Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of: )

)

## Michael S. Rice )

## and his wholly-owned companies, )

##  )

## Contemporary Media, Inc., )

##  )

## Contemporary Broadcasting, Inc., )

##  )

## Lake Broadcasting, Inc. ) 

)

Request for Expedited Confirmation of )

Continued Operating Authority )

)

Formerly Licensed Stations WBOW(AM), )

WBUZ(AM), and WZZQ(FM), Terre Haute, IN; )

KFMZ(FM), Columbia, MO; and KBMX(FM), )

Eldon, MO )

**MEMORANDUM OPINION AND ORDER**

**Adopted: October 3, 2001 Released: October 3, 2001**

**By the Commission:**

1\. The Commission has before it a September 21, 2001 pleading captioned
"Request for Expedited Confirmation of Continued Operating Authority"
filed by Michael S. Rice and the captioned wholly owned companies
("Rice"). Rice requests that the Commission "confirm" his continuing
authority to operate his formerly licensed stations WBOW(AM), WBUZ(AM),
and WZZQ(FM), all Terre Haute, IN; KFMZ(FM), Columbia, MO; and KBMX(FM),
Eldon, MO (collectively, the "Rice Stations"). For the reasons set forth
below, we deny the request and order the Rice Stations to cease
broadcast operations no later than 11:59 PM on October 3, 2001.

# Background

2\. On August 11, 1994, Rice was convicted of four counts of sodomy, six
counts of deviate sexual assault in the first degree, and two counts of
deviate sexual assault in the second degree, all of which are felonies.
The misconduct for which Rice was convicted involved five children. Rice
was sentenced to a total of eighty-four years in prison. Because his
sentences were to run concurrently, he was sentenced to a maximum term
of eight years. He was incarcerated between September 1994 and December
1999. In our 1998 *Decision,* affirming the *Initial Decision,* 12 FCC
Rcd 14254 (ALJ 1997), the Commission concluded 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 Licensees' radio stations." 13 FCC Rcd
114437, 14454 (1998). Based on this record, the Commission revoked each
of the authorizations held by the Rice Stations. However, it permitted
the Rice Stations to continue to operate until 12:01 AM on the
ninety-first day following the completion of judicial review. On March
19, 2001, the Supreme Court denied Rice's petition for certiorari. Rice
did not seek rehearing and the decision became final thirty days later.
Accordingly, the operating authority of the Rice Stations was scheduled
to terminate on July 17, 2001.

3\. Following finality, the Mass Media Bureau and the Wireless
Telecommunications Bureaus (the "Bureaus") released a public notice (the
"Public Notice") announcing application procedures for permanent
authority for the five formerly licensed stations and two construction
permits held by the corporations controlled by Rice. *Public Notice*,
"Permanent and Interim Application Procedures Announced for Authority to
Operate Stations Formerly Licensed to Entities Controlled by Michael
Rice," DA 01-1441 (released July 5, 2001). The Public Notice granted the
former licensees of the Rice stations special temporary authorization
("STA") to continue operations for a period not to exceed ninety days.
The short STA was granted because at the time it was issued it seemed
possible that there might be a seamless transition to interim operation
by persons other than Rice within that time frame. The Public Notice
also dismissed a "Petition for Equitable Relief" (the "Petition"), filed
by Rice and the Rice Stations, as an untimely and collateral challenge
to a proceeding that has been final since April 18, 2001. The Petition
sought, *inter alia*, Commission consent for Rice to "retain" the Rice
Stations or, in the alternative, to assign certain of the revoked
authorizations. The Bureaus concluded that Rice has no radio stations to
retain or assign. Finally, the Public Notice dismissed Rice's "Motion
for Extension of Operating Authority" (the "Motion"), which sought to
extend the former licensees' authority to operate the radio stations
pending consideration of the Petition for Equitable Relief. On August 2,
Rice and the Rice Stations filed an application for review of the Public
Notice. The application for review argues that the Bureaus exceeded
their delegated authority in issuing the Public Notice, and that the
actions taken therein are arbitrary and capricious, and in violation of
the Communications Act and the Fifth Amendment to the Constitution. That
pleading remains pending.

# Discussion

4\. Rice argues that unless the Commission extends the STA, its pending
requests for relief as set forth in its application for review would be
"severely and irreparably harmed." Although not directly before us, the
application for review contends that the Mass Media Bureau lacked
authority to dismiss the Rice Petition and Motion. Rice concludes that
the dismissal was "legally void and without force and effect." He
further argues that because the staff action is void and a timely
application for review is pending, continued operation of the five Rice
stations is "legally authorized and appropriate . . . . "

5\. This argument is without merit. The 1998 *Decision* concluding that
Rice lacks the character qualifications to deal truthfully with the
Commission and to comply with our rules and policies is now final. The
revocation of the Rice licenses also is final. In these circumstances,
Rice's reliance on Section 307(c)(3) of the Communications Act, 47
U.S.C. § 307(c)(3), as a basis for asserting his continuing authority to
operate the stations is misplaced. Rice is not awaiting a final decision
on renewal of his licenses. Rather, his licenses were revoked and the
revocation action is incontrovertibly final. Reliance on Section 558(c)
of the Administrative Procedure Act, 5 U.S.C. § 558, is equally
misplaced. Rice was given a full opportunity to demonstrate why his
authorizations should not be revoked and the revocation decision is
final.

6\. Moreover, we find that the Bureaus properly dismissed the Petition
as an untimely and collateral challenge to a final Commission action. In
any event, since we affirm this staff action, those Rice arguments in
the Request that are based upon the Bureau's lack of authority to
dispose of these filings are moot.

7\. Rice also contends that certain public interest benefits would
result from extending the STA. He states that the listening public in
three small markets would lose service and the employees of these
stations would lose their jobs. He also notes that there is considerable
doubt about the Commission's ability to select permanent licensees in
the foreseeable future. He alludes to the recent action of the United
States Court of Appeals for the District of Columbia Circuit vacating
the former Commission rule requiring noncommercial educational
applicants to participate in auctions with competing commercial
applications for certain non-reserved broadcast spectrum. *See National
Public Radio, Inc. et al., v. FCC,* Nos. 00-1246, 00-1255 (decided July
3, 2001). Finally, he claims that at a time when the United States is
under attack by terrorists, the time could come when one or more of the
five stations could provide critical information to the public.

8\. The loss of existing broadcast services is always a serious matter.
However, in the instant circumstances, we believe that the public
interest is better served by denying the Request and ordering the Rice
Stations off the air. At the Commission's direction, the Mass Media
Bureau has undertaken an exhaustive survey of radio service in these
markets. It is clear that each of these markets is well served. Nine
other AM and FM stations are licensed to Terre Haute. Thirteen radio
stations place at least a 60 dBu strength signal over the center of
Terre Haute. Seventy-four radio stations serve some or all of the areas
now covered by the Rice Terre Haute stations. Service is also abundant
in and around Columbia, Missouri. Nine stations are licensed to this
community. Eighteen stations place at least a 60 dBu strength signal
over the center of Columbia. Thirty-eight stations serve some or all of
the area now served by KFMZ(FM), Columbia. In Eldon, Missouri, the
smallest of the markets, there is only one other station licensed to
this community. However, even here, thirteen stations place at least a
60 dBu strength signal over the center of Eldon. In addition,
twenty-four stations provide service to some or all of the area covered
by KBMZ, Eldon, Missouri. Thus, we believe that each of the affected
markets will continue to have service, including EAS service, until
these stations can be relicensed.

9\. In this instance, the public interest is better served by allowing
Rice's authority to operate these stations expire than by renewing the
STA. Rice's criminal acts and the deceit of his companies in
misrepresenting his continuing involvement in the management of the Rice
Stations require this result. While the loss of jobs is truly
regrettable, jobs will be lost whenever a license is revoked. We do not
believe this fact outweighs the above-discussed factors that lead us to
allow the STA to expire pursuant to its terms. The Commission
established this course of action more than three years ago and the
record in this proceeding fully supports the actions we take today.

# Conclusion

10\. For the foregoing reasons, IT IS ORDERED that the September 21,
2001 Request for Expedited Confirmation of Continued Operating Authority
filed by Michael S. Rice and his wholly owned companies IS DENIED, and
stations WBOW(AM), WBUZ(AM), and WZZQ(FM), all Terre Haute, IN;
KFMZ(FM), Columbia, Missouri; and KBMX(FM), Eldon, Missouri, are ORDERED
TO CEASE BROADCAST OPERATIONS no later than 11:59 PM on October 3, 2001.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Román Salas

Secretary