WPCF 2BET 3|P) X-#XP\  P6Q DXP#Times New Roman (TT)nal)HPLAS4.WRSSx  @,,$`X@2@3P ZZ3|PTimes New Roman (TT)Times New Roman (Bold) (TT)6QXP#HP LaserJet 4/4Mditional)HPLAS4.WRSSC\  P6Q,,$`Pxxf8.8NS8JSJSJ8SS..S.SSSS8A.SSxSSJP!PZ*8888C8SSxJxJxJxJxJooJfJfJfJfJ8.8.8.8.xSxSxSxSxSxSxSxSxSxSxJxSxSxSxSxS]SxSxJxJoJoJfJfJfJxSxSxSxSxSCS8S888SAxSx]AN:*KS8JSSSSS.4}}S2S}288JJS88SS8J82N8\\^C`^SS`*8DSS88S^*8*.SSSSSSSSSS..^^^Jxooxf]xx8Axfxx]xo]fxxxxf8.8NS8JSJSJ8SS..S.SSSS8A.SSxSSJP!PZv8SJSS8]888JJ:S8A8xx*8SSSS!S8.S^8SC\228`K*824S}}}Jxxxxxxoffff8888xxxxxxx^xxxxxx]SJJJJJJoJJJJJ....SSSSSSS\SSSSSSSHP LaserJet 4Si/4Si MX_LPT1oom 344HPLA4SMX.WRSC\  P6Q,,#dP2vvpkmTimes New Roman (TT)Times New Roman (Bold) (TT)Times New Roman (Italic) (TT)Times New Roman (Bold Italic) (TT)a8DocumentgDocument Style StyleXX` `  ` a4DocumentgDocument Style Style . a6DocumentgDocument Style Style GX  2 k uvta5DocumentgDocument Style Style }X(# a2DocumentgDocument Style Style<o   ?  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A. a.(1)(a) i) a)Documentg2ehPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:dYzzzzCCCCqodYYYYYYYYYYY8888dddddddndddddddy.C8*XC\  P6QP7PC2X DXP\  P6QXP.7UC2XxXU4  pQXW!0(X h0\  P6QhPI(!XI,(\  P6Q,P             8Co8odooYNCodddYO,OhCddddCoCCCddFdCNC2Cdddd,dCd<d<CCoodCCddCoCddzzzzzzzzzzCCCCozdddddddYYYYY8888dddddddndddddYd"5^2Nodd8CCdr2C28ddddddddddCCrrrdNdzzozzzC8CrdCddYdYCdo88d8odddNN8oYdYNF,Fr2CCCCPCdddddddYYYYYN8N8N8N8oddddoooozYddddzYdzddddYYYYYdddooPdNdNCNdddoNNF2ddNdddddd5d<d<CCYYdCCddCYCdYzzzzCCCCqodYYYYYYYYYYY8888dddddddnddddddd2F@=@G@@Cm#"5@^2Coddȧ8CCdr2C28ddddddddddCCrrrdzNdzoȐC8CtdCdoYoYCdo8Co8odooYNCodddYO,Oh2CC!CCPRCdodddddȐYYYYYN8N8N8N8oddddooooddoddddzodddYYYYYYddddooPoNoNCNodo8RoodȐYYoNoNNF2ldCdddddd yO=#- xԍ WMBX(FM) previously operated under the call letters WHLG(FM). However, we will refer to the station by its current call sign. Jensen Beach, Florida. ARSC subsequently assigned its rights to  xpurchase these stations to PBR. PBR then filed assignment applications in order to acquire the  xkstations, which were granted by the Commission staff. The application for WPBZ(FM) was  x=granted on April 27, 1995 and the applications for WSTU(AM) and WMBX(FM) were granted  xzon January 18, 1996. PBR consummated the acquisition of WPBZ(FM) on July 1, 1995. The acquisitions of WSTU(AM) and WMBX(FM) were consummated on March 15, 1996. ":& ,**qq%"Ԍ xPBR entered into financing agreements with ARSC in connection with its acquisition of these  xjstations. The financing included two note purchase agreements: the first, for WPBZ(FM), was  xzexecuted on June 30, 1995; the second, for WSTU(AM) and WMBX(FM), was executed on  xMarch 15, 1996. The financing agreements between ARSC and PBR included options which  xwould permit ARSC to acquire the stations. In addition, ARSC had the right to a reasonable  xopportunity to review and approve PBR's annual budgets, as well as the right to review changes  x>in the senior management of the stations, which could not be implemented without ARSC's  xZapproval. Security, stock pledge and shareholder agreements were also executed at the same time  xas the note purchase agreements. However, the financing agreements related to PBR's acquisition  xof the West Palm Beach stations were not timely filed with the Commission, although the provisions of 47 C.F.R.  73.3613 required PBR to make these filings.  xWhen PBR acquired WPBZ(FM) in July 1995, the station's studios and offices were relocated  xto space in West Palm Beach that was leased from ARSC. The offices and studios for one of  x-ARSC's West Palm Beach stations were also at this location. In addition, ARSC's sales staff sold  x=advertising time for WPBZ(FM) under the terms of a joint sales agreement, which was in place from July 1, 1995 until October 31, 1996.  xWhen PBR acquired WSTU(AM) and WMBX(FM) on March 15, 1996, the stations initially had  xseparate offices and studios in Stuart, Florida. However, in August 1996, ARSC moved its West  xkPalm Beach stations to new studio and office facilities, located at the Northpoint complex in  x.West Palm Beach ("Northpoint"). WPBZ(FM) moved to Northpoint at the same time, to space  xleased from ARSC. In February 1997, WMBX(FM)'s operations were also moved to Northpoint.  xLWSTU(AM) was not relocated to Northpoint; PBR had sold the station to a party unrelated to  X-ARSC in November 1996. yOQ- xԍ The sale of WSTU(AM) to MMM, Inc. was approved by the Commission staff on October 18, 1996, and consummated on November 4, 1996.  x.ARSC and PBR concede that ARSC's involvement in the operation of PBR's West Palm Beach  x[stations resulted in an unauthorized transfer of control. However, ARSC and PBR state that in  xxbeginning in late August and September 1997, steps were taken to separate the operations of their  xrespective stations at Northpoint and to ensure that PBR is in control of its stations, in accordance with the requirements of the Act and the Commission's rules.  X - (DISCUSSION ă  xWe have reviewed the entire record before us, including the joint filings made by PBR and  xARSC. As discussed in more detail below, we find no intent to deceive, and thus no substantial  xand material question of fact concerning misrepresentation or lack of candor based on PBR's  xfailure to disclose the financing agreements between PBR and ARSC in assignment applications  xrelated to PBR's acquisition of WPBZ(FM), WSTU(AM), and WPBZ(FM). However, it appears  xthat PBR violated the provisions of 47 C.F.R.  73.3613 by failing to timely file documents  xrelated to these financing agreements. Moreover, it appears that PBR abdicated control of its"h$ ,))qqF#"  xjWest Palm Beach stations to ARSC, in violation of the provisions of Section 310(d) of the Act  xand Section 73.3540(a) of the Commission's rules, 47 C.F.R.  73.3540(a). Nevertheless, we do  x]not believe that these violations put in issue PBR's basic qualifications to be or remain a  x[Commission licensee. Instead, we have determined that PBR's misconduct justifies a forfeiture  X- xin the amount of $18,500 for the apparent violations of Section 310(d) of the Act, and for the  xMapparent violations of 47 C.F.R.  73.3540(a) and 47 C.F.R.  73.3613(b) of the Commission's  Xv-rules. ?v yO- xԍ We are also issuing a separate Notice of Apparent Liability for a Forfeiture to ARSC for apparent violations  xof Section 310(d) of the Act and 47 C.F.R.  73.3540(a) as well as for apparent violations of the Commission's  xmultiple ownership rules, 47 C.F.R.  73.3555(a), that resulted when ARSC assumed control of PBR's West Palm Beach stations. However, we also find that these violations do not put in issue ARSC's basic qualifications.  yO -  ?  X_-   XH-Failure to Disclose   and File Contracts Affecting Ownership  x-The application for the assignment of a broadcast license, FCC Form 314, includes questions that  xrequire the disclosure of certain financing agreements. Specifically, Section II, Question 15 of  xFCC Form 314 asks whether there are any documents, instruments, contracts or understandings  xrelating to ownership or future ownership rights in the station assigned or in the stock of the  xNlicensee, including options. Question 16, Section II, FCC Form 314 requests information  xxconcerning the pledge of stock as security for loans. The financing agreements between PBR and  xARSC included both options and stock pledges. In the assignment applications that PBR filed  xin order to acquire the licenses of WPBZ(FM), WSTU(AM) and WMBX(FM), PBR answered  xQuestion 15 in the negative, indicating that there were no such agreements as to future  xownership. PBR answered Question 16 by indicating that it did not apply, and thus that there was no pledge of stock as security for any loan related to its acquisition of these stations.  xFirst, with respect to PBR's acquisition of WPBZ(FM), the record indicates that in early February  xL1995, ARSC sent a written proposal concerning the assignment of its rights under the contract  x[for the acquisition of WPBZ(FM) to two of PBR's principals, who had previously expressed an  xinterest in the station. The proposal provided for loans from ARSC to finance PBR's acquisition  xand operation of WPBZ(FM). However, no other documents, such as a letter of intent, were prepared, executed or exchanged, and PBR did not respond in writing to ARSC's initial proposal.  xInstead, by the time that the assignment application was filed on February 23, 1995, there was  xa preliminary oral understanding that ARSC would make a loan to PBR and would eventually  x{participate in WPBZ(FM)'s appreciation. In this regard, ARSC and the principals of PBR  xKpreviously had been involved in other business dealings. Based on this established relationship,  xKthe parties contemplated that the final terms of their agreement would be negotiated later and that  xfinancing documents would be executed around the time of the closing of the WPBZ(FM)  xassignment. Gary Hess, who at the time was PBR's Vice President, had disclosed to counsel the  xypreliminary discussions with ARSC concerning the financing for its acquisition of WPBZ(FM).  xHowever, because there was only an oral understanding that did not specifically define any future  xKownership rights, and no written agreements had been negotiated, prepared, or executed, counsel""x,))qq!"  xxwho prepared the assignment application answered Question 15 by checking "no," indicating that  xthere were no agreements as to the future ownership of the station or of PBR's stock. The  x[agreements between ARSC and PBR were not negotiated until June 1995, after the WPBZ(FM) assignment application had been granted.  xMoreover, PBR had changed counsel soon after the WPBZ(FM) assignment application was filed.  xThe New York office of this law firm handled PBR's closing on the acquisition of WPBZ(FM)  xon July 1, 1995. In September 1995, PBR filed applications to acquire WSTU(AM) and  xzWMBX(FM). However, a different attorney, in the firm's Washington office, prepared these  xzassignment applications. At the time, PBR and ARSC had not reached any new agreements  xyconcerning financing for PBR's acquisition of WSTU(AM) and WMBX(FM) or concerning the  xterms of ARSC's future ownership rights in those stations. The attorney who prepared the  xLWSTU(AM) and WMBX(FM) assignment applications believed that the agreements that PBR  xjhad previously entered into with ARSC covered only the acquisition of WPBZ(FM). Mr. Hess,  xthe PBR principal who signed the assignment applications, also considered PBR's agreements with ARSC only insofar as they affected WPBZ(FM).  x However, the earlier agreements between ARSC and PBR for WPBZ(FM) included options  xthrough which ARSC could acquire PBR's stock as well as the pledge of PBR's stock as security  x[for the loan made by ARSC. The stock option and stock pledge should have been disclosed in  xQuestions 15 and 16 on the assignment applications for WSTU(AM) and WPBZ(FM). Thus, as  xPBR acknowledges, incorrect responses were given to Questions 15 and 16 on these assignment  xapplications. Nevertheless, PBR points out that in December 1995, the New York office of its  xlaw firm forwarded the WPBZ(FM) financing documents to Washington. Thereafter, in January  x1996, while the assignment applications for WSTU(AM) and WMBX(FM) were pending, PBR's  X- xKcounsel in Washington filed with the Commission the shareholder and stock pledge agreements. yO:- xԍ This filing did not occur in December because the Commission was closed during a temporary shutdown of some federal government agencies.  xThese agreements reference the loan made by ARSC to finance PBR's acquisition of WPBZ(FM) as well as the stock pledge and ARSC's options.  xzWe find that PBR had no intent to deceive the Commission by giving inaccurate answers to  xquestions on the FCC Form 314 assignment applications for WPBZ(FM), WSTU(AM) and  x@WMBX(FM) and by failing to disclose ARSC's options and future ownership rights.  x@Misrepresentation is characterized by making a material false statement of fact to the  X - xCommission, while lack of candor is characterized by the failure to disclose material information.  X- x0See Fox River Broadcasting, Inc., 93 FCC 2d 127, 129 (1983). An intent to deceive is an  X- xjessential component of both. See Pinelands, Inc., 7 FCC Rcd 6058, 6065 (1992). Here, because  x.we find that the record as a whole demonstrates that PBR had no intent to deceive, there is no substantial and material question of fact concerning misrepresentation or lack of candor.  xLWe believe that PBR, in its assignment application for WPBZ(FM), should have indicated that  xZARSC would have future ownership rights, even though the final terms of the agreement between"l$ ,))qqF#"  X- xPBR and ARSC had yet to be specifically determined. yOy- xԍ Question 16, concerning the pledge of stock, was not answered incorrectly in the WPBZ(FM) assignment application. At the time that the application was filed, no stock pledge agreement had been executed.  The record indicates discussions moved  xrapidly and that there were only a few weeks between ARSC's initial written proposal and the  xfiling of the WPBZ(FM) application based on the parties' oral agreement. Nevertheless, PBR  xbrought these matters to counsel's attention when the application for WPBZ(FM) was being  xprepared. Under these circumstances, we believe that there was no intentional lack of candor or  x.misrepresentation, especially in light of the Commission's stated reluctance to impute a lack of  Xv- xcandor to an applicant where the record shows good faith reliance on counsel. See, e.g., WEBR  Xa- xlv. FCC, 420 F.2d 158, 16768 (D.C. Cir. 1969)(good faith reliance on counsel is relevant to  XL- x candor determination); Abacus Broadcasting Corp., 8 FCC Rcd 5110, 5113 (Rev. Bd. 1993).  xMoreover, the filing of the shareholder and stock pledge agreements while the WSTU(AM) and  xMWMBX(FM) assignment applications were pending is inconsistent with a finding that PBR  xintentionally made misrepresentations or concealed its agreements with ARSC in the inaccurate  xZanswers given in these assignment applications. We note that the WSTU(AM) and WMBX(FM)  xxassignment applications should have been amended to correct the responses to Questions 15 and  xj16 at the same time that the shareholder and stock pledge agreements were filed. However, the  x=record also indicates that the failure to do so was based on counsel's erroneous belief that the  X-agreements related only to the financing for WPBZ(FM). Id.  xAlthough we conclude that there is no substantial and material question of fact as to whether  xPBR intentionally misrepresented or concealed its agreements with ARSC in the assignment  xapplications for WPBZ(FM), WSTU(AM) and WMBX(FM), we note that pursuant to Section  x\73.3613 of the Commission's rules, a licensee must file with the Commission, within 30 days  xof execution, "contracts, instruments or documents relating to the present or future ownership or  X- xLcontrol of the licensee," including option agreements. 47 C.F.R.  73.3613(b). See, e.g., KDLT X- xTV 55, Inc., 8 FCC Rcd 6316 (1993). The record here indicates that PBR failed to file the  xLdocuments required by Section 73.3613(b) in a timely manner. PBR did not file the shareholder  x[and stock pledge agreements associated with its acquisition of WPBZ(FM) until January 1996,  xjmore than 30 days after these agreements were executed. Furthermore, it was not until after we  xjcommenced our inquiry that PBR filed the note purchase agreements associated with the loans  xlmade by ARSC for its acquisition of WPBZ(FM), WSTU(AM) and WMBX(FM) and the  xagreement that amended the shareholder, security and stock pledge agreements to incorporate the  x0terms of the loan for WSTU(AM) and WMBX(FM). Again, however, PBR had filed the  xshareholder and stock pledge agreements in January 1996, and these agreements referenced the  xloan for WPBZ as well as the pledge of stock to ARSC and ARSC's options. Therefore, we also  xfind that there is no substantial and material question of fact as to whether PBR's failure to  xKcomply with Section 73.3613(b) reflected an intention to conceal these agreements. Nevertheless,  X - x^a forfeiture is warranted.  See, e.g., WASVTV, 10 FCC Rcd 7611, 7613 (MMB 1991)(no  ximproper motive or intent to deceive based on delay in filing agreements required under Section"! ,))qq "  X-73.3613(b), but delay constitutes rule violation for which a forfeiture is assessed).  yOy- xxԍ PBR claims that Section 73.3613(b) does not require the filing of the security agreement associated with its  xacquisition of WPBZ(FM). We disagree, because the agreement includes the license of WPBZ(FM) as security for  xthe loan made by ARSC to finance the station's acquisition. Therefore, PBR is directed to file the security agreement with the Commission within ten (10) days of the date of this letter.  X< Unauthorized Transfer of De Facto Control Section 310(d) of the Act, states, in pertinent part: xNo construction permit or station license, or any rights thereunder, xshall be transferred, assigned, or disposed of in any manner, xvoluntarily or involuntarily, directly or indirectly, or by transfer of xcontrol of any corporation holding such permit or license, to any xperson except upon application to the Commission and upon xfinding by the Commission that the public interest, convenience, xand necessity will be served thereby.  X - x/47 U.S.C.  310(d); see also 47 C.F.R.  73.3540(a)(implementing the statutory provisions of  xSection 310(d) and prohibiting the voluntary assignment or transfer of control of a broadcast permit or license without prior Commission consent).  Xe- xAlthough there is no formula for evaluating whether a party is in de facto, or actual, control, see,  XP- xe.g., Stereo Broadcasters, Inc., 55 FCC 2d 819, 821 (1975), modified, 59 FCC 2d 1002 (1976),  xwe look to whether a new entity has obtained the right to determine the basic operating policies  xof the station, that is, to affect decisions concerning the personnel, programming or finances of  X - xthe station. See WHDH, Inc., 17 FCC 2d 856 (1969), aff'd sub nom. Greater Boston Television  X- xCorp. v. FCC, 444 F.2d 841 (D.C. Cir. 1970), cert. denied, 403 U.S. 923 (1971). A licensee may  X- xdelegate certain functions on a daytoday basis to an agent or employee, e.g., Southwest Texas  X- xlPublic Broadcasting Council, 85 FCC 2d 713, 715 (1981), but such delegation cannot be  xKwholesale. That is, those parties delegated a task must be guided by policies set by the permittee  X-or licensee. See David A. Davila, 6 FCC Rcd 2897, 2899 (1991).  xHere, the record indicates that terms of the financing agreements themselves exceeded generally  xacceptable boundaries for loan agreements. In this regard, ARSC had the right to review and  XH- xapprove PBR's finances.H yO"-ԍ These provisions were deleted from the financing agreements in a December 10, 1997 amendment. In practice, it appears that ARSC was the handson decision maker for PBR with respect to most aspects of the financial operations of PBR's West Palm Beach stations.  x[Moreover, the financing agreements also gave ARSC the right to review and approve changes  xin PBR's senior management. ARSC was actively involved in many aspects of the process  xjthrough which PBR hired personnel for its stations, including recommending, interviewing and  x>negotiating the employment of candidates for key positions, including senior management. "!@,))qq "  xARSC's counsel also at times prepared employment contracts for PBR employees, apparently at  xthe direction of ARSC. ARSC participated in the termination of at least one of PBR's employees.  X-    x{ARSC was also involved in the programming and promotion of PBR's stations, including  x.participating in and making recommendations with respect to format. In this regard, it appears  xKthat an ARSC employee continued to be responsible for directing WPBZ(FM)'s promotions when  xthe joint sales agreement terminated on October 31, 1996. ARSC also recommended  xprogramming consultants, who provided audience research, music testing and program evaluation  XH-that was shared by ARSC and PBR.  X - xL Although PBR ratified some of the recommendations made by ARSC, especially with regard to  xpersonnel, the record, viewed as a whole, indicates a pervasive involvement by ARSC in the  x=operation of PBR's West Palm Beach stations. Under these circumstances, it appears that PBR  X - xabdicated and ARSC assumed de facto control of PBR's stations from July 1995 at least until  X - x[September 1997, in violation of the Act and the Commission's rules. See Roy M. Speer, 11 FCC Rcd 18393, 18415 (1996).  X}- ^)FORFEITURE ă  xAccordingly, pursuant to Section 503(b) of the Communications Act, you are hereby advised of  X8- x\your apparent liability for a FORFEITURE in the amount of $18,500 for your apparent willful  xand repeated violations of 47 C.F.R.  73.3613 as a result of your failure to timely file the June  x30, 1995 and March 15, 1996 note purchase agreements, a security agreement entered into on  xmJune 15, 1995 concerning the license and assets of WPBZ(FM), and a March 15, 1996  xiamendment agreement that incorporated the loan for WSTU(AM) and WMBX(FM) into the terms  X- x\of the security, stock pledge and shareholder agreements, and for your apparent willful and  x\repeated violations of Section 310(d) of the Act and Section 73.3540(a) of the Commission's  xkrules. We have considered the factors set forth in 47 U.S.C.  503(b) as well as Commission  xprecedent concerning similar violations in order to determine the appropriate amount of the fine  Xi- xjimposed.i {O- xԍ In United States Telephone Ass'n v. FCC, 28 F.3d 1232 (D.C. Cir. 1994), the United States Court of Appeals  {O- xifor the District of Columbia Circuit vacated the Policy Statement, Standard for Assessing Forfeitures, 6 FCC Rcd  {Ov- xK4695 (1991), recon. denied,  7 FCC Rcd 5330 (1992), revised, 8 FCC Rcd 6215 (1993). In accordance with the  {O@- xcourt's decision, and after notice and public comment, the Commission adopted Forfeiture Guidelines, 12 FCC Fcd  x17087 which became effective October 14, 1997. The apparent violations of Section 310(d) of the Act, and Section  x73.3540(a) and Section 73.3613(b) of the Commission's rules were continuing in nature, but commenced prior to the  xeffective date of the new guidelines. With respect to apparent violations occurring before the effective date of the  x<new guidelines, the Commission has determined to consider the criteria developed under Section 503 and applied by the Commission in previous cases, and we have done so here. 12 FCC Rcd at 1710809.  Furthermore, you are afforded a period of thirty (30) days from the date of this letter  x[to show, in writing, why a forfeiture penalty should not be imposed or should be reduced or to  xpay the forfeiture. Any showing as to why the forfeiture should not be imposed or should be reduced shall include a detailed factual statement and such documentation and affidavits as may "$,))qq>"  xbe pertinent. 47 C.F.R.  1.80(f)(3). Other relevant provisions of Section 1.80 of the Commission's rules are summarized in the attachment to this letter. x` `  hh@Sincerely, x` `  hh@Roy J. Stewart x` `  hh@Chief, Mass Media Bureau Attachment  X -cc: xHoward J. Braun, Esq. xShelley Sadowsky, Esq. xCounsel to Palm Beach Radio Broadcasting, Inc. xRosenman & Colin L.L.P. x1300 19th Street, N.W. xWashington, DC 20036