**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In re Matter of )

)

**Michael S. Rice and his wholly owned companies,** )

)

**Contemporary Media, Inc.** )

(Former licensee of Stations WBOW(AM), WBUZ(AM), )

and WZZQ(FM), Terre Haute, Indiana )

> )

**Contemporary Broadcasting, Inc.** )

(Former licensee of Station KFMZ(FM), Columbia, )

Missouri and former permittee of unbuilt station )

KROW(FM), Huntsville, Missouri )

)

**Lake Broadcasting, Inc.** )

(Former licensee of Station KBMX(FM), Eldon, )

Missouri, former permittee of Station KFXE(FM, Cuba, )

Missouri, and former applicant for a construction permit )

for a new FM Station on Channel 244A at Bourbon, )

Missouri (File No. BPH-19921112MH) )

)

Petition for Equitable Relief/ Motion for Extension of )

Operating Authority )

**MEMORANDUM OPINION AND ORDER**

**Adopted: February 26, 2002 Released: February 28, 2002**

By the Commission:

1\. The Commission has before it an August 2, 2001 Application for
Review filed by Michael S. Rice and the captioned wholly owned companies
("Rice"). Rice seeks Commission review of the July 3, 2001 *Public
Notice* (the "*Public Notice*") issued by the Mass Media Bureau and the
Wireless Telecommunications Bureau ("Bureaus") which, among other
things, dismissed Rice's June 1, 2001 "Petition for Equitable
Relief/Motion for Extension of Operating Authority" ("Petition")
pursuant to which Rice sought to retain his authorizations or,
alternatively, that he be permitted to assign them to qualified
buyers.[^1] For the reasons set forth below, we deny the Application for
Review.

2\. The background of this matter has been detailed several times, most
recently in our *Memorandum Opinion and Order* released October 3,
2001,[^2] and need not be reiterated at length here. It is sufficient to
note that, on August 11, 1994, Rice was convicted of four felony counts
of sodomy, six felony counts of deviate sexual assault in the first
degree, and two felony counts of deviate sexual assault in the second
degree. He was incarcerated for these offenses between September 1994
and December 1999. In 1997, after a full evidentiary hearing,[^3] the
presiding Administrative Law Judge held that all of Rice's
authorizations should be revoked. *Initial Decision*, 12 FCC Rcd 14,254
(ALJ 1997). We affirmed that decision without oral argument in 1998,
concluding that, in addition to Rice's criminal conduct, the Rice
stations "misrepresented and lacked candor in reporting to the
Commission that, subsequent to his arrest, Rice was completely excluded
from any further involvement in the management and operation of the
Licensee's radio stations." *Memorandum Opinion and Order*, 13 FCC Rcd
14,437, 14,454 (1998). We therefore revoked each of the Rice station
authorizations, permitting the Rice stations to continue to operate
until 12:01 AM on the ninety first day following completion of judicial
review. On June 16, 2000, the Court of Appeals for the District of
Columbia Circuit affirmed the Commission's decision,[^4] and on March
19, 2001, the Supreme Court denied Rice's petition for *certiorari*.[^5]
Rice did not seek rehearing, and the operating authority of the Rice
stations was scheduled to terminate on July 17, 2001.

3\. Following finality, the Bureaus released the *Public Notice*
announcing application procedures for permanent authorizations for the
five formerly licensed stations and two construction permits held by
Rice, granting the former licensees special temporary authorization to
continue operations for a period not to exceed 90 days. The Bureaus also
dismissed the Petition for Equitable Relief as "an untimely and
collateral challenge to a proceeding that has been final since April 13,
2001, the deadline for seeking rehearing of the Supreme Court's denial
of *certiorari*."

4\. Rice raises five arguments in its application for review which, he
claims, warrant both reversal of the Bureaus' dismissal of the Petition
and the commencement of a supplemental hearing on Rice's qualifications
to be a Commission licensee. Rice claims that: (1) the *Public Notice*
exceeded the Bureaus' delegated authority under the Commission's Rules
and is therefore void *ab initio*; (2) the Bureaus' action violated the
"signed order" requirement in the delegated authority provisions of 47
C.F.R. §0.204; (3) the Bureaus' action is "arbitrary, capricious, and
contrary to law" because it gave no consideration to the merits of the
Petition; (4) the Bureaus' action failed to accord Rice a fair public
interest hearing in violation of the Communications Act and the Due
Process Clause of the Fifth Amendment to the United States Constitution;
and (5) even if no supplemental hearing is provided, the public interest
would support the alternative relief requested in the Petition. Our
action here renders moot any claim regarding whether or not the Bureaus
acted properly under their delegated authority.

5\. Rice's Application for Review, like his Petition, assumes without
discussion that there is some legal basis for permitting Rice to "retain
his radio properties" (Pet. at 34), despite the fact that the Commission
has revoked the licenses for those stations in an action that became
final and no longer subject to judicial review before Rice filed the
petition at issue here. In this regard, the application for review is
contrary to well-settled principles of finality. *See* *Greater Boston
Television Corp. v. FCC* 463 F.2d 268, 336 (D.C.Cir. 1971), *cert.
denied*, 406 U.S. 950 (1972)("The general interest of repose gains
dominance, in our view, with the issuance of a 'final' administrative
order -- a term here used to designate an order which is no longer
subject to appeal to the court, for which no administrative
reconsideration is permitted by the regulatory statute."); *Crosthwait
v. FCC*, 584 F.2d 550, 556 (D.C.Cir. 1978)(same); *Gonzales Broadcasting
, Inc.*, 14 FCC Rcd 10,951 ¶2 (1999)("The Supreme Court has denied \[the
appli­cant's\] peti­tion for writ of certiorari. The denial of \[the\]
application is therefore final and, in the absence of evidence that the
decision was obtained fraudulently or as a result of other miscon­duct
affect­ing the integrity of the judicial process, we are not persuaded
that these is a basis for the Com­mis­sion to ask the court to recall the
mandate in this case, or to support a further motion filed by Jelks with
the court."); *see also International Union of Mine, Mill and Smelter
Workers v. Eagle-Picher Mining & Smelting Co.*, 325 U.S. 335, 341
(1945)("Administrative flexibility and judicial certainty are not
contradictory; there must be an end to disputes which arise between
adminis­tra­tive bodies and those over whom they have jurisdiction.").

6\. As a result, we deny the application for review. Since the
revocation of the Rice authorizations is final, Rice has nothing to
"retain." We have reviewed the numerous claims in Rice's petition and
lengthy attachments and supplements, and we are not persuaded that
anything has been presented that suggests that there was any injustice
or fraud in the proceedings that led to the revocation of these
licenses. Indeed, we find nothing in the petition that would have
warranted reopening the hearing if Rice's claims had been timely raised.
*See, e.g., Eve Ackerman*, 8 FCC Rcd 4205 ¶6 (1993)(reopening record
after close of hearing requires showing of new evidence or evidence that
could not have been discovered earlier that presents substantial
likelihood of affecting outcome of hearing). The petition points to no
evidence that was not known to Rice while this matter was still before
the Commission, or could not have been easily discovered by him with
reasonable diligence. Moreover, Rice's claim that he in essence lacked
effective assistance of counsel, which forms the basis for virtually all
of his arguments, appears to be merely second-guessing about an
unsuccessful legal strategy that Rice and his com­panies pursued in
earlier proceedings.

7\. Accordingly, the August 2, 2001 Application for Review filed by
Michael S. Rice and his wholly owned companies IS DENIED.

FEDERAL COMMUNICATIONS COMMISSION

William F. Caton

Acting Secretary

[^1]: *Public Notice*, "Permanent and Interim Application Procedures
    Announced for Authority to Operate Stations Formerly Licensed to
    Entities Controlled by Michael Rice," DA 01-1441 (M.M. Bur./W.T.
    Bur., July 3, 2001). In this *Public Notice*, the Bureaus also (1)
    invited applications for interim authority to operate the five
    formerly licensed Rice stations; (2) invited applications for
    permanent operation of the two formerly licensed Rice facilities in
    Terre Haute, Indiana; and (3) granted Rice special temporary
    authorization to continue operations for 90 days.

[^2]: *Memorandum Opinion and Order, Michael S. Rice and his wholly
    owned companies*, FCC 01-300 (released October 3, 2001) ("*October 3
    Order*"), *appeal docketed*, Case No. 01-1474 (D.C. Cir., November
    1, 2001).

[^3]: The Rice authorizations were set for evidentiary hearing in the
    *Order to Show Cause and Notice of Apparent Liability*, 10 FCC Rcd
    13,685 (1995).

[^4]: ^?^ *Contemporary Media, Inc. v. FCC*, 214 F.3d 187 (D.C. Cir.
    2000).

[^5]: *Contemporary Media, Inc. v. FCC, \_\_\_* U.S. \_\_\_, 121 S.Ct.
    1355 (2001).