Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In re Applications of            | * | File No. BTCTT-19980217IA    |
|                                  | * |                              |
| Melvin N. Eleazer                | ) | FIN: 65129                   |
|                                  | * |                              |
| (Transferor)                     | * | File No. BALTT-19990312IA    |
|                                  |   |                              |
| and                              | * | FIN: 65129                   |
|                                  | * |                              |
| James Pridemore                  | ) |                              |
|                                  | * |                              |
| (Transferee)                     | * |                              |
|                                  |   |                              |
| For Consent to the Transfer of   | * |                              |
| Control of                       | * |                              |
|                                  | ) |                              |
| BIP, Inc.                        | * |                              |
|                                  | * |                              |
| Licensee of Station W54BT        |   |                              |
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| Roanoke, Virginia                | * |                              |
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| BIP, Inc.                        | * |                              |
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| (Assignor)                       |   |                              |
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| and                              | * |                              |
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| Brunson/Ross Communications, LLC | * |                              |
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| (Assignee)                       |   |                              |
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| For Assignment of License of     | * |                              |
|                                  | ) |                              |
| Station W54BT                    | * |                              |
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| Roanoke, Virginia                |   |                              |
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+----------------------------------+---+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**AND**

**NOTICE OF APPARENT LIABILITY FOR FORFEITURE**

**Adopted: April 27, 2001 Released: April 30, 2001**

**By the Chief, Video Services Division:**

1\. The Commission, by the Chief, Video Services Division, acting
pursuant to delegated authority, has before it for consideration the
above-captioned application seeking consent to transfer control of BIP,
Inc., the licensee of television translator station W54BT, Roanoke,
Virginia, from Melvin N. Eleazer to James Pridemore. Also before the
Commission is the application whereby Brunson/Ross Communications, Inc.
(Brunson/Ross) seeks to acquire the license for station W54BT. KVBM
Television, Inc. and Caroline K. Powley (petitioners) jointly petitioned
to deny the BIP, Inc. transfer of control application.[^1] Subsequently,
petitioners also filed an objection to the W54BT license assignment
application. Various opposition and responsive pleadings were also filed
by the parties.

The W54BT Transfer of Control Application

2\. By the instant transfer of control application, Messrs. Eleazer and
Pridemore seek to correct an alleged inadvertent oversight on their part
regarding the ownership of BIP, Inc. Specifically, on February 20, 1996,
Television Marketing Co., Inc. (TMC), in which Mr. Eleazer was the sole
officer, director and stockholder, filed a [pro]{.underline}
[forma]{.underline} application seeking to assign the W54BT construction
permit to BIP, Inc. As set forth in that application, Mr. Eleazer would
hold an 85% stock interest and Mr. Pridemore the remaining 15% stock
interest in BIP, Inc., with each individual being an officer and
director of the corporation. The [pro]{.underline} [forma]{.underline}
assignment application was granted by the Commission on March 25, 1996
and a month later, the Commission was notified that the transaction had
been consummated. However, as set forth in the transfer of control
application, Mr. Pridemore actually became BIP, Inc.'s sole officer and
director and its 100% stockholder "in return for assumption of the
obligations of TMC in connection with the proposed TV Translator."

3\. In their petition to deny and various subsequently filed pleadings,
petitioners argue that Messrs. Eleazer and Pridemore have not adequately
supported their assertion that Pridemore is the sole stockholder of BIP,
Inc. and that in accordance with the automatic stay provisions of the
bankruptcy law, 11 U.S.C. § 362, action on the transfer of control
application should be held in abeyance until such time as the bankruptcy
court determines whether Mr. Eleazer has, as an asset, an ownership
interest in BIP, Inc. or issues an order authorizing the transfer to
Pridemore.

4\. We are not persuaded, as argued by petitioners, that the bankruptcy
proceeding involving Mr. Eleazer is an impediment to our acting on the
transfer of control application. The bankruptcy court has issued its
rulings with respect to the Chapter 11 and Chapter 13 aspects of that
proceeding. Specifically, the Chapter 11 petition was dismissed and Ms.
Powley's appeal was ultimately dismissed on January 9, 2001. While the
Chapter 13 petition is still pending, that aspect of the proceeding has
reached the stage where the bankruptcy court is considering Mr.
Eleazer's plan for satisfaction of the claims against his assets.
Petitioners have proffered no showing that Mr. Eleazer's schedule of
assets before the bankruptcy court includes an interest in BIP, Inc.
Moreover, based upon the documentation submitted in response to a staff
directive, which included, for the first time, sworn affidavits from
Messrs. Eleazer and Pridemore, we find that the applicants have
demonstrated that, more than a year before the institution of any
bankruptcy proceedings involving Mr. Eleazer, BIP, Inc. was reported as
wholly owned by Mr. Pridemore. In federal and North Carolina income tax
returns filed for calendar years 1996 and 1997 on behalf of BIP, Inc.,
Mr. Pridemore is listed as the president and 100% stockholder.[^2] In
addition, Mr. Eleazer avers that he has never held any interest or any
position as an officer or director of BIP, Inc., whereas Mr. Pridemore
avers that "\[s\]ince the original formation of BIP, Inc., I have been
the sole shareholder, officer and director of BIP, Inc., although at the
time the original application for transfer of control was filed, it was
intended that Mel Eleazer hold an interest in the corporation."[^3]
Articles of Incorporation authorizing the issuance of 1,000 share of
BIP, Inc. and a certificate designating Mr. Pridemore as the holder of
1,000 share of BIP, Inc. were also submitted, along with Mr. Pridemore's
certification that that stock certificate which was issued on March 5,
1996 within a week of the incorporation, was the only one issued by BIP,
Inc.[^4] Under these circumstances and in accordance with our action
below regarding the conduct of Messrs. Eleazer and Pridemore, we find
that the applicants are fully qualified and that grant of the W54BT
transfer of control application would be consistent with the public
interest.

The Unauthorized Transfer of Control

5\. Section 310(d) of the Communications Act of 1934, as amended,
prohibits any transfer of control of a broadcast station permit or
license without prior Commission approval. See 47 U.S.C. § 310(d); and
47 C.F.R. § 73.3540. This proscription pertains to [de]{.underline}
[jure]{.underline} and [de]{.underline} [facto]{.underline} control.
[See]{.underline} [Lorain Journal Co. v. FCC]{.underline}, 351 F. 2d
824, 828 (D.C. Cir.), [cert]{.underline}. [denied]{.underline}, 383 U.S.
967 (1966). From the information supplied here, it appears that Messrs.
Eleazer and Pridemore violated Section 310(d) of the Act and Section
73.3540 of the Commission's Rules by revising the contemplated ownership
structure of BIP, Inc. during the pendency of the [pro]{.underline}
[forma]{.underline} assignment application, with Mr. Pridemore becoming
the president, sole director and 100% stockholder of that
corporation.[^5] Moreover, information supplied in response to a letter
of inquiry (LOI) from the Mass Media Bureau's then-Enforcement Division
indicates that Mr. Pridemore controls W54BT's finances, equipment leases
and purchases, technical operations, and necessary monitoring personnel
for this automated translator station. As stated in their initial
response to the LOI, "W54BT has been constructed by, and is owned
[de]{.underline} [facto]{.underline} and [de]{.underline}
[juris]{.underline} (sic) by BIP, Inc. and James Pridemore." Based upon
the foregoing, we conclude, and the applicants acknowledge, that an
unauthorized transfer of control of BIP, Inc. took place in early 1996
and has continued to date.

6\. We believe that a forfeiture is warranted for Mr. Pridemore's
assumption of control of the licensee of W54BT[^6] and his subsequent
and continuing operation of that station without obtaining the
Commission's prior approval. See [Colorado West Broadcasting,
Inc.]{.underline}, 14 FCC Rcd 18354 (MMB 1999). His conduct in this
regard was both "willful" and "repeated" within the meaning of 47 U.S.C.
§ 503(b)(1)(B).[^7] The guidelines set forth in the Commission's
[Forfeiture Policy Statement]{.underline}[^8] specify a base forfeiture
amount of \$8,000 for the unauthorized transfer of control, which we
believe is the appropriate forfeiture to be assessed under the
circumstances of this case. See [Kevin Hackler]{.underline}, 15 FCC Rcd
12928 (Enf. Bureau, 2000) and [K.I.D.S.-TV6]{.underline}, 15 FCC Rcd
20212 (Enf. Bur. 2000). While Messrs. Eleazer and Pridemore maintain
that they were unaware of the need for apprising the Commission of their
change in plans regarding the actual ownership of BIP, Inc. and the
operation of W54BT, ignorance of the Commission's rules does not excuse
or mitigate their actions. See [Empire Broadcasting Corp]{.underline}.,
25 FCC 2d 68 (1970); and [Victor Valley Broadcasting, Inc.]{.underline},
2 FCC 2d 495 (1966). Moreover, the completion and filing of the W54BT
[pro]{.underline} [forma]{.underline} assignment application by Messrs.
Eleazer and Pridemore attest to, at least, their general awareness of
the need to obtain the Commission's prior approval and its interest in
the disclosure of the parties comprising the applicant and the nature
and extent of their ownership of and participation in the applicant. Nor
does the voluntary reporting of the substantial revamping of the
ownership of BIP, Inc. and Mr. Pridemore's operational control of W54BT
in the 1998 transfer of control application justify any mitigation,
especially in light of our concurrent finding in a separate proceeding
that Messrs. Eleazer and Pridemore have also engaged in an unauthorized
transfer of control of station WDRL-TV, Danville, Virginia. In sum, we
believe that the nature of the apparent violation here requires the
imposition of the base monetary amount.

The W54BT Assignment of License Application

7\. Petitioners object to grant of the application executed by both
Messrs. Eleazer and Pridemore and filed on behalf of BIP, Inc. seeking
to assign the W54BT license to Brunson/Ross. In petitioners' view, the
Commission proceedings involving the participation of Messrs. Eleazer
and Pridemore in an alleged unauthorized transfer of station control not
only at W54BT, but also at WDRL-TV warrant withholding action on the
license assignment application. In their joint opposition, BIP, Inc. and
Brunson/Ross disagree and submit that, in keeping with the spirit of the
doctrine announced by the Commission in [Second Thursday
Corp.]{.underline}, 22 FCC 2d 515, [recon. denied]{.underline}, 25 FCC
2d 112 (1970), the Commission should grant the assignment to a
corporation wholly owned and operated by an African-American.

8\. The Commission proceedings regarding Messrs. Eleazer and Pridemore
have been resolved. As set forth above, we believe that imposition of a
monetary forfeiture is the appropriate sanction for the apparent
violation of Section 310(d) of the Communications Act and Section
73.3540 of the Commission's Rules by BIP, Inc. The WDRL-TV proceeding
concerns the alleged unauthorized transfer of station control and
various other accusations and countercharges of Ms. Powley and Messrs.
Eleazer and Pridemore, all of which are concurrently being fully
addressed therein and need not be repeated here. Suffice to say, the
Bureau has also determined that the assessment of a monetary forfeiture
is the appropriate sanction for the violations ascertained in that
proceeding.[^9] Accordingly, we find that the applicants are fully
qualified and that grant of the W54BT license assignment application
would be consistent with the public interest.

9\. Accordingly, IT IS ORDERED, That the "Petition to Deny" and the
"Objection," filed by KVBM, Television, Inc. and Caroline K. Powley ARE
DENIED.

10\. IT IS FURTHER ORDERED, That the application for consent to the
transfer of control of BIP, Inc. (BTCTT-19980217IA) IS GRANTED.

11\. IT IS FURTHER ORDERED, That, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.283 and 1.80 of
the Commission's Rules, BIP, Inc. is hereby NOTIFIED of its APPARENT
LIABILITY FOR A FORFEITURE in the amount of eight thousand dollars
(\$8,000.00) for willfully and repeatedly violating Section 310(d) of
the Communications Act and Section 73.3540 of the Commission's Rules.

12\. IT IS FURTHERED ORDERED, That, pursuant to Section 1.80 of the
Commission's Rules, within thirty days of the release date of this
Notice, BIP, Inc. SHALL PAY the full amount of the proposed forfeiture
or SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture. Payment of the forfeiture may be made by
mailing a check or similar instrument, payable to the order of the
Federal Communications Commission, and addressed to the Federal
Communications Commission, P.O. Box 73482, Chicago, Illinois 60673-7482.
The payment should note the NAL number of this proceeding (NAL No.
118420005). Requests for full payment under an installment plan should
be sent to: Chief, Credit and Debt Management Center, 445 12^th^ Street,
S.W., Washington, D.C. 20554.[^10]

13\. IT IS FURTHER ORDERED, That a copy of this Notice of Apparent
Liability for a Forfeiture SHALL BE SENT by Certified Mail -- Return
Receipt Requested, to BIP, Inc.'s counsel of record: Denise B. Moline,
Esq., 1212 So. Naper Blvd., Suite 119, Naperville, Illinois 60540.

14\. IT IS FURTHER ORDERED, That the application for consent to the
assignment of license for W54BT (BALTT-19990312IA) IS GRANTED.

FEDERAL COMMUNICATIONS COMMISSION

Barbara A. Kreisman

Chief, Video Services Division

Mass Media Bureau

# 

[^1]: On March 25, 1998, KVBM Television, Inc. had filed an involuntary
    petition for Chapter 7 bankruptcy against Mr. Eleazer. Shortly
    thereafter that proceeding was converted into a Chapter 13,
    debtor-in-possession proceeding, and transferred to and consolidated
    with the Chapter 11 involuntary bankruptcy proceeding that Ms.
    Powley had instituted in the Danville, Virginia federal district
    court against Danville Television Partnership, which is the licensee
    of station WDRL-TV, Danville, Virginia and in which she claimed to
    be a 51% general partner and Mr. Eleazer a 49% general partner.

[^2]: As a subchapter S corporation, BIP, Inc.'s operating losses pass
    through and have been claimed by its reported sole shareholder, Mr.
    Pridemore.

[^3]: According to a "Certificate of Existence" dated May 7, 1998 from
    the Secretary of State of the State of North Carolina, BIP, Inc. was
    incorporated on February 26, 1996.

[^4]: With respect to this stock certificate, petitioners submit
    excerpts from the testimony of Mr. Pridemore in a December 9, 1997
    deposition session in a civil action involving Ms. Powley and Mr.
    Eleazer, wherein Mr. Pridemore stated that he had not gotten around
    to issuing BIP, Inc. stock to himself. Although seemingly
    inconsistent, it appears from a reading of the excerpted testimony
    that Mr. Pridemore was somewhat confused by the questioning with
    respect to the interrelated corporate and other business entities
    engaged in the activities of W54BT and Danville Television
    Partnership. Thus, we are not persuaded, without more, that this
    matter warrants further exploration at this time.

[^5]: Petitioners submit that Mr. Pridemore's excerpted testimony at the
    aforenoted December 9, 1997 deposition session reflects that Messrs.
    Eleazer and Pridemore intended "to withhold from the Commission the
    fact they intended to transfer the LPTV authorization to BIP, Inc.
    from the very beginning." We disagree. A reading of the excerpted
    testimony, in its entirety, reveals that Mr. Pridemore was
    discussing the acquisition of the W54BT construction permit from the
    initial permittee in 1994 and the expectation that Mr. Eleazer, TMC
    or Broadcast Investment Partnership, which was comprised of Mr. and
    Mrs. Pridemore and Mr. Eleazer, would become the licensee depending
    on who furnished the money and put the station on the air. Thus, the
    excerpted testimony does not support petitioners' surmise that the
    transaction set forth in the 1996 [pro]{.underline}
    [forma]{.underline} assignment application did not reflect the
    applicants' intention at the time of filing of that application.

[^6]: On March 2, 1998, the Commission granted the application of BIP,
    Inc., then wholly owned by Mr. Pridemore, for a license to cover the
    construction of the W54BT facilities (BLTT-19971001JC).

[^7]: The Commission has held that an act or omission is "willful" if it
    is a conscious and deliberate act or omission, whether or not there
    is any intent to violate the rule. See [Southern California
    Broadcasting Company]{.underline}, 6 FCC Rcd 4387 (1991), [recon.
    denied]{.underline}, 7 FCC Rcd 3453 (1992). Furthermore, a
    continuing violation is "repeated" if it lasts more than one day.
    [Id.]{.underline}, 6 FCC Rcd at 4388.

[^8]: On October 14, 1997, the guidelines established by the Commission
    in its [Report and Order, In re the Commission's Forfeiture Policy
    Statement and Amendment of Section 1.80 of the Commission's
    Rules]{.underline}, 12 FCC Rcd 17087 (1997), [recon.
    denied]{.underline}, 15 FCC Rcd 303 (1999), became effective.

[^9]: In view of the actions being taken by the Bureau today, we need
    not and do not address the arguments advanced by the applicants and
    disputed by the petitioners concerning the applicability of the
    [Second Thursday]{.underline} doctrine and its underlying principles
    in this proceeding.

[^10]: See 47 C.F.R. § 1.1914