F.C.C. 69-305 BEFORE THE FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554 In re Applications of FRANCES C. GAGUINE, BERNICE SCHWARTZ AND File No. BML RICHARD P. MCKEE, D.B.A. RADIO STATION KQXI (KQXI), DENVER, COLO. FRANCES C. GAGUINE, BERNICE SCHWARTZ, ORDER (Adopted April 2, 1969) Docket No. 14817 File No. BMP-9769 BY THE COMMISSION: COMMISSIONER COX DISSENTING IN PART AND CONCURRING IN PART AND ISSUING A STATEMENT; COMMISSIONER WADSWORTH ABSENT; COMMISSIONER JOHNSON CONCURRING IN THE RESULT. 1. The Commission has before it: (1) a petition for acceptance, waiver and grant, or, in the alternative, reconsideration and waiver, filed February 4, 1969, by Frances C. Gaguine, Bernice Schwartz, and Richard P. McKee doing business as Radio Station KQXI (KQXI); (2) oppositions thereto filed February 18, 1969, by the Broadcast Bureau, and February 19, 1969, by General Electric Broadcasting Company of Colorado, Inc., licensee of station KOA, Denver, Colo., and Lakewood Broadcasting Service, Inc., licensee of station KLAK, Lakewood, Colo.; and (3) KQXI's reply, filed March 4, 1969. 2. By our order, F.C.C. 69-36, released January 16, 1969, we denied, without specifying reasons, KQXI's application for review of the Review Board decision, 13 F.C.C. 2d 171, adopted May 24, 1968, denying KQXI's application for nighttime authority as an Arvada station. KQXI now requests approval of its application to modify its license to specify Denver, Colo., as its principal community, or, in the alternative, reconsideration of the action denying its application for review and grant of its nighttime application. The other parties oppose both of KQXI's requests, and we agree that neither aspect of KQXI's petition should be granted under the present circumstances. 3. Although the hearing in this proceeding considered only KQXI's application to operate nighttime as an Arvada station, KQXI now seeks to use this forum to obtain approval of its entirely different request for modification of its license for the daytime facility in Arvada.1 Section 1.44 of the rules specifically prohibits the combina 1 Since KQXI has continued to prosecute its nighttime proposal, we note that the modification request is an apparent violation of section 1.518 of the rules prohibiting inconsistent or conflicting applications. tion in one pleading of two requests to be handled by different offices pursuant to delegated authority. By the same token, we are convinced that the orderly and efficient dispatch of the Commission's business requires that hearing and nonhearing requests, such as are contained in KQXI's present petition, should be filed in separate pleadings. Since specific procedures have been established for the processing of nonhearing requests, it is clear that such requests can be most expeditiously and properly considered outside the context of a specific hearing proceeding. For these reasons, we are persuaded that all portions of KQXI's petition relating to its application for modification of its license should be dismissed.2 4. The remaining portions of KQXI's petition request reconsideration of our order denying its application for review. Sections 1.106 (b) and 1.115(g) of the rules provide that such a petition will not be entertained. KQXI nonetheless urges that waiver of those rules is appropriate in view of its modification request and the arguments that it had previously asserted in this proceeding. We have already determined that the request for modification of license is a nonhearing matter which is not entitled to consideration in this adjudicatory proceeding. Since it is also apparent that our procedural rules were intentionally designed to avoid reargument of the same matters ad infinitum, we are convinced that it would be improper to permit petitions for reconsideration where review has been denied without specifying reasons. In our view KQXI's present contentions are insufficient to warrant waiver of sections 1.106 (b) and 1.115 (g) of the rules and thus its request for reconsideration must be dismissed. 5. Accordingly, It is ordered, That the petition for acceptance, waiver and grant, or, in the alternative, reconsideration and waiver, filed February 4, 1969, by Frances C. Gaguine, Bernice C. Schwartz, and Richard P. McKee doing business as radio station KQXI, Is dismissed. FEDERAL COMMUNICATIONS COMMISSION. STATEMENT OF COMMISSIONER KENNETH A. Cox DISSENTING IN PART AND CONCURRING IN PART I would deny reconsideration but would grant the alternative relief sought. This action does not preclude KQXI from further prosecution of its application for modification of its license to the extent that such prosecution may be proper outside the context of this particular hearing proceeding. Thus, while the instant request is being dismissed, the "tendered" application for modification of license is still before the Commission. 17 F.C.C. 2d F.C.C. 69-342 BEFORE THE FEDERAL COMMUNICATIONS COMMISSION In the Matter of WASHINGTON, D.C. 20554 LIABILITY OF ROCKET RADIO, INC., LICENSEE For Forfeiture MEMORANDUM OPINION AND ORDER (Adopted April 2, 1969) BY THE COMMISSION: COMMISSIONER WADSWORTH ABSENT. 1. The Commission has under consideration (a) its notice of apparent liability dated October 23, 1968, addressed to Rocket Radio, Inc., licensee of radio station WFPM, Fort Valley, Ga.; and (b) a statement in mitigation filed by the licensee on November 22, 1968, in response to the notice of apparent liability. 2. The notice of apparent liability in the amount of $4,000 was issued because it appeared that the licensee had violated section 73.124 of the Commission's rules. As stated in the notice, the licensee, through its sole stockholder, president and general manager, Paul Reehling, acknowledged that it had issued affidavits of performance which misrepresented either the amount actually charged for advertising or the nature, content or quantity of such advertising. 3. Licensee's reply to the forfeiture notice notes that, at the time the violations allegedly occurred, its stock was held by Mrs. Elizabeth Williams, Mr. W. C. Woodall, Jr., and Reehling, in equal amounts. Effective March 6, 1968, the two-thirds interest of Mrs. Williams and Mr. Woodall was acquired by the corporation. Licensee argues that, as the sole stockholder, Reehling will have to pay the entire amount of the forfeiture, even though he had only a one-third share of the corporation's stock when the infractions occurred. Additionally, licensee asserts that, as a result of its acquisition of the stock interests of Williams and Woodall, imposition of the full amount of the forfeiture would throw it into receivership. 4. The violations charged in the notice of apparent liability are not denied by licensee and their commission is confirmed by the evidence obtained by Commission investigators and by licensee's acknowledgment. There is no suggestion, either in licensee's reply to the forfeiture notice or the available facts of the case, that the violations occurred without the knowledge, consent, or participation of Reehling. On the contrary, since Reehling was licensee's president and general manager at the times the violations were committed, it is inconceivable that he was unaware of their commission. In any event, as a body corporate, licensee's liability for the forfeiture is not diminished by changes in its stock ownership or structure. See: WBZB Broadcasting Service, Inc., 10 FCC 2d 321, 11 R.R. 2d 254 (1967); Moab Broadcasting and Television Corporation, 1 FCC 2d 1592, 6 R.R. 2d 618 (1965). 5. While rejecting licensee's argument that the above-mentioned stock transfer warrants reduction of its forfeiture liability, we are persuaded that its financial condition does justify the imposition of à lesser forfeiture than that which was initially set forth. In particular, the arrangements into which licensee has entered to secure the stock of Mrs. Williams and Mr. Woodall would not permit payment of so large a forfeiture without the probability of serious consequences, including, perhaps, the termination of radio station service to the community. Since it is the office of a monetary forfeiture to effect a sanction less severe that the cessation of station operation, a determination has been made that the forfeiture liability should be reduced from $4.000 to $1,500. 6. Accordingly, It is ordered, That Rocket Radio, Inc., licensee of station WFPM, Fort Valley, Ga., Forfeit to the United States the sum of $1,500 for willful and repeated violations of section 73.124 of the Commission's rules. Payment of the forfeiture may be made by check or similar instrument drawn to the order of the Treasurer of the United States within thirty (30) days of the release of this order. Pursuant to section 504 (b) of the Communications Act of 1934, as amended, and section 1.621 of the Commission's rules, an application for remission or mitigation of the forfeiture may be filed within thirty (30) days of the date of receipt of this memorandum opinion and order. 7. It is further ordered, That the Secretary of the Commission send a copy of this memorandum opinion and order by certified mailreturn receipt requested to Rocket Radio, Inc., Radio Station WFPM, Post Office Box 934, Fort Valley, Ga. 31030. FEDERAL COMMUNICATIONS COMMISSION, 17 F.C.C. 2d F.C.C. 69-281 BEFORE THE FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554 In re Application of ST. JAMES BROADCASTING Co., ST. JAMES. MINN. Requests: 1530kc, 500w, DA, Day For Construction Permit File No. BP-17913 MEMORANDUM OPINION AND ORDER (Adopted March 21, 1969) BY THE COMMISSION: COMMISSIONERS BARTLEY AND ROBERT E. LEE ABSENT. 1. The Commission has before it for consideration (a) the abovecaptioned application for a construction permit; (b) a petition in letter form requesting the denial of the application filed by Progress Valley Broadcasters, Inc., licensee of station KSMM, Shakopee, Minn.; (c) the applicant's opposition to KSMM's request filed March 4, 1968, and (d) the applicant's petition for waiver or alternative relief filed June 5, 1968. 2. The applicant's data, based upon figure M-3 of the Commission's rules, indicated compliance with section 73.37 (a) of the rules, and, accordingly, the application was accepted for filing as of the date tendered, September 15, 1967. Progress Valley Broadcasters, Inc. (KSMM), submitted with its request to deny the application field intensity measurements establishing (1) that the proposed 0.025-mv./m. contour would overlap the KSMM 0.5-mv./m. contour, and (2) that the KSMM 0.05-mv./m. contour would overlap the proposed 1.0mv./m. contour. Thus, on two counts, the applicant's proposal violates the provisions of section 73.37 of the rules. 3. In its opposition of March 4, 1968, the applicant contends that KSMM's field intensity measurement data are not strictly in compliance with the provisions of section 73.186 of the rules, especially with regard to the number of points measured within the first few miles from the KSMM site, and that the exact location of the contours cannot be determined with accuracy on the basis of the KSMM measurements. Accordingly, the applicant contends that the KSMM data must be rejected. Subsequently in its pleading of June 5, 1968, while still contending that the KSMM data is not adequate, the applicant requests à waiver of section 73.37 of the rules claiming that the interference to KSMM is de minimis and would occur approximately 28 miles from the KSMM transmitter site. Further, the applicant states that, "Should the Commission determine that section 73.37 has not been met (or, after hearing, should not be waived), it is respect fully requested that |