumstances. This
    limited, discretionary provision is phrased as an exception to the
    general rule that most affected licenses will be forfeited.
    Broadcast licenses continue to expire and are forfeited
    automatically at the end of 12 months of silence unless, prior to
    that time, the Commission has granted STA explicitly authorizing a
    longer period of silence. After the license has been forfeited, the
    Commission may reinstate the license upon an appropriate showing.
    For purposes of deciding whether any applicant's showing is
    sufficient under Section 312(g), as revised, we decline to adopt
    A-O's proposed maxims of equity.[^84] Were the Commission to adopt
    them, the Commission would likely find any loss of license
    inequitable, nullifying Section 312(g). The Commission and its staff
    will determine on a case-by-case basis whether any purported
    equities associated with individual circumstances warrant
    reinstatement of a license forfeited pursuant to Section 312(g).

27. A-O's license expired on November 8, 2002, before the 2004
    legislation was enacted. In any event, we do not find that A-O has
    met any of the statutory exceptions for reinstatement (*i.e.*,
    prevailing in an administrative or judicial appeal, changes in
    applicable law, or promotion of equity and fairness). We find
    unpersuasive A-O's claim that it should be viewed as more diligent
    than silent stations that originally caused Congress to enact
    Section 312(g), and that A-O's principal deserves another chance
    based on past broadcasting experience. Based on our consideration of
    the entire record, as discussed above, we find no legal or equitable
    basis to reinstate the forfeited license of KTMN(FM). In particular,
    A-O's circumstances are the direct result of its own public safety
    rule violations at James Ridge and its failure to complete
    construction in accordance with express permit conditions designed
    to prevent similar problems at Wofford Peak. Moreover, following
    forfeiture of the KTMN(FM) license A-O engaged in unauthorized
    construction and operation in defiance of staff orders.

    **III. ORDERING CLAUSES**

28. Accordingly, IT IS ORDERED, that the April 10, 2003, Application for
    Review filed by A-O Broadcasting IS DENIED; that the September 4,
    2003, and July 22, 2005, Petitions for Reconsideration filed by A-O
    Broadcasting, as supplemented, ARE DENIED; and that the Requests for
    Special Temporary Authorization filed by A-O on April 13, 2004, and
    April 15, 2004, ARE DENIED.

29. IT IS FURTHER ORDERED, that A-O Broadcasting Corporation's Wofford
    Peak tower, which lacks a current Commission construction permit or
    license, cannot be used for communications purposes. Until the tower
    is dismantled and removed, the structure will remain subject

    to the requirements of the Federal Aviation Administration and to
    any future action the Commission may take in coordination with the
    FAA pursuant to 47 U.S.C. Section 303(q).

    FEDERAL COMMUNICATIONS COMMISSION

> Marlene H. Dortch
>
> Secretary

[^1]: *Letter to Paul H. Brown, Esq.*, 18 FCC Rcd 3818 (MB 2003)
    ("*Reconsideration Decision*").

[^2]: *Letter to Paul H. Brown, Esq.,* 18 FCC Rcd 35 (MB 2003)
    ("*Initial Decision*").

[^3]: The staff has referred: (1) a September 4, 2003, petition seeking
    reconsideration of the dismissal of two applications that A-O filed
    in July 2003 \-- one for license renewal, and one for a license to
    cover facilities at a new site; (2) a July 22, 2005, petition for
    reconsideration of the dismissal of an additional license renewal
    application filed in June 2005; and (3) two requests for special
    temporary authorization ("STA") that A-O filed in April 2004 to
    operate at a new site (collectively, the "STA Requests").

[^4]: *See* Consolidated Appropriations Act, 2005, Pub. L. No. 108-447,
    118 Stat. 2809, Title IX, § 213 (2004).

[^5]: *See* 47 U.S.C. § 312(g) (1996). *See also Aerco Broadcasting
    Corp. v. FCC*, 51 Fed. Appx. 23 (D.C. Cir. 2002) (per curiam)
    (effect of Section 312(g) expiration is license forfeiture).

[^6]: *See WYCQ, Inc.*, Memorandum Opinion and Order, 18 FCC Rcd 16900,
    16902-03 (2003); *OCC Acquisitions, Inc.*, Memorandum Opinion and
    Order, 17 FCC Rcd 6147, 6151 (2002), *aff'd per curiam, OCC
    Acquisitions, Inc. v. FCC*, 64 Fed. Appx. 790 (D.C. Cir. 2003);
    *Silent Station Authorizations,* Order, 11 FCC Rcd 16599, 16600-01
    (1996). *See also Expiration of License for Radio Facilities,*
    Public Notice, 12 FCC Rcd 3769 (MMB Apr. 3, 1997) (announcing
    license expiration of 24 silent stations and procedures to apply for
    new facilities to take their place).

[^7]: By letter dated November 20, 2001, A-O filed a notification that
    it had gone off the air for a period less than 30 days due to a
    computer failure. Stations that are silent for more than ten days,
    but fewer than 30 days, must notify the Commission but need not
    obtain silence authority. *See* 47 C.F.R. § 73.1740(a)(4). A-O's
    silence notification reached the Commission on January 9, 2002, and
    apparently was routed to the Enforcement Bureau, which had required
    the station to cease operating, rather than to the Media Bureau
    which grants authority to remain silent for periods over 30 days.

[^8]: *See A-O Broadcasting*, Notice of Apparent Liability, 17 FCC Rcd
    24184 (2002) ("*2002 NAL Order")*, *forfeiture issued,* 31 Comm.
    Reg. (P&F) 411 (2003), *recon. denied,* 34 Comm. Reg. (P&F) 858
    (2005).

[^9]: *2002* *NAL Order,* 17 FCC Rcd at 24184.

[^10]: Construction Permit BPH-20020822AAC, Conditions 2 and 3.

[^11]: *Letter from Paul H. Brown* (Nov. 21, 2002) ("The KTMN permit
    does not contemplate automatic program tests at the station's
    authorized location. However, KTMN will be requesting program test
    authority shortly. A-O has made arrangements to measure RF radiation
    in the vicinity of the new antenna location in order to support its
    application for program test authority.")*.*

[^12]: *Id.* (emphasis added).

[^13]: 47 U.S.C. § 153(6).

[^14]: *Initial Decision*, 18 FCC Rcd at 35.

[^15]: *See* Petition for Reconsideration (Feb. 3, 2003) ("February
    Petition"). With consent from the staff, A-O supplemented the
    February Petition on June 25, 2004 ("2004 Supplement"). Without any
    prior consent, A-O submitted an additional supplement on March 11,
    2005 ("2005 Supplement"). The 2005 Supplement will be considered in
    part and dismissed in part. *See infra* notes 81-83 and accompanying
    text.

[^16]: *See Declaration of Mark Swalley, Employee* (attached to February
    Petition). The employee, who did not identify his title or position,
    stated that he was assisting in the completion of the station's new
    transmission facilities, that he aired material while working on the
    station's computer system, and "understood the purpose of our
    efforts to be the re-activation of service to the public." February
    Petition at 3.

[^17]: *Reconsideration Decision,* 18 FCC Rcd at 3819.

[^18]: *See* 47 C.F.R. § 1.106(c).

[^19]: At the time of the issuance of the *Reconsideration Decision* A-O
    had not requested STA for operations at the new Wofford Peak site,
    nor had it requested PTA or performed the prerequisite RFR
    measurements, nor had it filed a license application.

[^20]: *See* *Reconsideration Decision,* 18 FCC Rcd at 3820, n.7 (citing
    *Idaho Broadcasting Consortium*, Letter, 16 FCC Rcd 1721, 1723 (MMB
    2001) ("*IBC*")).

[^21]: *See* 47 C.F.R. §§ 73.1020 and 73.3539. The station filed another
    license renewal application (BRH-20050601AYL) on June 1, 2005, the
    ordinary due date for licensed New Mexico stations. The staff
    dismissed that application, without letter, as inadvertently
    accepted for filing.

[^22]: The application for modified license disclosed that the station
    was activated in March 2003 for purposes of taking RFR measurements.
    *But see* 47 C.F.R. § 73.1610(c) (equipment tests may continue only
    so long as the construction permit remains valid). The license
    renewal application indicated that the station was on the air and
    planned to transmit a July 4, 2003, parade. *See* File No.
    BRH-20030703ACC, Question III(5).

[^23]: KTMN(FM) simulcast 100% of the programming of station KUPR(FM),
    Alamogordo, New Mexico, licensed to Southern New Mexico Radio
    Foundation. A-O's President is also President of Southern New Mexico
    Radio Foundation. On Friday, April 9, 2004, A-O filed a notification
    that KTMN(FM) would be operating over the weekend to provide
    "emergency" information about a predicted snowstorm. A-O also
    maintained that it was entitled to operate because its Application
    for Review remained pending.

[^24]: *See* *A-O Broadcasting Corp.*, Notice of Apparent Liability (EB
    Apr. 23, 2004). We have received complaints that A-O operated again
    in July 2004. These complaints have been forwarded to the
    Enforcement Bureau.

[^25]: A-O's other arguments warrant only brief mention. A-O's
    allegations of staff prejudice against A-O and its principal are
    completely unsupported and without merit. A-O argues disparate
    treatment because the staff deleted the KTMN(FM) call sign without
    first sending an inquiry letter, but an inquiry was unnecessary
    because A-O's November 21, 2002, submission already provided the
    type of information ordinarily requested. *See supra* note 11.

[^26]: According to A-O, "\[r\]egardless of whether KTMN's transmissions
    were authorized . . . the Act does not limit transmissions
    sufficient to break a 12-month period of silence to those that are
    in every respect undertaken precisely in accordance with every jot
    and tittle of a construction permit. The Act only condemns to death
    those stations that utterly fail to 'transmit' any 'broadcast
    signals' at all." Application for Review at 7.

[^27]: *See* 2004 Supplement at 10, n.8 (referencing Public Notice,
    "Commission Policy Regarding Premature or Nonconforming
    Construction," Mimeo No. 3853 (Apr. 27, 1984) (available at

    [http://www.fcc.gov/ftp/Bureaus/Mass_Media/Databases/documents_collection/pn19840427.pdf]{.underline})).

[^28]: *See supra* note 20.

[^29]: *See* 2004 Supplement at 12 (citing *Lutheran Church/Missouri
    Synod,* Initial Decision, 10 FCC Rcd 9880 (ALJ 1995) (subsequent
    history omitted); *North Florida MMDS Partners,* Memorandum Opinion
    and Order on Reconsideration, 10 FCC Rcd 11593, 11607 (1995);
    *Crowell-Collier Broadcasting Corp.,* Memorandum Opinion and Order,
    44 FCC 2444, 2449 (1961)).

[^30]: 47 U.S.C. § 301.

[^31]: 47 U.S.C. § 319(c).

[^32]: *See* 47 U.S.C. § 312.

[^33]: *Cf. United States v. Peninsula Communications, Inc.*, 335
    F.Supp.2d 1013, 1019 (D. Alaska 2004) (rejecting licensee's argument
    that Section 312(g) allows a licensee to continue operating a
    broadcast station after the license is cancelled or revoked in order
    to "protect" the license from automatic expiration during pendency
    of a lengthy appeal).

[^34]: *See Fiorentino v. U.S.*, 607 F.2d 963, 967 (D.C. Cir. 1979),
    *cert. denied,* 444 U.S. 1083 (1980) ("We find nothing in the
    Supreme Court or D.C. Circuit decisions to suggest that . . .
    "agency fostered policies and understandings' could override . . .
    the limitations of express statutes . . . ." (cited in *Doe v.
    Gates,* 981 F.2d 1316, 1321 (D.C. Cir. 1983))).

[^35]: *See supra* note 29 and *infra* note 49.

[^36]: *See, e.g., Silent Station Authorizations,* 11 FCC Rcd at
    16599-00; *OCC Acquisitions, Inc.,* 17 FCC Rcd at 6149-50; *WKZF-FM,
    Inc.,* Summary Decision, 11 FCC Rcd. 11793, 11796-98 (ALJ 1996)
    (agency has no discretion to grant silent station's request to
    withhold Section 312(g) expiration until after grant of a
    modification application needed to return station to the air).

[^37]: A-O argues that it broadcast programming during the equipment
    tests. *See* Application for Review at 7 (citing 47 C.F.R. §
    73.1610). *See also* 2004 Supplement at 4 ("\[C\]ounsel's November
    21 letter erred in characterizing KTMN's broadcasts as equipment
    tests. In fact, the station had broadcast programs.")

[^38]: 47 C.F.R. § 73.1610(d).

[^39]: *Id.* § 73.1610(a). The record supports a finding that if there
    were transmissions from Wofford Peak on November 5, 2002, they could
    only have been equipment tests during ongoing construction. A-O
    concedes that as of November 21, 2002 (weeks after the Section
    312(g) deadline) it had taken no RFR measurements, had received no
    PTA, and had not been in a position to submit a license application.
    *See supra* note 11. Further, while A-O's employee indicates that
    the ultimate purpose of his work was "re-activation of service to
    the public," and that he assisted "in completing the transmission
    facilities" sometime between Fall 2002 and February 2003, the
    employee as of November 5^th^ was still "working on KTMN's computer
    system" (which was responsible for KTMN(FM) going off the air at
    James Ridge) and experiencing power problems ("A-O . . . went on the
    air on November 5, 2002, albeit at less than full power" and
    "shortly after the transmissions began the power failed."). *See
    supra* note 16 and *infra* note 41. Broadcast service to the public
    is not authorized until the permittee (a) has completed construction
    of the station, (b) has filed an application for a license, and (c)
    commences with program tests when it files such license application
    or, if PTA is not automatic, has requested and received PTA. It was
    not until July 3, 2003, almost eight months after its license
    expired under Section 312(g), that A-O indicated completion of
    construction by attempting to file an application for a license to
    cover the also-expired construction permit for the Wofford Peak
    facilities.

[^40]: *See Carlos J. Lastra, Trustee,* Memorandum Opinion and Order, 16
    FCC Rcd 17268 (2001), *aff'd sub nom. per curiam, Aerco Broadcasting
    Corp. v. FCC* , 51 Fed. Appx. 23 (D.C. Cir. 2002) (automatic
    expiration pursuant to Section 312(g) not prevented by transmission
    of a television test pattern).

[^41]: Moreover, due to a problem A-O reports with its power source
    which resulted in reduced power test transmissions, it is not clear
    that the tests were even capable of reaching, or did reach, the
    general public. *See* 2004 Supplement at 4.

[^42]: *See* 47 C.F.R. § 73.1610(d) (emphasis added). A-O's argument
    that its November 5^th^ operations were authorized is based on A-O's
    holding a permit to *construct* at Wofford Peak. That argument is
    without merit because the permit on which A-O relies contained a
    condition that prohibited *operation* of the Wofford Peak facilities
    prior to satisfying the permit's RFR condition. *See supra,* ¶ 4.

[^43]: 47 C.F.R. § 73.1615.

[^44]: *See Reregulation and Oversight of the Rules for Radio and TV
    Broadcasting,* 76 F.C.C.2d 40 (1980) (subsequent history omitted).

[^45]: 47 C.F.R. § 73.1615(c).

[^46]: In light of the RFR condition on A-O's permit, the Commission
    could have precluded in any event A-O's temporary operations at the
    Wofford Peak site, even if such operations had been otherwise
    acceptable under Section 73.1615(a). *See* 47 C.F.R. § 73.1615(e)
    (Commission can disallow Section 73.1615 operations). A limiting
    condition placed on the Commission permit or license of a specific
    facility to protect public safety will not be defeated by a rule of
    general applicability, just as the specific governs the general for
    purposes of statutory construction. *Cf. Varity Corp. v. Howe,* 516
    U.S. 489, 511 (1996) ("\[t\]his Court has understood the present
    canon ('the specific governs the general') as a warning against
    applying a general provision when doing so would undermine
    limitations created by a more specific provision").

[^47]: Forfeiture Order, 16 FCC Rcd 21138 (EB 2001).

[^48]: Forfeiture Order, 16 FCC Rcd 10059 (EB 2000).

[^49]: *See* *KM Radio of St. Johns,* Memorandum Opinion and Order and
    Notice of Apparent Liability, 19 FCC Rcd 5847 (2004) (\$4,000
    forfeiture for construction of new FM station 900 feet from
    authorized site); *Maria L. Salazar,* Memorandum Opinion and Order,
    19 FCC Rcd 5050 (2004) (\$34,000 forfeiture for multiple violations
    by FM station including \$4,000 for operations outside community of
    license); *Tekk Comm,* Forfeiture Order, 19 FCC Rcd 392 (EB 2004)
    (\$3,200 forfeiture for operating wireless equipment from an
    unauthorized site); *Multimedia Development Corp.,* Memorandum
    Opinion and Order, 17 FCC Rcd 22649 (four notices of apparent
    liability totaling \$80,000 rescinded where receiver replaced
    offending licensee and forfeiture would harm innocent creditors)
    (WTB 2002); *Morradio,* Forfeiture Order, 14 FCC Rcd 5201 (CIB 1999)
    (\$4,000 forfeiture for operation at unauthorized site).

[^50]: *See* 47 U.S.C. § 503(b)(3)(A).

[^51]: To the extent that A-O relies on *Southwestern Broadcasting
    Corp.,* Order, 11 FCC Rcd 14880 (1996), A-O misinterprets that case.
    Under the statute in effect at the time of the staff's decision, the
    Commission could not undo Section 312(g) expiration by acting on a
    license application or otherwise. In any event, that argument has
    been superceded by recent statutory revisions. *See infra* ¶ 25.

[^52]: A-O also repeats arguments made in a waiver request submitted
    with the renewal application because it believes the staff did not
    consider those arguments. The rule for which A-O sought waiver, 47
    C.F.R. § 73.3539, states that renewal applications are due four
    months prior to expiration of the normal license term. The rule is
    inapplicable to Section 312(g) expirations. Even had KTMN(FM) filed
    a license renewal application four months prior to Section 312(g)
    expiration (in its eighth month of silence) that application would
    have been dismissed once the license was forfeited under Section
    312(g). *See* *Silent Station Authorizations,* 11 FCC Rcd at 16600;
    *Commission Implements Rules Regarding Silent Broadcast Stations,*
    Public Notice, 1996 WL 257503 (May 17, 1996).

[^53]: 14 FCC Rcd 5201 (CIB 1999).

[^54]: The *Morradio* decision indicates that the station first went
    silent on October 21, 1998. As of the date of the decision, released
    April 2, 1999, a 12-month period had not yet passed. There is no
    indication that the station did not resume authorized operations
    within one year, *i.e.,* by October 21, 1999.

[^55]: *See generally* 47 C.F.R. § 0.445(e) (unpublished actions may not
    be relied upon as precedent).

[^56]: 51 Fed. Appx. 23 (*aff'g* *Carlos J. Lastras*, 16 FCC Rcd 17268
    (2001) and *Letter to John A. Borsari, Esq.* (MMB Nov. 14, 2000)).

[^57]: *Id.* at 24.

[^58]: *OCC Acquisitions, Inc. v. FCC,* 64 Fed. Appx. at 790.

[^59]: A-O's argument of renewal discretion is even weaker than those
    rejected in *OCC Acquisitions* and *Aerco Broadcasting*. In each of
    these cases, the applicant had filed a timely application for
    license renewal prior to license expiration pursuant to Section
    312(g). In contrast, A-O filed its July 2003, application for
    license renewal outside of the renewal window for New Mexico
    stations and after its license expired by operation of Section
    312(g). Its June 2005, renewal application also was filed long after
    the license expired by operation of Section 312(g) and was a
    nullity.

[^60]: To the extent that A-O argues that the act of filing the renewal
    application affords it ongoing operating authority, we address that
    matter below. *See infra* ¶¶ 22-24.

[^61]: 47 C.F.R. § 73.1250(b).

[^62]: 47 C.F.R. § 73.3542(a).

[^63]: *See* 47 C.F.R. § 73.1635. *See also* 47 U.S.C. §§ 309(b) and
    (f).

[^64]: Specifically, A-O was licensed on October 5, 2001, suspended
    operations on November 7, 2001, and remained silent for the next 12
    months. A-O may also have operated for less than the minimum
    operating schedule during its one month of operations. A-O states
    that its "transmitter showed only 33 hours of total operation as of
    November 7, 2001, when a computer failure took the station dark."
    2004 Supplement at 4.

[^65]: *See generally Michael Rice,* Memorandum Opinion and Order, 16
    FCC Rcd 18394 (2001) (former licensee ordered to cease operations
    despite loss of service, where the area was served by other
    stations). A-O argues that some thinly populated areas near the
    Lincoln National Forest have radio service that is not reliable, but
    does not show that existing stations cannot address any such
    reliability issues. *See* 2004 Supplement at 23. *See also* note 66
    *infra.*

[^66]: KNMB(FM) (a Class C commercial station) and KHII(FM) are licensed
    to Cloudcroft. Each of these stations has experienced temporary
    technical difficulties. KNMB(FM) is currently operating with reduced
    power from a temporary site pursuant to STA as the result of
    interference problems. KHII(FM) is currently operating but was
    silent with authorization due to technical problems during the
    following periods: April 1, 2003, through May 3, 2003; July 5, 2003
    to July 1, 2004; and March 22, 2006 through February 6, 2007.
    KHII(FM) also notified the Commission of two brief periods of
    silence in 2004 and 2005. Robert Flotte, President and 100% owner of
    A-O, is also President, Director, and holds 100% interest in
    Southern New Mexico Radio Foundation, licensee of KHII(FM),
    Cloudcroft and KUPR(FM), Alamogordo, New Mexico. On October 22,
    2007, the Commission received an application proposing to construct
    a new noncommercial station at Cloudcroft. *See* File No.
    BNPED-20071017ACL.

[^67]: 2004 Supplement, Exhibit A.

[^68]: *See* STA Requests at 2.

[^69]: *See Pinelands, Inc.,* Memorandum Opinion and Order. 7 FCC Rcd
    6058, 6061 n.12 (1992); *Faith Center, Inc.,* Memorandum Opinion and
    Order, 82 FCC2d 1 (1980); *Commission for Open Media v. FCC*, 543
    F.2d 861, 867 (D.C. Cir. 1976).

[^70]: *See Pinelands, Inc.,* 7 FCC Rcd at 6061 n.12 and cases cited
    therein.

[^71]: *See Peninsula Communications, Inc. v. FCC,* 55 Fed. Appx. 1
    (D.C. Cir. 2003) (per curiam).

[^72]: *See* 47 C.F.R. § 1.106(b)(1).

[^73]: *See* 47 C.F.R. § 1.102(b)(3).

[^74]: *See* 47 C.F.R. § 1.106(n).

[^75]: We reject A-O's claim that the staff was without authority to
    order A-O to cease broadcasting without either convening a hearing
    under 47 C.F.R. § 1.91 or determining that a hearing was waived
    pursuant to 47 C.F.R. § 1.92. Where the facts demonstrate that a
    station has failed to transmit broadcast signals for a consecutive
    12-month period, Section 312(g) results in automatic cancellation,
    without requirement of a hearing.

[^76]: *See* 47 U.S.C. § 307(c); 5 U.S.C. § 558(c); 47 C.F.R. § 1.62.

[^77]: *See Miami MDS Co.,* 14 F.3d 658 (D.C. Cir. 1994); *Commission
    for Open Media v. FCC,* 543 F.2d 861, 867 (D.C. Cir. 1976).

[^78]: 141 Cong. Rec. S7881 (daily ed. Jun. 7, 1995) (the statute will
    "*terminate* broadcast licenses if a station is silent for more
    tha\[n\] 12 consecutive months") (emphasis added).

[^79]: H. Rep. No. 104-458, at 186 (1996) (the statute provides for
    "*automatic cancellation* of a broadcaster's license if the station
    doe\[s\] not transmit for 12 consecutive months") (emphasis added).

[^80]: 47 U.S.C. § 312(g) (1996), *amended by* Consolidated
    Appropriations Act, 2005, Pub. L. No. 108-447, 118 Stat. 2809, Title
    IX, § 213(3) (2004).

[^81]: Applications for Review and any supplement thereto must be filed
    within 30 days of public notice of the action to be reviewed. *See*
    47 C.F.R. § 1.115(d). Although staff did not give prior
    authorization for A-O's late-filed 2005 Supplement, *see supra* note
    15, we will consider it to the extent that it addresses legislation
    which was enacted after A-O's last opportunity to present such
    matters. *Cf.* 47 C.F.R. § 1.115(g)(1) (applicants may seek
    reconsideration of denial of application for review based on events
    occurring after last opportunity to present). In all other respects,
    we are dismissing the 2005 Supplement as late-filed.

[^82]: 2005 Supplement at 5. A-O derives this principle from a case
    considering a California state law that late-filed insurance claims
    are not forfeited unless the insurer has shown it has been
    prejudiced. *See UNIM Life Insurance Company v. Ward,* 526 U.S. 358
    (1999) ("*UNIM*") (*cited in* 2005 Supplement at 6). The United
    States Supreme Court acknowledged therein that "law abhors a
    forfeiture," but its decision was not based on that principle nor
    any principle of equity. Rather, the court stated that the state law
    was "mandatory for insurance contracts, not a principle a court may
    pliably employ when the circumstances so warrant." *Id.* at 371. We
    find the *UNIM* holding concerning state insurance law inapposite to
    Section 312(g). The other three "maxims" urged by A-O are as
    follows: (1) equity looks to intent rather than to form; (2) equity
    looks on that as done which ought to be done; and (3) equity imputes
    an intention to fulfill an obligation. 2005 Supplement at 5.

[^83]: *See* 2005 Supplement at 6 (citing *Sam Bushman,* Memorandum
    Opinion and Order, 17 FCC Rcd 24808 (EB 2002) (finding equity and
    fairness a basis for rescinding \$7,000 forfeiture for failure to
    lock fence around transmitter); and *RKO General, Inc,* Memorandum
    Opinion and Order, 89 FCC2d 361 (1982) (subsequent history omitted)
    (finding equity and fairness to station employees one reason to
    allow unqualified renewal applicant to broadcast during judicial
    appeal)).

[^84]: *See supra* note 82.