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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
In the Matter of EB Docket No. 06-163
)
TERRY KEITH HAMMOND File No. EB-03-IH-0130
)
Application for Renewal of Licensee for File No. BRH-20050401AAA
Station KBKH(FM), Shamrock, Texas )
Facility ID No. 81640
)
)
)
Memorandum opinion and ORDER
Adopted: June 22, 2009 Released: June 22, 2009
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. By this Memorandum Opinion and Order, we dismiss the above-captioned
proceeding pursuant to Section 1.92(d) of the Commission's rules.
Based upon the evidence of his felony conviction, we conclude that
Terry Keith Hammond lacks the basic requisite character qualifications
to be and remain a Commission licensee, and note that such conclusion
would have warranted revocation of the license for Station KBKH(FM)
(the "Station") prior to its cancellation. Our actions herein are
taken pursuant to authority delegated to the Enforcement Bureau under
Section 0.111(a)(17) of the Commission's rules.
II. BACKGROUND
2. On September 15, 2006, the Commission commenced a hearing proceeding
to determine whether Mr. Hammond is qualified to be and remain a
licensee, whether his license for Station KBKH(FM) should be revoked,
and whether his application for renewal of the station's license
should be granted. The Hearing Designation Order specified numerous
questions of fact and law to be determined at hearing.
3. First, the Hearing Designation Order found that a hearing was
warranted in order to determine whether Station KBKH(FM)'s license
should be revoked because Mr. Hammond's felony conviction might
indicate that he lacks the basic character qualifications to be and
remain a licensee. Specifically, the Hearing Designation Order ordered
Mr. Hammond to show cause, pursuant to Sections 312(a) and (c) of the
Communications Act of 1934, as amended (the "Act"), why the Station's
license should not be revoked. With regard to these issues, the
Hearing Designation Order placed the burden of proceeding with the
introduction of evidence and the burden of proof on the Enforcement
Bureau.
4. Next, pursuant to Section 309(e) of the Act, the Hearing Designation
Order designated Mr. Hammond's renewal application for the Station for
hearing. The Hearing Designation Order specified the following issues
for determination: (1) whether Mr. Hammond made false certifications,
misrepresentations, or otherwise demonstrated a lack of candor in
applications that he filed with the Commission; (2) whether Mr.
Hammond willfully and/or repeatedly violated Commission rules
governing the operation, location and equipment for Station KBKH(FM);
and (3) whether Mr. Hammond willfully or repeatedly failed to comply
with a Commission rule requiring licensees to provide information
concerning matters within the Commission's jurisdiction. The Hearing
Designation Order placed the burden of proceeding with the
introduction of evidence and the burden of proof regarding these
issues on Mr. Hammond.
5. Finally, the Hearing Designation Order provided for a determination as
to whether a forfeiture should be imposed against Mr. Hammond for
willfully or repeatedly failing to comply with the terms of his
license for the Station and for willfully or repeatedly failing to
comply with certain Commission rules. Irrespective of the resolution
of the issues set forth above, the Hearing Designation Order specified
that there be a determination as to whether a forfeiture should be
imposed against Mr. Hammond with respect to the apparent willful
and/or repeated violations of Section 73.1015 of the Commission's
rules, in an amount not to exceed $325,000; Sections 73.1350(a),
73.1560(b) and (d), and 73.1745(a) of the Commission's rules, in an
amount not to exceed $325,000; and Section 11.35(a) of the
Commission's rules, in an amount not to exceed $325,000; for any such
violations that occurred or continued within the applicable statute of
limitations.
6. Pursuant to Section 1.91(c) and Section 1.221(c) of the Commission's
rules, the Hearing Designation Order ordered Mr. Hammond, to file a
written notice of appearance stating that he would appear on the
specified hearing date and present evidence on the designated issues.
In addition, the Hearing Designation Order informed Mr. Hammond that
if he failed to file a written notice of appearance, the Station's
renewal application would be dismissed with prejudice for failure to
prosecute, his right to a hearing would be deemed waived, and the
issues would thereafter be resolved in accordance with Section 1.92(c)
of the Commission's rules.
7. The Presiding Judge determined that Mr. Hammond received a copy of the
Hearing Designation Order but failed to file a written notice of
appearance seeking to avail himself of the right to a hearing.
Accordingly, the Presiding Judge concluded that Mr. Hammond waived his
right to a hearing, terminated the hearing proceeding, and certified
to the Commission the issues set forth in paragraph 3 above. Pursuant
to Section 1.221(c) of the Commission's rules, the Presiding Judge
also dismissed, with prejudice, the Station's renewal application for
failure to prosecute. The Presiding Judge did not terminate the
hearing proceeding.
8. Following the dismissal of the Station's renewal application, the
Media Bureau, noting that the station's license had expired,
terminated Mr. Hammond's authority to operate the Station and deleted
the Station's call letters.
III. DISCUSSION
A. Mr. Hammond Is Not Qualified to Be and Remain a Licensee
1. Facts
9. In connection with its investigation of a complaint alleging that the
Station was not operating in accordance with its authorization, the
Commission received information and documentation that Mr. Hammond had
been convicted of a felony. Specifically, on June 4, 2004, judgment on
a conviction was entered against Mr. Hammond for theft of more than
$1,500 but less than $20,000 in the 31st Judicial District Court of
Wheeler County, Texas. The theft occurred in 2002, prior to Mr.
Hammond's acquisition of the Station, and involved Mr. Hammond
altering checks written to the Station and depositing them into an
account that he controlled. Mr. Hammond appealed this conviction; his
appeals were denied. Mr. Hammond was incarcerated but has since been
released.
10. In addition to his theft conviction, there are other instances in
which Mr. Hammond has demonstrated a propensity to ignore or evade
lawful requirements prescribed by statute and Commission rules. The
Commission's records reveal that Mr. Hammond engaged in multiple
instances of unauthorized operation of unlicensed radio broadcast
stations in California, Louisiana, and Texas prior to his acquisition
of the Station. The Commission issued warning letters to Mr. Hammond
concerning such unlicensed operations on March 11 and July 14, 1999
and at least one citation for the unlicensed operation of a radio
station. In addition, the Hearing Designation Order set forth numerous
instances in which Mr. Hammond apparently violated the Commission's
rules.
1. Discussion
11. Section 312(a)(2) of the Act provides that the Commission may revoke
any license "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 licensee or
applicant is among the factors that the Commission considers in
determining whether the applicant has the requisite qualifications to
operate the station for which authority is sought. The Commission's
character assessments focus on misconduct that demonstrates the
licensee's or applicant's proclivity to deal truthfully with the
Commission and to comply with its rules or policies. The Commission
considers "evidence of any conviction for misconduct constituting a
felony" relevant . The Commission believes 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.
12. In this case, Mr. Hammond has been convicted of a felony. We find that
this criminal misconduct justifies a finding that Mr. Hammond has
demonstrated his propensity to evade, rather than comply with laws and
regulations that would include the Communications Act and the
Commission's rules and policies. Our finding in this regard is
reinforced by the additional instances in which Mr. Hammond was warned
or cited for unauthorized and unlicensed operation of broadcast
stations prior to his acquisition of the Station. For these reasons,
we find that Mr. Hammond does not possess the character qualifications
required by this Commission to be or remain a licensee.
1. License Revocation
13. The Commission's character policies provide that any felony conviction
is a matter predictive of licensee behavior and is directly relevant
to the functioning of the Commission's regulatory mission. The serious
conviction described above mandates the conclusion that Mr. Hammond
does not possess the requisite qualifications to be or remain a
licensee. Based on the foregoing, we conclude, as a matter of law,
that revocation of Mr. Hammond's license for the Station is mandated
but for the prior dismissal of Mr. Hammond's application for the
renewal of the Station's license and the subsequent termination of his
authority to operate the Station. In light of our decision dismissing
the above-captioned hearing proceeding, the cancellation of Mr.
Hammond's license for Station KBKH(FM), and our finding that Mr.
Hammond is not qualified to be and remain a licensee, we do not impose
a forfeiture. We believe that these actions are a sufficient sanction
in this context.
A. Dismissal of the Captioned Proceeding
14. As the Presiding Judge determined, Mr. Hammond waived his right to a
hearing on the specified issues because he failed to file a timely
written appearance as prescribed by Section 1.91(c) of the
Commission's rules. Consequently, in accordance with Section 1.92(d)
of the Commission's rules, we dismiss the hearing proceeding. We note,
however, that Mr. Hammond will be required to report to the Commission
the existence of the unresolved issues designated for hearing in this
case in connection with any application that he may file with the
Commission in the future.
IV. ORDERING CLAUSES
15. Accordingly, IT IS ORDERED, pursuant to Section 1.92(d) and
0.111(a)(17) of the Commission's rules, that the captioned hearing
proceeding IS DISMISSED.
16. IT IS FURTHER ORDERED that a copy of this Memorandum Opinion and Order
shall be sent by Certified Mail Return Receipt Requested to Terry
Keith Hammond, P.O. Box 688, Shamrock, Texas 79079 and to 6700 U.S.
Highway 83, Shamrock, Texas 79079.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
As set forth herein, the Administrative Law Judge ("Presiding Judge")
dismissed Mr. Hammond's application for the renewal of the license of
Station KBKH(FM) for failure to prosecute, and the Media Bureau thereafter
cancelled his authorization, deleted the station's call letters, and
ordered Mr. Hammond to cease operations. See infra Paragraphs 6-7.
See 47 C.F.R. S: 1.92(d).
See 47 C.F.R. S: 0.111(a)(17).
See Terry Keith Hammond, Order to Show Cause, Notice of Opportunity for
Hearing, and Hearing Designation Order, 21 FCC Rcd 10267 (2006) ("Hearing
Designation Order" or "HDO").
See id at 10274-275 P: 17.
See id. at 10278-79 P: 27.
See id. at 10280 P: 29.
See id. at 10279 P: 28(3) & (4) (internal citations omitted).
See id P: 28(5) & (6) (internal citation omitted).
See id. P: 28(7).
See id. at 10280 P: 30.
See id. P: 31.
See 47 C.F.R. S: 73.1015.
See 47 C.F.R. S:S: 73.1350(a), 73.1560(b) and (d), 73.1745(a).
See 47 C.F.R. S: 11.35(a).
See HDO, 21 FCC Rcd at 10280 P: 31.
See 47 C.F.R. S:S: 1.91(c); 1.221(c).
See HDO, 21 FCC Rcd at 10280-281 P: 35.
See id.
See id; 47 C.F.R. S: 1.92(c) (providing 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).
See Terry Keith Hammond, Memorandum Opinion and Order, FCC 06M-37 (rel.
Nov. 17, 2006). See also EB Exhibit 1 (affidavit of Terry Keith Hammond
acknowledging receipt of the Hearing Designation Order).
See Terry Keith Hammond, supra note 26.
See id; 47 C.F.R. S: 1.221(c) (providing that, whenever an application is
designated for hearing and the applicant fails to file a written notice of
appearance within the time specified, the application will be dismissed
for failure to prosecute).
See Letter from Peter H. Doyle, Chief, Audio Services Division, Media
Bureau, to Terry Keith Hammond, dated January 11, 2007. Mr. Hammond filed
a petition for reconsideration of the license cancellation on February 10,
2007, and supplemented that petition on June 26, 2007. The Media Bureau
denied Mr. Hammond's petition for reconsideration. See Station DKBHK(FM),
Shamrock, Texas, Letter, 22 FCC Rcd 18899 ( MB Audio Div. 2007).
See HDO, 21 FCC Rcd at 10268 P: 4 & n.8.
See State of Texas v. Terry Keith Hammond, Judgment of Conviction by Jury,
Case No. 4010 (31st Jud. Dist. Wheeler County Ct., June 4, 2004). Mr.
Hammond initially was sentenced to two years confinement in the State Jail
Division, which was suspended with the requirement that Mr. Hammond be
placed on community supervision for five years. On July 12, 2004, the
trial court found that Mr. Hammond had violated the terms of the
supervision and it was revoked.
The 7th Court of Appeals, which reviewed the trial court's judgment, ruled
that it did not have jurisdiction to consider Mr. Hammond's appeal of the
felony conviction because it was not timely filed. See Terry Keith Hammond
v. State of Texas, No. 07-04-0430-CR (7th Ct. App. Tex. Dec. 14, 2005). In
addition, the Texas Court of Criminal Appeals denied Hammond's Petition
for Discretionary Review of the ruling of the 7th Court of Appeals. See
Terry Keith Hammond v. State of Texas, No. PD-0313-06 (Texas Ct. Crim.
Appeals Mar. 1, 2006).
On April 17, 2006, the 7th Court of Appeals issued its mandate ordering
that Hammond's sentence be carried out, and Mr. Hammond was incarcerated
in accordance with that order. Thereafter, on February 28, 2007, Mr.
Hammond's application for a writ of habeas corpus was granted upon a
finding that Mr. Hammond received ineffective assistance of counsel, and
the 7th Court of Appeals remanded the case to the trial court for
resentencing, but did not otherwise vacate or overturn his conviction. See
Ex Parte Terry Keith Hammond, Cause No. 4010-A (7th Ct. App. Tex. Feb. 28,
2007) (unpublished). The trial court reportedly reduced Mr. Hammond's
sentence to time served and placed him on probation for two years.
Letter from Thomas Horan, Agent, Compliance and Information Bureau, San
Francisco Office, to Lick 106.7/Keith Hammond, dated March 11, 1999 (Mr.
Hammond refused to sign for this letter or acknowledge it); Letter from
Stephen P. Lee, Agent, Compliance and Information Bureau, South Central
Region, New Orleans, LA, to Terry Keith Hammond, dated July 14, 1999 (Mr.
Hammond signed to acknowledge that he received this letter).
Notice of Unlicensed Radio Operation, 99OR250, July 28, 1999.
See HDO, 21 FCC Rcd at 10279 P: 28.
47 U.S.C. S: 312(a)(2).
See 47 U.S.C. S: 308(b).
See Policy Regarding Character Qualifications in Broadcast Licensing,
Report, Order and Policy Statement, 102 FCC 2d 1179, 1196-98 P: 37 (1986),
recons. denied, 1 FCC Rcd 421 (1986), appeal dismissed sub nom. National
Association for Better Broadcasting v. FCC, No. 86-1179 (D.C. Cir. Jun.
11, 1987) ("Character Policy Statement"). See also 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 P: 5 (1990), recons. on other grounds, 6 FCC Rcd 3448 (1991),
modified on other grounds, 7 FCC Rcd 6564 (1992) ("1990 Character Order").
See, e.g., Contemporary Media, Inc. v. FCC, 214 F.3d 187, 193 (D.C. Cir.
2000) (upheld as rational Commission policy to consider any felony
conviction of broadcast licensee's or applicant's principal as a relevant
factor in evaluating propensity to obey the law) cert. denied, 532 U.S.
920 (2001)
1990 Character Order, 5 FCC Rcd at 3252 P: 4.
See id.
See Paragraph 8, supra.
See, e.g., Contemporary Media, Inc., 13 FCC Rcd 14437, 14442 P: 11 (1998),
recons. denied, 14 FCC Rcd 8790 (1999), aff'd Contemporary Media, Inc. v.
FCC, 214 F.3d 187 (D.C. Cir. 2000), cert. denied, 532 U.S. 920 (2001).
See Character Policy Statement, supra note 34; 1990 Character Order, supra
note 34.
See, e.g., KEGG Communications, Inc., Memorandum Opinion and Order, 20 FCC
Rcd 11768 (Enf. Bur. 2005); Radio Moultrie, Inc., Order of Revocation, 18
FCC Rcd 22950 (Enf. Bur. 2003).
See 47 C.F.R. S: 1.91(c).
See 47 C.F.R. S: 1.92(d).
Some examples of these applications include: Application for Construction
Permit For a Commercial Broadcast Station (FCC 301); Application for
Consent to Assignment of Broadcast Station Construction Permit or License
(FCC 314); Application for Construction Permit For a Low Power FM
Broadcast Station (FCC 318).
See 47 C.F.R. S:S: 1.92(d) and 0.111(a)(17).
(Continued from previous page)
(continued....)
Federal Communications Commission DA 09-1370
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Federal Communications Commission DA 09-1370