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Planned Eldorado FM station fined $10,000 for premature construction

The FCC fined Saver Media, Inc, licensee of KQTC-FM Eldorado, $10,000 for “apparently willfully and repeatedly violated Section 319(a) of the Communications Act of 1934” by “prematurely constructing facilities” proposed in an CP Application. 

According to FCC documents, Tony Cuellar was the winning bidder for the Eldorado FM allotment in FM Auction 93.   Cuellar timely filed a 2012 CP application for a construction permit for a new FM station at Eldorado.   Danny Ray Boyer filed a Petition to Deny the application in which he claimed that Cuellar had attempted to or intended to deceive the FCC regarding a past felony conviction.  The FCC denied the Petition to Deny and granted the 2012 CP Application on February 20, 2013.    Shortly thereafter, Cuellar filed an assignment application to assign the Station’s construction permit to Saver Media.  The assignment application indicated that Saver was a Texas corporation owned by Cuellar and his wife.  Boyer did not oppose this application and it was granted it on April 10, 2013. 

A few months later, Saver filed the CP Application and Boyer filed an objection in which he asserted that Saver engaged in premature construction of the facilities proposed in the CP Application.   The objection also alleged that Saver violated certain Federal Aviation Administration rules regarding tower lighting and that Saver and/or Cuellar misrepresented facts to the FCC in the 2012 CP Application and the Assignment Application.

Section 319 of the Communications Act forecloses the FCC from issuing a license when the “entire station” has been constructed prior to the grant of a construction permit.  This prohibition on premature construction of a broadcast station is not absolute though.  The FCC has sanctioned certain types of pre-authorization construction, including site clearance, pouring of concrete footings for a tower, installation of a tower base and anchors, installation of a new power line, purchase and on-site storage (but not installation) of radio equipment and other preliminary steps having no intrinsic broadcast use.  Pre-authorization construction of towers or installation of radio antennas, however, is strictly prohibited.        

Boyer alleged that Saver prematurely constructed the facility proposed in the Application in violation of Section 319(a) of the Act and submitted evidence that Saver has constructed the tower on which it proposes to mount the Station’s transmitter and had taken delivery of a transmitter building. 

Boyer noted that this tower is approved for the frequency assigned to the Station and no others.  Thus, he argued that “the tower has no other purpose other than to serve this proposed facility.”  Saver did not dispute that it constructed the tower.  Instead, it explained that it plans to lease space on the tower to other entities for the provision of other communications services.  Saver acknowledged that the tower was not yet approved for the frequencies utilized by these other services but stated that it would have all frequencies approved by the FAA prior to installation of any equipment on the tower.  Saver also noted that it had not mounted the propose station’s antenna on the tower.  The FCC said Saver had “not adequately demonstrated that it constructed the tower for any such purpose”. 

Boyer also alleged that, at various times during its construction, the tower lacked temporary or permanent obstruction lighting and that this violated FCC’s rules governing tower lighting.   In response, Saver stated that the medium intensity strobe system required by the FAA was installed and fully operation as of January 25, 2014.  Saver submitted an email from its technical consultant explaining that he was unable to install the system at the time the tower reached 200 feet above ground level because the manufacturer “had not yet shipped” it.  The consultant contacted the nearest FCC Flight Service Station and requested issuance of a Notice to Airmen.   He indicated that he contacted the Flight Service Station and obtained two additional NOTAMs, the last of which was valid through January 25, 2014.

The FCC said Saver complied with the FCC’s rules governing tower lighting.  “While the tower did not have obstruction lighting or did not have all required obstruction lighting at various times during its construction, Saver – via its consultant – took the steps required to ensure that the lack of lighting was reported to the FAA and that NOTAMs were issued.”

The FCC said it would not rule on the issue of misrepresentation because the deadline filing petitions for reconsideration of the FM grant expired well before Boyer filed his objection.  Accordingly, the FCC said, “Saver did prematurely construct the facilities proposed in the application.  In addition, Saver did not disclose the premature construction to the commission voluntarily.” 

It issued the $10,000 fine and granted Saver’s application to modify the construction permit for KQTC.

Questions?  Contact TAB's Michael Schneider or call (512) 322-9944.


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