June 27, 2023 DA 23-551 In Reply Refer to: 1800B3-IB Released: June 27, 2023 WIN Radio Broadcasting Corp. c/o David O’Connor, Esq. Wilkinson Barker Knauer, LLP 1800 M St., N.W., Suite 800N Washington, DC 20036 (by e-mail doconnor@wbklaw.com) Diana Kohn, President Historic Takoma, Inc. 7328 Carroll Ave. Takoma Park, MD 20912 (by e-mail marika@takomaradio.org) In re: W232DE (formerly W257BW), Potomac, MD Facility ID No. 141566 File Nos. BLFT-20190507ACA as modified by File No. 0000199978 Application for License to Cover Informal Objection Dear Licensees: We have before us: (1) the referenced application of WIN Radio Broadcasting Corp. (WIN) for a license to cover modified facilities of FM translator station, W232DE, We note that, as a result of an approved but not yet licensed move to Channel 268 the Translator’s call sign will become W268DN. Potomac, Maryland (Translator); Application File No. BLFT-20190507ACA (rec. May 7, 2019) (2019 License Application). (2) an objection against the application by Historic Takoma, Inc. (Takoma), licensee of co-channel Low Power FM (LPFM) station WOWD-LP, Takoma Park, Maryland; Takoma Petition to Deny, or Alternatively, Informal Objection (rec. May 13, 2019) (Objection). We will consider Takoma’s pleading against the 2019 License Application as an informal objection because petitions to deny to not lie against such applications. See 47 U.S.C. § 309 (b)-(d); 47 CFR §§ 73.3584(a), 73.3587. and (3) related pleadings. For the reasons set forth below, we grant the Objection in part and otherwise deny Takoma’s filing. Specifically, we agree that WIN apparently violated Commission rules (Rules) by constructing the Translator with an incorrect antenna and, thus, incorrectly certifying to constructing as authorized. However, we conclude that the appropriate consequence is issuance of a contemporaneous Notice of Apparent Liability and not, as Takoma posits, cancellation of the license. BACKGROUND WIN is the licensee of WCTN(AM), Potomac-Cabin John, MD. On January 29, 2016, WIN applied for Commission consent to acquire the Translator, Application File No. BALFT-20160129AJG (rec. Jan. 29, 2016/granted Mar. 31, 2016). so that it could improve reception of WCTN’s programming by rebroadcasting the AM signal over FM spectrum. At the time, the Translator was licensed to Channel 257 at New Tripoli, Pennsylvania. WIN proposed to relocate the Translator to Channel 232 at Potomac, Maryland by mounting a circularly polarized, two-bay, Shively model 6810, directional antenna at 56 meters above ground level on the existing northwest tower of the AM station’s antenna array. Application File No. BPFT-20160129AUE (rec. Jan 29, 2016/granted Aug. 9, 2016), Exh. 12-B-1 (Permit Application/Construction Permit). The move was possible because the Commission’s AM Revitalization efforts established a one-time filing window in which certain AM licensees could move an associated FM translator up to 250 miles as a minor change. Media Bureau Announces Filing Dates and Procedures for AM Station Filing Window for FM Translator Modifications, Public Notice, DA 15-1491 (MB 2015). The Media Bureau (Bureau) approved the assignment of license on March 31, 2016. It granted a Construction Permit on August 9, 2016 requiring WIN to complete the Maryland facilities within three years, i.e., by August 9, 2019. WIN removed the Translator from the air in Pennsylvania on September 8, 2016, pending completion of construction in Maryland. Under section 312(g) of the Communications Act of 1934, as amended (Act), a broadcast license automatically expires as a matter of law upon twelve consecutive months of silence, and case law has indicated that unauthorized operation is considered to be no better than silence. 47 U.S.C. § 312(g); see Eagle Broad. Group, Inc. v. FCC, 563 F.3d 543, 554 (D.C. Cir. 2009) (Eagle). Thus, when the Bureau granted WIN’s request for special temporary authority (STA) to keep the Translator off the air, the Bureau warned that the Translator’s license would expire pursuant to section 312(g) if WIN did not resume Translator operations before September 9, 2017. On August 30, 2017, WIN filed an application to license the Translator’s Maryland facilities, certifying that it had constructed as authorized in the Construction Permit and responding “yes” that it was using a properly-oriented directional antenna. See File. No. BLFT-20170830ABL (2017 License Application), Section III, Quest. 4, 7. That same day, WIN notified the Bureau that it had resumed operations pursuant to program test authority. On September 8, 2017, Takoma filed an objection to the 2017 License Application, alleging that the Translator was causing interference to Takoma’s LPFM station which operates on the same channel, in the same market. Takoma, Informal Objection to License Application, Request for Rescission of Underlying Construction Permit, and/or Designation of License Application for Hearing (or in the Alternative, Interference Complaint) (Sept. 8, 2017) (Interference Complaint). The Bureau required WIN to address the alleged interference FM translators and LPFM stations are both secondary broadcast services. Because the LPFM station was built first, it was entitled to interference protection from the later-built Translator. but WIN did not respond. Takoma supplemented its Interference Complaint in April 2018, in response to a photograph WIN submitted in a related matter, alleging that WIN had constructed an unauthorized antenna. Specifically, on April 5, 2018, WIN filed an application for direct measurement of power for the WCTN(AM) facilities, as the Rules require in certain cases of additional equipment mounted on an AM tower, including the instant addition of the Translator antenna to WIN’s AM array. See Application File No. BZ-20180405ACG (Measurement Application). Cf. 47 CFR § 1.30003(a). The Measurement Application included a September 2017 photograph of the tower from which Takoma concluded that the Translator’s antenna differed from that approved. Takoma confirmed its conclusion based on photos that a WOWD-LP listener took on April 2, 2018. On May 8, 2018, the Bureau dismissed the 2017 License Application because WIN had not made any effort to resolve the Interference Complaint. See Letter from James D. Bradshaw, Senior Deputy Chief, Audio Div. to WIN, Ref. 1800B3-KV (MB May 8, 2018). The Bureau ordered WIN to suspend operations of the Translator immediately and WIN complied. The Bureau, thus, found it unnecessary to address Takoma’s allegations of an unauthorized antenna. On May 25, 2018, Takoma filed a request to delete the Translator from the Commission’s database, arguing for the first time that the Translator’s license had expired pursuant to section 312(g) of the Act. Specifically, Takoma argued that WIN had not resumed operations with an authorized antenna by September 9, 2017, i.e., within 12 months of taking the Translator silent in Pennsylvania. Takoma also argued that WIN’s certification of construction as authorized was false, affecting its character qualifications. WIN did not respond. On May 7, 2019, just short of one year from the date that the Bureau ordered the Translator off the air but still within the three-year period that the Construction Permit allowed for the Maryland modification, WIN filed the 2019 License Application. The 2019 License Application, like the 2017 License Application, sought a license to cover the Construction Permit and certified to completion of construction as authorized. However, in an exhibit, WIN acknowledged that it had not constructed the antenna specified in the application for the Construction Permit. 2019 License Application, Exh. 9. WIN incorrectly filed the 2019 License Application as a modification of the Construction Permit. Because WIN specified a different antenna, WIN should instead have applied for a new construction permit as a modification to a licensed facility. FM translator licensees are not permitted to change antennas as a modification to a construction permit. See 47 CFR § 74.1251(b)(2). WIN explains that the Shively antenna proved too large and heavy for the existing tower without additional bracing, so it substituted a smaller, lighter antenna, i.e., a Jampro, model JLLP-2. 2019 License Application, Exh. 9. WIN contends that the substitution complies with the Construction Permit because WIN installed the new antenna in accordance with instructions from the manufacturer. Id. The Bureau mistakenly granted the 2019 License Application on May 13, 2019, unaware that Takoma had that same day filed its Objection. On May 14, 2019, the Bureau rescinded the grant and returned the 2019 License Application to pending status in order to consider the Objection. Takoma argues that the 2019 License Application is not grantable because the Translator’s underlying license no longer exists, having automatically become a nullity pursuant to section 312(g) of the Act for failure to resume operations with authorized facilities by September 9, 2017. WIN did not respond to the Objection. While these matters were pending, all broadcast licensees in Maryland were required to file applications for license renewal. WIN filed a license renewal application on July 2, 2019 Application File No. 0000075484 (rec. July 2, 2019) (Renewal Application). WIN submitted the Renewal Application about a month late because it was unsure whether, following rescission of the 2019 License Application grant, the Translator should file as a Maryland or Pennsylvania station. Maryland renewal applications were due by June 3, 2019, but Pennsylvania applications were not due until April 2, 2022. In late-June 2019, Bureau staff advised WIN to file within the Maryland cycle because the Commission’s database associated the Translator with Maryland. See WIN, Opposition to Petition to Deny (rec. Sept. 16, 2019) (Opposition) at 7, Attachments 1, 2. Given these circumstances we will not, as Takoma suggests, treat the Renewal Application as deficient due to late-filing. and Takoma filed a Petition to Deny. The Renewal Application and Petition remain pending and the Bureau is not acting upon them at the present time. However, some of the arguments therein build upon matters raised in the instant licensing proceeding and we will discuss them briefly because they further explain the parties’ respective positions. For example, WIN states in the Renewal Application that the Translator is on-air in Maryland and has no Rule violations or unresolved character issues. Takoma, however, argues that WIN violated the Rules by building an unauthorized antenna, is operating without authority because its license expired automatically in 2017 pursuant to Section 312(g), and that there is, thus, no license to renew. Petition at 2. Takoma also alleges again that WIN made false certifications and, thus, lacks the necessary character qualifications to remain a broadcast licensee. Id. at 2-5. In an Opposition, Opposition, supra note 16. WIN argues that its antenna substitution: (1) was required for valid engineering reasons; (2) complied with directional antenna requirements in sections 73.315 and 74.1235 of the Rules; and (3) did not violate the “literal requirements” of its Construction Permit or license applications. WIN contends that the antenna substitution was permissible because the Construction Permit does not specify any particular model, only the parameters that the antenna must achieve. WIN further argues that the substitution had no effect on the antenna’s pattern of radiation and was installed by a reputable company according to manufacturer instructions. Id. at 3. In a Reply, Takoma argues that WIN’s position is baseless. Takoma, Reply to Opposition to Petition to Deny, Pleading File No. 0000087056 (rec. Oct. 22, 2019) at 5. Takoma’s Objection to the 2019 License Application does not allege interference, although the facilities therein are seemingly identical to those that led to the Interference Complaint against the 2017 License Application. The Bureau sent an inquiry letter to Takoma in April 2021 asking whether the facilities in the 2019 License Application caused interference and, if so, advising it to supply information under new interference standards the Commission had since adopted. Request for Additional Information from Albert Shuldiner, Chief, Audio Div. to Michael W. Richards, Esq., File No. BLFT-20190507ACA (MB Apr. 20, 2021). Takoma responded that it had no desire or need to make an interference showing against the 2019 License Application under the revised standards because it had already demonstrated interference in 2017 under then-applicable standards. Takoma, Response of Historic Takoma, Inc. to Commission Request for Information (May 7, 2021) at 2. WIN’s counsel thereafter alleged that the Inquiry Letter was factually incorrect because the 2017 facilities that raised interference issues were different from those in 2019 License Application. Counsel stated that although the parameters in the two applications were identical, the 2017 facilities inadvertently operated at a higher than authorized transmitter power output (TPO) and effective radiation power (ERP) due to a miscalculation in the length of a cable, which it claimed to have corrected. See E-mail from Geoff Bentley (Apr. 21, 2021) (“The staff’s letter includes at least one serious erroneous statement of ‘fact.’  It states that the translator resumed operation with the same facilities as those that were alleged to cause interference.  In fact, transmitter output power was significantly reduced. For a variety of reasons, the licensee believes the “objections” are specious.  However, in evaluating the LPFM station’s response the staff should be aware that the translator licensee long ago took significant measures that should have substantially reduced the probability of cognizable interference.”). When staff responded that they did not see any modification application to explain any the difference in parameters between the facilities in the 2017 and 2019 License Applications, counsel responded that “The parameters are not different.  Because of a miscalculation about the length of the coax, TPO had to be reduced to reach authorized ERP.  In other words, the translator had been, originally, operating over the authorized ERP.” E-mail from Geoff Bentley (Apr. 21, 2021). Staff provided copies of this ex parte correspondence to Takoma’s counsel. WIN thereafter filed and the Bureau granted two additional applications for minor modification, each of which was uncontested. The first proposed a channel change from channel 232 (the channel on which it had caused interference to Takoma) to channel 268, but continued to specify the original Shively antenna. Application File No. 0000199978 (granted Oct. 24, 2022) (2022 Modification). The Bureau granted the 2022 Modification Application as a minor modification of the 2019 License Application which was still pending, although WIN filed the application as a minor modification of the Translator’s underlying license (File No. BLFT-20070830ABA). The 2022 Modification proposed the same site as the 2019 License Application, reduced the ERP to 100 Watts (0.1 kW), and proposed a Shively 6800 Series directional antenna with a different antenna pattern and reduced coverage area from that of the 2019 License Application.  The 2022 Modification proposed to use channel 268, thereby changing the callsign to W268DN.  The second also specified channel 268, but corrected the antenna to the Jampro antenna actually in use. Application File No. 0000212383 (granted Apr. 5, 2023) (2023 Modification). The 2023 Modification had all the same technical parameters as the 2022 Modification except that it reports a change in the antenna’s make and model to a Jampro Model JLLP-1T. See WCTN AM W268DN Translator Change Antenna Make Model Only.pdf (attached to 2023 Modification). WIN has until October 2025 to construct on channel 268. Grant of the recent modifications did not moot the issues currently under consideration because the Bureau must determine whether the Translator has any continuing authorization and, if so, whether the Translator can be licensed for facilities constructed with a Jampro antenna. DISCUSSION Among the primary issues in dispute are: (1) whether WIN had authority to construct an antenna different than originally specified; (2) whether operation with the substitute antenna was no better than silence for purposes of section 312(g); (3) whether, consistent with section 312(g), there still exists an underlying license for the Translator that can be modified and renewed; and (4) whether, if there is still a license, WIN meets the criteria for license renewal under section 309(k) of the Act. 47 U.S.C. § 309(k). We answer these questions as follows: (1) WIN apparently violated the Rules by using an unauthorized antenna; (2) WIN’s use of the wrong antenna but on the authorized channel and correct location was not equivalent to silence for purposes of section 312(g); (3) the Translator continues to have a license that can be modified; and (4) WIN’s apparent violations are being addressed in a contemporaneous Notice of Apparent Liability. Procedural Matters. We resolve two procedural issues in Takoma’s favor. First, we will consider Takoma’s Objection to the 2019 License Application even though section 319(c) of the Act imposes a stringent standard on such challenges. Id. § 319(c). As long as “all the terms, conditions, and obligations set forth in the application and permit have been fully met,” an applicant for a license to cover a construction permit is entitled to a presumption that the public interest determination made during the underlying construction permit proceeding continues in effect. See id.; Focus Cable of Oakland, Inc., Memorandum Opinion and Order, 65 FCC 2d 35, 39-40, para. 11 (1977). Consideration of Takoma’s Objection is appropriate because its allegation that WIN did not meet all terms of the Construction Permit potentially negates any public interest presumption to which WIN might otherwise have been entitled. Second, we reject WIN’s argument that the Bureau should not consider Takoma’s filings due to lack of standing. Even if we were to accept WIN’s contention that the location of the LPFM and Translator stations in the same market does not necessarily confer standing to Takoma, we would recognize a nexus between the two stations stemming from the prior Interference Complaint which required the Translator to suspend operations. Use of a Substitute Antenna. We find that WIN apparently violated the Rules by constructing and operating with an unauthorized antenna. Section 74.1251 requires FM translator licensees to apply for and receive authority prior to making any changes to the antenna system. 47 CFR § 74.1251(b)(2). WIN concedes that it substituted the antenna, but argues that it was allowed to do so because the Construction Permit does not specify a particular antenna model and the substituted antenna could achieve the same directional pattern. Opposition at 5 (arguing that “Contrary to the false impression created by petitioners, the FCC does not authorize, direct or otherwise mandate the installation of a specific antenna.” and “The intent behind requesting information on the construction permit application form about the antenna model is to verify, for reference purposes, that the proposed radiation pattern can be replicated by an available antenna.”). WIN also contends that the application form does not ask what antenna was installed, but only requires a certification that the antenna was mounted in accordance with manufacturer instructions. Id. at 6. WIN further argues that operation of the Translator in Maryland to rebroadcast a co-owned AM station serves the Commission’s objective to improve AM service, especially since WIN is minority-owned and has broadcast programming principally directed to members of minority groups. WIN emphasizes that the Jampro and Shively antennas are each two-bay, directional antennas mounted on the same tower and at the same height specified in the Construction Permit. Id. See Supplementary Engineering Statement (attached to 2019 License Application). WIN further argues that it had a valid public safety reason for making the substitution, i.e., to prevent potential tower collapse in the wind if loaded with heavier equipment. Opposition at 4-5. Nevertheless, we reject WIN’s contention that the substitution was permissible without further authorization. Even under the circumstances presented, all permittees and licensees of FM translators are required to file a formal application on FCC Form 349 to make equipment modifications including, inter alia, “a change in the transmitting antenna system, including the direction of radiation or directive antenna pattern.” 47 CFR § 74.1251(b)(2). WIN apparently violated the Rules because it did not file an application prior to substituting one directional antenna for another. The fact that some information, including antenna models, is not specifically identified on construction permits does not, as WIN argues, mean that a permittee can change such factors at will. With limited exceptions explicit in the Rules, each permittee must build the facilities proposed or file a formal application to obtain consent prior to making desired changes. Id. § 74.1251(a)-(b). In this manner, the Bureau remains aware of the nature of facilities in use and can minimize the possibility that secondary facilities like FM translators will cause interference. Compare 47 CFR § 73.1690 (limited circumstances in which modification of full service broadcast stations are permitted without prior application); Amendments of Parts 73 and 74 of the Commission’s Rules to Permit Certain Minor Changes in Broadcast Facilities Without a Construction Permit, 12 FCC Rcd 12371 (1997). Also, because the Bureau is fully aware of the equipment in use, it is able to act relatively quickly on the permittee’s application for a license to cover the construction by relying upon a permittee’s certification without having to repeat its earlier technical analysis. WIN’s substitution of antennas was inconsistent with the Construction Permit, which the Bureau issued in reliance on information WIN provided in WIN’s Permit Application. The constructed antenna was made by a different manufacturer and had different features such as size, weight, and shape from the antenna that WIN specified in its Permit Application. Prior to acting upon an application for a broadcast construction permit, the Bureau fully analyzes the information that the applicant provides therein. Because the resulting permit is based on the applicant’s own proposal, it is unnecessary for the Commission to repeat and incorporate every detail into the resulting construction permit. The Commission does not, as WIN suggests, ask applicants to identify a proposed antenna simply for reference purposes. WIN’s use of the substitute antenna, without first applying for consent to make that change, was an unauthorized modification of the Translator’s antenna system. The safety-related reason for the substitution does not override the requirement to obtain Commission approval prior to altering an antenna system. Nor does the fact that WIN operated with some of the correct parameters mitigate the apparent violation although, as discussed below, it may be material to determining whether the Translator’s license expired pursuant to section 312(g). Given that the focus of the present proceeding is the 2019 License Application, our consideration of Takoma’s allegations of false certifications is limited to that particular filing. We do not find any actionably false certification therein. As discussed above, WIN incorrectly certified in the 2019 License Application that it had constructed as authorized but simultaneously provided an exhibit which disclosed the substitution of a Jampro for a Shively antenna. The 2019 Application, thus, makes it evident that WIN did not build the authorized antenna and does not reflect an intent to deceive the Commission therein. We do not yet reach Takoma’s allegations of false certifications in other filings and the impact, if any, on WIN’s character qualifications. We expect to consider those matters in the context of the pending Renewal Application. Automatic Expiration under Section 312(g). We find that the Translator’s twelve consecutive month period of combined silence and operation with an unauthorized antenna (at the correct site and channel) did not cause its authorization to expire. Most cases resulting in automatic expiration pursuant to section 312(g) have involved periods of silence coupled with attempted resumption at the wrong site and/or on the wrong channel. Absolute Broad. LLC, Memorandum Opinion and Order, FCC 23-38 (rel. May 17, 2023), para. 19, n. 68 and cases cited therein (Absolute). In that context, the Commission and D.C. Circuit have concluded that the unauthorized operation is no better than silence. For example, the court stated in Eagle that section 312(g)’s requirement of operation must be read in conjunction with section 310’s prohibition of unlicensed operation, and that it, thus, would be “absurd” to accept the broadcaster’s contention at oral argument that a station licensed at a site in Arizona could avoid expiration by operating from an unlicensed location in New York. See Eagle, 563 F.3d at 552. The Commission, in the recent Absolute proceeding, acknowledged this section 312(g) precedent, but ruled that its applicability is limited to operation at the wrong site and/or channel. Absolute, para. 20. The Commission clarified that non-conforming operation that is inconsistent with a different aspect of a station’s authorization does not lead to loss of license under section 312(g), even if it lasts for a year. The facts of Absolute closely mirror those of the instant case. There, as here, an AM licensee rebroadcast its signal over a co-owned FM translator located at the correct site and channel but with an unauthorized antenna. The Commission expressed its belief that Congress, which adopted section 312(g) to address spectrum warehousing by silent stations without significant discussion or analysis, did not intend to establish automatic expiration for all rule violations lasting twelve consecutive months. The Commission similarly believed that the D.C. Circuit panel that issued the Eagle decision had no such intention when it held that a licensee could not avoid automatic license expiration by operating from a distant unauthorized location. The Commission noted that when its licensing divisions have confronted situations other than those involving silence, unauthorized location, or the “real estate equivalent” of an unauthorized channel, they have consistently declined to go to the extreme of cancelling licenses for infractions lasting longer than a year. Absolute, para. 19. Instead, they have addressed violations using the existing enforcement framework set out in the Rules. Id. Although the Commission held that section 312(g) was inapplicable in Absolute, it directed the Bureau to fashion appropriate enforcement action for the use of an unauthorized antenna. Absolute, para. 21. Similarly, we find that WIN’s combined silence and operation with an unauthorized antenna for twelve consecutive months did not result in automatic expiration but is an apparent violation that warrants enforcement action. Accordingly, we are concurrently issuing a Notice of Apparent Liability for monetary forfeiture. Interference Inquiry. Although the facilities specified in the 2019 License Application are nominally the same as those that caused the interference in 2017, it appears that subsequent WIN actions have eliminated the interference. WIN suggests that the earlier interference was not caused by the antenna substitution but, rather, by excessive ERP caused by a since-corrected miscalculation in the length of a cable. See supra, note 24. As noted previously, the Bureau invited Takoma to make a showing of any continued interference in 2021 using the Commission’s revised standards. Takoma declined to do so. Accordingly, WIN’s suggestion that its revision of the cable length resolved the problem appears reasonable. Moreover, the Bureau has since approved additional modifications that could reasonably be expected to eliminate any interference to Takoma if it still existed. Of particular note, the Bureau has approved WIN’s proposed move to Channel 268 (101.5 MHz) rather than Channel 232 (94.3 MHz) on which Takoma operates. WIN did not base the channel change on any need to resolve interference caused to Takoma. Rather, WIN sought to move to Channel 268 to mitigate interference it predicted the Translator would receive on Channel 232 from full service station WLZV(FM), Buckland, VA (Channel 232A). See FM Translator Non-Adjacent Channel Change Minor Modification Required Interference Mitigation Showing (attached to 2022 and 2023 Modifications). Takoma did not contest that application. We conclude that interference to Takoma is no longer an issue and will grant the 2019 License Application. Conclusion/Actions. Accordingly, the Objection of Historic Takoma, Inc. to Applications of WIN Radio Broadcasting Corp. for a covering license for W232DE, Potomac, Maryland, Facility ID No. 141566, IS GRANTED IN PART to the extent that we determine that WIN apparently violated Commission Rules and are concurrently issuing a Notice of Apparent Liability for Forfeiture BUT DENIED in all other respects. The Application of WIN Radio Broadcasting Corp. for a covering license (File No. BLFT-20190507ACA) FM Translator, W232DE, Potomac, Maryland, Facility ID No. 141566 IS GRANTED. Sincerely, Albert Shuldiner Chief, Audio Division Media Bureau 6