Auburn Network, Inc., License Revocation Proceeding for Radio Stations in the Auburn, AL Market

AGENCY:

Federal Communications Commission.

ACTION:

Notice.

SUMMARY:

This document commences a hearing to determine whether, in light of recent felony convictions, the licensee of stations in the Auburn, AL market is qualified to hold FCC authorizations, and consequently, whether licensee's current license authorizations should be revoked, whether the applications for renewal of various licenses should be granted, and whether the application for an FM translator construction permit should be granted.

DATES:

Persons desiring to participate as parties in the hearing shall file a petition for leave to intervene not later than April 23, 2021.

ADDRESSES:

File documents with the Office of the Secretary, Federal Communications Commission, 45 L St. 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. 21-20.”

FOR FURTHER INFORMATION CONTACT:

Albert Shuldiner, Media Bureau, (202) 418-2721.

SUPPLEMENTARY INFORMATION:

This is a summary of the Hearing Designation Order (Order), MB Docket No. 21-20, DA 21-79, adopted February 10, 2021, and released February 11, 2021. The full text of the Order is available online by using the search function for MB Docket No. 21-20 on the Commission's ECFS web page at www.fcc.gov/ecfs.

Summary of the Hearing Designation Order

1. The Order commences a hearing proceeding before the Commission to determine whether multiple felony convictions render licensee, Michael G. Hubbard (Hubbard), unqualified to hold FCC authorizations, and consequently, whether license authorizations should be revoked under sections 312(a)(2) and 312(c) of the Communications Act of 1934 (Act), 47 U.S.C. 312(a)(2) and 312(c) for stations WANI(AM), Opelika, AL, WGZZ(FM), Waverly, AL, W242AX, Auburn, AL, W254AY, Auburn, AL, W294AR, Auburn, AL (Stations). The hearing proceeding will also determine whether the application filed by ANI for an FM translator construction permit (Application) should be granted. This revocation proceeding and designation of the Application for hearing stems from Hubbard's multiple felony convictions under the Alabama Code of Ethics for Public Officials, Employees, Etc. (Alabama's Ethics Act), which raise a substantial and material question of fact as to Hubbard's character qualifications. ANI also seeks assignment of the Stations' licenses, and requests an exception of the Commission's Jefferson Radio policy prohibiting assignment or transfer of a license when character qualifications are pending against the licensee.

2. A broadcast licensee's authorization to use radio spectrum in the public interest carries with it the obligation that the station serves its community, providing programming responsive to local needs and interests. Broadcast licensees are also required to operate in compliance with the Act and the Commission's rules (Rules). Pursuant to section 309(e) of the Act, 47 U.S.C. 309(e), the Commission is required to designate an application for hearing if a substantial and material question of fact is presented regarding whether grant of the application would serve the public interest, convenience, and necessity. In determining whether an applicant is qualified to be a licensee, the Commission considers the character of the applicant. 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 qualifications in its review of applications, a character defect that would warrant the Commission's refusal to grant a license in the original application 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 indicates an applicant's propensity to obey laws and conform to provisions of the Act, Rules, and Commission policies. Hubbard has been convicted of six felonies, raising a material and substantial question of fact as to whether he, and by extension, ANI, possess the character qualifications to operate the Stations in the public interest, or to hold any other Commission authorization. Therefore, a hearing is required to ascertain whether ANI and Hubbard possess requisite character qualifications of a Commission licensee, whether ANI's Commission authorizations should be revoked, and whether the Application should be granted.

4. To prevent licensees from evading consequences of wrongdoing by selling station licenses, Jefferson Radio prohibits the assignment of a license when character qualification issues lie pending against the assignor. There is no compelling public interest that would warrant the Commission's exemption of ANI from Jefferson Radio. ANI likewise has not demonstrated a compelling public interest consideration that would warrant grant of an equitable exception to Jefferson Radio. Hubbard's six felony convictions present a substantial and material question as to whether Hubbard and ANI have the requisite character qualifications to hold a broadcast license, therefore, the Jefferson Radio policy will apply to the pending assignment application.

5. 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.

6. Based on the information before us, we believe this matter can be adequately resolved on a written record, or a “paper” hearing. The Commission recently supplemented its formal hearing process to expand, in appropriate cases, procedures for hearings based on written submissions and documentary evidence. The presiding officer will issue an initial decision based on the record and pursuant to sections 312(a) and 312(d) of the Act, 47 U.S.C. 312(a), 312(d), and sections 1.267 and 1.274(c) of the Rules, 47 CFR 1.267 and 1.274(c).

7. The initial case order shall inform the parties to file notices of appearance pursuant to section 1.91(c) of the Rules, 47 CFR 1.91(c), and shall place parties on notice that they must be cognizant of Part I of the Rules, 47 CFR part 1, supbarts A and B. The initial case order will also set the date for a status conference and will establish a deadline for each party's submission indicating: (a) Whether discovery is expected and a proposed discovery schedule; (b) preliminary motions; (c) proposed case schedule; and whether a protective order is requested. Under section 1.246 of the Rules, 47 CFR 1.246, any party may serve written requests for admission of the genuineness of relevant documents or truth of relevant matters of fact. During the initial status conference the presiding officer will set deadlines for: Motions, discovery, if applicable, the parties' affirmative case, responsive case, reply case, and protective order, if requested, pursuant to 47 CFR 1.294, 1.248(b), and 1.371-1.377. 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. The Commission also amended section 1.351 of the Rules, 47 CFR 1.351, to adopt the evidentiary standard set forth in the formal APA hearing requirements which states that oral or documentary evidence may be adduced, but the presiding officer shall exclude irrelevant, immaterial, or unduly repetitious evidence. Persons or entities 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).

8. Accordingly, it is ordered, that pursuant to sections 309(e), 312(a), 312(c), and 319 of the Act, of the Communications Act of 1934, as amended, the captioned authorizations and application are designated for a 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 Michael G. Hubbard's felony convictions on his qualifications and thus the qualifications of Auburn Network, Inc. to be a Commission licensee. (b) To determine whether Michael G. Hubbard and thus Auburn Network, Inc. is qualified to be a Commission licensee; (c) To determine whether Auburn Network, Inc.'s Commission authorizations should be revoked; and (d) To determine whether the captioned application for original construction permit for a new FM translator station at Auburn, Alabama should be granted, denied, or dismissed.

9. It is further ordered that pursuant to sections 1.91(c) and 1.221(c) of the Commission's Rules, in order to avail itself of the opportunity to be heard and the right to present evidence at a hearing in these proceedings, Auburn Network, Inc. and/or Michael G. Hubbard, in person or by an attorney, shall file within 20 days of the release of this Hearing Designation Order, Order to Show Cause and Notice of Opportunity for Hearing, a written appearance stating its intention to appear at the hearing and present evidence on the issues specified above.

10. It is further ordered, pursuant to section 1.221(c) of the Commission's Rules, that if Auburn Network, Inc. or Michael G. Hubbard 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 Administrative Law Judge shall expeditiously dismiss the captioned applications with prejudice for failure to prosecute.

11. It is further ordered, pursuant to sections 1.92(c) of the Commission's Rules, that if Auburn Network, Inc. and/or Michael G. Hubbard, 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 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.

12. It is further ordered that the Chief, Enforcement Bureau, is made a party to this proceeding without the need to file a written appearance.

13. It is further ordered that, in accordance with section 312(d) of the Communications Act of 1934, as amended, and section 1.91(d) of the Commission's Rules, the burden of proceeding with the introduction of evidence and the burden of proof with respect to the issues at paragraph 31 (a)-(c) shall be upon the Commission's Enforcement Bureau.

14. It is further ordered that, in accordance with section 309(e) of the Communications Act of 1934, as amended, and section 1.254 of the Commission's Rules, the burden of proceeding with the introduction of evidence and the burden of proof with respect to the issue at paragraph 31(d) of the Order shall be upon Auburn Network, Inc. and Michael G. Hubbard,.

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, 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.

16. It is further ordered that the parties to the captioned applications shall, pursuant to section 311(a)(2) of the Communications Act of 1934, as amended, and section 73.3594 of the Commission's Rules, give notice of the hearing within the time and in the manner prescribed in such Rule, and shall advise the Commission of the satisfaction of such requirements as mandated by section 73.3594 of the Commission's Rules.

17. It is further ordered that copies 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 Michael G. Hubbard, Auburn Network, Inc., P.O. Box 950, Auburn, AL 36831, and M. Scott Johnson, 5028 Wisconsin Avenue NW, Suite 301, Washington, DC 20016.

18. 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.