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WIDI(FM) Request for Deletion of Construction Permit Condition Granted

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Released: October 22, 2012

FEDERAL COMMUNICATIONS COMMISSION

445 12th STREET SW

WASHINGTON DC 20554

October 22, 2012
DA 12-1688
In Reply Refer to:
1800B3-RFB
Released: October 22, 2012
Anthony T. Lapore, Esq.
P. O. Box 823662
South Florida, FL 33082-3662
Counsel for WPRM-FM
James L. Oyster, Esq.
108 Oyster Lane
Castleton, VA 22716-9720
Counsel for WIDI
Francisco R. Montero, Esq.
Fletcher, Heald & Hildreth
1300 North 17th Street, 11th Floor
Arlington, VA 22209-2801
Counsel for WZOL
Mace Rosenstein, Esq.
Covington & Burling, LLP
1201 Pennsylvania Ave, NW
Washington, DC 20004-2401
Counsel for WUKQ-FM
Scott C. Cinnamon, Esq.
1250 Connecticut Avenue
Suite 200 #144
Washington, DC 20036
Counsel for WQML
Frank R. Jazzo, Esq.
Fletcher, Heald & Hildreth
1300 North 17th Street, 11th Floor
Arlington, VA 22209-2801
Counsel for New Santa Isabel station
In re: WPRM-FM, San Juan, PR
Facility ID No. 2875
Arso Radio Corporation
Special Temporary Authority

WIDI(FM), Quebradillas, PR
Facility ID No. 32141
Idalia Arzuaga, et al, Executrix
Estate of Jose J. Arzuaga
File No. BLH-20090610AAN
Request for Deletion of Special Operating
Condition
WZOL(FM), Las Piedras, PR
Facility ID No. 8898
Radio Sol 92, WZOL, Inc.
File No. BLH-20120514ADR
Request for Deletion of Special Operating
Condition

Petition to Deny

WUKQ-FM, Mayaguez, PR
Facility ID No. 54818
WLII/WSUR License Partnership, G.P.
File No. BPH-20080208AEW
WQML(FM), Culebra, PR
Facility ID No. 183333
Western New Life, Inc
File No. BMPH-20101202ABW
Request for Deletion of Special Operating
Condition
NEW(FM), Santa Isabel, PR
Facility ID No. 77881
Amor Radio Group
File No. BPH-19950907MD
Dear Counsel:
This letter is in reference to: (1) the above captioned June 10, 2009 license application (“License”)
and the December 27, 2011, Request for Order to Require Stations to Change Channels and Deletion of
Condition on Construction Permit (“Request”) filed by Idalia Arzuaga, et al, Executrix, Estate of Jose J.
Arzuaga (“Arzuaga”); (2) the February 2, 2012, Consolidated Opposition to Petition to Deny1 and to
“Request for Order to Require Stations to Change Channels and Deletion of Condition on Construction
Permit “ (“Opposition”) filed by WLII/WSUR License Partnership, G.P. (“WLII/WSUR”); (3) the
February 7, 2012, Consolidated Opposition to Petition to Deny and to “Request for Order to Require
Stations to Change Channels and Deletion of Condition on Construction Permit” (“Opposition”) filed by
Arso Radio Corporation (“Arso”); (4) the above captioned May 14, 2012 license application (“License”)
containing a Request for Waiver of Special Operating Condition No. 9 (“Request”) filed by Radio Sol 92,
WZOL, Inc. (“Radio Sol”); (5) the May 16, 2012, Extension of Special Temporary Authority (“Channel
253 STA Request”) filed by Arso; (6) the May 29, 2012, Request for Deletion of Special Operating
Conditions 3 and 4 (“Deletion Request”) filed by Western New Life, Inc (“Western”); (7) the June 11,


1 This Opposition was filed in response to a January 3, 2012, Petition to Deny filed by Arzuaga against the WPRM-
FM and the WUKQ-FM renewal applications (BRH-20110926AEN and BRH-20110929AFO, respectively). This
pleading will be addressed separately in the context of the renewal proceedings.
2

2012, Petition to Deny (“Petition”) filed against WZOL’s license application by Arso; (8) the June 28,
2012, Opposition to Request for Deletion of Special Operating Conditions 3 and 4 (“Opposition”) filed by
Arso; and (9) all other related pleadings. For the reasons set forth below, we grant Arso’s STA Request
but establish an expiration date for the STA 30 days from the date of this letter, grant the Requests and
remove all Special Operating Conditions relating to WPRM-FM, San Juan, PR, from all affected parties
effective with the expiration date of the WPRM-FM STA, and deny the Arso Petiton and grant the WIDI
and WZOL licenses effective that same date.

Background.

In June 1995, the Audio Division issued a Report and Order modifying the licenses
of: (1) Station WPRM-FM to specify Channel 256B at San Juan, PR, in lieu of Channel 253B; (2) Station
WIDI to specify Channel 258B at Quebradillas, PR, in lieu of Channel 252A; (3) Station WZOL to specify
Channel 252A at Las Piedras, PR, in lieu of Channel 255B at Vieques, PR.; and (4) Station WUKQ to
specify Channel 254B at Mayaguez, PR, in lieu of Channel 256B.2
Arso, licensee of WPRM-FM, San Juan, PR, obtained a construction permit in August 2006 to
implement its channel change (“WPRM Permit”).3 Arzuaga, licensee of WIDI(FM), Quebradillas, PR,
received a construction permit in November 1997, to change channels and upgrade its class (“WIDI
Permit”).4 Radio Sol, licensee of WZOL(FM), was granted a construction permit in January 1999 to modify
its city of license and change channels (“WZOL Permit”).5 WLII/WSUR, licensee of WUKQ(FM),
Mayaguez, PR, obtained a construction permit in August 2008, to implement its channel change
(“WUKQ Permit”).6 Western, permitee of WQML(FM), Culebra, PR, received a construction permit in
December 2009, to propose new service to Charlotte Amalie, VI (“WQML Permit”).7 Amor Radio Group
(“Amor”), permitee of a new station to serve Santa Isabel, PR, was granted its initial construction permit
in September 2011 (“Amor Permit”).8
The WPRM Permit included Special Operating Condition Nos. 4 and 5 which prohibits
implementing operations until WUKQ and WZOL initiate broadcasts with their outstanding Permits. The
WIDI Permit contained Special Operating Condition No. 1 which prohibits implementing operations until
WUKQ initiates broadcasts with its outstanding Permit. The WZOL Permit, as modified, the WUKQ
Permit, the WQML Permit, as last modified, and the Amor Permit, included Special Operating Conditions9


2 Amendments of Table of Allotments, FM Broadcast Stations in Puerto Rico and the Virgin Islands, Report and
Order, 10 FCC Rcd 6673 (1995) (“Puerto Rico R&O”). See also Memorandum Opinion and Order, 11 FCC 16392
(1996), Memorandum Opinion and Order, 12 FCC Rcd 10055 (1997), and Memorandum Opinion and Order, 64 FR
48307 (1999).
3 File No. BPH-20060330AAF
4 File No. BPH-19950807ID
5 File No. BPH-19980831IB. This permit was subsequently modified in BMPH-20080606AEW and granted in July
2008.
6 File No. BPH-20080208AEW
7 File No. BNPH-20091013ABF. This permit was subsequently modified in BMPH-20100618ANW and granted in
July 2010. This permit was further modified to specify Culebra, PR as it community of license in BMPH-
20101202ABW, which was granted in December 2011.
8 File No. BPH-19950907MD
9 Special Operating Condition No. 9 for the WZOL Permit; Special Operating Condition No. 2 for the WUKQ
Permit; Special Operating Condition for the WQML Permit; and Special Operating Condition No. 6 for the Amor
Permit.
3

that prohibit each station from implementing operations until WPRM initiates broadcasts with the its
outstanding Permit.
In its Request, Arzuaga claims that Arso and WLII/WSUR have done nothing to effectuate the
changes ordered by the Commission in 1995 and that Arso’s failure to do so has prevented it from initiating
WIDI operations with the facilities built in 2009. Therefore, Arzuaga requests that the Commission issue an
order requiring WUKQ and WPRM to implement the channel changes listed in the Puerto Rico R&O
within 30 days and allow WIDI to commence program test authority in accordance with its license
application after this period. In its Opposition, WLII/WSUR states that it will complete construction of
WUKQ’s modified facilities as soon as the condition regarding the prior activation of WPRM is satisfied
or waived.
In its Opposition, Arso states, that it must acquire a new antenna before WPRM can initiate
operations on Channel 256. It also claims that the benefitting parties10 have stymied its acquisition of the
needed antenna by their “inability” to pay Arso the expenses associated with MM Docket 91-259. In
addition, Arso states that it has been unable to fully reconstruct WPRM’s tower, which was destroyed by
Hurricanes Hanna and Ike in 2008, because it is still awaiting the delivery of approximately 75 feet of
steel for the top of the tower. In November 2008, Arso obtained a technical STA to operate with an
emergency antenna on Channel 253B at its auxiliary transmitter site.11 In November 2011, Arso was
granted a technical STA to relocate to the new partially reconstructed tower but at a reduced height.12
Arso believes that Arzuaga should be compelled to provide assurance of final payment to Arso and
WLII/WSUR before implementing the channel change required by the Puerto Rico R&O.
In its Request, Radio Sol states that it is prepared to reimburse the appropriate share of all of Arso’s
reasonable out-of-pocket costs and commence operations immediately if the waiver is granted. Radio Sol
cites the Letter to Brian M. Madden, Esq.,13 where the Audio Division deleted a special operating condition
from a construction permit after four years where a licensee had failed to implement a facility change.
Radio Sol asserts that it has waited over 15 years for Arso to change the WPRM channels and claims that
Arso’s “foot-dragging” has blocked the facility modifications of Stations WIDI, WUKQ, WQML, and the
new Santa Isabel station.
In its Channel 253 STA Request, Arso asks for a 180-day extension of its Channel 253 STA. Arso
states that it has made substantial progress towards restoration of its licensed facilities. Arso claims that,
since the last STA extension, it has received confirmation of the order for the remaining steel from another
manufacturer and has pursued a quote from antenna manufacturer ERI for a combined optimized tower
structure element and antenna.
In its Deletion Request, Western states that the Commission’s order directing WPRM to move to
Channel 256 became final in 1999. Western claims that WPRM’s continuing operations on Channel 253 are
at best under an “implied STA” and are not protected in the same manner as licensed operations. Therefore,


10 Arso claims that Arzuaga, Radio Sol, Amor, and VI Stereo Communications Corp. are the benefiting parties. See
also Puerto Rico R&O
, 10 FCC Rcd at 6677 (listing parties required to share in the reimbursement of reasonable
costs associated the with the channel changes of WPRM and WKJB (now WUKQ-FM)).
11 See original STA request BSTA-20081003AEZ, granted November 17, 2008; and extension requests BESTA-
20090514AAA, granted August 5, 2009; BESTA-20100120ABO, granted March 11, 2010; BESTA-20100823ABN,
granted September 14, 2010; and BESTA-20110301AAM, granted May 11, 2011.
12 See BSTA-20111102AEN and Letter to Anthony T. Lepore, Esq., dated November 18, 2011.
13 Letter to Brian M. Madden, Esq. and Lewis J. Paper, Esq., 25 FCC Rcd 4765 (2010)
4

Western asks that its Deletion Request be granted so that it can seek Program Test Authority at its new
facilities immediately upon completion of construction.
In its Petition, 14 Arso claims that it cannot complete construction of the facilities authorized in the
WPRM Permit until the damage to its main broadcast tower is repaired. Furthermore, Arso cautions that the
grant of Radio Sol’s Request will result in multiple instances of significant cross-interference among
multiple stations. Finally, Arso insists that all the parties should simultaneously transition to its new
channels once the reimbursement issues are resolved with finality and all of the parties satisfy their
obligations.

Discussion

: In 1999, the Commission clarified the protection rights of stations which modify their
channels. It stated that “[a]fter the allotment rule making has become final, the affected station has at best
an ‘implied STA’ to remain on its old frequency until it is ready for operation on its new frequency.”15
STAs are not within the scope of assignments and allotments which receive protection under the FM non-
reserved band technical rules.16 That is, stations operating with STAs – expressed or implied – are entitled
to no protection from operating stations, construction permits, pending applications or subsequently filed
applications. Thus, the Audio Division has noted that a station operating with an implied STA “would be
subject to established cut-off and application conflicts processing policies with regard to any facility
application or rulemaking proposal filed on or after the effective date of the order.”17 Each of the Channel
253 technical STAs granted to Arso since 2008 is predicated on the fact that it retains an “implied STA” to
operate on its old channel.
Arso filed the application for the WPRM Permit on Channel 256 seven years after the Puerto Rico
R&O became final in 1999. In addition, this Permit was issued over six years ago in 2006. Arso has had
ample time to commence operation on the new channel and to repair facilities damaged in the 2007 and
2008 hurricanes. Furthermore, Arzuaga, Radio Sol, and WLII/WSUR, have indicated that they are ready
to effectuate the rulemaking and operate on their new channels. Western has also filed its Request to do
the same. Finally, Amor is also blocked from initiating new station operations by WPRM’s continued
transmissions on Channel 253B. Thus, we now conclude that deletion of each station’s respective Special
Operating Condition18 is in the public interest. Arso lost all protection rights for WPRM’s formerly licensed
channel when the Puerto Rico R&O became a final order. Accordingly, deletion of the special operating
conditions does not constitute a modification of the WPRM license subject to the order to show cause
procedures set forth in Section 316(a) of the Communications Act of 1934, as amended (the “Act”).19
We find that Arso has had sufficient time to initiate operations on Channel 256B and we direct Arso
to expeditiously complete construction of the facilities authorized in the WPRM Permit. We remind Arso


14 Arso filed a similar response in its June 28, 2012 Opposition.
15 1998 Biennial Regulatory Review – Streamlining of Mass Media Applications, Rules, and Processes,
Memorandum Opinion and Order, 14 FCC Rcd. 17525, 17540 n.55 (1999) (subsequent history omitted) (the
Streamlining Order”).
16 See 47 C.F.R. §§ 73.207, 73.213 and 73.215.
17 Gunnison, Crawford, and Olathe, Breckenridge, Eagle, Fort Morgan, Greenwood Village, Loveland and
Strasburg, CO, and Laramie, WY,
Memorandum Opinion and Order, 20 FCC Rcd 5908, 5913 (MB 2005).
18 Special Operating Condition No. 9 for the WZOL Permit; Special Operating Condition No. 2 for the WUKQ
Permit; Special Operating Condition No. 4 for the WQML Permit; and Special Operating Condition No. 6 for the
Amor Permit.
19 See 47 U.S.C. § 316(a) (Commission may not modify the license of a station without providing licensee written
notice and a reasonable opportunity to protest).
5

that the Commission has stated that “implicit in the filing of any facility application is that the applicant
stands ‘ready, willing, and able’ to construct and operate as proposed.”20 Neither a difficult economic
environment nor an inability to reach agreement with the other parties regarding reimbursement issues
relieves Arso from its obligation to complete construction in a timely fashion. Arso accepted the
construction and licensing obligations arising from the finality of the Puerto Rico R&O.
The Commission delegated authority to the staff to cancel implied STAs for any modifications
made in the course of “allotment rule makings.”21 Moreover, pursuant to Section 73.1635(b) of the
Commission’s Rules, the staff may modify or cancel a technical STA without prior notice or right to
hearing.22 The staff has cancelled such STAs in the past when this action is necessary to accommodate the
operation of an FM station pursuant to its authorization.23 At this point, Arso’s refusal to complete the
authorized modification of WPRM is thwarting five stations’ efforts to implement their facility
modifications. Thus, Arso’s nonfeasance in the face of these many long-standing competing demands for
limited spectrum is plainly contrary to the public interest.
Accordingly, in order to permit the orderly completion of the WPRM modifications, we will grant
Arso’s Channel 253 STA Request to continue to operate on Channel 253B for a period not to exceed 30
days from the date of this letter. This action will provide Arso a final opportunity to implement facilities on
Channel 256B. After this period, Arso will be required to cease operation on Channel 253. If Arso cannot
commence operations in accordance with the WPRM Permit24 within 30 days, it may seek a technical STA
for temporary operations on Channel 256. This will eliminate the potential for cross interference and also
provide sufficient time for the other stations in the Puerto Rico R&O to orderly transition to their new
channels. We also will grant the Arzuaga Request, the Radio Sol Request, and the Western Deletion
Request, effective upon the expiration of the Arso STA or the commencement of WRPM-FM operations
on Channel 256, whichever occurs first. Moreover, we will grant the Arzuaga License and the Radio Sol
License, and reissue the construction permits of Stations WUKQ, WQML, and the new Santa Isabel
facility.

Conclusion:

In light of the above, the May 16, 2012, Extension of Special Temporary Authority
filed by Arso IS GRANTED TO THE EXTENT INDICATED HEREIN. This authority expires on

November 21, 2012.

Requests for additional time will not be entertained. Station WPRM may continue
to operate with the following facilities:


20 Pathfinder Communications Corp., 18 FCC Rcd 9272, 9279 (2003).
21 Streamlining Order, 14 FCC Rcd at 17540 n.55.
22 See 47 C.F.R. § 73.1635(b).
23 See Corona de Tucson, Sierra Vista, Tanque Verde and Vail, AZ, and Animas, Lordsburg and Virden, NM,
Memorandum Opinion and Order, 23 FCC Rcd 4792, 4796 (MB 2008).
24 File No. BPH-20060330AAF.
6

Geographic coordinates:
18° 6´ 47˝ N, 66° 3´ 6˝ W (NAD 1927)
Channel
253 (98.5 MHz)
Effective radiated power:
25 kilowatts (H&V)
Antenna height:
above ground:
34 meters
above mean sea level:
914 meters
Above average terrain:
557 meters
Arso must use whatever means are necessary to protect workers and the public from exposure to radio
frequency radiation in excess of the Commission's exposure guidelines.25
Effective

November 21, 2012,

IT IS ORDERED, that the December 27, 2011, Request for Order
to Require Stations to Change Channels and Deletion of Condition on Construction Permit IS GRANTED
to the extent noted herein and IS DENIED in all other respects. IT IS FURTHER ORDERED, that the
May 15, 2012, Waiver of Special Operating Condition No. 9 IS GRANTED to the extent noted herein
and IS DENIED in all other respects. IT IS FURTHER ORDERED, that the May 29, 2012, Request for
Deletion of Special Operating Conditions 3 and 4 IS GRANTED to the extent noted herein and IS
DENIED in all other respects. Reissued WUKQ, WQML, and Amor construction permits will be mailed
to each respective permitee under separate cover. IT IS FURTHER ORDERED, that the June 11, 2012,
Petition to Deny filed by Arso against WZOL’s license IS DENIED. Finally, a license will be granted for
WIDI and WZOL on November 21, 2012.
Sincerely,
Peter H. Doyle
Chief, Audio Division
Media Bureau


25 See 47 C.F.R. § 1.1310.
7

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