**FEDERAL COMMUNICATIONS COMMISSION**

**WASHINGTON, DC 20554**

**February 2, 2000**

> ***IN REPLY REFER TO:***

1800B3-BJB/MFW

February 2, 2000

**Certified Mail - Return Receipt Requested**

Talib I. Karim, Esquire

Karim & Judd, P.L.L.C.

1140 Connecticut Avenue, N.W.

Suite 1142

Washington, D.C. 20036

Benjamin Perez, Esquire

Abacus Communications Company

1801 Columbia Road, N.W., Suite 101

Washington, D.C. 20009-2031

In re: NEW, Bloomfield, CT

Incom, L.L.C.

Application for Experimental

Broadcast Station

Gentlemen:

This letter refers to the October 27, 1998 application of Incom, L.L.C.
(\"Incom\") to construct an experimental low power FM radio broadcast
station in Bloomfield, Connecticut pursuant to 47 C.F.R.

§ 74.102. The proposal was supplemented on December 24, 1998.
Specifically, Incom requests experimental authority to operate on
Channel 287 with 90 watts effective radiated power, at an antenna height
of 90 feet above ground level, from a site located in Bloomfield, which
is a suburb of Hartford. Incom argues that its proposal will provide the
Commission with empirical evidence concerning the technical and
financial feasibility of low power FM broadcasting. Incom has filed a
\"Request for Expedited Action and Waiver of the Commission\'s Rules" in
conjunction with its application for experimental authorization. In this
pleading, Incom requests that the Commission take prompt action on its
application and that it waive 47 C.F.R. § 74.182 in order to permit
Incom to solicit and air advertisements on its proposed facility,
ostensibly to ascertain whether or not a low power FM operation can be
financially as well as technically viable.

[Background]{.underline}

Mark Blake, Incom\'s President, operated an unlicensed, commercial FM
radio station known as \"Prayze FM,\" on 105.3 MHz in Bloomfield for
approximately two years. Despite repeated warnings by the then
Compliance and Information (now Enforcement) Bureau to Blake that he was
violating the law, [i.e.]{.underline}, 47 U.S.C. § 301, by operating
without a license, Blake persisted in broadcasting without a license. In
February 1998, Blake, Incom and Prayze FM filed a lawsuit against the
Commission in United States District Court in Connecticut. The Prayze
parties asked the court to issue a temporary restraining order (\"TRO\")
to enjoin the Commission from enforcing the law against the unlicensed
radio station known as Prayze FM. The District Court denied the
application for a TRO on March 3, 1998.

Shortly thereafter, the Commission, represented by the United States
Attorney\'s Office in Connecticut, filed a motion for injunctive and
declaratory relief against Blake, Incom and Prayze FM. The Government\'s
motion was granted by the District Court on September 11, 1998.
Apparently unwilling to obey the law (47 U.S.C. § 301) and the District
Court\'s decision, Prayze FM filed three motions to stay the
effectiveness of the District Court\'s decision so that it could
continue its illegal broadcasting activities. A United States Magistrate
recommended a denial of a stay and the District Court agreed. Prayze FM
then filed a notice of appeal and motion for stay with the United States
Court of Appeals for the Second Circuit. The Court of Appeals denied the
motion for stay on November 24, 1998, and ordered an expedited briefing
schedule on the merits of Prayze FM\'s appeal.

Following oral argument, the Court of Appeals vacated the injunction and
directed the District Court to supplement the record by making findings
of fact and conclusions of law that constitute the grounds of its
action, and to specify the conduct that is enjoined, while still
retaining jurisdiction. On November 8, 1999, the District Court issued
its ruling on the government's motion for a preliminary injunction. The
District Court once again enjoined Prazye FM, Incom LLC, Mark Blake and
all persons acting in concert with them from making radio transmissions
within the United States until they first obtain a license from the FCC
or other appropriate authorization in accordance with Section 301 of the
Communications Act. Prayze FM resumed its unlicensed broadcasting
shortly thereafter. The District Court twice found Prayze FM and its
principals in contempt, but stayed the imposition of penalties pending
the outcome in the Court of Appeals. The Court of Appeals then granted
Prayze FM's motion for a writ of prohibition and prohibited the District
Court from enforcing its injunction against Prayze FM pending the
outcome of the appeal. The case has been scheduled for further briefing
and oral argument may take place as early as the week of March 27, 2000.

At this time, it is our understanding that Prayze FM is on the air. With
the foregoing in mind, we now turn to the instant application by
Blake/Prayze FM/Incom for an \"experimental\" broadcast license.

[Incom\'s Application]{.underline}

Applicants for experimental broadcast stations are required by 47 C.F.R.
§ 74.102 to propose operations \"for the purpose of carrying on research
and experimentation for the development and advancement of new broadcast
technology, equipment, systems, or services which are more extensive
than that which currently exists or which require other modes of
transmission than can be accomplished by using a licensed broadcast
station under an experimental authorization ([see]{.underline} Section
73.1510).\" In order to ensure the proper use of such an authorization,
applicants are required by § 74.131(a)(1) to demonstrate that there is
\"a definite program of research and experimentation in the technical
phases of broadcasting which indicates reasonable promise of substantial
contribution to the developments of the broadcast art.\" Furthermore,
the applicant must establish that the research program could only be
implemented via an experimental permit and that the program of research
and experimentation will be conducted by qualified personnel. Finally,
as indicated above, experimental stations authorized under Part 74 are
prohibited by Section 74.182 from charging fees for producing or
receiving compensation for or profit from the programming which they
transmit over the experimental facilities. This provision is designed to
ensure that applicants for experimental authorizations are actually
engaged in research of benefit to the state of the art of broadcasting
and not for self-aggrandizement. [International Expo Information
Broadcasters, Inc.]{.underline}, 89 FCC 2d 1374, 1383 (1982).

In support of its proposal, Incom refers to a petition for rule making
filed by J. Rodger Skinner. [See]{.underline} [Public Notice, Rule
Making No. 9242]{.underline} (February 20, 1998). That petition proposed
that the Commission amend the existing rules to provide for a low power
FM broadcast service. Incom contends that its proposal may \"assist the
FCC in expeditiously resolving the technical issues surrounding the
creation of this new service.\" [Request for Expedited Action and
Waiver]{.underline}, at 2. We note that, the Commission recently
released its [Report and Order]{.underline} in MM Docket No. 99-25, [In
the Matter of Creation of Low Power Radio Service]{.underline}, FCC
00-19 (released January 27, 2000) ("[LPFM Service Order]{.underline}")
addressing Skinner's and other similar petitions. In the [LPFM Service
Order]{.underline}, the Commission established a new, low-power, FM
radio service. Among other things, the Commission also adopted a rule
requiring any "LPFM" applicant who at some time broadcast illegally to
certify under penalty of perjury that: (1) it voluntarily ceased
engaging in unlicensed operation prior to February 26, 1999 without
specific direction to terminate by the Commission; or (2) it ceased
operating any such facility within 24 hours of being advised by the
Commission to do so. [Id]{.underline} at ¶¶ 54-56. *See* 47 C.F.R.
§73.854(b). The decision to deny Incom's application for an experimental
authorization is not based on the [LPFM Service Order]{.underline} or on
the new eligibility rule.

We conclude that Incom\'s application is not a [bona]{.underline}
[fide]{.underline} experimental proposal under the provisions of Section
74.102. Technological experimentation is the benchmark of the
experimental rules, [id.]{.underline}, and Incom\'s proposal does not
demonstrate that it would make a contribution to the technological state
of the art of broadcasting. [Ponce Television Corporation]{.underline},
1 FCC Rcd 1167, 1181 (1986); [Greater Washington Educational
Telecommunications Association]{.underline}, 53 FCC 2d 910, 918 (1975).
[See]{.underline} [also]{.underline} [Ponce Television
Corporation]{.underline}, 4 FCC Rcd 5258 (1989), [affd]{.underline}
[sub]{.underline} [nom]{.underline}. [Pegasus Broadcasting of San Juan,
Inc., v. FCC]{.underline}, 901 F.2d 1130 (D.C. Cir. 1990) (table).
Rather, Incom proposes to operate a conventional commercial FM broadcast
station, albeit at a lower power than is currently permitted under the
Commission\'s rules. The proposed operation is thus directly at odds
with the purposes of the Commission\'s experimental broadcasting rules
and must be rejected. [See]{.underline} [Capitol Broadcasting Company v.
FCC]{.underline}, 257 F.2d 630, 632 (D.C. Cir. 1958) (Commission grant
of experimental authorization reversed on appeal upon appellant\'s
demonstration that \"the application was, in substance, for . . . \[a\]
regular commercial \[broadcasting\] operation). Because we find Incom's
proposal to be defective [vis-à-vis]{.underline} the Commission's
experimental broadcast authorization rules, we need not reach its
request for waiver of Section 74.182 concerning the solicitation of
advertisements on experimental facilities.

Accordingly, Incom, L.L.C.\'s \"Request for Expedited Action and Waiver
of the Commission\'s Rules\" IS HEREBY DENIED, and its application for a
construction permit for a new experimental broadcast station on Channel
287 in Bloomfield, Connecticut also IS DENIED. We caution Incom and its
President Mark Blake that **the operation of an unlicensed FM radio
station is unauthorized and, therefore, illegal under Section 301 of the
Communications Act, 47 U.S.C. § 301.**

Sincerely,

Linda Blair, Chief

Audio Services Division

Mass Media Bureau

cc: Incom, L.L.C.