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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 OF REVOCATION
Adopted: November 3, 2003 Released:
November 4, 2003
By the Chief, Enforcement Bureau:
1. By this Order, acting pursuant to authority
delegated to the Enforcement Bureau under Section
0.111(a)(16) of the Commission's rules,1 we revoke the
above-captioned broadcast license held by Radio Moultrie,
Inc. (``RMI'') for RMI's having violated Section 310(d) of
the Communications Act of 1934, as amended (``the Act''),2
and Section 73.3540 of the Commission's rules,3 and for its
having failed to follow the Commission's directives. We
conclude, based upon the evidence of its conduct, that RMI
lacks the basic requisite character qualifications to be and
remain a Commission licensee.
2. The Commission designated this case for hearing.4
The OSC specified the following issues:
(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;
(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.5
3. The OSC also ordered the Presiding Judge,
notwithstanding the resolution of the designated issues, to
determine whether the Commission should impose a monetary
forfeiture against RMI for having willfully and repeatedly
violated numerous statutory and regulatory provisions
administered by the Commission.6 In accordance with Section
1.80 of the Commission's rules,7 the OSC set the maximum
forfeiture amount at $300,000.8
4. The OSC ordered RMI, pursuant to Section 1.91(c)
of the Commission's rules,9 within thirty days of its
receipt of the OSC (i.e., by December 26, 2002), to file a
written notice of appearance in order to avail itself of the
opportunity to be heard.10 The OSC admonished RMI that, if
it failed to so file a written notice of appearance, its
right to a hearing on the matter of its captioned broadcast
license would be deemed waived, and the proceeding
thereafter would be resolved in accordance with Section 1.92
(c) of the Commission's rules.11
5. The Presiding Judge determined that RMI had
received a copy of the OSC but had failed to file a written
(or any other) notice of appearance seeking to avail itself
of the opportunity to be heard.12 Accordingly, the
Presiding Judge concluded that RMI had waived its right to a
hearing, and he terminated the proceeding and certified the
case to the Commission for disposition13 in accordance with
Section 1.92(c) of the Commission's rules.14 The Commission
has delegated authority to the Enforcement Bureau for such
revocation proceedings, terminated on the basis of waiver,
pursuant to Section 0.111(a)(16) of the Commission's
6. RMI is the licensee of Station WMGA(AM)16 and has
been controlled by the Elder family since approximately
September 6, 1991.17 On March 21, 2001, a Commission field
agent performed an on-site inspection of the station.18 The
agent found no presence of the station's licensee, RMI, and
evidence that strongly suggested that, after the station's
last license renewal in 1996, RMI had abdicated control of
the station, first to Dixie Broadcasting, Inc. (``DBI''),
and then to Aubrey Smith (``Smith'') and Sam and Gracie
Zamarron (the ``Zamarrons'').19 The Commission's records,
however, do not reflect that RMI filed any agreement to sell
the station to any of those entities or individuals or any
application for Commission approval of such an assignment or
transfer of control.20
7. On April 13, 200121 and April 23, 2002,22 the
Commission's staff sent separate sets of inquiry letters to
RMI and DBI to investigate whether RMI had 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 had violated other
rules.23 Both letters explicitly ``directed'' RMI and DBI
to respond.24 On August 28, 2001, DBI filed its response to
the staff's initial inquiry letter.25 RMI did not respond
to either of the staff's 2001 LOI or 2002 LOI.26
8. As a result of the March 21, 2001, on-site
inspection, an FCC field agent discovered that RMI had: (1)
failed to change the station to its critical hours
directional array as required by its license; (2) failed to
repaint its tower structures after seventy-five percent of
their orange and white paint had flaked off; (3) left its
towers completely unlit during nighttime hours; (4) failed
to report the station's tower light extinguishment to the
Federal Aviation Administration (``FAA'') Flight Service
Station nearest Moultrie, Georgia; (5) failed to register
its station towers with this agency; (6) failed to maintain
EAS equipment readiness; (7) failed to maintain a copy of
the EAS Operating Handbook at normal duty stations; (8)
failed to keep a station log; (9) left the station's main
studio unattended; and (10) failed to designate a chief
operator at the station.
A. RMI Has Unlawfully Relinquished Control of Station
9. Section 310(d) of the Act provides, in pertinent
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 . . . .
Thus, Section 310(d) prohibits the transfer of control of a
station licensee without prior Commission consent. In
ascertaining whether a licensee has transferred control, the
Commission looks beyond the legal title to whether a new
entity or individual possesses the right to determine the
basic operating policies of the station.27 Specifically,
the Commission looks to three essential areas of station
operation: programming, personnel, and finances.28
10. A licensee's participation in a TBA or local
marketing agreement does not per se constitute an
unauthorized transfer of control or a violation of the Act
or any Commission rules or policies.29 Whether or not a
TBA exists, in evaluating an allegation of an unauthorized
transfer of control, we look to whether the licensee
continues to have ultimate control over its station,
including its programming, personnel, and finances. A
licensee is permitted under Section 310(d) to delegate day-
to-day operations relating to those three areas, as long as
it continues to establish the policies guiding those
operations.30 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.31
11. Section 73.3540 of the Commission's rules32
requires that a licensee must obtain prior consent of the
Commission to a voluntary assignment of license or transfer
of control of the licensee by filing either on FCC Form 314,
if an assignment is contemplated, or on FCC Form 315, for a
transfer of control. Here, no such application was filed.33
Thus, any transfer of control of RMI has not been approved.
12. We find further that RMI abdicated de facto
control of the station to DBI 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.34 Moreover, we find
that RMI's oral TBA with DBI, and RMI's subsequent conduct,
was not consistent with the limited delegations of control
allowed under Commission precedent concerning such
arrangements discussed above, and instead constituted a
wholesale abdication of station control. Thus, we conclude
that RMI violated Section 310(d) of the Act and the
pertinent Commission rules by transferring control of the
station without prior FCC consent.
B. RMI Has Repeatedly Failed to Respond to Commission
13. It is well settled that licensees must comply with
Commission orders, including those requiring the provision
of information.35 Without such licensee cooperation, the
Commission's ability to regulate effectively is seriously
undermined. In its 2001 LOI and 2002 LOI, the staff made
detailed inquiries questioning whether RMI had violated
Section 310(d) of the Act,36 and Section 73.3540 of the
Commission's rules37 by transferring control of Station
WMGA(AM) to others, including DBI, without prior
authorization of the Commission, as well as whether it had
violated other rules. The staff sent the 2001 LOI and 2002
LOI by certified mail, return receipt requested, to RMI and
DBI, at their respective addresses of record, and
specifically ``directed'' that the companies file their
responses within thirty days. On August 28, 2001, DBI
responded to the 2001 LOI, the only occasion on which it
provided the Commission with information about this case.
RMI did not respond to either the 2001 LOI or 2002 LOI,
although signed United States Postal Service certified-mail
postcards were returned, establishing that G. Chris Elder,
Susan Fuller Elder, and Paul Sullivan signed for and
accepted delivery of both letters on behalf of RMI.38 Thus,
we conclude that RMI violated Commission directives by
repeatedly failing to respond to the staff's inquiries.
C. RMI Has Violated Numerous Commission Rules In Its
Operation of Station WMGA(AM)
14. The FCC's March 21, 2001, on-site inspection
established that the station also violated numerous
Commission rules, including: (1) Section 73.1745 of the
Commission's rules39 (unauthorized power) by failing to
change to its critical hours directional array as required
by its license; (2) Section 17.50 of the Commission' rules40
(antenna cleaning and repainting) by failing to repaint its
tower structures after seventy-five percent of their orange
and white paint had flaked off; (3) Section 17.51 of the
Commission's rules41 (time when lights should be exhibited)
by leaving its towers completely unlit during nighttime
hours; (4) Section 17.48 of the Commission's rules42
(notification of extinguishment or improper functioning of
lights) by failing to report the station's tower light
extinguishment to the Federal Aviation Administration
(``FAA'') Flight Service Station nearest Moultrie, Georgia;
(5) Section 17.4 of the Commission's rules43 (antenna
structure registration) by failing to register its station
towers with this agency; (6) Section 11.35 of the
Commission's rules44 (equipment operational readiness) by
failing to maintain EAS equipment readiness; (7) Section
11.15 of the Commission's rules45 (EAS operating handbook)
by failing to maintain a copy of the EAS Operating Handbook
at normal duty stations; (8) Section 73.1820 of the
Commission's rules46 (station log) by failing to keep a
station log; (9) Section 73.1125 of the Commission's rules47
(station main studio location and staffing) by leaving the
station's main studio unattended; (10) and Section 73.1870
of the Commission's rules48 (chief operators) by failing to
designate a chief operator at the station.
15. Section 17.50 of the Commission's rules requires
that antenna structures requiring painting shall be cleaned
or repainted as often as necessary to maintain good
visibility.49 Section 73.51 of the Commission's rules
further requires that all red obstruction lighting shall be
exhibited from sunset to sunrise.50 The Commission has
statutory authority affirmatively to require repainting
and/or illumination of radio towers in cases where it finds
that there is a reasonable possibility that the towers may
constitute a menace to air navigation.51 During the March
2001 inspection, the Commission field agent discovered that
RMI had left the structures completely unlit during
nighttime hours.52 He also found that approximately
seventy-five percent of the orange and white paint of the
station's broadcast tower structures had flaked off.53
16. Section 17.48(a) of the Commission's rules further
requires that owners of antenna structures that have been
assigned lighting specifications shall report their
malfunctioning or extinguishment of any top steady burning
or flashing obstruction light that is not corrected within
thirty minutes to the nearest Flight Service Station of the
FAA.54 Furthermore, Section 17.4(a)(2) of the Commission's
rules requires that the owner of any existing structure that
has been assigned painting or lighting requirements prior to
July 1, 1996, as here, must register its structure with the
FCC prior to July 1, 1998.55 In this case, further
inspection revealed that no notice had been provided the FAA
Flight Service Station nearest Moultrie, Georgia, for the
station's light extinguishment,56 as required by Section
17.48(a) of the Commission's rules,57 and that the station's
towers have not been registered with this agency, as
required by Section 17.4(a)(2) of the Commission's rules.58
In view of the foregoing, RMI has violated Sections 17.50,
17.51, 17.48(a), and 17.4(a)(2) of the Commission's rules.59
V. License Revocation
17. RMI's failure to respond to two staff directives
impeded the Commission's orderly ascertainment of the facts
surrounding the operation of the station and exacerbates the
unauthorized transfer of control of RMI by protracting the
investigation and thus the licensee's continuing unlawful
abdication of station control. RMI's total failure to
respond to Commission inquiries, coupled with its
unauthorized transfer of control and multiple other rule
violations, warrants the strongest possible Commission
18. The Commission's Broadcast Character Policy
Statement61 provides that violations of the Communications
Act or of the Commission's rules are matters predictive of
licensee behavior and are directly relevant to the
functioning of the Commission's regulatory mission. The
violations described above mandate the conclusion that RMI
does not possess the requisite qualifications to be or
remain a Commission licensee. For the reasons discussed
above, RMI has demonstrated that its conduct as a licensee
before the Commission is unreliable. Based on the
foregoing, we conclude, as a matter of law, that RMI's
broadcast license for WMGA(AM) should be revoked. In light
of our decision to revoke RMI's license, we do not impose a
forfeiture. We believe license revocation is a sufficient
sanction in this context.
VI. Ordering Clauses
19. Accordingly, IT IS ORDERED, pursuant to Section
312 of the Communications Act of 1934, as amended,62 and
Sections 1.92(d) and 0.111(a)(16) of the Commission's
rules,63 that the captioned broadcast license held by RMI IS
REVOKED, effective the fortieth (40th) day after release of
this Order, unless RMI files a petition for reconsideration
within thirty (30) days of the release of this Order, in
which case the effective date will be suspended pending
further Order of the Commission.
20. IT IS FURTHER ORDERED that copies of this ORDER OF
REVOCATION AND FORFEITURE 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, Conyers, 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
David H. Solomon
Chief, Enforcement Bureau
1 47 C.F.R. § 0.111(a)(16).
2 47 U.S.C. § 310(d).
3 47 C.F.R. § 73.3540.
4 Order to Show Cause and Notice of Opportunity for Hearing,
17 FCC Rcd 24304 (2002) (the ``OSC''), released November 26,
5 OSC at ¶ 15.
6 OSC at ¶ 16.
7 47 C.F.R. § 1.80.
9 47 C.F.R. § 1.91(c).
10 OSC at ¶ 17.
11 47 C.F.R. § 1.92(c). Section 1.92(c) provides that,
whenever a hearing is waived, the presiding administrative
law judge shall, at the earliest practicable date, issue an
order reciting the events or circumstances constituting a
waiver of hearing, terminating the hearing proceeding, and
certifying the case to the Commission.
12 Memorandum Opinion and Order, FCC 03M-06, released
January 27, 2003 (``MO&O'').
13 In his additional Memorandum Opinion and Order, FCC 03M-
05, released January 27, 2003, the Presiding Judge granted
Douglas M. Sutton, Jr.'s Petition to Intervene in this
proceeding for the limited purpose of correcting Commission
records to reflect that Sutton's connection with RMI ceased
in September 1992.
14 47 C.F.R. § 1.92(c).
15 47 C.F.R. § 0.111(a)(16).
16 In addition to not filing a notice of appearance, RMI
failed to appear at the hearing or file any statement in
response to the OSC. See MO&O. Thus, the facts recited in
the OSC are uncontested. Based upon that information and
that contained in other pertinent Commission records, we
make the following specific factual findings.
17 See OSC at ¶ 4. This is the date on which the
Commission approved the transfer of control of RMI, 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. The
parties filed that application to seek approval of a prior
transaction that the Mass Media Bureau had 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 upon finding of financial hardship).
The Mass Media Bureau approved a subsequent transfer of
control of RMI on September 29, 1992, whereby Sutton
relinquished his interest in the licensee to Dr. James
Charles Elder, Sr., and G. Chris Elder. See File No. BTC-
18 OSC at ¶ 6.
20 OSC at ¶ 4.
21 Letter from the Chief, Investigations and Hearings
Division, Enforcement Bureau, to RMI, dated April 13, 2001;
Letter from the Chief, Investigations and Hearings Division,
Enforcement Bureau, to DBI, dated April 13, 2001
(collectively, the ``2001 LOIs'').
22 Letter from the Chief, Investigations and Hearings
Division, Enforcement Bureau, to RMI, dated April 23, 2002;
Letter from the Chief, Investigations and Hearings Division,
Enforcement Bureau, to DBI, dated April 23, 2002
(collectively, the ``2002 LOIs'').
23 OSC at ¶ 5.
25 See id.; Letter from DBI to the Chief, Investigations and
Hearings Division, Enforcement Bureau, dated August 28,
2001. Therein, DBI represented that it had planned to
acquire Station WMGA(AM) from RMI, and that the parties had
entered into an oral time brokerage agreement (``TBA'') in
November 1998, so that DBI could operate the station until
the parties could agree on a price. However, the parties
never reached agreement. DBI indicated that RMI's mortgagor
and former controlling principal and shareholder, James
Hardy, thereafter offered to sell to DBI the licensee's
then-delinquent note. DBI represented that it completed
purchase of the note via lien-satisfaction proceedings in
April 2000. DBI stated that, at this point, RMI ceased to
communicate with it, and refused to cooperate in filing
consensual license assignment applications with the
Commission. DBI maintained 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 indicated 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 represented that Smith and the
Zamarrons have operated the station since that time.
26 OSC at ¶ 5.
27 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).
28 See, e.g., Stereo Broadcasters, Inc., 87 FCC 2d 87
(1981), recon. denied, 50 R.R. 2d 1346 (1982).
29 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).
30 See Southwest Texas Public Broadcasting Council, 85 FCC
2d 713, 715 (1981); The Alabama Educational Television
Commission, 33 FCC 2d 495, 508 (1972).
31 See WGPR, Inc., 10 FCC Rcd at 8142.
32 47 C.F.R. § 73.3540.
33As 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 assignment of the license. OSC at ¶ 3.
34 RMI relinquished whatever control of the station that it
may have had in April 2000, when DBI acquired the station's
assets through lien-satisfaction proceedings. OSC at ¶ 3.
35 In re SBC Communications, Inc., 17 FCC Rcd 7589, 7595
(2002) ($100,000 forfeiture imposed for failure to comply
with Commission order to provide sworn statement verifying
truth and accuracy of responses to Enforcement Bureau letter
36 47 U.S.C. § 310(d).
37 47 C.F.R. § 73.3540.
38 OSC at ¶ 13. The staff's 2001 LOI and 2002 LOI 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, Conyers, GA 30012.
39 47 C.F.R. § 73.1745.
40 47 C.F.R. § 17.50.
41 47 C.F.R. § 17.51.
42 47 C.F.R. § 17.48.
43 47 C.F.R. § 17.4.
44 47 C.F.R. § 11.35.
45 47 C.F.R. § 11.15.
46 47 C.F.R. § 73.1820.
47 47 C.F.R. § 73.1125.
48 47 C.F.R. § 73.1870.
49 See 47 C.F.R. § 17.50.
50 See 47 C.F.R. § 17.51.
51 47 U.S.C. § 303(q); Report and Order Streamlining the
Antenna Structure Clearance Procedure and Revision of the
Rules Concerning Construction, Marking and Lighting of
Antenna Structures, 11 FCC Rcd 4272 (1995).
52OSC at ¶ 6.
54 See 47 C.F.R. § 17.48(a).
55 See 47 C.F.R. § 17.4(a)(2). Due to the height of its
four-tower array, Station WMGA(AM)'s current license
contains painting and lighting requirements imposed
following the recommendation of FAA Study 00S04723.
56 See OSC at ¶ 6.
57 47 C.F.R. § 17.48(a).
58 47 C.F.R. § 17.4(a)(2).
59 See 47 C.F.R. §§ 17.50, 17.51, 17.48(a), and 17.4(a)(2).
60 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
was dilatory, warranting license revocation); In re
Revocation of the License of Shedd-Agard Broadcasting, Inc.
(KLSU), 41 FCC 2d 93 (I.D. 1973).
61 Policy Regarding Character Qualifications In Broadcast
Licensing, 102 FCC 2d 1179 (1986), on recon., 1 FCC Rcd 421
(1986), appeal dismissed sub nom. National Association for
Better Broadcasting v. FCC, No. 86-1179 (D.C. Cir. 1987).
See also Policy Regarding Character Qualifications in
Broadcast Licensing, 5 FCC Rcd 3252 (1990), on recon., 6 FCC
Rcd 3448 (1991), modified, 7 FCC Rcd 6564 (1992).
62 47 U.S.C. § 312.
63 47 C.F.R. §§ 1.92(d) and 0.111(a)(16).