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there must be a bona fide, arm[']s length transaction between the primary station and the translator; the licensee of the  Stranslator station will have to pay the primary station a rate charge comparable to the  amount charged other purchasers of brokered airtime, or an amount consistent with such  zcharges in the local broadcast community; and at no time would the translator station  mreceive financial support, directly or indirectly, from the primary station to cover any costs associated with the operation and maintenance of the translator station.   S '(Id. at pp. 89.)  S ' "a1paraoutline 14. Universal's Complaint to the Commission. By letter dated February15, 1995, from counsel  xfor Universal to the Chief of the Complaints and Investigations Branch of the Bureau's Enforcement  xcDivision, Universal lodged a complaint against Turro and Weis. Universal alleged that Turro, in the  xZoperation of the Fort Lee and Pomona translators, and Weis, in the operation of WJUX, were violating  xthe Commission's rules. (Bur. Ex. 2.) One of the allegations made by Universal was that Turro was  xproviding Jukebox Radio programming to the Fort Lee translator by sending it directly from the Dumont  Sl' xstudio to the translator over WMG499 in violation of the Commission's rules. (Id. at 34.) Universal  S:'requested that the Commission keep its identity confidential. (Id. at 32.)  S' "a1paraoutline15. Universal's complaint included, and was supported by, an engineering report dated  xFebruary10, 1995, prepared by the consulting engineering firm of Cohen, Dippell and Everist, P.C.  x( CDE), which was based upon sworn statements of three CDE engineers. (Bur. Ex. 2, p. 49.) In that  S<' xreport, the CDE engineers stated that they had investigated Turros operations on February2, 1995 (id.  xQat 53), and alleged that they had established that Jukebox Radio programming was being provided directly  xfrom the Dumont studio to the Fort Lee translator on a full time basis through the use of a studioto xtransmitter link ( STL) operating on 951 MHz in violation of Sections 74.531 and 74.1231(b) of the  Sq' xECommissions Rules. (Id. at 54, 56.) In addition, the engineers alleged that the Jukebox Radio  xprogramming was fully oriented to the area of Bergen County, New Jersey, giving the appearance that  xthe Fort Lee translator was a full service FM station serving that county, in violation of Commission  S' xpolicy (id. at 5455), and that the Pomona translator was simultaneously carrying the Jukebox Radio  xprogramming so that it, too, was in violation of the same Commission rules and policies as the Fort Lee  St' xtranslator (id. at 55). The CDE engineers further alleged that, based upon testing from the roof of a  xbuilding in Fort Lee near the transmitter location of the translator, the offtheair, directly received signal  xof the Monticello station was unusable for retransmission on [the Fort Lee translator] due to low signal  xstrength and severe 1st adjacent channel interference from [radio station] WBAI[, New York, New York].  S!' x(Id. at 5859.) The CDE engineers also stated that the high aural quality and absence of noise on the  xPomona translator may indicate that it, too, was not retransmitting the signal of the Monticello station  SD#' xZbut may be retransmitting the Fort Lee translators signal or receiving a direct program feed. (Id. at 5960.) "$0*&&,,`%"Ԍ S' "la1paraoutline16. The FCC Inspections of April and May 1995. On March8, 1995, the Bureau's Complaints  x@and Investigations Branch requested the Compliance and Information Bureau to inspect the Monticello  xpstation and the Fort Lee and Pomona translators. (Bur. Ex. 3, pp. 8081; Bur. Ex. 16, p. 250.) On  x April13, 1995, FCC field engineer Serge Loginow, Jr., inspected the Monticello station. (Bur. Ex. 4;  x<Turro Ex. 25, pp. 36.) On April14, 1995, Loginow conducted tests of the Fort Lee and Pomona  x@translators and inspected the Dumont studio. (Turro Ex. 25, pp. 67; Bur. Ex. 4.) On May15, 1995,  xLoginow conducted further tests of Fort Lee translator. (Turro Ex. 25, pp. 78; Bur. Ex. 4.) In his May23, 1995, Radio Station Inspection Report, which was forwarded to the Bureau, Loginow stated:  S5'XWXTM Main Studio Location   0XWXTM main studio is located at the existing studio of radio station WVOS AM/FM ...  =in Ferndale NY. However, there were no signs on the outside of the building to indicate  qto the public that it is the studio for WXTM (only a WVOS AM/FM sign). No telephone line is set aside for WXTM calls, nor is any line answered as WXTM.   S 'XWXTM Main Studio Staff   \XThe main studio is staffed by General Manager Eugene Blabey and Public Service  SDirector Carol Montana. Eugene Blabey is also the owner of WVOS AM/FM. Carol  Montana is also the Business Manager of WVOS AM/FM. She stated that she spends about 25% of her time for WXTM and 75% for WVOS.   S'XWXTM Main Studio Programming   XThe main studio for WXTM is a former production room of WVOS leased by Wesley  Weis. Blabey states, however, that although it is capable of being used, it has never  actually provided programming to the WXTM transmitter. Indeed, he indicated that in  order to do so would require going to the transmitter site and effecting a change of cabling at the patch panel to connect the transmitter to the studio.   XProgramming is 100 percent from Jukebox Radio in Dumont NJ, including music,  advertising, news, and callsign [sic] identification. A telephone line is used [to] deliver the audio to the transmitter.   S'XWXTM Main Studio Transmitter Control   XThere is no remote equipment installed at the main studio to control the WXTM  qtransmitter or to read transmitter operating parameters. The transmitter is controlled full time by personnel of Jukebox Radio in Dumont NJ by telephone line.   S'XWXTM LMA   XThere is no Local Marketing Agreement between WXTM and Jukebox Radio. Instead,  WXTM entered into a network agreement with Jukebox Radio. A copy of the network  ,agreement, signed by Gerald Turro and Wesley Weis was provided to the inspecting engineer.   So"'XJukebox Radio STL WMG499   =X... The STL transmitter was active at the time of inspection, however, the translator at  ~Fort Lee was determined to [be] receiving programming off the air from the translator at  Pomona NY operating on 94.3 MHz. The Pomona NY translator was determined to be"$0*&&,,`%"  receiving programming from WXTM on 99.7 MHz. Although the quality of the audio  0at Pomona and Fort Lee was degraded due to splatter from WBAI (in New York NY on  =99.5 MHz), Turro stated that the condition was due to the WXTM transmitter operating  at reduced power due to a recent light[n]ing strike. The inspecting engineer had observed that the operating power at WXTM was reduced.   S'XJukebox Radio Control of WXTM   #XRemote control equipment was observed at Jukebox Radio that was stated to be for the  control of WXTM. Gerald Turro, by telephone, stated that he is Chief [O]perator for WXTM, however, he does not receive any salary for that position.  X....(#  Si 'XFort Lee NJ Translator Second Monitoring   XThe Fort Lee translator was monitored again on May15, 1995. Audio quality was  =considered very high, with no detectable splatter from WBAI. While on the top floor of  the apartment building housing the Fort Lee translator, the inspecting engineer transmitted  a low level signal on the frequencies of 99.7 MHz, 94.3 MHz and 951.0 MHz while  listening to the translator signal on 103.1 MHz. The translator output was blocked only with the transmission of a test signal on the frequency of the STL, 951.0 MHz.   xp(Bur. Ex. 4, pp. 8284; Bur. Ex. 16, pp. 250, 25355.) Additional details relating to these and other Commission inspections will be discussed below.  S8'p  B. Issues 2 and 6: Unauthorized Transfer of Control Issues ă  S' "+a1paraoutline17. Subsequent to receiving the Bureau Letter, Turro started looking for opportunities to form  xgan arrangement such as that described in the Letter to bring FM programming to Bergen County, New  xJersey. Sometime in 1994, Turro received a telephone call from Larry Fishman, who held a CP to build  xka new FM station to serve Monticello, New York. Fishman, who had never talked to Turro before, asked  xa number of questions about how to start up a new FM station. After Turro explained to Fishman what  x would be involved, Fishman stated that he no longer wanted to construct and operate the station, and  xasked Turro if he knew of someone who would buy the CP. In the summer of 1994, Turro mentioned  xthe availability of the Monticello CP to Weis. (Turro Ex. 1, pp. 34; MMBI Ex. 1, p. 1; Tr. 1337, 1729 x30, 1823, 2063, 207073.) Turro thought Weis wanted to own a radio station, having been in the business  xxof building them. (Tr. 206364.) Turro also believed this opportunity would be advantageous to his long x*standing dream of providing a commercial FM radio service to Bergen County. (Turro Ex. 1, p. 2; Tr. 206264.)  S;' "a1paraoutline18. At a later meeting, Turro described the Bureau Letter to Weis and may have given Weis a  xcopy of the Letter. (MMBI Ex. 1, p. 1; Tr. 138486, 1731, 1825.) Turro advised Weis about his (Turro's)  xunderstanding of what the Letter meant. (Tr. 1825.) Weis understood that the Bureau Letter authorized  xQa translator station licensee to act as the time broker for an FM broadcast station and also rebroadcast the  xFM station on the translator. (MMBI Ex. 1, p. 1; Tr. 1385.) Turro proposed that Weis acquire the CP  xfor the Monticello station, and that Turro supply Weis with the existing Jukebox Radio programming as  xwell as commercial advertising for the station. (Tr. 133840.) Weis knew that Turro could not acquire" $0*&&,,$"  xthe CP for the Monticello station, and understood it was because of Commission rules having to do with the owner of the primary station and the owner of the translator. (Tr. 133738.)  Sg' "8a1paraoutline19. Weis met with Fishman at the latter's office to discuss the sale of the Monticello CP. (Tr.  x134041.) Weis's best recollection was that there were three meetings with Fishman and that Turro was  xpresent at two of them. (Tr. 134142.) There was discussion of the purchase of the CP, the financial and  xtsecurity arrangements, the transfer of a lease or option, and the indemnification of Fishman for certain  x&liabilities. (Tr. 1342.) The purchase price and terms of payment were negotiated. Weis testified that  xTurro was in the room when the payment terms were negotiated. Weis could not recall if Turro took part  xin those discussions, but Weis testified that Turro did not discuss with him what payment terms he (Turro)  xwould have liked to see. (Tr. 134344.) Weis did not consult with communications counsel during his  x@discussions with Fishman. (Tr. 1344.) Turro testified that he had no significant involvement in the agreement reached between Weis and Fishman. (Turro Ex. 1, p. 4.)  S6 ' "a1paraoutline20. Weis reached an agreement with Fishman to acquire the CP for $120,000. (MMBI Ex. 1,  x@p. 2; Turro Ex. 1, p. 4; Tr. 1342.) MMBI agreed to pay Fishman $40,000 at the closing and give him  xa Secured Note for the $80,000 balance. (MMBI Ex. 1, p. 2; MMBI Ex. 5, p. 15; Tr. 134748, 1360.)  xThe balance was to be made payable in 24 monthly installments of $3,618.18 each beginning on  xgNovember17, 1994. (MMBI Ex. 5, p. 15.) Weis decided to go ahead with the CP acquisition and the  xarrangement proposed by Turro because it appeared to be a good business opportunity that had been  xspecifically approved in advance by the Chief of the FCCs Mass Media Bureau. (MMBI Ex. 1, p. 2; Tr.  x@134546.) Although at this point in time Weis had not yet prepared a business plan, he concluded that  x^he could make some money because he had been on the fringes of [the] broadcasting business ... for 25 years, [and] it appeared to be a good enough deal. (Tr. 1345.)  S' "a1paraoutline21. Turro and Weis discussed an arrangement between Jukebox Radio and MMBI which would  xMbe consistent with the terms of the Bureau Letter. They agreed that Jukebox Radio would pay Weiss  xcorporation, MMBI, monthly payments in return for which MMBI would provide air time on the  xMMonticello station to be programmed by Jukebox Radio, and that the Monticello stations signal would be rebroadcast by the Fort Lee and Pomona translators. (Turro Ex. 1, p. 4.)  S' "a1paraoutline22. The Network Affiliation Agreement. On October17, 1994, Turro, on behalf of BCCBF  x(which was then doing business as Jukebox Radio), and Weis, on behalf of MMBI, entered into a Network  xAffiliation Agreement. (Bur. Ex. 8, pp. 13738; Tr. 1943.) The document was structured as a network  xaffiliation agreement, rather than a time brokerage arrangement, based upon the advice of legal counsel.  xTurro had told counsel that he intended to provide Jukebox Radio programming to other stations.  xxAccording to Turro, counsel had read his January30, 1991, letter and the Bureau Letter prior to rendering this advice. (Tr. 178788, 2065.)  S;'a1paraoutline23. The Network Affiliation Agreement provided that:  $XNetwork [i.e., Jukebox Radio] will provide MMBI with twentyfour hours of  =programming on a seven day basis, 365 days a year. Network will also provide all local  station identifications ..., public affairs programming, and Emergency Broadcast System [ EBS] tests.  " $ 0*&&,,$"Ԍ XNetwork agrees to indemnify MMBI and hold it harmless from any and all fines, surcharges, forfeitures, levies, and any other monetary damages imposed by the F.C.C.    XNetwork is responsible for delivery of usable audio programming to MMBI via satellite,  phone lines or other suitable means. Network is responsible for all costs incurred for  zdelivering Network audio. Network will abide by all applicable FCC rules concerning program content.   XNetwork will compensate MMBI for carrying all network programming on a twentyfour hour basis as follows:  XX` ` Year One ! $8,575.00 per month ` XX` ` Year Two ! $8,975.00 per month ` XX` ` Year Three ! the first six months ! $9,140.00 per month ` XX` ` Year Three ! the second six months ! $5,400.00 per month ` XX` ` Year Four ! $5,400.00 per month ` XX` ` Year Five ! $4,675.00 per month ` XX` ` Remaining 5 Years ! Year 5 plus 5% or the CPI, whichever is greater. ` X....   XThe monthly compensation to MMBI will be reduced by $3,600.00 per month after the first thirty months of network affiliation.  X....   XMMBI agrees to allow translator W276AQ [the Fort Lee translator] to rebroadcast 99.7 FM, Monticello[,] New York.  (Bur. Ex. 8, pp. 13738, underlining omitted.)  S' "~a1paraoutline24. On October17, 1994, in order to induce MMBI to enter into the Network Affiliation  xDAgreement, Turro signed a Guaranty of Payment wherein he personally guaranteed all payments from the  xNetwork to MMBI for the full term of the Network Affiliation Agreement up to a limit of $400,000.  xM(Bur. Ex. 8, p. 139.) Weis testified that the Guaranty was his idea and that he suggested it because of  xthe possibility that Turro's operation could go out of business. (Tr. 138183, 1392.) Weis did not have  xthe assistance of counsel in preparing the Guaranty but copied it from an existing item in his files. (Tr.  xk1381.) Weis testified that the amount of the Guaranty was related to a business plan he had prepared (Tr.  xM1383) sometime prior to the execution of the Network Affiliation Agreement (Tr. 135455). If MMBI  xdid not receive its scheduled monthly payment and could not collect it from the Network, Weis stated that,  xpursuant to the Guaranty, MMBI could initiate a lawsuit against Turro to obtain the money. (Tr. 1447 xt48.) Turro testified that if the Network defaulted in its monthly payments or went bankrupt, he would be ultimately responsible for the payments. (Tr. 1842, 1846.)  S<#' "a1paraoutline25. MMBI was also paid $40,000 by BCCBF as an incentive for entering into the Network  xAffiliation Agreement. (Tr. 1347.) Weis testified that without the Network Affiliation Agreement he  x@would not have built the station, and the [Network Affiliation A]greement was based on that $40,000"$ 0*&&,,`%"  xgup[]front payment. (Tr. 140910.) As regards this $40,000 payment, Turro testified that he did not  xknow how the figure was determined, but that Weis presented the figure and he accepted it. (Tr. 182829, 1837.) Turro also testified that Weis did not have to repay the $40,000. (Tr. 183132.)  S4' "a1paraoutline26. The amount of the monthly payments to MMBI by the Network was determined by Weis on  xthe basis of his business plan, which was designed to cover capital costs and operating expenses and  xZproduce a profit. (Tr. 135457, 1391.) Weis's general recollection was that the figure he used for his  xreturn on investment was 15 to 20 percent, and he stated that he could have gotten more but [d]idn't have  xany reason to think about it. (Tr. 1356.) The compensation to MMBI was reduced by $3,600 per month  xafter 30 months because the $80,000 balance due to Fishman on the purchase price of the CP would be  xpaid off by that time, and a major part of the cost of equipment would also have been amortized by that  x/point since Weis was loading in a price up[]front. (Tr. 136063.) Weis's business plan did not  xQcontemplate any profits or returns from the sale of commercial time, and such sales were not anticipated.  x(Tr. 1356.) In addition to 24hour per day programming, station identifications, public affairs  xprogramming, and EBS tests, Weis understood that the Network would provide commercial time. (Tr. 135254.)  S ' "a1paraoutline27. Turro testified that Weis presented him with the monthly payment figures and that he  xaccepted those figures. (Tr. 182930.) Turro had no recollection of negotiating those figures with Weis  x(but also stated that he may have done so (Tr. 1830)), or of questioning Weis's numbers, and he never  x3asked Weis how he derived his figures. (Tr. 2080.) Turro stated that he agreed to make the monthly  xpayments in the amounts specified by Weis because [i]t made business sense to him and the Network to do so. (Tr. 20992100.)  S8' "a1paraoutline28. Turro testified that, at some point, Weis sought an increase in the monthly payments for the  xNetwork Affiliation Agreement of about $100 a month. (Tr. 2100, 2116.) Weis also testified to having  x&sought and obtained an increase to cover the additional capital investment for a standby generator and  S' xauxiliary transmitter. (Tr. 136668.)N yO' x ԍ When asked about the amount of this increase, Weis testified: Oh, I would say less than [$]2,000; more than  x [$]1,000. However, Weis prefaced this answer by stating: I honestly don't know. I would be guessing. (Tr.  x 136869.) On the other hand, when Turro was asked about this matter, there was no hesitation or indication that  x he was guessing. (Tr. 2100, 2116.) Consequently, Turro's testimony as to the amount of the monthly increase has been credited.N Turro stated that he agreed to the increase because Weis was going  xto install a generator at the WJUX transmitter site which would protect the Network equipment there. (Tr. 210001, 2116.)  S' "a1paraoutline29. MMBI received a check every month in accordance with the Network Affiliation Agreement.  x_There had not been a month when MMBIs expenses exceeded the monthly payment, including amortization of equipment and other accounting expenses. (Tr. 134950, 136566, 143435.)  S' "a1paraoutline30. With respect to the indemnification provision of the Network Affiliation Agreement, Weis  x*stated that if MMBI was fined by the FCC for something the Network did, Weis would advise Turro that  x/the Network was responsible for indemnifying MMBI and, if Turro refused, MMBI would sue the  xgNetwork first, and then sue Turro personally. (Tr. 1364, 144849.) On the other hand, if MMBI was  x}assessed a forfeiture by the FCC for something MMBI did, such as a main studio rule violation, the"; x0*&&,,"  xNetwork would not reimburse MMBI. (Tr. 1364.) Similarly, Turro testified that the indemnification  xprovision meant that if Jukebox Radio provided programming broadcast by WJUX which violated FCC  x*regulations, the Network would be responsible to MMBI for any forfeiture. (Tr. 184041.) Turro stated  x*the indemnification was limited to programming and neither Turro nor the Network would be responsible  xQif MMBI was assessed a fine, for example, for operating the transmitter above its authorized power. (Tr. 184142.)  S' "a1paraoutline31. Both Turro (Tr. 2113) and Weis (MMBI Ex. 1, p. 2) believed that the Network Affiliation  x^Agreement was consistent with the Bureau Letter. In addition, Turro thought that the Network Affiliation  xAgreement was a bona fide arm'slength transaction between the primary station and the translator. (Tr.  xQ1789.) Weis acknowledged that he did not know the distinction between a time brokerage agreement and  xa network affiliation agreement. While Weis agreed that the Bureau Letter authorized a translator station  xto act as a time broker and did not discuss a network affiliation agreement, Weis believed that the Letter  x^covered the arrangement he had with the Network whatever that arrangement was called. (Tr. 138790.)  xIn this regard, Weis thought that a network affiliation agreement could represent or constitute a time  x7brokerage agreement. (Tr. 1387, 1390.) Further, Weis did not notice that the Bureau Letter talked about  xca time brokerage agreement as opposed to a network affiliation agreement, and he never raised that  S ' xdistinction with Turro. (Tr. 1387.) To Weis, the key word was agreement. (Id.; Tr. 138889.) Weis  xMunderstood that BCCBF was a broadcast network. (Tr. 1349.) At the time MMBI became an affiliate of the Network, it was Weis's understanding that there would be other affiliates. (Tr. 143233.)  S' "a1paraoutline32. On July17, 1995, Turro, on behalf of BCCBF, and Weis, on behalf of MMBI, signed an  S' xkAmendment to Network Affiliation Agreement. The Amendment specified, inter alia, that MMBI retained  xgresponsibility for ascertaining the needs of its community and service area, that MMBI had the right to  x^broadcast programming other than Network programming, that MMBI had the right to delete or preempt  xin its sole discretion any Network programming in order to broadcast MMBI programming responsive  xto the issues of concern to its community of license, and that MMBI maintains the independent right to  x preempt or delete any Network programming which [it] believes to be unsatisfactory or unsuitable or  xcontrary to the public interest, or to substitute programming which, in [its] opinion, is of greater local or  xQnational importance. The Amendment also specified that MMBI's acceptance and broadcast of Network  xprogramming was subject to MMBI's responsibility to comply with all FCC regulations including, among  xothers, compliance with political programming and sponsorship identification rules, maintenance of the  xstation's public and political files, and the compilation of quarterly issues/programs lists. (Bur. Ex. 8, pp. 14041.)  S ' "4a1paraoutline 33. The Amendment stated that it was retroactive to the commencement of the [Network  xMAffiliation] Agreement, and that it was agreed to in Oct[.], 1994. (Bur. Ex. 8, pp. 14041.) In this  x7regard, both Turro and Weis testified that the Amendment was agreed to in November 1994, but they did  xnot get around to signing it until July17, 1995. (MMBI Ex. 1, p. 2; Tr. 136970, 194546, 2094.) Both  xTurro and Weis stated the Amendment was not related to an FCC inspection of the Monticello station which occurred in the spring of 1995. (Tr. 1370, 1945.)  S!' "a1paraoutline!34. The Network Affiliation Agreement was amended upon the advice of counsel, and the  x^Amendment was prepared by counsel. (MMBI Ex. 1, p. 2; Tr. 137073, 1423, 2094.) Weis testified that  x^the purpose of the amendment was to provide a better definition or clarification of the Network Affiliation  xAgreement to reflect what MMBI's obligations were to the Commission. (Tr. 137980, 1416.) Weis  xstated, however, that his activities with respect to operating WJUX did not change as a result of the"$ 0*&&,,`%"  xkAmendment. (Tr. 141819.) The only times that MMBI substituted or preempted Network programming  xwere in the early summer of 1995 when taped music was originated from the WJUX main studio when  xthe Network's program feed went out (Tr. 858, 97274, 204142), and during the 1997 elections when  Sg'political commercials were broadcast instead of Network programming (Tr. 1380; see also Tr. 857).  S5'  S' "a1paraoutline"35. MMBI's Acquisition of the CP, and the Construction and Commencement of Operation of  S' xWJUX. On October18, 1994, the assignment of the Monticello CP from Fishman to MMBI was  xconsummated. (Bur. Ex. 23, p. 469 and Bur. Ex. 24, p. 555.) When MMBI acquired the permit on  x3October18, Weis paid Fishman $40,000 and gave him a Secured Note, on which MMBI was the sole  xmaker and sole obligated party, for the remaining $80,000. (MMBI Ex. 1, p. 2; MMBI Ex. 5, p. 15; Tr.  x134748, 1360.) The $40,000 that MMBI received as an inducement to sign the Network Affiliation  xAgreement was deposited into MMBIs checking account on October17, 1994, and comingled with other  xkfunds already in the account. The $40,000 payment made to Fishman was drawn from MMBI's account. (Tr. 134748, 1426.)  S ' "a1paraoutline#36. MMBI assumed Fishman's tower lease with Mountain Broadcasting Corporation ( MBC)  x@and agreed to indemnify Fishman against any claims arising from Fishman's guaranty under the tower  x3lease. There was no other indemnitor. (MMBI Ex. 1, p. 2; MMBI Ex. 5, p. 20.) MMBI then entered  xinto a tower lease with MBC, which Weis alone personally guaranteed. (MMBI Ex. 1, p. 2; MMBI Ex. 5, p. 2.)  S' "[a1paraoutline$37. MMBI also entered into a lease with MBC for studio and office space in Ferndale, New  xYork, in a building which housed the studios and offices of WVOS(AM) and WVOSFM, Liberty, New  xgYork (collectively WVOS), stations which were licensed to MBC. Weis alone personally guaranteed that lease. (MMBI Ex. 1, pp. 23; MMBI Ex. 5, pp. 1214; Tr. 143132.)  S' "la1paraoutline%38. Eugene Blabey, whom Weis engaged as WJUXs General Manager, was an owner of MBC  xand acted as General Manager of WVOS. (Tr. 90911, 94748; Bur. Ex. 13, p. 226; MMBI Ex. 8.)  x@Blabey first met Weis about the time Weis acquired WJUX. Weis came to Blabeys office and said he  xwas acquiring the CP from Fishman. Their first conversation revolved around whether or not Weis would  x assume the WJUX tower lease that Blabey had previously negotiated with Fishman. Blabey and Weis  xnegotiated Weiss assumption of WJUXs tower lease and negotiated a separate studio lease. (Tr. 94042.)  x^Turro was usually present when Blabey and Weis met but Blabey and Weis met alone on some occasions. (Tr. 94142, 990, 1001.) Turro was introduced to Blabey as Weiss Chief Engineer. (Tr. 941.)  S' "Ea1paraoutline&39. During one of the earlier discussions with Weis, the possibility of Blabey acting as General  xManager for WJUX arose, perhaps at Blabey's suggestion. (Tr. 94243.) Blabey believed that being the  xGeneral Manager of WJUX would work for him as he was already performing many functions of a  xGeneral Manager for WVOS and it would not be overly burdensome to him. (Tr. 947.) In addition,  xBlabey stated that if he was going to be in this close contact with another station, he wanted to be involved just for [his] own purposes. (Tr. 94243.)  S!' "a1paraoutline'40. At a later meeting, Blabey was told that WJUXs programming would be coming from New  xJersey, and that WJUX would be rebroadcast by a translator. Weis also told Blabey that he did not think  x*the target audience of WJUX would impact on Blabey's audience. Blabey understood that Jukebox Radio  xNetwork would sell commercial time on WJUX, and that those commercial spots would be primarily  xdirected to Bergen County, New Jersey. (Tr. 99091.) Blabey also suspected that Bergen County would"$ 0*&&,,`%"  xbe the primary source of WJUX's advertising revenue. (Tr. 1018.) However, Blabey received no assurance that time sales would not be made in Sullivan County. (Tr. 99192.)  Sg' "Ra1paraoutline(41. On October21, 1994, three days after Weis purchased the WJUX permit, the station went  x7on the air. (MMBI Ex. 1, p. 2; Tr. 139293.) Weis said all of the equipment was on order or on standby  x*and the station was built in two days. He said that construction of radio stations was his business. Weis  xstated he wanted the station to be completed so quickly because winter was coming and because the  xsooner the station was on the air, the sooner he would begin receiving money under the Network  x*Affiliation Agreement. (Tr. 139394.) Turro, too, wanted to get the station on the air in a hurry because  S5'he wanted to begin selling commercial advertising. (Id.; Tr. 173637.)  S' "Ea1paraoutline)42. Turro testified that when Weis decided to purchase WJUX, Turro was providing technical  xadvice and a decision was made that Turro would be the Chief Operator and provide technical support.  x(Tr. 1792.) Turro was never paid for being Chief Operator and it took up very little of his time. (Turro  x^Ex. 1, p. 7; Tr. 2013.) It was Turro's understanding that the Commission's rules allowed him to be Chief  xOperator as long as he did not get paid. Turro reasoned that if, under the rules, a primary station could  xprovide technical support to a translator station, the translator should be able to give the primary station  xsupport as long as you're not getting paid for it. (Tr. 178990, 2013.) In other words, if the chief  xengineer of the primary station could not be paid for maintaining the translator, no payment could be  xmade if the translator was giving technical support to the primary station. Turro testified: So if it can  xgo one way without any money changing hands ... it should be able to go the other way, and that's the logic. (Tr. 1790.)  Sl' "Na1paraoutline*43. Turro stated that he assisted Weis in a general sort of way in starting up the Monticello  xstation but did not personally build WJUXs facilities. He testified that his primary role during the  xconstruction of WJUX was to install his Network audio equipment and test to see that everything worked.  x(Turro Ex. 1, p. 6; Tr. 1394, 179496, 2017.) Turro said that Weis and the people who worked for him  xwere capable of constructing radio stations and he (Turro) supervised the construction. (Tr. 1793.) By  x supervised, Turro stated that he meant that he watched the guys install the transmitter and antenna,  x7and put the power to, and commission, the transmitter. (Tr. 210506.) Turro personally inspected the  xkWJUX main studio equipment and verified that everything was working. (Tr. 179495.) Turro said Weis  xowas present throughout the construction process, directing a construction crew from Weiss company. (Tr.  x2106.) Weis testified that, as Turro was the Chief Operator of WJUX, he took an interest in what Weis and Weiss crew were doing with the transmitter, electrical wiring, and remote control. (Tr. 1394.)  S' "a1paraoutline+44. Weis stated that in October 1994, about two weeks before WJUX went on the air, there was  xa discussion about the need for him to divest his interest in the Pomona translator. (Tr. 13991400.) Weis  xunderstood, from his general knowledge, that as the owner of WJUX he could not own a translator station  xoutside of WJUXs 1 mV/m contour on which WJUX was rebroadcast. (Tr. 1401.) On January10, 1995,  xWeis transferred his ownership interest in the Pomona translator to Turro pursuant to FCC approval. (Bur.  xEx. 23, p. 471 and Bur. Ex. 24, p. 555; Tr. 1402.) Shortly thereafter, the Pomona translator started to rebroadcast the signal of WJUX on 94.3 MHz. (Turro Ex. 1, p. 8.)  Sp"' "a1paraoutline,45. By letter dated November30, 1994, one of Turro's consulting engineers, on behalf of Turro,  xE formally inform[ed] the Bureau's Auxiliary Services Branch that the Fort Lee translator now  xZrebroadcasts primary station WXTM(FM), Monticello, New York. (Bur. Ex. 2, p. 46.) On April14,  x1995, the Monticello station changed its call letters from WXTM(FM) to WJUX(FM). (Bur. Ex. 23, p."$0*&&,,`%"  x7470 and Bur. Ex. 24, p. 555; Tr. 1403.) Weis stated he instructed his FCC attorneys to apply for the call  xsign change on his behalf, knowing in advance from Turro that Turro's station in Franklin Lakes, New  xJersey, was turning in the call sign. (Tr. 140304.) Weis understood it to be important to Turro that the Monticello station get the call letters WJUX. (Tr. 1405.)  S' "+a1paraoutline-46. Finances. Weis testified that he, and he alone, had exercised financial control over WJUX  xand been responsible for the obligations of MMBI and WJUX. (MMBI Ex. 1, p. 6.) Turro, too, testified  xthat he never had any financial control over or responsibility of any kind for either WJUX or MMBI.  x(Turro Ex. 1, p. 7.) According to Weis, Turro, and entities affiliated with Turro, had never guaranteed  xany debt incurred by MMBI or MMBI's performance of any contract or lease entered into by MMBI.  x(MMBI Ex. 1, p. 6.) MMBI made all payments due Fishman under the Secured Note for the remaining  S' xportion of the purchase price for WJUXs construction permit. (Id. at 2.) MMBI made the lease  xVpayments for its transmitter site and main studio. MMBI paid all of the compensation to persons it  xemployed in the operation of WJUX. MMBI paid all bills for services, products, and utilities used in the  xMoperation of WJUX, with the exception of bills for telephone service from October 1994 to mid1995,  xwhen those bills were sent by the local telephone company, NYNEX, to Jukebox Radio. MMBI paid all  S ' x^subsequent bills for WJUX telephone service. (Id. at 3.) Neither Turro, Jukebox Radio, BCCBF, nor FM  x103.1 paid for any of the costs of constructing WJUX. (Turro Ex. 1, p. 6; Tr. 208182.) Turro did not  x*pay and was not obligated to pay any of Weis's legal expenses for the acquisition of WJUX, the response to a Commission letter of inquiry, or with respect to the hearing in this proceeding. (Tr. 195859.)  S' "ya1paraoutline.47. Weis testified that he had the ultimate financial responsibility for WJUX. (Tr. 1449.) Weis  xwrote the checks to build the station, pay the staff, and pay the operating expenses. (Tr. 1358.) Weis  xsigned personal guarantees when MMBI assumed Fishmans transmitter and tower site lease, and when  xMMBI leased its studio and office space from MBC. (MMBI Ex. 5, pp. 11, 14; Tr. 143132.) If Jukebox  xRadio missed a monthly payment to MMBI, MMBI was still required to pay WJUXs lease payments and  xQother bills. If MMBI stopped receiving payments from the Network, MMBI could terminate the Network  xAffiliation Agreement and sue Turro. However, while MMBI was suing Turro, Weis would have to put  xhis own money into MMBI so that the bills would be paid. (Tr. 1432, 145051, 1453.) If MMBI never  xxrecovered anything from Turro, MMBIs obligations would remain in place, Weis would have lost money, and MMBI would still have to meet its obligations. (Tr. 1451.)  S' "a1paraoutline/48. Blabey did not have final monetary authority over MMBI or sign MMBI paychecks. (Tr.  x*937.) Blabey sent or faxed to Weis in New Jersey matters that needed Weiss attention. These generally  x involved financial matters. (Tr. 915.) Carol Montana, who was WJUX's Public Affairs Director and  x}served as the general WJUX staff support person (MMBI Ex. 1, p. 6; Tr. 822, 856), did not handle  x finances for WJUX (Tr. 853). She brought bills to the attention of Blabey and Weis for payment and handled petty cash up to approximately $50. (Tr. 81920, 853.)  S=' "a1paraoutline049. Personnel. Weis stated that he exercised responsibility over the personnel of WJUX,  xtincluding engaging Blabey as General Manager and, at Blabeys recommendation, Montana and George  x3Spicka. The latter performed engineering services for WJUX on a parttime basis. Weis also directly  xtengaged Alan Kirschner, the current WJUX Chief Operator. (MMBI Ex. 1, pp. 67.) Kirschner was a  xfriend of Turro's, and had no employment relationship with Jukebox Radio. (Tr. 196869.) Blabey  xcharacterized his role in hiring and firing at WJUX as recommending employees for Weis to place on the payroll. (Tr. 93637.) Blabey, however, played no role in the hiring of Kirschner. (Tr. 937.) "$0*&&,,`%"Ԍ S' "Ra1paraoutline150. As discussed earlier, Blabey met Weis about the time Weis acquired WJUX. (Tr. 94041.)  x7During one of Blabeys earlier discussions with Weis, the possibility of Blabey acting as General Manager  xfor WJUX arose. Blabey may have suggested the possibility. (Tr. 94243.) Blabey then had several  xmeetings with Weis concerning taking on a General Manager role or any role at WJUX. (Tr. 946, 990.)  xWeis agreed to pay Blabey $100 per week to act as General Manager, and that amount has not changed.  x (Bur. Ex. 13, p. 226; Tr. 139596.) Blabey later entered into an agreement with Weis with respect to advertising sales for WJUX in addition to his General Manager duties. (MMBI Ex. 8; Tr. 1002.)  Sh' "4a1paraoutline251. Blabey did not perform all of the same duties for WJUX that he performed for WVOS.  xBlabey explained that he was an owner of WVOS and had the ultimate financial authority for that station  xbut not for WJUX. As an owner of WVOS, he handled license renewals, equal employment opportunity  xreports, and other paperwork for the FCC for WVOS. He did not do any of that for WJUX. Rather, Weis  x}did all of that. (Tr. 92930.) Blabey had no daily contact with Jukebox Radio, although there were  x@occasions on which he was in touch with the Network. (Tr. 915.) Blabey thought he called Jukebox Radio in Dumont to report outages. (Tr. 978.)  S ' "4a1paraoutline352. Montana learned about the opportunity of a position at WJUX from Blabey. (Tr. 817.)  xMBlabey introduced Montana to Weis sometime prior to October 1994 and she discussed the WJUX job  xwith Weis at that time. (Tr. 818.) Montana considered herself to be an employee of WJUX. (Tr. 834.)  xIn October 1994, when she was hired, Montana entered into a letter agreement with Weis regarding her  xgemployment, effective the first date of broadcasting. (Bur. Ex. 12; Tr. 83638.) Her starting salary at  x@WJUX was $100 per month. (Tr. 81718; Bur. Ex. 12, p. 224.) At one point, Weis raised Montana's salary because Blabey recommended that he do so. (Tr. 144041.)  S8' "Ia1paraoutline453. Blabey supervised Montanas work for WJUX and she consulted with him on WJUX matters.  x(Tr. 838, 950.) Montana stated that at WJUX she first reported to Blabey, who was the General Manager,  x3and then ultimately to Weis, who was the owner. (Tr. 818, 893.) Montana met with Weis on WJUX  xbusiness on an asneeded basis. (Tr. 818.) Blabey was the person who could give her directions  x8regarding WJUX programming, and he directed her to send a bulletin board of public service  xannouncements ( PSAs) to the Network. (Tr. 89394.) It was Montana's understanding that Weis, as  xBlabeys immediate supervisor, could give Blabey directions. (Tr. 894.) Montana knew Turro and met  xhim approximately the same time she met Weis. (Tr. 818.) During the first few months of operation of  xDWJUX, Montana saw Turro at the station, but she could not recall how often. Turro spoke with her, but she did not recall any of the conversations. (Tr. 819.)  S' "Ra1paraoutline554. Programming. Weis testified that he exercised ultimate authority over the programming of  x/WJUX. At the time he acquired the WJUX permit and agreed to enter into the Network Affiliation  xAgreement with Turro's company, Weis knew that Jukebox Radio would provide an entertainment service  x^of popular musical standards, including music of the big band era, which would appeal to a large segment  x^of the Sullivan County population. In addition, at the commencement of WJUX operations, Weis directed  xthat the station carry public service and public affairs programming aimed at serving Monticello and Sullivan County. (MMBI Ex. 1, p. 7.)  So"' "a1paraoutline655. To accomplish the broadcasting of public affairs and public service programming, Weis had  xdiscussions with Blabey which resulted in the public affairs programs produced by Blabey and aired on  xWVOS being rebroadcast over WJUX on different days and at different times than they were broadcast  xover WVOS. (MMBI Ex. 1, p. 7; Tr. 143839, 996.) In that way, those programs had the opportunity"$0*&&,,`%"  xtto be heard by a different audience in Sullivan County than originally heard them. (MMBI Ex. 1, p. 7.)  xWeis did not believe that Turro was a party to these discussions initially. (Tr. 1439.) Weis did not pay  xBlabey for these programs because Blabey never asked for payment. Weis also believed that Blabey was  xa communityminded individual who, through this arrangement, was getting the public affairs  x^programming broadcast twice. (Tr. 143940.) Turro stated that when Weis and Blabey arranged to have  xpublic affairs programming provided for broadcast on WJUX, he made a decision for the Network to carry that programming on the Network. (Tr. 2098.)  Sh' "Ea1paraoutline756. The program People Who Make a Difference was a weekly program that highlighted the  xMwork and accomplishments of citizens in the Sullivan County area who had a positive influence on the  xcommunity. (MMBI Ex. 3, p. 7.) The program was produced locally in WJUX's main studio (Tr. 97172,  x1009), and was broadcast by WJUX at least as early as February2, 1995 (MMBI Ex. 3, p. 7). The  xprogram was broadcast on both WJUX and WVOS, and a version of the program appeared in a weekly  x7Sullivan County newspaper. (Tr. 100910.) The producer recorded the shows in bulk, ... four or five  x[or more] at a time. (Tr. 1022, 1024.) Neither WVOS nor WJUX paid the producer for the programs.  xQ(Tr. 1024.) After the shows were recorded, WVOS later broadcast tapes of the program from its studio,  xand Blabey sent tapes of the programs to Jukebox Radio for broadcast on the Network. (Tr. 1022, 1433.)  xBlabey suspect[ed] that listeners who heard this program on WVOS thought it was a WVOS program, and that listeners who heard it on WJUX thought it was a WJUX program. (Tr. 1025.)  S' "ua1paraoutline857. The program Open Mike was originally broadcast on WVOS and later rebroadcast on  xkWJUX. This program provided a platform for community leaders to appear and be questioned about their  xareas of interest and to take telephone questions from listeners. (Tr. 955.) Blabey sent tapes of the  xxprogram to the Network (Tr. 1433), and it was aired on WJUX on a tapedelayed basis (Tr. 956). WJUX  x*did not pay WVOS for the programming, but Blabey negotiated with Weis a $10 per program talent fee  xfor the host of the show, who was also WVOSs news director. (Tr. 956.) Blabey believed that WVOS  x3received a benefit from the broadcast of this program on WJUX in that politicians were more likely to  xaccept an invitation to appear on the program if it was going to be heard on two stations. (Tr. 95657.)  xBlabey did not think Open Mike was on WJUX when that station first went on the air, and he did not  xrecall how long thereafter it began to be broadcast on WJUX. (Tr. 99596.) The first WJUX  xissues/programs list on which Open Mike appeared showed a date of broadcast of May12, 1996. (MMBI Ex. 3, p. 17.)  Sm' "a1paraoutline958. Between October 1994 and October 1995, WJUX did not air programs directed at residents  xof Sullivan County which were not also broadcast (at different times) on WVOS. However, during this  xperiod of time there were PSAs that were broadcast on WJUX that were not also aired on WVOS. (Tr. 95758.)  Sn' "a1paraoutline:59. Weis also had discussions with Blabey which resulted in the broadcast over WJUX of PSAs  xwhich Weis believed were of interest to Monticello and Sullivan County. Montana was in charge of  xgathering material for PSAs, compiling a bulletin board of prospective PSAs, and forwarding it to Jukebox  xRadio for broadcast over WJUX. (MMBI Ex. 1, pp. 78; Tr. 82326, 1440, 144243.) This was a part  xZof her original job at WJUX. (Tr. 1442.) Jukebox Radio made the determination as to which PSAs to  xproduce, produced them, and determined which items to air. Montana designated on the bulletin board,  xor called the Network regarding, PSAs that were particularly important and should be aired. The Network followed her suggestion on almost every occasion. (Tr. 82728, 83334, 88586.) "$0*&&,,`%"Ԍ S' "a1paraoutline;60. Turro testified that when Montana sent to Jukebox Radio a list of PSAs, or when he received  xpublic affairs programming from WJUX that had been produced by Blabey, the Network had complete  xdiscretion to reject that programming. (Tr. 2036, 2095.) He also stated that if the Network were to  xexercise this discretion, WJUX would have the right to delete Network programming and put the PSAs and public affairs programming on the air directly at WJUX. (Tr. 209697; Bur. Ex. 8, p. 140.)  S' "a1paraoutline<61. Blabey made the decisions on putting emergency announcements regarding Sullivan County  xon WJUX. (Tr. 97980.) As an example, Blabey testified that during a snow storm in Sullivan County,  xhe received a call from the Sullivan County Manager advising that all roads in the county were being  x7closed. Blabey called Jukebox Radio, told them he had an emergency message to air on WJUX, prepared the message, and faxed it to the Dumont studio to be originated. (Tr. 98082.)  S ' "a1paraoutline=62. Weis and Blabey talked about how they would handle WJUXs advertising. They thought  x^there were possible synergies in jointly selling WJUXs and WVOSs different audience segments. (Tr.  x8921.) Blabey made joint proposals to sell commercial time on both WJUX and WVOS but was  xunsuccessful. (Tr. 92022.) However, he did sell political time on both stations to the same candidates.  x(Tr. 920.) Blabey did not make sales presentations for WJUX exclusively. (Tr. 922.) Montana did not  x4know of any advertising sold by WJUX for the Sullivan County area except for the political  x_advertisements sold by Blabey. (Tr. 85354.) Montana did not receive any inquiries from local advertisers about purchasing time directly on WJUX. (Tr. 867.)  S' "a1paraoutline>63. WJUX had a local rate card for buying 30second advertisements on WJUX. (Bur. Ex. 39;  xxTr. 92224.) Blabey did not prepare the rate card and believed Weis did so. (Tr. 92425.) From October  x.1994 through 1995, the WJUX local rate card was used [but] was never used successfully. (Tr. 92829.)  xAfter 1995, advertisements were sold to political candidates at the rates shown on the WJUX rate card.  x(Tr. 92324.) On September25, 1995, Blabey issued a statement advising that WJUX was not accepting  xkpolitical orders until further notice. (Bur. Ex. 35, p. 699.) Weis made the decision not to accept political  x&orders and related his decision to Blabey. (Tr. 92728.) Blabey advised Weis that WJUX would have  xto accept advertising for a Federal election, but there was no such election at the time. Weis subsequently changed the policy of not selling political time. (Tr. 928.)  S' "Aa1paraoutline?64. Although Blabey understood that the Network would air commercial spots which were  xkprimarily directed to Bergen County, he was never promised or assured that Jukebox Radio would not sell  xadvertising time in Sullivan County. (Tr. 99192, 1018.) Very early on, in approximately January 1995,  xJukebox Radio hired Georgia Fleenor, a sales representative who had formerly worked for Blabey at  x7WVOS, and placed her in Sullivan County as its own salesperson to sell advertising time there. (Tr. 992 x93, 210203.) Fleenor did succeed in selling some advertising for the Network in Sullivan County. (Tr.  x993, 2103.) Jukebox Radio subsequently replaced her with another salesperson, Stan Feinblatt, who  xcurrently has an office in Sullivan County and sells Network advertising time to Sullivan County advertisers. (Tr. 992, 2103.)  S ' "~a1paraoutline@65. With the exception of local political spots sold in October or November 1997, all the  xcommercial spots broadcast on WJUX were sold and originated by Jukebox Radio. (Tr. 928, 2046.) In  xZthis regard, the Network was not obligated to broadcast any advertisements which it did not sell. (Tr. 1952.) " $0*&&,,$"Ԍ S' "0a1paraoutlineA66. Turro testified that, in the two years preceding the hearing, about 10 percent of the  xadvertising buys on the Network had been from businesses located in Sullivan County, 45 percent came  xfrom Bergen County businesses, and about 45 percent came from regional or national businesses. (Tr.  x204647, 210305.) In Turro's opinion, about 80 to 90 percent of the Network's commercial  xadvertisements were focused toward the Bergen County/Rockland area. (Tr. 2048.) However, Turro  xbelieved that regional or national advertisers would be trying to sell their products in both Bergen County and Sullivan County. (Tr. 2105.)  Sh' C. Issue 5: Main Studio Issue ă  S' "a1paraoutlineB67. WJUXs community of license, Monticello, and WVOS's community of license, Liberty, are  xplocated about 10 miles apart in Sullivan County, New York, and are the two principal villages in the  xZcounty, with populations of 7,000 and 5,000 respectively. (Tr. 912.) Ferndale, where the WJUX and  xWVOS main studios are located, is immediately adjacent to Liberty. (Tr. 916.) The WJUX studio in  x@Ferndale is within the WJUX predicted 70 dBu (3.16 mV/m) contour. (Bur. Ex. 11, p. 174.) Sullivan  xxCounty has, for many years, been a second home community for people from the New York metropolitan area. (Tr. 912.)  Sj' "a1paraoutlineC68. The WJUX main studio is located in a building which also houses the WVOS main studio.  xWJUX is a tenant of MBC, the licensee of WVOS. There currently are, and were in 1995, separate  xquarters in the building for the WJUX and WVOS main studios. (Tr. 91618.) The WJUX main studio  xwas previously used as a spare production studio for WVOS. (Tr. 1022.) According to Blabey, he agreed  xto lease nonexclusive use of a production studio to MMBI. Blabey explained that, when the studio  xDwas not otherwise being utilized, WVOS could use it for its purposes. He stated: There's plenty of time  xfor that studio to serve multiple purposes. (Tr. 102324.) In 1995, WJUXs main studio was on the first  xfloor, with WJUXs studio at one end of the hall and WVOSs studio at the other end. (Tr. 91718.)  xMMBI later built an enhanced main studio for WJUX on the ground floor of the same building it had been occupying. (MMBI Ex. 1, p. 8; Tr. 917, 985.)  S9' "_a1paraoutlineD69. Weis testified that it was his belief that MMBI has not violated the FCCs rule requiring the  xmaintenance of a main studio, with the possible exception, for a period of time, with regard to local  xtelephone service. Weis stated that MMBI has always had a main studio properly located under the rules  xof the FCC, and that the studio was equipped to originate programming and deliver that programming to  xthe WJUX transmitter site for broadcast. Weis also testified that the WJUX transmitter was capable of being remotely controlled from WJUXs main studio by telephone dialup. (MMBI Ex. 1, p. 5.)  S' ""a1paraoutlineE70. WJUX's Program Origination Capability. Weis testified that he was experienced in the design  xand operation of radio stations and knew from personal observation that, prior to and including April13,  x1995, the station was fully capable of originating programming from its main studio directly to its  xttransmitter without the need for anyone to go to the transmitter site. Indeed, Weis stated that, without  xgany significant change to WJUXs equipment having been made subsequent to April13, 1995, musical  xprogramming was later originated from WJUXs main studio, when the program feed from the Dumont studio was severed, without anyone having to first visit the WJUX transmitter. (MMBI Ex. 1, p. 5.)  S<#' "a1paraoutlineF71. Herman Hurst was a consulting engineer for both MMBI and Turro. (Tr. 1862.) Hurst had  x represented Turro in this capacity since 1983 or 1984. (Tr. 1884.) Hurst had more than 35 years of  xexperience in the field of broadcast and communications systems engineering (Turro Ex. 2, Att. A), having"$0*&&,,m%"  xprovided engineering services to well over 1,000 broadcast stations and having personally visited and  xviewed more than 100 broadcast stations (Tr. 1866). Hurst was the Manager, Broadcast Consulting Services, and the Principal Engineer for Carl T. Jones Corporation. (Turro Ex. 2, Att. A.)  S4'a1paraoutlineG72. Hurst first visited the WJUX main studio on July6, 1995.z4 yO'ԍ Photographs which Hurst took on that date (Tr. 1919) appear at MMBI Ex. 2, p. 4.z Hurst testified that:  XThe WJUX(FM) main studio is equipped with a Sparta 8channel console, a reeltoreel  tape machine, cassette deck, cart machine, turntable, microphone and audio processing  equipment. In addition, an EBS receiver and alert tone generator is also located at the  WJUX(FM) studio. The WJUX(FM) main studio has programming capability, production capabilities and remote control capability to the main transmitter.   x(MMBI Ex. 2, p. 2.) Hurst had no reason to believe that the capabilities he observed on July6, 1995,  Si ' x did not exist prior to the April 1995 FCC inspection. (Id. at 1.) In this regard, Turro testified that he  xpersonally inspected the main studio equipment and verified that it was all working at the time WJUX  xwas constructed in October 1994 (Tr. 179495), and Montana testified that there were no physical changes to the WJUX main studio after the FCC inspection (Tr. 892).  Sk' "a1paraoutlineH73. As noted above, on April13, 1995, Loginow, an FCC inspector, conducted an inspection of  xgWJUXs main studio and transmitter. (Tr. 33637.) Loginow testified that, at the main studio, Blabey  xand Montana readily identified themselves to him as holding positions with WJUX, Blabey as General  xManager and Montana as Public Affairs Director. (Tr. 484.) Blabey stated that he was on the premises,  xbut outside the building, when Loginow arrived. (Tr. 96061.) Montana stated that she was also on the  xpremises when Loginow arrived. (Tr. 84849.) She remembered talking with him in her office, but did  xDnot recall what they talked about. (Tr. 84950.) Loginow testified that his recollection of who was there  xZwhen he arrived and the timing of the initial part of his visit was rather hazy.... [and] not very clear at all. (Tr. 580.)  Sm' "a1paraoutlineI74. Loginow asked Blabey for information about WJUX and Blabey responded that there was  xZnot too much to show him because most of WJUX's affairs were handled at Jukebox Radio's Dumont  xstudio. Blabey told Loginow that all program logs for the station were kept in Dumont. Blabey offered  xto show Loginow WJUX's public file but Loginow declined. Blabey gave Loginow a copy of the Network Affiliation Agreement. (Bur. Ex. 18, p. 330.)  S;' "Ia1paraoutlineJ75. During the inspection, Blabey told Loginow he wanted to call WJUXs Chief Operator, Turro.  x7Blabey called Turros office, was told that Turro was out of town, and that Turro's office would contact  xTurro. Sometime later, Turro called WJUXs main studio and Blabey put him on the telephone with  xxLoginow. (Tr. 96263.) Turro spoke with Loginow for about five minutes. (Tr. 196364, 1743.) Turro  xasked Loginow if he had any questions for him. (Tr. 1743.) Loginow asked if Turro was the Chief  xOperator of WJUX and Turro said he was. (Tr. 1743, 1964.) Loginow also asked Turro about remote  x/control capability. (Tr. 1964.) At the time of the inspection, Weis and Turro were at the National  xgAssociation of Broadcasters convention in Las Vegas. Turro found Weis there and told him there was an inspector at WJUX. (MMBI Ex. 1, p. 3; Tr. 140708.) "p"X0*&&,,""Ԍ S' "a1paraoutlineK76. Loginow asked to see the WJUX main studio and Blabey took him there, showed him the  xequipment, and answered all his questions. (Tr. 961.) Blabey informed Loginow that the equipment at  xMWJUXs main studio was capable of allowing WJUX to originate programming from that studio. (Tr.  x1029.) Loginow stated that he was in the WJUX main studio very briefly. (Tr. 475.) While there, he  xsaw a control board of the type typically found in a broadcast studio from which programming could be  xoriginated, as well as a microphone and tape machines. (Bur. Ex. 18, p. 330; Tr. 47576.) Loginow  xtestified that he did not examine the wiring to see if the equipment was connected, and had no reason to  xthink the microphone and tape machines were not connected to the control board. (Tr. 476.) Loginow  xgdid not test the program origination equipment to see whether it could create programming suitable for broadcasting. (Tr. 48990.)  S' "la1paraoutlineL77. Blabey told Loginow how programming could be originated from WJUXs main studio and  xtransmitted to WJUXs transmitter. (Tr. 1027.) According to Loginow, Blabey told him that to enable  Si ' xbroadcasts to originate from the WJUX studio would require going to the transmitter site and effecting  xa change of cabling at the patch panel to connect the transmitter to the studio. (Bur. Ex. 16, p. 254,  xemphasis added; Tr. 47374.) The FM transmitter site was located 2.3 miles from the Ferndale studios  x(Tr. 1014), and was about a 15minute drive (Tr. 476). Blabey, however, denied telling Loginow that a  xvisit to the transmitter site was required in order to originate programming from the WJUX main studio;  x^that had never been required. (Tr. 101214.) Blabey instead recalled that Loginow asked: How can you  xput this studio on the air from here? and he responded: You have to throw a switch in the transmitter  S' xgroom. (Tr. 102728, emphasis added.) The transmitter room to which Blabey was referring was the  xWVOS(AM) transmitter room, which was located in the Ferndale building about 10 to 15 feet down the  S' xhall from the WJUX main studio. (Id.; Tr. 101314.) Blabey could not say whether he said to Loginow the AM transmitter room or just the transmitter room. (Tr. 1028.)  S' "a1paraoutlineM78. Blabey stated that there had always been a switch or switch patch in the WVOS(AM)  xtransmitter room where the WJUX main studio feed could be connected to the WJUX transmitter. (Tr.  xM101213, 1027.) This could be done by simply taking an audio cord from one circuit and jack[ing] it  So' xinto a hole in order to transfer that circuit to another circuit. (Tr. 1014; see also Tr. 477.) Blabey did  xnot demonstrate to Loginow how this was done, nor show Loginow the patch, because Loginow did not  xask. (Tr. 102829.) Blabey stated that an individual in a studio building who was running a line from  xthe building to a transmitter would place the patch at the studio, not at the transmitter. Blabey testified:  x It would be silly to make it at the transmitter. (Tr. 1027.) Loginow found the need to make a change  x&at a transmitter site 15 minutes away from a main studio in order to put the studio on the air [h]ighly unusual. (Tr. 477.)  S' "a1paraoutlineN79. Montana, too, testified that, at the time of the inspection, programming could have been  xMoriginated from WJUXs main studio without going outside the studio building. (Tr. 892.) She stated  x*that, at that time, there was a switch located on a piece of equipment in the WVOS(AM) transmitter rack  x&which was in the WJUX main studio building, 10 to 15 feet down the hall from WJUXs main studio,  xthat enabled programming to be originated from WJUXs main studio. (Tr. 892, 89596.) Montana  xtestified that, to originate programming from the WJUX main studio, the switch had to be placed in the  x up position, and once the switch was thrown, the WJUX main studio would operate the same as any other radio station studio. (Tr. 89798.)  S $' "a1paraoutlineO80. Blabey testified that there was no patch panel at the WJUX transmitter site. (Tr. 1014.)  xILoginow stated that, if there had been one, it would have been in the enclosed building housing the"$0*&&,,`%"  xtransmitters. (Tr. 478.) Loginow testified that he entered that building, made observations, and recalled  xobserving remote control equipment there, but did not see a patch panel. (Tr. 47879.) Although Blabey  xxaccompanied Loginow to the WJUX transmitter site, Loginow did not ask Blabey while there to show him  xthe patch panel in which Loginow understood cabling had to be changed to put the WJUX studio on the air. (Tr. 474, 47677.)  S' "a1paraoutlineP81. Weis testified that, for reasons of economy and efficiency, both WJUXs public affairs and  xpublic service announcements were fed to the WJUX transmitter from the Dumont studio. Weis stated  xgthat this achieved economy because MMBI did not have to engage another staff person to come to the  xMMBI studio to replay the public service programs on MMBI's tape equipment, and feed the programs  xand announcements from WJUXs main studio to its transmitter. According to Weis, it was always  xtechnically possible to do so and the programs would have sounded the same over the air. (MMBI Ex. 1, p. 8.)  S6 ' "Na1paraoutlineQ82. The WJUX Staff. Weis testified that the WJUX main studio was adequately staffed by  xBlabey, WJUXs General Manager, and Montana, WJUXs Public Affairs Director. Both were based  xessentially full time in the Ferndale main studio building. Weis stated that, although Blabey and Montana  xhad other employment with WVOS, which was also located in that building, they each had more than adequate time to perform their duties for WJUX. (MMBI Ex. 1, p. 6.)  S' "a1paraoutlineR83. Blabey was an owner of MBC, the licensee of WVOS, and acted as the General Manager of  xthose stations. (Tr. 90910.) During normal business hours, there were anywhere from one to four employees at WVOS, including Montana. Blabey supervised these employees. (Tr. 94950.)  S8' "Va1paraoutlineS84. Blabey was also WJUXs General Manager since WJUX commenced broadcasting. (Tr. 910 x11, 948; Bur. Ex. 13, p. 226.) Blabeys letter agreement with MMBI stated that Blabey was engage[d]  x... as an independent consultant on radio station management matters. (Bur. Ex. 13, p. 226.) Blabey  xtestified that he was not an employee of WJUX, and that the agreement was structured as it was for tax  x&reasons. (Tr. 91011.) The agreement also provided that Blabey would be available for consultations  xduring normal business hours, Monday through Friday, as needed. (Bur. Ex. 13, p. 226; Tr. 948.) Blabey  xtestified that he was already present at the main studio during those hours in connection with WVOS.  x(Tr. 948.) In deciding to become General Manager of WJUX, Blabey believed the position would not  xbe overly burdensome because he was already performing many functions of a General Manager for WVOS. (Tr. 947.)  S' "a1paraoutlineT85. Blabey stated that since Weis did not live in Sullivan County and was not part of the Sullivan  xCounty community, he represented the community to Weis and vice versa. Blabey testified that he and  x Weis discussed the countys economy and county happenings. (Tr. 914.) Blabey stated that he was  xinvolved in the community on behalf of both WJUX and WVOS and people in the community associated  xhim with both stations. (Tr. 932.) For example, he was a member of the Chamber of Commerce on  xbehalf of both WVOS and WJUX, with WJUX having a separate membership. He received two copies  x&of correspondence from the Chamber, one for MMBI and the other for WVOS and, when he went to  xChamber meetings, he was there in two capacities. (Tr. 933.) Blabey did promotional announcements  xon both WVOS and WJUX for an air show the Chamber promoted each summer, and he volunteered his  xtime at the air show. In doing so, Blabey stated he was representing both stations. (Tr. 93334.) There  x^were no community organizations of which he was a member in which he represented WJUX exclusively or WVOS exclusively. (Tr. 934.)"$0*&&,,`%"Ԍ S' " ԙa1paraoutlineU86. Blabey characterized his role in hiring and firing at WJUX as recruiting and suggesting  x@employees for Weis to hire. (Tr. 914.) Blabey never recommended anyone to Weis that Weis did not  xput on the payroll. (Tr. 937.) With the exception of Kirschner, who replaced Turro as WJUXs Chief  xOperator, all of the employees that WJUX hired were recommended to Weis by Blabey. (Tr. 914, 937.) For example, Blabey suggested that Weis hire Spicka as WJUXs local engineer. (Tr. 93738.)  S' "a1paraoutlineV87. On an average day, the actions that Blabey took on behalf of WJUX included answering the  xMtelephone, going through the mail, handling inquiries that he could handle himself, sending or faxing to  xkWeis in New Jersey matters that needed Weiss attention (generally involving financial matters), arranging  xfor programming, and making decisions. (Tr. 91415.) Blabey was familiar with WJUXs  xissues/programs lists (Tr. 997), which were prepared by the Jukebox Radio staff (Tr. 1412). He prepared  x3the Arbitron information requests for WJUX. (Tr. 1017.) The routine activities Blabey performed on  x*behalf of WJUX did not take a lot of his time each day. (Tr. 915.) Blabey did not have any contact with Jukebox Radio on a daily basis. (Tr. 915.)  S ' "a1paraoutlineW88. Blabey testified that he or others in the building were able to tell whether WJUXs service  xhad been interrupted because they monitored that station periodically on the radios in their offices and  xbecause listeners called in. (Tr. 974.) When Blabey learned that WJUX was off the air, he attempted to  xgget the station back on the air by calling an engineer, cranking up the generator, or calling the power  x7company. (Tr. 97677.) If both WJUX and WVOS were ever off the air at the same time, Blabey stated that he would put WVOS back on the air first. (Tr. 97778.)  S' "+a1paraoutlineX89. Weis and Blabey had an arrangement under which Blabey received a commission for sales  xmade locally for commercials on WJUX. (MMBI Ex. 8; Tr. 920, 100103.) Blabey sold time under the  xagreement, which was still in effect. (Tr. 920, 1003.) During the first year of the agreement, however, Blabey made sales presentations, but did not succeed in making sales. (Tr. 1003.)  S' "ha1paraoutlineY90. In February 1995, Blabey sought to engage a salesperson other than himself to sell time  xlocally for WJUX. (MMBI Ex. 9; Tr. 1005.) Weis approved the hiring of Stan Silverstein to make local  xsales for WJUX, with compensation on the basis of commissions. (Tr. 1005.) Silverstein worked only  xfor WJUX, and not for WVOS. (Tr. 1026.) Silverstein made sales presentations for WJUX for a short  xttime, but did not sell any advertisements. (Tr. 1005, 1026.) Blabey believed that selling advertising on  x WJUX was difficult since the station was not among the top four stations in the community and, in a  xsmall market such as Monticello/Liberty, many businesses would only advertise on the top station or the top two stations in the market. (Tr. 92022.)  S' "Ia1paraoutlineZ91. Montana, WJUXs Public Affairs Director (Tr. 822), testified that she was employed full time  xby WVOS and part time by WJUX. (Tr. 816.) As WVOSs business manager, she handled the books,  x3entered time orders, handled the billing, did the bookkeeping, prepared the broadcast log, prepared the  xypayroll, gave out prizes, acted as receptionist (Tr. 816), sold advertisements, and participated in  xVprogramming (Tr. 950). Blabey described her as a very competent individual who held the WVOS operation together. (Tr. 950.)  So"' "a1paraoutline[92. Montana was employed at WJUX since late October 1994. (Tr. 817.) She was originally  xengaged as an independent consultant but this was later changed, for tax purposes, to employee. (Bur.  xEx. 12, p. 224; Tr. 838, 834.) At the time of her employment, Blabey told her she would work the same  xhours for WJUX that she worked for WVOS. Blabey told Montana he had a parttime position available"$0*&&,,`%"  xto staff WJUXs office, answer the telephone, deal with the people who walked in, pick up and route the mail, and other similar things. (Tr. 817.)  Sg' "Ia1paraoutline\93. Montana performed numerous tasks for WJUX each day. She went to the post office to pick  x&up the mail for both WVOS and WJUX. When she returned to the studio building, she distributed the  xmail. If there was mail that needed attention from Weis or Blabey, she made sure that they saw it. She  xbrought bills to the attention of Blabey and Weis for payment. She handled petty cash, dealt with walkins, answered the telephone, and took care of the callers requests. (Tr. 820.)  S5' "ya1paraoutline]94. Montana recalled receiving only two listener complaints about WJUX. The first concerned  xthe inability of a listener to receive WJUX on his cable system. The second was from a listener who  xcomplained that WJUX was not playing enough Perry Como music. With respect to the latter, Montana  xcalled the Network and told them the nature of the complaint. The Network responded by adding to its schedule a weekly Perry Como show. (Tr. 88485.)  S ' "pa1paraoutline^95. Montana monitored WJUX broadcasts when going to and from work, but did not monitor that  xstation during the work day because WVOS's programming was heard on the speakers in the studio  x*building throughout the day. (Tr. 84041.) On the rare occasion when there was a program interruption at WJUX, Montana would check what was going on, and call WJUX's engineer. (Tr. 83941.)  S' "<a1paraoutline_96. As WJUXs Public Affairs Director, Montana represented WJUX in the community and made  xsure that PSAs of interest to the community were broadcast on WJUX. (Tr. 822.) Montana did not  x@belong to any civic groups or charitable organizations for the specific purpose of representing WJUX.  x(Tr. 823.) However, she testified that she had lived in Sullivan County for almost 20 years, that people  xknew she worked for WJUX, and that they told her of relevant happenings for broadcast on both WJUX and WVOS. (Tr. 82223, 825.)  S' "a1paraoutline`97. Montana prepared the PSA bulletin boards for both WJUX and WVOS. (Tr. 82426.) The  x*bulletin boards for both stations were generally the same. Montana testified that she prepared the bulletin  x<board for WVOS first and then used it for WJUX. On one or two occasions, however, she edited  xsomething out of the WVOS bulletin board before using it for WJUX. (Tr. 88182.) Montana was the  xone who made the choices as to what would or would not be included on the bulletin board. (Tr. 82426.)  xShe did not consult with either Blabey or Weis in this regard. (Tr. 824.) Montana received, but had no  x&role in preparing, the quarterly issues/programs lists for WJUX and put them in the WJUX public file.  x(Tr. 85657, 889; MMBI Ex. 3, p. 1.) In this regard, WJUX's public file was maintained at the Monticello Public Library. There was also a copy of the file at WJUX's main studio. (MMBI Ex. 1, p. 10; Tr. 889.)  S' "a1paraoutlinea98. When WJUX began broadcasting, Turro was the Chief Operator of the station. (MMBI Ex.  xQ1, p. 7; Tr. 84748.) He was not compensated because both Turro and Weis believed that was precluded  xby the Commissions rules. (Tr. 142324, 178990, 2013; MMBI Ex. 1, p. 7; Turro Ex. 1, p. 7.) Turro  xZserved as the Chief Operator until he was replaced by Kirschner in mid1995. (MMBI Ex. 1, p. 7; Tr.  x937, 1424.) Subsequent to his replacement, Turro did not act in the capacity of Chief Operator or hold that title. (Turro Ex. 1, p. 7.) Kirschner was hired by Weis. (MMBI Ex. 1, pp. 67.)  S<#' "<a1paraoutlineb99. Spicka, WJUXs local engineer (Tr. 93738), was hired by WJUX in August 1995 to conduct  xZweekly Emergency Action Notification System tests and meter readings (Tr. 839). Prior to his hiring,  xthese tests were originated from the Dumont studio. (Tr. 857, 99697.) Spicka was an employee on"$0*&&,,`%"  xWJUXs payroll, not a consultant. (Tr. 938.) He did not also work for WVOS. (Tr. 939.) Spicka  xworked one to two hours per week, checked over the equipment and conducted the tests, and went out  x3to the transmitter site when necessary. (Tr. 938.) He was also on call since he lived about two miles  xfrom the station, was semiretired, and was available on a moment's notice. (Tr. 93738.) Blabey called  xSpicka in to assist at the time of the FCC inspection. (Tr. 939.) In addition, when a fiber optic cable was  xcut and the Jukebox Radio program feed interrupted, an event which Montana believed occurred in the  xearly summer of 1995, Spicka originated music from the WJUX main studio by playing a music tape for  xseveral hours. (Tr. 858, 97274.) Montana stated that she heard about this program interruption from Turro, who telephoned her at her office. (Tr. 845, 860.)  S' "a1paraoutlinec100. Charles Martin was also an employee on WJUXs payroll. Martin lived about 10 miles from  x3WJUXs main studio and could be called in if Spicka was out of town. Blabey arranged for Martin to  x cover the office functions for WJUX when he (Blabey) and Montana were testifying at the hearing in Washington, D. C. (Tr. 97475.)  S ' "'a1paraoutlined101. WJUX's Remote Control Capability. During his April13, 1995, inspection of WJUX,  xLoginow made inquiries regarding WJUXs remote control capability. (Tr. 43940, 45960.) Before he  xpinspected WJUX Loginow had read the complaint lodged by Universal against Turro and Weis, and  xkunderstood that one of the allegations made was that WJUX was an unattended operation in the sense that  x3the transmitter was not being controlled at the main studio in Ferndale. (Tr. 48485, 542.) However,  xLoginow testified that he knew of no FCC rule stating that a broadcast station's transmitter may not be controlled from a point other than its main studio. (Tr. 48586.)  Sk' "ya1paraoutlinee102. Loginow asked Turro about remote control, and Turro responded that remote control and  xpmeter readings were handled at the Dumont studio. (Tr. 50809, 541, 1964.) Turro also informed  S' xLoginow that there was no remote control equipment at the WJUX studio (Tr. 440, emphasis added),  xbut that a dialup remote control system was available at WJUXs main studio (Tr. 51011, 541, 1964).  xcTurro did not mention who knew how to operate the dialup system. (Tr. 511.) Based on Turro's  xanswers, Loginow presumed that the remote control equipment at Dumont was functioning. (Tr. 50809.)  xQLoginow chose not ask Turro any additional questions about the telephone dialup remote control system. (Tr. 46364, 54546.)  S' "ya1paraoutlinef103. Blabey testified that Loginow asked him if there was a remote control unit for WJUX at  xtthe main studio, and he answered, No. (Tr. 962, emphasis added.) Similarly, Loginow testified that  S<' xhe asked Blabey whether there was any remote control equipment at WJUXs main studio. (Tr. 577,  xemphasis added; Bur. Ex. 18, pp. 33031.) Blabey told Loginow that the WJUX transmitter could be  xZremotely controlled from the Dumont studio. (Tr. 963.) Loginow did not make any inquiry of Blabey about telephone dialup remote control. (Tr. 47071, 547.)  S>' "a1paraoutlineg104. Blabey testified that there was a telephone number posted at WJUXs main studio and that,  x7by dialing the number and entering a code, the WJUX transmitter could be turned off. (Tr. 965.) Blabey  xgstated that there were other codes which could be used to turn the transmitter on, take readings, or do  xother functions required by FCC regulations. (Tr. 96566.) Blabey said he knew the codes and how to  xuse them, and could do it from a telephone located anywhere. (Tr. 963, 96566.) Blabey stated that at  xthe time of the inspection there was a telephone in the WJUX main studio which had four lines on it, all  xof which were WVOS extensions, and that any of those lines could have been used from the main studio to dial the WJUX transmitter and control it. (Tr. 96768.)"$0*&&,,`%"Ԍ S' "ԙa1paraoutlineh105. Montana testified that, at the time of the FCC inspection in April 1995, there was dialup  xremote control capability for the WJUX transmitter from the WJUX main studio. At the time of the  xinspection, Montana knew how to use the remote control. She explained that all she had to do was pick  xpup a telephone, dial a number, enter a code, and an automated voice responded. On two occasions  xMontana had instruction on how to use the dialup remote control. (Tr. 85253, 87980.) Loginow did  xnot make any inquiry of Montana about telephone dialup remote control. (Tr. 547.) Both Weis (MMBI  x@Ex. 1, p. 5) and Hurst (MMBI Ex. 2, pp. 1, 2) testified that WJUX had remote control capability to its transmitter from its main studio at the time Loginow inspected the station.     S@' "a1paraoutlinei106. On the basis of his inspection and his meetings with Blabey and Montana, Loginow  xxconcluded that WJUX was [a]ttended out of Dumont. (Tr. 485.) Loginow testified that, in his opinion,  xQdialup remote control was not adequate remote control for a station unless it met certain guidelines. (Tr.  x514.) One of those guidelines was that the dialup remote control must have a dedicated telephone line  x available continuously, exclusively for that purpose only. (Tr. 450, 441, 514.) In this connection, the following colloquy took place:  e iX` ` Q [by Mr. Riley]: Well, isn't a telephone, when it's equipped to a telephone dial  up remote control, a station equipped with telephone dial up remote control, the telephone set itself becomes remote control equipment, does it not?  X` ` A [by Mr. Loginow]: No, it doesn't, not until you're actually using it.   e i$X` ` Q: You mean that if I had a telephone sitting here and was speaking with my  S'wife, that it would not be remote control equipment?  X` ` A: That's correct.   e iX` ` Q: If I then hang up on my wife and dial the telephone number for the remote  =control equipment at the radio station and enter the code word if needed, and then begin  S"' ,to use that telephone to turn it on and off or to access a power meter, that is remote control equipment, is that right?  X` ` A: That's correct.   S\' x(Tr. 44041, emphasis added;  see also Tr. 46567.) Loginow acknowledged that he did not know for a  x*fact that there was no telephone circuit dedicated to remotely controlling the WJUX transmitter; he knew only what Blabey and Turro told him. (Tr. 487.)  S' "+a1paraoutlinej107. WJUX Main Studio Telephone. Beginning on November2, 1994, WJUX established and  xmaintained a local telephone number for the main studio. (Bur. Ex. 11, pp. 165, 190; Bur. Ex. 24, p.  x555.) This number was listed by the local telephone company (MMBI Ex. 1, p. 9; Bur. Ex. 11, p. 193),  xNYNEX, and was tollfree for residents of Monticello (MMBI Ex. 1, p. 9; Bur. Ex. 24, p. 555). However,  xcalls to that number were not answered at the WJUX main studio until July 1995. (Bur. Ex. 24, p. 555;  xMBur. Ex. 25, p. 562.) Rather, prior to July 1995, all calls to the WJUX number were forwarded to the  xMDumont studio and were answered there. (MMBI Ex. 1, p. 9; Bur. Ex. 25, p. 562.) Telephone billing"$0*&&,,#"  xrecords for the WJUX telephone number for the period from November 1994 to June 1995 showed that  xDa number of calls were forwarded to Dumont, that long distance charges and charges for call forwarding  xservice were made for individual calls, but that those charges were not billed to the callers. (MMBI Ex. 1, p. 9; Bur. Ex. 11, pp. 190, 197, 199, 201, 205, 208, 212, 214.)  S8' "a1paraoutlinek108. Weis stated that, subsequent to the FCC inspection, a telephone jack for the WJUX number  xwas relocated within the building housing the WJUX main studio, a telephone was acquired, and the  x*practice of forwarding calls placed to the WJUX number was ended. (Bur. Ex. 25, p. 562.) Since some  xpoint in mid1995, Weis testified, all calls to the WJUX telephone number were answered at the WJUX main studio. (MMBI Ex. 1, p. 10.)  SH ' "Ra1paraoutlinel109. Weis testified that he did not recall knowing of the callforwarding arrangement as of late  xJuly 1995. (MMBI Ex. 1, p. 9; Bur. Ex. 11.) Weis stated that he never tried to call the WJUX telephone  xnumber, so his calls were never forwarded to Dumont. If Weis needed to call and talk to Blabey or  xMontana, he called the WVOS number. This was a continuation of his habit in dealing with Blabey from  xthe very beginning. Weis never tried to call the number listed in the directory for WJUX just to see what would happen. (Tr. 144142.)  S0' "a1paraoutlinem110. Howard Warshaw, one of the owners of Universal, which lodged a complaint with the  xCommission against Turro and Weis (Bur. Ex. 2; Tr. 104344), testified that on January30, 1995, he  xcalled directory assistance for area code 914 and was given the telephone number for WXTM. Upon  xdialing that number he eventually spoke with Turro, who gave him the location in Monticello, New York, of the station's public inspection file. (Bur. Ex. 2, p. 48; Tr. 1067.)  S@' "Ja1paraoutlinen111. Similarly, in seeking to locate WXTM on April13, 1995, Loginow called directory  xkassistance in Ferndale and was given a telephone number for WXTM. When he called the number, it was  xanswered in Dumont, New Jersey. During the course of this call, Loginow was treated courteously and was given directions to WXTMs main studio. (Tr. 48182.)  Sx' "'a1paraoutlineo112. According to Blabey, at the time of the inspection WJUX had a telephone line into the  xoffice building in which the WJUX and WVOS studios were located, but WJUX's telephone line was not  xQconnected to its main studio room. (Tr. 96768.) Blabey testified that calls made to the WJUX telephone number were automatically forwarded to the Network in Dumont, New Jersey. (Tr. 96869.)  S' "a1paraoutlinep113. Montana testified that at the time WJUX went on the air she was not aware of a telephone  x at the WJUX premises for individuals calling that station. (Tr. 821.) At that time Montana did not  xZhave a telephone in her office for WJUX's line. (Tr. 820.) She stated that a telephone for WJUX was  xinstalled on her desk in early July 1995. (Tr. 86162.) Montana testified that [t]he community  xIsomehow found out that the WJUX studio was located at the WVOS studio and, if someone in the  xcommunity wished to call WJUX, they called on the WVOS line. (Tr. 82021.) The calls she received  xwere generally calls complimenting the music on WJUX and asking for requests to be played. (Tr. 864 x65.) Montana recalled that there was a listing for WXTM in the May 1995 local telephone directory, which was the first to be published after the station began operations. (Tr. 88788.) "H$0*&&,,""Ԍ S' "a1paraoutlineq114. All of the bills for telephone service from November 1994 to mid1995 were sent by  xMNYNEX to Jukebox Radio, which paid those bills. (MMBI Ex. 1, p. 3; Bur. Ex. 11, pp. 189214.) At  xQthe hearing, Weis speculat[ed] that this occurred because Turro placed the order for WJUX's telephone  x&service. Weis explained that when the station was being built, it was recognized that WJUX needed a  xtelephone in the studio. Turro was working in the Ferndale studio with his Network equipment while  xpWeis was at the tower site in Liberty installing equipment. Weis believed that Turro picked up the  xpphone, called NYNEX, [and] ordered a telephone. (Tr. 1437.) Since WJUX had no account with  xNYNEX anywhere, Turro ordered the service on Jukebox Radios account since he had the information  x@at his fingertips. (Tr. 143738.) When it was subsequently discovered that Turro was paying Weiss  xtelephone bill, Weis did the required paperwork, the billing was changed, and MMBI paid all subsequent  xbills for WJUX telephone service. (Tr. 1438; MMBI Ex. 1, p. 3.) Weis never reimbursed Turro or Jukebox Radio for the telephone bills they paid. (Tr. 1438.)  S '  D. Issue 1: Translator and Auxiliary Station Rules Issue ă  S ' (1) Background and Technical Operations   SX' "Na1paraoutliner115. Network Connections to WJUX. Turro leased a 56 Kbps land line from the telephone  xQcompany to carry the Jukebox Radio programming feed and remote control commands from the Dumont  x^studio to WJUX. (Turro Ex. 1, p. 8; Tr. 1504.) The 56 Kbps land line had two channels, a wide channel  xtfor audio and a narrow channel for data. The narrow data channel was used for remote control of the  xWJUX transmitter. (Tr. 1504, 1545; Turro Ex. 33.) Turro subsequently established a second land line  xto WJUX as a backup in case the first line was interrupted. This was done because the Network had experienced service outages due to failures of the land line. (Turro Ex. 1, p. 8.)  S' "a1paraoutlines116. With few exceptions, Jukebox Radio programming was originated in the Dumont studio.  x(Turro Ex. 1, p. 8.) That studio contained both program creation and audio production control rooms.  xk(Turro Ex. 7, p. 2.) The programming was transmitted, live or taped, through the land lines to the WJUX  xmain studio or to its transmitter. There, Network equipment processed the programming feed, and the  xgprogramming was broadcast by WJUX on its authorized frequency of 99.7 MHz. (Turro Ex. 1, p. 8.)  SP' xTurro personally installed the Network equipment which allowed this to be done. (Id. at 6.) According  xkto Turro, the broadcast from WJUX could be received directly off the air, or directly through space, by  S'the Fort Lee and Pomona translators, processed, and retransmitted by both of them. (Id. at 8.)  S' "a1paraoutlinet117. The TC8 Remote Control System. TC8 Remote Control Systems allowed remote control  xand monitoring of broadcast transmission facilities from a studio or other remote location. The system  xconsisted of two physically identical units, one located at the transmitter site and the other at the remote  x*location. (Turro Ex. 28, p. 5.) The TC8 Remote Control System allowed for telemetry, also called data  x(Tr. 1511), to pass between the units to provide information at a remote location in the form of eight  xMdifferent status lights and eight different channels, along with raise and lower switches, to control  xremotely such items as transmitters and antenna switches. (Turro Ex. 28, p. 5.) A fivedigit dotmatrix  xtarray on each unit displayed the channel selected (first digit) and the analog values associated with that  St#' xparticular channel (last four digits). (Id. at 56, 15.) The link between the studio and transmitter TC8  xDunits may be by either wire or radio connection. The radio links were typically an STL subcarrier for the"N$0*&&,, #"  S' xstudiototransmitter path and an FM subcarrier for the return path from the transmitter to the studio. (Id.  S'at 5.) y yOB' x ԍ During the hearing, Turro provided live demonstrations of the operations of the TC8 Remote Control Systems  xM in place at Jukebox Radio for control of the WJUX and Fort Lee transmitters. These demonstrations featured  x identical model TC8 units as were actually used in the Dumont studio and at the transmitters. (Monticello demonstration: Tr. 14881612; Turro Exs. 33, 38. Fort Lee demonstration: Tr. 16121725; Turro Exs. 34, 39.)  S' "a1paraoutlineu118. The eight status lights essentially provided the studio with on/off indications. (Tr. 153435,  xg164851.) The channels were used to control functions remotely from the studio or to read numerical  x7status. The uses and functions of the channels were entirely independent of the status lights. (Tr. 152527, 1529, 153233, 155657, 1573, 1614.)  S' "a1paraoutlinev119. Since WJUX first went on the air in late October 1994, Jukebox Radio maintained two  x*separate and independent TC8 systems for the remote control of WJUX and the Fort Lee translator, one  xsystem for each of those stations. (Turro Ex. 1, p. 10; Tr. 1501.) These units were never replaced. (Tr.  x@1490.) The link between the Dumont studio TC8 unit and WJUX was by a data path on the 56 Kbps  xland line which carried the Jukebox Radio program feed from the Dumont studio. (Turro Ex. 1, pp. 8,  x310.) The link between the Dumont studio TC8 unit and the Fort Lee translator initially was on a data  S ' xIpath along WMG499. (Id. at 1112.) Turro testified that he never maintained any remote control  S 'capability for the Pomona translator. (Id. at 10.)  S^' "a1paraoutlinew120. Arrangement for Remote Control of WJUX. The 56 Kbps land line connecting the Dumont  xstudio to WJUX had two purposes. The first was carriage of the programming on a wide audio channel  xfrom the Dumont studio for broadcast by WJUX. The second was carriage of telemetry on a narrow data  xchannel between both ends of the TC8 Remote Control System for control of the WJUX transmitter from the Dumont studio. (Tr. 1504; Turro Ex. 33; Turro Ex. 2, p. 4.)  Sn' "a1paraoutlinex121. Initially, Turro installed a small amber strobe light in the Dumont studio as part of the TC8  xremote control arrangement for the WJUX transmitter. Turro handwrote Off Air on the strobe light.  x(Tr. 149697; Turro Ex. 38.) Turro attempted to connect the light in such a way that if the land line  xconnection between the Dumont studio and the WJUX transmitter failed, the light would flash and warn the Dumont studio staff of a problem. (Tr. 150405, 154849; Turro Ex. 33.)  S~' "+a1paraoutliney122. Turro had never installed such an arrangement before (Tr. 1504), and he learned that the  xstrobe light would flash in the event that there was trouble on the narrow data channel, even though the  xbroader audio channel carrying the program feed would be functioning properly and the WJUX transmitter  xwould also be functioning properly (Tr. 1497, 150506, 1604, 160507, 160810). Turro also came to  xlearn that the operation of the data path itself was unreliable, which would cause the strobe light to flash  xQsporadically, even though at all times the program feed from the Dumont studio to the WJUX transmitter,"0*&&,,"  S' x3and the transmitter itself, were operating properly. (Tr. 150506, 1510, 1546.) y yOh' x ԍ At the hearing, Turro demonstrated that the data channel could be shorted out, causing the strobe light to  xM flash, but that power at the WJUX transmitter would be uninterrupted. (Tr. 151517.) Turro testified that this  x showed that the flashing strobe light in the Dumont studio did not indicate that WJUX had stopped transmitting or that the station had lost its audio feed from the Dumont studio. (Tr. 151721.) Turro stated that the strobe light was disconnected in the spring or summer of 1995. (Tr. 1585.)  S' "la1paraoutlinez123. Turro also installed an outboard safety button which disabled the on/off and raise/lower  xfunctions of the TC8 unit in the Dumont studio. Turro testified that in order to turn the WJUX  xtransmitter on or off, the outboard safety button and a button on the TC8 unit would have to be pressed  xsimultaneously. He did this in order to prevent an accidental shut down of the WJUX transmitter if the wrong buttons on the TC8 unit were pressed. (Tr. 1535, 156869.)  S' "/a1paraoutline{124. On July6, 1995, the land line carrying programming from the Dumont studio to WJUX was  xcut, causing a loss of program delivery to the station. This resulted in dead carrier being heard on the  xair from WJUX and from the Fort Lee and Pomona translators. (Tr. 158083, 158688, 1598.) Turro  xtestified that dead carrier sounded like [n]othing. Not noise, just silence. ... Very quiet. (Tr. 1586;  S ' xsee also Tr. 174546.) On that day, Hurst, one of Turro's consulting engineers (Tr. 1862), and Turro were  xinspecting the translator facilities and WJUX. Thus, Hurst also personally observed that when the land line was cut, WJUX and the two translators all transmitted dead carrier. (Tr. 158894, 186970.)  SZ' "a1paraoutline|125. Turro testified that a second land line cut subsequently occurred which again resulted in the  xtransmission of dead carrier by WJUX and the Fort Lee and Pomona translators. (Tr. 1595.) When this  x@happened, Spicka was called to WJUX and played music tapes from the WJUX main studio, restoring  xprogramming to WJUX and the Fort Lee and Pomona translators. (Tr. 1611, 858, 97274.) According  xto Turro, the only time in the history of WJUX that the transmitter completely lost the ability to generate  xcarrier was on April14, 1995, when Loginow instructed that the transmitter be turned off and on as a part of his inspection of that station. (Tr. 1579; Bur. Ex. 17, pp. 264, 267.)  S' "a1paraoutline}126. Arrangement for Remote Control of the Fort Lee Translator. The TC8 Remote Control  xSystem between the Dumont studio and the Fort Lee translator utilized the same model TC8 units as did  xthe system for remote control of the WJUX transmitter. The DumontFort Lee system, however, was  xcompletely separate from the DumontWJUX system, and the functions of the status lights and channels  xwere different. (Tr. 1501, 161316.) Over time, installations at the Fort Lee translator included several  xdifferent antennas to receive signals off the air from WJUX and from the Pomona translator, a main and  xauxiliary transmitter, a main and auxiliary transmitting antenna and, while it was in operation, receive  xfacilities for WMG499. The TC8 system between the Dumont studio and the Fort Lee translator allowed  xTurro to switch remotely among those facilities, but did not permit remote adjustments to the power of  xthe Fort Lee translator transmitter. (Turro Ex. 1, p. 10; Turro Ex. 2, p. 4.) In this connection, because  xof the way it was manufactured, the power of the WJUX transmitter could not be raised or lowered by  xZremote control. Power adjustments had to be done on site. However, the WJUX transmitter could be  S:'turned on and off by remote control. (Id.; Tr. 1535, 1537, 153943, 1569, 1741.) " 0*&&,,"Ԍ S' "a1paraoutline~127. During the time when WMG499 was in operation, Turro used it to transmit the remote  x&control telemetry from the TC8 unit at the Dumont studio to the TC8 unit at the Fort Lee translator.  x(Turro Ex. 1, pp. 1112; Turro Ex. 34.) The Fort Lee translators FM subcarrier transmitted the telemetry  xfrom the Fort Lee translator to the Dumont studio. (Tr. 170708.) Turro also maintained an audio path  x*carrying the Jukebox Radio programming on WMG499 at all times. (Turro Ex. 1, p. 12; Turro Ex. 34.)  xThe audio path terminated into a dummy load (Tr. 1619), which consisted of a 600 ohm resistor (Tr.  x1667). Turro explained that, by keeping an external load on the output audio section of the microwave  xgunit, energy was dissipated into the resistor, and damage to the facilities of the Fort Lee translator was prevented. (Tr. 166770.)  Sp' "4a1paraoutline128. Turro testified that he kept WMG499 in operation continuously to allow it to provide  xconstant telemetry, and to prevent damage to its facilities because it was the kind of unit that could have  x*been damaged by being turned on and off repeatedly. Turro further testified that, because the New York  xxCity area suffered from severe frequency congestion, he placed the Jukebox Radio feed on the WMG499  xaudio path so that the WMG499 signal could be monitored and identified easily by third parties wishing  xto know the source of the signal. (Turro Ex. 1, p. 12.) Turro testified that, for the entire time that WJUX  xbroadcast Jukebox Radio programming, he never caused the WMG499 audio path to provide  SX' xprogramming to the Fort Lee translator transmitter unless there was an emergency. (Id. at 12, 27.) Turro  xstated that the Fort Lee translator transmitter was set to rebroadcast the signal of the Pomona translator  S 'or WJUX. (Id. at 12.)  S' "ua1paraoutline129. Turro testified that the ability to provide audio programming directly from the Dumont  xstudio to the Fort Lee translator allowed him to place emergency messages on the air. (Turro Ex. 1, pp.  x1011.) In this regard, Jukebox Radio had a cooperative understanding with the Bergen County Office  xkof Emergency Management ( Office) by which Jukebox Radio would broadcast emergency messages to  S' xthe public, as necessary, as the broadcast information outlet of the Office. (Id. at 11; Turro Ex. 3.)  xTurro's memory was unclear as to the number of emergency messages that might have been put on WMG x499 during the period from October 1994 to its deactivation, and he testified that it was possible that no  xemergency messages were put on during that period. (Tr. 180710, 210708.) Turro never maintained records of emergency messages. (Turro Ex. 1, p. 11.)  S.' "a1paraoutline130. Sergeant Paul A. Einreinhofer of the Office (Turro Ex. 3, p. 1) testified that the Office had  xrequested that Turro put official information on the air, and that the Office had supplied Turro with such  xinformation. However, the Office never requested Turro to interrupt regular programming to broadcast  x emergency information. (Tr. 132729.) Einreinhofer explained that the word emergency had different meanings depending on the context in which it was used and the individual using it. (Tr. 132931.)  S>' "a1paraoutline131. Turro also testified that the ability to provide audio programming directly from the Dumont  xstudio to the Fort Lee translator allowed him to insert 30second announcements. (Turro Ex. 1, p. 10.)  xHowever, Turro acknowledged that after WJUX went on the air there was no purpose in sending 30 x"second announcements to the Fort Lee translator, and that none were, in fact, broadcast over that translator. (Tr. 1718.)  SN$' ""a1paraoutline132. By letter to the Chief of the Commission's Microwave Branch, dated June13, 1995, William  xJ. Getz, one of Turro's consulting engineers (Bur. Ex. 8, p. 115), stated that WMG499 provided remote"&%0*&&,,#"  xcontrol capability to switch from the Fort Lee main transmit antenna to its authorized auxiliary antenna,  xxand that this was critical to the operation of that translator because of frequent operational problems with  S' x the main transmit facility. (Id. at 123 n.1.) Getz also stated that WMG499 was used to deliver 30 xsecond messages and emergency warnings to the population of Bergen County, as authorized by Section  x*74.1231(g) of the Commission's Rules. Getz stated that WMG499 was in use 24 hours per day for two  xreasons. First, he stated that the microwave equipment was not manufactured to operate on an intermittent  xbasis, and that switching it on and off every hour for a 30second transmission would eventually lead to  xequipment failure. Second, Getz stated that WMG499 must be operational continuously to make it  x readily identifiable. In this connection, Getz stated: In the event WMG499 causes interference, the  xoffended party will have the ability to easily identify the transmission source. In a onceanhour, 30 Sr'second message, it would be extremely difficult to identify the interfering source. (Id. at 123.)  S$ ' "a1paraoutline133. Turro testified that, during the time that WMG499 was in operation, he had two means of  xtaking remote control of the Fort Lee translator audio transmission from the Dumont studio in the event  xof an emergency. The primary way was to use the telemetry which was carried on the data channel on  x*WMG499. The second way was a fail[]safe. In the event that the telemetry path on WMG499 was  x7interrupted, the remote control unit at the Fort Lee translator was programmed to home immediately onto  xxthe audio path on WMG499 and rebroadcast that signal. (Turro Ex. 1, pp. 1213; Tr. 162126, 162932,  x163738.) Turro testified that he maintained this arrangement so that, if all else failed, he could still get  xemergency messages on the air by simply taking the data off of WMG499. (Turro Ex. 1, p. 13; Tr.  x162426.) However, if the microwave receiver at the Fort Lee translator lost the 951 MHz input  xcompletely, that is, if there was no 951 MHz signal coming in at all, the receiver was programmed to  xforce the translator to receive the offair signal from the Pomona translator or WJUX. (Turro Ex. 1, p. 13; Tr. 162829, 163132, 163334, 167678, 168182, 1683.)  S' "+a1paraoutline134. In addition to WMG499, Turro maintained a low quality 8 kHz circuit which could have  xQbeen used to carry spoken emergency messages. (Turro Ex. 1, p. 12; Tr. 1715, 1719.) This circuit was  x*installed in 1993, prior to the licensing of WMG499. The installation cost was approximately $2000 and  xthe monthly service charge for the circuit was about $100 to $150. (Tr. 171415.) Turro testified that,  xafter receiving the WMG499 license, he kept the 8 kHz circuit in place because he had already invested  x7$2000 in its installation and he was afraid that if he gave it up he would never get it back. (Tr. 171516.)  xAccording to Turro, the 8 kHz circuit was never used, and the audio quality of music programming sent  S' xkover such a circuit would have been severely degraded. (Turro Ex. 1, p. 12; Tr. 1714, 1719; see also Tr. 1876.)  S' "a1paraoutline135. Turro did not believe that this 8 kHz circuit could have been used for telemetry (Tr. 1716 xM18), stating that, in the 25 years he had been either a chief engineer or chief operator of radio stations,  xghe had never seen an 8 kHz circuit used for the transmission of data (Tr. 1723). However, Turro also  xtestified with respect to such use: [O]ne thing I have learned in life is never say anything is impossible. It's entirely possible. I have never ever seen it done. (Tr. 1717.)  S"' "a1paraoutline136. Hurst testified that an 8 kHz telephone line would be sufficient for remote control telemetry  xpurposes if analog equipment was being used. He did not know whether digital equipment could be  x^controlled through an 8 kHz circuit. (Tr. 1875.) He also testified that, because of the limited band width, an 8 kHz circuit would not normally be used for transmitting both audio and telemetry. (Tr. 1883.)"&% 0*&&,,#"Ԍ S' "Eԙa1paraoutline137. When WMG499 was deactivated in early July 1995 (Tr. 1616), Turro used a 9600 baud  xtelephone circuit to carry the remote control telemetry between the Dumont studio and the Fort Lee  xtranslator. (Turro Ex. 1, p. 13; Turro Ex. 2, p. 5; Tr. 1722.) Turro testified that this 9600 baud circuit  xxwas entirely inadequate to carry the Jukebox Radio programming material. (Turro Ex. 1, p. 13; Tr. 1741 x42.) Hurst, too, testified that a 9600 baud telephone line was not of sufficient bandwidth to provide  xkacceptable quality audio, but could be used for the switching capability for which it was intended. (Turro Ex. 2, p. 5.)  S' "a1paraoutline138. The Fort Lee Translator. The Fort Lee translator is located on the 24th floor of the  x&Mediterranean Towers apartment building in Fort Lee, New Jersey. The Mediterranean Towers is 26  xstories tall, and Turro had access to the roof for the placement of antennas. (Turro Ex. 1, pp. 6, 25; Turro Ex. 2, p. 1.)  S ' "Ra1paraoutline139. In late October 1994, Turro adjusted the receiving equipment at the Fort Lee translator to  xstart receiving the signal of WJUX, which transmitted at 99.7 MHz. (Turro Ex. 1, p. 5.) Turro had  xDpreviously performed tests and located an area of about four square feet on the roof of the Mediterranean  x^Towers, which he called a hot spot, from which he was able to receive the signal of WJUX directly off  xthe air using nothing but a digital Sony car radio, Model XR2500, and a car antenna. (Turro Ex. 32, pp.  x*12.) This hot spot was a specific, discrete location on the roof with a high field where good quality  xQreception of WJUX existed even though various propagation models would have predicted such reception  xas marginal. (Turro Ex. 2, pp. 12; Turro Ex. 35, p. 2.) On August2, 1995, Turro showed Loginow  S'the hot spot, and Loginow heard WJUX off the air from that location. (Tr. 176061; see also Tr. 39091.)  Sj' "ca1paraoutline140. Hurst also testified to the existence of the hot spot which, he stated, was two to three square  xfeet, where good quality reception of WJUX was possible without the use of filtering devices. (Turro  xEx. 2, p. 2; Tr. 1877, 1887, 188889.) Beyond this twotothree square foot area, Hurst observed that the  xreception of WJUX was degraded. (Tr. 1877.) From any other location on the roof, Hurst stated, filtering devices would have been necessary in order to receive a good quality signal from WJUX. (Tr. 188789.)  Sz' "Ia1paraoutline141. Hurst personally observed the hot spot in July 1995 and October 1997. He stated that it was  xin exactly the same location on both occasions, and that reception in the hot spot was very good both  xtimes he was there. (Turro Ex. 2, pp. 12 and Att. B, p. 3; Turro Ex. 35 p. 2; Tr. 187677.) Hurst saw  x7nothing on the roof that would have explained the hot spot, including any reflector device. He also stated  xxthat he had previously seen hot spots like this that were continuous over a long period of time in a twoto xthree square foot area. (Tr. 187778, 1890.) Hurst believed the probability of finding a similar hot spot  xpon the top of a building where an individual already had a lease was [l]ess than one percent. (Tr. 1891.)  S ' "a1paraoutline142. Hurst defined dummy load as a resistive load which is utilized normally to feed a  x*transmitter for test purposes to be able to determine the performance of the transmitter as it[']s operating  xinto a known precision load. (Tr. 1879.) In Hurst's opinion, the presence on the roof of the  x*Mediterranean Towers of a microwave audio path dummy load could not have been a contributing factor  x^to the existence of a hot spot. (Tr. 1908.) Similarly, it was Hurst's judgment that a telephone line, placed  xunder the tar and gravel surface of the roof, terminating in a dummy load would not have resulted in the  xQhot spot he detected and observed. (Tr. 1880.) Although Hurst never checked for the possibility that the""%!0*&&,,#"  S' xhot spot might have been created by locally generating a signal into a dummy load (id.), he did not think that there was anything of that nature in operation (Tr. 1912).  S' "ca1paraoutline143. John E. Hidle, another consulting engineer for Turro, observed the hot spot in October 1997,  xand personally heard WJUX off the air, free from interference from WBAI, by listening to a radio  xreceiving from that spot. Hidle characterized the reception quality as fairly good [but not] perfect[, with]  xa slight bit of what appeared to be adjacent channel interference, occasionally. (Tr. 192324; Turro Ex.  xV36, p. 2.) Hidle testified that he made an extra effort ... to discover a hidden method[ ] of signal  xdelivery to the Fort Lee and Pomona translators, but none was found. (Turro Ex. 7, p. 6.) In this regard,  x@he stated: Careful examination of the rack wiring [of the Pomona translator] revealed no unidentified  xwires or cables[, and a]ll wiring and interconnections [of the Fort Lee translator] were similarly accounted  xfor. There were no sources of audio program input observed other than that provided by the offair  S" 'reception. (Id.)  S ' "Ra1paraoutline144. In October 1994, Turro installed a Yagitype receive antenna in the hot spot for reception  xpof WJUX. He also installed a second such antenna a few feet away to receive first adjacent station  x*WBAI. (Turro Ex. 32, p. 2.) He connected transmission lines from both antennas to a Microwave Filter  xgCompany, Inc., Model 2903UHF Phase Canceller according to the manufacturer's instructions, and  S4' xadjusted the Phase Canceller until interference from WBAI was eliminated. (Id.; Turro Ex. 40, p. 1; Tr.  S' xZ172324; see also Tr. 192832.) This Phase Canceller was manufactured, sold, or shipped in October  S'1994. (Tr. 191011, 2111.)dy yOP'ԍ Photographs of the Phase Canceller appear at Turro Ex. 40.d  S' "a1paraoutline145. Turro testified that this arrangement was used exclusively from late October 1994 to mid xJanuary 1995, and at all times provided an adequate signal from WJUX for rebroadcast. Turro's testimony  xQin this regard was based upon his monitoring of the Fort Lee translator on a daily basis during this period.  xMHowever, to maintain good reception of WJUX, Turro had to go to the Fort Lee translator about three  xtimes to make minor adjustments to the Phase Canceller. (Turro Ex. 32, p. 2.) These adjustments were  xmade by turning two knobs built into the device. (Tr. 211112.) Turro testified that during the time the  xMPhase Canceller was in use, the quality of the WJUX signal received and rebroadcast was consistently good and variations in signal reception were minor. (Turro Ex. 32, pp. 23.)  S0' "+a1paraoutline146. In the spring of 1995, Turro replaced the Phase Canceller with a 40 dB notch filter. The  xtnotch filter performed virtually the same function as the Phase Canceller but did not require occasional  xZadjustments. The notch filter did not cause any significant change in reception quality as compared to  xthe Phase Canceller. (Turro Ex. 32, p. 3.) Hurst saw this 40 dB notch filter in place when he inspected the Fort Lee translator on July6, 1995. (Turro 35, p. 2; Turro Ex. 32, pp. 34.)  S@' "a1paraoutline147. In late July 1995, Turro replaced the 40 dB notch filter with a connected pair of 30 dB  xnotch filters. Turro observed no difference in signal quality due to this change in filtering devices. This  xarrangement of filters was in place and was observed by Loginow on August2, 1995, and has remained basically unchanged since then. (Turro Ex. 32, p. 4.) """X0*&&,,]!"Ԍ S' "a1paraoutline148. Hurst testified that, although filtering would improve or increase the reliability of reception  x slightly as a result of any longterm fade which may occur in the signal, there would have been no  xMmaterial change in the ability of the Fort Lee translator to receive WJUX. (Tr. 1863, 186465.) Hurst  xexplained: You have to remember that you don't need a filter. You can stand on the roof and you can  xreceive [the] Monticello [station] with the Sony radio[ ] and a simple dipole antenna without interference from the adjacent Channel WBAI. (Tr. 1864.)  S' "8a1paraoutline149. The Fort Lee translator received programming from the Pomona translator by use of one  xof Turro's receiving antennas and one of his receivers tuned to 94.3 MHz, the frequency of the Pomona  xtranslator. The receive antenna for the Pomona translator was usually located on the roof of the  xMediterranean Towers. However, during the spring of 1995, vandals had stolen or damaged Turro's roof xmounted equipment several times. Turro found a secure location in the basement of the Mediterranean  x Towers which received a strong signal from the Pomona translator, placed a receive antenna there to  xgreceive that translator, and connected it to the receiver by internal telephone wiring. This arrangement was in place on May15, 1995. (Turro Ex. 1, p. 22.)  S ' (2) Inspections, Tests, and Observations   S0' "a1paraoutline150. The April14, 1995, Testing and Inspection. As discussed earlier, on April13, 1995,  xLoginow conducted an inspection of WJUX's main studio and transmitter (Tr. 33637), and spoke with  xTurro on the telephone (Bur. Ex. 18, p. 331). Loginow told Turro that he was going to the Dumont studio  xthe next morning to test whether the Fort Lee and Pomona translators were receiving the WJUX overthe xair signal by switching the station's transmitter on and off and listening to the translators. Turro told  xLoginow that, because of a recent lightning strike, he preferred that it be turned on and off by an  x*experienced engineer at the transmitter site rather than by remote control. Blabey informed Loginow that  xhe would arrange for someone to be posted at the transmitter site and gave Loginow the telephone number at that site. (Bur. Ex. 18, pp. 33132.)  S' "a1paraoutline151. On April14, 1995, Loginow drove an FCC vehicle to a location on Route 9 in New Jersey  x where he could receive the signals of both the Pomona and the Fort Lee translators. Loginow used a  xcellular telephone to call the telephone number for the WJUX transmitter site that Blabey had given him.  S(' xgAfter identifying himself to the engineer at the transmitter,(y yO'ԍ Loginow could not recall the engineer's name (Tr. 343), but Blabey testified that it was Spicka (Tr. 96465). Loginow directed that individual to kill it,  xmeaning to turn the transmitter off. (Bur. Ex. 18, p. 332.) Nearly instantaneously, the programming  xthat Loginow had been hearing from the Pomona and Fort Lee translators was replaced by white noise  S' xon the translators frequencies. (Id.; Tr. 344.) Loginow described white noise as the sound that you hear  xQwhen you tune between two FM stations, like a hissing sound. (Tr. 34445.) Turro demonstrated what  xwhite noise sounded like and it was described as a staticy crackle. (Tr. 174647.) Loginow testified  xtthat hearing white noise was consistent with the [WJUX] transmitter being turned off ... resulting in  xxthe loss of that overtheair signal by the translators. (Bur. Ex. 18, p. 332.) Loginow then instructed the  xengineer at the transmitter site to turn the transmitter back on and Jukebox Radio programming returned to the Pomona and Fort Lee translators almost instantaneously. (Tr. 346.) ""#X0*&&,,j!"Ԍ S' "a1paraoutline152. Loginow stated that, from this testing, he determined to a high degree of assurity that on  xMApril14, 1995, the Fort Lee translator was receiving Jukebox Radio programming off the air from the  x3Pomona translator. At the same time, Loginow was able to determine that the Pomona translator was  xIreceiving Jukebox Radio programming off the air from WJUX. (Tr. 34546.) Loginow observed,  xhowever, that the audio quality of the Fort Lee and the Pomona translators was degraded due to splatter  xxfrom WBAI, which Turro attributed to the WJUX transmitter operating at reduced power due to a recent  xDlightning strike. In this connection, Loginow had previously observed that the operating power of WJUX  S' x^was reduced. (Tr. 38586; Bur. Ex. 4, p. 84; Bur. Ex. 16, p. 255; see also Turro Ex. 1, p. 28.) Loginow stated that the two translators passed the test on April14, 1995. (Tr. 34546.)  Sr' "Ra1paraoutline153. After this testing, Loginow went to the Dumont studio, where he asked to see the remote  x*control equipment for WJUX. Loginow was shown the equipment, but he did not inspect or test it. The  xxduration of Loginow's visit to the Dumont studio was about ten minutes or less. (Bur. Ex. 18, p. 333; Tr. 34648.)  S ' "/a1paraoutline154. On October17, 1997, Hurst, Hidle, and Kirschner tested the ability of the Pomona translator  xto receive WJUX when it operated at reduced power. Hurst testified that, based upon this actual testing,  xit was determined that the Pomona translator remained able to receive WJUX with the WJUX transmitter  x^operating at levels below 100 watts before the signal could no longer be received. (Turro Ex. 2, pp. 45.)  xWJUX was authorized to operate with an Effective Radiated Power ( ERP) of 6.0 kW. (Bur. Ex. 2, p. 41; Bur. Ex. 5, p. 89; Bur. Ex. 11, p. 174; Turro Ex. 2, Att. B, p. 4.)  S' "a1paraoutline155. The May15, 1995, Testing. On May15, 1995, without any prior warning to WJUX or  xJukebox Radio personnel, Loginow conducted some testing from the roof level of the Mediterranean  xTowers building. (Bur. Ex. 18, p. 333; Bur. Ex. 4, p. 84; Bur. Ex. 16, p. 255; Tr. 353.) This was the first  xtime that Loginow visited and tested the Fort Lee translator. He did not, at this time, view or inspect any  xDof the translators facilities. (Tr. 363.) Loginow characterized the audio quality he heard on the Fort Lee  x@translator on that day as very high, with no detectable splatter from WBAI. (Bur. Ex. 4, p. 84; Bur. Ex. 16, p. 255.)  SR' "a1paraoutline156. Using a portable signal generator (Tr. 349) set at the frequencies of WJUX (99.7 MHz), the  xPomona translator (94.3 MHz), and WMG499 (951 MHz), Loginow was attempting to determine whether  x@the Fort Lee translator was rebroadcasting the signal of WJUX, the Pomona translator, or WMG499.  x(Bur. Ex. 18, p. 333.) Specifically, Loginow wanted to see if the receive equipment of the Fort Lee  xktranslator would pick up the signal he was generating, which was an unmodulated, or dead, carrier, and  xthen retransmit it on its frequency of 103.1 MHz. (Tr. 355, 358.) The tests involved generating a low  xlevel signal on a frequency that would override another weaker or more distant signal on the same  xtfrequency. (Bur. Ex. 18, p. 333.) Loginow testified that the maximum output of the signal generator  x^was less than half a watt. A threefoot whip antenna which was capable of being hand held was attached to the signal generator. (Tr. 352, 358.)  S"' "+a1paraoutline157. Loginow first generated a signal on 99.7 MHz, determined that the generated signal was  xnot overriding any other signal on that frequency, and concluded that there was no signal from WJUX  xbeing rebroadcast by the Fort Lee translator. Loginow next generated a signal on 94.3 MHz, determined  xthat the generated signal was not overriding any other signal on that frequency, and concluded that there""%$0*&&,,#"  xQwas no signal from the Pomona translator being rebroadcast by the Fort Lee translator. (Bur. Ex. 18, pp. 33334.)  S' "8a1paraoutline158. According to Loginow, if his dead carrier had been getting into the receiver of the Fort  xLee translator, it would have disrupted, or gradually silenced, the WJUX or Pomona translator offair  x*signals if the Fort Lee translator had been receiving those signals. (Bur. Ex. 18, p. 334; Tr. 35559.) To  xdetermine this, Loginow monitored the Fort Lee translator by listening to its output through headphones  x@connected to a standard Sony radio. Had the Fort Lee translator been receiving the signal of WJUX  xor the Pomona translator, Loginow stated, the signal he was hearing on the headphones would have  xgradually become silent. He testified: [I]t would sound like the station [was] getting weaker and weaker,  xfading out[,] and there would be a hissing noise until eventually ... you would get just silence. (Tr.  x35557.) The fact that neither the signal of WJUX nor the Pomona translator was disrupted in this manner  xtindicated to Loginow that the Fort Lee translator was not receiving those offair signals. (Bur. Ex. 18, p. 334.)  S ' "a1paraoutline159. Loginow then generated a signal on 951 MHz and determined that the generated signal was  x overriding another signal on that frequency. (Bur. Ex. 18, p. 334; Tr. 376.) Loginow stated that he  xpinterrupted or blanketed this signal twice for a maximum of five seconds each. Approximately five  xseconds intervened between the two interruptions. He also stated that, at the beginning part of the five  xseconds, the signal being emitted from the signal generator would not have reached sufficient strength to  xoverwhelm the microwave's signal. (Tr. 379, 564, 56869.) Loginow concluded from this that the Fort  xLee translator was receiving and rebroadcasting its radio frequency signal from ... WMG499. (Bur. Ex. 18, p. 334.)  S@' "a1paraoutline160. Loginow performed these tests from the inside of the stair enclosure at the roof level of the  xgMediterranean Towers, which was at least 25 stories above the ground. (Tr. 35354.) He stated that,  xideally, he would have wanted to perform the testing out on the roof (Tr. 360), but found that the door  x7leading to that area was locked (Tr. 354). The stair enclosure was surrounded by cinder block walls and  xhad a metal staircase below it. (Tr. 359.) Loginow stated that these surroundings would have attenuated  x[or lessened] the signal somewhat toward the receiving end. (Tr. 359.) He also stated that he rotated  xRthe antenna of the signal generator around in various positions in the stairwell to get maximum indications. (Tr. 358.)  S' "a1paraoutline161. Loginow testified that nearly all translator installations have the[ir] receive antenna[s] and  xthe[ir] transmitting antenna[s] located on the roof ... or on a tower. (Tr 361.) In this instance, Loginow  xunderstood that the receive antennas for WJUX, for the Pomona translator, and for WMG499 were all  xlocated on the roof (Tr. 365) because the roof was the only technically logical place for such antennas  S8' x}(Tr. 364). He stated that [a]ny other place would [have been] severely deficient. (Id.) Loginow  xtherefore went up to the roof level to do the testing; he wanted to be near those antennas. (Tr. 36566.)  xHowever, Loginow could not actually observe what was on the roof because he was in a locked stair enclosure and did not have with him an accurate map of the antenna locations. (Tr. 366.)  Sr#' "a1paraoutline162. Loginow testified that the distance between the signal generator and the antenna he wanted  xkto affect was important to the testing process, [d]epending on the sensitivity of the receiver. (Tr. 360.)  xHe stated that he went up to the roof level to do his testing because the closer he could get to the""%%0*&&,,#"  xantennas being tested the more accurate the tests would be. (Tr. 360.) Loginow stated that, given the low  xlevel signal generated by a signal generator, distance would, at some point, make the signal unable to  xxaffect a receiver. (Tr. 36061.) Loginow also testified that obstructions between the signal generator and  xthe system being tested could affect the validity of the tests. He agreed that the signal generator would not work as well from the inside of a big safe as it would work out in the open. (Tr. 361.)  S' "a1paraoutline163. Loginow testified that he had never performed a complete inspection of all of the floors and  xrooms of the Mediterranean Towers. (Tr. 379.) He also stated that he had no personal knowledge as to  x what materials, equipment, or other things may have been in the building that theoretically could have  xinterrupted or shielded from an antenna situated in the basement the signals being transmitted by the signal generator. (Tr. 380.)  S ' "_a1paraoutline164. Loginow testified that an antenna in the basement would not have been able to receive the  xPomona translator signal to a degree sufficient to rebroadcast it. (Tr. 369.) However, Loginow had never  xtested the sensitivity of any antenna which may have been located in the basement of the Mediterranean  x^Towers, and he never tested whether a signal generator on the roof level of that building would have been able to overwhelm an antenna located in the basement. (Tr. 370.)  S0' "a1paraoutline165. It was Loginow's opinion that the less than halfwatt signal he generated from the inside of  xthe stair enclosure at the roof level of the Mediterranean Towers would have been able to overwhelm a  x@signal being received by an antenna located in the basement of the building. He based his opinion on a  x&phenomenon he termed ducting[, which is t]he capability to transmit through a building. (Tr. 369.)  xLoginow explained ducting as where a radio signal enters into a cavity and it travels ... very efficiently  xthrough the cavity to the other end where the cavity opens up. (Tr. 574.) As examples, Loginow cited  xair conditioning ducts and elevator shafts. (Tr. 57475.) However, Loginow testified that he did not  xexamine the elevator shafts or air conditioning system at the Mediterranean Towers, and he believed that  xthe stairwell from which the tests were conducted was probably too irregular to exhibit ducting. (Tr.  xt575.) Loginow also testified that, [a]ccording to [his] experience, if a receiving system was sensitive  xenough to be located in the basement, below ground level, and receiving a one watt signal [from the  x7Pomona translator] 22 miles away, it would receive the signal generator [from] 26 floors up. (Tr. 370.)  SP' xHowever, as noted earlier, this was never tested by Loginow. (Id.) The Commission's records show that  xthe Pomona translator was authorized to operate with a transmitter power output of 2.5 watts. (License  xfor an FM Broadcast Translator/Booster Station, File No. BLFT900112TC, dated June 5, 1990, official notice taken.)  S' "a1paraoutline166. As discussed above, Turro testified that during the spring of 1995, including on May15,  xhe used an antenna located in the basement of the Mediterranean Towers to receive the signal of the  xPomona translator. (Turro Ex. 1, p. 22.) Turro stated that, when Loginow performed his frequency  xgenerator tests on May15, the Fort Lee translator was in fact receiving its programming off the air from  xthe signal of the Pomona translator through the antenna located in the basement. It was Turros opinion  xthat the output of the frequency generator used by Loginow was much too weak to reach that Pomona  xreceive antenna through more than 23 stories of concrete, steal [sic], pipes, ducts, etc. of the  Sr#' x*Mediterranean Towers. (Id. at 2223.) Turro further opined that Loginow must have assumed that he  xwas near the active receive antenna for the Pomona translator, but because he was very far from it, and"L$&0*&&,,""  xbecause his frequency generator was greatly shielded from that antenna, it did not pick up the dead carrier  S'he generated with his portable unit. (Id. at 23.)  "+a1paraoutline167. Hurst testified that during a visit he and Hidle made to the basement of the Mediterranean  xTowers on October17, 1997 (Tr. 1892, 1924), they attempted to interfere with the reception of the  xMPomona translator with the receive antenna located on the roof of the building. Hurst stated that from  xthe basement location where the Pomona translator receive antenna had been situated, a signal generator  x^was used to generate a 5 watt signal on the frequency of the Pomona translator. According to Hurst, this  x5 watt signal was not able to cause interference to the receipt of the Pomona translator with its antenna  xclocated on the roof of the building. In Hurst's opinion, someone located on or near the roof of that  xbuilding would not have been able to cause interference with the reception of the Pomona translator with a 0.5 watt signal when the receiving antenna was located in the basement. (Turro Ex. 35, pp. 34.)  "8a1paraoutline168. Hurst testified that he observed in the basement location an abandoned antenna, covered  xin dust, which Turro told him was the antenna that had been used for reception of the Pomona translator.  x(Tr. 1894, 189899.) Hurst also testified to the signal from the Pomona translator which could be received  xon an inexpensive portable receiver in the basement of the Mediterranean Towers where Turro had located  xhis antenna. Hurst characterized this reception as unusual [and] possibly phenomenal. (Turro Ex. 35,  xp. 3, parenthesis omitted.) He further testified that he personally was surprised to see a location in the  xZbasement ... with such a high receive signal. (Tr. 1897.) Hidle characterized the signal received on  S'a portable FM receiver in the basement as acceptable audio. (Turro Ex. 7, p. 4.) y yOJ' x ԍ The reception of the Pomona translator in the basement of the Mediterranean Towers was demonstrated in a videotape associated with Turro Ex. 2.  "la1paraoutline169. Turro testified that Loginows conclusion, that the May15 testing proved that WMG499  xwas providing programming directly to the Fort Lee translator, was incorrect. (Turro Ex. 1, p. 22.) Turro stated in this regard:  XApparently, Mr. Loginow was near the Fort Lee translator receive antenna for microwave  station WMG499, which was mounted on the roof [of the Mediterranean Towers]. I  believe that when Mr. Loginow transmitted his dead carrier on 951 MHz, the transmit  frequency for WMG499, he interrupted all signals on the path, including the telemetry.  As I stated earlier, my failsafe [sic] was if telemetry was interrupted, then the Fort Lee  ,translator was programmed to home immediately to the microwave audio channel to  receive emergency messages. Mr. Loginow's dead carrier must have disrupted the  telemetry, caused the receiver to home onto the microwave audio channel, and then it  transmitted the dead carrier. In other words, Mr. Loginow caused the results he reported by overriding or jamming the telemetry channel on the microwave.   S:'(Id. at 23.) a1paraoutline170. Turro further testified: "!'  0*&&,, "Ԍ e i$X` hp x (#%'0*,.8135@8:nX` `  It's the data path. It takes a halflane [of] highway. So if someone comes  along and starts jamming this, the first thing they are going to do is strip away the data,  and the first thing the translator in Fort Lee is going to do is fall back on its own audio, the microwave.  X` ` Q [by Mr. C. Naftalin]: And why is the data path, as you say, the weakest part?   SH '  >X` ` A: Well, because you've got eight lanes of audio, so it's a little more robust, and  you've got a half lane of data, so it's not as robust. So if someone started jamming the  thing and started turning the power up real slowly, the first thing it would interrupt would be the data.   S 'X` ` Q: Meaning because it's a much narrower path?   S0'  >-X` ` A: Yes, and it's fragile and it's on the edge of the microwave. It's on the last highway way out.  X` hp x (#%'0*,.8135@8:' xp(reciprocal time brokerage agreements); Joseph A. Belisle, Esquire, 5 FCC Rcd 7585 (MMB 1990)  x( network affiliation agreement). However, as with any allegation of unauthorized transfer of control,  xwithout regard to whether a time brokerage agreement, network affiliation agreement, or LMA existed,  xthe Commission has looked to whether a licensee continued to have ultimate control over the station,  S' xincluding its financing, programming, and personnel. See, e.g., Siete Grande, 11 FCC Rcd at 21156. In  x^this connection, licensees are permitted under Section 310(d) of the Act to delegate daytoday operations  xrelating to those three areas, so long as they have the right to revoke such delegation and to exercise full  S* ' xresponsibility over the operations of the station. Southwest Texas Public Broadcasting Council, 85 FCC  S ' x2d 713, 71516 (1981); The Alabama Educational Television Commission, 33 FCC 2d 495, 508 (1972).  x/In making a determination, the Commission has also examined not only who executed the finance,  xprogramming, and personnel responsibilities, but who established the policies governing those areas.  S 'WGPR, 10 FCC Rcd at 8142. Each of these matters will be considered below.  S@' "Ra1paraoutline218. Finances. The findings of fact establish, and it is concluded, that Weis, not Turro or any  xentity owned by Turro, was in sole control of the finances of MMBI and WJUX. Thus, Weis negotiated  xwith Fishman for the sale of the CP for what later became WJUX, and Weis negotiated the terms of the  xQpayments to Fishman. Weis, on behalf of MMBI, was the sole obligated party on the Secured Note given  xtto Fishman for the purchase of the CP. Although Turro was present at some of the meetings between  xWeis and Fishman, there was no evidence that Turro was involved in any substantive way in the  xnegotiations relating to the sale of the CP or the terms of payment, and Turro was not financially obligated to Fishman in any manner whatsoever.  "a1paraoutline219. Weis, on behalf of MMBI, reached an agreement with Turro and entered into the Network  xAffiliation Agreement. Weis determined the amount of the monthly payments the Network was to make  xkto MMBI on the basis of a business plan he had prepared. The monthly payments were designed by Weis  xto cover capital costs and operating expenses and produce a profit. In addition, at Weis's behest, Turro  x&signed a Guaranty of Payment wherein he personally guaranteed Network payments to MMBI up to a  xlimit of $400,000. The Network also paid MMBI $40,000 as an inducement for entering into the Network Affiliation Agreement. This, too, was done at the insistence of Weis.  "a1paraoutline220. Weis, on behalf of MMBI, negotiated with Blabey and entered into an assumption of  xFishman's tower lease with MBC and a lease of studio and office space for WJUX. Weis personally  xZguaranteed the tower lease as well as the lease for studio and office space. Weis, on behalf of MMBI,  xnegotiated with Blabey and entered into a consulting agreement whereby Blabey would be the General  xManager of WJUX in return for compensation from MMBI. Similarly, Weis entered into an agreement  xQwith Montana whereby she would be the Public Affairs Director of the station in return for compensation  xfrom MMBI. Weis also negotiated with Blabey and reached an agreement with respect to compensation  xZfor sales by Blabey of advertising time on WJUX. Turro was not financially or contractually obligated  xto Blabey, MBC, or Montana in any manner whatsoever for these leases and agreements. Nor did Turro guarantee any lease payments or the payment of compensation to MMBI personnel."0%5 0*&&,,#"Ԍ "ԙa1paraoutline221. Weis provided all of the equipment (except for Jukebox Radio Network equipment) which  x^was used to build WJUX, and a crew from one of Weis's companies, under Weis's direction, constructed  x}the station's facilities. Weis also paid all of the costs of such construction (except for the Network  x7equipment). While Turro installed the Network audio equipment, performed tests, and may have assisted  xpWeis's crew in some manner, he was not paid by Weis or MMBI for his services. Moreover, even  xassuming that Turro had been paid, that fact would not manifest a transfer of control of the finances of  S' xMMBI to Turro. Choctaw Broadcasting Corporation, 12 FCC Rcd 8534, 8540 (1997) (where an  xtemployee of the new entity, who was also the Chief Operator of the licensee, was involved in and paid  x*by the licensee for his services in connection with the construction of the station, no transfer of financial  xcontrol was found). In addition, the provision and installation of Network equipment by Turro, and his  Sr' xtesting of MMBI's equipment, was not indicative of an assumption of financial control by Turro. Id. at  x8542 (where the new entity purchased all of the station's equipment and constructed the station, but did  S$ ' x^not make financial policy or conduct financial operations, no transfer of control occurred); cf. WGPR, 10  xFCC Rcd at 814445 (equipment and improvements expenditures by the time broker were not indicative of an assumption of financial control).  "a1paraoutline222. Weis alone was responsible for the financial obligations of MMBI and WJUX.  xConsequently, Weis, on behalf of MMBI, made all of the payments to Fishman under the Secured Note;  xmade all of the payments to MBC for the tower lease and the studio and office lease; paid the  xcompensation of all MMBI personnel; paid all of the bills for services, products, and utilities, with the  xVexception of telephone bills from October 1994 to mid1995 which were sent to Jukebox Radio by  xNYNEX; paid all of the subsequent telephone bills; paid all of the legal expenses relating to the  xacquisition of WJUX, the response to the LOI to MMBI, and the instant hearing proceeding; and raised  xQMontana's salary on the recommendation of Blabey. Weis, on behalf of MMBI, wrote the checks relating  xto the construction of the station, the payment of MMBI personnel, and the payment of the operating  x@expenses of WJUX. Neither Blabey nor Montana was authorized to sign MMBI checks, and Montana  xZonly had the authority over petty cash in amounts up to about $50. Both Blabey and Montana referred  xDfinancial matters to Weis. None of these payments was made by Turro, except for the telephone bills for  xthe period noted above, and there was no evidence that Turro had checkwriting authority on any MMBI  xaccount. With respect to Jukebox Radio's payment of MMBI's telephone bills, the record reflects that this  xcwas caused by an oversight or mixup which was corrected when it was discovered, and does not  S.' xconstitute grounds for finding an unauthorized transfer of financial control to Turro. Cf. Siete Grande,  xI11 FCC Rcd at 21160 (where there was some confusion regarding the payment of the licensee's  x&telephone bills and the licensee reimbursed the time broker for calls on its line, no transfer of financial control was found).  "a1paraoutline223. The Bureau and Universal contend that since Turro provided MMBI with all of its operating  x3funds through Jukebox Radio's monthly payments, and since MMBI was totally dependent on these  xcpayments to operate WJUX, Turro controlled the finances of MMBI and WJUX. This argument is  xwithout merit. The Commission (as well as the Bureau itself) has repeatedly held that such financial  xZterms are characteristic of time brokerage arrangements and do not raise questions as to whether an  S"' xgundue amount of control had been exercised by the time broker or abdicated by the licensee. Russo, 5  Sz#' xFCC Rcd at 7587; Choctaw, 12 FCC Rcd at 8541; WGPR, 10 FCC Rcd at 8145. This was true even  xwhere the time brokerage payments constituted the sole source of funding of the licensee's broadcast  xoperations for the term of the brokerage arrangement, and where the contractual payments were",%6 0*&&,,#"  S' x calculated to incorporate the station's fixed and operating costs plus a builtin profit. WGPR, 10 FCC  S'Rcd at 8145; Choctaw, 12 FCC Rcd at 8541.  "<a1paraoutline224. Moreover, as demonstrated above, Weis had the sole responsibility for MMBI's finances and  xMMBI maintained its own bank accounts. If Jukebox Radio failed to make a monthly payment, MMBI  x3and Weis would remain obligated to pay the station's bills, and creditors would have no right to obtain  xsuch payments from Turro. Although MMBI could sue Turro in an effort to recover the monthly  xMpayments, MMBI would still have to continue to pay WJUX's operating expenses. Similarly, if MMBI  xQexpended more each month in operating WJUX than it received under the Network Affiliation Agreement, Weis, not Turro, would be responsible for making up the deficit.  "a1paraoutline225. The Bureau also claims that the Network's payment of $40,000 to MMBI as an inducement  xfor Weis to enter into the Network Affiliation Agreement and Turro's personal guarantee of Network  xpayments up to a limit of $400,000, provide further evidence of MMBI's financial reliance on Turro and  xshow that Turro was in financial control of WJUX. This assertion must be rejected. Rather than showing  xcontrol by Turro, these facts further demonstrate that Weis controlled MMBI's finances. The record  x*establishes that the ideas for an inducement payment and a personal guarantee came from Weis and were  xdesigned to protect MMBI's interests, not Turro's. Indeed, had Turro been in control of the situation, as  xalleged, it is unlikely that he would have elected to pay MMBI an additional $40,000 over and above the  xmonthly payments, or agreed to a $400,000 personal guarantee which could have put his personal assets  xin jeopardy. In a similar vein, Weis requested, and Turro agreed to, an increase in the monthly payments  xof about $100 per month in order to cover additional capital expenditures by MMBI. Once again, Turro  xwould hardly have chosen to pay this increased amount had he been in control of the finances of the  xstation. Moreover, the Commission has held that no transfer of control of a station's finances occurred  SD' xwhere a time broker expended millions of dollars for improvements to the station's facilities. WGPR, 10  xFCC Rcd at 814546. To paraphrase the Commission's rationale in that case, such expenditures, rather  x*than evidencing an intent to control the financial aspects of the station, demonstrated the licensee's ability  S' x to exercise its authority ... and to protect its interests. Id. at 8146. The same may be said of the Network's $40,000 payment and Turro's personal guarantee.  SX' "a1paraoutline226. The Bureau relies on Salem Broadcasting, Inc., 6 FCC Rcd 4172 (MMB 1991), to support  x<its conclusion that financial control was transferred to Turro. The instant case, however, is easily  S ' xdistinguishable from Salem. In Salem, the licensee was indebted to the time broker, leased station  xequipment from the time broker, and used the time broker's transmitter rather than its own. In addition,  xthe time broker negotiated a tower lease and had an option to purchase the station. 6 FCC Rcd at 4172 x73. Here, MMBI was not indebted to Turro, did not lease equipment from Turro, and used its own  x*transmitter and auxiliary transmitter for WJUX. Further, Weis, on behalf of MMBI, negotiated the tower lease, and Turro did not have an option to buy WJUX.  S ' "ya1paraoutline227. Programming. The findings of fact establish, and it is concluded, that Weis, not Turro or  xany entity owned by Turro, was in ultimate supervisory control of the programming of WJUX. The  xNetwork Affiliation Agreement provided that Jukebox Radio would supply programming to MMBI on a  x724hour per day, 7day per week, 365day per year basis. The Network was also obligated to provide all  xlocal station identifications, public affairs programming, and Emergency Broadcast System tests. An  xQAmendment to Network Affiliation Agreement specified that MMBI retained the responsibility to ascertain",%7 0*&&,,#"  xthe needs of its community and service area, that MMBI had the right to broadcast programming other  xthan Network programming, that MMBI had the right to delete or preempt Network programming in order  xto broadcast MMBI programming responsive to the issues of concern to its community of license, and that  x[MMBI maintained the right to delete or preempt any Network programming it believed to be  xunsatisfactory or unsuitable or contrary to the public interest, or to substitute programming which, in its  xopinion, was of greater local or national importance. The Amendment further provided that MMBI's  xxacceptance and broadcast of Network programming was subject to MMBI's responsibility to comply with  xall FCC regulations including, among others, compliance with political programming and sponsorship  xidentification rules, maintenance of the station's public and political files, and the compilation of quarterly  xissues/programs lists. Inasmuch as these provisions gave MMBI the right to substitute for, and to delete  xor preempt Network programming, they complied in all significant respects with the Commission's time  xbrokerage and LMA programming policies. In this regard, the Commission (as well as the Bureau itself)  xhas repeatedly approved agreements containing substantially similar language, and has held that licensees  xoperating their stations in accordance with such agreements have retained ultimate programming control.  S ' x7WGPR, 10 FCC Rcd at 814243; Choctaw, 12 FCC Rcd at 8539; Gisela Huberman, Esquire, 6 FCC Rcd  S '5397 (MMB 1991); Russo, 5 FCC Rcd at 758687; Belisle, 5 FCC Rcd at 7585.  "a1paraoutline228. In addition, contrary to the arguments of both the Bureau and Universal, the record  xdemonstrates that Weis actually exercised his ultimate authority over the programming of WJUX. At the  xttime Weis acquired the CP and agreed to enter into the Network Affiliation Agreement, he was familiar  x3with the programming and format of Jukebox Radio Network and he believed that such programming  xwould appeal to a large segment of the Sullivan County population. At the commencement of WJUX  xoperations, Weis directed that the station carry public affairs programming and PSAs serving Monticello  xand Sullivan County. To accomplish this, Weis had discussions with Blabey which resulted in the public  xaffairs programs produced by Blabey and broadcast on WVOS, being rebroadcast over WJUX on different  xdays and at different times than they were broadcast over WVOS. Weis explained that, in this manner,  xthese programs would be heard by a separate listening audience in Sullivan County than originally heard them.  "a1paraoutline229. Weis also had discussions with Blabey which resulted in the broadcast over WJUX of PSAs  xwhich Weis believed were of interest to Monticello and Sullivan County. Montana was in charge of  xgathering material for the PSAs, compiling a bulletin board of prospective PSAs, and forwarding it to  xJukebox Radio for broadcast over WJUX. Although Jukebox Radio made the determination as to which  xPSAs to produce and broadcast, Montana designated on the bulletin board, or called the Network  xregarding, PSAs that she considered particularly important which she believed should be aired. The Network followed her suggestions on almost every occasion.  "/a1paraoutline230. According to Turro, Jukebox Radio Network had complete discretion to reject public affairs  xxprogramming or PSAs forwarded for broadcast by Blabey and Montana. However, Turro recognized that  xif the Network was to exercise this discretion, MMBI would have the right to delete Network programming and put the PSAs and public affairs programming on the air directly from WJUX.  "a1paraoutline231. Blabey made decisions on putting emergency announcements regarding Sullivan County on  xWJUX. For example, during a snow storm in Sullivan County, Blabey received a call from the Sullivan  xQCounty Manager concerning road closings. Blabey called Jukebox Radio, told them he had an emergency"$%8 0*&&,,#"  xmessage to be broadcast over WJUX, prepared the message, and faxed it to the Dumont studio to be  x*originated. In addition, in September 1995, Weis made the decision that WJUX would not accept further  xpolitical advertisements. Weis communicated this decision to Blabey, who issued a statement to that effect. Weis subsequently changed this policy.  "a1paraoutline232. As noted above, the Network Affiliation Agreement required Jukebox Radio Network to  x*provide MMBI with all of its public affairs programming. Weis's decision to procure and broadcast non xNetwork public affairs programming establishes that he did, in fact, substitute other programming in place  xIof Network programming, as he was permitted to do under the Amendment to Network Affiliation  xAgreement. In addition, the record shows that MMBI broadcast its own programming (from the WJUX  xmain studio) in the early summer of 1995 when the Network's program feed went out, and that MMBI  xpreempted Network programming during the 1997 elections in order to broadcast political commercials.  S ' x*Under these circumstances, no transfer of ultimate programming control can be found. Cf. Choctaw, 12  xFCC Rcd at 8539 (where licensee prepar[ed] programming material responsive to the needs of its community of license, no transfer of control over programming occurred).  "8a1paraoutline233. Although the Bureau and Universal attempt to make much of the fact that WJUX's public  xservice programs had also been broadcast on WVOS, they have failed to demonstrate how the rebroadcast  xof these programs on WJUX reduced the public interest value of such programming. Indeed, there was  xno evidence that WJUX's public affairs programming did not serve the needs and interests of Monticello  x and Sullivan County. Moreover, because the record reflects that stations WJUX and WVOS targeted  xdifferent audiences in Sullivan County, the fact that certain public affairs programs were rebroadcast on  xWJUX served to ensure that a separate listening audience in that county had an opportunity to hear such programming.  "a1paraoutline234. The Bureau notes that Turro and Jukebox Radio sold virtually all of the commercial  xadvertisements that were broadcast over WJUX, and argues that Turro controlled this aspect of the  xgstation's programming. While the facts relied on are correct, they do not give rise to a conclusion that  x&programming control was transferred. Once again, the Commission (as well as the Bureau itself) has  x[consistently observed that the sale of commercial time by a time broker is one of the typical  xcharacteristics of all time brokerage arrangements and that it is permissible so long as ultimate  S*' x*programming control resides, as it does in this case, in the licensee. WGPR, 10 FCC Rcd at 8140, 8145;  S' xRusso, 5 FCC Rcd at 7587; Peter D. O'Connell, Esquire, 6 FCC Rcd 1869 (MMB 1991) (agreement  xapproved where the licensee would sell all of its commercial advertising time to [the time broker] which would, in turn, resell and provide all advertising programming on the station).  Sf' "[a1paraoutline235. The Bureau and Universal rely on Salem to support their conclusions that control over  xprogramming was transferred to Turro. However, as discussed above, that case is distinguishable. In  S ' xMSalem, the licensee had not exercised its right to preempt the broker's programming, and a Lease and  x@Option Agreement did not indicate that the licensee would originate programming or be responsive to  xthe needs of its community of license. 6 FCC Rcd at 4173. Here, in contrast, Weis directed that WJUX  xxcarry public affairs programming and PSAs which would serve its community of license, Weis took steps  xto procure some of this public affairs programming, MMBI's employee gathered the material for the PSAs,  xand the public affairs programming and PSAs were, in fact, broadcast over WJUX. In addition, Turro"R$9 0*&&,,""  xacknowledged the ultimate right of MMBI to delete Network programming to broadcast PSAs and public affairs programming, and MMBI did, indeed, substitute its own programming for that of the Network.  S' "8a1paraoutline236. Personnel. The findings establish, and it is concluded, that Weis, not Turro or any entity  xowned by Turro, exercised supervisory control over MMBI's and WJUX's personnel. Thus, Weis was  xMsolely responsible for hiring Blabey and, at Blabey's recommendation, Montana and Spicka. Weis was  xalso directly responsible for hiring Kirschner, who replaced Turro as WJUX's Chief Operator. With  x_Weis's approval, Blabey hired Silverstein to sell time locally for WJUX. There was no evidence  xindicating that Turro played any role in Weis's decisions to hire Blabey, Montana, Spicka, or Kirschner,  xor in Weis's decision to approve the hiring of Silverstein. Similarly, there was no evidence that an  xemployeremployee relationship existed between Turro and any of these individuals, that Turro held  xDtermination authority over any of them, or that Turro was contractually or otherwise responsible for their  S 'compensation.+ X y yO ' x ԍ The record establishes that WJUX had another employee, Charles Martin, but does not reflect the  x circumstances surrounding his hiring. It was clear, however, that Blabey supervised Martin's activities in connection with WJUX.+  "+a1paraoutline237. Weis had several meetings with Blabey before he was hired to become General Manager.  xMontana learned of the employment opportunity at WJUX from Blabey. Blabey introduced Montana to  xWeis before WJUX went on the air and she discussed a position at the station with Weis at that time.  xWhen Blabey and Montana were hired, they each entered into letter agreements with Weis, on behalf of  xMMBI, concerning their positions and compensation. Montana considered herself to be an employee of  x}WJUX. Blabey was retained by MMBI as an independent consultant, not as an employee, for tax  xZreasons. There was no evidence that Turro discussed with Blabey, Montana, or anyone else, potential  xemployment with MMBI or WJUX, or that any type of employment agreement relating to MMBI or WJUX existed between Turro and Blabey, Montana, or anyone else.  "/a1paraoutline238. Blabey supervised Montana's work at WJUX and she consulted with him on WJUX matters.  xcHowever, Montana ultimately reported to Weis, and met with him on an asneeded basis. Montana  xunderstood that Weis was Blabey's immediate supervisor and could give him directions. There was no  xkevidence that Turro had the authority to supervise or direct the activities of Blabey, Montana, or any other MMBI employee, or that Turro did, in fact, supervise or direct any of their activities.  "a1paraoutline239. Although Turro held the (unpaid) position of Chief Operator of WJUX from October 1994  xVuntil mid1995, that fact would not establish any transfer to Turro of any ultimate decisionmaking  xfunctions. Indeed, the Commission (as well as the Bureau itself) has recognized the necessity for a time  xDbroker's staff to become involved with the licensee's facilities, and the sharing of staff between a licensee  S' x&and a time broker has been permitted. WGPR, 10 FCC Rcd at 8143; Michael R. Birdsill, 7 FCC Rcd 7891 (MMB 1992).  "a1paraoutline240. Given all of the above, it is clear that MMBI has retained complete responsibility for, and  xcontrol over, all aspects of WJUX's personnel operations, that MMBI's personnel activities were consistent" : 0*&&,,"  xwith the Commission's rules and policies, and that a transfer of control of those functions did not occur.  S'WGPR, 10 FCC Rcd at 8143.  S' B. Issue 5: Main Studio Issue ă  "Na1paraoutline241. This issue was designated to determine whether MMBI violated Sections 73.1120 and  x73.1125(a) and (c) of the Commission's Rules with respect to the maintenance of a main studio for WJUX  xin Monticello, New York. The Commission specified this issue on the basis of those portions of  x@Loginow's May23, 1995, Radio Station Inspection Report which alleged that WJUX's presence at the  xWVOS main studio was limited to its lease of a former production room for its studio, that studio had no  xapparent program production and transmission capabilities, there was no apparent remote control  xequipment installed at the station to control the transmitter or to read its operating parameters, and it  xappeared that the WJUX transmitter was being controlled fulltime, through telephone lines, by personnel  S ' xRat the Dumont studio. (HDO at para 15.) In addition, the Commission queried whether MMBI  S ' xMmaintained a local tollfree telephone number for residents within its community of license. (Id.) The  xcCommission also stated that there was no indication to [Loginow] that Blabey and Montana were  S ' xoperating under the direction of Weis for matters attendant to the operation of WJUX. (Id.) Further,  xthe Commission questioned whether the employment of Blabey and Montana represent[ed] that type of  S8' xMmeaningful management presence contemplated by [the] main studio rule. (Id. at note 15, citations  xomitted.) For the reasons which follow, it is concluded that MMBI was in violation of Section 73.1125(c)  xof the Rules for a 12day period. In all other respects MMBI was in full compliance with the applicable Commission rules.  Sr' "a1paraoutline242. Section 73.1120. This section of the rules states that each FM broadcast station will be  xlicensed to the principal community which it primarily serves. The Bureau and Universal maintain that  xMMBI has violated this rule because WJUX primarily serves Bergen County, New Jersey, rather than  xMonticello, New York, its community of license. Universal also suggests that the disparity between  x&Jukebox Radio's commercial advertising rates and the local advertising rates of WJUX shows that the station is primarily serving the needs and interests of Bergen County and is being marketed in that county.  "a1paraoutline243. These arguments must be rejected. Put simply, neither the Bureau nor Universal offered  xevidence of any community need or interest in Monticello that was not addressed by WJUX's overall  S ' xtprogramming, including its public affairs programs and PSAs. See Deregulation of Radio, 84 FCC 2d  x968, 98283 (1981) (issueresponsive programming may consist of, but is not limited to, public affairs,  x}PSAs, and community bulletin boards; the amount of such programming to be offered is within the  xlicensee's sole discretion). In addition, neither the Commission nor WJUX received any complaints from  xlisteners within the WJUX service area that the station's overall programming was not serving the needs  xtand interests of its community of license. In this regard, Montana received only two complaints about  xWJUX, one concerning a listener's inability to receive the station on his cable system, and one complaining about the station not playing enough Perry Como music.  "a1paraoutline244. Further, there is no precedent for examining a station's local advertising rates or marketing  xQstrategy in connection with its service of the needs and interests of its community of license. Indeed, the  xCommission's station identification rule would have permitted WJUX to include in its official station  xidentification the names of communities in Bergen County, New Jersey, so long as Monticello, New",%; 0*&&,,#"  S' xMYork, the station's community of license, was named first. See Section 73.1201(b)(2) of the Rules.  xConsequently, there is no basis for concluding that MMBI has violated the provisions of Section 73.1120  S' xof the Rules. See Broadcast Communications, Inc., 97 FCC 2d 61, 63 (1984) ( renewal expectancy  x^awarded where there was no evidence that the licensee omitted any local public issues, and where there  xtwas an allegation that the licensee's programming was directed to audiences residing mostly outside its  S<' xcommunity of license); WHYY, Inc., 93 FCC 2d 1086, 1094 (1983) (no material and substantial question  xof fact was raised where the complainant failed to describe any significant problem, need or interest which had not been addressed by the licensee).  S' "/a1paraoutline245. Section 73.1125(a). Section 73.1125(a) of the Rules, in conjunction with Section 73.315(a)  xof the Rules, requires an FM broadcast station to maintain a main studio within the 70 dBu (3.16 mV/m)  xcontour of the station ( principal community contour). The findings establish, and it is concluded, that  xthe WJUX main studio in Ferndale, New York, was located within the principal community contour, and  xthat MMBI has, at all times relevant to this proceeding, been in complete compliance with Section 73.1125(a).  S ' "a1paraoutline246. Section 73.1125(c). This section of the rules requires an FM broadcast station to maintain  xa local telephone number in its community of license or a tollfree number. The findings establish that  xalthough WJUX began broadcasting on October21, 1994, the station did not establish a local telephone  xnumber until November2, 1994. It must be concluded, therefore, that MMBI violated Section 73.1125(c) for a period of 12 days.  "a1paraoutline247. The findings further establish, and it is concluded, that beginning on November2, 1994,  xMMBI was in full compliance with Section 73.1125(c) of the Rules. On that date MMBI established and  xpmaintained a separate telephone number for WJUX. In addition, the number was listed by the local  xtelephone company and was readily available from directory assistance. The record reflects that, from  x*November2, 1994, to July 1995, calls to the WJUX telephone number were forwarded to Dumont, New  xJersey, and that call forwarding and long distance charges were incurred. However, since such charges  xwere not billed to the callers, calls to the WJUX number during that period were, in fact, toll free for  xresidents of Monticello, the station's community of license. Beginning in July 1995, the callforwarding  x&arrangement was discontinued and all calls to the WJUX number were answered at the Ferndale main studio building.  "la1paraoutline248. No sanction is warranted for MMBI's violation of Section 73.1125(c). First, the violation  S' xDwas de minimis. Second, the duration of the violation was only 12 days, a relatively short period of time.  xThird, MMBI voluntarily disclosed in its response to the LOI to MMBI that WJUX's local telephone  xnumber was not established until on or about November2, 1994. Similarly, in its response to the  xgBureau's First Request for Admissions of Fact and Genuineness of Documents, MMBI admitted that it  xVmaintained a local tollfree telephone number [b]eginning November2, 1994. Finally, neither the  xBureau nor Universal has contended that MMBI's lack of a local telephone number for this 12day period warrants an adverse finding or conclusion against MMBI, or the imposition of any sanction.  "a1paraoutline249. The Bureau does argue, however, that MMBI was in violation of this section of the rules  xQfrom October 1994 to July 1995 because there was no WJUX telephone instrument in its main studio and  xall calls to the WJUX number were forwarded to the Dumont studio and answered there. This argument"(%< 0*&&,,#"  xis without merit. Section 73.1125(c) requires a broadcast station to maintain a local or tollfree telephone  xMnumber in its community of license. The rule does not specify where telephone instruments must be  xlocated, or where telephone calls must be answered. The record in this proceeding reflects that MMBI  xdid maintain a local tollfree telephone number, and that calls to that number were answered. The requirements of the rule have, therefore, been met.  S' "a1paraoutline250. Program Origination Capability. The Commission requires broadcast licensees to maintain  xa main studio which is equipped with production and transmission facilities, and to maintain continuous  S' xprogram transmission capability. Main Studio and Program Origination Rules, 3 FCC Rcd 5024, 5026  S' x&(1988) ( Main Studio Clarification). The findings establish, and it is concluded, that, from the time  xWJUX went on the air on October21, 1994, the station's main studio was in complete compliance with these requirements.  "a1paraoutline251. The record establishes that, at all times relevant to this proceeding, the WJUX main studio  x7contained all of the equipment necessary for the production of programming, and that the equipment was  xkcapable of being used in that manner. These facts were testified to by Weis, Turro, Hurst, and/or Blabey.  xEven Loginow testified that, although he was in the WJUX main studio very briefly, he observed a  xcontrol board of the type typically found in a broadcast studio from which programming could be  xtoriginated, as well as a microphone and tape machines. He also testified that he had no reason to think  xthe microphone and tape machines were not connected to the control board. Further, there was no  xQevidence adduced indicating that the WJUX main studio lacked any critical piece of production equipment or that the equipment which was located in the main studio was not in working order.  "a1paraoutline252. The findings also establish, and it is concluded, that, at all times relevant to this proceeding,  xMthe WJUX main studio had continuous program transmission capability. Specifically, the WJUX main  xstudio could be put on the air by throwing a switch, or making a connection at a switch patch, in the  x^WVOS(AM) transmitter room. This room was located about 10 to 15 feet down the hall from the WJUX  x main studio. Although Loginow apparently believed, and reported in his May23, 1995, Radio Station  xInspection Report, that a visit to the WJUX transmitter site (about a 15minute drive from the main studio)  xwas necessary in order to put the main studio on the air, the record reveals that he was mistaken. A trip  x7to the WJUX transmitter site was never required in order to originate programming from the WJUX main studio, and Loginow's belief to the contrary was based upon a misunderstanding.  S' "a1paraoutline253. Remote Control Capability. Although the Commission's station location and main studio  xkrules, Sections 73.1120 and 73.1125, respectively, were specifically and exclusively referred to in the text  xof Issue 5, those rules are completely silent on the subject of remote control. Nevertheless, since the  Sd' xHDO in this proceeding discussed questions relating to WJUX's remote control capabilities under Issue 5, and the parties litigated this matter under that issue, those questions will be addressed here.  "ua1paraoutline254. The Commission's remote control rules in effect during the period from October 1994  S!' xtthrough November 1995 provided, inter alia, that it was permissible for an FM broadcast station to be  xoperated by remote control, that no authorization by the Commission was required to do so, and that a  xremote control point [could be established] at a location other than at the main studio or transmitter. 47  xC.F.R.  73.1400 (1994, 1995). In addition, broadcast stations being operated by remote control were  xVrequired to provide at remote control points sufficient control and operating parameter monitoring"(%= 0*&&,,#"  xcapability to allow technical operation in compliance with the Rules applicable to that station and the  S'terms of the station authorization. 47 C.F.R.  73.1410(a) (1994, 1995).  y {O@' x ԍ It is noted that the remote control rules were completely revised effective December1, 1995. Unattended  {O 'Operation of Broadcast Stations, 10 FCC Rcd 11479, 78 R.R. 2d 1737 (1995).   "a1paraoutline255. The findings establish, and it is concluded, that, at all times relevant to this issue, the WJUX  xtransmitter was capable of being controlled by remote control from either the WJUX main studio or the  xDumont studio, and that such operation was totally consistent with then Sections 73.1400 and 73.1410  xgof the Rules. The record reveals that, from the commencement of operation of the station, the WJUX  xktransmitter was equipped with a dialup remote control system which could be accessed from a telephone  xkinstrument, located anywhere, by merely dialing a telephone number and entering a code. After accessing  xthe system, the telephone instrument could be used to turn the transmitter off and on, to take transmitter  x readings, and to perform other functions required by the Commission's regulations. In addition, both  xBlabey and Montana knew how to use the dialup remote control system. Further, the evidence  xDestablishes that there was a telephone instrument (belonging to WVOS) located in the WJUX main studio, and that this instrument could have been used to dial up and control the WJUX transmitter, if necessary.  "8a1paraoutline256. The record also reveals that the WJUX transmitter could be remotely controlled from the  xDumont studio by utilizing one of the TC8 remote control units located there. In this regard, Turro  xleased a 56 Kbps land line from the telephone company and used its narrow data channel to carry remote control commands to the TC8 unit connected to the WJUX transmitter.  "Ea1paraoutline257. Universal argues that, at the time of Loginow's inspection, there was no operator on duty  x7in control of the WJUX transmitter either at the WJUX main studio or at the Dumont studio, and that this  xwas a violation of then Section 73.1860 of the Rules. Universal's contention must be rejected; it is based  xon speculation. Although Turro was out of town on the dates of the inspection, there was no evidence  xof record that another licensed operator was not on duty at the Dumont studio at that time. Indeed,  xneither Universal nor the Bureau sought to establish such facts at the hearing, and Loginow himself did  xnot make such an allegation. Moreover, Section 73.1860 was not the subject of a designated issue, nor  S'was it even referred to in the HDO. This matter is, therefore, beyond the scope of Issue 5.  Sz' "a1paraoutline258. Staffing. In Main Studio Clarification, 3 FCC Rcd at 5026, the Commission stated that  xglicensees must maintain at their main studios [a] meaningful management and staff presence [in order  xto] help expose stations to community activities, help them identify community needs and interests and  xDthereby meet their community service requirements. The Commission elaborated on the meaning of this  S' x^statement in Jones Eastern of the Outer Banks, Inc., 6 FCC Rcd 3615 (1991) ( Jones IĠ), recon. granted  S' x&in part and clarified 7 FCC Rcd 6800 (1992) ( Jones IIĠ). There, the Commission stated that, to be  xtconsidered meaningful, there must be management and staff presence at a station's main studio on  Sh' xa fulltime basis during regular business hours. Jones I, 6 FCC Rcd at 3616 n.2. In addition,  x3management presence on a fulltime basis may consist of more than two people working on parttime  S ' xbases. Jones II, 7 FCC Rcd at 6800 n.4. The managerial personnel must also be authorized to make  S ' typical managerial decisions. Id. at 6801. The Commission further stated: "!>$ 0*&&,, "Ԍ  XBecause some [management] positions may require the person occupying them to conduct  zsignificant business outside the office, we would not, of course, require management  #personnel to remain chained to their desks during normal business hours. Rather, we  zrequire that management personnel report to work at the main studio on a daily basis,  spend a substantial amount of time there and ... use the studio as a home base.  Ultimately, that management presence must remain responsible for whatever station  ~operations occur from that studio. To the extent that the staff person may fully perform  its [sic] station functions with time to spare, and coverage of the main studio permits, that  0person may also take on responsibilities for another business, as long as the main studio remains attended during normal business hours.   SH 'Id. at 6802, footnote omitted.  "a1paraoutline259. The findings establish, and it is concluded, that the presence of Blabey and Montana at the  xFerndale main studio building constituted a meaningful management and staff presence which was fully  xconsistent with the Commission's guidelines. Thus, the record establishes that both Blabey and Montana  xtreported to work at that building on a daily basis, that they used that building as a home base, that they  xwere present at the building during normal business hours, and that they spent substantial amounts of time  xthere. Consequently, the WJUX main studio remain[ed] attended during normal business hours within  S ' xthe parameters set forth in Jones I and Jones II. Moreover, there was no evidence whatsoever that the  xWJUX main studio was not properly staffed or attended at any particular time, including the date of  S' xLoginow's inspection, or that WJUX's studio hours were not regular or normal. Compare KLDTTV 55,  S'Inc., 8 FCC Rcd 6316 (1993), forfeiture reduced 10 FCC Rcd 3198 (1995), with the instant case.  "a1paraoutline260. The record further establishes that Blabey was authorized to perform, and did in fact  xperform, duties and functions for WJUX which were typically managerial in nature. Specifically, Blabey  xxrecommended prospective employees for Weis to hire, and they were hired. Blabey supervised Montana's  xkwork for WJUX and she reported to him. Blabey consulted with Montana on WJUX matters and directed  xher to prepare the PSA bulletin boards and forward them to the Network. Blabey recommended to Weis  xthat Montana's salary be raised, and it was raised. Blabey had discussions with Weis which resulted in  x<the broadcast of public affairs and public service programming over WJUX and arranged for such  xprogramming to be broadcast over the station. Blabey made decisions to put emergency announcements  xconcerning Sullivan County on the air over WJUX and prepared those announcements. Blabey was  xresponsible for initiating steps to put WJUX back on the air on those occasions when it went off the air.  xBlabey hosted Loginow during his inspection of WJUX. Blabey retained Spicka to assist Loginow  xduring the course of the inspection of WJUX and, subsequently, to originate programming from the WJUX  xQmain studio at the time the Network's program feed was cut. Blabey made the decision to hire Silverstein  xto sell time for WJUX, and Weis approved the hiring. Blabey arranged for Martin to cover the office  xfunctions of WJUX on the days he (Blabey) and Montana were testifying in this proceeding. Blabey  x"represented WJUX in the community through his memberships in local civic organizations and his  xattendance at local civic functions. Moreover, there was no evidence of record that Blabey was not  xcompletely responsible for whatever station operations and activities were carried out at the WJUX main studio. "P$? 0*&&,,""Ԍ "a1paraoutline261. The record also reflects that Montana performed various staff functions for WJUX on a daily  xbasis. She picked up the mail at the post office and distributed it when she returned to the studio  xbuilding. She made sure Blabey and Weis saw mail that needed their attention. She brought bills to the  x&attention of Blabey and Weis for payment. She handled petty cash, dealt with walkins, answered the  x3telephone, and took care of the callers' requests, including their complaints about WJUX. In addition,  xMontana gathered material for and prepared a bulletin board of prospective PSAs. She was the one who  xdecided what was and was not to be included on the bulletin board and she forwarded it to the Network  xfor production and broadcast. She specified on the bulletin board or called the Network regarding PSAs  xwhich she considered particularly important and warranted broadcast, and the Network followed her suggestions on nearly every occasion.  "a1paraoutline262. The Bureau and/or Universal argue that Blabey and Montana did not constitute a meaningful  xmanagement and staff presence at WJUX because they were not fulltime employees and Blabey was a  x consultant, their salaries were not commensurate with managementlevel positions, the functions they  xperformed were ministerial not managerial, and they devoted much of their time to matters involving  S ' xWVOS. These contentions must be rejected. Jones I and Jones II require a fulltime presence at a main  x*studio, not the employment of individuals on a fulltime basis. The record clearly reflects that the WJUX  xmain studio remained attended on a fulltime basis during normal business hours by Blabey and Montana.  xZThe fact that Blabey and Montana also devoted time to WVOS matters did not render their presence at  S ' xthe main studio building less than fulltime or meaningful. Indeed, Jones II specifically permits staff  xDpersons, such as Montana, to undertake responsibilities for another business in their spare time, and there  x3appears to be no reason why individuals in managerial positions, such as Blabey, should not be able to  xdo the same provided that the main studio remains attended, as it was in this case. Further, there is no  xDprecedent holding that such other business cannot under any circumstances be another broadcast station.  SD' xCf. KQQK, Inc., 10 FCC Rcd 132 (MMB 1995) (the Bureau did not hold that the President of Station A  xcould not be appointed to the position of Assistant General Manager of Station B, to which Station A  x3leased main studio space; rather, the Bureau ruled that his presence at Station B's main studio was not managerial because Station B could give no description of his duties).  "a1paraoutline263. The fact that Blabey was retained as a consultant is neither determinative nor controlling,  xand to rule otherwise would place form over substance. The record establishes that Blabey chose that title  xfor tax purposes only, that Weis treated and addressed Blabey as his General Manager not as his  xconsultant, that Blabey followed all of Weis's directions and policies, that Blabey functioned more like  xan employee than a consultant, and that Blabey's duties were more similar to an employee's than to a  xconsultant's. In addition, in arguing that Blabey and Montana were paid less than what the salary would  xkbe for comparable positions at other radio stations, the Bureau has completely ignored the fact that WJUX  xZoperated under the Network Affiliation Agreement. As a result, substantially less time was required of  xBlabey and Montana to perform their duties than would have been required had WJUX been operated  x&differently, and their pay reflected that reality. Moreover, as demonstrated above, Blabey's duties and  xtresponsibilities for WJUX were, in fact, managerial in nature, and appeared typical of those carried out  xby general managers of stations operating under time brokerage arrangements where the broker was providing the programming and selling the advertising time within such programming.  "a1paraoutline264. Universal contends that MMBI's engagement of Blabey and Montana violated the  xCommission's crossinterest policy and is disqualifying. This matter is beyond the scope of Issue 5. At"&%@ 0*&&,,#"  x*the time this case was designated for hearing, the Commission was fully aware of both the crossinterest  S' xpolicy and of the role of Blabey and Montana at WJUX. See HDO at notes 8 and 15. However, the  xCommission failed to specify an issue to determine whether there was a violation of that policy. Indeed,  xafter noting the crossinterest policy, the Commission's only statement was that a question remained as  xto whether the presence of Blabey and Montana at WJUX represent[ed] that type of meaningful  S:' xmanagement presence contemplated by [the] main studio rule. Id. at note 15, citations omitted. Under these circumstances, no consideration of the crossinterest policy is warranted.  S'  C. Issue 1: Translator and Auxiliary Station Rules Issue ă  "a1paraoutline265. Issue 1 was designated to determine whether Turro's operation of the Fort Lee and Pomona  xtranslators violated Section 74.1231(b) of the Rules relating to FM broadcast translator stations, and  xSection 74.531(c) of the Commission's Rules relating to aural broadcast auxiliary stations. This issue was  xspecified because the Commission had information that all the programming airing on WJUX and the  xPomona and Fort Lee translators was originating from Jukebox Radio's Dumont studio, that intercity relay  xstation WMG499 was being used to deliver the programming from the Dumont studio directly to the Fort  xLee translator, that the programming being delivered by WMG499 was being broadcast by the Fort Lee  x translator, that the Fort Lee translator was not retransmitting the offair signal of WJUX, and that the  xZPomona and Fort Lee translators had also been programmed through telephone lines from the Dumont  S ' xstudio. (HDO at paras. 7 and 13.) For the reasons which follow, it is concluded that Turro's operation  xof the Fort Lee and Pomona translators was in full compliance with Section 74.1231(b) of the Rules, but that his operation of WMG499 beginning in late October 1994 was in violation of Section 74.531(c).  Sn' "a1paraoutline 266. Section 74.1231(b). This section of the Commission's rules provides, in pertinent part, that  x [a]n FM translator may be used for the purpose of retransmitting the signals of a primary FM radio  xbroadcast station ... which have been received directly through space, converted, and suitably amplified.  xIn this regard, the Commission has stated that the signal of the FM radio station being rebroadcast must  S' xbe received directly overtheair at the translator site. FM Translator II, 8 FCC Rcd at 5093. The  x^findings establish, and it is concluded, that at all times pertinent to this issue, including the period between  xpOctober 21, 1994, and July 1995, Turro's operation of the Fort Lee and Pomona translators was in complete compliance with this rule.  S' "+a1paraoutline 267. First, there was no competent or reliable proof substantiating the charge in the HDO that  xtelephone lines were used to deliver programming from the Dumont studio to the Fort Lee translator for  xMthe purpose of retransmission. The only evidence from a credible witness suggesting such use was  xcontained in an August1, 1995, email from Loginow to Mass Media Bureau and Wireless  xxTelecommunications Bureau personnel. In this email, which reported on his July31, 1995, observations,  xLoginow stated that the audio quality of the Fort Lee translator indicated that the input signal was not  xbeing received off the air from the Pomona translator but from some other alternate means, presumably  xvia telephone lines. The record establishes, however, that Loginow's statement was nothing more than sheer, unsupported speculation.  "a1paraoutline 268. Loginow based his statement solely on the high quality audio he heard on July31, 1995,  x&in comparison to the lesser audio quality he remembered hearing during his April 1995 inspection. He  xalso thought that the high quality audio he observed on July31, 1995, was consistent with the audio"*%A 0*&&,,#"  xMquality he observed on May15, 1995. However, Loginow performed no testing on July31, 1995, did  xnot inspect or observe the Fort Lee or Pomona translators on that date, and did not look for some alternate  xmechanism of program delivery. In addition, Loginow admitted that in April 1995 he observed that the  xpower of the WJUX transmitter was reduced. He also admitted that a signal being received by the Fort  xLee translator would be stronger, and the audio quality would be better, if it was being transmitted at full  xpower by the WJUX transmitter than it would be if that transmitter was operating at reduced power.  x(Hurst, too, testified that a reduction in the power of the Monticello transmitter could have caused some  xdegradation of the audio quality heard from the Fort Lee translator.) Loginow further admitted that the  xgfact that he heard a better signal on May15 and July31, 1995, might have been attributable to the fact  xthat something had been fixed and the WJUX transmitter was operating at full power. Moreover, on  xAugust2, 1995, only two days after his July31, 1995, observations, Loginow inspected both the Fort Lee  xand Pomona translators to the extent that he saw fit and found no means of program delivery other than reception off the air.  "a1paraoutline 269. Next, the evidence establishes that the Fort Lee translator was capable of receiving, and did  xin fact receive, the offair signal of WJUX directly through space. Prior to the time that WJUX went  xon the air on October21, 1994, Turro performed tests on the roof of the Mediterranean Towers and  xDdetermined that WJUX could be received directly offtheair at the Fort Lee translator site. Turro located  x&a hot spot on the roof, installed a receive antenna at that location for reception of WJUX, installed a  xsecond antenna a few feet away to receive the signal of first adjacent channel WBAI, and connected the  xtwo antennas to a filtering device which was adjusted to eliminate interference from WBAI. This  xarrangement was in use from late October 1994 to midJanuary 1995. Based upon his monitoring of the  x&Fort Lee translator on a daily basis during this period, Turro testified that this arrangement at all times  xprovided an adequate signal from WJUX for rebroadcast. Although there were two subsequent changes  xin filtering devices, the reception quality of the Fort Lee translator remained essentially the same. After  xQthe Pomona translator started to rebroadcast WJUX, the Fort Lee translator began to retransmit the signal  xof the Pomona translator on a regular basis. However, that did not affect the capability of the Fort Lee translator to receive and rebroadcast the signal of WJUX.  "a1paraoutline 270. The ability of the Fort Lee translator to receive the offair signal of WJUX directly through  x3space was observed by Hurst, Hidle, and Loginow. Those three individuals also observed the offair  xZreception of WJUX at the hot spot. In this connection, Hurst testified that good quality reception of  xWJUX was possible in the hot spotwithout the use of filtering devices, and that a good quality signal  xtfrom WJUX could be received from any other location on the roof provided that filtering devices were  xMused. In addition, Hurst confirmed Turro's testimony concerning the stability and longevity of the hot  x7spot, and there was no evidence adduced demonstrating that the hot spot was artificially created, such as by locally generating a signal into a dummy load.  "la1paraoutline271. The evidence additionally establishes that the Pomona translator was capable of receiving,  xand did in fact receive, the offair signal of WJUX directly through space. Such reception was never  xin serious question and was observed by Loginow on several occasions. Indeed, testing by Hurst, Hidle,  xand Kirschner demonstrated that the Pomona translator remained able to receive the offair signal of  xQWJUX with the WJUX transmitter operating at levels below 100 watts. WJUX was authorized to operate with an ERP of 6.0 kW. " %B 0*&&,,#"Ԍ "a1paraoutline272. The record further reveals that the Fort Lee translator was capable of receiving, and did in  x*fact receive, the offair signal of the Pomona translator directly through space with the receive antenna  xDfor the Pomona translator located on the roof of the Mediterranean Towers. This fact was testified to by  xTurro and confirmed by Hurst, Hidle, and Loginow, each of whom had observed such offair reception.  xQHurst characterized the offair signal received on the roof of the Mediterranean Towers from the Pomona  xtranslator as a good quality signal, and Loginow characterized it as a consistent high quality audio  xsignal. In addition, the evidence establishes that the signal of the Pomona translator could be received  x directly through space in the basement of the Mediterranean Towers. This fact was testified to by  xkTurro, Hurst, and Hidle. Hurst characterized such reception as unusual [and] possibly phenomenal, and  xHidle stated that it was acceptable audio. Loginow never observed, or sought to observe, such reception in the basement, and performed no tests at that location.  "a1paraoutline273. The record establishes that audio programming which had originated in the Dumont studio  xwas continuously delivered to the Fort Lee translator by WMG499. Telemetry (i.e., data) was also  xtransmitted continuously from the Dumont studio to the Fort Lee translator by WMG499. Turro never  xtdenied those facts. Turro explained that the continuous telemetry path enabled him to switch remotely  xamong the several different receiving antennas, transmitting antennas, and transmitters which were located  xtat the Fort Lee transmitter site. Turro further testified that the continuous audio path made WMG499  xDeasily identifiable in the event that it caused interference, and permitted him to place emergency messages  xon the air. The evidence indicates, however, that, from October21, 1994, until the time WMG499 was  xdeactivated, the audio programming received by the Fort Lee translator from WMG499 was not  xretransmitted unless there was an emergency, and that it was possible that no emergency messages at all  xwere broadcast during that period. Rather, the evidence shows that the audio feed from WMG499  x*terminated into a dummy load, and that the Fort Lee translator retransmitted the offair signals it received directly through space from either WJUX or the Pomona translator.  "a1paraoutline274. The most significant evidence contradicting these conclusions resulted from Loginow's  xMay15, 1995, tests. On that date, Loginow used a portable signal generator to generate dead carrier  x*(i.e., silence) on each of the frequencies of WJUX, the Pomona translator, and WMG499 while listening  xto the output of the Fort Lee translator over the air. Loginow was attempting to determine whether the  xZFort Lee translator would pick up the signal he was generating and retransmit it on its own frequency.  xZIf the dead carrier had gotten into the receiver of the Fort Lee translator, it would have overridden any  xVother signal on that frequency and Loginow would have heard the output of the Fort Lee translator gradually become silent.  "4a1paraoutline275. The signals Loginow generated on each of the frequencies of WJUX and the Pomona  xtranslator did not overwhelm the signal he was monitoring, and Loginow concluded that neither of those  xksignals was being rebroadcast by the Fort Lee translator. The signal Loginow generated on the frequency  xof WMG499 did overwhelm the signal Loginow was monitoring. That is, Loginow heard the output of  xQthe Fort Lee translator gradually become silent. Loginow concluded from this that the Fort Lee translator  xhad been receiving and rebroadcasting the audio path from WMG499. However, the weight of the evidence establishes that Loginow's results were not probative.  "/a1paraoutline276. The record reveals that on May15, 1995, the Fort Lee translator was retransmitting the off x air signal of the Pomona translator, and that the receive antenna being used to pick up that signal was" %C 0*&&,,#"  xcsituated in the basement of the Mediterranean Towers, at least 25 stories below the roof. Loginow  xperformed his tests from the inside of a stairwell enclosed by cinder block walls located at the roof level  x&of the Mediterranean Towers. The signal he was generating was a low level signal of less than half  xa watt. This low level signal was not of sufficient strength to have passed through the building and been  xxpicked up by the Pomona receive antenna located in the basement. Therefore, Loginow's generated signal  xVcould not have gotten into the receiver of the Fort Lee translator and overwhelmed the signal being  xreceived from the Pomona translator. Consequently, Loginow's conclusion that the Fort Lee translator had not been rebroadcasting the offair signal of the Pomona translator was erroneous.  "a1paraoutline277. Loginow's own testimony undermined the legitimacy of his test results. Loginow testified  xthat he understood that the receive antennas for WJUX, the Pomona translator, and WMG499 were all  xlocated on the roof, that he performed his testing from the roof level because he wanted to be near those  xantennas, and that the closer he could get to the antennas being tested the more accurate his tests would  xbe. Loginow also stated that the distance between the signal generator and the antenna he was trying to  xaffect was important to the testing process, that at some distance the signal would be unable to affect a  xreceiver, that obstructions between the signal generator and the system being tested could affect the  xVvalidity of the tests, and that his surroundings on May15, 1995, would have attenuated toward the  x}receiving end the signal he was generating. Loginow never performed a complete inspection of the  xMediterranean Towers and had no personal knowledge as to what materials, equipment, or other things  xmay have been in the building that theoretically could have shielded from an antenna located in the basement the low level signals being transmitted by the signal generator.  "Ea1paraoutline278. Further, and more importantly, tests performed by Hurst and Hidle actually demonstrated  xxthat Loginow's less than halfwatt signal generated from the roof level of the Mediterranean Towers could  xnot have affected a receive antenna located in the basement. Specifically, from the basement of the  x@Mediterranean Towers at the location where the Pomona receive antenna had been situated, Hurst and  x*Hidle used a signal generator to generate a 5 watt signal on the frequency of the Pomona translator. This  xZsignal, which was about 10 times the strength of the signal generated by Loginow, was unable to pass  xthrough the building and cause interference to the roofmounted receive antenna for the Pomona translator.  xBased upon these tests, Hurst testified that someone located on or near the roof of the Mediterranean  xTowers would not have been able to cause interference with the reception of the Pomona translator with  xa 0.5 watt signal when the Pomona receive antenna was located in the basement. In view of the above,  x*and the absence of comparable testing by Loginow or anyone else, Hurst's testimony must be considered  xdispositive. Loginow's contradictory testimony, that ducting would have enabled his low level signal  xto have overwhelmed a receive antenna located in the basement, is entitled to no weight. Unlike the testimony of Hurst, it was unsupported and untested.  "8a1paraoutline279. Loginow's conclusion that the Fort Lee translator had been rebroadcasting the audio path  xxfrom WMG499 was also flawed. As discussed earlier, WMG499 was subdivided into an audio path and  xa telemetry path. As a failsafe, to enable him to get emergency messages on the air, Turro  xprogrammed the receiver and the remote control unit at the Fort Lee translator to immediately home onto  x&the audio path on WMG499 and rebroadcast that signal if the telemetry path was interrupted. In this  x&connection, Turro testified that the telemetry path was the weakest component of his system. It was  xnarrow and on the outside edge of the microwave, and was the first thing that would have been strip[ped] away by someone seeking to jam WMG499." %D 0*&&,,#"Ԍ "ԙa1paraoutline280. When Loginow generated dead carrier on 951 MHz, the frequency of WMG499, he  xgradually substituted silence for the signals that WMG499 had been carrying. At some point, the dead  xcarrier, which contained no telemetry, interrupted or blanketed the telemetry path on WMG499. When  xthat occurred, the failsafe was activated and the Fort Lee translator immediately homed onto the audio  xtpath on WMG499 and rebroadcast that signal. Thereafter, as the dead carrier overwhelmed the audio  xpath, Loginow heard the output of the Fort Lee translator become silent. However, had the telemetry path  xnot been interrupted or blanketed by Loginow, the failsafe would not have been triggered and the audio  xQpath on WMG499 would not have been put on the air. It is clear, therefore, that given this configuration of the Fort Lee translator, Loginow caused the results he obtained.  "a1paraoutline281. Loginow testified that Turro's failsafe was inconsistent with good engineering practice,  xhighly problematic, not logical, and close to being technically impossible. But Loginow admitted on  xIcrossexamination that each element of the failsafe arrangement was, in fact, technically possible.  xSpecifically, Loginow testified that an individual microwave path could be subdivided into an audio and  xa data channel, that the receiver and remote control unit of the Fort Lee translator could be programmable,  xand that those units could be programmed to home in on the microwave audio path if the data path was interrupted.  "a1paraoutline282. The Bureau argues that when Loginow blocked 951 MHz, the output of the Fort Lee  xtranslator should not have been silence, as observed by Loginow. Similarly, Universal contends that the  x loss of the WMG499 signal should not have caused the Fort Lee translator to begin broadcasting  xMWMG499 because there was no WMG499 signal to rebroadcast due to [Loginow's] jamming, and  xxbecause that entire circuit had been knock[ed] ... off the air. Rather, the Bureau and Universal claim  x*that the Fort Lee translator should have begun to rebroadcast the offtheair signal of either WJUX or the  x"Pomona translator. In support, they rely on Turro's testimony relating to an additional failsafe he programmed into the Fort Lee translator.  "<a1paraoutline283. These arguments are without merit. Turro testified that the additional failsafe was designed  xto force the Fort Lee translator to receive the offair signal from the Pomona translator or WJUX if the  xFort Lee translator lost the 951 MHz input completely, that is, if no 951 MHz signal at all was being  xreceived. However, the evidence establishes that when Loginow performed his tests on May15, 1995,  xhe did not at any time cause the Fort Lee translator to completely lose the 951 MHz input. A signal from  xthat frequency was never totally blocked, lost, or knock[ed] ... off the air. On the contrary, the dead  xQcarrier being generated by Loginow on 951 MHz gradually became substituted for the signals which were  xkbeing received from WMG499 on 951 MHz. In other words, the Fort Lee translator was receiving some  xsignal on 951 MHz on a continuous basis throughout the course of Loginow's tests. Consequently, the  xconditions under which this additional failsafe would have manifested itself were not present during the May15, 1995, testing.  S ' 'X a1paraoutline284. Section 74.531(c). Section 74.531(c) of the Commission's Rules provides, in pertinent part:  e iX` ` An aural broadcast intercity relay station is authorized to transmit aural program  material between noncommercial educational FM radio stations and their coowned  noncommercial educational FM translator stations assigned to reserved channels (Channels"H$E 0*&&,,""  201 to 220) and between FM radio stations and FM translator stations operating within the coverage contour of their primary stations....   S' xtSee generally FM Translator I, 5 FCC Rcd at 722021; FM Translator II, 8 FCC Rcd at 509798; and  Sb' xSatellite and Terrestrial Microwave Feeds, 7 FCC Rcd 5546, 554748 (1992); see also Sections 74.501(b)  x*and 74.532(a) of the Rules. The findings establish, and it is concluded that, from late October 1994 until it was deactivated in early July 1995, Turro's operation of WMG499 was in violation of this rule.  "a1paraoutline285. Turro's application for what became WMG499 stated that the Fort Lee translator (then)  xkrebroadcast the signal of a noncommercial FM station in Franklin Lakes, New Jersey, and that WMG499  xwould be used to feed 30second announcements concerning financial support and operational  x@communications from the studio of the noncommercial FM station to the Fort Lee translator. Turro's  xapplication was granted on September23, 1993. Beginning in late October 1994, the Fort Lee translator  x_ceased rebroadcasting the Franklin Lakes station and began to rebroadcast the signal of WJUX,  x@Monticello, New York. WJUX was authorized to operate on Channel 259, and was a commercial FM  xstation. On November30, 1994, Turro formally informed the Bureau's Auxiliary Services Division that  xDthe Fort Lee translator was now rebroadcast[ing] primary station WJUX. By letter dated June6, 1995,  xthe Chief of the Commission's Microwave Branch directed Turro to show cause why his license for  x@WMG499 should not be revoked or cancelled. One of Turro's consulting engineers responded to the Commission by letter dated June13, 1995, and Turro deactivated WMG499 in early July 1995.  "a1paraoutline286. Turro readily admitted both in his response to the LOI to Turro and throughout the course  x_of this proceeding that, from late October 1994 until early July 1995, WMG499 had been used  x continuously to transmit aural program material from Jukebox Radio's Dumont studio to the Fort Lee  xtranslator. However, such use during this period violated Section 74.531(c) of the Rules. Specifically,  xbeginning in late October 1994, WMG499 had not been used for the purposes delineated in Section  x74.531(c), namely, to transmit aural program material between coowned noncommercial FM broadcast  xVand translator stations, or between FM primary stations and translator stations operating within the  S' xcoverage contours of the primary stations ( fillin service). Rather, WMG499 had been used to transmit  xaural program material from a program production studio to a translator station. Nothing in Section  ST' xc74.531(c), or in FM Translator I, FM Translator II, or Satellite and Terrestrial Microwave Feeds,  xcontemplates or authorizes such use. Further, the record is clear that, during the period in question, the  xFort Lee translator was not a noncommercial educational FM translator station, was not transmitting between coowned stations, was not assigned to a reserved channel, and was not providing fillin service.  "a1paraoutline287. Turro also admitted that, from late October 1994 until early July 1995, WMG499 had been  xused continuously to transmit telemetry, also called operational communications, from Jukebox Radio's  xDumont studio to the Fort Lee translator. Turro argues that his use of WMG499 to transmit telemetry  xwas expressly authorized by Section 74.531(f) of the Rules. This argument must be rejected. While  x3Section 74.531(f) does authorize the multiplexing of an intercity relay transmitter to provide additional  x channels for the transmission of, among other things, operational communications, Turro's argument  xremoves that subsection from its proper context. Read in context, Section 74.531(f) only permits such  x7multiplexing if the intercity relay station is otherwise authorized to operate pursuant to Section 74.531(c).  xAs discussed above, WMG499 was not so authorized. To read Section 74.531(f) in any other manner  x7would completely vitiate Section 74.531(c). Moreover, Section 74.531(f) specifically provides that [a]n"&%F 0*&&,,#"  x[... intercity relay station may not be operated solely for the transmission of operational ...  xcommunications. Consequently, Section 74.531(f) does not unconditionally authorize the transmission of operational communications on an intercity relay station as asserted by Turro.  "a1paraoutline288. Turro further argues that his use of WMG499 to enable him to transmit emergency  xmessages, if necessary, was specifically authorized by Section 74.1231(g) of the Rules. Turro's argument  xis without merit. Section 74.1231(g) authorizes translator stations to transmit aural material which is  S' xlimited, inter alia, to emergency warnings of imminent danger. But Section 74.1231(g) states that this  x/material must be transmitted as permitted in Section 74.1231(f) of the Rules. However, Section  S' x@74.1231(f) does not authorize the transmission of this material by intercity relay station. Compare the  xNote to Section 74.1231(b) of the Rules (in connection with Sections 74.1231(b) and (h), the use of  SL ' xintercity relay stations to deliver signals to FM translator stations is authorized) with Sections 74.1231(f) and (g) (no similar statement).  "a1paraoutline 289. Turro also argues that his operation of WMG499 during the period from late October 1994  xuntil early July 1995 was proper because there were no material changes in the purposes for which WMG xD499 was being used, or in the actual use of WMG499, after the Fort Lee translator started retransmitting  x}WJUX. Turro further notes that, in his application for WMG499, he identified the locations of the  xtransmit and receive points and that those points remained the same after the change of primary stations.  S' xTurro's arguments are rejected. They are irrelevant to a determination of whether a violation of Section  x@74.531(c) occurred. As discussed above, an intercity relay station may only be used to transmit aural  x^program material between coowned noncommercial FM radio stations and noncommercial FM translator  xstations, or to transmit such material between FM radio stations and FM translator stations providing fillin  xcservice. The Fort Lee translator was not providing fillin service, and it ceased its affiliation with a  x/noncommercial FM radio station in late October 1994. At the time the Fort Lee translator stopped  xrebroadcasting the Franklin Lakes station and began to rebroadcast commercial FM station WJUX, Turro's  xuse of WMG499 fell out of compliance with the provisions of Section 74.531(c). He therefore lost  xwhatever authority he had under that section, and his license, to use WMG499 for the purposes stated  xin his application, or for any other purpose. Similarly, the fact that the transmit and receive points of  xDWMG499 had not changed is irrelevant and could not in any case confer independent authority on Turro to use WMG499 for purposes not authorized by Section 74.531(c).  "<a1paraoutline!290. The most appropriate sanction for Turro's violation of Section 74.531(c) of the Rules would  xbe the imposition of a $3,000 forfeiture. Thus, Section I of the Guidelines for Assessing Forfeitures,  xwhich appears as a Note to Section 1.80(b)(4) of the Rules, provides for a forfeiture penalty in the base  x@amount of $4,000 for violations which are very similar in nature to a violation of Section 74.531(c) of  Sf' xkthe Rules. See Unauthorized emissions (base amount of $4,000); Using unauthorized frequency (base  xIamount of $4,000); Construction or operation at unauthorized location (base amount of $4,000).  xFurther, in accordance with Section II of the Guidelines, the base amount of the forfeiture would be  xreduced by $1,000 because Turro never denied that he used WMG499 for the purposes in question, Turro  xfully disclosed such use in his response to the LOI to Turro and throughout the course of this proceeding,  xno substantial harm from the unauthorized use of WMG499 was demonstrated, it was not shown that  xTurro realized any substantial economic gain through the unauthorized use of WMG499, and Turro had a history of overall compliance with the Commission's rules. "(%G 0*&&,,#"Ԍ "pa1paraoutline"291. However, the assessment of a forfeiture in this case is precluded by the statute of limitations.  xSection 503(b)(6)(i) of the Act and Section 1.80(c)(1) of the Rules provide, in pertinent part, that no  xforfeiture penalty shall be imposed if the violation occurred more than one year prior to the issuance of  xDthe appropriate notice. Turro's violation of 74.531(c) occurred between late October 1994 and early July  S`' x1995. The HDO in this proceeding, which served as the appropriate notice of forfeiture (HDO at paras.  xQ3133), was released on April18, 1997, nearly two years after the last violation occurred. Since this was  S' xwell after the expiration of the statute of limitations, no forfeiture may be imposed. Cf. Sun Over Jupiter  S'Broadcasting, Inc., 8 FCC Rcd 8733 (Rev. Bd. 1993).  S'[  E. Issues 3 and 7: Misrepresentation/Lack of Candor Issues ă  "_a1paraoutline#292. Issue 3 was designated to determine whether Turro made misrepresentations to or lacked  xcandor with the Commission concerning the operation of the Fort Lee and Pomona translators. Issue 7  xVwas designated to determine whether MMBI made misrepresentations to or lacked candor with the  xCommission concerning the operation of WJUX. In specifying these issues, the Commission stated that  x there is a substantial and material question of fact as to whether Turro and MMBI have misrepresented  xor lacked candor ... with respect to material facts concerning the operations of the Fort Lee and Pomona  xtranslators and WJUX, that it appeared that Turro's and MMBI's statements regarding the origination of  xthe programming on the translators and the operation of WJUX were inaccurate, and that there was  xD substantial evidence that Turro and MMBI had a clear motive to conceal or misrepresent these activities,  S' xZmost of which ... constitute violations of the Commission's Rules. (HDO at paras. 1718.) For the  S'reasons which follow, Issues 3 and 7 are resolved in favor of Turro and MMBI. y yO(' x ԍ Most of the arguments advanced by the Bureau and Universal under the misrepresentation/lack of candor  x issues have already been raised by those parties in connection with the other issues in this proceeding. However,  x the Bureau and Universal now contend that the statements that Turro and Weis made with respect to those matters were not truthful.  "Na1paraoutline$293. Misrepresentation and lack of candor in a licensee's dealings with the Commission are  SH' xgenerally viewed as serious breaches of trust. Character Qualifications, 102 FCC 2d 1179, 1211  x_(1986). Misrepresentation involves false statements of fact, whereas lack of candor involves  S' x^ concealment, evasion, and other failures to be fully informative. Fox River Broadcasting, Inc., 93 FCC  x2d 127, 129 (1983). Direct misrepresentations or omissions to the Commission can result, by themselves,  S' xkin disqualification. Old Time Religion Hour, Inc., 95 FCC 2d 713, 719 (Rev. Bd. 1983). However, intent  xto deceive is an essential element of a misrepresentation or lack of candor showing, and disqualification  S^' xis not warranted in the absence of a deceptive intent. Intercontinental Radio, Inc., 98 FCC 2d 608, 639  S8'(Rev. Bd. 1984); Fox River, 93 FCC 2d at 129.  S' "<a1paraoutline%294. Issue 3 ! Turro. The findings establish, and it is concluded, that Turro did not misrepresent  xfacts to or lack candor with the Commission in his statements concerning the operation of the Fort Lee  xor Pomona translators or the origination of programming on the translators. On the contrary, the record  xIreflects that, at all stages of this case, Turro dealt with the Commission and its representatives in a truthful, candid, and forthright manner. "" H0*&&,,"Ԍ S' "ca1paraoutline&295. The Bureau and/or Universal argue that Turro lacked candor in his January30, 1991, request  x"for a declaratory ruling by failing to disclose that his intentions were to provide 100 percent of the  xprimary station's programming, to be the only purchaser of brokered air time on the primary station, and  xMto have the translator station sell all of the commercial advertising during the brokered air time. These  xcontentions must be rejected. First, the record does not show that Turro intended to deceive the  S8' xMCommission even assuming, arguendo, that he omitted any material information. Second, a review of  x7contemporary case precedent establishes that, even if Turro had disclosed the above details to the Bureau  x in his request for a declaratory ruling, the Bureau's ruling would not have been substantially different.  x The following table summarizes some of the key elements of agreements which were considered and approved by the Bureau during the relevant time period. #P\  P6G;P# O ddx !ddx" I<< O       oJ ' HE Joseph A. Belisle, Esq., 5 FCC Rcd 7585 (MMB 1990), released December 18, 1990.: "  Network affiliation agreement.  ]8 Broker will provide between 12 and 24 hours of programming per day.   "      oJw ' HE Roy R. Russo, Esq., 5 FCC Rcd 7586 (MMB 1990), released December 18, 1990.   Reciprocal time brokerage agreements.  ]8 Broker will provide all programming from 4 a.m. to midnight, seven days a week.  ]8 Arrangement involved an almost complete programming  ]8h format change by the broker, the broker determined the  ]8A advertising rates and scheduling, and the solicitation of advertising accounts.  ]8 Bureau noted that decisions made by the broker with  ]8 respect to programming, advertising, and sales were  ]8  characteristic of all time brokerage agreements and were  ]8 permissible as long as they did not represent the ultimate decisions in those areas.         oJ' } J. Dominic Monahan, Esq., 6 FCC Rcd 1867 (MMB 1991), released April 4, 1991.  Programming affiliation agreement.   c_ Broker will provide programming from 6 a.m. to midnight, seven days a week.  c Broker retained the right to sell a majority of the advertising time of the station.  c Bureau noted that the Commission sets no limits on the amount of time a brokered station could sell.    ]   oJ' }+ Peter D. O'Connell, Esq., 6 FCC Rcd 1869 (MMB 1991), released April 4, 1991.   c  Time brokerage agreement and program brokerage agreement.  c Station will sell all of its commercial advertising time to   cW broker who will resell it and provide all advertising programming on the station.  c Broker will provide up to 24 hours of programming per day.  c Bureau noted that the Commission sets no limits on the amount of time a brokered station could sell."!I0*&&,,"""   ]    oJ' } Brian M. Madden, Esq., 6 FCC Rcd 1871 (MMB 1991), released April 4, 1991.  Time brokerage agreement.  c Station will make its facilities available to the broker 24  c= hours per day, seven days per week, except for a  cR maximum of two hours on Sunday between midnight and 6 a.m. for routine maintenance.   c Broker will provide an entertainment format, which may   cu include news, public service programming, promotions, contests, and commercial matter.  c Bureau noted that the Commission sets no limits on the amount of time a brokered station could sell. e      oJ6' } Gisela Huberman, Esq., 6 FCC Rcd 5397 (MMB 1991), released September 19, 1991.  Two time brokerage agreements.   c9 Stations will make their facilities available for  cl programming provided by the broker 24 hours a day for up  c to 166 hours per week, except for downtime occasioned by routine maintenance.   c Broker will provide an entertainment format, which may   cu include news, public service programming, promotions, contests, and commercial matter. Broker will maintain remote control points for the stations.  c Bureau noted that the Commission sets no limits on the amount of time a brokered station could sell.e      oJ' }R Joseph F. Bryant, 6 FCC Rcd 6121 (MMB 1991), released October 31, 1991.;/  Time brokerage agreement.  c Broker leased access to 15 hours of air time per day   c and made changes in the station's format during those periods.   S' x8#&a\  P6G;s&P#a1paraoutline'296. The Bureau next asserts that Turro falsely stated in his response to the LOI to Turro that  !the had no ownership interest in WJUX. The Bureau claims that Turro had such an interest because of  !the financial relationship he had with Weis and MMBI, and because of MMBI's complete dependence on  !Turro as its source of income and programming. These arguments are without merit. The record reflects  !that Turro's statement that he had no present or future ownership interest in MMBI was completely  !accurate. In addition, as discussed fully in the conclusions of law on Issues 2 and 6, the Unauthorized  !Transfer of Control Issues, the financial and programming arrangements between Turro and Weis were  !perfectly proper and comported in all respects with Commission (as well as Bureau) policy and precedent.  S' !Further, even assuming, arguendo, that such financial and programming arrangements constituted a  !/transfer of control, they could not, as the Bureau apparently believes, have created a change in the ownership of WJUX.  xEa1paraoutline(297. The Bureau maintains that Turro did not disclose in his response to the LOI to Turro that  !he was providing all of the programming and commercials for WJUX or that he was guaranteeing  !payments to MMBI. The Bureau also alleges that Turro did not inform the Commission until the hearing  !xthat WMG499 was used to deliver programming matter to the Fort Lee translator. These contentions are  !Mfactually inaccurate. The record reflects that Turro did, in fact, disclose in his response to the LOI to  !Turro that he was providing programming, including commercials, to MMBI on a 7day per week, 24hour  !per day, 365day per year basis. Similarly, Turro did, in fact, disclose that WMG499 was transmitting  !programming to the Fort Lee translator. Turro also attached to his response, among other things, copies"%J0*&&,,%"  !of the Network Affiliation Agreement and his Guaranty of Payment. The latter indicated that Turro was personally guaranteeing Jukebox Radio Network payments to MMBI.  x[a1paraoutline)298. The Bureau asserts that Turro's statement in his response to the LOI to Turro that the  !Network Affiliation Agreement met the requirements of the Bureau Letter was false because that  !Darrangement was not a time brokerage agreement. The Bureau also avers that Turro did not comply with  !Dthe Bureau Letter because he did not fulfill the express condition contained therein that he buy discrete  !blocks of time on the brokered station, and there was no evidence presented that the monthly payments  !being made by Turro were comparable to the rates charged to other time brokers in the local radio market.  !These arguments are rejected. The fact that Turro entered into a network affiliation agreement, rather than  !a time brokerage agreement, is without decisional significance. Commission (as well as Bureau) precedent  !treats network affiliation agreements and time brokerage agreements in an identical fashion with respect  S ' !to determinations regarding control. See, e.g., Russo, 5 FCC Rcd at 758687 (time brokerage agreements);  S ' !Belisle, 5 FCC Rcd at 7585 (network affiliation agreement). In addition, the record reveals that the  !Darrangement between Turro and MMBI was structured as a network affiliation agreement based upon the  !advice of counsel, and that counsel had read Turro's request for declaratory ruling and the Bureau Letter  S ' !xprior to rendering this advice. Cf. RKO General, Inc. v. FCC, 670 F.2d 215, 231 (D.C. Cir. 1980), citing  S^' !Asheboro Broadcasting Co., 20 FCC 2d 1, 3 (1969) (advice of counsel may be a mitigating factor in some  !circumstances). Further, the Bureau Letter contains no express condition that Turro buy discrete blocks  !Dof time. The portion of the Letter to which the Bureau apparently refers merely contains a brief, general  !summary of what time brokerage arrangements usually involve. In any event, there is no absolute  S' !requirement that time brokers purchase only discrete blocks of time. See O'Connell, 6 FCC Rcd at 1869  !(under time brokerage and programming brokerage agreements, the broker was allowed to purchase all  !of the station's advertising time and provide up to 24 hours of programming per day). Moreover, to the  !extent that the record does not contain evidence of comparable rates, it is noted that the Bureau had the  S"' !xburden of going forward with the introduction of evidence on Issue 3 (HDO at para. 22), and that it failed to offer any evidence on that question.  xAa1paraoutline*299. The Bureau and Universal maintain that Turro had a motive for misrepresenting to the  !QCommission his arrangement with MMBI. In this regard, they note that Turro was twice rebuffed by the  !&Commission when he attempted to obtain a ruling permitting translator stations to be used to originate  !3local programming. They also claim that the arrangement with MMBI was a scheme to deceive the  !Commission and to circumvent and evade those rulings as well as the Commission's translator rules and  !policies. These assertions are without merit. The record reflects that Turro did not circumvent the  !QCommission or its rules. On the contrary, Turro requested from the Bureau the issuance of a declaratory  !ruling, Turro represented that certain conditions would exist, Turro obtained the ruling he sought, and  !Turro lived up to his representations. Specifically, Turro stated that the licensee of the translator would  !purchase air time on the primary station, and it did. Turro stated that the translator would be operating  !outside of the originating station's primary contour, and it did. Turro stated that the primary station would  !not reimburse the translator licensee for air time, and it did not. Turro stated that the primary station  !Vwould not financially support the translator licensee, and it did not. Turro stated that the translator  ! licensee would abide by the Commission's time brokerage rules in connection with any air time that it  !tpurchased on the primary station, and it did. And, finally, Turro stated that the translator licensee may  !sell advertising to support its programming, and it did. Moreover, the Bureau must be presumed to have  !&known of Turro's unsuccessful attempts to persuade the Commission to allow translators to originate",%K0*&&,,#"  !programming inasmuch as the Bureau itself issued one of the rulings and the others were published. Yet  !the Bureau gave Turro the declaratory ruling he had requested, although it was under no obligation to do  !so. Under these circumstances, Turro cannot be faulted for relying on the Bureau Letter in his operation  S' !of the Fort Lee translator. See HDO at note 13 (Turro's contention that the Bureau Letter authorized his arrangement with MMBI was not unreasonable).  xla1paraoutline+300. On the basis of the May15, 1995, tests conducted by Loginow, the Bureau and Universal  !kcontend that Turro lied when he stated that the Fort Lee translator rebroadcast the offair signal of WJUX  !tor the Pomona translator, and when he stated that the Fort Lee translator did not rebroadcast the audio  !cpath on WMG499. Their reliance on Loginow's testing is misplaced. As discussed in detail in the  !conclusions of law with respect to Issue 1, the Translator and Auxiliary Station Rules Issue, Loginow's  !Ztest results were not probative since it was demonstrated that he reached an erroneous conclusion and  !caused the results he observed. Consequently, Turro's testimony on these matters was fully credited. The  !Bureau also reiterates its position that Loginow blocked the signals being received by the Fort Lee translator on 951 MHz. However, as shown in the conclusions on Issue 1, this view is totally incorrect.  xVa1paraoutline,301. The Bureau avers that Turro never showed the antenna in the basement of the Mediterranean  !Towers to Loginow, and never informed Loginow that there was such an antenna located in the basement.  !This allegation is highly misleading. Although Turro never specifically mentioned the basement antenna  !to Loginow, as correctly noted by the Bureau, the evidence is clear that during the course of the August2,  !1995, inspection, Turro informed Loginow that the roofmounted antennas had been vandalized repeatedly  !and that he (Turro) had used other receive antennas located elsewhere in the building. Turro offered to  !tshow Loginow those antennas but Loginow told him that he was only interested in seeing the antennas  !in use that day. The record also reflects that Turro cooperated fully with Loginow during the course of  !Qthis inspection, and that Loginow inspected as he saw fit. Given the above, the fact that Loginow did not  !avail himself of the opportunity to observe the other receive antennas that Turro used, including the basement antenna, can hardly be ascribed to or held against Turro.  S' xa1paraoutline-302. Issue 7 ! MMBI. The findings establish, and it is concluded,that neither MMBI nor Weis  !misrepresented facts to or lacked candor with the Commission in their statements concerning the operation  !7of WJUX. On the contrary, the record reflects that, at all stages of this case, MMBI and Weis dealt with the Commission in a truthful, candid, and forthright manner.  xha1paraoutline.303. The Bureau and/or Universal argue that Weis's statement in the response to the LOI to  !7MMBI, that he was responsible for all of the funds used to purchase equipment for, and to construct and  !koperate WJUX, was a lack of candor because Weis's actual source for those funds was Turro. Similarly,  !the Bureau claims that Weis lacked candor when he represented that he had control over the finances of  !<WJUX. The Bureau also asserts that Weis knew that Turro had undue control over the station's  !finances, but failed to disclose that to the Commission. These arguments are without merit. Put simply,  !it has not been shown that Weis's statements were untruthful. As discussed fully in the conclusions of  !law on Issues 2 and 6, Weis, and not Turro, was in sole control of the finances of MMBI and WJUX, as  !had been represented to the Commission. In addition, the financial arrangements between Turro and  !&MMBI were fully disclosed, were entirely proper, and complied with Commission (as well as Bureau)  !policy and precedent. The findings establish that, consistent with his statements, Weis did provide all of  !the equipment used to build WJUX and did pay all of the costs of the station's construction (with the""%L0*&&,,#"  !exception of Jukebox Radio Network equipment). Weis's statement that he was also responsible for all  !&of WJUX's operating expenses and other financial obligations was totally accurate, and Weis candidly  !disclosed that Turro had paid MMBI's telephone bills. Further, it was not improper, or a violation of any  !@Commission rule or policy, for Turro to have been the sole source of revenue for MMBI's operations.  S`'See Russo, 5 FCC Rcd at 7587; Choctaw, 12 FCC Rcd at 8541; WGPR, 10 FCC Rcd at 8145.  xa1paraoutline/304. The Bureau and/or Universal maintain that Weis misrepresented facts in the response to the  !LOI to MMBI by stating that he controlled what was and was not broadcast on WJUX. In this regard,  !Nthe Bureau and Universal allege that MMBI did not exercise any meaningful control over the  !tprogramming of its station. The Bureau also contends that Weis knew that Turro had undue control  !over the programming of WJUX, but failed to disclose that to the Commission. These arguments must  !/be rejected. Once again, it has not been demonstrated that Weis's statements were untruthful. As  !discussed in detail in the conclusions of law with respect to Issues 2 and 6, Weis, and not Turro, was in  !ultimate supervisory control of the programming of WJUX, as had been represented to the Commission.  S ' !The Amendment to Network Affiliation Agreement gave MMBI the right, inter alia, to delete or preempt  !any Network programming, and to substitute its own programming for that of the Network. These  !provisions complied in all significant respects with the Commission's time brokerage and LMA policies,  !and the Commission (as well as the Bureau) has repeatedly held that licensees operating their stations in  S4' !accordance with such agreements have retained ultimate programming control. WGPR, 10 FCC Rcd at  S' !D814243; Choctaw, 12 FCC Rcd at 8539; Huberman, 6 FCC Rcd at 5397; Russo, 5 FCC Rcd at 758687;  S' !7Belisle, 5 FCC Rcd at 7585. Moreover, the record reflects that, consistent with his statements, Weis did  !Rexercise his ultimate authority over the programming of WJUX, and WJUX did substitute other programming for, and preempt, Network programming.  xya1paraoutline0305. In connection with its arguments relating to the programming of WJUX, the Bureau avers  !that the Amendment to Network Affiliation Agreement was not entered into until after the letters of  !7inquiry to Turro and MMBI were received. This is factually incorrect. Although Turro and Weis did not  !formally sign the Amendment until July17, 1995, the uncontradicted and unrebutted evidence of record  !uestablishes that the Amendment was agreed to in November 1994 and was retroactive to the commencement of the Network Affiliation Agreement.  xa1paraoutline1306. The Bureau and/or Universal claim that Weis misrepresented facts by stating that WJUX  !xwas fully staffed and had a properly equipped main studio, and that he lacked candor by failing to disclose  !the true nature of the positions of Blabey and Montana at WJUX. In this regard, the Bureau and  !Universal maintain that Blabey and Montana were token employees of MMBI because they performed  !tminimal duties and received nominal salaries. These arguments are without merit. The record reflects  !Mthat Weis's statements concerning Blabey and Montana, and the capabilities of the WJUX main studio,  !were entirely truthful and accurate. Moreover, for the reasons specified in the conclusions of law on Issue  !5, the Main Studio Issue, it is clear that, consistent with Weis's statements, the presence of Blabey and  !Montana at the Ferndale main studio building constituted a meaningful management and staff presence,  !MWJUX's main studio contained all of the necessary equipment for the production of programming, the equipment worked, and the main studio had continuous program transmission capability. "R$M0*&&,,""  S'6 IV. ULTIMATE CONCLUSIONS ă  x<a1paraoutline2307. In sum, it has been concluded that Turro's operation of the Fort Lee and Pomona translators  !kdid not violate Section 74.1231(b) of the Commission's Rules, that beginning in late October 1994 Turro's  !operation of WMG499 was in violation of Section 74.531(c) of the Rules, and that although the  !assessment of a forfeiture would be the appropriate sanction for such a violation, a forfeiture may not be  !*imposed in this proceeding because the statute of limitations has expired. It has also been concluded that  !<neither Turro nor MMBI engaged in an unauthorized transfer of control over WJUX in violation of  !VSection 310(d) of the Act and Section 73.3540(a) of the Rules, that MMBI did not violate Sections  !73.1120 and 73.1125(a) of the Rules with respect to the maintenance of a main studio, that for a 12day  !gperiod MMBI was in violation of Section 73.1125(c) of the Rules with respect to the maintenance of a  !xlocal telephone number, but that no sanction is warranted for that violation. It has been further concluded  !that Turro did not misrepresent facts to or lack candor with the Commission concerning his operation of  !the Fort Lee and Pomona translators, and that MMBI and Weis did not misrepresent facts to or lack  !candor with the Commission concerning the operation of WJUX. Consequently, it is ultimately concluded  !Dthat the public interest will be served by a grant of Turro's applications for renewal of the licenses for the  !Fort Lee and Pomona translators. It is also ultimately concluded that MMBI possesses the requisite  !qualifications to be and to remain a Commission broadcast permittee, and that no basis exists for the revocation of its construction permit for WJUX.  S'M V. ORDERING CLAUSES ă  x<Accordingly, IT IS ORDERED that, unless an appeal from this Initial Decision is taken by a party,  !or it is reviewed by the Commission on its own motion in accordance with Section 1.276 of the Rules,  !Zthe abovecaptioned applications of Gerard A. Turro for renewal of licenses for FM translator stations W276AQ(FM), Fort Lee, New Jersey, and W232AL(FM), Pomona, New York, ARE GRANTED.  x<IT IS FURTHER ORDERED that, inasmuch as it has been concluded that Monticello Mountaintop  !&Broadcasting, Inc., possesses the requisite qualifications to be and to remain a Commission broadcast  !7permittee, its construction permit for FM radio station WJUX(FM), Monticello, New York, SHALL NOT  SP'BE REVOKED.bXP yO' ! ԍ In the event exceptions are not filed within 30 days after the release of this Initial Decision, and the  !x Commission does not review the case on its own motion, this Initial Decision shall become effective 50 days after its public release pursuant to Section 1.276(d) of the Rules.b  u [FEDERAL COMMUNICATIONS COMMISSION Arthur I. Steinberg Administrative Law Judge  u