[Federal Register Volume 79, Number 109 (Friday, June 6, 2014)]
[Notices]
[Pages 32733-32736]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-13266]


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FEDERAL COMMUNICATIONS COMMISSION

[MB Docket No. 14-82; DA 14-703]


Patrick Sullivan (Assignor) and Lake Broadcasting, Inc. 
(Assignee), Application for Consent To Assignment of License of FM 
Translator Station W238CE, Montgomery, Alabama

AGENCY: Federal Communications Commission.

ACTION: Notice.

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SUMMARY: This document commences a hearing to determine whether the 
application of Patrick Sullivan (Sullivan), licensee of FM Translator

[[Page 32734]]

Station W238CE, Montgomery, Alabama, to assign the W238CE license to 
Lake Broadcasting, Inc. (LBI), File No. BALFT-20120523ABY (Assignment 
Application), should be granted. The hearing will include issues 
regarding whether LBI's sole shareholder, Michael S. Rice (Rice), is 
qualified to be a Commission licensee, based on prior proceedings in 
which authorizations held by companies owned by Rice were revoked based 
on Rice's felony convictions, and on misrepresentations and lack of 
candor by Rice and his companies.

DATES: Persons desiring to participate as parties in the hearing shall 
file a petition for leave to intervene not later than July 7, 2014.

ADDRESSES: Please file documents with the Office of the Secretary, 
Federal Communications Commission, 445 12th Street SW., Washington, DC 
20554. Each document that is filed in this proceeding must display on 
the front page the document number of this hearing, ``MB Docket No. 14-
82.''

FOR FURTHER INFORMATION CONTACT: Gary Schonman, Special Counsel, 
Enforcement Bureau, (202) 418-1420.

SUPPLEMENTARY INFORMATION: This is a summary of the Hearing Designation 
Order (Order), DA 14-703, adopted May 23, 2014, and released May 23, 
2014. The full text of the Order is available for inspection and 
copying during regular business hours in the FCC Reference Center, 445 
12th Street SW., Room CY-A257, Portals II, Washington, DC 20554, and 
may also be purchased from the Commission's copy contractor, BCPI, 
Inc., Portals II, 445 12th Street SW., Room CY-B402, Washington, DC 
20554. Customers may contact BCPI, Inc. via their Web site, http://www.bcpi.com, or call 1-800-378-3160. This document is available in 
alternative formats (computer diskette, large print, audio record, and 
Braille). Persons with disabilities who need documents in these formats 
may contact the FCC by email: [email protected]v or phone: 202-418-0530 or 
TTY: 202-418-0432.

Summary of the Hearing Designation Order

    1. This Order commences a hearing proceeding before an 
Administrative Law Judge to determine whether the application of 
Sullivan for Consent to Assignment of the License of FM Translator 
Station W238CE, Montgomery, Alabama (Station), to LBI (Assignment 
Application) should be granted. LBI's president, director, and sole 
shareholder, Rice, is a convicted felon who previously held radio 
station authorizations, through LBI and other entities, which were 
revoked on the basis of Rice's felony convictions and misrepresentation 
to and lack of candor before the Commission.\1\ Significant and 
material questions exist as to whether, on the basis of Rice's criminal 
convictions and misrepresentations, Rice and, hence, LBI possess the 
basic character qualifications to hold the Station authorization. 
Because the Media Bureau (Bureau) is unable to make a determination on 
the record currently before it that grant of the Assignment Application 
would serve the public interest, convenience and necessity, it 
designates the Assignment Application for hearing.
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    \1\ See Contemporary Media, Inc., Initial Decision, 12 FCC Rcd 
14254 (ALJ 1997) (CMI ID); Contemporary Media, Inc., Decision, 13 
FCC Rcd 14437 (1998) (CMI Decision), recon. denied, Order, 14 FCC 
Rcd 8790 (1999), aff'd sub nom., Contemporary Media, Inc. v. FCC, 
214 F.3d 187 (D.C. Cir. 2000) (Contemporary Media), cert. denied, 
532 U.S. 920, 121 S.Ct. 1355 (2001).
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    2. On July 5, 1994, Rice was convicted of four felony counts of 
sodomy, six felony counts of deviate sexual assault in the first 
degree, and two felony counts of deviate sexual assault in the second 
degree, involving five children. Rice was sentenced to a total of 84 
years in prison, which ran concurrently, thus he was incarcerated for 
just over five years, and was released from prison in December 1999. At 
the time of his 1994 conviction, Rice held a 67.5 percent ownership 
interest in LBI; he subsequently became and remains the owner of all 
issued shares of LBI's stock.
    3. By Order to Show Cause and Notice of Apparent Liability, the 
Commission directed LBI and two other Rice-owned broadcast companies to 
show cause why their licenses and construction permits should not be 
revoked. Following a full and complete evidentiary hearing, the 
Presiding Administrative Law Judge concluded that Rice's felony 
convictions and his companies' misrepresentation and lack of candor 
constituted independent grounds for disqualification of the licensees 
and revocation of their authorizations. The conclusions reached in the 
Initial Decision were affirmed through all administrative and judicial 
appeals.
    4. On May 23, 2012, Sullivan filed the Assignment Application, 
which was accepted for filing May 24, 2012. Sullivan and LBI 
acknowledge Rice's criminal history, but argue that Rice is now 
qualified to be a Commission licensee because he has been sufficiently 
rehabilitated. The Assignment Application was opposed by Child Protect, 
a Children's Advocacy Center serving Montgomery and surrounding Alabama 
counties, which filed a December 20, 2012, informal objection.
    5. Under Commission policy regarding character qualifications non-
FCC misconduct, including evidence of any felony conviction, may raise 
a substantial and material question of fact concerning a licensee's 
character. Conviction of certain felonies involving misconduct so 
egregious as to shock the conscience and evoke almost universal 
disapprobation might constitute prima facie evidence that the applicant 
lacks the traits of reliability and/or truthfulness necessary to be a 
licensee. The U.S. Court of Appeals for the District of Columbia 
Circuit opined that sexual offenses involving minors fall into this 
category. (Contemporary Media, 214 F.3d at 193)
    6. The Bureau finds that substantial and material questions remain 
regarding whether Rice has been sufficiently rehabilitated and, 
therefore, is qualified to hold the Station's license. First, although 
Rice was convicted more than a decade ago, the ten-year period that the 
Commission generally considers as relevant to character considerations 
has no bearing on whether the underlying allegations of misconduct can 
be proved or disproved where, as here, there are felony convictions, 
adverse character determinations, and license revocations that are not 
subject to retrial in this hearing. Without other compelling evidence 
of rehabilitation, a rote application of the Commission's general ten-
year time limitation policy would not serve the public interest in this 
instance.
    7. The Bureau's review of the materials submitted in support of the 
Assignment Application leads it to conclude that the testimonials 
therein are of limited probative value. For example, while LBI avers 
that the State of Missouri has ``fully restored'' Rice to his rights as 
a citizen, as evidence of his full rehabilitation, it neither defines 
``full restoration of rights,'' nor mentions Rice's required inclusion 
on an official Sex Offender Registry as a consequence of his 
conviction. LBI further provides a two-page letter, dated October 31, 
2011, from Wayne A. Stillings, M.D. (Stillings), Rice's psychiatrist 
for the last 20 years, attached to which is Stillings's eight-page 
Declaration, executed May 17, 2001, more than ten years prior to the 
letter. Stillings states that Rice's conduct that led to his criminal 
convictions was the result of a combination of psychiatric illnesses 
that are physiological in nature, and that Rice could not control his 
conduct and was unaware of these illnesses prior to commencing 
treatment in 1991. Stillings states that each of Rice's disorders has

[[Page 32735]]

been in remission for approximately ten years, and that there is no 
reason to anticipate that any of Rice's disorders will again become 
active as long as Rice continues to take his prescribed medications and 
to pursue the appropriate therapy. The Bureau finds, however, that 
Stillings's testimony substantially contradicts the record in this 
case, or is beyond the scope of expert medical testimony, setting forth 
conclusions of law rather than of medicine or psychiatry. Moreover, the 
declaration's age raises questions regarding its probative value.
    8. Additionally, the materials submitted do not deal in any 
meaningful way with Rice's lack of candor and misrepresentation 
regarding his participation in the management and operation of his 
stations following his arrest, the second independent ground underlying 
the revocation of LBI's prior authorizations. Misrepresentation and 
lack of candor are sufficient grounds for revocation of licenses, and 
were cited as separate and independent grounds for revoking the Rice 
Companies' authorizations. (CMI Decision, 13 FCC Rcd at 14459) However, 
LBI's rehabilitation showing is almost exclusively devoted to Rice's 
criminal convictions. Any determination regarding Rice's or LBI's 
qualifications to be a Commission licensee must evaluate Rice's candor 
and truthfulness before the Commission. The Application does not 
present a sufficient record on which to make that determination. The 
four letters submitted on Rice's behalf consist either of vague 
platitudes concerning Rice's honesty, his positions with non-broadcast 
associations, and his personal kindness, or speak only of Rice's 
technical expertise as a broadcaster. Such statements shed little light 
on Rice's character as a potential Commission licensee, particularly 
given that there is no indication that the declarants are aware of the 
details of Rice's background or his prior criminal acts, and could 
therefore speak to his rehabilitation from those past acts. The Bureau 
is unable to find on the basis of these letters that Rice possesses the 
requisite good character to become a Commission licensee.
    9. With regard to Child Protect's Informal Objection, so considered 
because it was untimely filed (see 47 CFR 73.3584(a)), the above 
discussion addresses Child Protect's first concern regarding Rice's 
past criminal convictions and potential rehabilitation. The Bureau 
finds, however, that Child Protect does not set forth facts sufficient 
to raise a substantial and material question of fact regarding Rice's 
alleged control over Station WRZB(AM), Wetumpka, Alabama. Rice's 
company CMI programs WRZB(AM) pursuant to a Local Marketing Agreement 
(LMA). Child Protect does not set forth specific facts, supported by 
the affidavit of a person with personal knowledge, demonstrating that 
WRZB(AM)'s licensee abrogated its ultimate responsibility for essential 
station functions. Child Protect therefore does not make out a prima 
facie case of any statutory or rule violation, and the Bureau declines 
to designate this issue.
    10. In light of the foregoing, the Bureau believes that there 
remain substantial and material questions of fact as to whether Rice, 
and therefore LBI, possesses the requisite character qualifications to 
be a Commission licensee. Having examined all of the record evidence 
regarding Rice's character and finding it lacking in probative value, 
and given the seriousness of the criminal behavior in which Rice 
engaged, the Bureau believes that a hearing before an Administrative 
Law Judge is warranted. Such a hearing will provide the best forum to 
evaluate whether Rice has been rehabilitated to an extent that the 
Commission is fully confident Rice will refrain from engaging in the 
kind of behavior for which he was convicted; Rice and/or LBI can be 
relied upon to be truthful, candid, and forthcoming in their dealings 
with the Commission; and Rice and/or LBI will comply in all other 
respects with the Commission's Rules, regulations, and policies. 
Consequently, appropriate issues will be designated for hearing.
    11. Accordingly, it is ordered that, pursuant to section 309(e) of 
the Communications Act of 1934, as amended, 47 U.S.C. 309(e), the 
Assignment Application, File No. BALFT-20120523ABY, is designated for 
hearing in a proceeding before an FCC Administrative Law Judge, at a 
time and place to be specified in a subsequent Order, upon the 
following issues: (a) To determine the effects, if any, of Michael S. 
Rice's felony convictions on his qualifications and/or the 
qualifications of Lake Broadcasting, Inc., to be a Commission licensee; 
(b) To determine the effects, if any, of the misrepresentation and lack 
of candor by Michael S. Rice's broadcast companies on his 
qualifications and/or the qualifications of Lake Broadcasting, Inc., to 
be a Commission licensee; (c) To determine, in light of the evidence 
adduced pursuant to the foregoing issues, whether Michael S. Rice and/
or Lake Broadcasting, Inc., is qualified to be a Commission licensee; 
and (d) To determine, in light of the evidence adduced pursuant to the 
foregoing issues, whether the captioned Application for consent to the 
assignment of license for Station W238CE should be granted.
    12. It is further ordered that to avail themselves of the 
opportunity to be heard and the right to present evidence at a hearing 
in these proceedings, pursuant to Sec.  1.221 of the Commission's 
rules, Lake Broadcasting, Inc., and Patrick Sullivan, in person or by 
their attorneys, shall file, within 20 days of the mailing of this 
Hearing Designation Order, written appearances in triplicate stating 
their respective intentions to appear on the date fixed for hearing and 
to present evidence on the issues specified in this Hearing Designation 
Order.
    13. It is further ordered, pursuant to Sec.  1.221 of the 
Commission's rules, that if Lake Broadcasting, Inc., or Patrick 
Sullivan fails to file a written appearance within the time specified 
above, or has not filed prior to the 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 
Presiding Administrative Law Judge shall expeditiously dismiss the 
captioned application with prejudice for failure to prosecute.
    14. It is further ordered that the Chief, Enforcement Bureau, is 
made a party to this proceeding without the need to file a written 
appearance.
    15. 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 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, 445 12th Street SW., Washington, DC 20554.
    16. It is further ordered, that the Presiding Administrative Law 
Judge shall not, in the context of this hearing proceeding, relitigate 
any of the findings of fact and/or conclusions of law contained in any 
order or opinion relating to the state court proceeding in which 
Michael S. Rice was determined to be a convicted felon or in any order 
or opinion relating to the Commission proceeding in which Michael S. 
Rice and/or the broadcast companies in which he held an interest were

[[Page 32736]]

previously determined to be unqualified.
    17. It is further ordered, that, in accordance with section 309(e) 
of the Communications Act of 1934, as amended, the burdens of 
proceeding with the introduction of evidence and of proof with respect 
to all issues designated herein SHALL BE upon the parties to the 
captioned application.
    18. It is further ordered that, given the very serious questions 
that exist as to whether Michael S. Rice and/or Lake Broadcasting, Inc. 
is qualified to hold a Commission license and operate a radio facility 
in the public interest, the Presiding Administrative Law Judge shall, 
to the fullest extent possible, ensure that each of the issues 
designated herein is thoroughly explored and his Initial Decision is 
predicated on a full and complete evidentiary record.
    19. It is further ordered, that the parties to the captioned 
application shall, pursuant to section 311(a)(2) of the Communications 
Act of 1934, as amended, 47 U.S.C. 311(a)(2), and Sec.  73.3594 of the 
Commission's rules, 47 CFR 73.3594, 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 required by Sec.  
73.3594(g) of the Commission's rules, 47 CFR 73.3594(g).
    20. It is further ordered that the December 20, 2012, letter filing 
of Child Protect is dismissed as a Petition to Deny. It is further 
ordered that the December 20, 2012, letter filing of Child Protect is 
denied as an Informal Objection as to the allegations therein regarding 
an unlawful transfer of control of station WRZB(AM) to Contemporary 
Media, Inc. and/or Michael S. Rice.
    21. It is further ordered that copies of this Hearing Designation 
Order shall be sent via Certified Mail, Return Receipt Requested, and 
by regular first class mail to the following: Jerold L. Jacobs, Esq., 
Law Offices of Jerold L. Jacobs, 1629 K Street NW., Suite 300, 
Washington, DC 20006 (Attorney for Patrick Sullivan and Lake 
Broadcasting, Inc.); Patrick Sullivan, 22932 Abrolat Road, Wright City, 
MO 63390; Lake Broadcasting, Inc., P.O. Box 1268, St. Peters, MO 63376; 
Jannah M. Bailey, Executive Director, Child Protect, 935 S. Perry 
Street, Montgomery, AL 36104.

Federal Communications Commission.
William T. Lake,
Chief, Media Bureau.
[FR Doc. 2014-13266 Filed 6-5-14; 8:45 am]
BILLING CODE 6712-01-P