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1. Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) EB Docket No. 02-21
)
Peninsula Communications, Inc. )
) File No. EB 01-IH-0609
Licensee of stations ) FRN: 0001-5712-15
KGTL, Homer, Alaska; ) Facility ID Nos. 52152
KXBA(FM), Nikiski, Alaska; ) 86717
KWVV-FM, Homer, Alaska; and ) 52145
KPEN-FM, Soldotna, Alaska. ) 52149
)
Licensee of FM translator )
stations1 ) 52150
K292ED, Kachemak City, Alaska; ) 52157
K285DU, Homer, Alaska; ) 52158 and 52160
K285EG and K272DG, Seward, )
Alaska )
)
Former licensee of FM )
translator stations2 K285EF, )
Kenai, Alaska; )
K283AB, Kenai/Soldotna, Alaska; )
K257DB, Anchor Point, Alaska;
K265CK, Kachemak City, Alaska;
K272CN, Homer, Alaska; and
K274AB and K285AA, Kodiak,
Alaska
ORDER TO SHOW CAUSE
Adopted: February 1, 2002 Released: February 6,
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''), 47 U.S.C. §§ 312(a), 312(c) and 503(b), we commence a
hearing proceeding to determine whether the above-captioned
licenses held by Peninsula Communications, Inc. (``Peninsula'')
should be revoked. Peninsula has continued to operate the seven
captioned unlicensed FM translators following our warning that
continued unauthorized operation might lead to possible revocation of all of Peninsula's Commission licenses.3 Such
operations not only violate Section 301 of the Act, 47 U.S.C. §
301, but also are in blatant disregard of our prior order to
terminate such operations,4 and thus in apparent violation of
Section 416(c) of the Act. Peninsula's continued refusal to obey
a direct Commission order, which has not been stayed or otherwise
modified, calls into question Peninsula's fitness to remain a
Commission licensee. See 47 U.S.C. § 312(a)(2) and (a)(4). See
also Policy Statement on Character Qualifications in Broadcast
Licensing, 102 FCC 2d 1179 (1986) (``Character Policy
Statement'') (subsequent history omitted). Moreover, as
explained herein, our order to terminate operations on the seven
translators continues to be valid, and Peninsula is obligated to
comply with it.
·
DISCUSSION
2. The background of this case is discussed at length in
the NAL and related Forfeiture Order issued in connection with
Peninsula's violation of Section 301 of the Act.5 In our May
2001 MO&O, the Commission ordered Peninsula to cease operating
seven FM translator stations. It is undisputed that Peninsula
has not complied with our order. Peninsula has indicated that it
intends to continue to operate despite the Commission's order
until the D.C. Circuit rules on its appeal of the May 2001 MO&O.6
· 3. Peninsula has argued that it is justified in continuing
to operate despite the Commission's order pursuant to sections
1.62 and 73.3523 of the Commission's rules, 47 C.F.R. §§ 1.62
and 73.3523, because its renewal applications are still
``pending.'' We disagree. As a preliminary matter, we note
that even if the rules did permit Peninsula to continue
operation, a licensee cannot ignore a Commission order simply
because it believes such order to be unlawful. As the Act
specifically provides:
All such orders shall continue in force for the
period of time specified in the order or until the
Commission or a court of competent jurisdiction
issues a superseding order.7
It shall be the duty of every person, its agents
and employees, and any receiver or trustee
thereof, to observe and comply with such orders so
long as the same shall remain in effect.8
·
· In any event, neither rule cited by Peninsula authorized it to
continue broadcasting after the date · specified in the May 2001 MO&O. Section 1.62 of our rules
provides that a renewal applicant's license ``shall continue
in effect ... until such time as the Commission shall make a
final determination with respect to the renewal
application.''9 Here, the Commission made such a final
determination. The fact that an appeal is pending is
irrelevant for purposes of section 1.62, as the Commission
held in Mobilcom Pittsburg, Inc., 9 FCC Rcd 509 (1994). As
for 47 C.F.R. § 73.3523, the definition of a pending
application on which Peninsula relies is expressly restricted
by subsection (d) of that rule to the operation of that rule
alone. Section 73.3523 seeks to prevent a competing applicant
who filed against a renewal application from receiving
``greenmail'' from the renewal applicant. That rule has
absolutely nothing to do with this case. Hence, neither rule
provides any justification for Peninsula's continued operation
of the captioned translators after the date specified in the
May 2001 MO&O (that is, after midnight May 19, 2001).10
·
4. Peninsula also contends that the D.C. Circuit Court's
September 6, 2001, Order,11 raises questions about the finality
of the May 2001 MO&O. We disagree. That order merely requests a
status report and does not purport to find that the May 2001 MO&O
was not a final decision as to the status of the seven FM
translators. In any event, the fact that an order may not be
final does not affect a party's obligation to comply with such
order. Next, Peninsula argues that 47 U.S.C. § 312(g)'s mandate
for the cancellation of licenses for stations that remain silent for any
consecutive 12-month period justifies Peninsula's continued
operation pending its appeal in order to preserve those licenses.
Again, we disagree. As matters now stand, the seven FM
translator licenses are no longer in effect. Hence, 47 U.S.C. §
312(g), which by its terms applies to licensed stations that
remain silent for one year, is inapposite. In any event, the
fact that compliance with an order might negatively impact
Peninsula does not justify ignoring such an order. Finally,
Peninsula submits that it had a right to a hearing prior to the
dismissal of its seven translator licenses pursuant to 47 U.S.C.
§§ 309(e) or 312(c). Peninsula is mistaken. Peninsula had
received and accepted a conditional grant of its 1995 renewal
applications for the translators in 1997. Having failed to
fulfill the condition despite having years to do so, Peninsula
forfeited its licenses and has no entitlement to a hearing. See
P & R Temmer v. FCC, 743 F.2d 918, 928 (D.C. Cir. 1984)
(termination of license for failure to meet license condition did
not require hearing). In any event, even if Peninsula wins on
this argument in court, that does not justify its failure to
comply with the Commission's order.
· 5. We have considered and rejected Peninsula's contentions.
None of the rule or statutory provisions cited by Peninsula
authorized in any way its operation of the translators once
the May 2001 MO&O became effective. We did not provide for
continued operation of Peninsula's translators in our May 2001
MO&O, and, absent a stay of that order,12 Peninsula was
required to terminate operations upon that order's effective
date. See 47 U.S.C. §§ 408, 416(c). Peninsula did not do so.
Instead, it has chosen to defy our order. We conclude that
Peninsula's continued failure to obey our May 2001 MO&O belies
its claim that it has acted as a conscientious and responsible
broadcast licensee. We further conclude that Peninsula's
defiance raises extremely serious questions as to whether
Peninsula has the character qualifications to continue as a
licensee, regardless of whether it ultimately prevails in
court on the appeal of our May 2001 MO&O.
ORDERING CLAUSES
6. 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, Peninsula Communications,
Inc. is hereby ORDERED TO SHOW CAUSE why its licenses for
broadcast stations KGTL, Homer; KXBA(FM), Nikiski; KWVV-FM,
Homer; KPEN-FM, Soldotna; and its licenses for FM translator
stations K292ED, Kachemak City; K295DU, Homer; K285EG and
K272DG, Seward, all in Alaska, SHOULD NOT BE REVOKED. In the
event the D.C. Circuit reinstates the licenses for former FM
translator stations K285EF, Kenai; 283AB, Kenai/Soldotna;
K257DB, Anchor Point; K265CK, Kachemak City; K272CN, Homer, and
K274AB and K285AA, Kodiak, all in Alaska, we intend that all
such licenses shall be included in this Order to Show Cause.
Peninsula 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 issues:
(a) To determine the facts and circumstances
surrounding Peninsula Communications, Inc.'s
operation of former FM translator stations
285EF, Kenai; K283AB, Kenai/Soldotna; K257DB,
Anchor Point; K265CK, Kachemak City; K272CN,
Homer; and K274AB and K285AA, Kodiak, all in
Alaska, subsequent to August 29, 2001, contrary
to the Commission's order in Peninsula
Communications, Inc., 16 FCC Rcd 11364 (2001),
and related violation of Section 416(c) of the
Act;
(b) To determine, in light of the evidence
adduced pursuant to issue (a), whether
Peninsula Communications, Inc. has the
requisite character qualifications to be a
Commission licensee and thus whether its
captioned broadcast and FM translator licenses,
including any former licenses reinstated,
should be revoked.
7. IT IS FURTHER ORDERED THAT, to avail itself of the
opportunity to be heard and to present evidence at a hearing in
this proceeding, Peninsula Communications, Inc., 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, 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 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). If the hearing is waived, Peninsula Communications,
Inc. may submit a written signed statement 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 unauthorized operation of
the seven noted translators. In the event Peninsula
Communications, Inc. 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 reciting the events or circumstances constituting a waiver
of hearing, terminating the hearing, and certifying the case to
the Commission. See section 1.92(c) of the Commission's rules,
47 C.F.R. § 1.92(c).
8. 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 proceeding.
9. 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.
10. IT IS FURTHER ORDERED THAT, pursuant to Section 312(c)
of the Act, 47 U.S.C. § 312(c), a copy of this ORDER TO SHOW
CAUSE shall be sent by Certified Mail Return Receipt Requested to
David F. Becker, President, Peninsula Communications, Inc., Post
Office Box 109, Homer, Alaska 99603, with a copy to Jeffrey D.
Southmayd, Esquire, Southmayd & Miller 1220 19th Street, N.W.,
Suite 400, Washington, D.C. 20036.
FEDERAL COMMUNICATIONS COMMISSION
William F. Caton
Acting Secretary
_________________________
1 The captioned licensed translators are currently operating in
accordance with the Commission's rules. However, as explained
below, because Peninsula continues to operate the seven
captioned formerly licensed translators subsequent to a direct
order from us to cease such operations, the captioned
translators are now subject to possible revocation.
2 We include the stations formerly held by Peninsula as part of
our revocation proceeding to cover the eventuality that the D.C.
Circuit could ultimately reinstate their licenses. Should those
licenses be so reinstated, the conduct discussed in this order
raises serious questions whether Peninsula should be entitled to
continue as licensee.
3 See Peninsula Communications, Inc., Notice of Apparent
Liability for Forfeiture and Order, 16 FCC Rcd 16124 (2001)
(``NAL'').
4 See Peninsula Communications, Inc., 16 FCC Rcd 11364 (2001)
(``May 2001 MO&O''). This day we also release a Forfeiture
Order (FCC 02-31), which imposes a forfeiture of $140,000 on
Peninsula for its willful and repeated violations of Section 301
of the Act, resulting from the continued operation of the
unlicensed translators.
5 See notes 3 and 4, supra.
6 See Declaration of David F. Becker, President, Peninsula
Communications, Inc., filed September 10, 2001. Peninsula filed
this sworn declaration in response to the Commission's order
that it do so. See also Peninsula Communications, Inc. v. FCC,
Case No. 01-1273 (D.C. Cir. June 15, 2001).
7 47 U.S.C. § 408.
8 47 U.S.C. § 416(c).
9 See also 5 U.S.C. § 558(c) (corresponding provision of the
Administrative Procedure Act states that the license continues
until the renewal application "has been finally determined by
the agency'').
10 Generally, we permit a disqualified broadcast licensee to
continue operations during judicial appeals to ensure service to
the public until the court resolves the licensee's
qualifications. See Pinelands, Inc., 7 FCC Rcd 6058, 6061 n. 12
(1992). In those situations, when we choose to allow licensees
to continue operations, we do so explicitly. See, e,g.,
Contemporary Media, Inc., 13 FCC Rcd 14437, 14461 (1998). In
our May 2001 MO&O, we did not give Peninsula continued authority
to operate. We also note that, in light of the record, it would
have been inappropriate for us to do so. As discussed in the
May 2001 MO&O and NAL, Peninsula received in November 1997
conditional grants of renewal and assignment applications to
remedy rule violations that had been ongoing since June 1, 1994.
At the outset, Peninsula accepted and endorsed the conditional
grants as fair and consistent with the facts and the law. See
May 2001 MO&O, 16 FCC Rcd at 11368. However, by the time of the
May 2001 MO&O, Peninsula had failed to fulfill the condition,
namely, consummating the assignment of its FM translator
licenses, despite having years to do so and despite our explicit
warning that not doing so would result in cancellation of those
licenses. See Peninsula Communications, Inc., 15 FCC Rcd 3293
(2000) (``February 2000 MO&O''); May 2001 MO&O. Moreover, the
record further demonstrated beyond doubt that Peninsula would
never fulfill the condition. In light of these circumstances,
granting Peninsula authority to continue to operate its FM
translators during the pendency of any judicial appeals of the
May 2001 MO&O would have perpetuated long-standing rule
violations and been inconsistent with the warning in our
February 2000 MO&O. We saw no reason to do either. We had
given Peninsula ample time to meet the condition imposed in 1997
and come into compliance with 47 C.F.R. § 74.1232(d).
11 Peninsula Communications, Inc. v. FCC, Case No. 01-1273
(D.C. Circuit). In pertinent part, the Order requires Peninsula
to ``file a status report addressing whether any proceedings on
the FCC's order to show cause [concerning the proposed
modification of two FM translator licenses for Seward, Alaska]
or any other proceedings related to the FCC's May 18, 2001 order
remain pending before the FCC. The parties are directed to file
motions to govern proceedings within 30 days of the filing of
appellant's status report. If appellant's status report
demonstrates that any proceedings on the FCC's May 18, 2001
order remain pending before the FCC, the parties should address
the effect of such proceedings on the court's jurisdiction to
hear this appeal.'' Peninsula filed the required status report
on September 20, 2001. In response, we filed a ``Motion to
Govern Further Proceedings'' on October 18, 2001. Therein, we
argued that the May 2001 MO&O is final and appealable with
respect to the seven translators whose licenses we cancelled,
and we urged the Court to issue a briefing schedule. The Court
has not yet acted on our motion.
12 Peninsula observes that it filed a motion for stay of our
February 2000 MO&O, which, it argues, we never directly
addressed. It now ``renews'' its request that the Commission
stay its May 2001 MO&O pending a final court determination of
Peninsula's appeal. We dismiss Peninsula's request.
Peninsula's request does not comply with section 1.44(e) of our
rules, 47 C.F.R. § 1.44(e), which requires that stay requests be
filed as separate pleadings. Moreover, our May 2001 MO&O
modified in significant respects the February 2000 MO&O, thereby
rendering moot Peninsula's stay request of the February 2000
MO&O. In any event, we note that the mere pendency of such a
motion does not give Peninsula the right to disobey our direct
order to terminate operations of the seven translators. We also
note that an order of the 9th Circuit Court of Appeals staying a
District Court preliminary injunction against Peninsula's
continued operation pending Peninsula's appeal of the District
Court's order (United States v. Peninsula Communications, Inc.,
Case No. 01-35965 (9th Cir.), Order, November 21, 2001) does not
affect the continuing validity of the Commission's May 2001
MO&O. Even if the 9th Circuit's order did have such an effect,
Peninsula's defiance of the May 2001 MO&O continued for six
months, which, by itself, would be a sufficient basis to
commence this revocation proceeding.