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                         Before the
              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                 )

Adopted:  November 21, 2002                       Released:  
November 26, 2002

By the Commission:

                       I. Introduction

     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.

                       II.  Background
     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 
                      III.  Discussion  

     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, 
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. 


                         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-
satisfaction proceedings.

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).