Notice2022-04757
Application of The Marion Education Exchange for Renewal of License for Station WWGH-LP, Marion, Ohio
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
March 7, 2022
Issuing agencies
Federal Communications Commission
Abstract
This Hearing Designation Order, Notice of Opportunity for Hearing, and Notice of Apparent Liability for Forfeiture (Order) commences a hearing to determine whether The Marion Education Exchange (MEE) has committed violations of the Communications Act of 1934, as amended (Act) and/or the rules and regulations (Rules) of the Federal Communications Commission (Commission), and, as a consequence, whether MEE's application (Renewal Application) to renew the license of low power FM radio station WWGH-LP, Marion, Ohio (Station) should be granted or denied pursuant to section 309(k) of the Act, and whether a forfeiture should be imposed against MEE.
Full Text
<html>
<head>
<title>Federal Register, Volume 87 Issue 44 (Monday, March 7, 2022)</title>
</head>
<body><pre>
[Federal Register Volume 87, Number 44 (Monday, March 7, 2022)]
[Notices]
[Pages 12697-12702]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-04757]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
[MB Docket No. 22-76; FCC DA 22-187; FR ID 74348]
Application of The Marion Education Exchange for Renewal of
License for Station WWGH-LP, Marion, Ohio
AGENCY: Federal Communications Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: This Hearing Designation Order, Notice of Opportunity for
Hearing, and Notice of Apparent Liability for Forfeiture (Order)
commences a hearing to determine whether The Marion Education Exchange
(MEE) has committed violations of the Communications Act of 1934, as
amended (Act) and/or the rules and regulations (Rules) of the Federal
Communications Commission (Commission), and, as a consequence, whether
MEE's application (Renewal Application) to renew the license of low
power FM radio station WWGH-LP, Marion, Ohio (Station) should be
granted or denied pursuant to section 309(k) of the Act, and whether a
forfeiture should be imposed against MEE.
DATES: Persons desiring to participate as parties in the hearing shall
file a petition for leave to intervene not later than April 6, 2022.
ADDRESSES: File documents with the Office of the Secretary, Federal
Communications Commission, 45 L Street NE, Washington, DC 20554, with a
copy mailed to each party to the proceeding. Each document that is
filed in this proceeding must display on the front page the docket
number of this hearing, ``MB Docket No. 22-76.''
FOR FURTHER INFORMATION CONTACT: Albert Shuldiner, Media Bureau, (202)
418-2721.
SUPPLEMENTARY INFORMATION: This is a summary of the Hearing Designation
Order, Notice of Opportunity for Hearing, and Notice of Apparent
Liability for Forfeiture (Order), MB Docket No. 22-76, FCC DA 22-187,
adopted and released February 23, 2022. The full text of the Order is
available online by using the search function for MB Docket No. 22-76
on the Commission's ECFS web page at <a href="http://apps.fcc.gov/ecfs/">http://apps.fcc.gov/ecfs/</a>.
Summary of the Order
1. MEE was registered with the State of Ohio as a non-profit
corporation on May 2, 2019, with Shawn Craft as the registered agent.
On May 9, 2019, MEE and Marion Midget Football (MMF)--the Station's
former licensee--filed an application for Commission consent to the pro
forma assignment of the Station's license from MMF to MEE (Assignment
Application). Therein, MEE indicated that ``[t]here are no changes in
the board members, only the name of the licensee.'' MEE listed Patti
Worcester (Worcester), Martha Maniaci (Maniaci), Mary Ann Stolarczyk
(Stolarczyk), Betty Compton (Compton), and Marge Hazelett (Hazelett) as
its board members, and indicated each had 20 percent voting rights. We
granted the unopposed Assignment Application on May 21, 2019. In the
course of this license renewal proceeding, we have learned that Compton
died on November 7, 2016, more than two years before MEE filed the
Assignment Application that listed her as one of five existing and
continuing members of MEE's board.
2. On May 28, 2019, MEE filed a pro forma transfer of control
application (Transfer Application). MEE reported that ``Worcester has
decided to retire and voluntarily transfers her position to Shawn
Craft.'' We granted the unopposed Transfer Application on July 11,
2019.
3. On June 6, 2020, MEE filed the Renewal Application. Spencer
Phelps (Phelps) then filed an Informal Objection. Phelps alleged that
MEE had misrepresented its board composition in the Assignment
Application. Phelps stated that the board members of MEE were
``completely different people'' than those MEE listed in the Assignment
Application, and argued that MEE's statement in that application that
there were ``no changes in the board members, only the name of the
licensee'' was false. To support his claim, Phelps submitted copies of
corporate materials that MEE had filed with the State of Ohio. The
corporate materials did not list Worcester, Maniaci, Stolarczyk,
Compton, or Hazelett, the names listed in the Assignment Application.
Instead, they listed four different individuals: Shawn Craft (Craft),
Linda Sims (Sims), Glenn Coble (Coble), and Terry Tackett (Tackett).
4. MEE did not respond to the Informal Objection. Accordingly, we
[[Page 12698]]
sent the first of three letters of inquiry (First LOI) to MEE in
December of 2020.
5. The First LOI requested information regarding MEE's board, and
its officers and directors, and directed MEE to submit copies of all
corporate materials related to its board composition, or the
appointment, resignation or termination of MEE officers or directors.
It also required MEE to provide an affidavit or declaration made under
penalty of perjury in support of its response.
6. The LOI directed MEE to respond no later than January 7, 2021.
MEE did not meet this deadline. Thus, on February 12, 2021, we
dismissed the Renewal Application, cancelled the Station's license, and
informed MEE that its authority to operate the Station had terminated.
On February 16, 2021, MEE filed a pleading (First LOI Response) that
served as both a petition for reconsideration of the actions taken on
February 12, 2021, and a response to the First LOI. Upon receipt of
this pleading, we reinstated the Renewal Application and reinstated the
license.
7. In the First LOI Response, MEE listed a board that was entirely
different from the board it had identified in the Assignment
Application. MEE stated that its board consisted of Craft, Sims, Coble,
and Tackett, each of whom MEE contends had been on the MEE board from
``2019-Present.'' MEE indicated that Craft also had been its President
from ``2019-Present.'' MEE appeared to explain away any inconsistencies
between the board it identified in its Assignment Application and the
one it identified in its First LOI Response by stating that ``[s]everal
of the board members that left [MMF] in 2019 became ill and have since
passed away such as . . . Maniaci, and . . . Hazelett.'' However, MEE
failed to identify specifically each former MEE board member and the
duration of their tenure on the MEE board. MEE then obliquely explained
that ``there [sic] positions were filled with members who knew the
radio station and have had its best interests and that of the community
at heart.'' MEE did not specify whether the positions filled were on
its or MMF's board. Furthermore, despite the fact that, like Maniaci
and Hazelett, Compton was listed as an MEE board member in the
Assignment Application, and despite the fact that Compton preceded
Maniaci and Hazelett in death, MEE did not mention Compton in the First
LOI Response. MEE did not provide either the documents required to be
produced in response to the First LOI, or the supporting affidavit or
declaration requested in the First LOI. Finally, MEE asserted that the
Station ``has fulfilled the education qualification for LPFM stations
very well'' and that the Station is ``the last station in Marion[,]
Ohio to provide local news [and] weather every hour.''
8. Phelps replied to the First LOI Response, asserting that it was
incomplete, and repeating his allegations that MEE had made
misrepresentations to the Commission. Specifically, Phelps argued that
MEE had lied either in the Assignment Application, or in the First LOI
Response. He also asserted that MEE had made additional false
statements in the First LOI Response regarding the Station being the
only station in Marion offering hourly news and weather. Finally,
Phelps noted that MEE had continued to operate the Station between
February 12, 2021, and February 16, 2021, after the cancellation of the
license, and before the reinstatement.
9. Having noted the inconsistencies between MEE's statements in the
First LOI Response and the Assignment Application, and having
identified deficiencies in the First LOI Response, we sent a second
letter of inquiry in February of 2021 (Second LOI). The Second LOI
directed MEE to provide the information, documentation, and supporting
affidavit (or declaration) missing from the First LOI Response. It also
noted that, based on the information provided in the First LOI
Response, it appeared MEE had made a false statement about its board
composition in the Assignment Application. The Second LOI directed MEE
to explain ``what basis it had'' for stating in the Assignment
Application that the MEE and MMF boards were identical.
10. MEE submitted a response (Second LOI Response), which included
one document (its Initial Articles of Incorporation, which are dated
April 29, 2019), and a supporting declaration. In its Second LOI
Response, MEE stated that it was incorporated in 2019 by Craft, Sims,
Coble and Tackett. According to MEE, at the time the Assignment
Application was filed on May 9, 2019, ``it was believed and thought
that the [MMF] board members would be able to continue in the same
capacity.'' The Second LOI Response listed Worcester, Maniaci,
Stolarczyk, and Hazelett as ``board members'' but did not specify
whether they were board members of MEE, MMF, or both. MEE indicated
that Worcester had set a resignation/retirement date for late May 2019.
It stated that, on May 29, 2019, MEE's incorporators held a meeting (5-
29-19 Meeting) at which they ``decided to form a new board, with Craft
serving as President, Sims as Secretary, and Coble and Tackett as board
members. According to MEE, this decision was made based on the ``health
and age of board members who were coming over from [MMF].'' Like the
First LOI Response, the Second LOI Response did not discuss Compton at
all.
11. Phelps replied to the Second LOI Response, noting that MEE
still had not included all of the information or documents requested.
Phelps also highlighted inconsistencies in the information provided by
MEE and questioned certain statements made by MEE in the Second LOI
Response.
12. Because the Second LOI Response raised more questions than it
answered, we sent a third and final letter of inquiry in March of 2021
(Third LOI). The Third LOI again requested that MEE provide the missing
information. It also directed MEE to clarify statements made in the
Second LOI Response.
13. MEE submitted a response (Third LOI Response), which purports
to list all current and former MEE board members (and the specific
dates on which each member served on the MEE board). MEE also submitted
copies of bylaws, a document recording the appointment of MEE's initial
board, and meeting minutes. MEE now indicates that Worcester sat on its
board from April 29, 2019, until May 28, 2019, and Maniaci, Stolarczyk
and Hazelett were on the board from April 29, 2019, to May 29, 2019.
MEE states that the initial board was ``chosen by vote of the
incorporators'' and that, to MEE's knowledge, no person served on the
MEE and MMF boards at the same time. MEE notes that Worcester chose to
resign/retire from MEE on May 28, 2019, and that Craft took over her
position as President of MEE on that date as set forth in the MEE
bylaws. MEE states that Maniaci, Stolarczyk, and Hazelett were invited
to participate in the 5-29-19 Meeting but did not because ``their
health was failing.'' MEE explains that they resigned from the MEE
board effective May 29, 2019, because they ``could not attend meetings
on a regular basis.'' MEE reports that, at the 5-29-19 Meeting, the
incorporators ``voted on who would fill'' the vacant board seats.
According to MEE, this was done as specified in its bylaws. In terms of
Compton, MEE explains that she ``had passed away'' prior to the 5-29-19
Meeting, but avoids specifying the date of Compton's death and does not
address the Third LOI's question as to why MEE did not list Compton as
an initial board member in the Second LOI Response. MEE states that
``her successor had not been chosen at that time'' (apparently meaning
after her
[[Page 12699]]
death but prior to the 5-29-19 Meeting). MEE indicates that, ``when the
transfer was being filed with the FCC [Compton's death] was pointed out
to an FCC representative.'' According to MEE, the Commission
representative ``explained that a certain percentage of board members
had to change for this to be an issue as it would not [a]ffect the
voting quorum.'' MEE states that it did not file a pro forma transfer
of control application regarding the board changes made at the 5-29-19
Meeting, ``because we had hoped that some of the original board members
might have been able to return.''
14. Phelps replied to the Third LOI Response, accusing MEE of lying
to the Commission about Compton, and about the existence of certain
corporate documents like bylaws and meeting minutes.
15. Section 309(k) of the Act, 47 U.S.C. 309(k), provides that the
Commission shall renew a station's license if it finds that during the
previous license term: (a) The station served the public interest,
convenience, and necessity; (b) there were no serious violations by the
licensee of the Act or the Rules; and (c) there have been no other
violations by the licensee of the Act or Rules which, taken together,
would constitute a pattern of abuse. If a licensee has not met these
requirements, the Commission may deny the licensee's application to
renew its station's license, or grant the application on such terms and
conditions as are appropriate, including a short-term renewal. Prior to
denying a renewal application, the Commission must provide notice and
opportunity for a hearing conducted in accordance with section 309(e)
of the Act, 47 U.S.C. 309(e), and consider whether any mitigating
factors justify the imposition of lesser sanctions.
16. The Commission and 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.'' Full and clear
disclosure of all material facts in every application (or response to a
Commission request for information) is essential to the efficient
administration of the Commission's licensing process, and the
Commission's proper analysis of an application is critically dependent
on the accuracy and completeness of information and data that only the
applicant can provide. Misrepresentation and lack of candor raise
serious concerns as to the likelihood that the Commission can rely on
an applicant, permittee, or licensee to be truthful. Thus,
misrepresentation and lack of candor constitute the types of serious
violations of the Rules that may be grounds for denying a license
renewal application.
17. Section 1.17(a)(1) of the Rules, 47 CFR 1.17(a)(1), provides
that no person shall, in any written or oral statement of fact,
``intentionally provide material factual information that is incorrect
or intentionally omit material information that is necessary to prevent
any material factual statement that is being made from being incorrect
or misleading.'' A misrepresentation (a false statement of fact or
false certification made with intent to deceive the Commission) is
within the scope of section 1.17. Similarly, lack of candor (a
concealment, evasion, or other failure to be fully informative,
accompanied by an intent to deceive the Commission) is within the scope
of the rule. A necessary and essential element of both
misrepresentation and lack of candor is intent to deceive. Intent to
deceive can be found where a licensee or applicant knowingly makes a
false statement (or false certification), and can also be found from
motive or logical desire to deceive, or when the surrounding
circumstances clearly show the existence of intent to deceive.
18. Section 1.17(a)(2) of the Rules, 47 CFR 1.17(a)(2), further
requires that no person may provide, in any written statement of fact,
``material factual information that is incorrect or omit material
information that is necessary to prevent any material factual statement
that is made from being incorrect or misleading without a reasonable
basis for believing that any such material factual statement is correct
and not misleading.'' Thus, even absent an intent to deceive, an
incorrect statement regarding material factual information (or an
omission of such information) may constitute an actionable violation of
section 1.17 of the Rules if the statement (or omission) was made
without a reasonable basis for believing that the material factual
statement was correct and not misleading.
19. Failure to Submit Full and Complete Responses to LOIs. We find
there is a substantial and material question of fact as to whether MEE
violated section 73.1015 of the Rules, 47 CFR 73.1015. That Rule
states: ``The Commission or its representatives may, in writing,
require from any applicant, permittee, or licensee written statements
of fact relevant to a determination whether an application should be
granted or denied, or to a determination whether a license should be
revoked, or to any other matter within the jurisdiction of the
Commission.'' It is important that licensees (and applicants and
permittees) fully respond to Commission requests for information, and
do so in a timely manner. The failure to do so impedes the Commission's
ability to carry out its responsibilities.
20. The First LOI made a straightforward request for a list of all
MEE board members and officers, present and past, and the dates each
person served on the board or as an officer. Despite the clarity and
simplicity of the request, and despite the fact that MEE clearly was in
possession of this information, MEE submitted a list of only its
current board members and officers, and specified only the year (as
opposed to the month, day, and year) in which these individuals were
installed as board members and/or officers. Further, MEE did not submit
any documentation related to its board composition, or the installation
and removal of its board members and officers. MEE also did not submit
the supporting affidavit or declaration required by the First LOI.
21. The Second LOI again requested that MEE identify all
individuals who had served as officers and directors of MEE since it
was first incorporated. It again specified that MEE ``must also state
the position or positions the person held, and the dates on which the
person held those positions.'' In addition, it offered the guidance
that ``if John Doe was an officer or director of MEE, [MEE] would list
his name and then identify the position that he held and when he held
it (i.e., Vice President from January 1, 2019, to December 31, 2020).''
Even though the Second LOI included this specific guidance and even
though it noted that, based on the First LOI Response, it appeared MEE
had made false statements to the Commission, MEE submitted a Second LOI
Response that contained oblique and unclear language regarding its
board composition.
22. The Third LOI directed MEE ``to explain why Compton--who is
listed as an MMF and MEE board member in the Assignment Application--is
not included in its list'' of board members who supported the changes
made to the MEE board membership on May 29, 2019. MEE also was
instructed to ``indicate whether Compton was an MEE board member on May
29, 2019.'' In the Third LOI Response, MEE stated that Compton ``had
passed away'' prior to the 5-29-19 Meeting, but avoided specifying the
date of Compton's death and did not explain why MEE did not list
Compton as an initial board member in the Second LOI Response.
23. There are substantial and material questions of fact regarding
whether MEE submitted incomplete responses to the
[[Page 12700]]
First, Second, and Third LOIs in willful and repeated violation of
section 73.1015 of the Rules. We therefore designate appropriate issues
to determine whether MEE submitted incomplete responses to these three
LOIs in willful and repeated violation of the Rules.
24. Misrepresentation and/or Lack of Candor. In addition, we find
that there are substantial and material questions of fact regarding
whether MEE violated section 1.17(a)(1) (or violated section
1.17(a)(2)) when it listed Worcester, Maniaci, Stolarczyk, and Hazelett
as MEE's board members in the Assignment Application. We note that the
MEE board members listed in the Assignment Application were not those
listed in the First LOI Response or in the materials filed with the
State of Ohio upon MEE's formation, and MEE's explanation for this
discrepancy has changed over time. Moreover, as noted below, questions
have arisen regarding the authenticity of the materials that MEE
submitted to support its claim that Worcester, Maniaci, Stolarczyk, and
Hazelett were members of the MEE board in May 2019.
25. We further find that there are substantial and material
questions of fact regarding whether MEE's listing of Compton as a board
member in the Assignment Application constituted a misrepresentation in
violation of section 1.17(a)(1), or a violation of section 1.17(a)(2).
We note that, at the time MEE filed the Assignment Application, MEE
appears to have been aware that Compton had passed away. We find that
this raises questions as to whether MEE listed Compton as a board
member in the Assignment Application in order to deceive the
Commission. It also suggests that, at a minimum, MEE may have lacked a
reasonable basis for believing that its inclusion of Compton in the
list of MEE board members was correct and not misleading. We note that,
even if, as MEE claims, it pointed Compton's death out to an ``FCC
representative,'' MEE did not do so prior to filing the Assignment
Application, nor has it adequately explained why the Assignment
Application nevertheless listed Compton as a board member of MMF and
MEE.
26. A substantial and material question of fact also exists
regarding whether MEE lacked candor in violation of section 1.17(a)(1)
(or violated section 1.17(a)(2)) when it failed to disclose Compton's
death in the First and Second LOI Responses, and failed to divulge the
date of Compton's death in the Third LOI Response. Given that MEE
divulged the deaths of Maniaci and Hazelett in the First LOI Response
and indicated they had passed away at some point after May 29, 2019, it
appears MEE intentionally avoided mentioning Compton in the First LOI
Response and did so again in the Second LOI Response. Further evidence
of MEE's apparent intent to deceive the Commission can be found in the
Third LOI Response. Therein, despite being instructed to address
Compton's involvement with MEE, MEE only acknowledged Compton's
passing, and avoided stating when Compton had passed away or
acknowledging that Compton had never been involved with MEE. We assume
that MEE believed it was in its interest to mislead the Commission
about Compton's death because, by revealing that Compton passed away in
2016, MEE would have made clear to the Bureau that it had engaged in
misrepresentation and lack of candor in the Assignment Application and
its LOI Responses.
27. Moreover, there is a substantial and material question of fact
regarding whether MEE violated section 1.17(a)(1) by fabricating the
materials it submitted with the Third LOI Response in a post hoc
attempt to provide evidence supporting the version of events set forth
therein. We find it suspicious that MEE did not submit these materials
with its earlier LOI Responses, particularly the Second LOI Response
(which did include some documentation). If, as we suspect, the bylaws
and meeting minutes did not exist at the time MEE submitted its earlier
LOI Responses, that would explain why MEE did not include them with
those responses, and why, in the Second LOI Response, MEE stated it had
provided all materials in its possession. While MEE states in the Third
LOI Response that it omitted these materials from its earlier responses
because it was ``not aware that the FCC wanted to see them,'' we find
this explanation unconvincing. The first two LOIs clearly required such
documents to be produced, and MEE never indicated any confusion over
what was required in its responses to those LOIs.
28. Finally, there is a substantial and material question of fact
regarding whether, as Phelps alleges, MEE falsely stated that the
Station is the ``last station'' in Marion, Ohio, providing local news
and weather to listeners every hour. Phelps states that, contrary to
MEE's statement, another three stations (WMRN(AM), WMRN-FM, and WYNT-
FM) licensed to the community of Marion provide local news and weather
every hour, and an additional two stations (WDIF-LP, and WZMO-LP)
licensed to Marion provide ``weather every hour and local programming
throughout their broadcast days.'' MEE has offered no evidence
demonstrating that Phelps' statement is incorrect. However, we note
that WYNT-FM actually is licensed to Caledonia, Ohio. The other four
stations, though, are licensed to Marion, and, of those, at least one
(WZMO-LP) provides hourly news and weather updates. Accordingly, we
conclude that it appears MEE knowingly provided false information to
the Bureau in order to bolster its argument that the Station's license
should be renewed.
29. We note that Phelps made one additional allegation that MEE had
made a false statement, but find that Phelps did not raise a
substantial and material question of fact regarding this allegation.
Specifically, Phelps alleged that MEE made a false statement in the
Transfer Application regarding why Worcester resigned from the MEE
board. MEE stated that Worcester's resignation was voluntary, but
Phelps alleged it was not, citing an Assurance of Discontinuance that
Worcester (and Spears and MMF) entered into with the Ohio Attorney
General. Because the Assurance of Discontinuance was related to
Worcester's involvement with MMF, not MEE, we find it is not probative
of whether Worcester voluntarily resigned from the MEE board. Phelps
has submitted no other information to support his allegation that
Worcester's resignation from the MEE board was not voluntary.
Therefore, we find he has not raised a substantial and material
question of fact that requires further investigation.
30. To summarize, MEE appears to have misrepresented its board
composition in the Assignment Application. Then, when we inquired about
its board composition, MEE offered different and, at times
inconsistent, explanations. This, in turn, reinforced our initial
concern that MEE knowingly submitted false information in the
Assignment Application, and engendered additional concerns that, in an
attempt to cover up its original misrepresentation, MEE made additional
misrepresentations to, or lacked candor with, the Commission in the LOI
Responses. Our concerns about whether MEE is capable of honesty in
future dealings with the Commission are further bolstered by MEE's
apparent false statement regarding its programming being unique in its
community of license.
31. Failure to File Required Form. We find that a question of fact
exists regarding whether MEE intentionally chose not to notify the
Commission that a pro forma transfer of control of MEE occurred in May
2019. If, as MEE asserts
[[Page 12701]]
in the LOI Responses, its entire board turned over between May 28, and
May 29, 2019, then MEE should have filed a pro forma transfer of
control application within 30 days of this event. It did not do so
despite the fact that it was aware of the need to file such an
application based both on the conversation with an ``FCC
representative'' that it mentions in the Third LOI Response, and based
on the fact that it filed an unnecessary pro forma transfer of control
application when Worcester allegedly resigned as President and board
member on May 28, 2019, and Craft allegedly took her place as
President. MEE admits as much in the Third LOI Response. Thus, a
question of fact exists regarding whether MEE intentionally chose not
to notify the Commission. We find that this question of fact is both
substantial and material, and thus should be examined in the hearing
proceeding. We reach this conclusion because, if MEE intentionally
ignored the notice requirement set forth in section 73.865, that would
demonstrate a propensity for ignoring Commission rules and
requirements, and could render serious a rule violation that might
otherwise be considered minor.
32. Unauthorized Operations. We reject Phelps' argument that MEE
violated section 301 of the Act, which prohibits any person from
transmitting signals by radio ``except under and in accordance with
this chapter and with a license . . . granted under the provisions of
this chapter.'' Phelps argues that MEE violated section 301 of the Act
because it lacked authority to operate the Station between February 12,
2021 (when we dismissed the Renewal Application), and February 16, 2021
(when we returned the Renewal Application to pending status), but kept
the Station on the air. However, Phelps ignores section 307(c)(3) of
the Act, 47 U.S.C. 307(c)(3), which applies to renewal applications and
provides that, ``[p]ending any administrative or judicial hearing and
final decision on such an application and the disposition of any
petition for rehearing pursuant to section 405 or section 402 of [the
Act], the Commission shall continue such license in effect.'' Because
there had been no final decision regarding the Renewal Application, the
Station's license continued in effect, and no unauthorized operation
occurred between February 12, and 16, 2021.
33. Restricted Proceeding. This hearing proceeding is a
``restricted'' proceeding pursuant to section 1.1208 of the Rules, 47
CFR 1.1208, and thus ex parte presentations to or from Commission
decision-making personnel, including the presiding officer and her
staff and Bureau staff, are prohibited, except as otherwise provided in
the Rules.
34. Electronic Filing of Documents. All pleadings in this
proceeding, including written submissions such as letters, discovery
requests and objections and written responses thereto, excluding
confidential and/or other protected material, must be filed in MB
Docket No. 22-76 using ECFS. ECFS shall also act as the repository for
records of actions taken in this proceeding, excluding confidential
and/or other protected material, by the presiding officer and the
Commission. Documents responsive to any party's requests for production
of documents should not be filed on ECFS. Such responsive documents
shall be served directly on counsel for the party requesting the
documents and produced either in hard copy or in electronic form (e.g.,
hard drive, thumb drive) with files named in such a way as it is clear
how the documents are organized.
35. Case Caption. The caption of any pleading filed in this
proceeding, as well as all letters, documents, or other written
submissions including discovery requests and objections and responses
thereto, shall indicate whether it is to be acted upon by the
Commission or the presiding officer. The presiding officer shall be
identified by name.
36. Electronic service on the Enforcement Bureau shall be made
using the following email address: <a href="/cdn-cgi/l/email-protection#1451565c7175667d7a7367547277773a737b62"><span class="__cf_email__" data-cfemail="6326212b0602110a0d0410230500004d040c15">[email protected]</span></a>.
37. Accordingly, it is ordered that, pursuant to sections 309(e),
and 309(k) of the Communications Act of 1934, as amended, and section
1.221(a) of the Commission's Rules, 47 CFR 1.221(a), the captioned
application of The Marion Education Exchange for renewal of license of
station WWGH-LP, Marion, Ohio, is designated for hearing in a
proceeding before the FCC Administrative Law Judge, at a time and place
to be specified in a subsequent order, upon the following issues:
(a) To determine whether The Marion Education Exchange violated
section 73.1015 of the Commission's rules, 47 CFR 73.1015, by failing
to fully and completely respond to Commission letters of inquiry.
(b) To determine whether The Marion Education Exchange violated
section 1.17 of the Commission's rules, 47 CFR 1.17, by making
misrepresentations to, and/or lacking candor with, the Commission both
in the application for consent to assignment of the license of WWGH-LP,
Marion, Ohio, and in its responses to letters of inquiry sent by the
Media Bureau on December 8, 2020, February 17, 2021, and March 30,
2021.
(c) To determine whether The Marion Education Exchange violated
section 73.865 of the Commission's rules, 47 CFR 73.865, by failing to
notify the Commission of the pro forma transfer of control that appears
to have occurred on May 29, 2019, and, if so, whether it did so
intentionally.
(d) To determine, in light of the evidence adduced pursuant to the
specified issues, if the captioned application for renewal of license
for station WWGH-LP should be granted.
38. It is further ordered that, in addition to resolving the
foregoing issues, the hearing shall determine, pursuant to section
503(b)(1) of the Communications Act of 1934, as amended, 47 U.S.C.
503(b)(1), whether an order of forfeiture should be issued against The
Marion Education Exchange in an amount not to exceed the statutory
limit of $55,052 for each violation (or each day of a continuing
violation) of each Commission rule section above for which the statute
of limitations in section 503(b)(6) of the Communications Act of 1934,
as amended, 47 U.S.C. 503(b)(6), has not lapsed.
39. It is further ordered that, in connection with the possible
forfeiture liability noted above, this document constitutes notice
pursuant to section 503(b)(4) of the Communications Act of 1934, as
amended, 47 U.S.C. 503(b)(4).
40. It is further ordered that, pursuant to sections 309(e),
309(k), 312(c) of the Communications Act of 1934, as amended, 47 U.S.C.
309(e), 309(k), 312(c), and section 1.221(c) of the Commission's Rules,
47 CFR 1.221(c), in order to avail itself of the opportunity to be
heard and the right to present evidence at a hearing in this
proceeding, The Marion Education Exchange, itself or by its attorney,
shall file with the Commission, within 20 calendar days of the mailing
of this Hearing Designation Order, Notice of Opportunity for Hearing,
and Notice of Apparent Liability for Forfeiture, a written appearance
stating its intention to appear at the hearing and present evidence on
the issues specified above.
41. It is further ordered that pursuant to section 1.221(c) of the
Commission's Rules, if The Marion Education Exchange fails to file a
written appearance within the time specified above, or has not filed
prior to expiration of that time a petition to dismiss without
prejudice, or a petition to accept, for good cause shown, such written
appearance beyond expiration of said 20 days, the pending application
will be dismissed with prejudice for failure to prosecute.
[[Page 12702]]
42. It is further ordered that, pursuant to section 1.221(d) of the
Commission's rules, 47 CFR 1.221(d), the Chief, Enforcement Bureau, is
made a party to this proceeding without the need to file a written
appearance.
43. It is further ordered that, in accordance with section 309(e)
of the Communications Act of 1934, as amended, 47 U.S.C. 309(e), and
section 1.254 of the Commission's Rules, 47 CFR 1.254, the burden of
proceeding with the introduction of evidence and the burden of proof
with respect to the issues listed above shall be upon The Marion
Education Exchange.
44. It is further ordered that a copy of each document filed in
this proceeding subsequent to the date of adoption of this Hearing
Designation Order, Notice of Opportunity for Hearing, and Notice of
Apparent Liability for Forfeiture shall be served on the counsel of
record appearing on behalf of the Chief, Enforcement Bureau. Parties
may inquire as to the identity of such counsel by calling the
Investigations & Hearings Division of the Enforcement Bureau at (202)
418-1420. Such service copy shall be addressed to the named counsel of
record, Investigations & Hearings Division, Enforcement Bureau, Federal
Communications Commission, 45 L Street NE, Washington, DC 20554.
45. It is further ordered, that The Marion Education Exchange,
pursuant to section 311(a)(2) of the Communications Act of 1934, as
amended, 47 U.S.C. 311(a)(2), and section 73.3594 of the Commission's
Rules, 47 CFR 73.3594, shall give notice of the hearing within the time
and in the manner prescribed in such Rule, and shall advise the
Commission of the publication of such notice as mandated by section
73.3594 of the Commission's Rules.
46. It is further ordered that a copy of this Hearing Designation
Order, Notice of Opportunity for Hearing, and Notice of Apparent
Liability for Forfeiture shall be sent via Certified Mail, Return
Receipt Requested, and by regular first-class mail to The Marion
Education Exchange, PO Box 43302, Marion, OH 43302, and Shawn Craft,
1366 Montego Drive, Marion, OH 43302.
47. It is further ordered that the Secretary of the Commission
shall cause to have this Hearing Designation Order, Notice of
Opportunity for Hearing, and Notice of Apparent Liability for
Forfeiture, or a summary thereof published in the Federal Register.
Federal Communications Commission.
Thomas Horan,
Chief of Staff, Media Bureau.
[FR Doc. 2022-04757 Filed 3-4-22; 8:45 am]
BILLING CODE 6712-01-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on March 7, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.