WPCBE 2B;J ZCourier ?<#6X@DQ@#HP LaserJet 5Si (Default)HPLAS5SI.PRSx  @\&PX@2,<w3| CourierCG Times#6X@DQ@#CourierCG TimesCG Times BoldHPLAS5SI.PRSx  @\%xX@CourierCG TimesCG Times Bold27 X"vp\k<?xxx,x6X@`7X@<I,G6X@`7@x8wC;,|Xw PE37XPD7zC;,EXz_ pi7X><q*"xxxxWWxxxWWkkxxxa8Right ParRight-Aligned Paragraph NumbersyW"3!` `  hh#(-@p/a) -pp2(#p Tech InitInitialize Technical Style. k I. A. 1. a.(1)(a) i) a) 1 .1 .1 .1 .1 .1 .1 .1 Technicala1DocumentgDocument Style Style\s0  zN8F I. ׃  a5TechnicalTechnical Document Style)WD (1) . 2y~,a6TechnicalTechnical Document Style)D (a) . a2TechnicalTechnical Document Style<6  ?  A.   a3TechnicalTechnical Document Style9Wg  2  1.   a4TechnicalTechnical Document Style8bv{ 2  a.   2m3ya1TechnicalTechnical Document StyleF!<  ?  I.   a7TechnicalTechnical Document Style(@D i) . a8TechnicalTechnical Document Style(D a) . Doc InitInitialize Document Stylez   0*0*0*  I. A. 1. a.(1)(a) i) a) I. 1. A. a.(1)(a) i) a)Documentg2P eGPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:><q*"xxxxWWxxxWWkkxxx J2J>8 &>>,,,,,,,,`` 8888,,,,,,,,,,zz&&>>>r2@E Y4  &Og Y4#Xw PE37|XP#W  FEDERAL COMMUNICATIONS COMMISSIONxxXFCC 9981   yxdddy&#Xw P7|XP#@jBefore the FEDERAL COMMUNICATIONS COMMISSION ?Washington, D.C. 20554  Y4In the Matter of hhCqpp)MM Docket No. 95154 ` `  hhCqpp)  Yv4CONTEMPORARY MEDIA, INC.qpp) ` `  hhCqpp)  YH4Licensee of Stations WBOW(AM), WBFX(AM), andpp)  Y14WZZQ(FM), Terre Haute, IndianahhCqpp) ` `  hhCqpp)  Y 4Order to Show Cause Why the Licenses for pp)  Y 4Stations WBOW(AM), WBFX(AM), and WZZQ(FM),pp)  Y 4Terre Haute, Indiana, Should Not be Revokedpp) ` `  hhCqpp)  Y 4CONTEMPORARY BROADCASTING, INC.pp) ` `  hhCqpp)  Yy4Licensee of Station KFMZ(FM), Columbia,pp)  Yb4Missouri, and Permittee of Station KAAMFM,pp)  YK4Huntsville, Missouri (unbuilt)hhCqpp) ` `  hhCqpp)  Y4Order to Show Cause Why the Authorizations forpp)  Y4Stations KFMZ(FM), Columbia, Missouri, andpp)  Y4KAAMFM, Huntsville, Missouri, Should Not bepp)  Y4Revoked` `  hhCqpp) ` `  hhCqpp)  Y4LAKE BROADCASTING, INC.hhCqpp) ` `  hhCqpp)  Y|4Licensee of Station KBMX(FM), Eldon, Missouri,pp)  Ye4and Permittee of Station KFXE(FM), Cuba,pp)  YN4Missouri` `  hhCqpp) ` `  hhCqpp)  Y 4Order to Show Cause Why the Authorizations forpp)  Y 4Stations KBMX(FM), Eldon, Missouri, andpp)  Y4KFXE(FM), Cuba, Missouri, Should Not be Revokedpp) ` `  hhCqpp)  Y 4LAKE BROADCASTING, INC.hhCqpp)File No. BPH921112MH ` `  hhCqpp)  Y"4For a Construction Permit for a New FM Stationpp)  Y#4on Channel 244A at Bourbon, Missouriqpp)  YQ%4i ORDER  Y$'4` ` Adopted: April, 22, 1999qpp; Released: &lj  April 28, 1999 &lj  "$'0*n(n(rr%"ԌBy the Commission: &lj   &lj   "1. This Order denies a Petition for Reconsideration of a Commission Decision that  xIaffirmed an Initial Decision revoking the licenses and construction permits held by Contemporary  xdMedia, Inc., Contemporary Broadcasting, Inc., and Lake Broadcasting, Inc. (collectively,  x"Licensees"), and denying the Licensees' application for a new station. The Commission agreed  xwith the ALJ that the Licensees should be disqualified because of violations of law relating to  xArepeated sexual abuse of children by the stations' sole owner and misrepresentations by the  YH4Licensees. Contemporary Media, Inc., 13 FCC Rcd 14437 (1998).  "`2. Michael Rice, who is the Licensees" sole shareholder, the corporate president and  xtreasurer, and a director, was convicted in 1994 of twelve felonies, including eight counts of  xdeviate sexual abuse and four counts of sodomy. These crimes involved five children. As a  xEconsequence of his criminal acts, Rice is currently incarcerated serving a maximum prison term of eight years.  " 3. In our Decision, we addressed first the effect of Rice's convictions on the Licensees'  Yy4 xbasic qualifications. In response to the Licensees' argument that the Commission's governing  xcharacter policy is arbitrary and capricious as applied in this case, we reviewed the  YK4 xACommission's policy on character qualifications in broadcast licensing, as set forth in Policy  Y44 xRegarding Character Qualifications in Broadcast Licensing, 102 FCC 2d 1179 (1986), recon.  Y4 xdenied, 1 FCC Rcd 421 (1986), appeal dismissed sub nom. NABB v. FCC, No. 861179 (D.C.  Y4 xuCir. June 11, 1987) ("1986 Character Policy Statement"), modified, 5 FCC Rcd 3252 (1990)  Y4 x(subsequent history omitted) ("1990 Character Policy Statement"). We concluded that our  xcharacter policies are validly applied to the Licensees, and that Rice's convictions involving the  xErepeated sexual abuse of children adversely affected their qualifications to remain Commission  x#licensees. We further found that the Licensees did not make any significant showing of  Y4 xmitigation under this issue. Contemporary Media, Inc., 13 FCC Rcd at 14439, 14441  45,  x+9. In addition to our findings regarding the impact of Rice's criminal behavior, we concluded  xthat the Licensees misrepresented and lacked candor in repeatedly reporting to the Commission  xthat, subsequent to his arrest, Rice was completely excluded from any involvement in the  xmanagement and operation of the Licensees' radio stations. We held that Rice's criminal acts  xand the Licensees' deceit constituted separate and independent grounds for disqualification of the  xLicensees, and that the Licensees lacked the requisite character qualifications to deal truthfully  Y4with the Commission and to comply with our rules and policies. Id. at 1445459  3441.  "F4. In their Petition for Reconsideration, the Licensees renew their contention that the  Y!4 xECommission's 1986 and 1990 Character Policy Statements are arbitrary, both in general and as  x,specifically applied to the Licensees, because there is no nexus between Rice's sexual  xEmisconduct and the Licensees' broadcast activities or propensity for truthfulness and reliability.  xThe Licensees also argue that the Commission has not explained how it weighs the mitigation  xfactors it applies in assessing the impact of criminal behavior and that, in any case, the"Q%0*&&rre#"  xLicensees' showing of mitigation was sufficient to warrant a conclusion that they are qualified.  xqIn this regard, the Licensees submit a July 23, 1998 letter from Donald L. Wolff, who is  xudescribed as "Rice's parole counsel," which states that Rice is scheduled to be released from  xprison no later than December 29, 1999, and perhaps as early as April 30, 1999. The Licensees  xargue that this information indicates that the Commission overstated the seriousness of Rice's crimes because he will "serve less than six years." Petition at 10.  "5. With regard to the misrepresentation finding, the Licensees contend that the  xECommission mischaracterized the Licensees' statements because they never claimed to remove  x8Rice from all station activities but only management, policy, and daytoday decisions. Insofar  xyas Rice performed the activities attributed to him in the record, the Licensees aver, this conduct  xwas not decisionmaking and, accordingly, the Licensees' reports were not inaccurate. Although  xthese "distinctions are subtle" (Petition at 13), the Licensees argue that they are supported by  xlthe record. The Licensees submit that the evidence establishes only that Rice "made unsolicited  xcomments" to various station officials (Petition at 17), and engaged in "shmoozing, musings, and  x+intermeddling" (Petition at 19), but not decisionmaking activities. Finally, the Licensees argue,  x'as they did in their exceptions, that revocation of their authorizations violates the Excessive  Yy4 xqFines Clause of the Eighth Amendment, and they cite U.S. v. Bajakajian, 118 S. Ct. 2028 (1998), for the proposition that revocation is a grossly disproportionate penalty.  "6. It is well established that the Commission does not grant reconsideration simply for  Y4 xthe purpose of debating matters on which it has already deliberated and spoken. See WWIZ,  Y4 xInc., 37 FCC 685 (1964), aff'd sub nom. Lorain Journal C. v. FCC, 351 F. 2d 824 (D.C. Cir.  Y4 x81965), cert. denied, 383 U.S. 967 (1966). To be successful, a petition for reconsideration must  x'rely on new facts, changed circumstances, or material errors or omissions in the underlying  Y4 xopinion. See Sandab Communications Limited Partnership II, FCC 98131, released June 24,  Y4 xA1998,  70; Isis Broadcast Group, 8 FCC Rcd 24 (Rev. Bd. 1992), rev. denied, 8 FCC Rcd  x7040 (1993). Here we agree with the Mass Media Bureau's position in its opposition that the  xLicensees' Petition does not meet this test but largely reiterates arguments that we previously  x+considered and rejected. Illustrative of the Licensees' overall approach is the fact that the four  xprincipal arguments and three subcategories of arguments listed in its Table of Contents are an  xalmost identical verbatim repetition of the same arguments listed in the Table of Contents of its original exceptions. That is an insufficient basis for reconsideration.  "7. On the violations of law issue, with respect to the application of our character policies  xto the Licensees, we affirmed our view that where, as here, there is a record of felony  x+convictions involving "egregious crimes against society" that demonstrates a "callous disregard  x[for the welfare of fellow citizens," we need not find the specific link or nexus the Licensees  x[demand. We explained that the violations themselves are so serious that we have legitimate  xreason for concern about the Licensees' propensity to conform to our rules and policies, and to  Yh$4be truthful with us. Contemporary Media, Inc., 13 FCC Rcd at 14442, 14446  11, 16. "Q%0*&&rre#"Ԍ "8. In addition, we carefully reviewed the mitigation evidence in the record and  xconcluded, contrary to the Licensees' view, that all but one of the factors we traditionally  xconsider weighed against the Licensees. We found that Rice's crimes were extremely serious,  xywillful, repeated over an extended period of time, recent, and committed by the sole owner of  xthe stations. Furthermore, the Licensees failed to take adequate remedial measures, as they  xuclaimed, by removing Rice from involvement in station management after the charges were  xbrought against him, and did not establish rehabilitation. The Licensees' good overall record  x'of rule compliance alone did not overcome the cumulative adverse impact of all this other  YH4 xevidence. Id. at 1444446  1415. Thus, we perceive no ambiguity in our policy or its  xyapplication here because, whatever "weighing" or order of preference we might assign to these  xindividual factors, as urged by the Licensees, the overwhelming preponderance of record evidence in this case still would warrant a resolution adverse to the Licensees.  "9. The only new information submitted by the Licensees with respect to mitigation is the  xWolff letter. The letter states that Rice's "conditional release date" is December 29, 1999; that  xyfollowing completion of a 12month Missouri Sexual Offender Program, he could be released  xearlier "based on good behavior"; and that Wolff "expect[s]" release will be no later than  xDecember 29. As this letter indicates, the actual date of Rice's release from confinement has  xnot yet been determined by prison authorities and is far from certain. But even if his time  xdserved ultimately is "less than six years," instead of eight, we do not see how this in itself  xlreduces the seriousness of the nature of Rice's crimes or their negative impact on the Licensees'  Y4qualifications. Id. at 1444446  15.v Y4 xԍ#Xw P7|XP#We also disagree with the Licensees that we incorrectly affirmed the ALJ's refusal to  xcredit the four "character statements" submitted on Rice's behalf. These statements do not carry  xgreat weight for the intended purpose because they do not discuss Rice's character in light of  xzhis criminal activities, but only his business record and ability, and one even disavows  Y:4 xNfamiliarity with Rice's criminal prosecution. Id. at 1444446  15; Licensees Exh. 5. Hence the letters afford little or no evidence of Rice's good character or rehabilitation.  "10. With regard to our findings of misrepresentation and lack of candor, we disagree with  xthe Licensees that the "subtle distinctions" they are drawing between evidence of decision xmaking and other station activities warrant reconsideration. First, these purported distinctions  xdo not undermine our conclusion that the Licensees lacked candor because they never directly  xinformed the Commission in their reports that Rice was involved in consultative activities at the  x~stations, even though their initial reports represented to the Commission that he had "no  x'consultative role in the affairs" of the stations and a later report claimed that there was "no  xchange in Mr. Rice's status," even after he had taken on such a role. The Licensees did not  x attempt to clarify this matter in any of their reports, even though their initial reports clearly  Y 4purported to exclude Rice from more than just decisionmaking. Id. at 1445455  35. " 0*&&rr"Ԍ "q11. Second, quite apart from the evidence of Rice's consultative activities, we also found  xyextensive testimonial and documentary evidence that Rice was openly involved in the operation  xyof the stations, contrary to the Licensees' representation to the Commission that, from the time  xNRice was formally charged with criminal behavior, he was "excluded from involvement" in  x "daytoday decisions and operations." In spite of the Licensees' overt claim in their initial  xreports that Rice was being "completely insulated and excluded from any involvement in . . .  xdaytoday decisions involving any" of the stations, the record disclosed detailed evidence of his  xinvolvement in specific programming matters at the stations as well as numerous decisions to  YH4 xhire and fire station personnel. Id. at 1444850, 14451  2124, 27. Notwithstanding the  xLicensees' characterization in their Petition, these were undoubtedly decisionmaking activities.  xEIndeed programming and personnel are two areas traditionally associated with station control.  Y 4 xhSee Bennett Gilbert Gaines, 8 FCC Rcd 1405 (Rev. Bd. 1993), rev. denied, 9 FCC Rcd 533  Y 4 x(1994).  Ye 4 xԍ#Xw P7|XP#The Licensees did not except to the ALJ's conclusion that Rice did not abandon or  xrelinquish ultimate control over the Licensees because "Rice was never totally isolated and  xexcluded from the management, operations, and affairs of the Licensees' stations."  Y 4Contemporary Media, Inc., 12 FCC Rcd 14254, 14305  197 (ALJ 1997). Although other management officials may have had an independent role in these  xdecisions, and Rice may have been excluded from other management decisions, as the Licensees'  x+maintain, there is no question that Rice's involvement in the important station affairs described  xyin the record was inconsistent with the Licensees' report that he was completely excluded from  xVthe "customary" management and operation of the stations and had "no managerial or policy role  x0in the affairs" of the Licensees. Rice's activities went well beyond the Licensees' current  Yb4 xassertion that he was merely making "unsolicited comments" or "shmoozing."rb4 YG4 x'ԍ#Xw P7|XP#According to Rosten, The Joys of Yiddish 300 (1968), "shmooz means a friendly,  xgossipy, prolonged, hearttoheart talk." This hardly describes Rice's persistent and extensive involvement in important daytoday decisions and operations at the stations.r In fact, he gave  xvarious instructions to station officials that were carried out, and employees he wanted fired  Y44 xhwere let go. Contemporary Media, Inc., 13 FCC Rcd at 1445556, 1445758  3637, 39.  xmMoreover, the Licensees never amended their reports to disclose the extent of Rice's involvement at the stations.  "12. We also reject the Licensees' strained contention (Petition at 1819) that evidence of  xRice's involvement in station management in the form of three letters he wrote to officials of  xtwo radio stations rejecting offers to purchase one of the Licensees' construction permits,  xinviting an offer to purchase a station once it is on the air, and suggesting an exchange of  xexisting stations, is insignificant because it shows involvement in ownership, rather than  xmanagement and operation. We find that this distinction is not persuasive. The only case  YN4 xsupport cited by the Licensees is the Policy Statement on Comparative Broadcast Hearings, 1  xFCC 2d 393, 39596 (1995), which discusses the Commission's former ownership integration"70*&&rr"  xcriterion. That comparative licensing policy, however, has no bearing on the issue here or the  xfactual record of Rice's involvement in significant managerial decisions at the stations. We  xaffirm our original conclusion that the decision to sell a broadcast property is a fundamental  Y4 xmanagementlevel activity. Id. at 1445758 39. But even if we were to disregard this aspect  xEof Rice's involvement, the other corroborative evidence cited in 39 supports our conclusions.  xFinally, contrary to the Licensees' contention (Petition at 19), it is clear from the record that a  x_number of highlevel management officials had personal knowledge of Rice's decisionmaking  xactivities; yet the Licensees never disclosed these activities by correcting or clarifying the  YH4representations made in their reports to the Commission. Id. at 1445859  40.  "13. Finally, we continue to believe that the revocation ordered in this proceeding does  Y 4 x~not violate the Eighth Amendment. U.S. v. Bajakajian, relied on by the Licensees, which  xinvolved a forfeiture of currency for violating a federal statute requiring the reporting of the  xtransportation of more than $10,000 outside the country, appears to have little bearing on the  x'Commission's revocation authority. The court held that a "punitive forfeiture" violates the  Y 4 x4Excessive Fines Clause if it is "grossly disproportional" to the gravity of the offense. Id. at  x2036. Revocation, however, is intended to ensure that stations will be operated in the public  Yy4 xinterest and does not involve seizure of the Licensees' property. Moreover the Licensees'  x argument (Petition at 24) that Rice has already been punished for his crimes by the state of  xMissouri misses the point of the Commission's character inquiry, and their further contention  xthat they did not engage in intentional deceit that would warrant revocation is not supported by the record. We reaffirm that revocation is appropriate in this case.  "[14. ACCORDINGLY, IT IS ORDERED, That the Petition for Reconsideration filed July  xz27, 1998 by Contemporary Media, Inc., Contemporary Broadcasting, Inc., and Lake Broadcasting, Inc. IS DENIED.   ` `  FEDERAL COMMUNICATIONS COMMISSION   ` `  Magalie Roman Salas ` `  Secretary