**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In re Application of )

)

**Multicultural Radio Broadcasting, Inc.** )

(Assignor) )

and ) File No. BALH-971202GX

**WADO-AM License Corporation** ) NAL/Acct. No. X18100001

(Assignee) )

)

For Assignment of License of )

Station WNWK(FM), Newark, New Jersey ) Facility ID No. 46978

)

In Re Applications of )

)

WADO-AM License Corporation )

For License to Cover Construction Permit ) File No. BLH-970327KA

and )

For Minor Modification of Construction Permit ) File No. BMPH-980728IC

and )

Extension of Construction Permit ) File No. BMPH-980728JB

and )

Renewal of License ) File No. BRH-980202V3 )

**MEMORANDUM OPINION AND ORDER**

# AND NOTICE OF APPARENT LIABILITY

**Adopted: October 17, 2000 Released: October 20, 2000**

By the Commission: Commissioner Furchtgott-Roth concurring and issuing a
statement.

*Introduction*

1\. The Commission has under consideration an application for review
filed February 2, 1998, by Emil Antonoff (\"Antonoff\"). Antonoff seeks
reexamination of the January 30, 1998, action by the Mass Media Bureau
denying Antonoff\'s Petition to Deny, and granting the above referenced
assignment application of WNWK(FM),[^1] Newark, New Jersey from
Multicultural Radio Broadcasting, Inc. (\"Multicultural\") to WADO-AM
License Corporation (\"WADO Corp.\"). Multicultural filed an opposition
to the application for review, to which Antonoff filed a reply. Also
before the Commission is a petition to deny the license renewal
application of WNWK filed by Antonoff on February 3, 1998, and
Multicultural\'s opposition. In addition, we review WADO Corp.\'s (a)
July 28, 1998, application for minor modification of a construction
permit issued January 30, 1998, simultaneously with the grant of the
assignment application; and (b) informal objections to these two
applications. For the reasons set forth below, we deny the application
for review and grant the application to renew the license of WNWK.[^2]
We also deny WADO

Corp.\'s application for minor modification and issue a Notice of
Apparent Liability to Multicultural for constructing and operating
WNWK(FM) at variance from its authorization.

*Background*

2\. The factual background of this case became unusually complicated
when construction delays at the Empire State Building, the site
specified in Multicultural\'s construction permit issued July 13, 1992
(\"1992 permit\"), precluded prompt operation of WNWK. Due to these
difficulties, Multicultural was granted a separate construction permit
for a facility at the Chanin Building, New York, New York, (\"Chanin
permit\") pending completion of construction at the Empire State
Building.[^3] Upon resolution of these difficulties in March 1997,
Multicultural commenced operations at the Empire State Building site.
Multicultural then filed a license application to cover the 1992 permit.
The license application, which remains pending, represents that the
facilities were constructed in accordance with the 1992 permit. On March
27, 1997, Multicultural filed an application to make the Chanin facility
an auxiliary station.[^4]

3\. On December 2, 1997, Multicultural filed the above captioned
application to assign the license of WNWK to WADO Corp. Antonoff filed a
petition to deny on January 10, 1998. In his petition, Antonoff claimed
that grant of the assignment application would result in abandonment of
WNWK\'s unique multi-ethnic foreign language programming format, to the
detriment of the public interest in the listening area. Antonoff also
alleged that Multicultural was engaged in unauthorized operation of the
station. Specifically, Antonoff stated that the station was authorized
by the 1992 permit to operate with 810 watts effective radiated power
(ERP) at 373 meters antenna height above average terrain (HAAT), but was
actually operating at 415 meters HAAT and that a \"substantial
population\" is receiving the unauthorized coverage. Antonoff charged
that Multicultural misrepresented its antenna system to the Commission
and requested an evidentiary hearing to determine whether grant of the
assignment would be in the public interest.

4\. Neither Multicultural nor WADO Corp. responded to the petition to
deny. Instead, on January 20, 1998, Multicultural and WADO Corp. filed a
joint motion for expedited action.[^5] In this motion the parties
acknowledged an \"inadvertent\" error concerning WNWK\'s ERP and the
station\'s antenna position. The parties asserted that although the
station was operating at 415 meters HAAT, 42 meters higher than
authorized, it was operating at only 659 watts; therefore the facilities
were operating at the equivalent of the authorized value. Multicultural
also filed simultaneously (a) a minor modification application
(\"corrective modification application\")[^6] for WNWK\'s facilities to
operate at these equivalent values, and (b) a request for Special
Temporary Authorization (\"STA\") to continue operating at the

unauthorized ERP and HAAT pending approval of the corrective
modification application. Antonoff replied to the joint motion claiming
it was an opposition \"in disguise,\" filed in contravention of the

Commission\'s rules because the parties failed to file an affidavit or
sworn declaration with the pleading as required by Section 309 of the
Communications Act.

5\. *Application for Review*. On January 30, 1998, the Mass Media Bureau
issued a letter decision (\"Letter Decision\") granting the assignment
application, granting the corrective modification application in part,
and dismissing the request for STA as moot. In rejecting Antonoff\'s
claim concerning loss of multi-ethnic programming, the staff noted the
Commission\'s established policy of not taking format into consideration
in making licensing decisions, and concluded it would be inappropriate
to deviate from the policy in this case. As to Antonoff\'s claim of
unauthorized operation, the staff concluded that the nature and extent
of Multicultural\'s technical malfeasance did not rise to the level
necessary to warrant an evidentiary hearing. The staff based this
conclusion on its independent review and finding that the facilities as
constructed are roughly equivalent to those authorized, with similar
coverage areas. The staff found there was no evidence of a motive to
mislead the Commission.

6\. In addition, the staff stated that a grant of the corrective
modification application filed by Multicultural would result in a
violation of Section 73.213(a) of our rules, because the proposed
facilities would increase predicted interference to several
grandfathered short spaced stations. *See* 47 C.F.R. § 72.213(a). The
staff noted, however, that reducing the ERP from 659 watts to 610 watts
would bring the facilities into compliance. The staff then, on its own
motion, granted the corrective modification application with an ERP of
610 watts (\"1998 permit\"). The staff advised that, pursuant to 47
C.F.R. §1.110, Multicultural had 30 days to reject the limitation and,
if it did so, that the staff would vacate the grant and return the
application to pending status, necessitating rescission of the
assignment application. On February 26, 1998, Multicultural and Heftel
(WADO Corp.\'s parent company) submitted a letter to the Chief, Audio
Services Division, Mass Media Bureau, stating it was not seeking
reconsideration, but requesting a \"clarification\" of the staff\'s
finding and asking the Commission to authorize an ERP of 659 watts.

7\. *Minor Modification Application and Extension Applications .* The
parties consummated the assignment on May 22, 1998. On July 28, 1998,
WADO Corp. filed an application for minor modification of the 1998
permit, seeking to increase the ERP of the station to 660 watts.[^7]
WADO Corp. claims the staff erred in applying Section 73.213(a), but
states the public interest will be served by granting a waiver of the
rule if necessary to grant the application. In support of its waiver
request, WADO Corp. asserts that the application should be studied under
a prior version of Section 73.213(a) because its license application for
the 1992 permit was pending before the rule was modified in November
1997. WADO Corp. claims that though the information contained in the
application was erroneous, the Commission staff \"contributed\" to the
error because when the staff issued WNWK\'s 1992 permit, it specified an
incorrect antenna type and height. Inaccurate data filed in the license
application merely reflected the inaccurate data on the permit.
Alternatively, WADO Corp. states that if the current version of Section
73.213(a) is applied, the rule should be waived due to the ambiguity in
the specifications set forth in the 1992 permit and because the modified
rule was intended to increase, not decrease, the range of possibilities
for improvement of short-spaced stations such as WNWK.

8\. On August 18, 1998, Antonoff filed an informal objection addressing
the minor modification application. Antonoff states that the
modification application is an attempt to obtain

authorization to operate at 660 watts without rescinding the assignment
application. *See* ¶ 6, *supra*. Further, on September 23, 1998,
Chancellor Media Pennsylvania, Corp. (\"Chancellor\"), licensee of
WJJZ(FM), Philadelphia, Pennsylvania, submitted an informal objection to
the modification. Chancellor

asserts that the minor modification application violates the
Commission\'s short spacing rules in Section 73.213. Specifically,
Chancellor claims that WNWK\'s proposed facilities would increase the
prohibited overlap of the interfering \[WNWK\] contour within the
protected service area of WJJZ, and unreasonably limit the ability of
other short-spaced stations to make site or facility changes. An
objection was also filed by Cox Radio, Inc. (\"Cox Radio\") on October
29, 1998. Cox Radio, licensee of WBLI(FM), Patchogue, New York, states
the minor modification application and contingent waiver should be
denied because: (a) WADO Corp. failed to meet the procedural
requirements of 47 C.F.R. § 73.213(a)(3), requiring service of
applications proposing new interference to short-spaced stations on the
licensees of those stations; and (b) failed to meet the substantive
requirements of Section 73.213(a) because the proposed power increase
would cause interference to station WBLI(FM).

9\. *Petition to Deny License Renewal Application.* Antonoff\'s pleading
is procedurally defective as a petition to deny. Section 309(d)(1) of
the Communications Act of 1934, as amended, and Section 73.3584 of the
Commission\'s Rules requires that petitions to deny be supported by
affidavits or declarations under penalty of perjury from persons with
personal knowledge of the facts set forth in the petition. *See Columbia
Broadcasting System, Inc.*, 46 FCC 2d 903 (1994). Antonoff failed to
provide an affidavit or declaration; nonetheless, we will treat
Antonoff\'s pleading as an informal objection pursuant to 47 C.F.R. §
73.3587. In this pleading, Antonoff asserts that the unauthorized
operation of WNWK demonstrates that Multicultural does not have the
character qualifications to be a Commission licensee. Antonoff claims
that Multicultural misrepresented its operation of WNWK to the
Commission; therefore, the renewal of license application for the Chanin
facility should be denied, or designated for evidentiary hearing. In its
response, Multicultural states that it made no deliberate
misrepresentations to the Commission and that Antonoff has no basis to
support this allegation.

*Discussion*

*10. Programming Format.* The staff correctly concluded that it would
not be appropriate in this case to depart from the Commission\'s general
policy of leaving format issues to the discretion of the licensee as
influenced by market forces. *See* *Changes in the Entertainment Formats
of Broadcast Stations*, 60 FCC 2d 858 (1976). The Supreme Court has
upheld this policy and the Commission\'s determination that the public
interest is best served by promoting diversity in entertainment formats
through market forces and competition among broadcasters. *FCC v. WNCN
Listener\'s Guild,* 450 U.S. 582, 585 (1981). Antonoff attempts to
discredit this conclusion by emphasizing that WNWK provides a format of
\"multi-ethnic\" programming, premising his request for review on the
Supreme Court\'s statement that the Commission\'s policy on
entertainment programming did not apply to a broadcaster\'s obligation
to respond to community needs in the area of informational programming.
*See FCC v. WNCN Listener\'s Guild*, 450 U.S. at 604 n.46 (1981).

11\. We need not reach the question here whether our general policy of
declining to take proposed format changes into account when reviewing
assignment or transfer applications should be altered where the proposed
transaction may deprive the listening public of foreign language or
ethnic informational programming. We note initially that in its
opposition to Antonoff's application for review, Multicultural claims
that it intends to continue its "multi-ethnic" programming format on
WPAT(AM), Patterson, New Jersey, a station it acquired as part of the
same transaction in which it sold WNWK, and in fact

WPAT(AM) is airing Multicultural's ethnic format.[^8] Furthermore, we
note that any concerns we might

have about the instant transaction are mitigated by the fact that
diverse programming is offered by other broadcasters in the WNWK service
area. Indeed, our independent review shows there are over 33 AM and 27
FM radio stations which share all or substantially all of the WNWK
listening audience. These stations broadcast in a variety of formats
including ethnic/foreign language and multicultural programming.[^9]

12\. *Unauthorized Operation*. Concerning WNWK\'s unauthorized
operation, Antonoff argues that the staff erred in accepting at face
value and without supporting documentation Multicultural\'s assertion
that, although it was operating at a height greater than authorized, its
technical facilities were equivalent to the facilities authorized by the
1992 permit because WNWK was also operating at reduced power.
Specifically, Antonoff argues that without a sworn affidavit the staff
had no way of knowing that WNWK had not decreased its power as a result
of the petition to deny in order to create the \"equivalency\" argument
and render the allegations of misrepresentation meaningless. We concur
that the staff\'s assumption that WNWK had consistently operated with
facilities \"roughly equivalent\" to those authorized appears to be
unsupported by the record. However, Multicultural has, in its opposition
to the application for review, stated it has operated at 659 watts since
beginning operations in March 1997, and claims the error in specifying
the wrong ERP/HAAT on the license application to cover the 1992 permit
stemmed from a miscommunication between the on-site engineer and the
consulting engineer at the time it commenced operations, as well as from
incorrect information on its permit. Multicultural also submitted a
sworn statement from its engineering firm indicating that (1) the master
antenna used by WNWK is in fact located at 415 meters HAAT; (2) WNWK did
not and could not operate at an ERP of greater than 659 watts, because
the maximum ERP that can be generated with the transmitter and antenna
combination employed by WNWK is 659 watts; and (3) WNWK\'s authorized
operations and actual operations are in fact equivalent.

13\. Based on the information contained in the referenced engineering
affidavit, Multicultural's claim that it was technically incapable of
operating WNWK at a power in excess of 659 watts appears to be correct.
We therefore reject Antonoff\'s contention that Multicultural may have
reduced power to that level from 810 watts only in response to the
filing of a petition to deny. Furthermore, because the staff has
concluded that WNWK\'s actual operation at 659 watts at 415 meters HAAT
was \"roughly equivalent\" to its authorized operating power of 810
watts at 373 meters HAAT, we agree with the staff that Multicultural had
no motive to misrepresent its actions on its March 1997 license
application to cover the 1992 permit.[^10] *See WMOZ, Inc.,* 36 FCC 202
(1964) (motive always an issue in misrepresentation cases). *Fox River
Broadcasting,* 93 FCC 2d 127, 129 (1983) (a misrepresentation involves
false statements of fact made with an intent to deceive the
Commission).[^11] Given this conclusion, we agree with the staff that it

would be inappropriate to designate this case for hearing. *See, e.g.,
Capital Cities/ABC Inc*., 11 FCC Rcd 5841, 5862 (1996) (allegations
failed to make *prima facie* case that character qualifications of
applicant should be called into question, and no hearing was therefore
warranted); *Radio New Jersey,* 44 FCC 2d 51 (Rev. Bd. 1973) (although
applicant undeniably careless, there was no substantial showing of
deliberate

misrepresentation demonstrating applicant lacks requisite character
qualifications to be a Commission licensee; thus, case was not
designated for hearing). Based on the foregoing, we also deny
Antonoff\'s request to deny WNWK\'s license renewal application for the
Chanin facility, or designate the matter for hearing. In failing to
provide evidence of acts of willful misrepresentation, Antonoff failed
to make a *prima facie* case that Multicultural lacks the necessary
character to hold a broadcast authorization.

14\. There is no question, however, that Multicultural failed to
exercise diligence in assuring that its operation was in compliance with
its technical authorization. A broadcast station must be constructed
substantially as set forth in its permit in order to avert air
navigation hazards and avoid interference to other broadcast stations.
*See* 47 U.S.C. § 319(c) and 47 C.F.R.§ 73.1620 (which provides, in
pertinent part, that program tests may be conducted by permittees, upon
appropriate notice to the Commission, and that the facilities tested
must have been built in accordance with the terms of the construction
permit and the relevant technical rules). Otherwise, the station is
subject to revocation of license or permit, or imposition of a
forfeiture. *See* 47 U.S.C §§ 312(a)(2), 319(c); and 503(b)(1)(A)
(forfeiture appropriate for willful or repeated failure to comply
substantially with the terms and conditions of any permit or other
authorization issued by the Commission). At the time Multicultural
constructed the station, it was authorized to utilize an antenna height
of 373 meters HAAT, 42 meters lower than that actually constructed.
Therefore, it appears that Multicultural violated Section 503(b)(1)(A)
of the Act by constructing and operating facilities that deviated from
those described in the underlying permit, without first obtaining
Commission authorization or consent for modification

15\. In this case, we note that WNWK(FM)'s facilities, while utilizing
an unauthorized power and antenna height, appear to have been otherwise
consistent with the technical parameters set forth in its permit, and
that no compounding factors \-- such as the creation of air hazard or
actual objectionable interference \-- were present in either the
construction or operation of the nonconforming facility.[^12] We
nevertheless find that the licensee's construction and operation of
WNWK(FM) with unauthorized facilities was serious enough to warrant a
sanction. We note that the duration of the violation, from March of 1997
until January 30, 1998 (when the Bureau granted WNWK's modification
application reduced to an ERP of 610 watts), was not insubstantial.

16\. In determining the appropriate forfeiture amount, we note that the
Commission's *Forfeiture Policy Statement*[^13] provides for a
forfeiture of \$5,000.00 as the current base amount for constructing or
operating facilities that exceed the authorized antenna height. In the
instant case, we believe that this amount reflects the full circumstance
in which the violation arose, as discussed above, and is appropriate. In
view of the foregoing, we believe that a Notice of Apparent Liability
for a forfeiture of the base amount, \$5,000.00, is warranted.

17\. *Minor Modification.* WADO Corp. claims that in granting the 1998
permit to specify only 610 watts the staff failed to apply Section
73.213 in accordance with the *Report and Order* which was intended to
increase the flexibility of grandfathered short-spaced stations such as
WNWK to improve their facilities. However, WADO Corp. fails to
acknowledge the Commission\'s concerns of increased interference. As
stated in the *Grandfathered Short Spaced FM Stations,* *Report and
Order,* 12 FCC Rcd 11840, 11843 (1997) *(\"Report and Order\"),* the new
rule \"allows maximum flexibility for grandfathered

stations, while *maintaining or reducing interference\....*\" *(emphasis
added).* Our independent engineering analysis indicates that WADO
Corp.\'s proposal would increase interference caused to co- and first
adjacent channels in contravention of the rule.[^14]

18\. We also reject WADO Corp.\'s assertion that the Commission should
apply the prior version of Section 73.213(a) to the July 1998
modification application because the station commenced operations and
filed its license application in March 1997, before the rule was
modified in November 1997. We know of no legal authority, nor does WADO
Corp. cite any, which would require us to apply a version of our rules
that has been superseded simply because WADO Corp. filed an erroneous
license application before the rules were changed. *See, e.g.*, *ECI
License Company, L.P.,* 11 FCC Rcd 3545 (1996), *aff\'d* 106 F.3d 442
(D.C. Cir. 1996) (applicant prevented from filing due to freeze was not
entitled to have its application reviewed under prior, more lenient
rule, rather than more stringent version adopted during the freeze).
*See also* *Washington Association for Television and Children v. FCC,*
665 F.2d 1264 (1981) (an agency cannot be required to apply a policy it
has determined no longer serves the public interest). Prior to the rule
changes, grandfathered short-spaced stations were permitted to modify
facilities if their 1 mV/m contour did not extend toward the 1 mV/m
contour of any other grandfathered short- spaced station. Since WADO
Corp.\'s 1 mV/m contour as authorized in 1992 and as it commenced
operations in March 1997 were \"equivalent,\" and since WADO Corp.
therefore could have modified its authorization to \"match\" its actual
operation had it filed a modification application at that time, the
staff, as noted, rightly found that WADO Corp. had no motive to
misrepresent its operation in its March 1997 license application.
However, asking the Commission to grant the January 1998 \"corrective
modification application\" or the July 1998 modification application
under the old rules is another matter. Under the rules adopted in
November 1997, whether a grandfathered short-spaced station\'s proposed
1 mV/m contour remains \"equivalent\" to its old 1 mV/m contour is no
longer determinative in deciding whether a proposed modification is
grantable. Rather, under the new rules, the modifying station cannot
extend its interfering contour toward any other co-channel or first
adjacent channel grandfathered short spaced station unless it can
demonstrate, pursuant to the specific factors listed in 47 C.F.R §
73.213(a)(2) that the proposed change is in the public interest. Here,
as petitioners Cox Radio and Chancellor Media complain, WADO Corp.\'s
proposed modification in fact extends its interfering contour toward
both stations and no valid public interest justification is provided.
The staff therefore, properly, *sua sponte,* reduced the specified ERP
to a level that brought the facilities proposed in the January 1998
\"corrective modification application\" into compliance with the current
rules before granting it*.* For this reason we also deny the July 1998
modification application before us now.

19\. Finally, we reject WADO Corp.\'s claim that the Commission should
waive Section 73.213 if necessary to grant the application, based on a
staff error in issuing the construction permit. Although the staff
listed the incorrect antenna in the shared antenna condition in its 1992
permit, the parameters specified in the technical portion of the
authorization correspond to the facilities proposed in the application.
The

minor discrepancy in the authorization does not excuse the
\"miscommunication\" between WNWK\'s engineers which resulted in the
filing of a license application containing erroneous information. *See*
para.12, *supra.* Nor does it excuse the fact that WNWK\'s facilities
were not in compliance with its technical authorization. We have
afforded WADO Corp.\'s waiver request the \"hard look\" required under
the WAIT doctrine, *WAIT Radio v. FCC,* 418 F.2d 1153 (D.C. Cir. 1969),
but find that the facts and circumstances set forth in WADO Corp.\'s
justification are insufficient to establish that grant of the

requested waiver of Section 73.213 is in the public interest.
Consequently, we dismiss the minor modification application. As a
result, WADO Corp. is directed to amend its pending license application
to specify an ERP of 610 watts as set forth in the 1998 permit.[^15]

*Conclusion/Orders*

20\. In sum, we find that the issues raised by Antonoff fail to present
a substantial and material question of fact sufficient to indicate that
grant of the subject assignment and renewal applications would be
inconsistent with the public interest, convenience, and necessity. In
accordance with 47 U.S.C. § 309, we therefor find no basis for a hearing
in this proceeding and will deny Antonoff's requested relief. We will
also, however, grant the informal objections of Antonoff, Chancellor,
and Cox with respect to the modification application no. BMPH-980728IA
and dismiss that application. Further, we find that the applicants are
otherwise qualified and that grant of the assignment and renewal
applications would serve the public interest, convenience, and
necessity. Notwithstanding this conclusion, we find that the imposition
of a forfeiture in the amount of \$5,000 is appropriate.

21\. In view of the above, pursuant to 47 U.S.C. § 503(b), Multicultural
Broadcasting, Inc. IS HEREBY ADVISED of its apparent liability for a
forfeiture of Five Thousand Dollars (\$5,000.00) for its willful and
repeated violation of 47 U.S.C. §503(B)(1)(A) on the dates specified
above. In regard to this forfeiture, Multicultural is afforded a period
of thirty (30) days from the date of this Notice \"to show, in writing,
why a forfeiture penalty should not be imposed or pay the forfeiture.
Any showing as to why the forfeiture should not be imposed or reduced
shall include a detailed factual statement and such documentation and
affidavits as may be pertinent.\" 47 C.F.R. Sec. 1.80(f)(3).

22\. ACCORDINGLY, IT IS ORDERED, That the Application for Review filed
on February 2, 1998, by Emil Antonoff IS DENIED.

23\. IT IS FURTHER ORDERED, That the Informal Objection filed on
February 3, 1998, by Emil Antonoff is DENIED.

24\. IT IS FURTHER ORDERED, That the Minor Modification Application,
File No. BMPH-980728IC, filed by WADO-AM License Corporation on July 28,
1998 is DISMISSED.

25\. IT IS FURTHER ORDERED, That the Application for Extension of Time
to Construct, File No. BMPH-980728JB, filed by WADO-AM License
Corporation on July 28, 1998, is DISMISSED as moot.

26\. IT IS FURTHER ORDERED, That the Informal Objection filed by Emil
Antonoff on August 18, 1998, IS GRANTED to the extent indicated herein.

27\. IT IS FURTHER ORDERED, That the Informal Objection filed by
Chancellor Media Pennsylvania Corp., on September 23, 1998, is GRANTED.

28\. IT IS FURTHER ORDERED, That the Informal Objection filed by Cox
Radio, Inc. on October 29, 1998, IS GRANTED.

29\. IT IS FURTHER ORDERED, That the Application for Renewal of License
of WNWK, File No. BRH-980202V3, is GRANTED.

30\. IT IS FURTHER ORDERED, That WADO-AM License Corporation must,
within 30 days of the date of this Order, amend its license application,
File No. BLH-970327KA, to specify the parameters authorized in
construction permit File No. BMPH-980120IG.

31\. IT IS FURTHER ORDERED That, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311 and
1.80 of the Commission's rules,[^16] Multicultural Broadcasting, Inc.,
licensee, Station WNWK(FM), Newark, New Jersey, is hereby NOTIFIED of
its APPARENT LIABILITY FOR FORFEITURE in the amount of Five Thousand
Dollars (\$5,000.00) for willfully and repeatedly violating 47 U.S.C.
Section 319(c) and Section 73.1620 of the Commission\'s rules.

32\. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's
rules, that within thirty days of the release of this Notice,
Multicultural Broadcasting, Inc., SHALL PAY to the United States the
full amount of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.

33\. Payment of the forfeiture may be made by credit card through the
Commission's Credit and Debt Management Center at (202) 418-1995, or by
mailing a check or similar instrument, payable to the order of the
Federal Communications Commission, to the Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482. The payment
should note the file number of this proceeding.

34\. The response, if any, must be mailed to the Commission's Audio
Services Division, Mass Media Bureau, 445 Twelfth Street, S.W., Room
2-A320, Washington, D.C. 20554, and MUST INCLUDE the NAL/Account number
referenced in the caption of this document (X18100001).

35\. The Commission will not consider reducing or canceling a forfeiture
in response to a claim of inability to pay unless the petitioner
submits: (1) federal tax returns for the most recent three-year period;
(2) financial statements prepared according to generally accepted
accounting practices ("GAAP"); or (3) some other reliable and objective
documentation that accurately reflects the petitioner's current
financial status. Any claim of inability to pay must specifically
identify the basis for the claim by reference to the financial
documentation submitted.

36\. Requests for payment of the full amount of this Notice of Apparent
Liability under an installment plan should be sent to: Chief, Credit and
Debt Management Center, 445 Twelfth Street, S.W., Washington, D.C.[^17]

37\. IT IS FURTHER ORDERED that a copy of this Notice shall be sent, by
Certified Mail \-- Return Receipt Requested, to Multicultural
Broadcasting, Inc., 449 Broadway, New York, New York 10013.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Román Salas

Secretary

**Concurring Statement of Commissioner Harold W. Furchtgott-Roth**

*In re Application of Multicultural Radio Broadcasting, Inc. (Assignor)
and WADO-FM License Corporation (Assignee) For Assignment of License of
Station WNWK(FM), Newark, New Jersey*

I fully agree with the conclusion reached in this Order regarding the
transfer of WNWK's license. I write separately to make the point that I
would not depart , nor would I leave open the possibility that it ever
would be appropriate for us to depart, from our policy of leaving format
issues to the discretion of the licensee simply because foreign language
or ethnic informational programming is at issue. *See* Order at para.
11. Although the Commission claims that it does not reach this question,
it goes on to rely on the facts that the proposed assignee of the
license states that it intends to continue its "'multi-ethnic'
programming format" and that many other stations in the area broadcast
in that format. *Id.*

Such expressly content-based considerations are presumptively
inconsistent with the First Amendment, as would be also a more express
departure from our traditional policy regarding format. *Cf. Columbia
Broadcasting System, Inc., DNC,* 412 U.S. 94, 104 (1973) ("'We cannot
allow any single person or group to place themselves in (a) position
where they can censor the material which shall be broadcasted to the
public, nor do I believe that the Government should ever be placed in
the position of censoring this material.'") (quoting Testimony of
Herbert Hoover, Hearings on H.R. 7357 before the House Committee on the
Merchant Marine and Fisheries, 68^th^ Cong., 1^st^ Sess., 8 (1924)).
Accordingly, I would not rely on them in any way in approving this
license transfer.

[^1]:     ^?^On May 27, 1998, WNWK changed its call sign letters to
    WCAA. For purposes of this Order we will continue to refer to the
    station by its original call sign.

[^2]:     ^?^On February 2, 1998 Antonoff filed an \"Emergency Petition
    for Immediate Recession and Request for Stay of Action Taken
    Pursuant to Delegated Authority\" to which Multicultural filed an
    opposition. Because we address Antonoff\'s Application for Review,
    we dismiss the Emergency Petition as moot.

[^3]:     ^?^The Chanin permit was granted on July 30, 1992. A license
    to cover the Chanin permit was granted on March 10, 1993.

[^4]:     ^?^This application, File No. BMLH-970327KB, remains pending.
    A formerly licensed main facility may be granted an auxiliary
    license after licensing of the new main facility. *See* 47 C.F.R. §
    73.1675.

[^5]:     ^?^ The parties sought review of the application before the
    WNWK license renewal was to be filed in February 1998 based on the
    Commission\'s policy of deferring actions on single station
    assignments while renewals are pending. *See Stockholders of CBS,
    Inc.*, 11 FCC Rcd 3733 (1995).

[^6]:     ^?^File No. BMPH-980120IG.

[^7]:     ^?^File No. BMPH-980728IC.

[^8]: ^?^*See* File No. BAL-971202GK, granted on January 30, 1998.
    Multicultural notes that the coverage area of WPAT(AM) will
    completely encompass and extend substantially beyond that of WNWK.
    Thus, it notes, not only will all of WNWK's listening public
    continue to receive the same programming by tuning to WPAT(AM), but
    many more listeners will receive this programming for the first
    time.

[^9]:     ^?^For example, WADO(AM), WZRC(AM), WBAI(FM) and WNYE(FM)
    broadcast multicultural or foreign language/ethnic programming. *See
    1999 Broadcasting and Cable Yearbook*, pp. 285-307.

[^10]:     ^?^Antonoff claims that the unauthorized operation allowed
    Multicultural to reach an additional 260,000 people thereby
    providing a motive for misrepresentation. Antonoff has failed to
    provide any support for this assertion.

[^11]:     ^?^Antonoff asserts that representatives for Multicultural
    and/or WADO, Inc. violated the Commission\'s *ex parte* rules by
    contacting the staff to push for expedited resolution. *See* 47
    C.F.R. § 1.1202(a). Multicultural responds that there was no *ex
    parte* contact and that its request for expedited treatment was
    fully set forth in the \"Joint Request for Expedited Action\" filed
    on January 20, 1998.

[^12]: ^?^ The height of the broadcast tower itself, the Empire State
    Building, is already known. It does not appear that the misstated
    antenna height, in this case, caused an air-safety hazard.

[^13]: ^?^ *In the Matter of the Commission\'s Forfeiture Policy
    Statement and Amendment of Section 1.80 of the Rules to Incorporate
    the Forfeiture Guidelines*, 12 FCC Rcd 17087 (1997), *recon.
    denied*, 15 FCC Rcd 303 (1999).

[^14]: ^?^ These stations include: (1) the licensed (BLH-920323KA)
    co-channel Class B facility, WHCN(FM), Hartford, CT; (2) the
    licensed (BLH-940614KA) first-adjacent Class B facility, WBLI(FM),
    Patchogue, NY; and (3) the licensed (BMLH-850405KC) first-adjacent
    Class B facility WJJZ(FM), Philadelphia, PA. The licensees of
    WBLI(FM) and WJJZ have, as noted, objected to the minor modification
    application.

[^15]: ^?^ WADO Corp.'s application (File No. BPH-980728JB) to extend
    its 1992 construction permit will be dismissed as moot.

[^16]: ^?^ *See* 47 C.F.R. §§. 0.111, 0.311 and 1.80.

[^17]: ^?^ *See* 47 C.F.R. §. 1.1914.