[Federal Register Volume 86, Number 207 (Friday, October 29, 2021)]
[Notices]
[Pages 60038-60040]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-23606]


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FEDERAL COMMUNICATIONS COMMISSION

[MB Docket No. 21-401; FCC 21-1305; FR ID 55481]


Roger Wahl, Radio Station WQZS(FM), Meyersdale, PA

AGENCY: Federal Communications Commission.

ACTION: Notice.

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SUMMARY: This document commences a hearing to determine whether, in 
light of recent criminal convictions, Roger Wahl is qualified to hold 
FCC authorizations, and as a consequence, whether his license for FM 
radio station WQZS, Meyersdale, PA should be revoked.

DATES: Persons desiring to participate as parties in the hearing shall 
file a petition for leave to intervene not later than November 29, 
2021.

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. 21-401.''

FOR FURTHER INFORMATION CONTACT: Albert Shuldiner, Media Bureau, (202) 
418-2721.

SUPPLEMENTARY INFORMATION: This is a summary of the Hearing Designation 
Order and Order to Show Cause (Order), MB Docket No. 21-401, FCC DA 21-
1305, adopted and released October 19, 2021. The full text of the Order 
is available online by using the search function for MB Docket No. 21-
401 on the Commission's ECFS web page 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 certain criminal convictions render licensee, 
Roger Wahl (Wahl), unqualified to hold FCC authorizations, and 
consequently, whether the license for WQZS(FM), Meyersdale, PA should 
be revoked under section 312(a)(2) and 312(c) of the Communications Act 
of 1934 (Act), 47 U.S.C. 312(a)(2) and 312(c). This revocation 
proceeding stems from Wahl's felony conviction and related misdemeanor 
convictions in 2020 under the Pennsylvania Crimes Code.
    2. In determining whether a party is qualified to be a broadcast 
station licensee, the Commission considers factors specified in the 
Act, including character qualifications. Section 312(a)(2) of the Act, 
47 U.S.C. 312(a)(2), provides that the Commission may revoke any 
license if conditions present would warrant refusal to grant a license 
or permit. Because the Commission considers character qualify in its 
review of broadcast applications, a character defect that would warrant 
the Commission's refusal to grant a license or permit would likewise 
support a Commission determination to revoke a license or permit.
    3. Non-FCC misconduct may raise substantial and material questions 
of fact concerning the licensee's character. The Commission considers 
evidence of felony convictions because felonies are serious crimes and 
conviction provides an indication regarding an applicant's propensity 
to obey laws and conform to provisions of the Act, Rules, and 
Commission policies. The Commission retains discretion to consider 
other types of non-FCC misconduct that may be relevant, including 
misdemeanors.
    4. On July 8, 2020, Wahl pleaded guilty to criminal use of a 
communication facility, which is a third-degree felony, and four 
related misdemeanors. Specifically, Wahl pleaded guilty to second-
degree misdemeanors of recklessly endangering another person, unlawful 
dissemination of an intimate image, and tampering with evidence. He 
also initially pleaded guilty to invasion of privacy.
    5. The facts supporting Wahl's guilty plea were recited for the 
court at the time his plea was entered, and Wahl himself confirmed that 
the recitation was accurate. Wahl had secretly taken nude photos of a 
woman inside her home using a concealed camera installed in her 
bathroom; (b) impersonated the woman on an online dating site; (c) sent 
the nude photos of the woman to at least one man whom he connected with 
through that site; and (d) solicited that man to have sexual 
relationships with the woman without her consent. In addition, Wahl 
deleted the nude photos of the woman from his mobile phone, and deleted 
the communications he made via the online dating site upon learning of 
the Pennsylvania State Police investigation.
    6. Subsequently, according to the record in the criminal 
proceeding, Wahl learned that a conviction on the invasion of privacy 
charge would require registration and notification as a sex offender. 
Thus, he withdrew his plea of guilty with respect to that charge, and 
on November 16, 2020, instead pleaded guilty to identity theft, a 
first-degree misdemeanor. At that time, Wahl was sentenced to 
concurrent sentences that effectively placed him on probation for three 
years, with four months of electronic monitoring, and required him to 
pay $600 in fines and the costs of his prosecution and supervision.
    7. Wahl's guilty plea to criminal use of a communication facility, 
a third-degree felony, by itself, raises the question under the 
Commission's Character Qualifications Policy Statement whether he 
possesses the requisite character qualifications to remain a Commission 
licensee. Reliability is a key element of character necessary to 
operate a broadcast station in the public interest. The propensity to 
comply with the law generally is relevant to character qualifications, 
and

[[Page 60039]]

an applicant or licensee's willingness to violate other laws, and, in 
particular, to commit felonies, is indicative of whether the applicant 
or licensee will conform to the Commission's rules or policies. 
Evidence of any felony conviction is relevant to an applicant's or 
licensee's character.
    8. Wahl's multiple misdemeanor convictions support the decision to 
designate this matter for hearing. While felony convictions, among all 
criminal convictions, are most relevant to our evaluation of an 
applicant's character, the Commission has the discretion to consider 
serious misdemeanor convictions in appropriate cases such as this. 
Although Wahl does not have a record of multiple criminal convictions 
over time, he pleaded guilty not only to a felony, but also to an array 
of misdemeanor criminal offenses (identity theft, unlawful 
dissemination of an intimate image, recklessly endangering another 
person, and tampering with evidence) based on misconduct involving 
multiple actions over a period of time designed to harm his victim 
seriously and then evade responsibility for those actions. Even though 
Wahl's attempt to inflict physical harm on the victim failed, he did 
inflict substantial emotional harm. Furthermore, the fundamental 
purpose of the Commission's character inquiry is to make predictive 
judgments about an applicant's truthfulness and propensity to comply 
with the Act and the Rules. Wahl's misdemeanor convictions directly 
implicate his character qualifications.
    9. The Commission recently supplemented its formal hearing 
processes applicable to the revocation of Title III licenses by 
adopting Rules that, inter alia, expand the use of a hearing procedure 
that relies in appropriate cases on written submissions and documentary 
evidence. These hearing proceedings are resolved on a written record 
consisting of affirmative case, responsive case, and reply case 
submissions, along with all associated evidence in the record, 
including stipulations and agreements of the parties and official 
notice of material facts. Based on that record, the presiding officer 
will issue an Initial Decision pursuant to section 409(a) of the Act, 
47 U.S.C. 409(a), and sections 1.267 and 1.274(c) of the Rules, 47 CFR 
1.267, 1.274(c). This is an appropriate case for use of those 
procedures because the criminal proceeding is a final adjudication and 
the court record from the proceeding contains an explanation of the 
factual underpinnings for Wahl's guilty pleas.
    10. Should Wahl wish to avail himself of the opportunity to be 
heard, he (or his attorney) must file a written appearance pursuant to 
section 1.91(c) of the Rules, 47 CFR 1.91(c). The written appearance 
must be filed within 20 days of the mailing of this Order, and must 
state, among other things, that Wahl will present evidence on the 
matters specified in this Order.
    11. After release of this Order, the presiding officer shall 
promptly release an Initial Case Order. The Initial Case Order shall 
put all parties on notice that they are expected to be fully cognizant 
of Part I of the Rules concerning Practice and Procedure, 47 CFR part 
1, subparts A and B. The Initial Case Order shall also set a date for 
the initial status conference and a date by which each party should 
file a pre-conference submission that would include (a) whether 
discovery is expected in this case, and if so, a proposed discovery 
schedule; (b) any preliminary motions they are intending to file; and 
(c) a proposed case schedule. The parties' pre-conference submissions 
should also indicate whether they request that a Protective Order be 
entered in this case.
    12. The presiding officer shall set the case schedule, including 
any deadlines by which the parties should submit the motions they 
identified in their pre-conference submissions. The presiding officer 
shall also set the deadlines for the parties' affirmative case, 
responsive case, and reply case submissions in accordance with sections 
1.371-1.375 of the Rules, 47 CFR 1.1371-1375. If the parties have 
requested the entrance of a Protective Order, the presiding officer 
shall also set a deadline by which a joint proposed Protective Order 
shall be submitted for consideration. In accordance with section 
1.248(b) of the Rules, 47 CFR 1.248(b), the presiding officer may adopt 
the case schedule during the status conference or in an order following 
the conference.
    13. In accordance with section 1.248 of the Rules, 47 CFR 1.248, 
and unless the parties agree otherwise, an official transcript of all 
case conferences will be made.
    14. In accordance with section 1.246 of the Rules, 47 CFR 1.246, 
any party may serve upon any other party written requests for the 
admission of the genuineness of any relevant documents or of the truth 
of any relevant matters of fact. Such requests shall be served within 
twenty (20) days after the deadline for filing a notice of appearance 
unless the presiding officer sets a different time frame.
    15. Sections 1.311 through 1.325 of the Rules, 47 CFR 1.311-325, 
set forth procedures that may be used for the discovery of relevant 
facts and/or for the production and preservation of evidence for use in 
the hearing proceeding. These sections of the Rules provide, inter 
alia, for the taking of depositions, for interrogatories, and for the 
production of documents and things.
    16. Section 1.351 of the Rules, 47 CFR 1.351, sets forth the 
evidentiary standard for the hearing: ``any oral or documentary 
evidence may be adduced, but the presiding officer shall exclude 
irrelevant, immaterial, or unduly repetitious evidence.'' The parties 
may make evidentiary arguments based on the Federal Rules of Evidence.
    17. Any person or entity seeking status as a party in this 
proceeding must file a petition to intervene or petition for leave to 
intervene in accordance with section 1.223 of the Rules, 47 CFR 1.223.
    18. Motions to enlarge, change, or delete issues to be considered 
in this proceeding shall be allowed, consistent with section 1.229 of 
the Rules, 47 CFR 1.229.
    19. 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 staff of the 
Commission's Media Bureau, are prohibited, except as otherwise provided 
in the Rules.
    20. 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. 21-401 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.
    21. 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.

[[Page 60040]]

    22. Electronic service on the Enforcement Bureau shall be made 
using the following email address: [email protected].
    23. To the extent any party to this proceeding wishes to submit 
materials or information that it would like withheld from the public 
record, it may do so in accordance with the procedures set forth in 
section 1.314 of the Rules, 47 CFR 1.314. The parties may also enter 
into a Protective Order initiated as described above.
    24. The presiding officer shall issue an Initial Decision on the 
issues set forth herein, as well as any other issues designated for 
hearing in the course of the proceeding. This Initial Decision shall 
contain, at a minimum, findings of fact and conclusions of law, as well 
as the reasons or basis therefor, and the appropriate rule or order or 
policy and the sanction, relief or denial thereof, as appropriate.
    25. Accordingly, it is ordered that, pursuant to sections 312(a)(2) 
and 312(c) of the Communications Act of 1934, as amended, 47 U.S.C. 
312(a)(2) and 312(c), and section 1.91(a) of the Commission's Rules, 47 
CFR 1.91(a), and pursuant to authority delegated under section 0.283 of 
the Commission's Rules, 47 CFR 0.283, the captioned authorization is 
designated for hearing in a consolidated 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 the 
effects, if any, of Roger Wahl's felony conviction and related 
misdemeanor convictions on his qualifications to be a Commission 
licensee; (b) To determine whether Roger Wahl has the qualifications to 
be a Commission licensee; (c) To determine whether Roger Wahl's license 
for Station WQZS(FM) should be revoked.
    26. It is further ordered that, pursuant to section 312(c) of the 
Communications Act of 1934, as amended, 47 U.S.C. 312(c), and section 
1.91(c) of the Commission's Rules, 47 CFR 1.91(c), in order to avail 
himself of the opportunity to be heard and the right to present 
evidence at a hearing in these proceedings, Roger Wahl, in person or by 
his attorneys, shall file within 20 days of the mailing of this Hearing 
Designation Order, Order to Show Cause and Notice of Opportunity for 
Hearing, a written appearance stating his intention to appear at the 
hearing and present evidence on the issues specified above.
    27. It is further ordered, pursuant to sections 1.91 and 1.92 of 
the Commission's Rules, 47 CFR 1.91-92, that if Roger Wahl 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 accept, for 
good cause shown, such written appearance beyond expiration of said 20 
days, the right to a hearing shall be deemed waived. Where a hearing is 
waived, the Administrative Law Judge shall issue an order terminating 
the hearing proceeding and certifying the case to the Commission.
    28. It is further ordered that the Chief, Enforcement Bureau, is 
made a party to this proceeding without the need to file a written 
appearance.
    29. It is further ordered that, in accordance with section 312(d) 
of the Communications Act of 1934, as amended, 47 U.S.C. 312(d), and 
section 1.91(d) of the Commission's Rules, 47 CFR 1.91(d), the burden 
of proceeding with the introduction of evidence and the burden of proof 
with respect to the issues at paragraph 25 shall be upon the 
Commission's Enforcement Bureau.
    30. 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, Order to Show Cause and Notice of Opportunity for 
Hearing 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.
    31. It is further ordered that a copy of this Hearing Designation 
Order, Order to Show Cause and Notice of Opportunity for Hearing shall 
be sent via Certified Mail, Return Receipt Requested, and by regular 
first-class mail to Roger Wahl, 128 Hunsrick Road, Meyersdale, PA 
57424.
    32. It is further ordered that the Secretary of the Commission 
shall cause to have this Hearing Designation Order, Order to Show Cause 
and Notice of Opportunity for Hearing, or a summary thereof published 
in the Federal Register.

Federal Communications Commission.
Thomas Horan,
Chief of Staff, Media Bureau.
[FR Doc. 2021-23606 Filed 10-28-21; 8:45 am]
BILLING CODE 6712-01-P