**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In re )

)

GERARD A. TURRO ) MM Docket No. 97-122

)

For Renewal of License ) File Nos. BRFT-970129YC

for FM Translator Stations ) BRFT-970129YD

W276AQ(FM), Fort Lee, NJ, and )

W232AL(FM), Pomona, NY )

)

MONTICELLO MOUNTAINTOP )

BROADCASTING, INC. )

)

Order to Show Cause Why the )

Construction Permit for FM Radio )

Station WJUX(FM), Monticello, NY, )

Should Not Be Revoked )

##  Appearances

[Charles R. Naftalin]{.underline} and [Alan Y. Naftalin]{.underline} on
behalf of Gerard A.Turro; [James P. Riley]{.underline} and [Andrew S.
Kersting]{.underline} on behalf of Monticello Mountaintop Broadcasting,
Inc; [Michael D. Hays]{.underline}, [John S. Logan]{.underline},
[Richard A. Helmick]{.underline}*,* [Roy R. Russo]{.underline} and [J.
Brian DeBoice]{.underline} on behalf of Universal Broadcasting of New
York, Inc.; and [James W. Shook]{.underline} and [Alan E.
Aronowitz]{.underline} on behalf of the Chief, Mass Media Bureau,
Federal Communications Commission.

##  DECISION

Adopted: July 6, 2000 ; Released: July 20, 2000

By the Commission: Chairman Kennard not participating.

1\. In this Decision the Commission affirms the [Initial
Decision]{.underline} ("[I.D.]{.underline}"), 15 FCC Rcd 560 (ALJ 1999),
of Administrative Law Judge Arthur I. Steinberg ("ALJ"), which granted
the applications of Gerard A. Turro for renewal of license for FM
translator stations W276AQ(FM), Fort Lee, New Jersey, and W232AL(FM),
Pomona, New York,[^1] and concluded that the

construction permit of Monticello Mountaintop Broadcasting, Inc.
("Monticello") for FM radio station WJUX(FM), Monticello, New York,
should not be revoked.

# I. BACKGROUND

2\. Turro has been the licensee of the Fort Lee translator since March
1986 and the Pomona translator since January 1995. From September 1993
to July 1995, he was also the licensee of Intercity Microwave Relay
Station WMG-499. Turro also owns a business called FM 103.1, Inc., doing
business as Jukebox Radio ("Jukebox Radio"), located in Dumont, New
Jersey, which produces radio programming consisting of music of the
1940s and 1950s. The Fort Lee translator and the Jukebox Radio studio
are both located in Bergen County, New Jersey, Turro's place of
residence. On two separate occasions, Turro sought waiver or amendment
of the Commission's rules to permit program origination on his Fort Lee
translator. Both requests were denied. [See]{.underline} [Gerard A.
Turro]{.underline}, 2 FCC Rcd 6674 (1987), [aff'd]{.underline}, [Turro
v. FCC]{.underline}, 859 F.2d 1498 (D.C. Cir. 1988); Report and Order,
[FM Translator Stations]{.underline}, 5 FCC Rcd 7212, 7219-20 (1990),
[recon. denied and clarified]{.underline}, 8 FCC Rcd 5093 (1993).[^2]

3\. In January 1991, Turro requested a "declaratory ruling" from the
Mass Media Bureau "concerning the operation of commercial FM
translators." Specifically Turro asked whether it would be permissible
for an FM translator station to purchase air time on the FM station that
it rebroadcasts where: (a) the translator operates outside the primary
contour of the originating station; (b) the primary station does not
reimburse the translator for air time or financially support it; (c) the
translator complies with the Commission's rules regarding the purchase
of brokered air time; and (d) the translator may sell advertising during
the brokered time. Bureau Exh. 1, p. 6.

4\. In a letter dated November 19, 1991, the Bureau responded that
Turro's time brokerage "proposal would \[not\] be prohibited by the
Commission's rules or policies." In pertinent part, the Bureau stated:

\[T\]he issue presented by Mr. Turro's request is whether the licensee
of a translator station is permitted to enter into a time brokerage
contractual arrangement with its primary station, provided that the
primary station does not either reimburse the translator station
licensee for the purchase of the brokered time or provide financial
support for the translator station's operation.

. . . .

Under § 74.1232(e), an FM translator station whose coverage contour
extends beyond the protected contour of the primary station cannot
receive any support, before or after construction, either directly or
indirectly, from the primary station. This applies to all persons and
entities having any interest or connection with the primary station.

With regard to brokerage arrangements between licensees and brokers,
such arrangements usually involve the broker as both program producer
and commercial salesperson for a time block purchased from the licensee.
Our rules only require licensees to keep brokerage contracts at the
station and make them available for Commission inspection upon request
(47 C.F.R. § 73.3613(d) (1989)).

> In view of the specific circumstances presented by Mr. Turro's
> request, we conclude that his proposed operation would be consistent
> with the Commission's rules and policies as outlined above. However,
> this conclusion rests on the following requirements: the time
> brokerage contract must be kept at the primary station and made
> available for Commission inspection upon request per § 73.3613(d);
> there must be a bona fide, arm\['\]s-length transaction between the
> primary station and the translator; the licensee of the translator
> station will have to pay the primary station a rate charge comparable
> to the amount charged other purchasers of brokered airtime, or an
> amount consistent with such charges in the local broadcast community;
> and at no time would the translator station receive financial support,
> directly or indirectly, from the primary station to cover any costs
> associated with the operation and maintenance of the translator
> station.

Bureau Exh. 1, pp. 8-9.

5\. After receiving the Bureau's ruling, Turro began exploring ways to
form such an arrangement to bring FM programming to Bergen County. On
October 17, 1994, Turro and Wesley R. Weis, the sole owner of
Monticello, the permittee of WJUX(FM), entered into a Network
Affiliation Agreement. The Agreement provided that Turro would provide
Jukebox Radio programming to WJUX twenty-four hours a day, seven days a
week, and that Turro would compensate Monticello for carrying the
programming on WJUX. The parties also agreed that the Fort Lee and
Pomona translators would rebroadcast WJUX's signal.

6\. In February 1995, Universal Broadcasting of New York, Inc.
("Universal"), the licensee of AM station WVNJ, Oakland, New Jersey,
complained to the Commission that Turro and Weis were violating the
Commission's rules. [Inter alia]{.underline}, Universal alleged that
Turro was not receiving the WJUX signal off the air and rebroadcasting
it via his translator stations, but was sending Jukebox Radio
programming directly from his Dumont studio facilities to the Fort Lee
translator over his microwave relay station, WMG-499. As a result of the
allegations, the Commission conducted an investigation, including
inspections by an FCC field engineer of the respective facilities on
April 13 and 14, and May 15, 1995. Following the inspections, the Bureau
sent Letters of Inquiry to Turro and Monticello, and they responded.

7\. Based upon the responses to the Letters of Inquiry and the results
of the field inspections, the Commission determined that serious
questions existed regarding Turro's and Monticello's basic
qualifications. Because of the commonality of facts and issues involving
the respective stations, the Commission made Turro and Monticello
parties to a consolidated proceeding. By [Hearing Designation Order,
Order to Show Cause and Notice of Opportunity for Hearing]{.underline},
12 FCC Rcd 6264 (1997) ("[HDO"]{.underline}), the Commission specified
issues to determine:

> \(a\) whether Turro's operation of his translator stations violated
> Sections 74.531(c) and 74.1231(b) of the Commission's rules, 47 C.F.R.
> §§ 74.531(c) and 74.1231(b), with respect to the operation of
> translator stations;
>
> \(b\) whether Monticello has violated and/or continues to violate
> Sections 73.1120 and 73.1125(a) and (c) of the Commission's rules, 47
> C.F.R. §§ 73.1120 and 73.1125(a) and (c), with respect to the
> maintenance of a main studio for WJUX(FM);
>
> \(c\) whether Turro engaged in an unauthorized transfer of control, or
> otherwise exercised and/or continues to exercise *de facto* control
> over WJUX(FM), in violation of Section 310(d) of the Communications
> Act of 1934, as amended, 47 U.S.C. § 310(d), and Section 73.3540(a) of
> the Commission's rules, 47 C.F.R. § 73.3540(a);
>
> \(d\) whether Monticello engaged in an unauthorized transfer of
> control or otherwise abdicated control of WJUX(FM) to Turro or an
> affiliated entity in violation of Section 310(d) of the Communications
> Act of 1934, as amended, 47 U.S.C. § 310(d), and Section 73.3540(a) of
> the Commission's rules, 47 C.F.R. § 73.3540(a);
>
> \(e\) whether Turro misrepresented and/or lacked candor to the
> Commission concerning the operation of his translator stations;
>
> \(f\) whether Monticello and/or its agents misrepresented and/or
> lacked candor to the Commission concerning the operation of WJUX(FM).

The ultimate issues set for hearing were to determine whether Turro's
renewal applications should be granted and whether Monticello is
qualified to be or remain a Commission broadcast permittee. Pursuant to
Section 309(e) of the Act, 47 U.S.C. § 309(e), the burden of proof on
the issues pertaining to Turro's qualifications was assigned to the
licensee and, pursuant to Section 312(d) of the Act, 47 U.S.C. § 312(d),
the burden of proof on the issues going to Monticello's qualifications
was placed on the Bureau. The [HDO]{.underline} also called for a
determination, pursuant to Section 503(b) of the Act, 47 U.S.C. §
503(b), of whether an order of forfeiture in an amount not to exceed
\$250,000 should be issued against Turro and/or Monticello for each of
the alleged violations which occurred or continued within the applicable
statute of limitations. Finally, the [HDO]{.underline} made Universal a
party to the proceeding.

8\. In the [I.D.]{.underline}, the ALJ concluded that: (a) Turro's
operation of his translators was in compliance with 47 C.F.R. §
74.1231(b), but that his operation of his relay station, WMG-499, was in
violation of 47 C.F.R. § 74.531(c), and that any forfeiture for this
violation was precluded by the statute of limitations; (b) Monticello
briefly violated 47 C.F.R. § 73.1125(c) in a minor respect, but that no
sanction was warranted for this violation, and that Monticello otherwise
was in compliance with the main studio rules; (c) there was no
unauthorized transfer or abdication of control of WJUX; and (d) neither
Turro nor Monticello intentionally misrepresented facts or lacked candor
with the Commission. The ALJ ultimately concluded that Turro's renewal
applications for his translator stations should be granted, and that
there was no basis for revocation of Monticello's construction permit
for WJUX.

9\. Universal excepts to the [I.D.]{.underline} and urges reversal. The
Bureau also excepts and argues that the [I.D.]{.underline} should have
denied Turro's renewal applications and revoked Monticello's
construction permit, or alternatively, imposed forfeitures. Turro and
Monticello support affirmance of the [I.D.]{.underline} in all respects.
Universal also requests oral argument.[^3] This request is denied. We
believe that the pleadings and the record below provide an adequate
basis for decision and that oral argument would not materially assist
our resolution of this proceeding.

# 

# II. UNAUTHORIZED TRANSFER OF CONTROL ISSUES

**[A.]{.underline} [Findings]{.underline}**

10\. Weis and Turro have known each other for some twenty years. At one
time Weis, who had worked in various businesses in the radio industry
for many years, had an interest in the Pomona translator, and. since
December 1986, Weis has also owned the building where Jukebox Radio is
located. [I.D.]{.underline}, ¶¶ 9-10. In the summer of 1994 Turro
informed Weis that Larry Fishman, who held the construction permit for
an FM station in Monticello, New York, was interested in selling the
permit. Turro thought Weis might want to own a station because of his
past broadcast experience. Subsequently Turro told Weis of the Bureau's
1991 letter, and Turro proposed that Weis acquire the FM permit and that
Turro supply Jukebox Radio programming and commercial advertising for
the station. [Id.]{.underline} at ¶¶ 17-18. After several meetings with
Fishman, Weis agreed to purchase the permit for \$120,000, which
included \$40,000 at closing and a note for the \$80,000 balance. Turro
and Weis also discussed an arrangement that would be consistent with the
Bureau's 1991 letter. They agreed that Jukebox Radio would make monthly
payments to Monticello in consideration for which Monticello would
provide air time on the FM station, and that the station's signal would
be rebroadcast by the Fort Lee and Pomona translators. [Id.]{.underline}
at ¶¶ 19-21.

11\. On October 17, 1994, Turro and Weis entered into the Network
Affiliation Agreement, a copy of which was available at WJUX's main
studio. [Id.]{.underline} at ¶ 74. The understanding was structured as a
network affiliation agreement on the advice of counsel because Turro
told counsel he intended to provide programming to other stations. The
Agreement provided that Jukebox Radio would provide Monticello with
programming "via satellite, phone lines, or other suitable means"
twenty-four hours a day, seven days a week, 365 days a year, and would
provide all local station identifications, public affairs programming,
and EBS tests. Jukebox Radio also agreed to abide by all FCC rules
governing program content and to indemnify Monticello against any
forfeitures imposed by the FCC. The parties also agreed to abide by all
applicable FCC rules and regulations. The Agreement also provided that
the Fort Lee translator could rebroadcast the FM signal. Both Weis and
Turro believed that the Agreement was consistent with the Bureau's 1991
letter authorizing a translator station to act as a time broker.
[Id.]{.underline} at ¶¶ 22-23, 31; Bureau Exh. 11, p. 217.

12\. In order to induce Monticello to enter into the Agreement, Turro on
the same day signed a Guaranty of Payment, whereby he personally
guaranteed all payments from Jukebox Radio to Monticello during the life
of the Agreement up to \$400,000. Weis stated that he suggested the
Guaranty because of the possibility that Turro's operation could go out
of business. Jukebox Radio also paid Monticello \$40,000, a figure Weis
came up with, as an additional incentive for entering into the
Agreement. [I.D.]{.underline}, ¶¶ 24-25.

13\. On July 17, 1995, Turro and Weis signed an Amendment to Network
Affiliation Agreement. The Amendment provided that Monticello retained
responsibility for ascertaining community needs, that Monticello had the
right to broadcast programming other than Jukebox Radio programming,
that Monticello could delete, preempt, or substitute for Jukebox Radio
programming, and that Monticello's acceptance and broadcast of Jukebox
Radio programming was subject to its responsibility to comply with all
FCC regulations. The Amendment stated that it was "retroactive to the
commencement of the Agreement." Turro and Weis testified that the
Amendment was agreed to in November 1994, but not signed until July
1995. The Agreement was amended on the advice of counsel. Its purpose,
according to Weis, was to clarify the Agreement to reflect Monticello's
obligations to the Commission. Monticello substituted or preempted
Jukebox Radio programming on two occasions, once in 1995 when the
program feed went out, and once in 1997 when political commercials were
broadcast. [Id.]{.underline} at ¶ 32-34.

14\. Monticello acquired the FM permit from Fishman on October 18,
1994.[^4] At that time, Monticello entered into a tower lease, as well
as a lease for studio and office space in Ferndale, New York, with
Mountain Broadcasting Corporation ("MBC"). MBC was the licensee of
WVOS(AM) and WVOS(FM) ("WVOS"), Liberty, New York, and its offices were
also located in the Ferndale building. Weis hired Eugene Blabey, who was
the general manager of the WVOS stations and an owner of MBS, to be the
general manager of WJUX. On October 21, 1994, the new station went on
the air. Weis stated that all of the equipment was available and the
station was built in two days. On November 30, 1994, Turro informed the
Bureau that the Fort Lee translator had begun rebroadcasting the primary
station. [Id.]{.underline} at ¶ 35-38, 41, 45.

15\. It was decided that Turro would become chief operator for the
station, in which capacity he provided technical support from October
1994 until August 1995. He was not paid for this role, and it took up
little of his time. Turro stated that he provided general assistance in
starting up the station but did not build the facilities. Primarily he
installed his Jukebox Radio audio equipment and tested to see that it
worked. He also inspected the WJUX main studio equipment and verified
that it was working. Turro stated that Weis was present during the
construction process and directed the construction crew.
[Id.]{.underline} at ¶ 42-43.

16\. Two weeks prior to the time WJUX went on the air, there was a
discussion of the need for Weis to divest his interest in the Pomona
translator station. Weis understood that he could not own both a
translator and an FM station where the translator operated outside the
primary contour of the station being rebroadcast. On January 10, 1995,
Weis transferred his interest in the Pomona translator to Turro pursuant
to Commission approval. Soon thereafter the Pomona translator began
rebroadcasting the signal of WJUX. [Id.]{.underline} ¶ 44-45.

17\. With respect to the station's finances, Weis testified that he
alone exercised financial control over WJUX. He stated that Turro never
guaranteed any debt incurred by Monticello or Monticello's performance
of any contract or lease. Monticello paid the balance due Fishman for
the purchase of the permit, made the lease payments for its transmitter
site and main studio, and paid the compensation for all persons it
employed at WJUX. It also paid the bills for services, products, and
utilities used for the station. Weis wrote the checks to construct the
station, pay the staff, and meet the station's operating expenses. He
also signed personal guarantees in connection with Monticello's lease of
its transmitter site and office and studio space from MBC. And Turro
testified that he never had financial control over or responsibility for
WJUX. [Id.]{.underline} at ¶ 46-47.

18\. Weis testified that he also exercised responsibility over the
personnel of the FM station, including hiring Blabey as general manager,
Carol Montana as public affairs director and general staff support
person, and George Spicka to perform part-time engineering services. The
latter two were hired at Blabey's recommendation. Weis also hired Alan
Kirschner, the station's current chief operator, who replaced Turro in
this position in August 1995. Weis agreed to pay Blabey \$100 a week to
act as general manager. Later Blabey also entered an agreement with Weis
with respect to advertising sales. Because Blabey was an owner of WVOS,
he performed services for that station that were different from those he
performed for WJUX. Blabey had only occasional contact with Jukebox
Radio. [Id.]{.underline} at ¶¶ 49-51; tr. 937-38. Blabey introduced
Montana to Weis, and when she was hired in October 1994, she entered
into a letter agreement with Weis regarding her employment. Her starting
salary was \$100 a month and was later raised by Weis at Blabey's
recommendation. She met with Weis on WJUX business on an as-needed
basis, and Blabey also gave her directions regarding WJUX programming,
including directing her to send a "bulletin board" of PSAs to Jukebox
Radio. [I.D.,]{.underline} ¶¶ 52-53.

19\. Weis also stated that he exercised ultimate authority over WJUX's
programming. Weis understood when he acquired the station and when he
agreed with Turro to the time brokerage arrangement that Jukebox Radio
would provide popular music, including music of the big band era, that
would appeal to residents of Sullivan County, New York, where the
community of Monticello is located. When WJUX began operations, Weis
also directed that the station carry public service and public affairs
programming designed to serve Monticello and Sullivan County.
Specifically Weis had discussions with Blabey which resulted in the
public affairs programs produced by Blabey and aired on WVOS being
rebroadcast over WJUX on different days and at different times than WVOS
carried them. This accomplished providing this programming to a
potentially different audience in Sullivan County. Turro stated that
when Weis and Blabey arranged for public affairs programming to be
broadcast on WJUX, he decided to carry that programming on Jukebox
Radio. [Id.]{.underline} at ¶¶ 54-55.

20\. A weekly program called "People Who Make a Difference," which
focused on the activities of Sullivan County residents who had a
positive influence on their community, was produced at WJUX's main
studio and broadcast beginning in February 1995. Both WJUX and WVOS
carried the program. Blabey also sent tapes of the programs to Jukebox
Radio for broadcast. Another program, called "Open Mike," which provided
a forum for community leaders to answer questions from listeners, was
originally broadcast on WVOS and later rebroadcast on WJUX. Blabey sent
tapes of the program to Jukebox Radio and it was broadcast on WJUX on a
tape-delayed basis. This program was broadcast on WJUX beginning at
least as early as May 1996. [Id.]{.underline} at ¶¶ 56-57.

21\. Between October 1994 and October 1995, WJUX only broadcast programs
directed at Sullivan County residents that were also carried at
different times on WVOS. During this same time period, however, WJUX
broadcast PSAs that were not carried on WVOS. Weis had discussions with
Blabey which resulted in the broadcast by WJUX of PSAs that Weis
believed were of interest to the community of Monticello and Sullivan
County. It was Montana's job at WJUX to gather material for PSAs,
compile a bulletin board of prospective PSAs, and forward it to Jukebox
Radio for broadcast over WJUX. She designated on the bulletin board, or
informed Jukebox Radio regarding, PSAs of particular importance that
should be aired. Although Jukebox Radio made the determination as to
which PSAs to produce and air, it followed her suggestions in almost
every instance. [Id.]{.underline} at ¶¶ 58-59.

22\. Turro stated that Jukebox Radio had discretion to reject public
affairs programming from WJUX produced by Blabey or PSAs received from
Montana. If it did so, however, WJUX had the right to delete Jukebox
Radio programming and place the PSAs and public affairs programs on the
air directly at WJUX. Blabey also put emergency announcements regarding
Sullivan County on WJUX. During a snow storm, when he was informed by
the Sullivan County Manager that the roads were being closed, Blabey
told Jukebox Radio that he had an emergency message to air on WJUX,
prepared the message, and sent it to the Dumont studio to be originated.
[Id.]{.underline} at ¶¶ 60-61.

**[B.]{.underline} [ALJ Conclusions]{.underline}**

23\. The ALJ found no basis for concluding that Weis, Turro, or any
entity owned by Turro, engaged in an unauthorized transfer of control of
WJUX in violation of 47 U.S.C. § 310(d). The ALJ noted that, while there
is no exact formula by which control may be determined, the Commission
looks beyond mere legal title and focuses on the factors of finances,
personnel, and programming in order to ascertain whether a transfer of
control has occurred.

24\. Applying these factors, the ALJ concluded that Weis was in sole
control of the finances of Monticello and WJUX at all times. He found
that Weis alone was responsible for the station's financial obligations
and that Jukebox Radio's monthly payments were typical of time brokerage
arrangements. He also found that Weis's insistence on an inducement
payment and a personal guarantee in order to enter into the Network
Affiliation Agreement with Turro were consistent with his control. The
ALJ also found that Weis was in ultimate supervisory control of WJUX's
programming. Weis exercised this control, the ALJ stated, by
substituting public affairs programming for Jukebox Radio programming,
in keeping with the terms of the Amendment to Network Affiliation
Agreement. The ALJ also found that Turro's sale of most or all of WJUX's
commercial time was typical of all time brokerage arrangements. Finally
the ALJ concluded that Weis also exercised supervisory control over the
station's personnel. Weis hired or approved of the hiring of the
station's employees, and Turro was uninvolved in these decisions. In the
ALJ's view, Turro's limited role as chief operator of the station did
not establish any transfer to him of ultimate decision-making authority.

**[C.]{.underline} [Exceptions]{.underline}**

25\. Universal argues that Weis abdicated control of WJUX and Turro
assumed control of the station from the outset. In general, Universal
argues that the ALJ erred because his analysis did not focus on the
methods of operation of Turro and Weis prior to April 13, 1995, the date
on which the Commission first inspected the subject facilities. With
respect to finances, Universal asserts that Turro's relationship with
Weis went beyond that of a traditional time broker and resulted in Turro
being the source of all of WJUX's revenue and assuming all the risk.
Universal states that Turro induced Weis to purchase the station permit
and bankrolled the transaction by providing the down payment, the
station income, guaranteeing payments, and indemnifying Weis against FCC
forfeitures. With regard to programming, Universal contends that the
unamended Network Affiliation Agreement transferred control to Turro
because it did not give Weis the right to preempt programming. As for
WJUX's personnel, Universal alleges that Blabey and Montana followed
Turro's instructions during the Commission inspection of WJUX, and that
their roles were ministerial compared to Turro's responsibilities at the
station.

26\. Echoing Universal's exceptions, the Bureau asserts that the ALJ
erred by ignoring the history leading up to the construction of WJUX, by
unduly emphasizing the individual aspects of control and not considering
the totality of the circumstances, and by unreasonably relying on
ameliorative steps taken by Turro and Weis only after their arrangement
had come under scrutiny. The Bureau contends that Weis would not have
purchased the station permit but for Turro's financial and other
assistance and, furthermore, that Turro's payments to Monticello after
the station was constructed, under the Network Affiliation Agreement,
meant that WJUX's existence was totally dependent on Turro. As to
station personnel, the Bureau states, the ALJ did not sufficiently
consider Turro's role as chief operator of the station. In addition, the
Bureau asserts, Turro, not Monticello, controlled programming, sales of
commercial time, remote control of WJUX's transmitter, and the main
studio telephone. With regard to programming, the Bureau argues that the
Amendment giving Monticello the right to preempt Jukebox Radio
programming was not executed until well after WJUX was inspected by the
FCC, the Bureau had sent letters of inquiry to Weis and Turro, and the
latter were aware that the legality of their operation was under review.

27\. Turro replies that Monticello was in control of WJUX's finances,
personnel, and operations, including essential aspects of the station's
programming obligations, and was also legally responsible for the
operations of WJUX. Monticello argues that, although it and Turro have
had an ongoing business relationship through their Network Affiliation
Agreement, it always maintained ultimate decision-making authority over
WJUX and did not engage in an unauthorized transfer of control of the
station in violation of 47 U.S.C. § 310(d).

**[D.]{.underline} [Discussion]{.underline}**

28\. These issues were specified to determine whether Turro and/or
Monticello engaged in an unauthorized transfer or abdication of control
of WJUX from Monticello to Turro. In assessing where control of a
broadcast station resides, the Commission does not apply a litmus test,
but rather, it generally looks to determine who has authority over the
basic operational policies of the station. In making this determination,
we focus specifically on the areas of programming, personnel, and
finances. [See]{.underline} [Southwest Texas Broadcasting
Council]{.underline}, 85 FCC 2d 713, 715 (1981); [Stereo Broadcasters,
Inc.]{.underline}, 87 FCC 2d 87 (1981), [recon. denied]{.underline}, 50
R.R. 2d 1346 (1982); [Bennett Gilbert Gaines]{.underline}, 8 FCC Rcd
1405 (Rev. Bd. 1993), [rev. denied]{.underline}, 9 FCC Rcd 533 (1994).
We have stated that a licensee's involvement in a time brokerage
agreement does not [per se]{.underline} constitute an unauthorized
transfer of control, and indeed we apply the same traditional tripartite
standard in such a case as we do in any other case to ascertain who
mandates basic policies governing fundamental station operations.
[See]{.underline} [WGPR, Inc.]{.underline}, 10 FCC Rcd 8140, 8141-42
(1995); [Cosmopolitan Broadcasting Corp.]{.underline}, 59 FCC 2d 558,
[recon. denied]{.underline}, 61 FCC 2d 257 (1976).

29\. Applying these principles here, we find, first, the record shows
that Weis, rather than Turro, maintained control and ultimate
responsibility with regard to WJUX's finances. Specifically Weis met
with Fishman to discuss a sale of the construction permit, negotiated
the purchase price for the permit, and was obligated to pay the balance
due on the sale. Although Turro installed and tested Jukebox Radio
equipment and provided general assistance to Monticello during the
construction process, Weis directed the station's construction and alone
paid the station's construction costs. Weis also personally guaranteed
the station's lease agreements with MBC and made the lease payments for
its site and main studio, and wrote the checks that paid WJUX's
operating expenses as well as its legal bills. He also hired the
station's staff and paid their salaries. WJUX's staff referred all
financial matters to Weis, and Turro had no check-writing authority on
any Monticello account. In brokerage situations, "we require that
licensees must maintain their own bank accounts, pay the salaries of
their own employees, and remain responsible for their own obligations to
programmers, utility companies, and other operational matters." [WGPR,
Inc.]{.underline}, 10 FCC Rcd at 8145. Monticello met this
requirement.[^5]

30\. Nevertheless the exceptors argue that Weis's financial control was
undermined, first, by Turro's inducements to Monticello to enter into
the Network Affiliation Agreement, including his \$40,000 payment and
his personal guarantee of payments from Jukebox Radio during the
duration of the Agreement up to \$400,000, and, second, by his provision
of all of the station's income. We disagree with these contentions. The
record shows that, albeit Turro was instrumental in introducing Weis to
the idea, Weis decided to purchase the permit from Fishman and agreed to
the arrangement proposed by Turro because he believed it was a good
business opportunity. [I.D.]{.underline}, ¶ 20. Moreover it was at
Weis's behest that the financial inducements to enter the Agreement were
agreed to by Turro. It was Weis's testimony that he wanted the guarantee
because of the possibility that Turro could go out of business and that
he would not have built the station and entered into the Agreement
without the initial \$40,000 payment. Tr. 1381-83, 1392, 1409-10. And
Turro testified that Weis did not have to repay the \$40,000. Tr.
1831-32. Weis developed the specific amounts for the payment and the
guarantee, which figures Turro accepted, and the inducements inured to
Monticello's benefit; they did not evidence Turro's control over WJUX
but rather served to increase Turro's financial obligations to Weis.
Thus, although Weis may have used the \$40,000 to fund his down payment
for the station, these facts do not establish that Turro was in
financial control of WJUX.

31\. Weis also determined the amount of the monthly payments from
Jukebox Radio to Monticello under the Network Affiliation Agreement
based on his business plan to cover capital costs and operating expenses
and produce an acceptable profit, and at one point Weis demanded an
increase in the payments to cover additional capital expenditures.
[I.D.]{.underline}, ¶¶ 26-28. Weis's calculus was not unusual. By
definition:

> A \[time brokerage\] agreement is a contractual arrangement whereby
> the licensee makes its airtime available to the time broker in
> exchange for an amount calculated to incorporate the station's fixed
> and operating costs plus a built-in profit. So long as the time
> brokerage agreement governing the arrangement is one which retains the
> ultimate decision-making authority in the licensee, the receipt of
> \[monthly payments\] does not amount to the licensee's abdication of
> its control over finances.

[WGPR, Inc.]{.underline}, 10 FCC Rcd at 8145. Moreover, counter to
Universal's assertion that Turro assumed all the risk, if Jukebox Radio
missed any monthly payments to Monticello, the latter was still
obligated to pay the station's lease costs and other expenses.
[I.D.]{.underline}, ¶ 47. And, finally, contrary to the exceptors'
claims, Turro's provision of all of WJUX's income via monthly payments
was not uncharacteristic of other time brokerage understandings approved
by the Commission. [See]{.underline} [Choctaw Broadcasting
Corp.]{.underline}, 12 FCC Rcd 8534, 8541 (1997), citing [WGPR,
Inc.]{.underline}, 10 FCC Rcd at 8145 (even where monthly time brokerage
payments "constitute the sole source of funding of . . . broadcast
operations for the term of the brokering arrangement," their receipt did
not amount to abdication of control over finances);
[accord]{.underline}, [Roy R. Russo, Esq.]{.underline}, 5 FCC Rcd 7586,
7587 (MMB 1990).[^6]

32\. With respect to control over station programming, the exceptors
argue that, under the Network Affiliation Agreement, WJUX was totally
dependent on Turro to provide virtually all its programming, and Turro
and Weis did not amend the Agreement to give Monticello the right to
preempt Jukebox Radio programming until after the FCC began to focus on
the parties' relationship. We disagree that these or any other factors
in the record demonstrate that Monticello did not exercise ultimate
control over WJUX's programming.

33\. To begin with, although Weis contracted with Turro for Jukebox
Radio to provide full-time programming to WJUX pursuant to the Network
Affiliation Agreement, at the time Weis acquired the construction permit
and entered into the Agreement, he believed that the Jukebox Radio music
format would appeal to a large number of listeners in Sullivan County.
Moreover, when the station went on the air, Weis directed his staff to
carry public affairs programs and PSAs aimed at Monticello and Sullivan
County.

34\. Specifically Weis consulted with Blabey and arranged for public
affairs programs produced by Blabey and aired on WVOS to be rebroadcast
on WJUX on different days and at different times so that they were heard
by a different audience. The Bureau questions this arrangement and
points to the relatively small number of programs WJUX directed toward
Sullivan County as opposed to Bergen County, but does not show why the
programs in question or the manner of their broadcast in fact were not
responsive to the needs of the Monticello area and thus did not serve
the public interest.[^7] These programs included "Open Mike" -- a forum
for community leaders to be questioned by listeners -- and "People Who
Make a Difference" -- which highlighted significant accomplishments of
area residents and was produced locally in WJUX's main studio. Contrary
to the exceptors' assertion that the ALJ focused excessively on events
occurring after the Commission began to scrutinize the parties, the
latter program aired prior to the FCC inspection and the issuance of
letters of inquiry to Turro and Weis. Turro had no involvement in the
production of either program. He stated that when Weis and Blabey
decided to broadcast public affairs programming, he carried that
programming on Jukebox Radio.[^8]

35\. Similarly, pursuant to Weis's wish to broadcast public service
announcements of interest to the community, Montana gathered material
for PSAs and arranged for their broadcast over WJUX. Jukebox Radio
almost always accepted her suggestions. If Turro had declined to carry
this programming, Monticello could have deleted Jukebox Radio
programming and substituted its own public affairs programs and PSAs.
Weis also demonstrated his control over station programming at one point
by announcing that WJUX would no longer carry political advertisements.
[I.D.]{.underline}, ¶ 63. Weis later rescinded his decision, and WJUX
thereafter preempted Jukebox Radio programming to broadcast local
political commercials. In like manner, Blabey also placed emergency
announcements of local importance on WJUX, such as when weather
conditions forced road closings

36\. The Amendment to the Agreement, which was intended to clarify
Monticello's responsibilities in accordance with its obligations to the
Commission, is consistent with the evidence of the parties' actual
conduct. The Amendment provided that Monticello was responsible for
ascertaining community needs and could delete, preempt, or substitute
for Jukebox Radio programming in order to provide its own programming
responsive to those needs. It also stated that Monticello was
responsible for compliance with the Commission's rules including, [inter
alia]{.underline}, those governing political programming, sponsorship
identification, and maintenance of a public file. In these respects, the
provisions of the amended Agreement closely approximated the terms of
other brokerage agreements we have approved that did not transfer
ultimate control over programming. [See]{.underline} [Choctaw
Broadcasting Corp.]{.underline}, 12 FCC Rcd at 8539; [WGPR,
Inc.]{.underline}, 10 FCC Rcd at 8142-43; [Roy R. Russo]{.underline}, 5
FCC Rcd at 7587.

37\. With regard to the timing of the Amendment, although the Amendment
was not signed until July 1995, it was retroactive to the beginning of
the Agreement, which was entered into on October 17, 1994. Turro and
Weis both testified that they agreed to the Amendment in November 1994,
shortly following the Agreement, and five months prior to the
Commission's inspection of the station in April 1995. They did so on the
advice of counsel, who drafted the Amendment. In these circumstances,
and in view of the fact that WJUX did broadcast public affairs and other
programming not obtained from Jukebox Radio that was responsive to the
needs of the community of Monticello, as early as February 2, 1995, we
cannot agree with the exceptors that the Amendment was merely a reaction
to FCC scrutiny.[^9] Finally, with respect to the exceptors' claims
regarding Turro's intentions to provide 100% of WJUX's programming,
although Turro planned to purchase all of WJUX's airtime, as the Bureau
recognizes, this too is consonant with Commission rulings setting no
limits on the amount of time a station could sell. [See]{.underline}
[Gisela Huberman, Esq.]{.underline}, 6 FCC Rcd 5397 (MMB 1991); [Brian
M. Madden, Esq.]{.underline}, 6 FCC Rcd 1871 (MMB 1991); [Peter D.
O'Connell, Esq.]{.underline}, 6 FCC Rcd 1869 (MMB 1991). By the same
token, Turro's sale of WJUX's commercial time is also consistent with
the standard role of a time broker in these arrangements.
[See]{.underline} [WGPR, Inc.]{.underline}, 10 FCC Rcd at 8140; [Roy R.
Russo]{.underline}, 5 FCC Rcd at 7587.

38\. We also agree with the ALJ that Weis, on behalf of Monticello, and
not Turro, exercised control over WJUX's station personnel. Weis hired
Blabey, as general manager, Montana, as public affairs director, Spicka,
to do engineering work, and Kirschner, as chief operator. Turro was not
involved in these hiring decisions. Blabey and Montana had written
agreements with Weis regarding their employment and pay. Montana was
supervised by Blabey and ultimately answered to Weis. She also
understood that Weis supervised Blabey. Moreover, despite exceptors'
contentions, there is no evidence that Turro exercised ultimate control
over WJUX simply by virtue of his position as chief operator from
October 1994 to August 1995. Turro was chief operator at the time of the
FCC inspection in April 1995, so it was not inappropriate for Blabey to
put him in contact with Serge Loginow, the FCC engineer conducting the
inspection, to answer questions about station operations.[^10] In sum,
we conclude that neither Turro nor Monticello engaged in an unauthorized
transfer of control of WJUX. Even if an unauthorized transfer of control
had occurred, we have held that revocation or nonrenewal of a station
authorization would not be appropriate in the absence of concealment and
misrepresentation, which we do not find present here. [See]{.underline}
¶ 74, [infra]{.underline}; [Bennett Gilbert Gaines]{.underline}, 8 FCC
Rcd at 1408., and cases cited therein.

39\. As a final matter, although the exceptors argue that the ALJ unduly
emphasized the individual aspects of the traditional test for
determining control, as opposed to the parties' history prior to
construction, we find that the ALJ's analysis was consistent with
Commission precedent and that, in any case, the overall circumstances do
not warrant a contrary result. The facts that Turro and Weis had known
each other a long time, that Turro informed Weis of the permit's
availability, and that Turro had previously sought Commission authority
to originate programming do not establish that Turro assumed
unauthorized control of the station. [Trinity Broadcasting of Florida,
Inc.]{.underline}, 14 FCC Rcd 13570 (1999), [vacated in
part]{.underline}, No. 99-1183 (D.C. Cir. May 5, 2000), cited by the
exceptors, does not support a departure from the policies we typically
consider most indicative of control. [See]{.underline} 14 FCC Rcd at
13596 ¶ 72 (examining station finances, personnel matters, and
programming in order to determine whether "parent" entity had power to
dominate management of corporate affairs).

**III. MAIN STUDIO ISSUE**

**[A.]{.underline} [Findings]{.underline}**

40\. WJUX's community of license, Monticello, with a population of
7,000, and WVOS's community of license, Liberty, with a population of
5,000, are located about ten miles apart in Sullivan County, New York.
The main studios of both stations are located in separate quarters in
the same building in Ferndale, New York, which is adjacent to Liberty.
WJUX is a tenant of MBC, the licensee of WVOS. [I.D.]{.underline}, ¶¶
67-68. The [HDO]{.underline} raised questions as to whether the WJUX
main studio had program production and transmission capability, remote
control equipment to control the transmitter, a toll-free telephone
number for the residents of Monticello, and a meaningful staff presence.
12 FCC Rcd at 6270-71.

41\. Weis testified that, at the time of the FCC inspection on April 13,
1995 and thereafter, the WJUX studio was equipped to originate
programming and deliver it to the transmitter site for broadcast. Herman
Hurst, an experienced engineer who did consulting work for Turro and
Monticello, also testified that the WJUX main studio had programming
capability. Turro stated that the main studio equipment was working at
the time WJUX was constructed in October 1994. Serge Loginow, Jr., the
FCC field engineer who conducted the inspection in April 1995, was shown
WJUX's main studio equipment, including a control board typically found
in a studio from which programming could be originated, as well as a
microphone and tape machines. Blabey stated that he informed Loginow
that programming could be originated from the WJUX studio by throwing a
switch located down the hall in the WVOS transmitter room, without
having to visit the WJUX transmitter site. Montana also testified that
programming could be originated from the WJUX main studio without
leaving the studio building. [I.D.]{.underline}, ¶¶ 69-70, 72, 76-77,
79.

42\. Weis further testified that the WJUX transmitter could be remotely
controlled from WJUX's main studio by telephone dial-up. At the time of
the FCC inspection, Turro informed Loginow that, although there was "no
remote control equipment" at the WJUX studio, there was a dial-up remote
control system available at the main studio. Blabey testified that at
the time of the inspection there was a telephone at the main studio that
could be used, after dialing a number and entering a code, to control
the transmitter. Montana also testified that there was dial-up remote
control capability for the transmitter from the main studio and that she
knew how to use it. And Hurst testified that WJUX had remote control
capability to its transmitter from its main studio at the time of the
FCC inspection. [Id.]{.underline} at ¶¶ 69, 102, 104-05.

43\. With regard to its staffing, Weis testified that WJUX was
adequately staffed by Blabey, its general manager, and Montana, its
public affairs director. Although Blabey and Montana were also employed
by WVOS, Weis stated that they had more than adequate time to perform
their duties for WJUX. Because the WJUX and WVOS main studios were
located in the same building, Blabey and Montana were based full time in
the Ferndale building. [Id.]{.underline} at ¶ 82.

44\. Blabey acted as WJUX's general manager from the time the station
began broadcasting. Blabey's employment agreement with Monticello
described him as an "independent consultant on radio station management
matters," and Blabey stated the agreement was structured this way for
tax reasons. The agreement provided that Blabey would be available to
the station during normal business hours, and Blabey stated that he was
already present during those hours in connection with WVOS. Blabey
stated that he represented the community to Weis because Weis was not a
Sullivan County resident. Blabey explained that he was involved in the
community and participated in civic organizations on behalf of both WJUX
and WVOS, and people in the community associated him with both stations.
[Id.]{.underline} at ¶¶ 84-85.

45\. Blabey recruited and suggested employees for Weis to hire. All of
WJUX's employees, with the exception of Kirschner, who replaced Turro as
chief operator, were hired at Blabey's recommendation. Blabey also
supervised Montana's work. Typically Blabey's duties at WJUX included
answering the telephone, going through the mail, handling inquiries,
informing Weis of financial or other matters that required his
attention, arranging for programming, and making decisions. Blabey was
familiar with the station's issues/programs lists, which were prepared
by the Jukebox Radio staff. He also prepared Arbitron information
requests for the station. [Id.]{.underline} at ¶¶ 86-87.

46\. Blabey stated that he and others in the building could tell if
service on WJUX was interrupted because they monitored the station
periodically on the radio and listeners called in. When he learned that
the station was off the air, he took steps to put it back on. Blabey had
an arrangement whereby Weis paid him commissions for sales made locally
for commercials on WJUX. In February 1995 Blabey sought to engage
another salesperson to sell time locally on the station. Weis approved
the hiring of Stan Silverstein for this purpose. [Id.]{.underline} at ¶¶
88-90.

47\. Montana stated that she worked full time as WVOS's business manager
and part time as WJUX's public affairs director. Blabey described
Montana as a very competent person who held the WVOS operation together.
She began working for WJUX in October 1994. Originally she was engaged
as an independent consultant but later became an employee. When she was
first engaged, Blabey told her she would work the same hours for WJUX as
she did for WVOS. Montana's duties included picking up the mail at the
post office, distributing the mail at the studio building, bringing to
Weis or Blabey's attention mail they needed to see, bringing bills to
Blabey and Weis for payment, handling petty cash, dealing with walk-ins,
and taking care of callers' requests. She remembered receiving only two
listener complaints about WJUX, one involving a listener's inability to
receive the station's signal on his cable system, and the other
involving a complaint about the station's music content. With respect to
the latter, she informed Jukebox Radio, which then made an appropriate
adjustment to its schedule. Montana monitored the station's broadcasts
on her way to and from work. When there was a program interruption, she
informed WJUX's engineer. [Id.]{.underline} at ¶¶ 91-95.

48\. Montana represented WJUX in the community and made sure that PSAs
of interest to the community were broadcast on the station. She stated
that she had lived in Sullivan County for approximately twenty years,
that people knew she worked for WJUX, and that they told her of relevant
events for broadcast on both WJUX and WVOS. Montana prepared PSA
bulletin boards for WJUX and WVOS. She prepared the WVOS bulletin board
first and then used it for WJUX. The bulletin boards were generally the
same for both stations, although on one or two occasions she edited
something out of the WVOS bulletin board before using it for WJUX. She
decided, without consulting Blabey or Weis, what would be included on
the bulletin board. Montana received, but did not prepare, the
programs/issues lists for WJUX and put them in the station's public
file. The public file was maintained at the Monticello public library,
and a copy was kept at WJUX's main studio. [Id.]{.underline} at ¶¶
96-97.

49\. Turro served as WJUX's chief operator from the time the station
went on the air until mid-1995. He was then replaced by Kirschner, who
was hired by Weis. Monticello hired Spicka in August 1995 as an
engineer, and he conducted weekly Emergency Action Notification System
tests and meter readings. Spicka was an employee, not a consultant, and
did not work for WVOS. He assisted at the time of the FCC inspection,
and when a fiber optic cable was cut and the Jukebox Radio feed
interrupted in the summer of 1995, Spicka originated music from the WJUX
main studio. WJUX also employed Charles Martin to fill in when Blabey,
Montana, and Spicka were away. [Id.]{.underline} at ¶¶ 98-100.

50\. On November 2, 1994, WJUX established a local telephone number for
its main studio. The number was publicly listed and was toll-free for
Monticello residents. Calls to the local number were not answered at the
main studio but were forwarded to the Dumont studio and answered there.
In July 1995, subsequent to the FCC inspection, the call-forwarding
arrangement was terminated and all calls to the WJUX telephone number
were answered at the WJUX main studio. Montana testified that even
before a telephone for WJUX was installed in her office in July 1995,
people in the community knew that the WJUX and WVOS studios were located
in the same building, and people wanting to call WJUX would call on the
WVOS line. NYNEX sent the bills for telephone service from November 1994
to mid-1995 to Jukebox Radio, which paid them. When Weis discovered that
this was the case, the billing was changed and Monticello paid all
subsequent bills for WJUX telephone service. [Id.]{.underline} at ¶¶
107-08, 113-14.

**[B.]{.underline} [ALJ Conclusions]{.underline}**

51\. With one minor exception, the ALJ found that Monticello was in full
compliance with the Commission's main studio rules. First, with respect
to 47 C.F.R. § 73.1120, which provides that every broadcast station
"will be licensed to the principal community . . . which it primarily
serves," the ALJ rejected the contention that WJUX primarily served
Bergen County, New Jersey, rather than Monticello, New York. Second, the
ALJ found that Monticello complied with 47 C.F.R. § 73.1125(a), which
required it to maintain a main studio within the principal community
contour of the station, because its main studio in Ferndale, New York
was located within that contour.[^11] Third, with regard to 47 C.F.R. §
73.1125(c) (currently 73.1125(d)), which requires a broadcast station to
"maintain a local telephone number in its community of license or a
toll-free number," the ALJ determined that the station violated this
provision for a brief time because it did not maintain a local telephone
number until November 2, 1994, which was twelve days after it began
broadcasting on October 21, 1994. The ALJ concluded that this rule
violation was [de]{.underline} [minimis]{.underline}. As for the period
from November 2, 1994 to July 1995, when calls were forwarded to Dumont,
New Jersey, the ALJ held that there was no rule violation because calls
to the WJUX number during this period were toll-free for residents of
Monticello.

52\. With regard to program origination capability, the ALJ concluded
that the testimony of numerous witnesses established that the WJUX main
studio contained all the equipment necessary for program production and
that the equipment was capable of being used for that purpose.
Similarly, with regard to remote control capability, the ALJ found that
the WJUX transmitter was capable of being controlled by remote control
from either the WJUX main studio or the Dumont studio, that WJUX's
employees at the main studio knew how to use the dial-up remote control
system, and that such operation was fully consistent with Commission
requirements. Finally, as to the staffing at WJUX's main studio, the ALJ
found that the presence of Blabey and Montana at the Ferndale main
studio building constituted a meaningful management and staff presence
that was fully consistent with Commission precedent. In the ALJ's view,
the record clearly reflected that the WJUX main studio was attended on a
full-time basis during normal business hours by Blabey and Montana.

**[C.]{.underline} [Exceptions]{.underline}**

53\. The Bureau argues that the [I.D.]{.underline} erroneously concluded
that Blabey and Montana constituted a meaningful management presence at
WJUX. With respect to Blabey, the Bureau states that WJUX's
issues/programs lists were not prepared by him, but by Turro's Jukebox
Radio staff, that Blabey was engaged only as an independent consultant
and paid a weekly consulting fee, that he continued to work as WVOS's
general manager, and that his overriding concern was the operation of
WVOS, not WJUX. With respect to Montana, the Bureau points out that,
notwithstanding her role in preparing PSA bulletin boards, the decision
as to what PSAs were actually produced and broadcast was made at the
Dumont studio, that she also was engaged initially by WJUX as an
independent consultant, and that she functioned full-time as WVOS's
business manager. Finally, because it believes the evidence shows that
Turro, rather than Monticello's staff, controlled the operation of WJUX,
the Bureau asserts it was error for the ALJ to find that Monticello
complied with the managerial presence requirement of the main studio
rule.

54\. Universal argues first that the Monticello main studio did not have
a WJUX sign and thus could not be considered readily accessible to the
community of license. Second, Universal maintains that WJUX did not have
a meaningful managerial and staff presence at its facility because it
only had a part-time skeletal staff of two consultants whose primary
responsibilities ran to WVOS. Third, Universal asserts that WJUX did not
maintain a local toll-free telephone number and that its call-forwarding
arrangement was insufficient. And, finally, Universal contends that WJUX
did not have satisfactory transmitter remote control capability at its
main studio.

55\. In reply, Monticello asserts that its main studio in Ferndale, New
York is readily accessible to the public because it is within the
station's principal community contour. It further argues that its lack
of a local telephone number for a twelve day period does not warrant an
adverse determination against it under the rule or imposition of a
sanction. Next it contends that the [I.D.]{.underline} correctly found
that WJUX had remote control capability. Finally, Monticello maintains
that its employment of Blabey and Montana meets the Commission's
requirement of having a meaningful managerial and staff presence at the
main studio.

**[D.]{.underline} [Discussion]{.underline}**

56\. This issue pertains to whether Monticello complied with the
provisions of the Commission's main studio rules with regard to WJUX. "A
station must maintain a main studio which has the capability adequately
to meet its function . . . of serving the needs and interests of the
residents of the station's community of license." [See]{.underline}
[Main Studio and Program Origination Rules]{.underline}, 3 FCC Rcd 5024,
5026 (1988). We conclude that, except for the one infraction found by
the ALJ, Monticello met our requirements, and that its one violation was
too minor to warrant revocation of Monticello's authorization or
imposition of a forfeiture.

57\. First, the WJUX main studio in Ferndale, New York was located
within the station's principal community contour, in accordance with 47
C.F.R. § 73.1125(a). The fact that for a time there was no sign
identifying the WJUX main studio does not mean the studio was not
readily accessible to the public, as Universal alleges. The record
shows, through Montana's testimony, that people in the local community
knew she worked for WJUX and would bring to her attention relevant
events for broadcast over the station, and, even before a telephone was
installed in her office and a sign placed out front, people in the
community knew that the WJUX studio was located in the same building as
the WVOS studio.

58\. Second, there is no question that, during the first twelve days
WJUX was on the air -- October 21 to November 2, 1994 \-- Monticello did
not comply with the requirement of 47 C.F.R. § 73.1125(c) that it
"maintain a local telephone number in its community of license or a
toll-free number." But this was not by itself a matter warranting a
sanction, particularly since it was corrected after a relatively short
time, and Monticello was truthful in reporting the violation in response
to the Bureau's letter of inquiry and during pre-hearing discovery. We
disagree with Universal that Monticello also violated this rule for a
longer period between November 1994 and July 1995. Before all calls to
WJUX were answered at the WJUX main studio beginning in July 1995, calls
to the WJUX number that were forwarded to the Dumont studio and answered
there still were toll-free for Monticello residents, as the rule
requires. Moreover Montana explained that, prior to July 1995, because
local residents knew that the WJUX and WVOS studios were in the same
building, people wanting to call WJUX would do so on the WVOS line. In
these circumstances, we conclude that Monticello was in compliance
during this period.

59\. There is no support for Universal's additional claim that WJUX did
not have transmitter remote control capability at its main studio. Weis,
Blabey, Montana, and Hurst all testified to the existence of a telephone
dial-up remote control system at the main studio. Blabey and Montana
were familiar with how to use the system, and there was a telephone at
the main studio that could be used for this purpose.

60\. The exceptors also argue that Monticello did not maintain a
meaningful management and staff presence at WJUX. We disagree. The
Commission requires a station to have a meaningful management and staff
presence at its main studio in order to "help expose stations to
community activities, help them identify community needs and interests
and thereby meet their community service requirements."
[See]{.underline} [Main Studio and Program Origination
Rules]{.underline}, 3 FCC Rcd at 5026. In this regard, we have stated
that a main studio must be staffed by management and staff personnel at
all times during normal business hours. This standard requires
management and staff presence on a full-time basis, which may be
satisfied by more than two people working on part-time bases.
[See]{.underline} [Jones Eastern of the Outer Banks, Inc.]{.underline},
6 FCC Rcd 3615 (1991), [clarified]{.underline}, 7 FCC Rcd 6800 (1992).
Specifically:

> We require that management personnel report to work at the main studio
> on a daily basis, spend a substantial amount of time there and . . .
> use the studio as a 'home base.' Ultimately, that management presence
> must remain responsible for whatever station operations occur from
> that studio. To the extent that the staff person may fully perform . .
> . station functions with time to spare, and coverage of the main
> studio permits, that person may also take on responsibilities for
> another business, as long as the main studio remains attended during
> normal business hours.

7 FCC Rcd at 6802. Monticello satisfied these requirements.

61\. Monticello maintained a meaningful management and staff presence at
WJUX through its employment of Blabey and Montana. Because of their
other employment with WVOS, whose studio was in the same building as
WJUX's, they were in the main studio building on a full-time basis
during regular business hours. Blabey's employment agreement with WJUX
specified that he would be available during normal business hours, and
he stated that he already was present during those hours in connection
with WVOS. Similarly, Montana was told by Blabey that she would work the
same hours for WJUX as she did for WVOS. It is clear from the record
that both had significant work duties at WJUX and put in substantial
time on a daily basis at the station's main studio. Blabey performed
managerial duties, including recruiting employees who were subsequently
hired by Weis, supervising Montana, arranging for public affairs
programming and emergency announcements to be broadcast over WJUX,
putting the station back on when it went off the air, and representing
WJUX in the community through his membership in civic organizations.
Montana had numerous staff duties, which included dealing with listeners
requests and complaints, distributing the mail and bringing important
items to the attention of Weis or Blabey, and seeing to it that PSAs of
local interest were broadcast in connection with her preparation of a
PSA bulletin board.

62\. We also disagree with the exceptors' specific objections to the
status of these two employees. First, although Blabey was designated a
consultant, this was done for tax reasons and did not affect his
management duties or responsibilities at WJUX. Second, Weis testified
that both Blabey and Montana had more than sufficient time to perform
their jobs for WJUX notwithstanding their other employment at WVOS.
Although the Bureau expresses concern over the WJUX staff's employment
by a "potential competitor," it does not show how the relationships in
question had any impact on the job performance of Blabey or Montana.
Additionally their part-time status at WJUX was not in itself
significant because we only require a full-time presence at the main
studio, not that each person be employed on a full-time basis. The WJUX
main studio remained attended by Blabey and Montana during regular
business hours. [See]{.underline} [Jones Eastern of the Outer Banks,
Inc.]{.underline}, 7 FCC Rcd at 6802 (management personnel not required
to be "chained to their desks" during normal business hours and staff
personnel may hold other jobs). It is also clear from the record that
the roles of these employees, including the time required for them to
perform their duties at WJUX and their pay, were reflective of the
existence of the time brokerage arrangement between the parties under
the Network Affiliation Agreement, and the fact that substantially all
of the programming and advertising for WJUX was provided by Jukebox
Radio. Finally, because we have already concluded that Turro did not
exercise unauthorized control over WJUX, we disagree with the Bureau
that his operational activities undermined Monticello's compliance with
the managerial presence requirement of the main studio rules.[^12]

**IV. MISREPRESENTATION/LACK OF CANDOR ISSUES**

63\. These issues relate largely to matters already discussed in this
opinion, but involve specifically the question of whether Turro or Weis
made statements with respect to these matters that were not true.

**[A.]{.underline} [Findings]{.underline}**

64\. On June 21, 1995, the Bureau's Complaints and Investigations Branch
sent a letter of inquiry to Turro regarding the details of his
translator station operations and his relationship with WJUX. Turro
filed a response to the Bureau letter on July 30, 1995. With respect to
his translators, Turro stated that Jukebox Radio programming he produced
at the Dumont studio was delivered by telephone line to WJUX, that it
was broadcast by WJUX pursuant to the terms of the Network Affiliation
Agreement, that the WJUX broadcasts were received off the air at the
Pomona translator and rebroadcast, and that the Pomona translator
rebroadcasts, in turn, were received off the air at the Fort Lee
translator and rebroadcast. Turro also stated that, prior to January 10,
1995, the date Weis transferred his interest in the Pomona translator to
him, the WJUX signal was received directly off the air at the Fort Lee
translator rather than through the Pomona translator. Supported by an
engineering statement from Hurst, Turro stated that although an
acceptable signal can be received off the air at the Fort Lee translator
site, a better signal can be received at the Pomona translator, and thus
that is where the WJUX signal is received for rebroadcast. Turro also
stated that none of the programming created at the Dumont studio was
delivered by telephone line to either the Fort Lee or Pomona translator.
[I.D.]{.underline}, ¶¶ 198-200.

65\. With respect to his relationship to WJUX, Turro stated that he had
no ownership interest in Monticello, that he did not pay to construct
the station's facilities or guarantee the repayment of funds borrowed
for construction, that he did not pay WJUX's operating expenses except
for its telephone bills, and did not control its programming. Turro
stated that he did assist Weis in installing equipment at WJUX, that he
provided Weis with \$40,000 as an inducement to enter into the Network
Affiliation Agreement, and that he served as chief operator of WJUX
until May 1, 1995. As to WJUX's programming, Turro stated that
Monticello had complete discretion to delete or preempt Jukebox Radio
programming and broadcast other programming. [Id.]{.underline} at ¶ 203.

66\. On June 21, 1995, the Bureau's Complaints and Investigations Branch
sent a letter of inquiry to Monticello regarding the details of WJUX's
ownership, operation, and control. Monticello filed a response with the
Bureau on July 28, 1995. In the response Weis stated that he was the
sole owner of Monticello and that Turro had never held an ownership
interest in WJUX. Weis asserted that he provided all of the funds used
to construct the station, that he had on hand much of the needed
equipment, and that the only money he borrowed in this connection was
\$15,000 from his mother. He further stated that Turro paid him \$40,000
as an inducement to enter into the Network Affiliation Agreement and
that Weis applied these funds to meet his obligations to Fishman.
[Id.]{.underline} at ¶¶ 204-05.

67\. Weis stated that he controlled WJUX's financial records, paid
WJUX's operating expenses except for the telephone bills that Turro had
paid, and hired station personnel. The telephone bills were sent to and
paid by Turro as the result of an oversight, Weis stated, which was
being corrected. Weis also stated that WJUX's main studio was located
within the station's principal community contour, that it was open to
the public, that the station's public inspection file was maintained at
the main studio, and that the program "Sullivan County People Who Make a
Difference" was recorded there. Weis asserted that Blabey and Montana
had their offices at the main studio and were present there during
normal business hours, that the main studio had program origination
capability, and that a remote control point for the WJUX transmitter was
located there. He affirmed that he was solely responsible for WJUX\'s
programming policies and for Monticello's decision to enter into the
Network Affiliation Agreement. [Id.]{.underline} at ¶¶ 206-08.

**[B.]{.underline} [ALJ Conclusions]{.underline}**

68\. The ALJ concluded that at all times Turro dealt with the Commission
in a truthful, candid, and forthright manner. Specifically the ALJ found
that Turro did not lack candor in his request for a declaratory ruling,
and that even if Turro had disclosed more details in his request,
including his intention to program WJUX fulltime, the Bureau's ruling,
based on its contemporaneous precedent, would not have been
substantially different. The ALJ also found that Turro's statement in
response to the Bureau's letter of inquiry that he had no present or
future ownership interest in Monticello was accurate, and that Turro
also disclosed in his response that he was providing all of the
programming for WJUX and was personally guaranteeing Jukebox Radio
payments to Monticello. Additionally the ALJ found the fact that Turro
entered into a network affiliation agreement instead of a time brokerage
arrangement was not deceptive or decisionally significant. Finally the
ALJ concluded that Turro lived up to the representations made in his
request for a declaratory ruling.

69\. The ALJ also concluded that both Monticello and Weis dealt with the
Commission in a truthful, candid, and forthright manner. Specifically
the ALJ found that Weis's statements in response to the Bureau's letter
of inquiry were truthful because Weis, rather than Turro, was in sole
control of WJUX's finances. Moreover, the ALJ held, the financial
arrangements between Turro and Monticello were fully disclosed. In
addition, the ALJ found that Weis truthfully represented that he, and
not Turro, had ultimate supervisory control of WJUX's programming.
Weis's statements concerning Blabey and Montana and the capabilities of
the WJUX main studio were also accurate, the ALJ concluded.

**[C.]{.underline} [Exceptions]{.underline}**

70\. The Bureau argues that, contrary to claims made by Turro and
Monticello in their responses to the Bureau's letters of inquiry and in
Weis's testimony, Turro controlled WJUX's programming. In the Bureau's
view, Turro did not simply provide a network feed to WJUX, which
Monticello was free to accept or reject, but, rather, all of WJUX's
programming was transmitted from Turro's Dumont studio. Jukebox Radio
had complete discretion to reject programming received from Blabey and
Montana, the Bureau asserts, and Weis and his staff did not know if
Jukebox Radio broadcast the PSAs Montana sent via the WJUX bulletin
board. Moreover, the Bureau avers, Jukebox Radio or Turro prepared the
station's issues/programs lists, even though the amended network
affiliation agreement provided that Monticello was responsible for doing
so. The Bureau contends that Turro and Monticello lacked candor in
failing to reveal the totality of their programming arrangement and in
seeking to conceal the true nature of Turro's control. The parties were
motivated to deceive, the Bureau concludes, because their arrangement
was not consistent with the Bureau's November 1991 ruling or the
Commission's translator rules.

71\. Universal contends that Turro misrepresented by fraudulently
inducing the Bureau to issue its 1991 ruling. Having been rebuffed in
his previous attempts to obtain authority to initiate programming on his
Fort Lee translator, Universal argues, Turro was motivated to conceal
from the Bureau important information including his intention to provide
all of WJUX's programming.[^13] Universal maintains that Turro and Weis
also did not disclose to the Bureau that Turro would fund the costs of
construction and operation of WJUX and assume all the risk of operating
the station. Furthermore, in Universal's view, Turro departed from the
letter of the Bureau's ruling because Turro's relationship with Weis was
not a bona fide, arm's length arrangement. Universal also argues that
Turro and Weis sought to vest control of WJUX in Turro and to conceal
that control from the Commission. Finally Universal maintains that Turro
and Weis deceived the Commission because WJUX was not intended to serve
its community of license, but was created in order to air programming
over the Fort Lee translator for the benefit of Bergen County.[^14]

72\. Turro replies to Universal that the Commission did not designate
candor issues based on Turro's actions in obtaining and acting upon the
1991 Bureau ruling. Nevertheless Turro argues that his request for a
declaratory ruling provided all the material facts. Turro further argues
that he reasonably relied on the Bureau's ruling and entered into an
arrangement with WJUX in exact compliance with what he requested and the
Bureau authorized. Moreover, Turro states, there is no evidence that the
Bureau was deceived by his actions.

73\. Monticello replies that although it has maintained an ongoing
business relationship with Turro, Weis has controlled all aspects of
WJUX's operation since he acquired the construction permit. Even if the
Commission found otherwise, Monticello asserts, there is no evidence
that Weis intended to deceive the Commission concerning his role with
WJUX. Weis believed, Monticello states, that the Bureau's ruling
authorized the arrangement between Jukebox Radio and Monticello and that
WJUX was operated in accordance with what had been approved.

**[D.]{.underline} [Discussion]{.underline}**

74\. These issues pertain to whether Turro misrepresented or lacked
candor to the Commission regarding the operation of his translator
stations, and whether Monticello misrepresented or lacked candor to the
Commission regarding the operation of WJUX. We have already reviewed
many of the underlying facts in the earlier sections of this opinion. We
conclude, with regard to those matters as well as the additional
findings herein, that neither party was untruthful in its statements or
intended to deceive the Commission. [See]{.underline} [Fox River
Broadcasting, Inc.]{.underline}, 93 FCC 2d 127, 129 (1983)
(misrepresentation involves false statements of fact whereas lack of
candor involves concealment or evasion; both must be coupled with intent
to deceive).

75\. Turning first to Turro, we are not persuaded by the evidence that
Turro intended to deceive the Commission in obtaining the Bureau's 1991
letter, or that he thereafter dealt deceitfully with us. In his request
for a declaratory ruling, Turro basically inquired whether a translator
station could purchase air time on the station it rebroadcasts and sell
advertising during that time. The Bureau understood that Turro was
asking whether it was permissible under the rules governing the
operation of translator stations for a translator licensee to enter a
time brokerage arrangement with a primary station, provided that the
primary station does not reimburse the translator for the purchased time
or financially support its operation. Although Turro did not state that
he planned to provide all of the primary station's programming or sell
all its advertising, albeit his testimony indicated that he had in mind
purchase of 100% of the station's time, there is no direct evidence that
he intended to mislead the Bureau by deliberately concealing this
information or that he had reason to do so. As the ALJ found, it was not
uncommon at the time for the Bureau to approve time brokerage
arrangements involving comparable if not identical programming and
advertising terms and to point out specifically that the Commission sets
no limits on the amount of time a brokered station may sell.
[See]{.underline}, [e.g.]{.underline}, [Peter D. O'Connell]{.underline},
6 FCC Rcd at 1869. Moreover, while even useless deceptions can be a
basis for disqualification, [see]{.underline} [FCC v. WOKO]{.underline},
329 U.S. 223 (1946), the record evidence does not support a finding that
Turro intentionally withheld these facts in order to get Bureau
approval. Though Turro's previous unsuccessful efforts to obtain
Commission authority to originate programming on his Fort Lee translator
arguably could have motivated him to conceal his true intentions in this
regard, we do not believe the weight of the evidence supports this
inference, particularly since the Commission's prior rulings were a
matter of public record, and Turro openly sought Bureau guidance
regarding the relationship between a translator station and a primary
station.

76\. The Bureau maintains that the parties concealed that their
arrangement was not consistent with the Bureau's ruling, but both Turro
and Weis expressly believed that the Bureau's ruling authorized their
arrangement. We stated in the [HDO]{.underline} that Turro's belief was
not unreasonable, and we find nothing in the hearing record to change
our view. [See]{.underline} ¶ 85, [infra]{.underline}. Moreover the
parties adhered to the four specific conditions set forth in Turro's
request for a declaratory ruling, namely, that the translator would
operate outside the originating station's primary contour, that the
primary station would not financially support the translator station,
that the translator station would observe the Commission's rules
governing the purchase of brokered airtime, and that advertising could
be sold to support the programming. Universal claims that Turro also
sought to deceive the Commission because he entered into a network
affiliation agreement, rather than the time brokerage agreement
authorized in the Bureau's 1991 letter, but the record shows that the
agreement was fashioned on the advice of counsel and, in any event, the
Bureau has treated these contractual arrangements identically in
applying the Commission's policies regarding station control.
[See]{.underline} [Joseph A. Belisle, Esq.]{.underline}, 5 FCC Rcd 7585
(1990).

77\. Turro's response to the Bureau's letter of inquiry was forthright
and consistent with his actions. Thus, we disagree with the Bureau's
principal contention that, contrary to his statements, Turro actually
controlled WJUX's programming. Certainly most of the station's
programming came from Jukebox Radio, in accordance with the Network
Affiliation Agreement, but Monticello also provided its own public
affairs programming, PSAs, and emergency announcements, as warranted. As
we concluded earlier, Monticello, not Turro, retained ultimate control
over WJUX's programming. Although Jukebox Radio had discretion to reject
Monticello's programming, Monticello had final authority to delete
Jukebox Radio programming and substitute its own programming. The Bureau
points out that Jukebox Radio prepared WJUX's quarterly issues/programs
lists, but Blabey was familiar with these lists and Montana placed them
in the station's public file at the local library and maintained a copy
at the station's main studio. There is no evidence of deception in these
facts. Although the Bureau also states that WJUX was not monitored to
determine if Montana's PSAs were broadcast, the record shows that her
PSAs almost always were carried. In the same vein, although Universal
asserts that Turro did not disclose his funding and advertising plans
for WJUX, we have already concluded that these arrangements were not
unusual in a time brokerage setting or indicative of an unauthorized
transfer of control of the station.

78\. For similar reasons, we conclude that Monticello's response to the
Bureau's letter of inquiry and Weis's testimony also were not false or
evasive. Universal contends that WJUX was a "sham" station, which served
Turro's interests in New Jersey, rather than the community of
Monticello, and that Weis was untruthful in maintaining the contrary.
And the Bureau argues that Monticello was untruthful in describing
Turro's control of WJUX's programming. But the record simply does not
support these contentions. As we have previously found under the
transfer of control and main studio issues, Weis alone was responsible
for WJUX's finances, ultimately controlled its programming, and was in
charge of station personnel. WJUX also complied with the fundamental
main studio requirements, including having program origination and
remote control capability, and maintaining a meaningful managerial and
staff presence. Thus ultimate decision-making authority was retained by
Monticello, and WJUX served its community of license. At all times,
Monticello and Weis accurately described these underlying facts to the
Commission and truthfully represented the relationship between the
parties under the Network Affiliation Agreement.

79\. Finally, as noted, the ALJ ultimately found that at all times both
Turro and Weis "dealt with the Commission in a truthful, candid, and
forthright manner." [I.D.]{.underline}, ¶¶ 294, 302. Although this
conclusion was not based on explicit demeanor findings with regard to
their hearing testimony, nevertheless, the ALJ actively questioned both
witnesses at the hearing and carefully scrutinized their testimony.
After having an opportunity to observe them, the ALJ accepted their
statements. His determination that they were forthright "at all stages
of this case," [id.]{.underline}, lends support to our conclusion that
neither engaged in misrepresentation or lacked candor with the
Commission. [Cf.]{.underline} [Rainbow Broadcasting Co.]{.underline}, 13
FCC Rcd 21000, 21013 (1998), [aff'd by judgment sub nom. Press
Communications LLC v. FCC]{.underline}, No. 98-1366 (D.C. Cir. May 25,
1999).

**V. OTHER MATTERS**

**[A.]{.underline} [Translator Rules Issue]{.underline}**

80\. This issue was specified to determine whether Turro violated
Commission rules relating to the operation of FM translator stations.
Pursuant to 47 C.F.R. § 74.1231(b), "\[a\]n FM translator may be used
for the purpose of retransmitting the signals of a primary FM radio
broadcast station or another translator station the signal of which is
received directly through space, converted, and suitably amplified." The
Commission has stated that the primary FM station signal being
rebroadcast "must be received directly over-the-air at the translator
site." [FM Translator Stations]{.underline}, 8 FCC Rcd at 5093. The ALJ
concluded that Turro's operation of his Fort Lee and Pomona translators
was in complete compliance with this rule. Specifically the ALJ found
that the Fort Lee and Pomona translators received the off-air signal of
WJUX "directly through space" and that, after the Pomona translator
started to rebroadcast WJUX, the Fort Lee translator received the
off-air signal of the Pomona translator "directly through space" and
retransmitted the signal of the Pomona translator on a regular basis.
[See]{.underline} ¶ 64, [supra]{.underline}.

81\. Under 47 C.F.R. § 74.531(c), an intercity relay station may be used
only "to transmit aural program material between noncommercial
educational FM radio stations and their co-owned noncommercial
educational FM translator stations . . . and between FM radio stations
and FM translator stations operating within the coverage contour of
their primary stations." The ALJ found that, from late October 1994,
when the Fort Lee translator began rebroadcasting WJUX, until early July
1995, when WMG-499 was deactivated, Turro used his relay station to
transmit aural program material and telemetry or data from his program
production studio in Dumont to the Fort Lee translator, and that such
use was unauthorized by the rule.[^15] The ALJ concluded that a \$3,000
forfeiture would be the most appropriate sanction for Turro's violation
of 47 C.F.R. § 74.531(c), but that assessment of a forfeiture was
precluded by the one year statute of limitations contained in 47 U.S.C.
§ 503(b)(6) and 47 C.F.R. § 1.80(c)(1).

82\. Based on the results of the field inspections and the other
information before the Commission at the time, the [HDO]{.underline}
raised questions as to whether the Fort Lee translator was receiving the
programming airing on WJUX directly from Jukebox Radio's Dumont studio
and was not retransmiting WJUX's off-the-air signal, whether intercity
relay station WMG-499 was being used to deliver programming from the
Dumont studio directly to the Fort Lee translator, and whether both
translators have also been programmed through telephone lines from the
Dumont studio. The Bureau does not except to the ALJ's findings or
conclusions under this issue, however, and thus no longer disputes any
of these matters. In a footnote to its exceptions under the
misrepresentation issues, Universal submits that Turro also violated
Sections 74.531(c) and 74.1231(b). Universal argues, based on the
testimony of two former Jukebox Radio employees, that the Fort Lee
translator routinely rebroadcast programming received directly from
WMG-499, rather than off the air from WJUX. We reject this contention as
unsupported by the record. The ALJ found that the testimony of the
witnesses in question, who were working for Universal at the time of
their appearance, was not credible. Specifically he found their
testimony was riddled throughout by "major contradictions,
inconsistencies, inaccuracies, and misunderstandings." The ALJ also
found that their testimony "was squarely contradicted on all significant
points" by credible testimony from other witnesses. Moreover, the ALJ
found, the discredited witnesses did not have engineering training or
personal knowledge of the equipment and facilities in question.
[I.D.]{.underline}, ¶¶ 191-92. We have reviewed the evidence and
determined that the ALJ's conclusions are amply supported by the record.
Accordingly we affirm the ALJ's resolution of this issue.[^16]

**[B.]{.underline} [47 C.F.R. § 74.1232(d)]{.underline}**

83\. In its exceptions, Universal argues that the ALJ should not have
granted renewal of Turro's translator station licenses because Turro is
in violation of 47 C.F.R. § 74.1232(d). In pertinent part, this rule
provides that '\[a\]n authorization for an FM translator whose coverage
contour extends beyond the protected contour of the commercial primary
station . . . will not be granted to any person or entity having any
interest whatsoever, or connection with a primary FM station." Universal
contends that the ALJ's action fundamentally misconstrued the
[HDO]{.underline}, which found, according to Universal, that the
relationship between Turro and Weis violated this rule provision.

84\. In a further pleading, styled Renewed Petition for Extraordinary
Relief and Issuance of an Order Requiring Turro to Come into Immediate
Compliance with 47 C.F.R. § 74.1232 ("Renewed Petition for Extraordinary
Relief"), Universal requests that the Commission issue an order in this
proceeding directing Turro to cease violating 47 C.F.R. § 74.1232(d).
Universal asks that we order Turro either (1) immediately to terminate
his programming and other connections with WJUX, or (2) immediately to
cease rebroadcasting WJUX on his translator stations. All of the other
parties, including the Bureau, oppose Universal's Renewed Petition for
Extraordinary Relief.

85\. First, we deny Universal's exception. We disagree that the ALJ
misunderstood the [HDO]{.underline} and erred in renewing Turro's
authorizations in spite of the requirements of 47 C.F.R. § 74.1232(d).
There was no 47 C.F.R. § 74.1232(d) issue designated for hearing for the
ALJ to consider. We made clear in the [HDO]{.underline} that the
ultimate determination in this proceeding of whether the public interest
would be served by a grant of Turro's renewal applications was not to be
based on any violation of 47 C.F.R. § 74.1232(d). In addressing this
matter, we explained that, because 47 C.F.R. § 74.1232(d) prohibits
Turro from having any interest or connection with WJUX apart from
rebroadcasting its programming over his translator stations, and Turro
is a party to the Network Affiliation Agreement, which is a further
business relationship with WJUX, the Bureau correctly advised Turro by
letter on April 5, 1996 that these relationships violate the rule. We
went on to state:

> With respect to this violation, however, we acknowledge that the
> Bureau issued Turro a letter in 1991 which he may have construed to
> authorize his relationship with WJUX and Monticello. We agree with the
> Bureau that the 1991 letter was not so broad as to authorize what is
> now known to be the relationship between WJUX and the translators. We
> find Turro's contention to the contrary, however, is not unreasonable.
> Accordingly, we will not pursue in this proceeding any violation of
> Section 74.1232(d) that may have resulted from Turro's reliance on the
> 1991 letter.

[HDO]{.underline}, 12 FCC Rcd at 6269 n. 13. In view of this
determination, which is still valid, we reject Universal's contention
and reaffirm that Turro's violation of 47 C.F.R. § 74.1232(d) is beyond
the scope of the hearing and is not relevant in evaluating Turro's
qualifications as a licensee.

86\. Notwithstanding the express ruling in the [HDO]{.underline},
Universal persists that Turro could not justifiably have relied on the
Bureau's 1991 ruling because he procured the letter through
misrepresentation and then preceded to depart from the terms of the
Bureau's ruling. We disagree. For the reasons already stated in this
opinion, we conclude that Turro did not engage in misrepresentation or
lack candor with the Commission either in connection with obtaining the
Bureau's 1991 declaratory ruling or in any of his subsequent actions
involving the operation of his translator stations and his relationship
with WJUX.

87\. We also deny Universal's Renewed Petition for Extraordinary
Relief.[^17] By way of background, as we recited in the
[HDO]{.underline} and noted above, the Bureau advised Turro by letter
dated April 5, 1996 that so long as one or both of his translators
continue to rebroadcast WJUX's off-air programming, he must cease from
having any interest in or connection with WJUX. Alternatively, the
Bureau advised that so long as Turro continues to have an interest in or
connection with WJUX, he must cease from rebroadcasting its programming
over his translators. The Bureau afforded Turro sixty days to come into
compliance with 47 C.F.R. § 74.1232. At the same time, the Bureau
acknowledged that its 1991 letter advised Turro that his proposal would
not be prohibited by the Commission's rules, but stated that its earlier
letter contemplated a minimal connection between Turro and the primary
station and did not anticipate the substantial relationship that Turro
subsequently established with WJUX.[^18]

88\. In response to the Bureau's April 5, 1996 letter, on May 31, 1996,
Turro filed an application to assign his translator licenses to a trust
created for his benefit but controlled by a trustee, Stephen M. Gansler.
In a June 5, 1996 letter, the Bureau authorized Turro to continue his
stations' current program service during the pendency of the assignment
application. On August 13, 1996, the Bureau ruled that Turro's
assignment proposal did not comply with the April 5, 1996 directive \--
largely because Turro retained an interest as the beneficiary of the
proposed trust \-- and it ordered Turro to state what further steps he
would take to achieve compliance. [Gerard A. Turro]{.underline}, 11 FCC
Rcd 22346 (1996). On September 6, 1996, Turro requested the dismissal of
that assignment application, and we granted this request in the
[HDO]{.underline}. On the same date, Turro filed a new application to
assign his translator stations to Press Broadcasting, Inc. In the
[HDO]{.underline}, we stated that we would hold this application in
abeyance pending the resolution of the designated hearing issues. There
the matter stands.

89\. We will not grant Universal's request that we order Turro to comply
with 47 C.F.R. § 74.1232(d) by immediately terminating his connection
with WJUX or ceasing to rebroadcast its signal. As explained in the
[HDO]{.underline}, and confirmed in this decision, because Turro's
understanding of the Bureau's 1991 ruling was not unreasonable, we
decided not to pursue in this proceeding any violation of Section
74.1232(d). Moreover, we believe this result is further supported by the
recent opinion of the court of appeals in [Trinity Broadcasting of
Florida, Inc. v. FCC]{.underline}, No. 99-1183 (D.C. Cir. May 5, 2000).
There the court vacated the Commission's denial of renewal of a
broadcast license because the Commission had failed to give fair notice
of the requirement upon which the denial was based. Similarly, in this
case, Turro was not afforded adequate notice in 1991 in response to his
request for a declaratory ruling that his proposed time brokerage
arrangement would be violative of Section 74.1232(d), and it therefore
would be inappropriate to impose a sanction upon him based on this
violation.

90\. It now appears that Turro is attempting to come into compliance
with the rule and the Bureau's April 1996 directive by assigning his
licenses to Press. Indeed, from the time he was informed of the Bureau's
revised understanding of the prevailing law in April 1996, Turro has
timely sought to comply by assigning his licenses. According to Turro,
he is currently proposing an "unconditional sale" of his translators to
Press (Opposition to Renewed Petition for Extraordinary Relief at 6), a
transaction that presumably contains none of the objectionable features
of the trust arrangement previously proposed by Turro and rejected by
the Bureau. As such, grant of the pending assignment application may
well moot any remaining question of Turro's rule compliance. As noted,
we have held this assignment application in abeyance pending completion
of this hearing proceeding, and we believe that the pending assignment
application is the appropriate context for resolution of this matter.
Accordingly we direct the Bureau to consider, on the basis of its review
and disposition of Turro's assignment application, whether any further
action is required to accomplish full compliance with our translator
rules.

**VI. CONCLUSIONS AND ORDERING CLAUSES**

91\. We conclude that neither Turro nor Monticello engaged in an
unauthorized transfer of control of WJUX, that Monticello fundamentally
complied with the rules governing the maintenance of a main studio for
WJUX, that Turro did not misrepresent or lack candor to the Commission
concerning the operation of his translator stations, that Monticello did
not misrepresent or lack candor to the Commission concerning the
operation of WJUX, and that the ALJ correctly resolved the issue of
Turro's compliance with the rules governing the operation of translator
stations. Therefore, we conclude that the public interest will be served
by a grant of Turro's applications for renewal of his translator
licenses, and that Monticello possesses the requisite qualifications to
be and remain a Commission broadcast permittee.

92\. ACCORDINGLY, IT IS ORDERED That the Motion for Expedited Processing
filed October 20, 1999 by Universal Broadcasting of New York, Inc. IS
DISMISSED; and that the Renewed Petition for Extraordinary Relief and
Issuance of an Order Requiring Turro to Come into Immediate Compliance
with 47 C.F.R. § 74.1232 filed October 20, 1999 by Universal
Broadcasting of New York, Inc. IS DENIED.

93\. IT IS FURTHER ORDERED That the applications of Gerard A. Turro for
renewal of license for FM translator stations W276AQ(FM), Fort Lee, New
Jersey, and W232AL(FM), Pomona, New York (File Nos. BRFT-970129YC and
BRFT-970129YD), ARE GRANTED.

94\. IT IS FURTHER ORDERED That the construction permit of Monticello
Mountaintop Broadcasting, Inc. for FM radio station WJUX(FM),
Monticello, New York, IS NOT REVOKED.

95\. IT IS FURTHER ORDERED That the application of Monticello
Mountaintop Broadcasting, Inc. for a license to cover the construction
of WJUX's facilities (File No. BLH-941031KD) IS GRANTED.[^19]

96\. IT IS FURTHER ORDERED That this proceeding IS TERMINATED.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

[^1]: FM translators are stations that receive the signals of FM radio
    stations (referred to as "primary stations") and simultaneously
    retransmit those signals on another frequency. In general, the
    signal of the FM radio station being rebroadcast must be received
    directly over-the-air at the translator site. The Commission
    authorized FM translators in order to provide FM service to areas
    that were unable to receive satisfactory FM reception.
    [See]{.underline} [FM Translator Stations]{.underline}, 8 FCC Rcd
    5093 (1993).

[^2]: In [FM Translator Stations]{.underline}, the Commission
    restructured the FM translator rules consistent with their intended
    purpose of providing supplementary service to areas having
    unsatisfactory FM reception. In comments filed in that proceeding,
    Turro requested amendment of the rules to permit translator stations
    serving counties with no FM allocations to originate programming.

[^3]: The pleadings before us are: (a) Exceptions to Initial Decision of
    Universal; (b) Bureau's Exceptions to Initial Decision; (c) Reply of
    Turro to Exceptions; (d) Reply to Exceptions filed by Monticello;
    (e) Motion for Expedited Processing filed by Universal; (f) Renewed
    Petition for Extraordinary Relief and Issuance of an Order Requiring
    Turro to Come into Immediate Compliance with 47 C.F.R. § 74.1232
    filed by Universal; (g) Supplement to Petition to Deny and
    Post-Hearing Statement of Position of Universal; (h) Bureau's
    Opposition to Renewed Petition for Extraordinary Relief; (i)
    Opposition to Renewed Petition for Extraordinary Relief by
    Monticello; (j) Opposition of Turro to Renewed Petition for
    Extraordinary Relief; and (k) Consolidated Reply to Oppositions to
    Renewed Petition for Extraordinary Relief filed by Universal.

[^4]: The station's call sign was then WXTM(FM). It was not formally
    changed to WJUX(FM) until April 14, 1995. [I.D.]{.underline}, ¶ 9 n.
    2; ¶ 45. For ease of reference, we use WJUX throughout this opinion.

[^5]: Turro paid WJUX's telephone bills for a period of time, but the
    evidence indicates that Weis corrected this situation when he
    discovered it, and thus this episode is not indicative of a transfer
    of control to Turro. [See]{.underline} ¶ 50, [infra]{.underline};
    [I.D.]{.underline}, ¶ 114.

[^6]: The Bureau asserts that there is "\[n\]othing in the record" which
    indicates that Turro's monthly payments were comparable to those
    made by other purchasers of brokered time, as required by the
    Bureau's 1991 ruling. But the Bureau carried the initial burden of
    going forward with the introduction of evidence on the transfer of
    control issue pertaining to Turro as well as the burdens of
    proceeding and proof on the transfer of control issue pertaining to
    Monticello. [Salem Broadcasting, Inc.]{.underline}, 6 FCC Rcd 4172
    (MMB 1991), cited by Universal, is inapposite. There, unlike the
    facts present here, the licensee lacked control because, [inter
    alia]{.underline}, the licensee was indebted to the time broker and
    the station's only revenue was \$20 per month it received from the
    broker, the licensee leased station equipment from the broker, the
    broker negotiated a tower lease, and the broker used its own
    transmitter rather than the station's. Contrary to Universal's
    additional claim, the indemnification provision of the Agreement was
    not an abdication of financial control by Monticello. Although this
    provision purports to indemnify Monticello against "all . . .
    forfeitures . . . imposed by the FCC," Weis and Turro both explained
    at the hearing that this clause only covered fines for something
    Jukebox Radio did and was limited to its provision of programming.
    It did not extend, for example, to a main studio rule violation by
    Monticello or operation of its transmitter beyond the authorized
    power. [I.D.]{.underline}, ¶ 30.

[^7]: WJUX received only two listener complaints, and neither related to
    the nature or adequacy of the station's programming service to
    Monticello. [See]{.underline} ¶ 47, [infra]{.underline}.

[^8]: The Bureau points out that the WJUX call sign was previously
    associated with a noncommercial FM station held by Turro in Franklin
    Lakes, New Jersey, but we do not see how this fact establishes that
    Turro exercised control over WJUX's operation.

[^9]: Universal also claims that New York's statute of frauds would have
    precluded Weis from enforcing the unsigned Amendment, but there is
    no evidence that Turro was not in compliance with the Amendment
    prior to its formal signing. Moreover, as explained in the text, we
    have evaluated the parties' relationship in accordance with our own
    standards governing transfer of control of broadcast licenses.
    Although Universal also attributes significance to the fact that the
    Agreement preceded Weis's purchase of the construction permit by one
    day, the record shows that these essentially contemporaneous actions
    were taken pursuant to the parties' connected plan for Weis to
    acquire the station and Turro to supply programming to it pursuant
    to the Network Affiliation Agreement.

[^10]: We address the exceptors' claims regarding remote control of
    WJUX's transmitter and the main studio telephone at ¶¶ 58-59,
    [infra]{.underline}, under the main studio issue.

[^11]: The current version of 47 C.F.R. § 73.1125(a) permits location of
    the main studio within the principal community contour of any
    station licensed to that community.

[^12]: [KQQK, Inc.]{.underline}, 10 FCC Rcd 132 (MMB 1994), cited by the
    Bureau, is inapposite. There, unlike the facts in this case, there
    was no time brokerage arrangement, and the licensee did not
    establish a managerial presence at the main studio because it was
    unable to describe its official's management duties or demonstrate
    that he was authorized to make typical management decisions.

[^13]: Universal also argues that Turro knew the proposed business
    relationship with Weis was contrary to 47 C.F.R. § 74.1232(d), which
    precludes any "connection" between a primary station and a
    translator whose coverage contour extends beyond the protected
    contour of the primary station. We consider Universal's arguments
    with respect to this rule provision at ¶¶ 83-90,
    [infra]{.underline}.

[^14]: ^?^ We consider Universal's additional argument that Turro used
    his intercity relay station WMG-499 as part of his scheme to
    improperly provide service through his Fort Lee translator at ¶¶
    80-82, [infra]{.underline}.

[^15]: The ALJ also found that the audio programming received by the
    Fort Lee translator was not retransmitted unless there was an
    emergency. [I.D.]{.underline}, ¶ 273. In addition, the ALJ found
    that, prior to the time he began rebroadcasting commercial FM
    station WJUX, Turro was in compliance with 47 C.F.R. § 74.531(c)
    because his original application for WMG-499 specified that the Fort
    Lee translator then rebroadcast the signal of a noncommercial FM
    station in Franklin Lakes, New Jersey, and that WMG-499 would be
    used to feed 30-second announcements concerning financial support
    pursuant to 47 C.F.R. § 74.1231(g) and operational communications
    from the FM station to the translator.

[^16]: We also disagree with Universal's related assertion that Turro
    misrepresented with respect to his operation of WMG-499. In fact
    Turro consistently and candidly admitted in response to the Bureau's
    letter of inquiry and in his testimony that his relay station was
    used to transmit aural program material and telemetry from the
    Dumont studio to the Fort Lee translator. [See]{.underline}
    [I.D.]{.underline}, ¶¶ 201-02, 286-87.

[^17]: In light of the issuance of this opinion, we also dismiss as moot
    Universal's simultaneously-filed Motion for Expedited Processing.

[^18]: In its 1991 letter, the Bureau adverted to subsection (e) of 47
    C.F.R. § 74.1232, governing financial support of translators by
    primary stations, but did not cite subsection (d) of the rule,
    prohibiting any connection between persons owning translators and
    primary stations. [See]{.underline} ¶ 4, [supra]{.underline}.

[^19]: In the [HDO]{.underline}, 12 FCC Rcd at 6265 ¶ 3, we incorporated
    herein Monticello's application for a license to cover its
    construction permit for disposition in accordance with the outcome
    of this proceeding.