Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In re Applications of            | * | File Nos. BMPED-970124JG and |
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| Hispanic Broadcast System, Inc.  | ) | BLED-970414KA                |
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| For an Extension and License to  | * | File No. BLED-9980401KA      |
| Cover the                        |   |                              |
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| Construction Permit of WLAZ(FM), | * |                              |
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| Clermont, Florida and            | * |                              |
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| For a License to Cover the       |   |                              |
| Construction                     | * |                              |
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| Permit of WWKQ(FM), Kissimmee,   | ) |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: March 23, 2001 Released: April 2, 2001**

By the Commission:

1.  The Commission has before it an Application for Review and a related
    Petition for Reconsideration from Florida Broadcasters ("Florida").
    Florida argues that the staff erred in finding another broadcaster,
    Hispanic Broadcast System, Inc. ("HBS"), qualified to operate two
    new noncommercial educational ("NCE") stations, WLAZ(FM), Clermont
    and WWKQ(FM), Kissimmee, Florida.[^1] At the staff level, Florida
    alleged that HBS made misrepresentations in applications to extend
    the period allowed for construction and violated our rules by airing
    underwriting announcements that are not of the limited type
    permitted on noncommercial educational stations. Although the staff
    found that HBS's extension applications were moot and therefore
    dismissed Florida's objections to those applications,[^2] the staff
    nevertheless considered Florida's allegations of misrepresentations
    and rule violations and found that they did not warrant designation
    for hearing on the question of whether HBS is qualified to be a
    Commission licensee. Florida seeks reversal of this decision. [^3]
    For the reasons discussed below, we deny the Application for Review
    and the Petition for Reconsideration.

**Allegations of Misrepresentation**

2.  In its pleadings before the staff, Florida raised four allegations
    of misrepresentation, all of which concerned the truthfulness of
    statements that HBS made in extension applications about problems
    HBS was having at WWKQ's authorized antenna site and its attempts to
    find a new site.[^4] The staff issued decisions in summary form
    which included brief statements indicating that it had considered
    HBS's allegations of misrepresentation but found them to be too
    speculative to demonstrate any intent to deceive and therefore
    insufficient to raise a substantial and material question of fact as
    to HBS's qualifications to be a Commission licensee. On
    reconsideration, in addressing Florida's allegation that it did not
    adequately consider the facts, the staff indicated that it was not
    required under case law to engage in an exhaustive discussion of the
    facts, provided that it considered the record then before it. The
    staff also rejected Florida's suggestion that it should infer an
    intent to deceive.

3.  In the subject pleadings, Florida repeats the same argument about
    the inadequacy of the staff's discussion of the facts and challenges
    the staff's reliance on *Wendell* *& Associates*, 14 FCC Rcd
    1671 (1998) *aff'd sub nom. Long Island Multimedia v. FCC*, No.
    99-1027 (D.C. Cir. 1999), for the proposition that disposition
    without lengthy discussion is acceptable. Additionally, Florida
    reiterates its argument that direct evidence of an intent to deceive
    is not necessary to support allegations of misrepresentation.
    Florida now relies on *Weyburn Broadcasting L.P. v. FCC*, 984 F.2d
    1220 (D.C. Cir. 1993), for the proposition that intent can be raised
    by inferences from the allegations of facts presented.

4.  Initially, we note that under *Wendell*, all that is required when
    we dispose of arguments raised in an informal objection, the type of
    pleading at issue here, is a clear indication that the pleadings
    were considered. *See Wendell*, 14 FCC Rcd at 1679. The letter
    rulings at issue were clearly adequate under this standard.

5.  In any event, Florida's allegations \-- even if not discussed in
    depth \-- were correctly resolved by the staff. Florida alleged that
    HBS falsely stated in its construction permit extension
    requests: (1) that construction for WWKQ could not commence due to
    HBS's inability to secure a satisfactory lease; (2) that an
    alternative antenna site was technically feasible under Commission
    rules; (3) that it had signed a tower lease with "the owner;"
    and (4) that difficulties remained and an extension was necessary
    because there was a dispute over the exact location of the antenna
    on the tower. In each case, as the staff concluded, HBS
    satisfactorily addressed the allegation. Specifically, regarding the
    first two allegations,[^5] HBS explained that the lease was
    unsatisfactory because the contract costs were excessive by industry
    standards, and that its engineers believed an alternative site using
    a non-directional antenna could be feasible but would require a
    specific antenna design, power reduction or the use of filters. They
    ultimately recommended remaining at the present site. With regard to
    the third allegation, HBS explained that its statement that it
    "signed a tower lease with the tower owner" referred to a new owner.
    Therefore Florida's arguments, which assumed that the claimed
    agreement was with the former owner, were based on a faulty premise.
    With regard to the fourth allegation, HBS explained that, though
    correspondence from the owner indicates that it was in fact willing
    to lease space to HBS on top of the tower, that correspondence did
    not present the entire "picture" and therefore Florida's reliance on
    it for the proposition that HBS *could* have constructed when it did
    not was flawed. Specifically, HBS explains that the owner's
    willingness to lease space to HBS on top of the tower was contingent
    upon his ability to obtain all necessary approvals to increase the
    height of the tower and thus avoid overloading. According to HBS,
    the overloading problem was ultimately resolved only when the tower
    owner obtained permits to build an adjacent tower and planned to
    relocate some of the antennas to the new tower. In short, Florida
    has not raised a substantial and material question of fact regarding
    the accuracy of HBS's statements.

6.  Furthermore, intent to deceive the Commission is a necessary element
    of a *prima facie* case of misrepresentation. *See* *Fox River
    Broadcasting, Inc.,* 93 FCC 2d 127, 129 (1983). Even if HBS's
    statements were inaccurate, which Florida has not shown, the staff
    correctly declined to infer an intent to deceive merely because HBS
    submitted the statements in several applications on which it wanted
    favorable action and therefore had a "motive." Were the Commission
    to infer an intent to deceive on such a basis, applicants would have
    to defend themselves in costly hearings, any time someone made
    allegations concerning representations in applications, no matter
    how unsupported or speculative the allegations might be.[^6]

**Alleged Broadcasts of Prohibited Promotional Announcements**

7.  Our rules prohibit noncommercial educational stations from
    broadcasting announcements that promote the sale of goods and
    services of for-profit entities in exchange for consideration paid
    to the station. Those who contribute funds to a noncommercial
    station may receive on-air acknowledgements for identification
    purposes only. *See* 47 U.S.C. § 399B; 47 C.F.R. § 73.503(d).
    Florida alleged that HBS broadcast 173 prohibited announcements on
    NCE station WLAZ during its start up period of program tests, while
    its application to be licensed was pending. Florida provided the
    staff with transcripts of the announcements, translated from Spanish
    to English, with HBS challenging the accuracy of some of the
    translations. HBS, while professing a belief that all of its
    announcements fall within permissible underwriter acknowledgements,
    expressed a desire to make any corrections that may be necessary,
    and asked for Commission advice. Upon review of the transcripts, the
    staff determined that in some of the alleged instances HBS exceeded
    the limits on permissible donor and underwriter acknowledgments.
    *See* *Commission Policy Concerning the Noncommercial Nature of
    Educational Broadcasting Stations*, *First Report and Order and
    Notice of Proposed Rule Making*, 69 FCC 2d 200 (1978); *Second
    Report and Order*, 86 FCC 2d 141 (1981); *Memorandum Opinion and
    Order*, 90 FCC 2d 895 (1982), *on reconsideration*[,]{.underline} 97
    FCC 2d 255 (1984); *see also* *Public Notice, "In the Matter of the
    Commission Policy Concerning the Noncommercial Nature of Educational
    Broadcasting Stations,"* 7 FCC Rcd 827 (1986). The staff determined
    that such violations, which consisted of relatively brief donor
    acknowledgements that contained some qualitative descriptions of
    donors, were not of sufficient magnitude to warrant adverse action,
    but must be corrected. The staff thus cautioned HBS to take steps to
    ensure that all future announcements are consistent with Commission
    policy, and to make reasonable good faith judgments as to whether
    future announcements identify rather than promote. *See Xavier
    University*, 5 FCC Rcd 4920 (1990).

8.  In the subject petition for reconsideration, Florida argues that the
    staff erred because, again, it did not adequately consider or
    discuss the factual allegations. Further, Florida argues that the
    staff's caution to HBS was inadequate in light of the allegedly
    large number of such announcements. Florida argues that WLAZ's
    program test authority should have been revoked and the license
    application designated for hearing for broadcasting advertisements.

9.  The staff was not required to address each alleged announcement
    individually; it was adequate that it gave an example of a violation
    it considered representative. *See Wendell*, 14 FCC Rcd at 1679.
    Further, we agree that the staff's caution of the applicant was
    sufficient, especially given that this was a new NCE broadcaster in
    its program test period, which expressed a desire to correct any
    errors resulting from its misinterpretation of our rules. *Compare
    Window to the World Communications, Inc.*, 12 FCC Rcd 20,239
    (MMB 1997) (forfeiture imposed for repetitive promotional
    announcements on a NCE station, where licensee previously cautioned
    to take greater care to avoid such broadcasts). Even when a
    violation is found for which sanction is warranted, the sanction
    generally falls short of a denial of license. Furthermore, we note
    that we have received no complaints from petitioner or anybody else
    concerning alleged violations of underwriter rules subsequent to
    September 28, 1998, the last date for which petitioner submitted a
    transcript.

10. Accordingly, IT IS ORDERED that the Application for Review and the
    Petition for Reconsideration filed by Florida Broadcasters, ARE
    HEREBY DENIED. IT IS FURTHER ORDERED that the license application
    for station WLAZ(FM), Clermont, Florida, (file no. BLED-19970414KA),
    IS HEREBY GRANTED.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Sales

Secretary

[^1]: Florida is the licensee of stations WONQ(AM) Oviedo and WRMQ(AM),
    Orlando, Florida. It states that HBS's new stations will compete
    with its existing stations for Spanish-speaking audiences.
    Specifically, before us for review in this consolidated decision
    are: 1) Florida's April 5, 2000, Application for Review, of a
    February 29, 2000, letter ruling, regarding station WLAZ(FM),
    Clermont, Florida. *Letter to James L. Oyster, Esq. and Roy F.
    Perkins, Esq.*, Ref. No. 1800B3-IB/HM (Audio Services Division,
    February 29, 2000) (\"Clermont letter ruling\") and 2) Florida's
    March 16, 2000 Petition for Reconsideration of a February 10, 2000,
    letter ruling, regarding station WWKQ(FM), Kissimmee, Florida.
    *Letter to Roy F. Perkins, Esq. and James L. Oyster, Esq.*, Ref. No.
    1800B3-IB/HM (Audio Services Division, February 10, 2000)
    ("Kissimmee letter ruling"), and 3) responsive pleadings.

[^2]: 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).

[^3]: Florida states that it also seeks Commission review of the staff's
    denial of its informal objection to WLAZ's license application.
    However, it makes no substantive arguments on this issue, and the
    record indicates that, with one exception, HBS previously resolved
    all questions related to that application. [See]{.underline}
    [Clermont Letter Ruling]{.underline} at page 3. The last remaining
    problem has now been resolved through the submission of an
    engineering exhibit containing tower coordinates and we grant that
    application [infra]{.underline}.

[^4]: Although the alleged misrepresentations involve WWKQ's antenna
    site, Florida initially raised the allegations in its informal
    objection to an extension of the construction permit of HBS's other
    station \-- WLAZ, Clermont \-- and then incorporated these
    allegations by reference in its subsequent pleadings filed against
    WLAZ and WWKQ.

[^5]: These allegations were in any event untimely. They pertained to
    HBS's 1994 application for a first extension of the WWKQ
    construction permit but were not raised until nearly a year after
    the application was granted.

[^6]: The *Weyburn* case on which Florida relies for the proposition
    that the Commission should infer intent here is inapposite. That
    case presented the question of whether to add a misrepresentation
    issue to a case already in hearing, when a document in the hearing
    record was indisputably incorrect on its face and the applicant's
    three conflicting explanations for this occurrence could not be
    reconciled. The court found that, under such circumstances, the
    question of intent should have been addressed in the ongoing
    hearing. Unlike *Weyburn*, the objector here seeks to designate an
    applicant for hearing in the first instance. Thus, the question is
    whether a hearing is necessary at all, when there are no undisputed
    falsehoods and when HBS's responses consistently explain each
    disputed statement.