Cumulus fails to get translator case tossed


WKNG LLC owns 98.9 WWGA-FM Tallapoosa GA and claims Cumulus 98.9 translator W255CJ Atlanta is interfering with it. The matter is in dispute at the FCC and Cumulus says WKNG impermissibly got Sen. Johnny Isakson (R-GA) to intervene in its favor.

W255CJ began operation 9/9/11 and the battle over alleged interference was joined almost immediately. On 6/18/12, WKNG principal Steven L. Gradick contacted Isakson and asked for his intervention in the matter. Upon reading a review of the dispute from Gradick, Isakson sent a letter to the FCC that stated, “I would appreciate your review of this information in accordance with established policies and procedures. Upon completion of your review, please forward clarification of your findings to [my office].”

The situation was essentially repeated 1/11/13, as the situation had not yet changed (FCC said it had been tied up with the LPFM/FM translator matter which might in fact instruct this case).

Womble Carlyle Sandridge & Rice attorney John F. Garaziglia, representing Cumulus, noted that Cumulus wasn’t served with any of this documentation, which made it an impermissible ex parte communication. Had it been limited to a status update, Cumulus admitted it would not be improper, but in this case it felt that Gradick and WKNG were soliciting the support of Isakson.

Cumulus said the upshot should be the dismissal of WKNG’s case against the translator and a substantial forfeiture for Gradick.

The FCC sided with Gradick. It said there was nothing wrong with bringing Isakson up to speed on the dispute, and as they read Isakson’s letters, they did essentially ask for an update on the where matters stood. The fact that Isakson specifically said the FCC should rule “in accordance with established policies and procedures” showed that Isakson’s inquiry made no attempt to influence the FCC’s decision.

Cumulus’s request was therefore turned down.