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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) EB Docket No. 02-367
RADIO MOULTRIE, INC. ) EB-01-IH-0259
) Facility #54680
Licensee, Station WMGA(AM), ) FRN #0007570443
Moultrie, Georgia )
ORDER TO SHOW CAUSE AND NOTICE OF OPPORTUNITY FOR HEARING
Adopted: November 21, 2002 Released:
November 26, 2002
By the Commission:
1. In this Order, pursuant to Sections 312(a),
312(c), and 503(b) of the Communications Act of 1934, as
amended (``the Act''),1 we commence a hearing proceeding to
determine whether the above-captioned license held by Radio
Moultrie, Inc. (``RMI'') should be revoked for its failure
to comply with 310(d) of the Act,2 and Section 73.3540 of
the Commission's rules (application for voluntary assignment
of control),3 by transferring control of Station WMGA(AM) to
Dixie Broadcasting, Inc. (``DBI''), Aubrey Smith
(``Smith''), and Sam and Gracie Zamarron (``the Zamarrons'')
without prior authorization of the Commission; and for its
willful and repeated failure to respond to official
Commission correspondence ordering it to respond.
2. Also, pursuant to Section 1.80(g) of the
Commission's rules,4 this Order constitutes notice of
opportunity for hearing to determine whether, in addition to
or as an alternative to license revocation and/or cease and
desist order, monetary forfeitures should be imposed against
RMI for violations of the Act and the Commission's rules.
3. The licensee of record for Station WMGA(AM) is
RMI. However, we received information suggesting that DBI,
and/or others,5 may have improperly acquired control of the
station through the acquisition of station assets following
the station's last license renewal on September 19, 1996.
In this connection, our records do not reflect that RMI
sought or obtained Commission approval for the alleged
assignments of license.
4. According to our records, RMI has been the
licensee of Station WMGA(AM) since approximately September
6, 1991.6 The Commission's records do not reflect that any
agreement to sell the station was filed, pursuant to Section
73.3613(b) of the Commission's rules, which requires the
reporting of contracts, instruments or documents relating to
present or future ownership or control of the licensee, let
alone any Commission approval of a transfer of control.7
5. On April 13, 2001 and April 23, 2002, we sent
inquiry letters to both RMI and DBI to investigate whether
RMI violated Section 310(d) of the Act, and Section 73.3540
of the Commission's rules by transferring control of Station
WMGA(AM) to others, including DBI, without prior
authorization of the Commission, as well as whether it has
violated other rules. Both letters specifically
``directed'' RMI and DBI to respond. On August 28, 2001,
DBI filed its response to our first inquiry. No response
has been received from RMI to either our April 13, 2001, or
April 23, 2002, letters directing it to respond.
6. An on-site inspection on March 21, 2001, further
revealed that the station has apparently violated Section
73.1745 (unauthorized power) by failing to change to its
critical hours directional array as required by its
license;8 Section 17.50 (antenna cleaning and repainting) by
failing to repaint its tower structures after seventy-five
percent of their orange and white paint had flaked off;9
Section 17.51 (time when lights should be exhibited) by
leaving its towers completely unlit during nighttime
hours;10 Section 17.48 (notification of extinguishment or
improper functioning of lights) by failing to report the
station's tower light extinguishment to the FAA Flight
Service Station nearest Moultrie, Georgia;11 Section 17.4
(antenna structure registration) by failing to register its
station towers with this agency;12 Section 11.35 (equipment
operational readiness) by failing to maintain EAS equipment
readiness;13 Section 11.15 (EAS operating handbook) by
failing to maintain a copy of the EAS Operating Handbook at
normal duty stations;14 Section 73.1820 (station log) by
failing to keep a station log;15 Section 73.1125 (station
main studio location and staffing) by leaving the station's
main studio unattended;16 and Section 73.1870 (chief
operators) by failing to designate a chief operator at the
7. Unauthorized Transfer of Control. Section 310(d)
of the Act provides in pertinent part:
No construction permit or station license, or any
rights thereunder, shall be transferred, assigned
or disposed of in any manner, voluntarily,
directly or indirectly, or by transfer of control
of any corporation except upon application to the
Commission and upon finding by the Commission that
the public interest, convenience and necessity
will be served thereby . . . .
8. As noted above, Section 310(d) of the Act
prohibits the transfer of control of a station license, and
any rights thereunder, without prior Commission consent.
There is no exact formula by which control of a broadcast
station can be determined. In ascertaining whether a
transfer or reversion of control has occurred, the
Commission traditionally looks beyond the legal title to
whether a new entity or individual has obtained the right to
determine the basic operating policies of the station. See
WHDH, Inc., 17 FCC 2d 856 (1969), aff'd sub nom. Greater
Boston Television Corp. v. FCC, 444 F.2d 841 (D.C. Cir.
1970), cert. denied, 403 U.S. 923 (1971). Specifically, the
Commission looks to three essential areas of station
operation: programming, personnel, and finances. See,
e.g., Stereo Broadcasters, Inc., 87 FCC 2d 87 (1981), recon.
denied, 50 R.R. 2d 1346 (1982).
9. The Commission has consistently held that a
licensee's participation in a time brokerage (``TBA'') or
local marketing agreement (``LMA''), does not per se
constitute an unauthorized transfer of control or a
violation of the Act or any Commission rules or policies.
See, e.g., WGPR, Inc., 10 FCC Rcd 8141 (1995); Roy R. Russo,
Esquire, 5 FCC Rcd 7586 (MMB 1990); Joseph A. Belisle,
Esquire, 5 FCC Rcd 7585 (MMB 1990). As with any allegation
of unauthorized transfer or reversion of control, without
regard to whether a time brokerage agreement exists, we look
to whether a licensee continues to have ultimate control
over the station, including its programming, personnel, and
finances. Licensees are permitted under Section 310(d) of
the Act to delegate day-to-day operations relating to those
three areas, as long as they continue to set the policies
guiding those operations. See Southwest Texas Public
Broadcasting Council, 85 FCC 2d 713, 715 (1981); The Alabama
Educational Television Commission, 33 FCC 2d 495, 508
(1972). Thus, in making a determination, the Commission
looks not only to who executes the programming, personnel,
and finance responsibilities, but also to who establishes
the policies governing those three areas. See WGPR, Inc.,
10 FCC Rcd at 8142.
10. In its August 28, 2001, response, DBI represented
that it had planned to acquire WMGA(AM) from RMI, and that
the parties entered into an oral TBA in November 1998, so
that DBI could operate the station until an agreeable
purchase price could be determined. However, an agreement
on price was never reached. Thereafter, DBI indicates that
it was approached by RMI's mortgagor and former controlling
principal and shareholder, James Hardy, and offered the sale
of the licensee's then-delinquent note.18 DBI represents
that it completed purchase of the note via lien-satisfaction
proceedings in April 2000. DBI alleges that, at this point,
RMI ceased to communicate with it, and refused to cooperate
in filing consensual license assignment applications with
the Commission. DBI maintains that it continues to pay RMI
its contract amount under the TBA, that it now owns the
station's real estate and equipment, but ``not the
licenses.'' Finding it difficult to work with RMI's
principal, G. Chris Elder, and unable to devote sufficient
time to broadcasting, DBI indicates that it thereafter
entered into a further TBA and ``sub-lease'' with Smith,
and the Zamarrons in December 2000, contingent upon a future
asset sale arrangement. DBI represents that Smith and the
Zamarrons have operated the station since that time.
11. Section 73.3540 of the Commission's rules requires
that prior consent of the Commission must be obtained for a
voluntary assignment or transfer of control. Section
73.3541 of the Commission's rules further requires that the
Commission shall be notified in writing promptly of the
death or legal disability of an individual permittee or
licensee, a member of a partnership, or a person directly or
indirectly in control of a corporation which is a permittee
or licensee, and that, within thirty days after the
occurrence of such death or legal disability, an application
on Form 316 shall be filed requesting consent to involuntary
assignment of such permit or license or of involuntary
transfer of control of such corporation to a person or
entity legally qualified to succeed to its interests. No
such applications were filed in this case.19 Moreover, the
record indicates that RMI abdicated de facto control of the
station at some point subsequent to entering into the oral
TBA with DBI in November 1998, and that RMI's relinquishment
of control appears to have continued unabated since that
time.20 Thus, RMI's conduct raises the question of whether
it has violated Section 310(d) of the Act and the pertinent
Commission rules by transferring control of the station to
others without prior FCC consent.
12. Failure to Respond to Commission Directives. The
Bureau twice ordered RMI to provide a response to inquiry
letters and RMI twice failed to comply with the Bureau
orders. Licensees are, of course, required to comply with
Commission orders including those requiring the provision of
information. See In re Peninsula Communications, Inc., 16
FCC Rcd 16124, 16128 (2001) (subsequent history omitted);
see also In re SBC Communications, Inc., 17 FCC Rcd 7589,
7595 (2002). Without such licensee cooperation, the
Commission's ability to regulate effectively is seriously
13. In this case, RMI has not responded to the
Commission's two inquiry letters seeking to ascertain the
circumstances surrounding its operation of WMGA(AM). In
this regard, on April 13, 2001 and April 23, 2002, the staff
issued detailed letters of inquiry questioning whether RMI
violated Section 310(d) of the Act, and Section 73.3540 of
the Commission's rules by transferring control of Station
WMGA(AM) to others, including DBI, without prior
authorization of the Commission, as well as whether it has
violated other rules. The staff sent the letters of inquiry
by certified mail, return receipt requested, both to RMI and
DBI, to their addresses of record, and these specifically
``directed'' that responses be filed within thirty days. On
August 28, 2001, DBI responded to our first inquiry,
providing us with our only information about this case. RMI
did not respond to either the April 13, 2001, or April 23,
2002, queries, although postcards were returned indicating
that G. Chris Elder, Susan Fuller Elder, and Paul Sullivan
accepted delivery of the letters on behalf of RMI.21 Thus,
RMI's conduct raises the question of whether it has violated
Commission directives by persistently failing to respond to
the staff's inquiries.
14. RMI's continued failure to respond to the staff
directives raises the question whether it did so
deliberately to avoid the Commission's ascertainment of the
true facts surrounding its operation of the station and
exacerbates the question whether unauthorized control has
occurred at the station. This persistent failure to respond
to Commission inquiries, coupled with an apparent
unauthorized transfer of control, warrants designation for
hearing. See In re William E. Blizzard, Jr., t/a Macon
County Broadcasting Co., 25 FCC 2d 926 (1970) (Commission
found the licensee's repeated failure to respond to staff
inquiries dilatory and warranting of designation); In re
Revocation of the License of Shedd-Agard Broadcasting, Inc.
(KLSU), 41 FCC 2d 93 (I.D. 1973).
IV. Ordering Clauses
15. Accordingly, IT IS ORDERED THAT, pursuant to
Sections 312(a)(2), 312(a)(4) and 312(c) of the Act, 47
U.S.C. §§ 312(a)(2), 312(a)(4) and 312(c), and Section 1.91
of the Commission's rules, 47 C.F.R. § 1.91, RMI is hereby
ORDERED TO SHOW CAUSE why its license for broadcast station
WMGA(AM), Moultrie, Georgia, SHOULD NOT BE REVOKED. RMI
shall appear before an Administrative Law Judge at a time
and place to be specified in a subsequent Administrative
Law Judge order and give evidence upon the following
(a) To determine the facts and circumstances
surrounding RMI's operation of WMGA(AM),
Moultrie, Georgia, in connection with
possible violation of Section 310(d) of
the Act, and/or Sections 73.3540,
73.3615(a), 73.1745, 17.50, 17.51, 17.48,
17.4, 11.35, 11.15, 73.1820, 73.1125, and
73.1870 of the Commission's rules, as well
as orders from the Enforcement Bureau to
provide responses to letters of inquiry;22
(b) To determine, in light of the evidence
adduced pursuant to issue (a), whether RMI
has the requisite qualifications to be or
remain a Commission licensee and thus
whether its captioned broadcast license
should be revoked.
16. IT IS FURTHER ORDERED that, without regard as to
whether the hearing record warrants an order that RMI's
license to operate WMGA(AM) be revoked, it shall be
determined, pursuant to Section 503(b) of the Act, whether
an ORDER FOR FORFEITURE in an amount not to exceed
$300,000,23 shall be issued against RMI for the willful or
repeated violations of Section 310(d) of the Act, and/or
Sections 73.3540, 73.3615(a), 73.1745, 17.50, 17.51, 17.48,
17.4, 11.35, 11.15, 73.1820, 73.1125 and 73.1870 of the
Commission's rules, as well as orders from the Enforcement
Bureau to provide responses to letters of inquiry.
17. IT IS FURTHER ORDERED THAT, to avail itself of the
opportunity to be heard and to present evidence at a hearing
in this proceeding, RMI, pursuant to Section 1.91(c) of the
Commission's rules, 47 C.F.R. § 1.91(c), SHALL, within
thirty days of its receipt of this ORDER TO SHOW CAUSE AND
NOTICE OF OPPORTUNITY FOR HEARING, file with the Commission
a written appearance stating that it will appear at the
hearing and present evidence on the issues specified above.
An unexcused failure to each file a timely notice of
appearance will constitute a waiver of such hearing,
pursuant to Section 1.92(a)(1) of the Commission's rules, 47
C.F.R. § 1.92(a)(1).
18. IT IS FURTHER ORDERED THAT, if the hearing is
waived, RMI may submit written signed statements pursuant to
Section 1.92(b) of the Commission's rules, 47 C.F.R. §
1.92(b), which can deny, seek to mitigate, or justify its
conduct with respect to Station WMGA(AM). In the event that
RMI waives its right to a hearing, the Chief Administrative
Law Judge (or presiding officer if one has been designated)
shall, at the earliest practicable date, issue an order as
to each reciting the events or circumstances constituting a
waiver of hearing, terminating the hearing, and certifying
RMI's case to the Commission. See Section 1.92(a)-(c) of
the Commission's rules, 47 C.F.R. § 1.92(a)-(c).
19. IT IS FURTHER ORDERED THAT, pursuant to Section
0.111(b) of the Commission's rules, 47 C.F.R. § 0.111(b),
the Enforcement Bureau shall serve as trial staff in this
20. IT IS FURTHER ORDERED THAT, pursuant to Section
312(d) of the Act, 47 U.S.C. § 312(d), and Section 1.91(d)
of the Commission's rules, 47 C.F.R. § 1.91(d), the burden
of proceeding with the introduction of evidence and the
burden of proof shall be upon the Commission with respect to
the alleged misconduct of RMI.
21. IT IS FURTHER ORDERED THAT, pursuant to Sections
312(c) and 301 of the Act, 47 U.S.C. §§ 312(c) and 301,
copies of this ORDER TO SHOW CAUSE AND NOTICE OF OPPORTUNITY
FOR HEARING shall be sent by Certified Mail Return Receipt
Requested to Radio Moultrie, Inc., 1151 Hendricks Street,
Covington, Georgia 30209; to Mr. G. Chris Elder, 1140
Milstead, Georgia, 30012. Courtesy copies shall be sent via
regular mail to Mr. Gary A. Mitchell d/b/a Dixie
Broadcasting, Inc., 30 North Norton Avenue, Sylacauga,
Alabama, 35150; to Mr. Aubrey Smith, P.O. Box 2239, Tifton,
Georgia, 31793; and to Sam and Gracie Zamarron, P.O. Box
2239, Tifton, Georgia, 31793.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
1 47 U.S.C. §312(a); §312(c); §503(b).
2 47 U.S.C. § 310(d).
3 47 C.F.R. § 73.3540.
4 47 C.F.R. §1.80(g).
5 This information was obtained from an FCC field agent, who
interviewed Mr. Aubrey Smith. Mr. Smith represented that he
has been attempting to purchase the station from DBI's
principal, Mr. Gary Mitchell. Mr. Smith further represents
that DBI acquired the station through a lien-satisfaction
proceeding conducted several years ago.
6 This reflects the date that the Commission granted the
transfer of control of the station's licensee to Dr. James
Charles Elder, Sr., G. Chris Elder, and Douglas M. Sutton,
Jr. from James D. Hardy and Douglas M. Sutton, Jr. See File
No. BTC- 910403EB. That application was filed to seek
approval of a prior transaction that was found to have
constituted an unauthorized transfer of control. See In re
Liability of Radio Moultrie, Inc. (MMB 1992), reduced on
reconsideration, Memorandum Opinion and Order, 8 FCC Rcd
4266 (MMB 1993) (original forfeiture amount of $10,000
reduced to $1,000 based on finding of financial hardship).
747 C.F.R. §73.3613(b).
8 47 C.F.R. §73.1745.
9 47 C.F.R. §17.50.
10 47 C.F.R. §17.51.
11 47 C.F.R. §17.48.
12 47 C.F.R. §17.4.
13 47 C.F.R. §11.35.
14 47 C.F.R. §11.15.
15 47 C.F.R. §73.1820.
16 47 C.F.R. §73.1125.
17 47 C.F.R. §73.1870.
18 According to DBI, James Hardy held a security agreement
and promissory note concerning the station's physical
assets. See also File No. BTC-920730EA.
19As noted above, DBI claims to have acquired the station's
physical assets through purchase of the Hardy note in April
2000, and contends that RMI would not cooperate in seeking
consensual transfer of the license. In this case, it
appears that DBI may seek FCC approval by filing an
involuntary transfer of control application (FCC Form 316)
and conforming substantial transfer of control application
(Form 315). To date, DBI has not done so.
20 RMI appears to have relinquished de jure control in April
2000, when DBI acquired the station's assets through lien-
21 The staff's letter of inquiry to RMI was sent by
certified mail both to its official business address
according to Commission records, 1151 Hendricks Street,
Covington, GA 30209, and to Mr. G. Chris Elder, RMI's
corporate principal, at his personal address, 1140 Milstead,
GA 30012. Signed receipts for both letters were returned to
the FCC by postcard.
22 In addition to the unauthorized transfer of control and
failure to respond to Commission inquiry concerns that lie
at the heart of our decision to initiate a revocation
proceeding, we have included apparent violations from the
March 21, 2001, inspection so the Administrative Law Judge
may consider such evidence as part of the record.
23 47 C.F.R. § 1.80. The Commission recently amended its
rules to increase the maximum penalties to account for
inflation since the last adjustment of the penalty rates.
The new rates apply to violations that occur or continue
after November 13, 2000. See Order, ``In the Matter of
Amendment of Section 1.80(b) of the Commission's Rules and
Adjustment of Forfeiture Maxima to Reflect Inflation,'' 15
FCC Rcd 18221 (2000).