Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File Nos. BPH-20020215ABM    |
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| Eagle Broadcasting Group, Ltd.   | ) | BSTA-20040429ABF             |
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| License Status of Silent Station | * | BRH-20040318ACK              |
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| DKVEZ(FM), Parker, Arizona       | * | BRH-20050601BTP              |
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|                                  | ) | Facility I.D. No. 35119      |
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**MEMORANDUM OPINION AND ORDER**

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

By the Commission:

# introduction

1.  The Commission has before it four petitions for reconsideration,
    filed March 18, 2004, June 2, 2004, June 7, 2004, and July 22, 2005,
    by Eagle Broadcasting Group ("Eagle"), former licensee of former
    broadcast station KVEZ(FM), Parker, Arizona.[^1] The first ("March
    Petition*"*) seeks reconsideration of a February 17, 2004, decision
    ("Staff Decision") determining that the station's license and all
    associated authorizations expired as a matter of law as of December
    21, 2003, due to the station's failure to broadcast for one
    year.[^2] In response to a May 3, 2004, staff letter[^3] that
    dismissed an April 29, 2004, request for special temporary
    authorization (the "2004 STA Request"), Eagle filed its June 2,
    2004, petition for reconsideration ("June STA Petition"). The third
    ("June Renewal Petition") seeks reconsideration of the staff's
    dismissal of Eagle's March 18, 2004, application for license
    renewal.[^4] The fourth seeks reconsideration of an additional
    license renewal application filed on June 1, 2005. The staff has
    also referred a related STA request filed January 25, 2005 (the
    "2005 STA Request"). For the reasons set forth below, we deny all
    four petitions, dismiss the 2005 STA Request as moot, and affirm the
    staff determinations.

# BACKGROUND

2.  Until a legislative change in December 2004,[^5] 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 of the license to the contrary," and the license is
    automatically forfeited.[^6] The Act defines "broadcasting" as the
    "dissemination of radio communications intended to be received by
    the public."[^7] At the time of the staff actions under review, the
    Commission had no discretion to waive Section 312(g)'s expiration
    provision.[^8] At issue here is whether the staff properly found
    that KVEZ(FM) failed to broadcast for twelve consecutive months, and
    therefore whether the license expired pursuant to Section 312(g). We
    also consider below 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.  Eagle was licensed to operate KVEZ(FM) from a site known as Black
    Peak, but experienced problems at that site due to interference
    caused to another site user. The station ceased broadcasting on June
    23, 2001. On February 15, 2002, KVEZ(FM) filed a modification
    application, proposing to relocate its transmitter to a site in the
    Buckskin Mountains.[^9] The staff expedited consideration of the
    Buckskin Application and on April 24, 2002, notified Eagle of a
    deficiency. Eagle had responded "not applicable" to a question
    asking for a Commission tower registration number, which an
    applicant obtains after receiving a determination from the Federal
    Aviation Administration ("FAA") that its proposed tower will not be
    a hazard to air navigation. The engineering staff determined that
    Eagle's "not applicable" response was incorrect,[^10] and that
    public safety factors required both FAA approval and Commission
    registration of the tower proposed in the Buckskin Application.[^11]

4.  Eagle did not supply the required air safety information needed to
    complete the Buckskin Application. Instead, it sought and received
    STA to resume operations from a temporary location in Parker,
    Arizona. On December 20, 2002, however, the day after the STA
    expired, the station went silent again. In a letter notifying the
    Commission of the station's silence, Eagle stated that it was "in
    the process of moving to our new transmitter site as previously
    approved by the FCC" and for which the FAA had "finally give\[n\]
    its OK."[^12] The basis for these assertions is not apparent. If
    Eagle was referencing the Buckskin site, the Commission had given no
    such approval. Eagle's submission failed to provide a written
    confirmation from the FAA, a Commission tower registration number,
    or any indication that the Buckskin Application had been amended
    with the information needed for Commission action. The staff sent a
    letter to Eagle on January 23, 2003, reiterating the need to correct
    the application's FAA-related deficiency in order to receive
    permission to move to the Buckskin site.

5.  An Eagle consultant submitted an e-mail response to the deficiency
    letter ten months later on November 26, 2003. According to the
    consultant, the FAA had reported that its authorization was not
    required because the tower was not within the glide slope of the
    Parker airport, was not of significant height, and required no
    lighting or painting. On December 9, 2003, the staff requested that
    the consultant submit a copy of the FAA's letter, and reminded the
    consultant of the need to return to the air by December 20, 2003, to
    avoid license expiration under Section 312(g). The staff also had
    contacted the station by telephone to warn it of the impending
    expiration. On December 10, 2003, Eagle's consultant indicated that
    he would send a copy of written confirmation from the FAA later that
    week. No written corroboration was ever submitted, however. The
    consultant also indicated that a letter from the station was on its
    way to the Commission reporting that the station had returned to the
    air on November 22, 2003, and that the station's license therefore
    should not expire. The notification, received on December 3, 2003,
    advised of "resumption of regular broadcasting . . . at the
    *previously approved site* North of the city of license, Parker,
    Arizona."[^13] In early January 2004, however, the staff received a
    complaint alleging that KVEZ(FM) was not operating from any site
    approved by the Commission.

6.  On January 28, 2004, the staff contacted the station by fax and
    e-mail asking for clarification of the "previously approved" site
    from which Eagle was operating. Eagle's President, Maurice Coburn,
    advised a staff member by telephone that the station was operating
    at the site proposed in its Buckskin Application. On February 3,
    2004, KVEZ(FM)'s consultant phoned the same staff member and
    provided the same information. The staff determined that Eagle was
    operating with unlicensed facilities for which Eagle held no STA or
    other authority. Accordingly, as noted above, the staff issued the
    Staff Decision on February 17, 2004, finding that operations at
    Buckskin did not constitute lawful resumption of broadcast
    operations for purposes of Section 312(g).[^14] The staff also
    concluded that KVEZ(FM)'s license had expired as a matter of law as
    of December 21, 2003, dismissed

7.  the Buckskin Application as moot, and updated the Commission's
    database to delete the station's call sign.

8.  Eagle then filed the March Petition and an application to "renew"
    KVEZ(FM)'s expired license. The March Petition states that on
    February 23, 2004, immediately upon its receipt of the Staff
    Decision*,* Eagle removed KVEZ(FM) from the air. The license renewal
    application indicated that the station was silent in March 2004, but
    had not been silent for any consecutive 12-month period. The 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 Arizona radio
    station renewals.[^15] On April 29, 2004, Eagle requested STA to
    operate from the Buckskin site ("2004 STA Request"). On May 3, 2004,
    the staff dismissed the renewal application, the associated waiver
    request, and the 2004 STA Request. The staff stated that there is no
    license after a Section 312(g) expiration and, thus, Eagle held no
    authorization which could be renewed or upon which its STA request
    could be based. As discussed previously, Eagle sought
    reconsideration of these actions in the June Petitions*.* In its
    2005 STA Request, Eagle sought authority to operate from the
    Buckskin site for a brief period prior to February 23, 2005, to
    avoid the station remaining silent for the 12-month period running
    from February 23, 2004 to February 23, 2005.[^16] According to
    Eagle, this is necessary to preserve its arguments in the instant
    proceeding. In a letter dated January 31, 2005, the staff informed
    Eagle that it would refer the 2005 STA Request to the Commission for
    consideration in the present proceeding, but also explained that the
    operations Eagle contemplated in that STA request were unnecessary
    as a result of the recent legislative change to Section 312(g).[^17]

    **III. DISCUSSION**

9.  **License Expiration Under Section 312(g)*.*** In its March Petition
    and June Petitions*,* Eagle argues that transmissions from the
    Buckskin site broke the station's silence for purposes of Section
    312(g), although those transmissions were unauthorized. Noting the
    lack of the word "authorized" in Section 312(g), Eagle argues that
    Congress never intended to require stations to resume operations
    lawfully to prevent Section 312(g) expiration. According to Eagle,
    the staff twisted the statute "into a death penalty statute . . .
    \[for\] those who do their best to bring service to the public but
    fail to phrase their communications with the FCC in the desired
    magic phrases."[^18] Eagle states that had Congress intended the
    staff's approach, Congress would have included explicit language to
    override a policy enunciated in a 1984 Public Notice.[^19] The
    Notice explains processing guidelines in situations involving
    premature or nonconforming construction. It states, for example,
    that where the applicant has not demonstrated FAA approval, the
    station will not be permitted to operate and that fines may be
    imposed on the licensee. Eagle argues that pursuant to such policy,
    its premature and nonconforming construction at the Buckskin site
    should not result in loss of license. Eagle further contends that by
    requiring Eagle to resume operations with authorized facilities, the
    staff held Eagle to a "letter perfect" standard, whereas the
    Commission has used a more lenient "substantial compliance" standard
    in other cases.[^20] Eagle 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 Eagle's initial contention that unauthorized
    transmissions are sufficient to avoid the consequences of Section
    312(g). Describing it as "\[t\]he minor infraction of failing to use
    the words 'Mother, may I'. . . .,"[^21] Eagle trivializes the need
    to receive Commission authorization prior to constructing and
    operating a broadcast station. Section 301 of the Act, however,
    provides that no person shall transmit radio signals except in
    accordance with authority granted by the Commission.[^22] It further
    provides that no license shall be construed to create any right
    beyond the terms, conditions, and authority of the license.[^23] The
    sanctions set forth in Section 312 enforce these provisions. [^24]
    Section 312(g), which establishes the specific sanction for extended
    failure to broadcast, cannot be read to create an exception to
    Section 301 licensing requirements. 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. Accordingly, we reject Eagle's
    contention that unauthorized transmissions can be used to avoid
    automatic license expiration.

11. The 1984 Public Notice and Section 312(g) are not in conflict. The
    former sets forth administrative 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.[^25] Eagle also has not
    shown that requiring resumption of legal broadcasts holds Eagle to a
    higher standard than other stations without adequate notice. Eagle's
    reliance on cases which do not involve Section 312(g) is
    misplaced.[^26] The Commission clearly stated that former Section
    312(g) was nondiscretionary.[^27] We find that the staff did not act
    beyond its delegated authority when it concluded that the KVEZ(FM)
    license had expired and, in any event, the delegated authority issue
    is moot in light of our affirmance in this order.

12. Second, Eagle argues that its transmissions from the Buckskin site
    should not be viewed as unlawful because Eagle reasonably believed
    such transmissions were authorized and the staff was responsible for
    Eagle's error. According to Eagle, the staff erroneously determined
    that FAA approval was required to construct the proposed tower at
    the Buckskin site.[^28] Eagle states that by the time it began
    operating from the Buckskin site, the FAA-related "mistake" had, to
    Eagle's knowledge, been resolved. Further, because considerable time
    had passed since the staff had advised Eagle that the FAA matter was
    the only impediment to grant, Eagle "believed" that by Fall 2003 the
    Buckskin Application had been granted and that Eagle had authority
    to construct the proposed facilities and commence broadcasts.[^29]
    Eagle maintains that its view was reasonable because it was not
    represented by counsel at that time. Now, with the benefit of
    counsel, Eagle argues that the staff was obligated under Section
    555(b) of the Administrative Procedure Act ("APA")[^30] to act on
    the Buckskin Application quickly, given that Eagle would otherwise
    lose its license. Eagle further contends that its December 3, 2003,
    letter reporting resumption of operations shifted the burden to the
    staff: (1) to recognize Eagle's mistaken belief that the Buckskin
    Application had been granted; (2) to suggest actions, such as STA,
    in time to prevent Section 312(g) expiration; and/or (3) to consider
    Eagle's letter as a request for STA.

13. We find no error in the staff's processing of the deficient Buckskin
    Application. As a preliminary matter, we observe that Eagle has
    presented at least three different theories regarding the issuance
    of an FAA air hazard determination. It has claimed that in 2002 it
    received "clearance" from the FAA.[^31] Eagle has also claimed that
    the proposed tower did not require formal FAA study and therefore
    that the Commission's directive to obtain FAA approval and FCC tower
    registration was a "mistake."[^32] Finally, Eagle claimed that it
    "obtained an FAA determination of no hazard to air navigation on
    August 7, 2003."[^33] Eagle promised to "send a copy of FAA
    information" in December 2003.[^34] Notwithstanding its promise to
    do so, Eagle has never submitted any documentation establishing that
    it received FAA "clearance." At the Commission's request, the FAA
    searched its database and determined that it had provided an August
    7, 2002 determination of no hazard to Eagle for a tower
    approximately 229 miles away from the Buckskin site.[^35] Eagle's
    primary theory on reconsideration is that no FAA study is required.
    Eagle indicates that it performed its own study four months after
    the Section 312(g) expiration date using the Commission's TOWAIR
    computer program[^36] and claims that its study corroborates that no
    FAA notification and Commission registration is needed.[^37] The
    computer printout that Eagle provides of its TOWAIR Study is based
    on erroneous geographic coordinates for Buckskin, using NAD27 rather
    than the required NAD83 data.[^38] When the correct coordinates are
    entered, the TOWAIR program shows that the Buckskin tower is within
    the glide slope of an airport, and therefore requires FAA clearance
    and Commission tower registration.

14. Eagle's claim that it held an authorization to operate at Buckskin
    is frivolous. Commission construction permits are written documents.
    The Commission never issued, and therefore Eagle never received, a
    construction permit or any other document establishing that the
    Buckskin Application had been granted. To the contrary, as noted
    above, the staff advised Eagle in writing that the application could
    not be granted until Eagle supplied tower notification/registration
    information. Eagle's alleged belief that the application had been
    granted by the fall of 2003 is also inconsistent with its
    consultant's contacts with the staff in November and December 2003
    to address the FAA-related deficiency that continued to prevent
    staff action. Eagle's *pro se* status at that time did not exempt it
    from complying with Commission rules or statutory provisions.[^39]

15. It is well-established that the licensee, not the Commission, is
    responsible for preventing cancellation of the station's license
    pursuant to Section 312(g) by resuming broadcasts on or before the
    one-year anniversary of the station's silence.[^40] Moreover, it is
    a fundamental principle of the regulatory process that the
    Commission must routinely rely upon the representations of its
    licensees and applicants.[^41] The staff relied at first on Eagle's
    representations that it had resumed lawful operations from an
    authorized site. We reject Eagle's argument that its alleged
    misunderstanding was so "evident" on the face of its notification as
    to somehow obligate the staff to catch Eagle's error in time for
    corrective action.[^42] We also reject Eagle's attempt to shift
    responsibility for Eagle's mistaken beliefs or unlawful operations
    to the staff based on its letter inviting "questions or
    suggestions." Nor can Eagle's use of that phrase plausibly be read,
    as Eagle now argues, as a request for STA to operate from Buckskin.
    Eagle had already demonstrated that it knew how to request STA in
    compliance with our rules.[^43] Although the staff does its best to
    expedite applications for silent stations, the staff cannot be
    expected to "read the mind" of an applicant that supplies inaccurate
    information.[^44] It was Eagle's responsibility to perfect its
    Buckskin

    Application sufficiently prior to the Section 312(g) deadline,[^45]
    or explicitly to request STA to broadcast from temporary facilities.

16. Third, citing two Enforcement Bureau cases, Eagle argues that if its
    operations were unauthorized, the appropriate sanction is, at most,
    a monetary forfeiture. Eagle 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.[^46] Claiming that its
    Buckskin operations were in good faith, Eagle also asserts that its
    actions compare favorably to intentional unauthorized operations
    which resulted in a \$6,000 forfeiture in *WRHC Broadcasting
    Corp*.[^47] Eagle cites additional cases in which the Commission
    opted for lesser sanctions when stations failed to construct as
    authorized.[^48] Eagle maintains that the Commission should preserve
    the KVEZ(FM) license and thereby preserve radio service to the
    public -- a basis for Congress's authorization of monetary
    forfeitures as an alternative to license revocation.[^49]

17. Eagle fails to comprehend the critical differences between rule
    violations and Section 312(g). The Commission has discretion to
    shape penalties for rule violations.[^50] As emphasized previously,
    however, Section 312(g), as in effect during the period at issue
    here, provided for automatic termination of a license for a
    station's failure to resume authorized operations within 12 months
    of going silent.[^51] The cases Eagle 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).

18. **License Renewal Applications*. ***Eagle, based on two staff
    license renewal actions,[^52] argues that the staff should have
    granted Eagle's renewal applications. 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] Eagle 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) rely on pleadings that were withdrawn and
    dismissed. We find both the *Morradio* decision and the Lordsburg
    action to be irrelevant to our analysis here.

19. Eagle's arguments for renewal of its expired license are virtually
    identical to arguments rejected by the U.S. 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 dismissed
    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 under the statute then in effect, "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 the station's deleted call letters for the purpose of
    considering an application for renewal of license. As in *Aerco
    Broadcasting* and *OCC Acquisitions,* Eagle's license was forfeited
    and the associated Buckskin Application became moot due to the
    unique nature of Section 312(g) expiration.[^59] When the license
    terminated by operation of law, neither it nor associated
    applications could be revived through the Commission's license
    renewal process. The license renewal applications were thus
    appropriately dismissed.[^60]

20. **Operating Authority/2004 STA Request.** Eagle argues that it
    should be permitted to operate pursuant to STA because, it alleges,
    KVEZ(FM) is one of only three commercial radio stations in all of La
    Paz County, Arizona and its signal is important in emergencies.
    Eagle provides general letters of support from the Chairman of the
    Colorado River Indian Tribes and from a member of the Mohave County
    Board of Supervisors. Eagle states that it could be years until
    another broadcaster is authorized to begin service to Parker if the
    staff's decision is affirmed. Eagle argues that the Commission has
    viewed service to the public, even by a "disqualified broadcaster,"
    preferable to no service at all.[^61]

21. The Commission's rules specify that authority to operate a station
    pursuant to STA is limited to permittees or licensees.[^62] As of
    December 21, 2003, Eagle no longer held a permit or license for
    KVEZ(FM). Moreover, KVEZ(FM)'s service record belies its claim that
    it would serve an important role in notifying the community of any
    emergencies.[^63] In the two and one-half years preceding Section
    312(g) expiration, KVEZ(FM) operated only for six months, and those
    operations were at reduced power. Eagle has not shown that Parker
    will be without any other radio service in the event of an
    emergency.[^64] There are two other FM stations and one AM station
    licensed to Parker.[^65] Additionally, engineering data indicate
    that listeners in Parker receive signals from stations licensed to
    other nearby communities. Furthermore, the loss of KVEZ(FM) does not
    permanently remove a station from Parker. A channel will remain
    allotted to Parker, and all interested entities will have the
    opportunity to apply for the vacant allotment.[^66]

22. Eagle contends that, even without STA, it has authority to operate
    KVEZ(FM) because action on its license renewal application is not
    yet final. In support, Eagle cites a Commission decision and a court
    case.[^67] We reject Eagle'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.[^68] A court also has recognized the
    Commission's ability to prohibit operations during the appeal of an
    unfavorable license renewal decision.[^69] 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.

23. Eagle also bases its continued operations on Section 307(c) of the
    Act , Section 558(c) of the APA, and Section 1.62 of the Rules. All
    of these provisions permit station operations while a renewal
    application is pending, but all presuppose that the renewal
    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 legislation (*see supra* note 5)
    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.) An 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.[^70] To the extent that Eagle 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, this interpretation
    is inconsistent with Section 312(g)'s legislative history. Congress
    designed Section 312(g) to "terminate"[^71] licenses by "automatic
    cancellation,"[^72] and, as discussed *supra* 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 KVEZ(FM) were in accordance with
    Section 312(g), as then in effect.

25. **Effect of Subsequent Legislation/2005 STA Request.** 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 such 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."[^73] On March 21, 2005, Eagle filed
    a Supplement to its March Petition ("Supplement"), arguing that the
    Commission must reinstate its license pursuant to this
    provision.[^74] Eagle 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 Eagle
    \-- and the only one of the four allegedly grounded in case law \--
    is that "equity abhors a forfeiture."[^75] Eagle 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.[^76]

26. We reject Eagle's reading of the legislation. The new provision does
    not change the automatic cancellation provision of Section 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 discretionary provision is phrased as an
    exception to the general rule that 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 extends the license. After that time, 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
    Eagle's proposed maxims of equity,[^77] which appear to suggest that
    any loss of license would be inequitable, thereby effectively
    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. Eagle's license expired on December 21, 2003, before the 2004
    legislation was enacted. In any event, we do not find that Eagle 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 Eagle's claim that it is entitled to an exception to
    Section 312(g) based on preliminary steps it took toward obtaining
    an authorization at the Buckskin site. None of those steps (securing
    local permissions, filing the Buckskin Application with the
    Commission, and the FAA matters discussed previously) conferred upon
    Eagle any authority to construct or to operate at Buckskin. Neither
    does Eagle's claim that it was "merely confused" about the status of
    its permit provide a credible basis for grant of an exception. The
    staff specifically warned Eagle about the impending expiration of
    its license pursuant to Section 312(g). Moreover, we do not find any
    fault in the staff's alleged failure to reiterate this warning
    following Eagle's misleading -- and false -- claim that it had
    resumed operations at an "approved site."

28. With respect to Eagle's 2005 STA Request, we agree with the staff
    that this request was unnecessary as a result of the Commission's
    new ability to reinstate licenses, in appropriate circumstances,
    after 12 months of silence. Eagle wanted to operate temporarily
    pursuant to the 2005 STA Request because it was concerned that while
    the Commission might accept its argument that the KVEZ(FM) license
    did not expire in 2003, the Commission might find that the license
    nevertheless expired in 2005 due to Eagle's remaining off the air
    for over 12 months during the pendency of this proceeding. In such
    circumstances, the Commission could have reinstated the station's
    license pursuant to subsequent legislation.[^78] In any event, the
    2005 STA Request has been mooted by our finding that KVEZ(FM)'s
    license was forfeited in 2003. Accordingly, we are dismissing that
    Request.

# ordering clauses

29. Accordingly, IT IS ORDERED, that the Petitions for Reconsideration
    filed by Eagle Broadcasting Group, Ltd. on March 18, 2004, June 2,
    2004, June 7, 2004, and July 22, 2005, ARE DENIED and that its
    January 25, 2005, request for Special Temporary Authorization IS
    DISMISSED AS MOOT.

30. IT IS FURTHER ORDERED, that Eagle Broadcasting Group's Buckskin
    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]: The staff has referred these matters to the Commission pursuant to
    47 C.F.R. § 1.106(a)(1).

[^2]: Letter to Eagle Broadcasting Group, Ltd. (Feb. 17, 2004). The
    Staff Decision also dismissed as moot an application to modify the
    license.

[^3]: *See* Letter to Eagle Broadcasting Group, Ltd. (May 3, 2004)
    ("Dismissal Letter").

[^4]: The staff dismissed the license renewal application and STA
    request in the same Dismissal Letter*. See id.* Eagle seeks
    reconsideration in two separate documents, both of which were timely
    filed based on the dates of public notice of the decision's STA and
    renewal components. *See* 47 C.F.R. § 1.4(b)(4) and (5). The
    Dismissal Letter itself served as public notice of the STA action,
    while a separate document entitled "Public Notice" was issued with
    respect to the license renewal action. *See Public Notice,* Report
    No. 45731 (May 7, 2004). The June STA Petition and June Renewal
    Petition are referred to herein, collectively, as the "June
    Petitions*.*"

[^5]: *See* Consolidated Appropriations Act, 2005, Pub. L. No. 108-447,
    118 Stat. 2809, Title IX, § 213 (2004).

[^6]: 47 U.S.C. § 312(g) (1996) *amended by* *id.* *See Aerco
    Broadcasting Corp. v. FCC*, 51 Fed. Appx. 23 (D.C. Cir. 2002) (per
    curiam) (the effect of Section 312(g) is license forfeiture). The
    Commission codified Section 312(g) in several of its rules. *E.g.,*
    47 C.F.R. § 73.1740(c). *See Silent Station Authorizations*, Order,
    11 FCC Rcd 16599 (1996).

[^7]: 47 U.S.C. § 153(6).

[^8]: *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*, 11 FCC Rcd at 16600-01. *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).

[^9]: File No. BPH-20020215ABM ("Buckskin Application").

[^10]: Eagle had not shown, for example, that its proposed tower met a
    specific exception to the requirement of notification/registration.
    *See* 47 C.F.R. § 17.14.

[^11]: Applicants proposing to construct an antenna structure that is
    more than 200 feet (60.96 meters) in height above ground level, or
    that may interfere with the approach or departure space of a nearby
    airport runway, must notify the FAA of proposed construction. *See*
    14 C.F.R. § 77.13. *See also* 47 C.F.R. § 17.7. The FAA issues a
    written acknowledgement of each notice, which contains a
    determination of whether the antenna structure constitutes a
    potential hazard, and may require painting and lighting. *See* 14
    C.F.R. § 77.19. All towers that require FAA notification must be
    registered with the Commission. *See* 47 C.F.R. § 17.4. The
    Commission has a statutory responsibility to \"require the painting
    and/or illumination of radio towers\" in cases where there is a
    \"reasonable possibility\" that an antenna structure may cause a
    hazard to air navigation. 47 U.S.C. § 303(q).

[^12]: *Letter to Edward P. DeLaHunt from Maurice W. Coburn* (Dec. 31,
    2002) (March Petition, Attachment A).

[^13]: *Letter to Edward P. DeLaHunt from Maurice W. Coburn* (Dec. 3,
    2003) (emphasis added) (March Petition, Attachment D).

[^14]: Staff Decision at 2 (citing 47 U.S.C. § 301; *Paul Brown, Esq.
    (KTMN),* Letter, 18 FCC Rcd 3818 (MB 2003); and *Idaho Broadcasting
    Consortium*, Letter, 16 FCC Rcd 1721, 1723 (MMB 2001)).

[^15]: *See* 47 C.F.R. §§ 73.1020(a) and 73.3539. The station filed
    another license renewal application (BRH-20050601BTP) on June 1,
    2005, the ordinary due date for licensed Arizona stations. The staff
    dismissed that application, without letter, as inadvertently
    accepted for filing.

[^16]: The original 12-month period that resulted in forfeiture of
    license ran from December 20, 2002, to December 20, 2003.

[^17]: *See infra* ¶ 25.

[^18]: June STA Petition at 3-4.

[^19]: *See* June Renewal Petition at 7 (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}](http://www.fcc.gov/ftp/Bureaus/Mass_Media/Databases/documents_collection/pn19840427.pdf))).

[^20]: *See* June STA Petition at 9 (citing *Lutheran Church/Missouri
    Synod,* Initial Decision, 10 FCC Rcd 9880 (ALJ 1995) (subsequent
    negative history omitted); *North Florida MMDS Partners,* Memorandum
    Opinion and Order on Reconsideration, 10 FCC Rcd 11593, 11607
    (1995); and *Crowell-Collier Broadcasting Corp.,* Memorandum Opinion
    and Order, 44 FCC 2444, 2449 (1961)).

[^21]: March Petition at 8.

[^22]: 47 U.S.C. § 301.

[^23]: *Id.*

[^24]: *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).

[^25]: *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 or regulations having the force
    of statutes . . . .") (cited in *Doe v. Gates,* 981 F.2d 1316, 1321
    (D.C. Cir. 1983)).

[^26]: *See* June STA Petition at 9-10. *See also supra* note 18 and
    *infra* note 48.

[^27]: *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 had 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).

[^28]: March Petition at 2.

[^29]: *Id.* at 6.

[^30]: *See* 5 U.S.C. § 555(b) (agencies shall conclude matters
    presented with "due regard for the convenience and necessity of the
    parties").

[^31]: *Letter to Edward P. DeLaHunt from Maurice W. Coburn* (Dec. 31,
    2002) (March Petition, Attachment A) (notification of station
    silence); *Letter to Edward P. DeLaHunt from Maurice W. Coburn*
    (Mar. 4, 2003) (report of progress toward resuming operations).

[^32]: March Petition at 2, 6, and Attachment C.

[^33]: June STA Petition at 2.

[^34]: *E-mail to Khoa Tran from Jerry Hale, Consultant to Maurice W.
    Coburn* (Dec. 10, 2003).

[^35]: In June 2004, Commission staff telephoned the FAA's regional
    office to verify Eagle's claim. The FAA informed the staff that it
    had no record of receiving any application or issuing any
    determination for the site specified in the Buckskin Application
    (NAD83 coordinates 34° 10' 40" North, 114°12' 26" West). In view of
    the potential hazard to air navigation, the staff member informed
    the FAA at that time that Eagle had constructed a tower at those
    coordinates. When the staff asked the FAA about any August 7, 2003,
    determination issued to Eagle, the FAA located a record in its
    database for a tower approximately 229 miles east of the Buckskin
    site, near Show Low, Arizona (NAD83 coordinates 34° 10' 40" North,
    110° 12' 23" West) issued to Eagle on August 7, 2002 (exactly one
    year prior to the date claimed). In June 2004, the staff searched
    the Commission's own antenna structure database and confirmed that
    no communications towers have been registered with the Commission at
    either the site specified in the Buckskin Application or the site
    for which the FAA issued the August 7, 2002 determination to Eagle.

[^36]: TOWAIR, also known as the Landing Facility Slope Calculation
    program, is a computer program that the Commission makes available
    to the public over the internet. TOWAIR allows antenna structure
    owners to determine whether their structures require an aeronautical
    study by the FAA and registration with the Commission. *See* 47
    C.F.R. §§ 17.4 and 17.7; *Enhanced TOWAIR Query Now Available,*
    Public Notice*,* 15 FCC Rcd 72 (WTB 1999).

[^37]: March Petition, Attachment C ("TOWAIR Study"). The TOWAIR Study
    is dated March 15, 2004.

[^38]: The TOWAIR program requires the user to enter the antenna
    structure's geographic coordinates. Since 1999, the Commission has
    required that applicants express those coordinates in accordance
    with the North American Datum completed in 1983 ("NAD83"). *See*
    *Commission Announces New Procedures for Antenna Structure
    Registration,* Public Notice, 14 FCC Rcd 9668, 9670 (WTB 1999).
    Prior to that time, applicants were permitted to use the 1927 North
    American Datum ("NAD27"). An applicant that knows only the NAD27
    coordinates of its structure can easily convert that information to
    NAD83 coordinates using tools available on the Commission's web
    site. *Id.* The NAD27 coordinates (34° 10' 40" North, 114° 12' 23"
    West) and NAD83 coordinates (34° 10' 40" North, 114° 12' 26" West)
    for the Buckskin site differ by three seconds, enough to affect the
    outcome of the TOWAIR determination.

[^39]: *See Hooten Broadcasting, Inc.,* Memorandum Opinion and Order, 13
    FCC Rcd 15023, 15025 (1998).

[^40]: *See WYCQ, Inc.,*18 FCC Rcd at 16902-03*; Silent Station
    Authorizations,* 11 FCC Rcd at 16601 (warning silent stations that
    modifications needed to return a station to the air must be
    completed prior to the Section 312(g) deadline). *See also
    Procedures Announced for Expediting Processing of Applications Filed
    By Silent Stations,* Public Notice, 11 FCC Rcd 14356 (MMB/IB 1996)
    ("*Silent Station Public Notice*"*)* (responsibility to return
    station to the air is that of the licensee, but Commission staff
    will use its best efforts to assist stations requesting expedited
    application processing).

[^41]: *See, e.g., Tri-State Broadcasting Co., Inc.,* 5 FCC Rcd 1156,
    1173 (Rev. Bd. 1990), *recon. denied,* 5 FCC 3727 (Rev. Bd. 1990)
    (subsequent history omitted); *Nick J. Chaconas,* Decision, 28 FCC2d
    231, 233 (1971). *See also Policy Regarding Character Qualifications
    in Broadcast Licensing,* Report, Order and Policy Statement, 102 FCC
    2d 1179 (1986).

[^42]: For example, Eagle contends that it was obvious that its
    reference to a "previously authorized" site *north* of Parker
    referred to the site in the Buckskin Application, because that site
    is northeast of Parker. Eagle states that the licensed Black Peak
    site is southeast of Parker. To ascertain Eagle's error, however,
    the staff would have had to question Eagle's assertion of authorized
    operations and to consult maps and Commission records to determine
    the location of Parker, Arizona in relation to all sites for which
    Eagle held permanent or temporary authority.

[^43]: 47 C.F.R. § 73.1635(a)(2). Additionally, Eagle is incorrect in
    its assertion that had Eagle explicitly requested an STA to operate
    pursuant to the Buckskin Application, the staff surely would have
    granted an STA within a few days. *See* March Petition at 3; June
    STA Petition at 8. The staff generally does not grant STA for new
    facilities intended for permanent operations, nor does it grant an
    STA to use facilities that potentially create an air hazard.

[^44]: *See generally* 47 C.F.R. § 73.4015 (citing Public Notice, 49
    Fed. Reg. 47331 (Dec. 3, 1984)) (balancing severe consequences of
    dismissal or return of patently defective and incomplete
    applications with the inordinate staff burden and delays caused by
    such applications). Further, the Commission has warned parties
    seeking to modify the facilities of silent stations that
    modification will not toll or extend the 12-month period and that
    the parties therefore must ensure that sufficient time exists for
    the staff to act on the application. *See Silent Station
    Authorizations,* 11 FCC Rcd at 16601.

[^45]: \"\[A\]s a matter of law, the staff\'s inability to act on any
    application within a specific time can not prevent license
    expiration nor give rise to any equitable claim that the license
    term should be extended. Accordingly, it is well established that
    '\[t\]he responsibility for bringing a silent station back on the
    air is that of the licensee.'" *WYCQ, Inc.,* 18 FCC Rcd at 16903
    (citing *Silent Station Public Notice*, 11 FCC Rcd at 14356).

[^46]: Forfeiture Order, 16 FCC Rcd 21138 (EB 2001).

[^47]: Forfeiture Order, 16 FCC Rcd 10059 (EB 2000).

[^48]: *See* June STA Petition at 9-10 (citing *KM Radio of St. Johns,*
    Memorandum Opinion and Order and Notice of Apparent Liability, 19
    FCC Rcd 5847 (2004) ("*KM Radio*") (\$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); *A-O Broadcasting,* Forfeiture Order, 31 Com. Reg. (P&F) 411
    (2003) (\$25,000 forfeiture for multiple violations including
    construction of antenna at wrong height); *Multimedia Development
    Corp.,* Memorandum Opinion and Order, 17 FCC Rcd 22649 (\$100,000
    notices of apparent liability rescinded where receiver replaced
    offending licensee and forfeiture would harm innocent creditors)
    (WTB 2002); and *Morradio,* Forfeiture Order, 14 FCC Rcd 5201 (CIB
    1999)).

[^49]: June STA Petition at 14-15 (citing *Sonderling Broadcasting
    Corp.,* Memorandum Opinion and Order, 69 FCC 2d 289 (1977) and S.
    Rep. No. 86-1857, at 8 (1960)).

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

[^51]: The Commission and staff can, of course, determine that a station
    should be subject to a monetary fine for unauthorized operations
    *and* license forfeiture pursuant to Section 312(g) of the Act.

[^52]: Eagle also relies on several non-renewal cases which it claims
    are indicative of staff discretion. *E.g.*, *Southwestern
    Broadcasting Corp.*, Order, 11 FCC Rcd 14880 (1996); *KM Radio, see
    supra* note 48*.* We will discuss discretion *infra* at paragraph 24
    in the context of legislative changes.

[^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 (D.C. Cir. 2002)*, aff'g* *Carlos J. Lastras*,
    Memorandum Opinion and Order, 16 FCC Rcd 17268 (2001), *aff'g Letter
    to John A. Borsari, Esq.* (MMB Nov. 14, 2000).

[^57]: *Id.*

[^58]: *OCC Acquisitions, Inc. v. FCC,* 64 Fed. Appx. 790 (D.C. Cir.
    2003).

[^59]: Eagle's position is even weaker than that of the applicants in
    *OCC Acquisitions* and *Aerco Broadcasting*. In those two cases,
    each applicant had filed a timely application for license renewal
    prior to operation of Section 312(g). Eagle filed its March 2004
    renewal application outside of the window for Arizona stations after
    its license expired by operation of Section 312(g). The June 2005
    renewal application also was filed long after the license had
    expired by operation of Section 312(g) and was a nullity.

[^60]: To the extent that Eagle argues that the act of filing the
    renewal application affords it ongoing operating authority, we
    address that matter below. *See infra* ¶¶ 22-23.

[^61]: *See* June STA Petition at 14.

[^62]: *See* 47 C.F.R. § 73.1635(a). *See also* 47 U.S.C. §§ 309(b) and
    (f).

[^63]: *See* June STA Petition at 12; 2005 STA Request at 3.

[^64]: *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). *Cf. Contemporary Media,* Decision, 13 FCC Rcd 14437
    (1998) (non-Section 321(g) case allowing interim operations).

[^65]: Other stations licensed to Parker, Arizona are KRIT(FM), KWFH(FM)
    ( noncommercial educational stations), and KLPZ(AM) (a daytime
    station). Commission records indicate that all of these stations are
    currently operating. Additionally, on July 3, 2007, the staff
    granted a permit to construct a new station, KPKR(FM), Parker,
    Arizona.

[^66]: The Act creates no Commission obligation to open a filing window
    at any particular time or interval. We find unpersuasive Eagle's
    claim that the Commission should grant STA because it has not yet
    scheduled a filing window for the now-vacant Parker allotment.

[^67]: *See* June Renewal Petition at 24 (citing *Pinelands, Inc.,*
    Memorandum Opinion and Order, 7 FCC Rcd 6058, n.12 (1992) and
    *Commission for Open Media v. FCC*, 543 F.2d 861, 867 (D.C. Cir.
    1976)).

[^68]: *See Pinelands, Inc.,* 7 FCC Rcd at 6061, n.12 and cases cited
    therein.

[^69]: *See Peninsula Communications Inc. v. FCC,* 55 Fed. Appx. 1 (D.C.
    Cir. 2003) (per curiam).

[^70]: *See Miami MDS Co.,* 14 F.3d 658 (D.C. Cir. 1994); *Commission
    for Open Media v. FCC,* 543 F.2d at 867.

[^71]: 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).

[^72]: 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).

[^73]: 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).

[^74]: Petitions for reconsideration and any supplement thereto must be
    filed within 30 days of public notice of the action to be
    reconsidered. *See* 47 C.F.R. § 1.106(f). No supplement filed after
    the 30- day period will be considered except upon leave granted upon
    a separate pleading for leave to file, which shall state the grounds
    therefore. *Id.* Eagle has provided a sufficient basis for our
    consideration of the Supplement, which is limited to discussing
    legislation enacted after Eagle's last opportunity to present such
    matters.

[^75]: Supplement at 4. Eagle 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* Supplement at 5). 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 Eagle 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. Supplement at 5.

[^76]: *See* Supplement at 5 (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)).

[^77]: *See supra* note 75.

[^78]: Eagle's wording of its 2005 STA Request raised the question of
    whether Eagle had operated the station without authority prior to
    requesting STA. On February 7, 2005, in response to a staff request
    for additional information, Eagle disclosed that it had operated on
    January 17, 2005. This information has been forwarded to the
    Enforcement Bureau.