> **Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

**Philip E. Kuhlman and** )

**Ellen N. Kuhlman, Assignors** )

**And** )

**The Rain Broadcasting, Inc., Assignee** ) NAL/Acct. Nos.
MB200741410384,

) MB200741410390

) FRN: 0011388261

Application For Assignment of License ) 0017086810

for Station WYAC-FM ) File No. BALH-20061206ACT

Christiansted, Virgin Islands ) Facility ID No. 62114

)

# MEMORANDUM OPINION AND ORDER AND ADOPTING ORDER

**Adopted: December 13, 2007** **Released: December 14, 2007**

By the Chief, Media Bureau:

1\. In this Order, we adopt the attached Consent Decree entered into by
the Media Bureau (the "Bureau"), Philip E. Kuhlman and Ellen N. Kuhlman
(the "Licensees"), licensees of Station WYAC-FM, Christiansted, Virgin
Islands, and The Rain Broadcasting, Inc. (the "Broker"). The Consent
Decree resolves issues arising from several informal objections filed
against the captioned license assignment application ("Assignment
Application") for the Station.[^1] For the reasons set forth below, we
also deny in part, and dismiss with prejudice in part, the Informal
Objections.

# I. BACKGROUND

2\. In their Informal Objection, the Senators allege that the Assignment
Application should be denied because: (1) the Broker allowed a delegate
to the Virgin Islands Constitutional Convention to host a program on the
Station the day before the election, in violation of Section 315 of the
Communications Act of 1934, as amended (the "Act") ("Section 315
Allegation"); [^2] (2) the Licensees violated Section 73.1125 of the
Commission's Rules (the "Rules");[^3] and (3) an unauthorized transfer
of control of the Station occurred between the Licensees and the Broker.
Additionally, the Informal Objections filed by the Objectors claim that
granting the Assignment Application is not in the best interests of the
residents of St. Croix because: (1) Rain, as current operator of the
Station, is using the Station to "destabilize the legislative branch of
the government . . . and to promote divisiveness within the St. Croix
community;" (2) Rain has used the Station for "political reasons"
without offering equal airtime to those holding opposing views; and (3)
Rain has used the Station "to lodge personal attacks on sitting
senators" (collectively the "Programming Objections").

3\. In response, the Licensees and the Broker allege that the Section
315 Allegation is without merit because candidates for the position of a
delegate to the Virgin Islands Constitutional Convention are not
considered candidates for public office, and that Section 326 of the
Act[^4] and the First Amendment of the United States Constitution
prohibit the Commission from granting the Programming Objections. With
respect to the Section 73.1125 and unauthorized transfer of control
allegations, the Licensees and the Broker have negotiated the terms of
the attached Consent Decree with the Bureau.

**II. DISCUSSION**

4\. *Section 315 Allegation*. Section 315(a) of the Act provides that
\"if any licensee shall permit any person who is a legally qualified
candidate for any public office to use a broadcasting station, he shall
afford equal opportunities to all other such candidates for that office
in the use of such broadcasting station.\"[^5] The Senators allege that
the Broker violated Section 315(a) of the Act when it allowed a delegate
to the Virgin Islands Constitutional Convention to host a program on the
Station the day before the election. In order to show a violation of
Section 315(a) of the Act, the burden is on the Senators to show that
the constitutional convention delegates are considered candidates for
public office and that other such candidates made a request for and were
denied equal access by the Station.

5\. Under the laws of some states, persons seeking election as delegates
to state constitutional conventions have been considered legally
qualified candidates for public office by the state officials authorized
to make such rulings. In such cases, candidates for delegate are
candidates for public office under the Rules.[^6] The Senators have not
shown that candidates for a delegate position at the constitutional
convention are considered to be candidates for public office by Virgin
Islands officials. Absent an affirmative showing to the contrary, the
Commission does not consider such candidates to be candidates for public
office. Assuming, *arguendo*, that candidates for the delegate positions
would be considered legally qualified candidates for public office under
the Rules, the Senators have failed to show that other candidates
requested and were denied equal access after the appearance in question.
Without such evidence, the Senators have failed to make a *prima facie*
showing that the Broker violated Section 315(a) of the Act, and their
Section 315 Allegation will be denied.

6\. *Programming Objections*. Viewed in the light most favorable to the
Objectors, the allegations made in the informal objections amount to no
more than a disagreement with the content of the programming on the
Station. While we recognize the Objectors' concerns about the quality of
the Station's programming, the role of the Commission in overseeing
program content is limited. The First Amendment to the United States
Constitution and Section 326 of the Act prohibit the Commission from
censoring program material or interfering with broadcasters' free speech
rights. Generally, the Commission will not take adverse action on an
application based upon the subjective determination of a listener or
group of listeners as to what constitutes appropriate programming.[^7] A
licensee has broad discretion to choose, in good faith, the programming
that it believes serves the needs and interests of the members of its
audience.[^8] We will intervene in programming matters only if a
licensee abuses that discretion.[^9] The Objectors have not demonstrated
that the Station has done so here.

7\. With respect to the Objectors' claim that equal airtime was denied
to the Senators and like-minded parties to present opposing views, the
argument appears to be grounded in the Fairness Doctrine,[^10] not
Section 315 of the Act, and is unavailing. The Commission ceased
enforcing the Fairness Doctrine in 1987, holding that the Doctrine
contravened the First Amendment and that its enforcement was no longer
in the public interest.[^11] Regarding the Objectors' claim that Rain
"lodge\[d\] personal attacks on sitting senators," we note that the
"personal attack rule" was repealed on October 26, 2000,[^12] pursuant
to an Order of the D.C. Circuit Court of Appeals.[^13] The Objectors
have not shown that the programming choices made by the Licensees or the
Broker have violated any provision of the Act or the Rules. For these
reasons the Programming Objections will be denied.

8\. *Unauthorized transfer of control*. Upon review of the Senators'
allegations of unauthorized transfer of control and a Main Studio Rule
violation, the Bureau initiated an investigation and asked the Licensees
to provide more information about which party is in ultimate control of
the Station's programming, personnel, and financial decisions. After
fully considering the Licensees' response, the Bureau, the Licensees,
and the Broker have negotiated the terms of a Consent Decree, a copy of
which is attached hereto and incorporated by reference.[^14] The Consent
Decree provides, among other things, that the Broker will implement a
Compliance Plan, the Licensees will make a \$15,000 voluntary
contribution to the United States Treasury, and the Broker will make an
\$8,000 voluntary contribution to the United States Treasury.

9\. Based upon the record before us, including the acknowledgement of
the conduct involved by the Licensee; the Broker's commitment to
implement a Compliance Plan to avoid future violations; and the fact
that the Licensees will no longer hold a Commission license or be
involved in the operation of any station; we conclude that no
substantial or material questions of fact exist as to whether the
Licensees or the Broker possess the basic qualifications, including
those related to character, to hold any Commission license or
authorization.

10\. After reviewing the terms of the Consent Decree, we find that the
public interest will be served by its approval and by terminating all
pending proceedings relating to the Bureau's consideration of whether
the Licensees and the Broker participated in an unauthorized transfer of
control or violated the Main Studio Rule. Therefore, the portion of the
Senators' Informal Objection pertaining to these allegations will be
dismissed with prejudice.

**III. ORDERING CLAUSES**

11\. ACCORDINGLY, IT IS ORDERED that, the Informal Objections filed by
the Senators and the Objectors are denied in part and dismissed WITH
PREJUDICE in part.

12\. IT IS FURTHER ORDERED that, pursuant to Section 4(i) of the
Communications Act of 1934, as amended,[^15] and by the authority
delegated by Sections 0.61 and 0.283 of the Rules,[^16] the Consent
Decree attached hereto IS ADOPTED.

13\. IT IS FURTHER ORDERED that the investigation by the Media Bureau of
the matters noted above IS TERMINATED.

14\. IT IS FURTHER ORDERED that copies of this Order shall be sent, by
first class mail

and certified mail, return receipt requested, to Philip E. Kuhlman and
Ellen N. Kuhlman, PO Box

24522, Christiansted, Virgin Islands 00824-0522; The Rain Broadcasting,
Inc., 5025 Anchor Way, St.

Croix, Virgin Islands 00820; their counsel Harry F. Cole, Esq. and
Francisco R. Montero, Esq., Fletcher,

Heald & Hildreth, P.L.C., 1300 North 17th Street, 11th Floor, Arlington,
Virginia 22209; and by first

class mail to the Senators, their counsel, and the Objectors at the
addresses listed in the Appendix.

FEDERAL COMMUNICATIONS COMMISSION

Monica Shah Desai

Chief, Media Bureau

[^1]: A pleading entitled "Petition to Deny Transfer" was filed by five
    Senators from the Legislature of the Virgin Islands (the "Senators")
    on January 11, 2007. Because the Senators' pleading was not served
    on the Licensee as required by 47 U.S.C. § 309(d), it will be
    treated as an informal objection under 47 C.F.R. § 73.3587.
    Additional informal objections were filed by a group of permanent
    residents of St. Croix, and several individual residents of St.
    Croix (collectively, the "Objectors"), on January 11, 2007, January
    18, 2007, and February 6, 2007. Extensive responsive pleadings were
    filed in this matter. Each pleading was fully considered and for
    administrative convenience we will refer to the groups of pleadings
    filed by the Objectors as Informal Objections and those filed by
    Rain and the Kuhlmans as Responses.

[^2]: 47 U.S.C. § 315.

[^3]: 47 C.F.R. § 73.1125 (the "Main Studio Rule").

[^4]: 47 U.S.C. § 326.

[^5]: 47 U.S.C. § 315(a); *see* 47 C.F.R. § 73.1941.

[^6]: *The Law of Political Broadcasting and Cablecasting: A Political
    Primer*, 100 FCC 2d 1476 at ¶ 20 (1984).

[^7]: *See WGBH Educational Foundation*, Memorandum Opinion and Order,
    69 FCC 2d 1250, 1251 (1978).

[^8]: *See, e.g., License Renewal Applications of Certain Commercial
    Radio Stations Serving Philadelphia, Pennsylvania,* Memorandum
    Opinion and Order, 8 FCC Rcd 6400, 6401 (1993) ("*Philadelphia
    Station License Renewals*") (citing *Time-Life Broadcast, Inc.,*
    Memorandum Opinion and Order, 33 FCC 2d 1081, 1082 (1972), and
    *Office of Communications of United Church of Christ v. FCC,* 707
    F.2d 1413 (D.C. Cir. 1983) (subsequent history omitted)).

[^9]: *Philadelphia Station License Renewals* at 6401.

[^10]: 47 C.F.R § 73.1910.

[^11]: *Syracuse Peace Council,* Memorandum Opinion and Order, 2 FCC Rcd
    5043, 5052 (1987), *aff\'d* *sub nom. Syracuse Peace Council v.
    FCC,* 867 F.2d 654 (D.C. Cir. 1989), *cert. denied* 493 U.S. 1019
    (1990).

[^12]: *In* *re Repeal or Modification of the Personal Attack and
    Political Editorial Rules*, Order, 15 FCC Rcd 20697 (2000).

[^13]: *Radio-Television News Directors Association v. FCC*, 229 F.3d
    269 (D.C. Cir. Oct. 11, 2000).

[^14]: *See* 47 C.F.R. § 1.1204(a)(10) (presentations related to
    settlement are classified as exempt *ex parte* presentations).

[^15]: 47 U.S.C. § 154(i).

[^16]: 47 C.F.R. §§ 0.61, 0.283.