MEMORANDUM OPINION AND ORDER (Adopted April 2, 1969) BY THE COMMISSION: COMMISSIONER WADSWORTH ABSENT. 2 1. The Commission, in a memorandum opinion and order adopted September 25, 1968,1 designated for hearing applications by Communications Technical Sales, Inc. (CTSI) (a) for consent to assignment of license of station KIY585 in the Domestic Public Land Mobile Radio Service at Columbia, S.C., to L. Marion Evans, doing business as Telephone Answering Service; (b) for consent to assignment of license of station KIY589 in the Domestic Public Land Mobile Radio Service at Sumter, S.C., to Abraham Thomy, doing business as A-ble Answering Service (Thomy);3 and, (c) for renewal of licenses of stations KIY585 and KIY589. The basic issue upon which designation was ordered was whether an unauthorized assignment of license of station KIY585 had taken place, and, whether CTSI and L. Marion Evanspossess the requisite character qualifications to be Commission licensees. Accordingly, the application of L. Marion Evans, doing business as Telephone Answering Service, for renewal of license of station KIY760 in the Domestic Public Land Mobile Radio Service at Columbia, S.C., was also designated for hearing in the same proceeding. 2. On September 30, 1968, CTSI filed an application for a construction permit and requested therein special temporary authority to modify the facilities of station KIY589. Thomy, on December 9, 1968, filed an application for a construction permit to establish new facilities in the Domestic Public Land Mobile Radio Service at Sumter, S.C., requesting the frequency 152.21 mc./s. (base). It should be noted, at this point, that station KIY589 in Sumter is currently authorized to operate on 152.21 mc./s. Thomy's application contained a letter by the president of CTSI stating approval of Thomy's application, and advising that the grant of Thomy's application would be followed by CTSI abandoning its application for renewal of station KIY589. On December 17, 1968, this application was amended by a request for waiver of section 21.24 (d) of the Commission's rules to permit said application to be filed though it was mutually exclusive with the application for renewal of license of station KIY589. A second amendment to Thomy's application, filed December 19, 1968, changes the base frequency requested to 152.12 mc./s., and states that both Thomy and 1 F.C.C. 68-979; 14 F.C.C. 2d 793. dockets Nos. 18333 thru 18337. File No. 558-C2-AL-67, docket No. 18333. * File No. 5290-C2-AL-66, docket No. 18336. Docket No. 18334. The petitioner involved is Columbia Telephone Answering Service, Inc., doing business as Able Paging Service (Columbia). The review board, by its order released Dec. 31, 1968, enlarged the issues of the proeeeding to include a determination of whether an unauthorized assignment of station KIY589 had occurred, and whether, as a result of such determination, CTSI and/or Thomy possess the requisite character qualifications to be Commission licensees. • Docket No. 18337. File No. 2813-C2-P-69. This application proposed a relocation of the station's base station, a change in the antenna system, and the addition of ten (10) dispatch stations. File No. 3519-C2-P-69. This subsection states that any mutually exclusive application filed after the date that a prior application has been designated for hearing will be dismissed without prejudice and will be eligible for refiling only after a final decision is rendered by the Commission with respect to the prior application or applications or after such application or applications are dismissed or removed from the hearing docket. 17 F.C.C. 2d CTSI waive any rights to comparative consideration of the applications for renewal and assignment of station KIY589 and Thomy's present application for new facilities in the same city. A petition to deny or designate for hearing was filed against this application by Columbia Telephone Answering Service on January 22, 1969. Since said petition lacks the affidavit of personal knowledge required by section 309 (d) (1) of the act, it is defective. On January 3, 1969, CTSI filed before the examiner a petition to dismiss its application for consent to assignment of station KIY589 to Thomy, on the ground that Thomy no longer had interest in said station. 3. On January 28, 1969, May G. Evans, doing business as Evans Telephone Answering Service 10 filed an application 11 to establish new facilities in the Domestic Public Land Mobile Radio Service at Columbia, S.C. This application, as did Thomy's in Sumter, contained a letter from CTSI waiving its rights to comparative consideration, and expressing its intent to dismiss its application for renewal of license of station KIY585 as soon as May G. Evans' application is granted. On February 20, 1969, CTSI filed before the examiner a petition to dismiss its application to assign the license of station KIY585 to L. Marion Evans, citing as its reason that May G. Evans was not interested in the assignment of station KIY585 to the Estate of L. Marion Evans. 4. As a result of these filings and pleadings, the factual situation surrounding the hearing proceeding has been substantially altered since the issuance of the designation order. However, the issues in this proceeding, as enlarged by the review board, have been in no way modified. Although L. Marion Evans is now deceased, it is still desirable to proceed with a determination of the nature and extent of his participation, and that of his business, in the proposed transaction. Moreover, the general issue as to Thomy's character qualifications appears to warrant the consolidation in these proceedings of his renewal application for station KFL907 in the Domestic Public Land Mobile Radio Service at Florence, S.C. CTSI's character in connection with its operations at both Columbia and Sumter, S.C., remains in question, and the public interest demands that such issues be satisfactorily resolved. 5. Section 1.227(a) of the Commission's rules permits the Commission, upon its own motion, to consolidate for hearing any cases which involve the same applicant or involve substantially the same issues, where consolidation will best conduce to the proper dispatch of business and to the ends of justice. The instant parties, proposals, and issues are so entwined and interrelated as to make a consolidated hearing necessary. 6. Accordingly, in view of our conclusions above, It is ordered. That pursuant to section 309 (e) of the Communications Act of 1934, as amended, and section 1.227(a) of the Commission's rules, the captioned applications are Designated for hearing, in a consolidated pro 10 On November 14, 1968. an application (file No. 2842-C2-AL-69) was filed for consent to the involuntary assignment of station KIY760 from L. Marion Evans, who had died Oct. 29, 1968. to May G. Evans, the executrix of his estate. This application was granted on Feb. 4. 1969. by staff action. 11 File No. 4423-C2-P-69. This application also requests a waiver of rules 21.24 (d) and 1.227 (b) (4). ceeding with dockets 18333 through 18337, at the Commission's offices in Washington, D.C., on the date ordered for dockets 18333 through 18337, on the issues and burdens of proof specified in the initial memorandum opinion and order (F.C.C. 68–979, 14 F.C.C. 2d 793), as enlarged by the review board on December 27, 1968 (F.C.C. 68R-542, 15 F.C.C. 2d 776). 7. It is further ordered, That the petition to deny or designate for hearing filed by Columbia against the application by CTSI is hereby Dismissed. 8. It is further ordered, That the request by CTSI for special temporary authority to modify the facilities of station KIY589 is hereby Denied. 9. It is further ordered, That the parties desiring to participate herein shall file their notices of appearance in accordance with the provisions of section 1.221 of the Commission's rules. FEDERAL COMMUNICATIONS COMMISSION, 17 F.C.C. 2d F.C.C. 69-343 BEFORE THE FEDERAL COMMUNICATIONS COMMISSION In the Matter of WASHINGTON, D.C. 20554 LIABILITY OF THE CORNBELT BROADCASTING For Forfeiture MEMORANDUM OPINION AND ORDER (Adopted April 2, 1969) BY THE COMMISSION: COMMISSIONER WADSWORTH ABSENT. 1. The Commission has under consideration (1) its notice of apparent liability dated May 15, 1968, issued pursuant to section 503 (b) of the Communications Act of 1934, as amended, and addressed to The Cornbelt Broadcasting Co., licensee of station KAYL, Storm Lake, Iowa, and (2) the licensee's response to the notice of apparent liability by letter dated May 31, 1968. 2. The notice of apparent liability was issued because of the licensee's apparent willful or repeated violation of section 73.93 (b) of the Commission's rules, in that the station was apparently operated by an improperly licensed operator on May 18, 19, 20, 22, 23, 24, 25, 26, 27, 29, 30, and 31, and June 1, 2, 3, and 5, 1967. The notice indicated that the licensee was subject to an apparent liability for forfeiture in the amount of five hundred dollars ($500). 3. In reply to the notice of apparent liability, by letter dated May 31, 1968, the licensee denied the violation asserting, in substance, that KAYL's chief engineer, a radiotelephone first-class operator, was on duty and in actual charge of the station's transmitter on the days in question and that the improperly licensed operator merely signed the station's logs. Subsequently, in response to a Commission inquiry, the licensee submitted statements of its chief engineer and the alleged improperly licensed operator confirming its assertions. 4. We have considered licensee's reply and the circumstances surrounding the alleged violations in this proceeding and have decided to relieve the licensee of liability for the cited violations of section 73.93 (b). However, the licensee's response admits that sections 73.111 (a) and 73.113 (a) of the Commission's rules were violated when the improperly licensed operator signed the operating logs. However, a forfeiture cannot now be assessed for these violations because they were not identified in the notice issued in this case and the 1-year statute of limitations has expired. The licensee is reminded, however, that it is responsible for compliance with provisions of the Communications Act of 1934, as amended, and the Commission's rules, and, accordingly, will be expected to adopt procedures to prevent future violations. The record of this proceeding will be made a part of the record of KAYL. 5. In view of the above, It is ordered, That the notice of apparent liability for foreiture in the amount of five hundred dollars ($500), issued to The Cornbelt Broadcasting Co., licensee of station KAYL, Is rescinded. 6. It is further ordered, That the secretary of the Commission send a copy of this memorandum opinion and order by certified mail-return receipt requested to the Cornbelt Broadcasting Co., licensee of station KAYL, Storm Lake, Iowa. FEDERAL COMMUNICATIONS COMMISSION, 17 F.C.C. 2d |