[Federal Register Volume 83, Number 48 (Monday, March 12, 2018)]
[Notices]
[Pages 10726-10729]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-04942]


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FEDERAL COMMUNICATIONS COMMISSION

[MB Docket No. 18-11; FCC 18-2]


Birach Broadcasting Corporation, Applications for Renewal of 
Licenses of AM Radio Stations WBVA, Bayside, Virginia and WVAB, 
Virginia Beach, Virginia

AGENCY: Federal Communications Commission.

ACTION: Notice.

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SUMMARY: This document commences a hearing to determine whether the 
applications filed by Birach Broadcasting Corporation (Birach) to renew 
its licenses for AM radio stations WBVA, Bayside, Virginia and WVAB, 
Virginia Beach, Virginia, should be granted. The applications have been 
designated for hearing based on the stations' extended periods of 
silence since April 1, 2008, when Birach became the licensee of the 
stations.

DATES: Persons desiring to participate as parties in the hearing shall 
file a petition for leave to intervene not later than April 11, 2018.

ADDRESSES: File documents with the Office of the Secretary, Federal 
Communications Commission, 445 12th Street SW, 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. 18-11.''

FOR FURTHER INFORMATION CONTACT: Albert Shuldiner, Media Bureau, (202) 
418-2700.

SUPPLEMENTARY INFORMATION: This is a summary of the Hearing Designation 
Order (Order), MB Docket No. 18-11, FCC 18-2, adopted January 19, 2018, 
and released January 22, 2018. The full text of the Order is available 
for inspection and copying during normal business hours in the FCC's 
Reference Information Center at Portals II, CY-A257, 445 12th Street 
SW, Washington, DC 20554. The full text is also available online at 
http://apps.fcc.gov/ecfs/.

Summary of the Hearing Designation Order

    1. The Order commences a hearing proceeding before the Commission 
to determine whether the applications filed by Birach Broadcasting 
Corporation (Birach) to renew the licenses for AM radio stations WBVA, 
Bayside, Virginia (WBVA Renewal Application), and WVAB(AM), Virginia 
Beach, Virginia (WVAB Renewal Application) should be granted pursuant 
to section 309(k)(1) of the

[[Page 10727]]

Communications Act of 1934 (Act), 47 U.S.C. 309(k)(1). The WBVA Renewal 
Application and the WVAB Renewal Applications are designated for 
hearing based on the stations' records of extended periods of silence 
during and following their license renewal terms.
    2. A broadcast licensee's authorization to use radio spectrum in 
the public interest carries with it the obligation that the station 
serve its community, providing programming responsive to local needs 
and interests. Broadcast licensees also are required to operate in 
compliance with the Act and the Commission's rules (Rules). These 
requirements include the obligation to transmit potentially lifesaving 
national level Emergency Alert System (EAS) messages in times of 
emergency and to engage in periodic tests to ensure that their stations 
are equipped to do so.
    3. The basic duty of broadcast licensees to serve their communities 
is reflected in the license renewal provisions of the Act. In 1996, 
Congress revised the Commission's license renewal process and the 
renewal standards for broadcast stations by adopting Section 309(k) of 
the Act, 47 U.S.C. 309(k). Section 309(k)(1) of the Act, 47 U.S.C. 
309(k)(1), provides that the Commission shall grant a license renewal 
application if it finds, with respect to the applying station, that 
during the preceding license term: (a) The station has served the 
public interest, convenience, and necessity; (b) there have been 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 the 
Rules which, taken together, would constitute a pattern of abuse. 
Section 309(k)(2) of the Act, 47 U.S.C. 309(k)(2), provides that if a 
station fails to meet the foregoing standard, the Commission may deny 
the renewal application pursuant to section 309(k)(3), 47 U.S.C. 
309(k)(3), or grant the application on appropriate terms and 
conditions, including a short-term renewal. Section 309(k)(3) of the 
Act, 47 U.S.C. 309(k)(3), provides that if the Commission determines, 
after notice and opportunity for hearing, that the licensee has failed 
to meet the standard of section 309(k)(1), 47 U.S.C. 309(k)(1), and 
that no mitigating factors justify the imposition of lesser sanctions, 
the Commission shall issue an order denying the license renewal 
application for the station.
    4. The assignment of the licenses of WBVA and WVAB from an estate 
in bankruptcy to Birach was consummated on April 1, 2008. WBVA's 
operational history since that date is as follows: (a) Silent for 1225 
days during the remaining license term from April 1, 2008 to October 1, 
2011 (with 151 of those days unauthorized) and for 2186 days from 
October 2, 2011 to November 30, 2017 (with 141 of those days 
unauthorized); and (b) operating at 30 watts of power pursuant to 
special temporary authority (STA) for 54 days during the remaining 
license term in 2009-2011 (22 days in 2009, 10 days in 2010, and 22 
days in 2011) and for 66 days from the end of the license term until 
November 30, 2017 (14 days in 2012, 6 days in 2013, 4 days in 2014, 8 
days in 2015, 8 days in 2016, and 26 days in 2017).
    5. WBVA is a Class C AM station licensed to operate with 1 kilowatt 
of power from a site in Virginia Beach, Virginia. Shortly before Birach 
purchased WBVA, the interim trustee in bankruptcy filed an application 
for STA to go silent, explaining that the station's tower had been 
vandalized and fallen, on or about March 15, 2008. During Birach's 
tenure as licensee of WBVA for the balance of the license term ending 
in 2011, the station was silent except for brief periods of operations 
from temporary sites with a power level of 30 watts. On May 18, 2011, 
Birach filed the WBVA Renewal Application.
    6. Following the filing of the WBVA Renewal Application, WBVA 
continued its pattern of brief 30-watt operations followed by extended 
periods of silence. In 2013, Birach sought and received a construction 
permit for permanent full-power operation at a new transmitter site. 
However, that permit expired after three years. Birach stated that it 
was unable to obtain zoning approval to construct a tower at that site.
    7. WBVA's temporary 30-watt operations were limited in the area 
served as well as the days of operation. Although those low-power 
operations provided city-grade coverage of the community of license 
(Bayside, Virginia), they covered approximately ten percent of the 
station's licensed service area, excluding areas covered by water.
    8. WVAB's operational history from April 1, 2008 through November 
30, 2017 is as follows: (a) Silent for 1231 days during the remaining 
license term from April 1, 2008 to October 1, 2011 (with 157 of those 
days unauthorized) and for 1943 days from October 2, 2011 to November 
30, 2017 (with 153 of those days unauthorized); and (b) operating at 6 
watts of power pursuant to STA for 48 days during the remaining license 
term in 2009-2011 (16 days in 2009, 10 days in 2010, and 22 days in 
2011) and for 309 days from the end of the license term until November 
30, 2017 (14 days in 2012, 6 days in 2013, 9 days in 2014, 12 days in 
2015, 19 days in 2016, and 249 days in 2017).
    9. WVAB is a Class C AM station licensed to operate with 5 
kilowatts of power. Within the relevant time periods, WVAB has always 
been co-located with WBVA. WVAB's operational history has been similar 
to WBVA's during the time period under review, except WVAB has operated 
with only 6 watts of power during its STA operations. At the STA power 
level of 6 watts, WVAB serves only a small portion of its community of 
license (Virginia Beach, Virginia). A modification of a licensed AM 
station requires 50 percent coverage of the population and land area of 
the station's community of license with a city-grade signal. WVAB's STA 
service provides a predicted city-grade signal to only 6.3 percent of 
the Virginia Beach population and 1.7 percent of the Virginia Beach 
land area. As for overall signal coverage, WVAB's predicted coverage 
for its STA operation is less than two percent of its licensed coverage 
area.
    10. Section 309(k)(3) of the Act, 47 U.S.C. 309(k)(3), requires 
``notice and opportunity for a hearing as provided in subsection (e).'' 
Section 309(e), 47 U.S.C. 309(e), requires a ``full hearing in which 
the applicant and all other parties in interest shall be permitted to 
participate.'' The Commission and courts have held that the hearing 
need not be a trial-type evidentiary hearing meeting the standards of 
sections 554 and 556 of the Administrative Procedure Act, 5 U.S.C. 554, 
556. The Commission has repeatedly observed that trial-type hearings 
impose significant burdens and delays, both on applicants and the 
agency. We have found no substantial issues of material fact or any 
credibility issues regarding these renewal applications. We thus 
believe cases such as this one can be appropriately resolved with a 
``paper'' hearing.
    11. We have identified no substantial and material questions of 
fact with respect to the WBVA Renewal Application and the WVAB Renewal 
Application, which present only a narrow range of issues for Commission 
consideration. Thus, many Subpart B rules are facially irrelevant to 
this proceeding. In these circumstances, we find that the use of 
summary procedures would expedite the resolution of this hearing while 
affording Birach the full hearing required by section 309, 47 U.S.C. 
309, and not placing unnecessary burdens on the licensee. Accordingly, 
we find that the following rules are either inapplicable to or would 
serve no useful purpose in this proceeding: 47

[[Page 10728]]

CFR 1.221(c)-(h); 1.241-1.253; 1.255-1.279; 1.282(a) and (b)(2); 1.297-
1.340; and 1.352-1.364.
    12. Anyone seeking status as a party in interest in this proceeding 
must file a petition to intervene in accordance with 47 CFR 1.223(a). 
Anyone else seeking to participate in the hearing as a party may file a 
petition for leave to intervene in accordance with 47 CFR 1.223(b). Any 
filing in this docket must be served in accordance with 47 CFR 1.211 on 
all other parties, including each person or entity that has filed a 
petition to intervene or petition for leave to intervene, pending a 
ruling on each such petition. We expect that intervenor status will be 
granted only with respect to a specific Birach station unless a showing 
is made that the intervenor has standing to participate more broadly.
    13. Birach shall have the right to seek reconsideration of any 
interlocutory action in this proceeding. Accordingly, we waive the 47 
CFR 1.106(a) restriction limiting the filing of a petition for 
reconsideration by Birach of this hearing designation order.
    14. Birach shall file in this docket, within 30 days of publication 
of notice of the Order in the Federal Register, complete copies of the 
following records for WBVA and WVAB (as such records exist as of the 
release date of the Order): (a) All station logs for the relevant 
license term; (b) all quarterly issues and programs lists for the 
relevant license term; and (c) to the extent not included in the 
station logs, all EAS System participant records for the relevant 
license term. Birach may not destroy or remove any of such records 
prior to such filing, or redact or modify any information in such 
records as they exist as of the release date of the Order. In the event 
that, on or after the release date of the Order, Birach creates or 
modifies any documents that it so provides, each such document should 
be prominently marked with the date that it was created or revised 
(identifying the revision(s)) and Birach should include in the 
sponsoring affidavit or declaration an explanation of who created or 
revised the document and when he or she did so. We otherwise will 
conduct the hearing without discovery, although the Commission or its 
staff may make inquiries or conduct investigations pursuant to Part 73 
of the Rules and any reports filed in this docket as a result of such 
inquiries or investigations will become part of the record in this 
hearing.
    15. We will take official notice of all publicly-available 
Commission records for WBVA and WVAB as part of the record in this 
docket. Birach has the burden of proceeding with evidence and the 
burden of proof in this hearing. Within 60 days of publication of 
notice of the Order in the Federal Register, Birach will file a written 
direct case on the designated issues for WBVA and WVAB, no longer than 
50 pages, and supported by an affidavit or unsworn declaration pursuant 
to 47 CFR 1.16. Within 30 days of Birach's filing, any other person 
granted party status may file a responsive submission, no longer than 
25 pages and supported by an affidavit or unsworn declaration. Within 
10 days of the deadline for filing such responses, Birach may file a 
rebuttal submission addressing all responses, no longer than 25 pages 
and supported by an affidavit or unsworn declaration.
    16. Accordingly, it is ordered, pursuant to sections 309(e) and 
(k)(3) and 312(g) of the Communications Act of 1934, as amended, 47 
U.S.C. 309(e), 309(k)(3) and 312(g), the captioned applications for 
renewal of licenses for Stations WBVA(AM) and WVAB(AM) are designated 
for a hearing upon the following issues: (a) To determine, with respect 
to Station WBVA(AM), Bayside, Virginia, whether, during the preceding 
license term, (i) the station has served the public interest, 
convenience, and necessity, (ii) there have been any serious violations 
by the licensee of the Communications Act of 1934, as amended, or the 
rules and regulations of the Commission, and (iii) there have been any 
other violations of the Communications Act of 1934, as amended, or the 
rules and regulations of the Commission which, taken together, would 
constitute a pattern of abuse; (b) In light of the evidence adduced 
pursuant to issue (a) above, whether the captioned application for 
renewal of the license for Station WBVA(AM) should be granted on such 
terms and conditions as are appropriate, including renewal for a term 
less than the maximum otherwise permitted, or denied due to failure to 
satisfy the requirements of section 309(k)(1) of the Communications Act 
of 1934, as amended, 47 U.S.C. 309(k)(1); (c) To determine, with 
respect to Station WVAB(AM), Virginia Beach, Virginia, whether, during 
the preceding license term, (i) the station has served the public 
interest, convenience, and necessity, (ii) there have been any serious 
violations by the licensee of the Communications Act of 1934, as 
amended, or the rules and regulations of the Commission, and (iii) 
there have been any other violations of the Communications Act of 1934, 
as amended, or the rules and regulations of the Commission which, taken 
together, would constitute a pattern of abuse; and (d) In light of the 
evidence adduced pursuant to issue (c) above, whether the captioned 
application for renewal of the license for Station WVAB(AM) should be 
granted on such terms and conditions as are appropriate, including 
renewal for a term less than the maximum otherwise permitted, or denied 
due to failure to satisfy the requirements of section 309(k)(1) of the 
Communications Act of 1934, as amended, 47 U.S.C. 309(k)(1).
    17. It is further ordered, pursuant to 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, that the burden of 
proceeding with the introduction of evidence and the burden of proof 
with respect to the issues specified in Paragraph 22 of the Order shall 
be on the applicant, Birach Broadcasting Corporation.
    18. It is further ordered that Birach Broadcasting Corporation is 
made a party to this proceeding.
    19. It is further ordered that, to avail itself of the opportunity 
to be heard and the right to present evidence at a hearing in these 
proceedings, Birach Broadcasting Corporation shall file complete and 
correct copies of the documents described in Paragraph 20 of the Order, 
on or before the date specified. If Birach Broadcasting Corporation 
fails to file such documents for either WBVA(AM) or WVAB(AM) within the 
time specified, or a petition to accept, for good cause shown, such 
filing beyond the expiration of such period, its captioned license 
renewal application for such station shall be dismissed with prejudice 
for failure to prosecute and the license of such station shall be 
terminated.
    20. It is further ordered that Birach Broadcasting Corporation 
shall, pursuant to section 311(a)(2) of the Communications Act of 1934, 
as amended, 47 U.S.C. 311(a)(2), and 47 CFR 73.3594, give notice of the 
hearing within the time and in the manner prescribed therein, and 
thereafter submit the statement described in 47 CFR 73.3594(g).
    21. It is further ordered that a copy of this Order shall be sent 
by Certified Mail, Return Receipt Requested, and by regular first-class 
mail to Birach Broadcasting Corporation, 21700 Northwestern Highway, 
Tower 14, Suite 1190, Southfield MI 48075, with a copy to its counsel 
of record, John C. Trent, Esq., 200 South Church Street, Woodstock, VA 
22664.
    22. It is further ordered that the Secretary of the Commission 
shall cause

[[Page 10729]]

to have this Order or a summary thereof published in the Federal 
Register.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 2018-04942 Filed 3-9-18; 8:45 am]
 BILLING CODE 6712-01-P