Before the

FEDERAL COMMUNICATIONS COMMISSION

## Washington, D.C. 20554

In re )

)

**OCC Acquisitions, Inc.** ) Facility ID No. 67498

**Radio Station** **WSTA-FM )** BLH-890831KE

Charlotte Amalie, VI ) BRH-951006UC

) BPH-960808IB

# MEMORANUDM OPINION AND ORDER

Adopted: March 18, 2001 Released: March 28, 2002

By the Commission:

1\. The Commission has before it an Application for Review filed
September 28, 1999 by OCC Acquisitions, Inc. ("OCC").[^1] OCC requests
review of an August 30, 1999 Mass Media Bureau ("Bureau") decision,
*Letter to Jerrold Miller, Esq*., reference 1800B3-ALB (M.M. Bur. August
30, 1999), denying its December 30, 1998 petition for reconsideration
(the "August 30, 1999 Reconsideration Decision"). OCC had sought
reconsideration of a December 8, 1998 letter decision notifying it that
the license for Station WSTA-FM,[^2] Charlotte Amalie, Virgin Islands,
had expired pursuant to Section 312(g) of the Communications Act of
1934, as amended,[^3] because the station had been silent for 12
consecutive months, from May 27, 1997 to May 27, 1998.[^4] For the
reasons set forth below, the Application for Review is granted to the
extent indicated and denied in all other respects.

2\. **Background**. During the past six years, WSTA-FM has been off the
air for extended periods. When on the air, WSTA-FM has frequently failed
to meet minimum operating schedule requirements.[^5] The station was
silent from November 30, 1994 until February 5, 1997, at which time it
resumed broadcast operations pursuant to Special Temporary Authorization
("STA") granted January 15, 1997.[^6] On March 24, 1997, OCC notified
the staff that WSTA-FM's operations since February 5, 1997 "consisted of
test signals, station identification and music" and requested STA to
operate at variance with the Commission's minimum operating schedule
requirements, 47 C.F.R. § 73.1740(a)(1) "due to the need for further
testing and adjustment." On October 21, 1997, OCC amended this STA
request, seeking authority to remain silent rather than to operate with
a reduced schedule.

3\. The staff sent OCC an inquiry letter on May 12, 1997,[^7] indicating
that it had received information that WSTA-FM was silent.[^8] The staff
requested that OCC clarify the station's operating status and cautioned
that failure to timely respond would jeopardize its license and call
letters. OCC responded on May 15, 1997, again describing WSTA-FM's
operations since February 5, 1997 as consisting of "test signals,
station identification and music" and stating that WSTA-FM has not
"recommenced broadcasting on a minimum operating schedule. . . ."

4\. On September 22, 1997, the staff sent another inquiry letter,
requesting further clarifications of WSTA-FM's broadcast schedule.[^9]
It advised OCC that its May 15 response revealed operations not in
accord with § 73.1740. The staff also informed OCC that its May 15
response did not, as requested, disclose WSTA-FM's operating schedule or
whether WSTA-FM had suspended operations entirely. OCC responded on
October 21, 1997, providing copies of the WSTA-FM transmitter logs which
demonstrated sporadic on-air operations between February 5 and May 27,
1997. OCC did not directly address the staff's specific inquiry
regarding its operations after May 27, 1997, although it claimed that it
was "working diligently to return the station to a full operating
schedule," but that financial difficulties "have thus far prevented it
from doing so."

5\. Subsequently, OCC claimed that it had "identified the necessary
funds to relocate the station's antenna within the licensed site" and,
in a January 30, 1998 letter,[^10] requested another STA to operate
WSTA-FM from its authorized site and with its authorized power but at an
antenna height 33.3 meters lower than authorized. The staff deferred
action on this STA request pending an amendment demonstrating that such
funding would permit resumption of operation in compliance with the
minimum operating schedule requirements. In a third inquiry letter dated
March 17, 1998,[^11] the staff referenced its previous May 12, 1997 and
September 22, 1997 inquiries and noted that OCC's prior responses did
not clearly describe WSTA-FM's operational status since May 27, 1997.
The staff once again requested that OCC clarify these matters and
advised OCC that failure to timely respond "will result in actions
jeopardizing both the station's license and call letters." March 17,
1998 letter at 2.

6\. Thereafter, by letter dated September 17, 1998,[^12] the staff
specifically advised OCC that Commission records indicated that WSTA-FM
had been silent since May 27, 1997. The staff noted the mandate of
Section 312(g) of the Communications Act that if a station is silent for
any consecutive 12-month period its license expires at the end of such a
period, regardless of any provision in the authorization to the
contrary. The staff advised OCC that inasmuch as the Commission's
records reveal that WSTA-FM had been silent since May 27, 1997, its
license expired as a matter of law on May 27, 1998. Further, the staff
cautioned OCC that, unless it documented within 30 days that WSTA-FM had
in fact resumed operations between May 27, 1997 and May 27, 1998, the
Commission's databases would be modified to indicate expiration of its
license, citing *Implementation of Section 403(l) of the
Telecommunications Act of 1996*, 11 FCC Rcd 16,599 (1996) ("*Silent
Station Authorizations*"); *47 U.S.C. § 312(g)*, and *47 C.F.R. §
73.1740(c)*. The staff also indicated that, because OCC had failed to
offer evidence that it was capable of implementing STA pursuant to the
minimum operating schedule requirements, the staff had deferred
processing of the July 8, 1997 and January 30, 1998 STA requests. OCC
did not respond to this letter, and the staff notified OCC of the
automatic expiration of its license, deleted its call letters, and
dismissed the three pending STA requests as well as pending license
renewal and modification applications (File Nos. BRH-951006UC and
BPH-960808IB, respectively) in the December 8, 1998 Expiration Letter.

7\. The August 30, 1999 Reconsideration Decision rejected OCC's
contention that the staff's failure to act on its STA request prevented
WSTA-FM from returning to the air. It noted that OCC failed to provide
information documenting resumption of WSTA-FM operations and determined
that the December 8, 1998 action notifying OCC of deletion of the
WSTA-FM license and call letters was proper. The staff also indicated
that OCC improperly raised for the first time on reconsideration the
argument disputing the Commission's interpretation of Section 312(g) as
mandating the cancellation of the WSTA-FM license and that it failed to
demonstrate why this argument warranted reconsideration pursuant to 47
C.F.R. § 1.106(c).

8\. **Discussion**. In its application for review, OCC first reiterates
its position that cancellation of the WSTA-FM license for failure to
broadcast for 12 consecutive months is not statutorily mandated and that
it is entitled to demonstrate that renewal of WSTA-FM's license is in
the public interest.[^13] According to OCC, the staff's reliance on
Section 312(g) without recognizing the "peculiar circumstances" here
goes beyond Congressional intent. OCC also argues that inasmuch as
Section 1.106(c) does not apply to legal arguments, as opposed to facts
which could have been presented previously, the staff erred in failing
to address its Section 312(g) argument.

9\. We agree with OCC that its legal argument concerning Section 312(g)
was appropriately raised on reconsideration, and we will grant review to
permit consideration of that argument here. However, contrary to OCC's
stated position, we find that Section 312(g) accords us no discretion
and mandates that a station license will automatically expire as a
matter of law if it does not "transmit broadcast signals"[^14] for 12
consecutive months. 47 U.S.C. § 312(g); 47 C.F.R. § 73.1740(a)(1);
*Silent Station Authorizations*, *supra*, 11 FCC Rcd at 16,600. OCC's
interpretation is not supported by the plain meaning of the 1996
statute, which provides for license expiration "notwithstanding any
provision, term, or condition of the license to the contrary." *Compare
Cable Television Consumer Protection and Competition Act of 1992*, 9 FCC
Rcd 4316, 4322-23 (1994) \[plain meaning of final version properly
interpreted as indicative of Congressional intent\]. Further, we believe
the final version of Section 312(g) indicates that Congress' intent was
to provide the Commission with the most expeditious solution to the
problem -- amply illustrated here \-- of broadcast stations remaining
silent for extended periods of time to the detriment of the public
interest. Thus, the statutory language allows for no Commission
discretion. *See Silent Station Authorizations*, 11 FCC Rcd at 16,600.

10\. Additionally, OCC concedes that it has not attempted to show --
either in its responses to several inquiry letters or in its application
for review \-- that WSTA-FM transmitted broadcast signals at any time
during the twelve-month period here at issue. Rather, it attributes its
inability to resume broadcasting to staff inaction in response to its
July 8, 1997 request for extension of STA and its January 30, 1998 STA
request. According to OCC, this inaction is contrary to Commission
policy of expediting procedures to assist silent station return to the
air, citing *Public Notice*, *Procedures Announced for Expedited
Processing of Applications Filed by Silent Broadcasting Stations*, 11
FCC Rcd 14,356 (M.M. Bur./I. Bur. 1996) (the "Silent Station Public
Notice"). The Silent Station Public Notice established procedures for
expediting applications filed by silent stations and indicated that the
staff would "use its best efforts" to act on applications promptly.
However, it very clearly indicated that "\[t\]he responsibility for
bringing a station back on the air is that of the licensee" and
cautioned silent station applicants to use "extreme care" in preparing
applications to ensure prompt action.[^15] *Id*. at ¶ 3. It further
indicated that the 1996 Telecommunications Act does not afford the
Commission any discretion to extend license terms and that, "as a matter
of law, staff inability to act on any application within a specified
time can not prevent license expiration nor give rise to any equitable
claim that a license should be extended.\" *Id*.

11\. In any event, we do not agree that the staff was responsible for
OCC's failure to resume WSTA-FM broadcast operations. The staff properly
deferred action on OCC's patently incomplete STA requests and
unresponsive supplemental filings. The staff wrote to OCC on three
separate occasions in May, 1997, September, 1997, and March, 1998 to
clarify the station's operational status. It specifically required OCC
to respond three times and warned that OCC's failure to respond would
jeopardize the WSTA license. In these circumstances, the staff cannot be
faulted for OCC's neglect in failing to file an appropriate amendment.
In fact, the staff acted prudently in affording OCC abundant opportunity
to supply information bearing on the merits of its STA requests and its
ability to return the station to normal broadcast operations. Finally,
we note that OCC had the option at any point of taking steps to resume
licensed operations or of amending a pending modification application to
specify a lower antenna height at its then-licensed site. However, it
did not pursue either of these alternatives in 1997 or 1998, despite the
fact that the station had been mostly silent since November of 1994.

12\. Accordingly, in light of the above, IT IS ORDERED, that the
Application for Review filed on September 28, 1999 by OCC Acquisitions,
Inc. IS GRANTED TO THE EXTENT INDICATED AND IS DENIED IN ALL OTHER
RESPECTS.

> FEDERAL COMMUNICATIONS COMMISSION
>
> William F. Caton
>
> Acting Secretary

[^1]: GARK, LLC ("GARK") filed an opposition to the application for
    review on October 12, 1999, incorporating therein by reference its
    January 13, 1999 opposition to OCC's reconsideration petition. GARK,
    which does not identify or describe itself in its opposition to the
    application for review, indicated in its opposition to
    reconsideration that it intended to apply for "the channel vacated
    by WSTA-FM."

[^2]: WSTA-FM, previously WTBN(FM) was previously licensed to Trans
    Caribbean Broadcasting Company.

[^3]: Section 312(g) of the Communications Act of 1934 provides that "if
    a broadcasting station fails to transmit broadcast signals for any
    consecutive 12-month period, then the station license granted for
    the operation of that broadcast station expires at the end of that
    period, notwithstanding any provision, term, or condition of the
    license to the contrary." *See Implementation of Section 403(l) of
    the Telecommunications Act of 1996*, 11 FCC Rcd 16,499 (1996).

[^4]: *Letter to OCC Acquisitions, Incorporated*, reference 1800B3-GDG
    (Audio Services Division, Mass Media Bureau, December 8, 1998) (the
    "December 8, 1998 Expiration Letter").

[^5]: *See* 47 C.F.R. § 73.1740.

[^6]: This STA authorized operation from the licensed site at a lower
    antenna height. OCC requested extension of the technical STA on July
    8, 1997, but for reasons discussed below, the staff deferred action
    on this request.

[^7]: *Letter to David D. Burns, Esq.,* reference 1800B3-GDG (Audio
    Services Division, Mass Media Bureau, May 12, 1997*)*.

[^8]: In a March 14, 1997 letter, the licensee of Station WVGN(FM),
    Charlotte Amalie, indicated that WSTA-FM was not currently operating
    and that its previous operation adversely affected WVGN(FM)'s
    radiation pattern.

[^9]: *Letter to OCC Acquisitions, Incorporated*, reference 1800B3-GDG
    (Audio Services Division, Mass Media Bureau, September 22, 1997).

[^10]: This letter request, although dated January 30, was not received
    until February 27, 1998.

[^11]: *Letter to OCC Acquisitions, Incorporated*, reference 1800B3-GDG
    (Audio Services Divison, Mass Media Bureau, March 17, 1998*).*

[^12]: *Letter to OCC Acquisitions, Incorporated*, reference 1800B3-GDG
    (Audio Services Division, Mass Media Bureau, September 17, 1998).

[^13]: OCC incorporates by reference its petition for reconsideration.

[^14]: *See* 47 U.S.C. § 153(6) ("The term 'broadcasting' means the
    dissemination of radio communications intended to be received by the
    public, directly or by the intermediary of relay stations.").

[^15]: We note, moreover, that in *Silent Station Authorizations* we
    stated that "special temporary authorizations to remain silent . . .
    will not toll or extend" any 12-month period commencing on or before
    February 8, 1996. 11 FCC Rcd at 16,601. *See also Bluestone
    Broadcasters, Inc.*, 11 FCC Rcd 17,833, 17,839, n. 5 (ALJ 1996).