with the terms of WTHE's license in that the station's antenna towers needed repainting in accordance with paragraph 1 of FCC form 715 in order to provide good visibility. In response to the violation notice by letter dated February 12, 1968, you stated that many of the violations listed therein were ***the result of the station's inability to obtain competent engineering help" because it competes with New York City stations which can afford to pay twice your wage scale. Concerning your failure to paint WTHE's antenna towers, you stated as follows: This situation was explained to the Commission by the former licensee of the station in 1965. Because the present antenna system of the station cannot remain at its present site, the former licensee requested the Commission to allow it to forego painting in view of the temporary situation of the tower. Since then, the present licensee has filed an application to move to another site, which application is pending before the Commission."1 In conclusion, you stated that it was your "*** sincere intention to comply with all the rules and regulations of the FCC and that * * * (none of the) violations *** (listed in the citation notice) were either intentional or repeated." However, following another inspection of WTHE on September 4, 1968, you were cited in an official notice of violation dated October 7, 1968, for 29 infractions, including noncompliance with the terms of WTHE's license in that the station's antenna towers still needed repainting in accordance with paragraph 1 of FCC form 715. You were also cited for violations of section 73.93 (a) of the Commission's rules, in that WTHE's transmitter and its indicating instruments were not clearly visible to the station's operator-announcers at their normal operating positions; 2 section 73.57 (a), in that you did not notify either the Commission or the engineer-in-charge of WTHE's radio district until August 17, 1968, that the station was being operated at more than 10 percent below its authorized power of 10,000 w.; 3 and section 73.113 (a) (6), in that you failed to show in WTHE's operating logs whether the required checks were made of the station's antenna lights on June 2, 3, 9, 18, 23, and 24, 1968. It is noted that you acquired WTHE through an assignment of its license on Sept. 17, 1965, and that on Oct. 28, 1966, you tendered for filing an application for a construction permit to make certain changes in WTHE's facilities. Preliminary study of this application revealed, however, that the proposed operation was critical regarding permissible radiation towards station WKBW, Buffalo, N.Y. Thus, by letter dated Mar. 23, 1967, you were requested to submit additional information to support your application. By letters dated Apr. 21, 1967, and May 23, 1967, you requested additional time within which to file the requested information, which was ultimately submitted on June 30, 1967. On June 30, 1968, the requested application was granted (BP 17,509). On Jan. 30, 1969, you filed an application for an extension of time in which to complete construction and for certain other modifications. This application was granted on Feb. 24, 1969. Section 73.93 (a) of the Commission's rules provides, in pertinent part, that if operation by remote control has not been authorized, the transmitter shall be readily accessible and clearly visible to the operator at his normal operating position. It is noted that during the times when WTHE's chief engineer is not on duty, the station's announcers also are responsible for the operation of the transmitter. The normal operating position of such personnel is in the station's studio, which is separated from the transmitter by a glasspaneled door. The transmitter is located approximately 20 feet from the door that separates the studio and transmitter rooms. Thus, it appears that WTHE's operator-announcers, when in charge of the station's transmitter, would have to get up from their normal operating positions in front of the console, turn around, enter the transmitter room and walk approximately 20 feet in order to read the meters and make the necessary log entries. Section 73.57 (a) of the Commission's rules provides, in pertinent part, that a station may be operated at reduced power in an emergency which is due to causes beyond the control of the licensee, Provided, however, "That the Commission and the Engineer in Charge of the radio district in which the station is located shall be notified immediately after the emergency develops and also upon resumption of licensed power." The operating logs of WTHE disclose that the station was operated at more than 10 percent below its licensed power, using its 10,000-w. transmitter, on the following dates in 1968: Footnote continued on following page. In response to the citation notice of October 7, 1968, by letter dated October 21, 1968, you again asserted that most of the violations listed were due to the station's inability to employ competent engineering help. Concerning the recited violation of the terms of WTHE's license, you stated: We have written to the FCC about this in the past, explaining that because of our contemplated move of the WTHE transmitter and antenna site the towers were not painted. We applied for a permit to move in October 1966 and it was not until 2 months ago that this routine application was acted upon. We have hesitated to paint the towers as they must be removed and we have so informed the FCC in the past. With regard to the recited violation of section 73.57 (a), you stated that WTHE has "*** been plagued with problems of blown and bursting capacitors in *** (the) transmitter," and that, in this instance, "the management of WTHE was not notified by the chief engineer that the station was not operating at full power until a further blowout of capacitors on August 17th forced (you) to go to (the station's) auxiliary transmitter," at which time you notified the Commission. Furthermore, concerning the recited violation of section 73.93 (a), you stated that "(i)t is our opinion that we fully comply with the rule*** and we regard *** (the Commission's) interpretation as capricious and arbitrary." With regard to the violation of section 73.113 (a) (6), you blamed WTHE's chief engineer for not making the antenna light check operation log entries. We have carefully considered your response and the circumstances surrounding the violations in this case and we are of the opinion that your explanations are insufficient to relieve you of responsibility for the recited violations. The fact that you contemplated moving WTHE's transmitter and antenna site does not excuse you from your responsibility for acting promptly to comply with Commission requirements and to remove a possible hazard to air navigation. We have determined, therefore, that, pursuant to section 503(b) (1) (A) and (B) of the Communications Act of 1934, as amended, you have incurred an apparent liability for forfeiture in the amount of $5,000 for willfully or repeatedly failing to observe the terms of WTHÊ's license and sections 73.57 (a), 73.93 (a), and 73.113 (a) (6) of the Commission's rules. You are hereby notified that you have the opportunity to file with the Commission, within 30 days of the date of the receipt of this notice, a statement in writing as to why you should not be held liable, or, if liable, why the amount of liability should be reduced or remitted. WTHE's operating logs also disclosed that the station was operating at reduced power. using its 250 w. auxiliary transmitter, during 1968 on Aug. 5, 9, 13, 16, and 17, with 196 w., on Aug. 18 and 23 with 206 w., and on Aug. 19, 20, 21, 22, 24, and 25 with 216 w. Any such statement should be filed in duplicate and should contain complete details concerning the allegations heretofore made by the Commission, any justification for the violations involved, and any other information which you may desire to bring to the attention of the Commission. Statements of circumstances should be supported by copies of relevant documents where available. Upon receipt of any such reply, the Commission will determine whether the facts set forth therein are sufficient to relieve you of liability, or to justify either reduction or remission of the amount of liability. If it is unable to find that you should be relieved of liability, the Commission will issue an order of forfeiture and the forfeiture will be payable to the Treasurer of the United States. If you do not file, within 30 days of the date of receipt of this notice, either a statement of nonliability or a statement setting forth facts and reasons why the forfeiture should be of a lesser amount, the Commission will enter an order of forfeiture in the amount of $5,000. If you do not wish to file a statement which denies liability and, in addition, you do not wish to await the issuance of an order, you may, within 30 days of the date of the receipt of this letter, make payment of the forfeiture by mailing to the Commission a check, or similar instruments, in the amount of $5,000, drawn payable to the Treasurer of the United States. Commissioner Bartley absent. BY DIRECTION OF THE COMMISSION, 18 F.C.C. 2d F.C.C. 69D-21 BEFORE THE FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554 In re Application of CARDINAL BROADCASTING CO., INC., JENKINS, Docket No. 18035 File No. BP-16924 Kr. For Construction Permit APPEARANCES John B. Jacob, Alan C. Campbell, and Richard D. Cooper (Dow, Lohnes, and Albertson), on behalf of Cardinal Broadcasting Co., Inc.; Harold Seligman, on behalf of Folkways Broadcasting Co., Inc.; and Headwaters Broadcasting Corp.; and Gerald M. Zuckerman and P. W. Valicenti on behalf of the Chief, Broadcast Bureau, Federal Communications Commission. INITIAL DECISION OF HEARING EXAMINER FOREST L. MCCLENNING (Issued April 7, 1969; effective June 2, 1969, pursuant to section 1.276) PRELIMINARY STATEMENT 1. By order released February 29, 1968, the application of Cardinal Broadcasting Co., Inc. (hereinafter referred to as Cardinal), for a new standard broadcast station to operate on the frequency 1,000 kHz with 1-kw. power, daytime only, at Jenkins, Ky., was designated for hearing. The order of designation issued as a consequence of the filing of a joint petition to deny by Headwaters Broadcasting Corp., licensee of station WNKY, Neon, Ky., and Folkways Broadcasting Co., Inc., licensee of station WTCW, Whitesburg, Ky. The order of designation found Cardinal to be qualified to construct, own, and operate the proposed station, except as indicated by the specified issues. Hearing was ordered on the following issues: 1. To determine: a. The facts and circumstances surrounding the employment of Dr. E. E. Musgrave as engineer by station WNKY and whether the arrangement met the requirements of the provisions of section 73.93 of the Commission's rules then in effect; 1 b. Whether said arrangement was intended to deceive the Commission into concluding that the former licensee of station WNKY was complying with section 73.93 of the rules; and 1 In 1958, the year relevant to the issue, section 73.93 (then numbered 3.83) of the Commission's rules provided in pertinent part that as a minimum a radio station was required to have one first-class operator in regular full-time employment at the station. As revised, this section now permits use by stations such as WNKY of contract maintenance on a part-time basis by the holder of a first-class operator permit. The holder of at least a third-class operator permit endorsed for broadcast station operation must be in the employ of the station for transmitter operation. c. In the light of the evidence adduced pursuant to the foregoing, whether Dr. E. E. Musgrave possesses the requisite qualifications to be a principal of a licensee of the Commission. 2. To determine: a. The basis of the applicant's estimated operating expenses for the first year of operation; b. The source of additional funds necessary to meet the costs of construction and operation of the proposed station during the first year; c. In the event the applicant will rely on operating revenues during the first year to meet fixed charges and operating costs, the basis for the applicant's estimate of revenues and whether such estimate is reasonable; and d. In the light of the evidence adduced pursuant to b and c above, whether the applicant is financially qualified. 3. To determine, in the light of the evidence adduced pursuant to the foregoing issues, whether a grant of the application would serve the public interest, convenience, and necessity. 2. The order of designation states the basis for issue 1 as follows: On one point raised by the petitioners, there is an unresolved factual dispute. Petitioners charge that Dr. Musgrave, holder of a radiotelephone first-class operator license, permitted his operator's license to be posted at the WNKY transmitter for the purpose of deceiving the Commission into believing that the former licensee of WNKY was complying with the Commission's operator requirements. In support of this allegation, petitioners submitted affidavits of two former employees of WNKY who were members of the staff during the period from late 1956 to early 1959. Both former employees state that during the time when they were with the station, Dr. Musgrave's license was posted at WNKY but that, to their knowledge, he performed no engineering services for the station. One affiant alleges that Dr. Musgrave stated in his presence that he, Musgrave, was only being paid for hanging his ticket on the wall and was not obligated to perform any maintenance. Dr. Musgrave responds to this charge by stating that he was approached by Dee Dawahare, a former principal of WNKY, to provide engineering services on condition that a permanent engineer would be obtained as soon as possible. Dr. Musgrave further states that he provided engineering services until he learned that no diligent effort was being made to obtain an engineer whereupon he personally removed his license from the WNKY premises. To resolve these conflicting claims the matter will be placed in issue with the burden of proceeding with the introduction of evidence and the burden of proof upon WNKY. 3. A prehearing conference was held on April 26, 1968. Hearing commenced on June 10, 1968, at which time the licensees of stations WNKY and WTCW, through counsel, withdrew from the proceeding. Cardinal's case was presented in evidence on that date. Hearing resumed on June 29, 1968, at which time the two former employees of station WNKY referred to in the order of designation, Delmer R. Kincer and Jimmie Branham, testified as witnesses of the Broadcast Bureau. The record was closed on this date. Cardinal and the Broadcast Bureau filed proposed findings of fact and conclusions of law on September 13, 1968, and filed reply findings of fact on September 23, 1968. FINDINGS OF FACT 4. Dr. Ernest E. Musgrave, the president and principal stockholder of Cardinal, in 1946 received a degree in electrical engineering and, later that year, headed the occupational therapy radio department at Neins, Ill. From 1947 to 1950 he served as radio engineer for station WKAQ, San Juan, P.R., and during the period of 1948 through 1954 also served as an electronics technician for the Civil Aeronautics Administration and for All America Cable Radio Corp., of Puerto Rico. During this same period he attended the University of Puerto |