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Notice Of Apparent Liability, Apple 107.1, Inc., W292DV, New York, NY

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Released: November 14, 2013

Federal Communications Commission


DA 13-2179

Before the

Federal Communications Commission

Washington, D.C. 20554

In re Applications of
)
)

Apple 107.1, Inc.

)
NAL/Acct. No. MB-201341410017
)
FRN: 0019619089
Licensee of FM Translator Station W292DV
)
Facility ID No. 155888
New York, New York
)
)

Applications for Licenses to Cover
)
File Nos. BLFT-20110503AEA,
)
BLFT-20120405AAK
)
Application for Construction Permits
)
File Nos. BPFT-20111018ABX,
)
BPFT-20120425ABS
and
)
)

Request for Special Temporary Authority
)
File No. BSTA-20130320ABV

MEMORANDUM OPINION AND ORDER

AND

NOTICE OF APPARENT LIABILITY FOR FORFEITURE

Adopted: November 14, 2013

Released: November 14, 2013

By the Chief, Media Bureau:

I.

INTRODUCTION

1.
The Media Bureau (“Bureau”) has before it: 1) a Petition for Reconsideration
(“Manhattan License Petition”) filed by Press Communications, LLC (“Press”), 1 seeking reconsideration
of the grant of a covering license application (“Manhattan License Application”)2 of Apple 107.1, Inc.
(“Apple”) for FM Translator Station W292DV, New York, New York (“Station”); 2) an “Emergency
Petition for Immediate Rescission of Construction Permit and Dismissal of License Application”
(“Emergency Petition”) filed by Press,3 seeking rescission of Apple’s modification application for the
Station (“Sunnyside Modification Application”)4 and dismissal of the associated covering license
application (“Sunnyside License Application”),5 and a Petition for Reconsideration (“Sunnyside
Petition”),6 also filed by Press, seeking reconsideration of the grant the Sunnyside Modification


1 Press filed the Manhattan License Petition on June 21, 2011. On July 2, 2011, Apple filed an Opposition. On July
12, 2011, Press filed a Reply.
2 File No. BLFT-20110503AEA.
3 Press filed the Emergency Petition on April 11, 2012. On April 12, 2012, Apple filed an Opposition to the
Emergency Petition. On April 13, 2012, Press filed a Reply (“Reply to Opposition to Emergency Petition”).
4 File No. BPFT-20111018ABX.
5 File No. BLFT-20120405AAK.
6 Press filed the Sunnyside Petition on April 27, 2012.

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Application; 3) Apple’s subsequent modification application to relocate the Station’s transmitter to a site
in Glen Oaks (“Glen Oaks Modification Application”) 7 and Press’ Petition to Deny the Glen Oaks
Modification Application (“Glen Oaks Petition”);8 4) Apple’s request for special temporary authority
(“STA”)9 to operate the Station at temporary facilities in Long Island City pending staff action on the
Glen Oaks Modification Application (“Long Island City STA Request”) and Press’ “Petition to Deny or,
in the Alternative, Informal Objection” (“STA Petition”) filed against the Long Island City STA Request;
10 and finally, 5) Press’ “Petition for Determination of License Expiration Pursuant to 47 U.S.C. § 312(g)”
(“Expiration Petition”).11
2.
In this Memorandum Opinion and Order and Notice of Apparent Liability for Forfeiture
(“NAL”), we find that Apple apparently willfully and repeatedly violated Section 74.1234(a)(1) of the
Commission’s Rules (“Rules”) by failing to comply with the translator transmitter accessibility rule.12
Based upon our review of the record before us, we conclude that Apple is apparently liable for a monetary
forfeiture in the amount of three thousand dollars ($3,000). We will also deny the Expiration Petition,
deny the STA Petition, grant the Long Island City STA Request, dismiss the Glen Oaks Modification
Application, and dismiss as moot the Glen Oaks Modification Petition, the Sunnyside License
Application, the Emergency Petition, the Manhattan License Petition, and the Sunnyside Petition.

II.

BACKGROUND

3.
Manhattan Site. The Station’s transmitter was previously located in Union City, New
Jersey, operating on Channel 293.13 On February 25, 2011, Apple filed a modification application to: a)
relocate the Station’s transmitter site from Union City to an antenna situated on the 4 Times Square
building in Manhattan; and b) change the Station’s operations from Channel 293 to Channel 292.14 No
challenge to the application was filed, and the staff granted the application on April 13, 2011.
4.
Apple filed the Manhattan License Application on May 3, 2011. During program test
operations, which commenced on May 6, 2011, it was determined that the Station would cause
interference to Station WKMK(FM), Eatontown, New Jersey, which also operates on Channel 292 and is


7 File No. BPFT-20120425ABS. Apple amended the original April 25, 2012 application on July 8, 2013; July 14,
2013; and lastly on July 22, 2013.
8 Press filed the Glen Oaks Petition on May 11, 2012. On May 12, 2012, Apple filed an Opposition. On May 31,
2012, Press filed a Reply.
9 File No. BSTA-20130320ABV.
10 Apple filed the Long Island City STA Request on March 20, 2012. Press filed the STA Petition on April 4, 2013.
On May 6, 2013, Apple filed a “Motion to Accept Late-Filed Opposition to Petition to Deny, or in the Alternative,
Informal Objection” and an “Opposition to Petition to Deny, or in the Alternative, Informal Objection.” On May 13,
2013, Press filed an “Opposition to ‘Motion to Accept Late-Filed Opposition’” and a “Contingent Reply to
Opposition.” On May 28, 2013, Apple filed a “Reply to Opposition to Motion to Accept Late-Filed Opposition” and
an “Opposition to Contingent Reply.” On June 3, 2013, Press filed a “Consolidated Response of Press
Communications, LLC” responding to Apple’s “Reply to Opposition to Motion to Accept Late-Filed Opposition”
and “Opposition to Contingent Reply.”
11 The Expiration Petition was filed on May 13, 2013. On May 28, 2013, Apple filed an “Opposition to Petition for
Determination of License Expiration Pursuant to 47 U.S.C. § 312(g).” Press’s June 3, 2013 “Consolidated
Response” also addressed Apple’s opposition to the Expiration Petition.
12 See 47 C.F.R. § 74.1234(a)(1).
13 See File Nos. BMPFT-20100812ACG (granted Feb. 25, 2011); BLFT-20110225ABU (granted Mar. 22, 2011).
14 File No. BPFT-20110225ABV.
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DA 13-2179

licensed to Press. The Bureau ordered the Station to go silent on May 12, 2011, pending a resolution of
the interference issue.15 The Bureau also informed Apple that if it “wants to resume operations on
channel 292, it must first submit a request for resumption of operations to the Commission that includes
an ‘on-off’ test plan to be performed in conjunction with a representative from WKMK.”16 The staff
subsequently granted the Manhattan License Application on May 18, 2011.17 Apple filed a silent STA
request on June 1, 2011, indicating that it had “suspended operation following complaints of
interference.”18
5.
Press filed the Manhattan License Petition on June 21, 2011, arguing that it was error to
grant the Manhattan License Application because, prior to its grant, it had been established that the
Station would cause interference to WKMK.19 Apple argues in opposition that, because the Station had
already gone silent, there was no reason to rescind the Station’s license for the Manhattan site.20
6.
Sunnyside Site. Apple filed the Sunnyside Modification Application on October 18,
2011. On February 23, 2012, Apple filed an amendment to the application in which it proposed: a) to
operate on Channel 292, and b) relocate the Station’s transmitter from its location in Manhattan to the
Royal Kent, a residential building in Sunnyside in Queens. The staff granted the amended application on
March 23, 2012.21 Apple filed the Sunnyside License Application on April 5, 2012, which remains
pending, and resumed Station operations at the Sunnyside site on April 6, 2012.
7.
Press filed the Emergency Petition on April 11, 2012, seeking rescission of the Sunnyside
Modification Application and dismissal of the Sunnyside License Application. Press argues that the
Apple’s proposed resumption of operations on Channel 292 would cause further interference to WKMK,
and that Apple failed to comply with the May 2011 Order because it did not conduct “on-off” testing
prior to resuming operations on Channel 292.22 In its Opposition, Apple argues that the grant of the
Sunnyside Modification Application superseded the May 2011 Order and that it was thus not required to
consult with Press and conduct the “on-off” testing required by the order.23 In reply, Press argues that
the May 2011 Order still applies because Apple is attempting to operate the Station on Channel 292,


15See Email from James Bradshaw, May 12, 2011 (“Due to significant continuing interference complaints . . . being
received by WKMK, we are ordering W292DV to immediately CEASE OPERATION.”) (“May 2011 Order”)
(capitalization in original).
16 See id.
17 Broadcast Actions, Public Notice, Report No. 47492 (MB May 23, 2011).
18 See also File No. BLSTA-20110601AAX. The staff granted this STA request on August 29, 2011, and it was to
expire on February 25, 2012. Apple filed an STA extension request on February 15, 2012. See File No. BLESTA-
20120215ABF. The staff granted the extension request, which was to expire on May 13, 2012. See Letter to Lauren
A. Colby from Lisa A. Scanlan
, Ref 1800B3-VM (MB Mar. 8, 2012).
19 Manhattan License Petition at 1- 2.
20 Opposition to Manhattan License Petition at 1-2.
21 Broadcast Actions, Public Notice, Report No. 47704 (MB Mar. 28, 2012). The original Sunnyside Modification
Application proposed to change the Station’s channel to Channel 284. 6 Johnson Road Licenses, Inc., filed an
Informal Objection to the application, arguing that the Station’s operations on Channel 284 would cause interference
to its own Station WSPK(FM), which also operates on Channel 284. The amended Sunnyside Modification
Application proposed serving on Channel 292. The staff dismissed the Informal Objection as moot when it granted
the Sunnyside Modification Application.
22 Emergency Petition at 5-6.
23 Opposition to Emergency Petition at 2.
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even at the new Sunnyside site.24 Press additionally states that it had received several hundred
interference complaints from listeners in the week that the Station had resumed operations.25
8.
Press and Apple conducted a series of “on-off” tests on April 18, 2012, during which
their representatives drove to various locations on Staten Island served by WKMK. The limited tests
revealed that the Station’s signal was causing interference to WKMK at locations near to certain of the
submitted listener addresses. Additionally, in preparation for the testing Apple’s principal, Michael
Celenza (“Celenza”) indicated to Press that Apple could only access the transmitter site at the Royal
Kent after 9:00 am.26 Accordingly, on April 18, 2012, the Bureau ordered Apple to operate the Station at
reduced power or cease operations.27 The Bureau reminded Apple that Section 74.1234 of the Rules
“requires Apple to either have direct access to the transmitter site at all times or to have the ability turn
the transmitter off remotely ‘at all hours.’”28 Celenza responded to that order the next day, April 19,
2012, stating that Apple had complied with the April 2012 Order and reduced power to 5 watts ERP.29
9.
Press filed the Sunnyside Modification Petition on April 27, 2012. Press argues that the
interference caused by the Station to WKMK warranted rescission of the construction permit authorizing
operations at the Sunnyside location.30 Press also argues that the construction permit should be
rescinded because Apple failed to comply with the “on-off” testing required by the May 2011 Order, and
also because Apple was operating the Station in violation of Section 74.1234.31 Press also notes that the
April 2012 Order was sent at 5:58 p.m. on April 18, 2012, and required Apple to reduce power or cease
operations “immediately.” At 10:33 a.m. on April 19, 2012, Apple informed Press that it would reduce
power “within 30 minutes,” suggesting that the Station operated for 16 hours after the issuance of the
April 2012 Order.32 Press also argues that Apple’s candor is in question because Celenza’s April 19,
2012, email to the Bureau – in which he confirmed compliance with the April 2012 Order – did not state
that he had not reduced power until that morning, rather than “immediately.”33
10.
Glen Oaks. Apple filed the Glen Oaks Modification Application on April 25, 2012,
proposing to relocate its transmitter to an antenna located on North Shores Towers in Glen Oaks, also in


24 Reply to Opposition to Emergency Petition at 2.
25 Id
26 See Email from Harry Cole to James Bradshaw, Lauren Colby, Peter Doyle, Michael Celenza, and Richard
Morena
(Apr. 18, 2012, 4:50 p.m. EST).
27 See Email from James Bradshaw to Harry Cole, Lauren Colby, Peter Doyle, Michael Celenza, Richard Morena,
and Robert Gates
(Apr. 18, 2012, 5:57 p.m. EST) (“April 2012 Order”).
28 Id., citing 47 C.F.R. § 74.1234(a)(1) (“If the transmitter site cannot be reached promptly at all hours and in all
seasons, means shall be provided so that the transmitting apparatus can be turned on and off at will from a point
which is readily accessible at all hours and in all seasons.”).
29 See Email from Michael Celenza to James Bradshaw and Dan Huber (Apr. 19, 2012, 10:36 a.m. EST) (“Reduced
Power Email”).
30 Sunnyside Modification Petition at 6.
31 Id. at 6-7.
32 Id. at 7-9.
33 Id.
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Queens. In the application, Apple requests a waiver of Section 74.1233(a) of the Rules, which requires
that the 60 dBμ contours of the existing and proposed FM translator facilities overlap.34
11.
On May 15, 2012, Apple filed another request for silent STA (“May 2012 Silent STA
Request”), indicating that the station had been silent since May 7, 2012, “pending action on the the [sic]
minor modification application for Glen Oaks, NY application.”35
12.
Long Island City. On March 20, 2013, Apple filed the Long Island City STA Request,
seeking authority to operate the Station from a temporary site within the Station’s current 60 dBμ
contour. Apple stated that it was “currently awaiting FCC approval to relocate [the Station] to a new
location” and that “[t]he Station has been silent since May 7, 2012, as a result of an on-going dispute
with the current transmitter site landlord. The licensed site is not useable at this time.”36
13.
Press filed the STA Request Petition on April 4, 2013. Press argues that the Long Island
City STA Request would violate Section 74.1204(f) of the Rules because WKMK has three identified
listeners within the Station’s proposed 60 dBμ contour.37 Press also argues that STA request should be
denied because Apple demonstrated a lack candor with the Commission when dealing with Press’
interference complaint.38
14.
Apple resumed operations at the Sunnyside site on April 11, 2013.39 On April 16, 2013,
the Station again went silent. Apple explained that its “limited use agreement” to operate the station at
the Sunnyside site had expired at noon on April 16.40 Apple further stated that it hoped to resume
broadcasting at the site specified in the Long Island City STA Request.
15.
Expiration Petition. On May 13, 2013, Press filed the Expiration Petition in which it
contends that the Station might not have actually resumed operations from April 11 to April 16, and thus
the Station’s license might have expired pursuant to Section 312(g) of Communications Act of 1934, as
amended (“Act”).41 At that time, Apple’s transmitter was still located atop the Royal Kent building in
Sunnyside. Apple stated that, sometime around May 2012, the Fire Marshall of the New York City Fire
Department would not allow Apple’s equipment in the building’s elevator room, and the building’s
Board of Directors informed Apple that it could no longer use the building for its transmitter.42 Press
therefore questions how Apple was able to operate the transmitter between April 11 and April 16 if it did


34 Glen Oaks Modification Application at Attachment 17, Technical Statement, citing The Cromwell Group, Inc. of
Illinois
, 26 FCC Rcd 12685 (MB 2011) (“Mattoon”).
35 See File No. BLSTA-20120516AAT, Exhibit 1. The staff granted this STA request on July 27, 2012, and it was
to expire on January 23, 2013. See Letter to John C. Trent from Lisa A. Scanlan (MB Jul. 27, 2012). Apple filed an
STA extension request on January 11, 2013, which again indicated the Station was silent while awaiting action on
the Glean Oaks Modification Application. See File No. BLESTA-20130111AAD, Exhibit 2. The staff granted the
extension request, which was to expire on May 7, 2013. (Letter to John C. Trent from Lisa Scanlan, Ref 1800B3-
FMH (MB Mar. 20, 2013).
36 Long Island City STA Request at Exhibit 12.
37 STA Petition at 4.
38 Id. at 7-9.
39 See Resumption of Operations, filed April 11, 2013.
40 File No. BLSTA-20130417AAO. The staff granted this STA request on July 11, 2013. It is scheduled to expire
on January 7, 2014. See Letter to John C. Trent from Lisa A. Scanlan, Ref 1800B3-VM (MB Jul. 11, 2013).
41 47 U.S.C. § 312(g).
42 Expiration Petition at 4; Opposition to STA Petition at 5.
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not have access to the building, and asks the Commission to issue Apple an Order to Show Cause why its
translator license should not be declared to have expired.43
16.
In the Opposition to the Expiration Petition, Apple responds that it obtained permission
from the Royal Kent’s building supervisor, Kristin Maslowski (“Maslowski”), to temporarily use the
building for its transmitter on April 11, and that the transmitter was shut down on April 16.44 Apple
provides a declaration signed by Maslowksi under penalty of perjury in support of its Opposition.45
Apple also provided photographs of transmitter equipment with a copy of the April 11, 2013 edition of
Newsday, a newspaper based in Long Island.46 In its Consolidated Response, Press argues that the
declarations provided by Apple do not provide sufficient detail to determine that the Station in fact
operated between April 11 and April 16.47

III.

DISCUSSION

17.
Expiration Petition. Section 312(g) of the Act provides that “if a broadcasting station
fails to transmit broadcast signals for any consecutive 12-month period, then the station license granted
for the operation of that broadcast station expires at the end of that period, notwithstanding any provision,
term, or condition of the license to the contrary.”48 According to Apple’s silent STA requests, the Station
was initially silent from May 12, 2011, until April 6, 2012, then was silent from May 7, 2012, until April
11, 2013, and went silent again on April 16, 2013.
18.
Press has not provided any documentation to support its speculation that the Station did
not in fact resume operations. Rather, the entire basis for Press’ argument is that Apple apparently had
limited access to the transmitter site and therefore could not have operated the Station. However, Apple
provides Maslowski’s sworn declaration, which states that she allowed Apple to reinstall the equipment
for the Station, and that the Station did in fact operate from April 11 until April 16.49 We thus find that
the Station was operating during that period and its license did not expire pursuant to Section 312(g).
19.
Long Island City STA Petition. Pursuant to Sections 309(d) and (e) of the Act,50 petitions
to deny and informal objections must provide properly supported allegations of fact that, if true, would


43 Expiration Petition at 6.
44 Opposition to Expiration Petition at 3.
45 Id. at Exhibit 1, Declaration of Kristin Maslowski. Apple also provided a declaration signed, under penalty of
perjury, by Scott Hamill, who states that he assisted Apple in reinstalling the equipment at the Royal Kent and that
Station did operate. Id. at Exhibit 1, Declaration of Scott Hartill. It is unclear, however, what relation, if any, Hartill
has to Apple.
46 Id. at Exhibit 2.
47 Consolidated Response at 4-6.
48 47 U.S.C. § 312(g). See also Implementation of Section 403(l) of the Telecommunications Act of 1996,Order, 11
FCC Rcd 16599 (1996); 47 C.F.R. § 73.1740(c).
49 Opposition to Expiration Petition at Exhibit 1, Declaration of Kristin Maslowski. Maslowski is not an agent of
Apple and therefor is a disinterested witness. Because Apple has not explained Hartill’s relation to the company, we
give his declaration no consideration. See Iglesia Jesucristo Es Mi Refugio, Inc., Memorandum Opinion Order and
Notice of Apparent Liability for Forfeiture, 25 FCC Rcd 16310, 16319 (MB 2010) (petitioner’s engineering
consultant’s hearsay statement, uncorroborated by independent documentation, should be given little weight because
he was not a disinterested witness); Second Samoan Congregation Church, Letter, 23 FCC Rcd 16630, 16636 (MB
2008) (applicant’s counsel’s statements should be given little weight because he is not a disinterested witness).
50 47 U.S.C. § 309(d), (e).
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establish a substantial and material question of fact calling for further inquiry regarding whether grant of
the Assignment Application would be prima facie inconsistent with Section 309(a) of the Act.51 This
section provides that we are to grant an application if, upon consideration of the application and
pleadings and other such matters of which we may officially take notice, we find that the public interest,
convenience, and necessity will be served by the granting of such application. If, however, the applicant
fails to meet that standard, the Commission may deny the application after notice and opportunity for a
hearing under Section 309(e) of the Act.
20.
Press opposes the Long Island City STA Request on the grounds that the Station has
caused interference to WKMK at its Manhattan and Sunnyside locations, and will likely continue to
cause interference at the proposed site. Section 74.1204(a)(3) of the Rules provides that the 40 dBμ
contour of a translator station shall not overlap with the 60 dBμ contour of a full service co-channel FM
station.52 We have reviewed the Long Island City STA Request and find that the facilities proposed in
the Long Island City STA request would not result in prohibited overlap with WKMK.
21.
Additionally, we find Press has not demonstrated that the Long Island City STA Request
fails to comply with Section 74.1204(f) of the Rules.53 In promulgating Section 74.1204(f), the
Commission stated that it “will not grant an application if an objecting party provides convincing evidence
that the proposed translator station would be likely to interfere with the reception of a regularly received off-
the-air existing service, even if there is no predicted overlap.”54 In order to demonstrate that grant of an
FM translator construction permit application “will result in interference to the reception” of an existing
full-service station, an opponent must provide, at a minimum: (1) the name and specific address of each
potentially affected listener; (2) some demonstration that the address of each such listener falls within the
60 dBμ service contour of the proposed translator station;55 (3) a declaration from each such listener that
he or she listens to the full-service station at the specified location; and (4) some evidence that grant of
the authorization would result in interference to the reception of the “desired” full-service station at that
location.56
22.
Press has failed to satisfy the Section 74.1204(f) requirement to provide declarations
from specific listeners within the Long Island City STA Request’s predicted 60 dBμ service contour.
Instead, Press has merely provided a spreadsheet listing names and addresses of claimed listeners that


51 Id. § 309(a). See, e.g., WWOR-TV, Inc., Memorandum Opinion and Order, 6 FCC Rcd 193, 197 n.10 (1990), aff'd
sub nom. Garden State Broadcasting L.P. v. FCC
, 996 F.2d 386 (D.C. Cir. 1993), rehearing denied (Sept. 10,
1993); Area Christian Television, Inc., Memorandum Opinion and Order, 60 RR 2d 862, 864 (1986) (informal
objections, like petitions to deny, must contain adequate and specific factual allegations sufficient to warrant the
relief requested).
52 47 C.F.R. § 74.1204(a)(3).
53 47 C.F.R § 74.1204(f).
54 See The Association for Community Education, Inc., Memorandum Opinion and Order, 19 FCC Rcd 12682,
12685-6 (2004), citing Amendment of Part 74 of the Commission’s Rules Concerning FM Translator Stations,
Report and Order, 5 FCC Rcd 7212, 7230 (1990), modified, 6 FCC Rcd 2334 (1991), recon. denied, 8 FCC Rcd
5093 (1993)
55 The staff generally requires demonstrations of actual or potential interference from listeners within the translator
station’s proposed 60 dBμ contour who are unconnected with the full-service station whose service allegedly will be
disrupted. See Association for Community Education, Inc., 19 FCC Rcd at 12688 n.37 (approving staff practice
requiring that the complainant be “disinterested,” i.e., a person or entity without a legal stake in the outcome of the
translator station licensing proceeding).
56 Id., 19 FCC Rcd at 12687.
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allegedly filed interference complaints at the Station’s Sunnyside location. Accordingly we find Press’
proposed interference argument unsubstantiated.57
23.
Character Questions. Press also argues that the Long Island City STA Request should be
denied because Apple has allegedly shown a lack of candor in its dealings with the Commission.
Specifically, Press argues that because Apple indicated in the May 2012 Silent STA Request, and the
subsequent January 11, 2013 STA extension request, that the Station was silent pending action on the
Glen Oaks Modification Application, rather than as a result of a dispute with the Royal Kent
management.58 Press also argues that Apple showed a lack of candor because it did not reveal that it did
not have access to the transmitter site “at all times” as required by Section 74.1234.
24.
The trait of truthfulness is a key element of character qualifications necessary to operate a
broadcast station in the public interest.59 Misrepresentation and lack of candor raise immediate concerns
as to whether a licensee will be truthful in future dealings with the Commission.60 Misrepresentation is a
false statement of fact made with intent to deceive.61 Lack of candor is concealment, evasion, or other
failure to be fully informative, accompanied by intent to deceive.62 Intent can be shown in many ways.
If a licensee knowingly makes a false statement, that is sufficient proof of intent to deceive.63 Intent to
deceive can also be inferred when one has a clear motive to deceive.64 Moreover, intent can be found
when the surrounding circumstances clearly show the existence of intent to deceive, even if there is no
direct evidence of a motive.65
25.
We find that Press has not proved the requisite intent necessary to establish
misrepresentation or lack of candor. The party alleging misrepresentation or lack of candor has the
burden of proof to make a prima facie showing of intent to deceive.66 By the time Apple had filed the
May 2012 Silent STA Request, testing had already determined that the Sunnyside site was not suitable
for the Station’s transmitter because of the interference it caused WKMK.67 Moreover, the staff had


57 See Red Wolf Broadcasting Corporation, Letter, 27 FCC Rcd 4870, 4873 (MB 2012) (denying objection to a new
translator station application where objector failed to provide any declarations from specific listeners falling within
the Application's predicted 60 dBμ service contour).
58 STA Petition at 7.
59 See Policy Regarding Character Qualifications in Broadcast Licensing, Report, Order and Policy Statement, 102
FCC 2d 1179, 1210-11 (1986), recon. denied, 1 FCC Rcd 421 (1986), appeal dismissed sub nom. National
Association for Better Broadcasting v. FCC,
No. 86-1179 (D.C. Cir. Jun. 11, 1987).
60 Id.
61 See Fox River Broadcasting, Inc., Order, 93 FCC 2d 127, 129 (1983).
62 Id.
63 See Leflore Broadcasting Co., Inc. v. FCC, 636 F.2d 454, 462 (D.C. Cir. 1980) (“[T]he fact of misrepresentation
coupled with proof that the party making it had knowledge of its falsity [is] enough to justify a conclusion that there
was fraudulent intent”).
64 See, e.g., RKO General, Inc., Decision, 4 FCC Rcd 4679, 4684 (Rev. Bd. 1989).
65 See American International Development, Inc., Memorandum Opinion and Order, 86 FCC 2d 808, 816 n. 39
(1981), aff’d sub nom. KXIV, Inc. v. FCC, 704 F.2d 1294 (D.C. Cir. 1983) (stating that “the absence of direct
evidence of motive is not significant where the record otherwise clearly establishes that deceptive conduct has
occurred”).
66 See, e.g., Merrimack Valley Broadcasting, Inc., Memorandum Opinion and Order, 99 FCC 2d 680 n.9 (1984).
67 See April 2012 Order.
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already ordered Apple either to operate at reduce power or to cease operations entirely.68 Additionally,
Apple reported the dispute with its landlord in the Long Island City STA Request. Thus, we do not find
an “intent to deceive” where Apple stated it was silent because of the interference caused by the Station.
Moreover, to the extent that Apple violated Section 74.1234 of the Rules by lacking access to its
transmitter site, we are notifying Apple of its apparent liability for forfeiture, as discussed below.69
26.
Long Island City STA Request. Under Section 309(f) of the Act,70 when an appropriate
application has been filed, the Commission may grant an STA if it finds that there are extraordinary
circumstances requiring temporary operations in the public interest and that delay in the institution of
such temporary operations would seriously prejudice the public interest. In this case, we believe that the
public interest in continuing the Station’s broadcast service to residents of New York, New York, while
ending interference to WKMK, warrants resumed operation of the Station at a new site and with new
technical parameters.
27.
STA requests which involve a change in transmitter site must include four critical
elements: (1) loss of the licensed site must be beyond the licensee's control; (2) STA facilities must
continue to provide service to the licensed community; (3) STA facilities must maintain, as closely as
practicable, the licensed service area without extending it; and (4) STA facilities cannot involve the
construction of towers intended for permanent use by the station requesting the STA. Our review
indicates that the proposed STA operation complies with these criteria and we will therefore grant the
Long Island City STA Request.71
28.
Glen Oaks Modification Application. The Glen Oaks Modification Application requests
a waiver of Section 74.1233(a) of the Rules, which requires that the 60 dBμ contours of the existing and
proposed FM translator facilities overlap.72 We have granted such waivers where: (1) the translator
station does not have a history of filing “serial” minor modification applications; (2) the proposed
facility is mutually exclusive to its licensed facility; (3) the proposed move does not implicate the
concerns raised by the Commission in the recent orders in the low power FM . . . docket,73 and (4) while
not alone dispositive, the translator will rebroadcast an AM station.74 While we find the Glen Oaks
Modification Application will satisfy the first three of these criteria, Apple has indicated that the Station
will not be rebroadcasting an AM station. Apple has not explained why grant of its waiver request is
warranted in this situation. We therefore deny Apple’s waiver request and will dismiss the Glen Oaks
Modification Application.75


68 Id.
69 See infra ¶ 29.
70 47 U.S.C. § 309(f).
71 Because we are granting the Long Island City STA Request, we will dismiss as moot the Manhattan License
Petition, the Emergency Petition, the Sunnyside Petition, and the Sunnyside License Application.
72 Glen Oaks Modification Application at Attachment 17, Technical Statement, citing Mattoon, 26 FCC Rcd at
12686.
73 Creation of a Low Power Radio Service, Third Further Notice of Proposed Rulemaking, 26 FCC Rcd 9986
(2011); Fourth Report and Order and Third Order on Reconsideration, 27 FCC Rcd 3365 (2012) (subsequent history
omitted).
74 Mattoon, 26 FCC Rcd at 12686.
75See Educational Media Foundation, Letter, DA 13-2108 (MB Oct. 31, 2013) (denying waiver of Section
74.1233(a) because translator station would not rebroadcast an AM station). Press states that “[i]n view of the
Commission’s expressed concerns about serial modification application by translator licensees . . . Apple’s tendency
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DA 13-2179

29.
Proposed Forfeiture. This NAL is issued pursuant to Sections 309(k) and 503(b) of the
Act, and Section 1.80 of the Rules.76 Under Section 503(b)(1)(B) of the Act, any person who is found to
have willfully or repeatedly failed to comply with any provision of the Act or any rule, regulation, or
order issued by the Commission shall be liable to the United States for a forfeiture penalty.77 Section
312(f)(1) of the Act defines willful as “the conscious and deliberate commission or omission of [any] act,
irrespective of any intent to violate” the law.78 The legislative history to Section 312(f)(1) of the Act
clarifies that this definition of willful applies to both Sections 312 and 503(b) of the Act,79 and the
Commission has so interpreted the term in the Section 503(b) context.80 Section 312(f)(2) of the Act
provides that “[t]he term ‘repeated,’ when used with reference to the commission or omission of any act,
means the commission or omission of such act more than once or, if such commission or omission is
continuous, for more than one day.”81
30.
The Commission’s Forfeiture Policy Statement and Section 1.80 of the Rules establish a
base forfeiture amount of $3,000 for violation of transmitter control requirements.82 In determining the
appropriate forfeiture amount, we may adjust the amount upward or downward by considering the factors
enumerated in Section 503(b)(2)(D) of the Act, including “the nature, circumstances, extent and gravity
of the violation, and, with respect to the violator, the degree of culpability, any history of prior offenses,
ability to pay, and such other matters as justice may require.”83
31.
Apple has indicated that it was unable to access the Sunnyside transmitter site outside the
hours of 9:00 a.m. to 5:00 p.m., in violation of Section 74.1234(a)(1). This lasted throughout the month-
long period from April 6, 2012, to May 7, 2012. This lack of access impaired Apple’s ability to comply
with Commission orders. The record shows that – although it was ordered to “immediately” reduce the
transmitter’s power the evening of April 18, 201284 – Apple concedes that it did not do so until the
morning of April 19, 2012,85 apparently because it lacked access to the transmitter site and did not have





to gad about the FM spectrum may warrant further investigation.” Sunnyside Modification Petition at 3 n.1 and
Glen Oak Modification Petition at 3 n.1, citing Mattoon (internal citation omitted). In Mattoon, we noted that some
translator licensees were attempting to effectuate impermissible major changes by filing serial minor modification
application to “hop” to new locations that were sometimes over 100 miles away. Here, Apple’s modification
applications have been filed in response to the continued interference caused to Station WKMK. Additionally,
because we are dismissing this application, we will dismiss the Glen Oaks Petition as moot.
76 See 47 U.S.C. §§ 309(k), 503(b); 47 C.F.R. § 1.80. The Bureau has delegated authority to issue the NAL under
Section 0.283 of the Rules. See 47 C.F.R. § 0.283.
77 47 U.S.C. § 503(b)(1)(B). See also 47 C.F.R. 1.80(a)(1).
78 47 U.S.C. § 312(f)(1).
79 See H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982).
80 See Southern California Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991).
81 47 U.S.C. § 312(f)(2).
82 See Forfeiture Policy Statement and Amendment of Section 1.80(b) of the Rules to Incorporate the Forfeiture
Guidelines
, Report and Order, 12 FCC Rcd 17087, 17113-15 (1997) (“Forfeiture Policy Statement”), recon. denied,
15 FCC Rcd 303 (1999); 47 C.F.R. § 1.80(b)(4), note to paragraph (b)(4), Section I.
83 47 U.S.C. § 503(b)(2)(D); see also Forfeiture Policy Statement, 12 FCC Rcd at 17100; 47 C.F.R. § 1.80(b)(4).
84 See May 2012 Order.
85 See Reduced Power Email.
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DA 13-2179

an ability to control the transmitter remotely. Considering the record as a whole, we believe that the full
$3,000 base forfeiture is appropriate for Apple’s apparent violation.86

IV. ORDERING CLAUSES

32.
Accordingly, IT IS ORDERED, pursuant to Section 503(b) of the Communications Act
of 1934, as amended, and Section 1.80 of the Commission’s Rules, that Apple 107.1, Inc., is hereby
NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of three thousand dollars
($3,000) for its apparent willful and repeated violations of Section 74.1234(a)(1) of the Commission’s
Rules.
33.
IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission’s Rules, that,
within thirty (30) days of the release date of this NAL, Apple 107.1, Inc., SHALL PAY the full amount
of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the
proposed forfeiture.
34.
Payment of the proposed forfeiture must be made by check or similar instrument, payable
to the order of the Federal Communications Commission. The payment must include the NAL/Acct. No.
and FRN No. referenced in the caption above. Payment by check or money order may be mailed to
Federal Communications Commission, at P.O. Box 979088, St. Louis, MO 63197-9000. Payment by
overnight mail may be sent to U.S. Bank—Government Lockbox #979088, SL-MO-C2-GL, 1005
Convention Plaza, St. Louis, MO 63101. Payment by wire transfer may be made to ABA Number
021030004, receiving bank: TREAS NYC, BNF: FCC/ACV--27000001 and account number as
expressed on the remittance instrument. If completing the FCC Form 159, enter the NAL/Account
number in block number 23A (call sign/other ID), and enter the letters “FORF” in block number 24A
(payment type code). Licensee will also send electronic notification on the date said payment is made to
Tom.Hutton@fcc.gov and Alexander.Sanjenis@fcc.gov.
35.
The response, if any, must be mailed to Office of the Secretary, Federal Communications
Commission, 445 12th Street, S.W., Washington DC 20554, ATTN: Peter H. Doyle, Chief, Audio
Division, Media Bureau, and MUST INCLUDE the NAL/Acct. No. referenced above.
36.
The Commission will not consider reducing or canceling a forfeiture in response to a
claim of inability to pay unless the respondent submits: (1) federal tax returns for the most recent three-
year period; (2) financial statements prepared according to generally accepted accounting practices
(“GAAP”); or (3) some other reliable and objective documentation that accurately reflects the
respondent’s current financial status. Any claim of inability to pay must specifically identify the basis
for the claim by reference to the financial documentation submitted.
37.
Requests for full payment of the forfeiture proposed in this NAL under the installment
plan should be sent to: Associate Managing Director-Financial Operations, 445 12th Street, S.W., Room
1-A625, Washington, DC 20554.87
38.
IT IS FURTHER ORDERED that the May 13, 2013, “Petition for Determination of
License Expiration Pursuant to 47 U.S.C. § 312(g)” filed by Press Communications, Inc., IS DENIED.


86 See, e.g., Rego, Inc., Forfeiture Order, 16 FCC Rcd 16795 (EB 2001) (affirmed proposed $3,000 forfeiture where
licensee lacked remote control system to control transmitter).
87 See 47 C.F.R. § 1.1914.
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DA 13-2179

39.
IT IS FURTHER ORDERED that the April 4, 2013, “Petition to Deny or, in the
Alternative, Informal Objection” filed by Press Communications, Inc., IS DENIED.
40.
IT IS FURTHER ORDERD that the March 20, 2013, request for special temporary
authorization (File No. BSTA-20130320ABV) filed by Apple 107.1, Inc., IS GRANTED.
41.
IT IS FURTHER ORDERED that the April 25, 2012, construction permit application
(BPFT-20120425ABS) filed by Apple 107.1, Inc., IS DISMISSED.
42.
IT IS FURTHER ORDERED that the May 11, 2012, Petition to Deny filed by Press
Communications, Inc., IS DISMISSED AS MOOT.
43.
IT IS FURTHER ORDERED that the April 5, 2012, covering license application (File
No. BLFT-20120405AAK) filed by Apple 107.1 IS DISMISSED AS MOOT.
44.
IT IS FURTHER ORDERED that the April 11, 2012, “Emergency Petition for Immediate
Rescission of Construction Permit and Dismissal of License Application” filed by Press Communications,
Inc., IS DISMISSED AS MOOT.
45.
IT IS FURTHER ORDERED that the June 21, 2011 and April 27, 2012, Petitions for
Reconsideration filed by Press Communications, Inc., ARE DISMISSED AS MOOT.
46.
IT IS FURTHER ORDERED that copies of this NAL shall be sent, by First Class and
Certified Mail, Return Receipt Requested, to Apple 107.1, Inc., 41 Kathleen Crescent, Coram, NY 11727,
to its counsel, John C. Trent, Esq., Putbrese Hunsaker & Trent, P.C., 200 South Church Street,
Woodstock, VA 22664, and Daniel A. Huber, Esq., Law Office of Daniel A. Huber, Esq., 118 Michigan
Avenue, N.E., Unit J-32, Washington, DC 20017, and to Harry F. Cole, Esq., Fletcher Heald & Hildreth,
P.L.C., 1300 North 17th Street, 11th Floor, Arlington, VA 22209.
FEDERAL COMMUNICATIONS COMMISSION
Peter H. Doyle

Chief, Audio Division
Media Bureau
12

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