Since the start of August, the fate of a low-power FM radio station serving a small city in the Buckeye State was all but sealed when the individual charged with operating the facility wrote in an email to the FCC that it couldn’t find legal counsel to represent the station in a License Revocation Hearing.
Securing an attorney was key to the continuation of the hearing, called to determine whether or not the LPFM had engaged in a 2019 improper license transfer and improperly listed the name of a deceased individual on its board of directors submitted to the Commission.
An attorney was not secured. As such, the hearing proceeding has been dismissed by the FCC’s Administrative Law Judge.
The biggest concern, ruled ALJ Jane Hinckley Halprin, is the failure to prosecute on the part of Marion Education Exchange, licensee of WWGH-LPFM in Marion, Ohio.
MEE sought to obtain a license renewal for the low-powered FM station. However, that couldn’t be done because of the apparent misrepresentation to the Commission of its board members, listing a deceased individual. This led the Media Bureau on February 23 to initiate the hearing, basing it on “inconsistent submissions” by the Marion Education Exchange regarding the composition of its Board of Directors.
Then came the licensee’s failure to respond to FCC inquiries, in addition to the alleged unauthorized transfer of control.
There’s more: The non-profit station hired Columbus, Ohio-based attorney George Wolfe as its legal counsel. However, Wolfe on May 10 filed a motion to withdraw as counsel on the grounds that his client had “failed to cooperate” and “is no longer communicating.” WWGH evidently also failed to provide Wolfe with payment for its services.
With no attorney to represent WWGH, MEE was put on notice to find one or else risk the right to a hearing. Shawn Craft, who emerged as the head of operations for WWGH-LPFM, responded improperly by sending an email to FCC Chairwoman Jessica Rosenworcel. Why? It was done apparently to seek relief from an Order from the Presiding Judge setting a June 20 deadline for Marion Education Exchange to comply with mandatory discovery requests submitted in the case by the FCC’s Enforcement Bureau.
In that e-mail, Craft requested “help from a court appointed attorney.” The FCC offers no such benefit. Yet, it gave a final extension of a July 14 deadline to MEE to find legal counsel. It did, on the final day for filing the required Notice of Appearance. This saw attorney Charles R. Naftalin, a Holland & Knight attorney in Washington, D.C., whose practice primarily focuses on telecommunications law, submit on the licensee’s behalf a pleading captioned “Provisional Notice of Appearance of Counsel” and an accompanying motion in support. He wanted the proceeding to be suspended until September 30 while he determined whether or not to take on the case.
This was problematic, and the Enforcement Bureau, prosecuting in the hearing, blasted Craft and the licensee. Eventually, Halprin gave an ultimatum; Craft responded with a likely “last communication” that reiterated previous reasons for WWGH-LPFM’s transgressions, including chemotherapy treatments for the station’s Program Director.
None of those reasons had any sway on Halprin, whose decision to terminate the hearing also saw a letter submitted by Craft on July 28 stricken from the record of the proceeding.
The simple reason for Halprin’s order of dismissal? A valid Notice of Appearance was not filed by the deadline of July 27 by Marion Education Exchange. Despite the Presiding Judge giving MEE three tries to secure legal counsel, it had not done so.
“Ultimately, however, all FCC licensees, regardless of service, have a duty to know
and adhere to applicable rules, respond promptly and completely to Commission inquiries, and comply with Commission orders,” Halprin ruled. “In the infrequent instance where an application is designated for evidentiary hearing, the rules become more formalized, involving the taking of witness testimony, the introduction of evidence, and the submission of formal pleadings. MEE’s representatives have consistently evidenced an inability or unwillingness to familiarize themselves with Commission rules and procedures in a way that would allow this case to move forward. When a licensee that bears the burden of proof does not fully participate in a hearing, it forfeits its opportunity to show that grant of its application is in the public interest. The Presiding Judge therefore has no choice at
this point but to dismiss this hearing proceeding due to MEE’s failure to prosecute its application.”
In his past communication, Craft had hinted that “The Talking Place” for Marion would likely consider shifting to an internet-only operation. Now, that appears to be the only course for “WWGH Radio,” which will soon be forced to cease all FM broadcasts, as its license will not be renewed.
In an e-mail conversation conducted late Tuesday with RBR+TVBR, WWGH Program Director Scott Spears said, “We knew that this was coming, [as] we did not have hundreds of thousands of dollars as we were quoted by several attorneys to win this case as a 100-watt LPFM. This to us feels like the best thing that could happen.”
How could a license revocation by the FCC possibly be cheered by a licensee? Spears continued, “For many years because of FCC rules regarding LPFM stations we have had to do advertising in a ‘no call to action’ format. We have not been able to syndicate, and we have not been able to shake the bounds of one county. We simply have outgrown that with the type of programming we do. We will still be broadcasting 24 hours a day, seven days a week absolutely free through the TuneIn app. We will still stream live on the website, wwgh1071.com. We will also be able to explore Facebook Live and YouTube programs with full, outright sponsorships.”
Spears then noted how the media landscape has changed, and how consumers now get their content.
“Newspapers are read online now more than they are delivered,” he said. “Podcasts are a craze, apps outreach networks or cable television … Why wouldn’t a radio station want to continue with a national audience rather than one county?”
Lastly, Spears claims that it was Marion Education Exchange’s “choice not to hire an attorney” and to become digital. “Our audience is vast and in many states,” he claimed. “The schedule will remain the same, and we have some exciting interviews coming up in the next week, including an exclusive with Phil Donahue that will air very soon.”
“Newspapers are read online now more than they are delivered. Podcasts are a craze, apps outreach networks or cable television … Why wouldn’t a radio station want to continue with a national audience rather than one county?”—Scott Spears
