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Federal Communications Commission
Washington, D.C. 20554
In the Matters of ) MB Docket No. 05-95
) NAL/Acct No. MB 20041810004
KEGG COMMUNICATIONS, INC. )
Licensee of Station K216EQ )
Daingerfield, Texas ) Facility ID No. 92810
Application for Construction )
Permit for a New ) Facility ID No. 94199
Noncommercial Educational FM ) File No. BPED-19990907MG
Station in Daingerfield, Texas )
MEMORANDUM OPINION AND ORDER
Adopted: July 6, 2005 Released: July 7, 2005
By the Acting Chief, Enforcement Bureau:
1. By this Memorandum Opinion And Order, acting pursuant
to authority delegated to the Enforcement Bureau under section
0.111(a)(17) of the Commission's rules,1 we dismiss the above-
captioned proceeding pursuant to section 1.92(d) of the
Commission's rules.2 We conclude, based on the evidence
described herein that KEGG Communications, Inc. (``KCI'')
surrendered the license for FM translator Station K216EQ,
Daingerfield, Texas and that the Media Bureau canceled that
authorization.3 We further note that the presiding
Administrative Law Judge (``Presiding Judge'') dismissed with
prejudice KCI's captioned application for a construction permit
for a new noncommercial educational FM station in Daingerfield,
Texas, and that KCI did not timely seek review of that action
pursuant to section 1.302 of the Commission's rules.4
Accordingly, we do not make any findings relative to the issues
designated below, including whether KCI is qualified to be and
remain the licensee of Station K216EQ, and we dismiss the
2. On March 15, 2005, the Commission released an Order to
Show Cause, Hearing Designation Order and Notice of Opportunity
for Hearing (``OSC''), designating this case for hearing.5 The
OSC specified the following issues:
(1) To determine the extent to which KCI, licensee of
noncommercial educational FM translator station
K216EQ, complied with the FM Translator provisions
specified in Sections 74.1231(b), 74.1231(f),
74.1231(g), and 74.1284(b) of the Commission's
(2) To determine whether KCI made misrepresentations of
fact or was lacking in candor in violation of
Section 73.1015 of the Commission's rules with
regard to K216EQ's primary station and/or whether
K216EQ originated programming; and
(3) To determine, based on the evidence adduced
pursuant to all of the above, whether KCI is
qualified to be and to remain the licensee of
3. The OSC also ordered that the Presiding Judge,
notwithstanding the resolution of the designated issues,
determine whether the Commission should impose a monetary
forfeiture against KCI for violations of sections 74.1231(b),
74.1231(f), 74.1231(g), 74.1284(b) and 73.1015 of the
Commission's rules. The OSC set the maximum forfeiture amount at
4. The OSC ordered KCI, pursuant to section 1.221(c) of
the Commission's rules,7 within twenty (20) days of the date of
the mailing of the OSC, in person or by its attorney, to file a
written notice of appearance in order to avail itself of the
opportunity to be heard.8 The OSC directed that the notice of
appearance state that KCI would appear on the date fixed for the
hearing and present evidence on the specified issues.9 On March
17, 2005, the Chief Administrative Law Judge issued an Order,
setting April 27, 2005 as the date for the prehearing conference
and further ordering that all hearing proceedings were to take
place in Washington, D.C.10
5. On March 23, 2005, KCI sent to the Presiding Judge by
facsimile a self-styled ``Show Cause Reply'' which was dated
March 16, 2005.11 In the Show Cause Reply, KCI requested, inter
alia, that its license not be revoked, and it contended that
Station K216EQ was in compliance with the Commission's translator
rules.12 As for the hearing, KCI, by its President, Bill
Wright, stated: ``I plan to attend the hearing as related to
translator station K216EQ. I am requesting that the location be
held at the FCC Field Office in Dallas so I may attend. Because
of personal matters, I cannot make a trip to Washington, D.C.''13
6. On March 30, 2005, the Presiding Judge dismissed KCI's
Show Cause Reply.14 The MO&O concluded that the Show Cause Reply
failed to comply with numerous Commission procedural rules.15
Initially, the MO&O concluded that the Show Cause Reply was not
properly or officially filed with the Commission.16 In addition,
the MO&O held that KCI's mere statement that it ``plans to attend
the hearing'' did not comport with the requirements of section
1.221(c) of the Commission's rules.17 Nevertheless, the MO&O
gave KCI another opportunity to file a written appearance ``which
complies in all respects with the Commission's rules.''18 The
MO&O set April 15, 2005, as the due date for KCI's written
7. KCI did not file a written appearance by the required
date. Instead, on April 18, 2005, KCI sent a facsimile to the
Presiding Judge withdrawing the pending construction permit
application and surrendering the license for Station K216EQ.20
In the facsimile, KCI's President, Mr. Wright, stated:
At this time I am surrendering the license of
K216EQ[,] Daingerfield[,] Texas, and requesting the
application pending before the FCC In [sic] regards
to KEGG Christian Communication [sic] be dismissed
On April 19, 2005, the Presiding Judge caused KCI's facsimile to
be filed with the Commission's Office of the Secretary.22 The
Presiding Judge convened a prehearing conference in this
proceeding on April 27, 2005. KCI did not attend or enter a
notice of appearance, nor did anyone do so on its behalf.23
8. In light of all the foregoing, the Presiding Judge
determined that, having failed to file a notice of appearance,
KCI had waived its right to a hearing with respect to its FM
translator station.24 Accordingly, the Presiding Judge dismissed
KCI's construction permit application, terminated the proceeding,
and certified the case to the Commission for disposition in
accordance with section 1.92(c) of the Commission's rules.25 The
Commission has delegated authority to the Enforcement Bureau for
revocation proceedings, terminated on the basis of waiver of the
opportunity for a hearing, pursuant to section 0.111(a)(17) of
the Commission's rules.26
9. KCI did not timely file a notice of appearance.
Instead, it surrendered its license for Station K216EQ, and
requested dismissal of its above-captioned construction permit
10. Section 1.92(a)(1) of the Commission's rules provides
that the failure to file the requisite notice of appearance
constitutes a waiver of the right to a hearing with regard to the
issues specified in the OSC.27 Having failed to file a timely
written appearance as prescribed by section 1.91(c) of the
Commission's rules, KCI waived its right to a hearing on the
specified issues.28 However, in light of KCI's surrender of its
license for Station K216EQ and the Media Bureau's subsequent
cancellation of that license, revocation of that license has
become moot. Consequently, in accordance with section 1.92(d) of
the Commission's rules, we dismiss the hearing proceeding.
Moreover, in light of the cancellation of KCI's license for
Station K216EQ and the dismissal of its captioned construction
permit application, imposition of a forfeiture is not appropriate
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED, pursuant to sections
1.92(d) and 0.111(a)(17) of the Commission's rules,29 that the
captioned hearing proceeding IS DISMISSED.
12. IT IS FURTHER ORDERED that a copy of this Order shall
be sent to KEGG Communications, Inc., P.O. Box 497931, Garland,
Texas 75049, attention: Bill Wright, President.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Acting Chief, Enforcement Bureau
1 47 C.F.R. § 0.111(a)(17). Pursuant to this rule, the
Enforcement Bureau has delegated authority, inter alia, to
``[i]ssue or draft appropriate orders after a hearing has been
terminated by an Administrative Law Judge on the basis of
2 47 C.F.R. § 1.92(d).
3 See Broadcast Actions, Public Notice at 11, 2005 WL 1123285,
(rel. May 12, 2005) (REPORT NO. 45983) (License cancelled May 9,
4 See Memorandum Opinion and Order, FCC 05M-26 at 2 (rel. May 4,
2005) (``Dismissal Order''). See also 47 C.F.R. § 1.302.
5 KEGG Communications, Inc., Order to Show Cause, Hearing
Designation Order and Notice of Opportunity for Hearing, 20 FCC
Rcd 5768 (2005).
6 OSC, 20 FCC Rcd at 5771, ¶ 9. The OSC did not specify any
issues with regard to KCI's construction permit application. The
OSC noted that KCI had filed a request that its application be
dismissed, which it declined to grant because the majority of the
evidence in this case arose in the context of processing that
application. The OSC provided, however, that the Presiding Judge
could dismiss that application, if and when he believed it
appropriate. OSC, 20 FCC Rcd at 5771 n. 8.
7 47 C.F.R. § 1.221(c).
8 OSC, 20 FCC Rcd at 5771, ¶ 12.
10 FCC 05M-13 (rel. Mar. 17, 2005).
11 See.Judge's Ex. 2.
12 Id. at 1-2.
13 Id. at 4.
14 See Memorandum Opinion and Order, FCC 05M-16 (rel. Mar. 30,
15 Specifically, the MO&O concluded that the Show Cause Reply and
its submission to the Presiding Judge were in violation of
sections 0.401, 1.7, 1.47, 1.51(a)(1), 1.52, 1.209, 1.211,
1.291(a)(4), and 1.296 of the Commission's Rules. Id. at 2, ¶ 4.
17 Id. at 2, ¶ 5.
18 Id. at 2, n.2.
19 Id. at 3.
20 See Judge's Ex. 3.
21 Id. at 1. As noted above, the Media Bureau canceled the
license for Station K216EQ on May 9, 2005.
22 See Dismissal Order, note 4 supra, at 2, ¶ 5.
23 Id. at 2, ¶ 6.
24 Id. at 2, ¶¶ 7-8.
25 Id. at 2. See also 47 C.F.R. § 1.92(c).
26 47 C.F.R. § 0.111(a)(17).
27 47 C.F.R. § 1.92(a)(1).
28 47 C.F.R. § 1.91(c). See also 47 C.F.R. § 1.92(a)(1).
29 47 C.F.R. §§ 1.92(d) and 0.111(a)(17).