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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
COMMERCIAL RADIO SERVICE, INC. )
Licensee of Private Land Mobile Stations )
WNDS861, Reelsville, Indiana; WNIL729,
Paxton, Indiana; WPCJ772, West Terre )
Haute, Indiana; and WPNU312 Greencastle, EB DOCKET NO. 06-168
Indiana/West Terre Haute, Indiana )
File No. EB-06-IH-1362
Licensee of Commercial Land Mobile )
Station WNGE348, West Terre Haute, NAL Acct. No.
Indiana ) 200632080166
TIMOTHY M. DOTY )
Licensee of General Radiotelephone )
Operator License PG1814366; and Amateur
Radio Operator and Licensee of Amateur )
Radio Station WB9MDC, West Terre Haute,
ORDER TO SHOW CAUSE
Adopted: August 28, 2006 Released: August 30, 2006
By the Commission:
1. By this Order to Show Cause, and pursuant to Sections 312(a) and (c)
of the Communications Act of 1934, as amended ("Act"), the Federal
Communications Commission ("Commission"), hereby orders Commercial
Radio Service, Inc. ("CRS") and Timothy M. Doty to show cause in a
hearing proceeding before an administrative law judge why their
respective above-captioned authorizations should not be revoked. The
information before the Commission raises substantial and material
questions as to their basic qualifications to be and remain Commission
licensees because of the felony convictions of Mr. Doty and apparent
misrepresentations and/or lack of candor by CRS regarding such
convictions in applications filed with the Commission. This proceeding
will also determine whether forfeitures should be imposed against CRS
for willfully and repeatedly violating Commission rules relating to
truthful and accurate statements to the Commission and for failing to
timely amend pending Commission applications to disclose Mr. Doty's
2. In late 2005, the Commission received information suggesting that CRS
may not have properly disclosed information about felony convictions
of Timothy M. Doty in applications filed with the Commission.
Thereafter, the Enforcement Bureau sent a letter of inquiry ("LOI") to
CRS seeking information about CRS' operations, Commission licenses,
previous filings, and whether any principal, officer, or director of
CRS had ever been convicted of a felony.
3. According to its LOI response, CRS is engaged in the sales and service
of two-way radio communications equipment. Since January 1, 1990, CRS
has held authorizations for the above-captioned licensed radio
systems. Over that same period, Timothy M. Doty has, at all relevant
times, been a director and 50% shareholder of CRS. Mr. Doty also was a
CRS officer from at least January 1, 1990 through May 9, 2006. Mr.
Doty holds a General Radiotelephone Operator License, as well as an
Amateur Radio License, both of which are listed in the above caption.
4. Publicly available records reveal that, on May 31, 1991, Mr. Doty was
found guilty in the U.S. District Court for the Southern District of
Indiana, Terre Haute Division, of violating 18 U.S.C.
S 2512(1)(b), involving the manufacture and possession of unauthorized
satellite TV signal descrambling devices, a felony. He was sentenced
to three years probation and a $2,000 fine.
5. In addition, publicly available records indicate that, on November 15,
2001, Mr. Doty was found guilty in State of Indiana Vigo Superior
Court, Division 5, of felony possession of a controlled substance. He
was sentenced to 18 months in the Indiana Department of Corrections,
which sentence was suspended except for 30 days.
6. Subsequent to the first of Mr. Doty's felony convictions, CRS filed at
least two license applications with the Commission in which CRS
answered "No" to the question inquiring whether the applicant or any
party directly or indirectly controlling the applicant had ever been
convicted of a felony in state or federal court. As noted above, at
the time of these filings, Mr. Doty was an officer, director, and 50%
shareholder of CRS.
7. Subsequent to the second of Mr. Doty's felony convictions, CRS filed
at least five license renewal-only applications. Renewal-only
applications are streamlined applications for licensees that seek to
renew their authorizations and do not need to update any information
previously provided relating to, among other things, basic qualifying
information, including felony convictions. If updates are required,
renewal applicants must indicate as much and file renewal/modification
applications instead. Under the Commission's Universal Licensing
System, renewal-only applications do not require licensees to provide
information relating to felony convictions. Renewal/modification
applications, by contrast, do require licensees to provide information
about felony convictions. By filing renewal-only applications rather
than renewal/modification applications, CRS failed to provide
information to the Commission about Mr. Doty's felony convictions that
it was otherwise required to disclose.
8. In each of the applications discussed above, CRS certified that all of
the statements therein were true, complete, correct, and made in good
9. Section 312(a)(2) of the Act provides that the Commission may revoke
any license or construction permit "because of conditions coming to
the attention of the Commission which would warrant it in refusing to
grant a license or permit on an original application." The character
of the applicant is among those factors that the Commission considers
in its review of applications to determine whether the applicant has
the requisite qualifications to be a Commission licensee.
10. Felony Convictions. In assessing character qualifications, the
Commission considers, as relevant, "evidence of any conviction for
misconduct constituting a felony." The Commission has found that
"[b]ecause all felonies are serious crimes, any conviction provides an
indication of an applicant's or licensee's propensity to obey the law"
and to conform to provisions of both the Act and the agency's rules
and policies. Thus, felony convictions raise potential questions
regarding a licensee's qualifications.
11. Timothy M. Doty, who at all relevant times has been a director and 50%
shareholder of CRS, has twice been convicted of felonies in state and
federal courts. Mr. Doty's felony convictions raise serious questions
as to whether he possesses the requisite character qualifications to
be and remain a Commission licensee. Similarly, because of the extent
of his ownership and control of CRS, Mr. Doty's felony convictions
also raise serious questions about the character qualifications of CRS
to be and remain a Commission license. Consequently, we will designate
appropriate issues for hearing to determine the effect, if any, of Mr.
Doty's felony convictions on his basic character qualifications as
well as those of CRS.
12. False Certification/Misrepresentation/Lack of Candor. The courts have
recognized that "[t]he FCC relies heavily on the honesty and probity
of its licensees in a regulatory system that is largely
self-policing." Misrepresentation and lack of candor raise immediate
concerns as to whether a licensee will be truthful in future dealings
with the Commission. Misrepresentation is a false statement of fact
made with intent to deceive. Lack of candor is concealment, evasion,
or other failure to be fully informative, accompanied by intent to
deceive. Intent can be shown in many ways. If a licensee knowingly
makes a false statement, that is sufficient proof of intent to
deceive. Intent to deceive can also be inferred when one has a clear
motive to deceive. Moreover, intent can be found when the surrounding
circumstances clearly show the existence of intent to deceive, even if
there is no direct evidence of a motive. The Commission may revoke the
license of a licensee who deliberately makes misrepresentations or
lacks candor in dealing with the agency because he or she lacks the
basic character qualifications to hold the license.
13. CRS' failure to disclose the felony conviction of one of its
principals raises a substantial and material question of fact as to
whether CRS made false certifications, misrepresented facts to the
Commission, and/or demonstrated a lack of candor. The mere existence
of an inaccuracy in any application, without any indication that there
was intentional deception, is insufficient to justify consideration of
a misrepresentation issue in an evidentiary hearing. In this case,
however, CRS had a motive for not revealing Timothy M. Doty's felony
convictions to the Commission -- to conceal information that would
potentially disqualify both CRS and Mr. Doty as Commission licensees.
14. CRS should have revealed the existence of Mr. Doty's felony
convictions in applications that it filed with the Commission.
Instead, CRS affirmatively represented otherwise in at least two
license applications, and failed to disclose the convictions in at
least five renewal applications. In each application, CRS also
certified that all of the statements therein were true, complete,
correct, and made in good faith even though its filings appear to have
satisfied none of these standards. Under the circumstances presented
here, we determine that a hearing is warranted under Section 312 of
the Act to determine whether CRS and Timothy M. Doty's licenses should
be revoked because they lack the requisite character to be or remain
IV. ORDERING CLAUSES
15. ACCORDINGLY, IT IS ORDERED that, pursuant to Sections 312(a) and (c)
of the Communications Act of 1934, as amended, and authority delegated
pursuant to Sections 0.111, 0.311, and 1.91(a) of the Commission's
rules, CRS and Timothy M. Doty are hereby ORDERED TO SHOW CAUSE why
their respective captioned authorizations SHOULD NOT BE REVOKED. CRS,
by an officer representative, and Mr. Doty shall appear before an
administrative law judge at a time and place to be specified in a
subsequent order and provide evidence upon the following issues:
1. to determine the effect of Mr. Doty's felony convictions on his
qualifications to be and to remain a Commission licensee;
2. to determine the effect of Mr. Doty's felony convictions on the
qualifications of CRS to be and to remain a Commission licensee;
3. to determine whether CRS made misrepresentations and/or lacked candor
and/or violated Section 1.17 of the Commission's rules regarding the
felony convictions of Mr. Doty in any applications filed with the
4. to determine whether CRS failed to timely amend Commission
applications to disclose Mr. Doty's felony convictions, in violation
of Section 1.65 of the Commission's rules;
5. to determine whether CRS made false certifications in any applications
filed with the Commission;
6. to determine, in light of the evidence adduced pursuant to the
foregoing issues, whether Mr. Doty is qualified to be and to remain a
7. to determine, in light of the evidence adduced pursuant to the
foregoing issues, whether CRS is qualified to be and to remain a
8. to determine, in light of the evidence adduced pursuant to the
foregoing issues, whether the above-captioned licenses of Mr. Doty
should be revoked;
9. to determine, in light of the evidence adduced pursuant to the
foregoing issues (1) through (7), whether the above-captioned licenses
of CRS should be revoked.
16. IT IS FURTHER ORDERED that, pursuant to Section 312(c) of the
Communications Act of 1934, as amended, and Section 1.91(c) of the
Commission's rules, to avail the parties of the opportunity to be
heard and the right to present evidence in the hearing in this
proceeding, an officer representative of CRS and Timothy M. Doty, in
person or by their respective attorneys, SHALL FILE with the
Commission, within 30 calendar days of the release of this Order to
Show Cause, a written appearance in triplicate stating that they will
appear on the date fixed for hearing and present evidence on the
issues specified herein.
17. IT IS FURTHER ORDERED that, pursuant to Section 1.92(c) of the
Commission's rules, if either CRS or Timothy M. Doty or both fails to
timely file a written appearance as specified in paragraph 14, above,
or has not filed a petition to accept, for good cause shown, a written
appearance beyond the expiration of the 30-day period, the right to a
hearing as to CRS and/or Mr. Doty SHALL BE DEEMED TO BE WAIVED. Where
a hearing is waived, the presiding administrative law judge shall, at
the earliest practicable date, issue an order terminating the hearing
proceeding and certifying the case to the Commission.
18. IT IS FURTHER ORDERED that, irrespective of the resolution of the
foregoing issues, it SHALL BE DETERMINED, pursuant to Section
503(b)(1) of the Act, whether an ORDER OF FORFEITURE in the amount not
to exceed $11,000 for each violation or each day of a continuing
violation, up to a total of $97,500 for any single act or failure to
act should be issued against CRS for having failed to disclose the
felony convictions of Timothy M. Doty in one or more of its
applications, in willful and/or repeated violation of Sections 1.17
and 1.65 of the Commission's rules. The forfeiture, if any, shall be
adjusted based upon consideration of the factors enumerated in Section
503(b)(2), such as "the nature, circumstances, extent and gravity of
the violations and, with respect to the violator, the degree of
culpability, any history of prior offenses, ability to pay, and such
other matters as justice may require."
19. IT IS FURTHER ORDERED that the Chief, Enforcement Bureau, SHALL BE
MADE a party to this proceeding without the need to file a notice of
20. IT IS FURTHER ORDERED that, pursuant to Section 312(d) of the Act, and
Section 1.91(d) of the Commission's rules, the burden of proceeding
with the introduction of evidence and the burden of proof with respect
to all of the issues specified above SHALL BE on the Enforcement
21. IT IS FURTHER ORDERED that a copy of each document filed in this
proceeding subsequent to the date of adoption of this Order to Show
Cause SHALL BE SERVED on Gary Schonman, Special Counsel,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, S.W., Room 4-C237,
Washington, D.C. 20554.
22. IT IS FURTHER ORDERED that, copies of this Order to Show Cause SHALL
BE SENT, by Certified Mail, Return Receipt Requested, to CRS and to
Timothy M. Doty at 915 S. Prospect Street, Terre Haute, Indiana 47802,
and to counsel for CRS: Russell D. Lukas, Esquire, Lukas, Nace,
Gutierrez & Sachs, 1650 Tysons Boulevard, Suite 1500, McLean, Virginia
23. IT IS FURTHER ORDERED that a copy of this Order to Show Cause or a
summary thereof SHALL BE PUBLISHED in the Federal Register.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch Secretary
47 U.S.C. SS 312(a) and (c).
See Letter from William H. Davenport, Chief, Investigations and Hearings
Division, Enforcement Bureau, Federal Communications Commission, to
Commercial Radio Service, Inc., dated May 23, 2006.
See Letter from Russell D. Lukas, Esquire, Lukas, Nace, Gutierrez & Sachs,
counsel for Commercial Radio Service, Inc., to William H. Davenport,
Chief, Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, dated June 22, 2006 ("LOI Response"). In
addition to its LOI Response, CRS filed a request seeking confidential
treatment of certain information provided with the response. We do not
rule on CRS' request at this time because it is unnecessary to do so for
purposes of this Order. Consistent with the request, however, this Order
relies on information in the public domain and the portions of CRS' LOI
Response for which it did not seek confidential treatment.
See, e.g., Application for Mobile Radio Service Authorization, FCC Form
600 (For New Station), File No. D122642, filed March 1, 1999; FCC
Application for Wireless Telecommunications Bureau Radio Service
Authorization, FCC Form 601 (For Modifications of Station WNGE348), File
No. 253365, filed Sept. 29, 2000.
See, e.g., FCC Application for Wireless Telecommunications Bureau Radio
Service Authorization, FCC Form 601 (For Renewal-Only of Station WNIL729),
File No. 1375615, filed July 8, 2003; FCC Application for Wireless
Telecommunications Bureau Radio Service Authorization, FCC Form 601 (For
Renewal-Only of Station WPCJ772), File No. 1524776, filed Nov. 24, 2003;
FCC Application for Wireless Telecommunications Bureau Radio Service
Authorization, FCC Form 601 (For Renewal-Only of Station WPNU312), File
No. 1740183, filed May 18, 2004; FCC Application for Wireless
Telecommunications Bureau Radio Service Authorization, FCC Form 601 (For
Renewal-Only of Station WNGE348), File No. 2067489, filed March 4, 2005;
and FCC Application for Wireless Telecommunications Bureau Radio Service
Authorization, FCC Form 601 (For Renewal-Only of Station WNDS861), File
No. 2316369, filed September 15, 2005.
See FCC Form 601 - Instructions, p. 17.
47 U.S.C. S 312(a)(2).
See Policy Regarding Character Qualifications in Broadcast Licensing,
Amendment of Part 1, the Rules of Practice and Procedure, Relating to
Written Responses to Commission Inquiries and the Making of
Misrepresentation to the Commission by Applicants, Permittees, and
Licensees, and the Reporting of Information Regarding Character
Qualifications, Policy Statement and Order, 5 FCC Rcd 3252, 3252 (1990)
("1990 Modifications of Character Policy Statement"), recon. on other
grounds, 6 FCC Rcd 3448 (1991), modified on other grounds, 7 FCC Rcd 6564
(1992). The Commission has consistently applied these broadcast character
standards to applicants and licensees in the other radio services. See,
e.g., Schoenbohm v. FCC, 204 F.3d 243, 246-49 (D.C. Cir. 2000), cert.
denied, 531 U.S. 968 (2000) (affirming the Commission's denial of an
amateur radio operator's license renewal application based on the
licensee's felony conviction for computer fraud, as well as its lack of
candor regarding such conviction); Ronald Brasher et al., 19 FCC Rcd 18462
(2004) (affirming Administrative Law Judge's Initial Decision revoking,
denying, or dismissing licensees' private land mobile radio licenses and
applications based on the licensees' misrepresentations and lack of
candor, unauthorized transfers of control, and abuse of process).
1990 Modifications of Character Policy Statement, 5 FCC Rcd at 3252 P 4.
See, e.g., Contemporary Media, Inc. v. FCC, 214 F.3d 187, 193 (D.C. Cir.
2000) (Commission properly considered any felony conviction of broadcast
licensee's principal as a relevant factor in evaluating propensity of
licensee to obey the law).
1990 Modifications of Character Policy Statement, 5 FCC Rcd at 3252 P 5.
See also 47 U.S.C. S 312(a)(1) (authorizing license revocation "for false
statements knowingly made either in the application or in any statement of
fact which may be required pursuant to section 308").
See Williamsburg County Broadcasting Corporation, Order To Show Cause and
Order Requiring Consolidation, 5 FCC Rcd 3034(1990). See also Commission
Clarifies Policies Regarding Licensee Participation in Drug Trafficking,
Public Notice, 4 FCC Rcd 7533 (1989) (Commission regards drug trafficking
as a matter of the gravest concern).
The facts of Mr. Doty's felony convictions are res judicata and will not
be retried in this hearing.
Contemporary Media, 214 F.3d at 193. See also 47 C.F.R. S 1.17 (requiring
truthful and accurate statements in all statements to the Commission); 47
C.F.R. S 1.65 (setting forth deadlines for revising or amending pending
FCC applications if such applications are no longer substantially accurate
or complete or there has been a substantial change as to any other matter
of decisional significance); Policy Regarding Character Qualifications in
Broadcast Licensing Amendment of Rules of Broadcast Practice and
Procedure, Relating to Written Responses to Commission Inquiries and the
Making of Misrepresentation to the Commission by Applicants, Permittees,
and Licensees, and the Reporting of Information Regarding Character
Qualifications, Report, Order and Policy Statement, 102 FCC 2d 1179,
1210-11, P 60 (1986) ("Character Policy Statement"), recon. denied, 1 FCC
Rcd 421 (1986), appeal dismissed sub nom. National Ass'n for Better
Broadcasting v. FCC, No. 86-1179 (D.C. Cir. June 11, 1987).
Character Policy Statement, 102 FCC 2d at 1210-11 P 60. A false
certification may also constitute a misrepresentation. See, e.g., San
Francisco Unified School District, Hearing Designation Order and Notice of
Apparent Liability for Forfeiture, 19 FCC Rcd 13326, 13334, P 19 n. 40-41
(2004), Initial Decision, FCC 06D-01 (ALJ April 7, 2006).
See Fox River Broadcasting, Inc., Order, 93 FCC 2d 127, 129 (1983).
"[T]he fact of misrepresentation coupled with proof that the party making
it had knowledge of its falsity [is] enough to justify a conclusion that
there was fraudulent intent." Leflore Broadcasting Co., Inc. v. FCC, 636
F.2d 454. 462 (D.C. Cir. 1980).
See, e.g., RKO General, Inc., Decision, 4 FCC Rcd 4679, 4684, P 29 (Rev.
American International Development, Inc., Memorandum Opinion and Order, 86
FCC 2d 808, 816 n. 39 (1981), aff'd sub nom. KXIV, Inc. v. FCC, 704 F.2d
1294 (D.C. Cir. 1983) (Commission stated that "the absence of direct
evidence of motive is not significant where the record otherwise clearly
establishes that deceptive conduct has occurred.").
Contemporary Media, 214 F.3d at 196 ("It is well recognized that the
Commission may disqualify an applicant who deliberately makes
misrepresentations or lacks candor in dealing with the agency) (citing
Schoenbohm, 204 F.3d at 247. See also FCC v. WOKO, Inc., 329 U.S. 223,
225-27 (1946); Swan Creek Communications, Inc. v. FCC, 39 F.3d 1217,
1221-24 (D.C. Cir. 1994); Garden State Broadcasting Ltd. v. FCC, 996 F.2d
386, 393-94 (D.C. Cir. 1993).
See, e.g., Greater Muskegon Broadcasters, Inc., Memorandum Opinion and
Order, 11 FCC Rcd 15464, 15472-73, PP 22-23 (1996).
47 U.S.C. SS 312(a) and (c).
47 C.F.R. SS 0.111, 0.311 and 1.91(a).
47 C.F.R. S 1.91(c).
47 C.F.R. S 1.92(c).
47 U.S.C. S 503(b)(1).
47 C.F.R. SS 1.17, 1.65.
See Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
12 FCC Rcd 17087, 17100-01, P 27, 17112 Appendix A (1997), recon. denied,
15 FCC Rcd 303 (1999). See also 47 C.F.R. S 1.80(b).
47 U.S.C. S 312(d).
47 C.F.R. S 1.91(d).
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Federal Communications Commission FCC 06-128
Federal Communications Commission FCC 06-128