[Federal Register Volume 87, Number 33 (Thursday, February 17, 2022)]
[Notices]
[Pages 9049-9052]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-03453]


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FEDERAL COMMUNICATIONS COMMISSION

[MB Docket No. 22-53; FCC DA 22-115; FR ID 71980]


Snake River Radio, LLC, Radio Station KPCQ(AM), Chubbuck, ID

AGENCY: Federal Communications Commission.

ACTION: Notice.

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SUMMARY: This document commences a hearing to determine (a) whether the 
license renewal application for AM radio station KPCQ, Chubbuck, ID 
should be granted or denied due to the station's history of silence or 
low power operations in the period when Snake River Radio, LLC (SRR) 
was the station's licensee, and (b) whether the station's license 
automatically expired due to failure to operate with authorized 
facilities for a period of twelve consecutive months.

DATES: Persons desiring to participate as parties in the hearing shall 
file a petition for leave to intervene not later than March 21, 2022.

ADDRESSES: File documents with the Office of the Secretary, Federal 
Communications Commission, 45 L Street NE, Washington, DC 20554, with a 
copy mailed to each party to the proceeding. Each document that is 
filed in this proceeding must display on the front page the docket 
number of this hearing, ``MB Docket No. 22-53.''

FOR FURTHER INFORMATION CONTACT: Albert Shuldiner, Media Bureau, (202) 
418-2721.

SUPPLEMENTARY INFORMATION: This is a summary of the Hearing Designation 
Order and Notice of Opportunity for Hearing (Order), MB Docket No. 22-
53, FCC DA 22-115, adopted February 7, 2022 and released February 8, 
2022. The full text of the Order is available online by using the 
search function for MB Docket No. 22-53 on the Commission's ECFS web 
page at http://apps.fcc.gov/ecfs/.

Summary of the Hearing Designation Order

    1. A broadcast licensee's authorization to use radio spectrum in 
the public interest carries with it the obligation that the station 
must serve its community, providing programming responsive to local 
needs and interests. Broadcast licensees also are required to operate 
in compliance with the Communications Act of 1934, as amended (Act) and 
the Commission's rules (Rules). These requirements include the 
obligation to transmit potentially lifesaving national level Emergency 
Alert System (EAS) messages in times of emergency and to engage in 
periodic tests to ensure that their stations are equipped to do so.
    2. The basic duty of broadcast licensees to serve their communities 
is reflected in the license renewal provisions of the Act. In 1996, 
Congress revised the Commission's license renewal process and the 
renewal standards for broadcast stations by adopting section 309(k) of 
the Act, 47

[[Page 9050]]

U.S.C. 309(k). Section 309(k)(1) of the Act provides that the 
Commission shall grant a license renewal application if it finds, with 
respect to the applying station, that during the preceding license 
term: (a) The station has served the public interest, convenience, and 
necessity; (b) there have been no serious violations by the licensee of 
the Act or the Rules; and (c) there have been no other violations by 
the licensee of the Act or the Rules which, taken together, would 
constitute a pattern of abuse. Section 309(k)(2) of the Act provides 
that if a station fails to meet the foregoing standard, the Commission 
may deny the renewal application pursuant to section 309(k)(3) or grant 
the application on appropriate terms and conditions, including a short-
term renewal. Section 309(k)(3) of the Act provides that if the 
Commission determines, after notice and opportunity for hearing, that 
the licensee has failed to meet the standard of section 309(k)(1) and 
that no mitigating factors justify the imposition of lesser sanctions, 
the Commission shall issue an order denying the license renewal 
application for the station.
    3. Section 312(g) of the Act, 47 U.S.C. 312(g), which Congress also 
added in 1996 and then amended in 2004, provides: If a broadcasting 
station fails to transmit broadcast signals for any consecutive 12-
month period, then the station license granted for the operation of 
that broadcast station expires at the end of that period, 
notwithstanding any provision, term, or condition of the license to the 
contrary, except that the Commission may extend or reinstate such 
station license if the holder of the station license prevails in an 
administrative or judicial appeal, the applicable law changes, or for 
any other reason to promote equity and fairness.
    4. Thus, section 312(g) has relieved the Commission of the need to 
conduct license renewal or revocation proceedings, with their lengthy 
and resource-intensive procedural requirements, including evidentiary 
hearings, for stations that remain silent for extended periods of time. 
However, in response to section 312(g), some licensees of silent 
stations have adopted a practice of resuming operation for a short 
period of time, in some cases as little as a day or less, before the 
one-year limit in section 312(g) applies and the station license 
automatically expires. Other stations have alternated between periods 
of silence and operations with minimal power levels--in some cases as 
low as five watts--that cover a small portion of their service areas 
and may be insufficient to allow them to provide service to their 
communities of license.
    5. These practices raise a question as to whether the licenses for 
such stations should be renewed pursuant to section 309(k) of the Act, 
47 U.S.C. 309(k). In 2001, the Commission cautioned ``all licensees 
that . . . a licensee will face a very heavy burden in demonstrating 
that it has served the public interest where it has remained silent for 
most or all of the prior license term.'' The policy against allowing 
extended periods of silence or minimal operation by licensed stations 
is to ensure ``that scarce broadcast spectrum does not lie fallow and 
unavailable to others capable of instituting and maintaining service to 
the public.'' In addition to enforcing section 312(g) of the Act, 47 
U.S.C. 312(g), the Commission has stressed its interest in promoting 
efficient use of radio broadcast spectrum for the benefit of the 
listening public in several different contexts since the enactment of 
section 312(g). These concerns about efficient use of spectrum are also 
reflected in the Commission's statutory authority to award licenses at 
auction.
    6. The KPCQ license renewal application is designated for hearing 
to determine whether the station's license should be renewed in light 
of the station's minimal record of operation during SRR's tenure as 
licensee. We are also designating the question of whether the station's 
license expired pursuant to section 312(g) of the Act, 47 U.S.C. 
312(g).
    7. SRR consummated the assignment of the KPCQ license from 
Inspirational Family Sunny Radio, Inc. on February 1, 2018. KPCQ's 
operational history during SRR's tenure as licensee is that the station 
was silent for 1,077 days out of 1,399 days in the period from February 
1, 2018 to October 1, 2021 (80% of the time) and operated only 149 days 
in 2018, two days in 2019, one day in 2020, and 110 days in the portion 
of 2021 ending on October 1, 2021 (20% of the time). After the license 
term ended on October 1, 2021, the station remained on the air 100% of 
the time.
    8. SRR reported that KPCQ initially went silent when the site owner 
required that SRR remove the station's tower on June 30, 2018. However, 
on June 26, 2019, SRR filed a notice of resumption stating that the 
Station had resumed operation using its licensed facilities on June 15, 
2019. This discrepancy is not mentioned or explained in the exhibit to 
the license renewal application. Because it is improbable that SRR was 
able to resume operation with KPCQ's licensed facilities after 
dismantling its tower, we are designating an issue to determine whether 
the station's license expired pursuant to section 312(g) of the Act, 47 
U.S.C. 312(g), because the station failed to operate with its 
authorized facilities for more than 12 months.
    9. KPCQ went silent again on June 17, 2019, when SRR claimed that a 
construction crew clipped and severed a tower guy wire, causing 
collapse of the tower. This is also not explained in the license 
renewal application. On June 24, 2019, SRR filed an application for 
construction permit to change site, which was granted on September 12, 
2019, expiring on September 12, 2022. Subsequently, on June 14, 2020, 
KPCQ operated for one day, using a temporary long wire facility, which 
the license renewal application characterized as operating for ``less 
than 30 days.'' KPCQ went silent again when that facility was destroyed 
by a construction crew, and SRR requested extension of silent authority 
because it was still constructing its new facility. KPCQ remained 
silent until June 14, 2021, when it resumed operation using program 
test authority prior to filing its license application to cover the 
construction permit. KPCQ has operated since that date, while its 
license application remains pending.
    10. On June 24, 2020, SRR filed the station's license renewal 
application. Section 309(k)(1) of the Act, 47 U.S.C. 309(k), provides 
that grant of a renewal application is appropriate if we find that (1) 
the station has served the public interest, convenience, and necessity, 
(2) there have been no serious violations of the Act or the Rules, and 
(3) there have been no other violations that, taken together, 
constitute a pattern of abuse. When such a finding cannot be made on 
the basis of the application, section 309(k) provides that the license 
renewal application will be designated for a hearing. Because of KPCQ's 
extended periods of silence during SRR's tenure as licensee, and 
because substantial and material questions of fact exist concerning 
whether the station's license expired automatically under section 
312(g) of the Act, 47 U.S.C. 312(g), we are unable to find that grant 
of the renewal application is in the public interest. Accordingly, we 
designate this matter for hearing.
    11. The Commission recently supplemented its formal hearing 
processes applicable to the revocation of Title III licenses by 
adopting Rules that, inter alia, expand the use of a hearing procedure 
that relies in appropriate cases on written submissions and documentary 
evidence. These hearing proceedings are resolved on a written record 
consisting of affirmative case, responsive case, and reply case 
submissions, along with all associated evidence in the record, 
including

[[Page 9051]]

stipulations and agreements of the parties and official notice of 
material facts. Based on that record, the presiding officer will issue 
an Initial Decision pursuant to section 409(a) of the Act, 47 U.S.C. 
409(a), and sections 1.267 and 1.274(c) of the Rules, 47 CFR 1.267, 
1.274(c). Based on the information before us, we believe this matter 
can be adequately resolved on a written record, and we therefore find 
that this is an appropriate case for use of those procedures.
    12. All parties shall file a timely notice of appearance in 
accordance with the Rules.
    13. After release of this Hearing Designation Order and Notice of 
Opportunity for Hearing, the presiding officer shall promptly release 
an Initial Case Order. The Initial Case Order shall put all parties on 
notice that they are expected to be fully cognizant of Part I of the 
Rules concerning Practice and Procedure, 47 CFR part 1, subparts A and 
B. The Initial Case Order shall also set a date for the initial status 
conference and a date by which each party should file a pre-conference 
submission that would include (a) whether discovery is expected in this 
case, and if so, a proposed discovery schedule; (b) any preliminary 
motions they are intending to file; and (c) a proposed case schedule. 
The parties' pre-conference submission should also indicate whether 
they request that a Protective Order be entered in this case.
    14. In accordance with section 1.246 of the Rules, 47 CFR 1.246, 
any party may serve upon any other party written requests for the 
admission of the genuineness of any relevant documents or of the truth 
of any relevant matters of fact. Such requests shall be served within 
twenty (20) days after the deadline for filing a notice of appearance 
unless the presiding officer sets a different time frame.
    15. During the initial status conference, the presiding officer 
shall set the case schedule, including any deadlines by which the 
parties should submit the motions they identified in their pre-
conference submissions. If discovery is anticipated, the presiding 
officer shall also set the discovery period. The presiding officer 
shall also set the deadlines for the parties' affirmative case, 
responsive case, and reply case submissions in accordance with sections 
1.371-1.377 of the Rules, 47 CFR 1.371-1.377. If the parties have 
requested the entrance of a Protective Order, the presiding officer 
shall also set a deadline by which a joint proposed Protective Order 
shall be submitted for consideration. In accordance with section 
1.248(b) of the Rules, 47 CFR 1.248(b), the presiding officer may adopt 
a schedule to govern the hearing proceeding during the status 
conference or in an order following the conference.
    16. Additional status conferences may be scheduled throughout the 
course of the proceeding at the request of the parties and/or at the 
discretion of the presiding officer. Any requests by a party for a 
status conference must be made in writing to the presiding officer and 
shall be copied on all other parties.
    17. In accordance with section 1.248 of the Rules, 47 CFR 1.248, an 
official transcript of all case conferences shall be made, unless the 
parties and the presiding officer agree to forego a transcript. 
Transcripts shall be made available to the public as part of the 
official record in the Commission's Electronic Comment Filing System 
(ECFS) in MB Docket No. 22-53.
    18. The Commission, in section 1.351 of the Rules, 47 CFR 1.351, 
has adopted the evidentiary standard set forth in the formal APA 
hearing requirements. In relevant part, section 1.351 of the Rules now 
states, ``any oral or documentary evidence may be adduced, but the 
presiding officer shall exclude irrelevant, immaterial, or unduly 
repetitious evidence.'' The parties remain free to make evidentiary 
arguments based on the Federal Rules of Evidence.
    19. Any person or entity seeking status as a party in this 
proceeding must file a petition to intervene or petition for leave to 
intervene in accordance with section 1.223 of the Rules, 47 CFR 1.223.
    20. Motions to enlarge, change, or delete issues to be considered 
in this proceeding shall be allowed, consistent with section 1.229 of 
the Rules, 47 CFR 1.229.
    21. This hearing proceeding is a ``restricted'' proceeding pursuant 
to section 1.1208 of the Rules, 47 CFR 1.1208, and thus ex parte 
presentations to or from Commission decision-making personnel, 
including the presiding officer and her staff and staff of the 
Commission's Media Bureau, are prohibited, except as otherwise provided 
in the Rules.
    22. All pleadings in this proceeding, including written submissions 
such as letters, discovery requests and objections and written 
responses thereto, excluding confidential and/or other protected 
material, must be filed in MB Docket No. 22-53 using ECFS. ECFS shall 
also act as the repository for records of actions taken in this 
proceeding, excluding confidential and/or other protected material, by 
the presiding officer and the Commission.
    23. The caption of any pleading filed in this proceeding, as well 
as all letters, documents, or other written submissions including 
discovery requests and objections and responses thereto, shall indicate 
whether it is to be acted upon by the Commission or the presiding 
officer. The presiding officer shall be identified by name.
    24. Electronic service on the Enforcement Bureau shall be made 
using the following email address: <a href="/cdn-cgi/l/email-protection#31747379545043585f5642715752521f565e47"><span class="__cf_email__" data-cfemail="1653545e7377647f7871655670757538717960">[email protected]</span></a>.
    25. To the extent any party to this proceeding wishes to submit 
materials or information that it would like withheld from the public 
record, it may do so in accordance with the procedures set forth in 
section 1.314 of the Rules, 47 CFR 1.314. The parties may also enter 
into a Protective Order initiated as described above. As stated above, 
requests for a Protective Order should be made in the parties' pre-
conference submission in accordance with the schedule set forth in the 
Initial Case Order.
    26. The presiding officer shall issue an Initial Decision on the 
issues set forth herein, as well as any other issues designated for 
hearing in the course of the proceeding. This Initial Decision shall 
contain, at a minimum, findings of fact and conclusions of law, as well 
as the reasons or basis therefor, and the appropriate rule or order or 
policy and the sanction, relief or denial thereof, as appropriate.
    27. Accordingly, it is ordered that, pursuant to sections 312(a)(2) 
and 312(c) of the Communications Act of 1934, as amended, 47 U.S.C. 
312(a)(2) and 312(c), and section 1.91(a) of the Commission's Rules, 47 
CFR 1.91(a), and pursuant to authority delegated under section 0.283 of 
the Commission's Rules, 47 CFR 0.283, the captioned application is 
designated for hearing in a consolidated proceeding before the FCC 
Administrative Law Judge, at a time and place to be specified in a 
subsequent order, upon the following issues: (a) To determine, with 
respect to station KPCQ(AM), Chubbuck, Idaho, whether, during the 
preceding license term, (i) the station has served the public interest, 
convenience, and necessity, (ii) there have been any serious violations 
by the licensee of the Communications Act of 1934, as amended, or the 
rules and regulations of the Commission, and (iii) there have been any 
other violations of the Communications Act of 1934, as amended, or the 
rules and regulations of the Commission which, taken together, would 
constitute a pattern of abuse; (b) to determine, with respect to 
station KPCQ(AM), Chubbuck, Idaho, whether

[[Page 9052]]

the station's license expired automatically pursuant to section 312(g) 
of the Communications Act of 1934, as amended, 47 U.S.C. 312(g), 
because the station failed to operate with its authorized facilities 
for more than 12 months; and (c) in light of the evidence adduced 
pursuant to issues (a) and (b) above, whether the captioned application 
for renewal of the license for station KPCQ(AM) should be (1) dismissed 
as moot because the station's license expired automatically pursuant to 
section 312(g) of the Communications Act of 1934, as amended, 47 U.S.C. 
312(g), (2) granted on such terms and conditions as are appropriate, 
including renewal for a term less than the maximum otherwise permitted, 
or (3) denied due to failure to satisfy the requirements of section 
309(k)(1) of the Communications Act of 1934, as amended, 47 U.S.C. 
309(k)(1).
    28. It is further ordered that, pursuant to section 312(c) of the 
Communications Act of 1934, as amended, 47 U.S.C. 312(c), and section 
1.91(c) of the Commission's Rules, 47 CFR 1.91(c), in order to avail 
itself of the opportunity to be heard and the right to present evidence 
at a hearing in these proceedings, Snake River Radio, LLC, in person or 
by an attorney, shall file within 20 days of the mailing of this 
Hearing Designation Order and Notice of Opportunity for Hearing, a 
written appearance stating its intention to appear at the hearing and 
present evidence on the issues specified above.
    29. It is further ordered, pursuant to sections 1.221(c) of the 
Commission's Rules, 47 CFR 1.221(c), that if Snake River Radio, LLC 
fails to file a written appearance within the time specified above, or 
has not filed prior to the expiration of that time a petition to 
dismiss without prejudice, or a petition to accept, for good cause 
shown, such written appearance beyond expiration of said 20 days, the 
pending application will be dismissed with prejudice for failure to 
prosecute.
    30. It is further ordered that the Chief, Enforcement Bureau, is 
made a party to this proceeding without the need to file a written 
appearance.
    31. It is further ordered that, in accordance with section 309(e) 
of the Communications Act of 1934, as amended, 47 U.S.C. 309(e), and 
section 1.254 of the Commission's Rules, 47 CFR 1.254, the burden of 
proceeding with the introduction of evidence and the burden of proof 
with respect to the issues at paragraph 27 (a)-(c) shall be upon Snake 
River Radio, LLC.
    32. It is further ordered that a copy of each document filed in 
this proceeding subsequent to the date of adoption of this Hearing 
Designation Order and Notice of Opportunity for Hearing shall be served 
on the counsel of record appearing on behalf of the Chief, Enforcement 
Bureau. Parties may inquire as to the identity of such counsel by 
calling the Investigations & Hearings Division of the Enforcement 
Bureau at (202) 418-1420. Such service copy shall be addressed to the 
named counsel of record, Investigations & Hearings Division, 
Enforcement Bureau, Federal Communications Commission, 45 L Street NE, 
Washington, DC 20554.
    33. It is further ordered that the parties to the captioned 
application shall, pursuant to section 311(a)(2) of the Communications 
Act of 1934, as amended, 47 U.S.C. 311(a)(2), and section 73.3594 of 
the Commission's Rules, 47 CFR 73.3594, give notice of the hearing 
within the time and in the manner prescribed in such Rule, and shall 
advise the Commission of the satisfaction of such requirements as 
mandated by section 73.3594 of the Commission's Rules, 47 CFR 73.3594.
    34. It is further ordered that a copy of this Hearing Designation 
Order and Notice of Opportunity for Hearing shall be sent via Certified 
Mail, Return Receipt Requested, and by regular first-class mail to 
Snake River Radio, LLC, Ted Austin, P.O. Box 17, St. Anthony, ID 83445 
and Jeffrey L. Timmons, Esq., Timmons Communications Law, 974 Branford 
Lane NW, Lilburn, GA 30047-2680.
    35. It is further ordered that the Secretary of the Commission 
shall cause to have this Hearing Designation Order and Notice of 
Opportunity for Hearing, or a summary thereof published in the Federal 
Register.

Federal Communications Commission.
Thomas Horan,
Chief of Staff, Media Bureau.
[FR Doc. 2022-03453 Filed 2-16-22; 8:45 am]
BILLING CODE 6712-01-P


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