[Federal Register Volume 75, Number 174 (Thursday, September 9, 2010)]
[Notices]
[Pages 54880-54882]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-22532]


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FEDERAL COMMUNICATIONS COMMISSION

[MB Docket No. 10-157; FCC 10-147]


Eddie Floyd, Licensee of FM Translator Station K273AF, Carson 
City, NV, Facility ID No. 13529; Application of Eddie Floyd and Wilks 
License Company-Reno LLC for Assignment of License, File No. BALFT-
20070904ACU; Application of Eddie Floyd for Modification of License, 
File No. BMLFT-20071218ABH

AGENCY: Federal Communications Commission.

ACTION: Notice.

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SUMMARY: This document designates a hearing to determine whether Eddie 
Floyd is qualified to be and remain the licensee of FM Translator 
Station K273AF, Carson City, NV, or whether his license should be 
revoked and the pending applications for consent to assignment and 
modification of the license should be dismissed. Mr. Floyd's 
qualifications are under review based on his felony conviction relating 
to money laundering and his apparent failure to inform the Commission 
about such misconduct in the pending applications. The document also 
provides notice of apparent liability against Mr. Floyd for failure to 
disclose such information in the pending applications.

DATES: Each party to the proceeding (except for the Chief, Enforcement 
Bureau), in person or by counsel, shall file with the Commission, by 
September 13, 2010, a written appearance stating that the party will 
appear on the date fixed for hearing and present evidence on the issues 
specified herein.

ADDRESSES: Federal Communications Commission, 445 12th Street, SW., 
Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: Gary Schonman, <a href="/cdn-cgi/l/email-protection#6c0b0d1e15421f0f040302010d022c0a0f0f420b031a"><span class="__cf_email__" data-cfemail="0a6d6b7873247969626564676b644a6c6969246d657c">[email protected]</span></a>, 
Enforcement Bureau, Investigations and Hearings Division, (202) 418-
1795.

SUPPLEMENTARY INFORMATION: This is a summary of the Order to Show 
Cause, Hearing Designation Order and Notice of Apparent Liability, FCC 
10-147, adopted and released on August 5, 2010. The full text of this 
document is available for public inspection and copying during regular 
business hours in the FCC Reference Center, Federal Communications 
Commission, 445 12th Street, SW., CY-A257, Washington, DC 20554. This 
document will also be available via ECFS (http://www.fcc.gov/cgb/ecfs). 
(Documents will be available electronically in ASCII, Word 97, and/or 
Adobe Acrobat.) The complete text may be purchased from the 
Commission's copy contractor, 445 12th Street, SW., CY-B402, 
Washington, DC 20554. To request this document in accessible formats 
(computer diskette, large print, audio recording, and Braille), send an 
e-mail to <a href="/cdn-cgi/l/email-protection#8fe9ececbabfbbcfe9ececa1e8e0f9"><span class="__cf_email__" data-cfemail="771114144247433711141459101801">[email protected]</span></a> or call the Commission's Consumer and 
Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 
(TTY).

Synopsis of the Order

A. Background

    1. Walter Edward Floyd, aka Eddie Floyd, has been licensee of 
Station K273AF since August 14, 2001. On December 29, 2006, Floyd 
entered a guilty plea in United States District Court, District of 
Nevada to one count of violating 18 U.S.C. 1956(a)(1)(B)(I), involving 
money laundering, and one count of violating 18 U.S.C. 2, aiding and 
abetting a felony crime, both felonies. According to a Memorandum of 
Plea Negotiation, from approximately April 19, 2002 to March 24, 2004, 
Floyd provided real property located in Doyle, California, to an 
individual by the name of Daren Mabunda for the purpose of cultivating 
marijuana. See United States v. Walter Edward Floyd, Criminal No. 3:06-
CR-21-RLH, Memorandum of Plea Negotiation, (dated Dec. 22, 2006; 
entered Dec. 29, 2006, U.S. District Court, District of Nevada). Floyd 
drafted a fictitious lease for the real property to cover payments by 
Mabunda to Floyd for the marijuana operation. Between April 22, 2002, 
and August 18, 2003, Floyd received payments from Mabunda totaling 
$37,500, which Floyd deposited in his bank accounts. In December 2003, 
Floyd gave Mabunda 400,000 shares of stock in a company he owned, 
``Nevada Matters,'' in exchange for approximately $110,000. In February 
2004, Floyd gave Mabunda an additional 100,000 shares in the company in 
exchange for $27,500. The court found these payments constituted money 
laundering by Floyd in the total amount of $175,000. Floyd acknowledged 
in the Memorandum of Plea Negotiation that all payments he received 
came from the proceeds of Mabunda's drug trafficking activity, and 
Floyd engaged in the transactions with Mabunda in order to conceal and 
disguise the source of the funds. On March 30, 2007, Floyd was 
sentenced to 48 months in federal prison, to commence on June 1, 2007. 
See United States v. Walter Edward Floyd, Criminal No. 3:06-CR-0021-
RLH-RAM, Judgment, at 1-2 (Mar. 30, 2007). He was released by the 
Federal Bureau of Prisons on May 21, 2010, and is currently under the 
jurisdiction of the

[[Page 54881]]

U.S. Probation Office on three years of supervised release.
    2. On September 4, 2007, after he began serving his prison 
sentence, Floyd filed the captioned application on FCC Form 345 seeking 
Commission consent to the assignment of the license for Station K273AF 
to Wilks License Company-Reno LLC (``Wilks''). Therein, despite his 
recent felony conviction, Floyd responded in the affirmative to the 
following inquiry at Item No. 8:

    Adverse Findings. Licensee/permittee certifies that, with 
respect to the licensee/permittee and any party to the application, 
no adverse finding has been made, nor has an adverse final action 
been taken by an court or administrative body in a civil or criminal 
proceeding brought under the provisions of any law related to the 
following: any felony; mass media-related antitrust or unfair 
competition; fraudulent statements to another government unit; or 
discrimination.

    3. Subsequently, on October 25, 2007, Floyd filed an amendment on 
FCC Form 345 to his assignment application regarding the rebroadcast of 
another station. Again, despite his felony conviction, he responded in 
the affirmative to Item No. 8. Thereafter, on December 18, 2007, Floyd 
filed the other captioned application on FCC Form 350 in which he 
proposed to make technical modifications to the facilities of Station 
K273AF. FCC Form 350 contains an inquiry at Item No. 8 which is 
substantially similar to the inquiry at Item No. 8 of FCC Form 345. 
Floyd responded yet a third time in the affirmative, despite his felony 
conviction. Floyd certified to the Commission under penalty of perjury 
in each application that the information provided therein was true and 
correct.

B. Discussion

    4. Section 312(a)(2) of the Communications Act of 1934, as amended 
(the ``Act''), provides that the Commission may revoke any license if 
``conditions com[e] to the attention of the Commission which would 
warrant it in refusing to grant a license or permit on the original 
application.'' In addition, pursuant to section 309(e) of the Act, the 
Commission is required to designate an application for evidentiary 
hearing if a substantial and material question of fact is presented 
regarding whether grant of the application would serve the public 
interest, convenience, and necessity. The character of the applicant is 
among those factors that the Commission considers in its review of 
applications to determine whether the applicant has the requisite 
qualifications to operate the station for which authority is sought. In 
assessing character qualifications in broadcast licensing matters, the 
Commission considers, as relevant, evidence of any conviction for 
misconduct constituting a felony. The Commission has found that because 
all felonies are serious crimes, any conviction provides an indication 
of an applicant's or licensee's propensity to obey the law and to 
conform to provisions of both the Act and the agency's rules and 
policies.
    5. In the instant case, Floyd's felony conviction relating to money 
laundering of proceeds from illegal drug trafficking raises serious 
questions about Floyd's propensity to comply with the Commission's 
rules and, consequently, his basic character qualifications to be and 
remain the licensee of Station K273AF. Floyd's felony conviction also 
raises substantial and material questions whether the public interest 
would be served by grant of the two applications.
    6. The courts have recognized that the FCC relies heavily on the 
honesty and probity of its licensees in a regulatory system that is 
largely self-policing. Misrepresentation and lack of candor raise 
serious concerns as to whether a licensee will be truthful in future 
dealings with the Commission. Misrepresentation is a false statement of 
fact made with intent to deceive. Lack of candor is concealment, 
evasion, or other failure to be fully informative, accompanied by 
intent to deceive. Intent can be shown in many ways. If a licensee 
knowingly makes a false statement, that is sufficient proof of intent 
to deceive. Intent to deceive can also be inferred when one has a clear 
motive to deceive. Moreover, intent can be found when the surrounding 
circumstances clearly show the existence of intent to deceive, even if 
there is no direct evidence of a motive.
    7. Floyd's apparent repeated failure to disclose his felony 
conviction in three filings with the Commission raises very serious 
questions whether he misrepresented material facts to, and/or was 
lacking in candor in his dealings with, the Commission, in willful and/
or repeated violation of Sec.  1.17 of the Commission's rules. The mere 
existence of an inaccuracy in any application, without any indication 
that there was intentional deception, is insufficient to justify 
consideration of a misrepresentation or lack of candor issue in an 
evidentiary hearing. In this case, however, as set forth above, Floyd 
failed to disclose his felony conviction in response to a direct 
question in three separate Commission applications. In addition, Floyd 
had a clear motive for not revealing his felony conviction to the 
Commission--to conceal information that could potentially disqualify 
him as a Commission licensee and block the proposed sale of Floyd's 
translator station to Wilks.
    8. Floyd should have revealed the existence of his felony 
conviction in response to the inquiry set forth above in each of his 
three filings with the Commission. He did not do so, and, instead, 
certified under penalty of perjury that all of the statements therein 
were true, complete, correct, and made in good faith even though his 
filings appear to have satisfied none of these standards. Such apparent 
false certifications raise additional concerns about Floyd's propensity 
to deal truthfully with the Commission.

C. Ordering Clauses

    9. Accordingly, It is ordered, pursuant to sections 312(a) and (c) 
of the Communications Act of 1934, as amended, and Sec.  1.91(a) of the 
Commission's rules, Eddie Floyd is hereby ordered to show cause why his 
license for FM Translator Station K273AF, Carson City, NV, should not 
be revoked, in a proceeding before an administrative law judge, at a 
time and place to be specified in a subsequent order, upon the 
following issues:

    (a) To determine whether Eddie Floyd misrepresented material 
facts to, and/or engaged in a lack of candor before, the Commission 
in his responses to inquiries in either one or both of the captioned 
applications for assignment of license (as originally filed and as 
amended) and for modification of Station K273AF, in willful and/or 
repeated violation of Sec.  1.17 of the Commission's rules;
    (b) To determine whether Eddie Floyd made false certifications 
in either one or both of the captioned applications for assignment 
of license (as originally filed and as amended) and of modification 
of Station K273AF;
    (c) To determine the effect of Eddie Floyd's felony conviction 
on his qualifications to be and remain a Commission licensee;
    (d) To determine, in light of the evidence adduced pursuant to 
the foregoing issues, whether Eddie Floyd is qualified to be a 
Commission licensee;
    (e) To determine whether the license for FM Translator Station 
K273AF, Carson City, NV, should be revoked.

    10. It is further ordered, pursuant to sections 309(e) and (k) of 
the Act, that the captioned applications for assignment of license and 
of modification of Station K273AF, filed by Eddie Floyd, are designated 
for a hearing, before an administrative law judge at a time and place 
to be specified in a subsequent Order, upon the following issue:

    (a) To determine, in light of the evidence adduced pursuant to 
the foregoing issues, whether either one or both of the captioned

[[Page 54882]]

applications for assignment of license and for modification of 
Station K273AF, filed by Eddie Floyd, should be granted.

    11. It is further ordered that, in accordance with section 312(d) 
of the Act, the burden of proceeding with the introduction of evidence 
and the burden of proof with respect to all issues specified in 
paragraph 9, above, shall be on the Enforcement Bureau, and, in 
accordance with section 309(e) of the Act, the burden of proceeding 
with the introduction of evidence and the burden of proof with respect 
to the issue specified in paragraph 10, above, shall be on Eddie Floyd.
    12. It is further ordered, that, irrespective of the resolution of 
the foregoing issues, it shall be determined, pursuant to section 
503(b)(1) of the Act, whether an order of forfeiture should be issued 
against Eddie Floyd in an amount not to exceed $37,500 for each of the 
three instances in which Eddie Floyd apparently engaged in willful and/
or repeated violations of Sec.  1.17 of the Commission's rules.
    13. It is further ordered that, in connection with the possible 
forfeiture liability noted above, this document constitutes notice 
pursuant to section 503(b)(3) of the Act.
    14. It is further ordered, that, to avail himself of the 
opportunity to be heard and the right to present evidence at a hearing 
in these proceedings, pursuant to Sec. Sec.  1.91 and 1.221 of the 
Commission's rules, Eddie Floyd, in person or by attorney, shall file 
within 30 days of the release of this Order, a written appearance in 
triplicate stating that he will appear at the hearing and present 
evidence on matters specified in this Order. If Eddie Floyd fails to 
file a written notice of appearance within the time specified, or a 
petition to accept, for good cause shown, such written appearance 
beyond the expiration of the 30-day time period, the two captioned 
applications shall be dismissed with prejudice for failure to prosecute 
and the issue specified in paragraph 10 shall be deemed to be moot. 
Furthermore, if Eddie Floyd fails to file a timely written notice of 
appearance, the right to a hearing on all issues specified in paragraph 
9, above, shall be deemed to be waived. In the event that a hearing on 
the issues in paragraph 9 is waived, the Chief Administrative Law Judge 
(or presiding officer if one has been designated) shall, at the 
earliest practicable date, issue an order terminating the hearing 
proceeding and certifying the case to the Commission.
    15. It is further ordered, that the Chief, Enforcement Bureau is 
made a party to this proceeding without the need to file a written 
appearance.
    16. It is further ordered, that, pursuant to section 309(e) of the 
Act, Wilks License Company-Reno LLC is deemed a party in interest and 
shall be permitted to participate in this proceeding, provided, within 
30 days of the release of this Order, it files, in triplicate, a 
written notice of appearance stating its intent to appear at the 
hearing and present evidence on matters specified herein.
    17. It is further ordered, that a copy of each document filed in 
this proceeding by or on behalf of Eddie Floyd and/or Wilks License 
Company-Reno LLC shall be served on the Chief, Investigations and 
Hearings Division, Enforcement Bureau, Federal Communications 
Commission, 445 12th Street, SW., Room 4-C330, Washington, DC 20554.
    18. It is further ordered, that a copy of this Order shall be sent 
by Certified Mail, Return Receipt Requested, and by regular first class 
mail to Walter Edward Floyd, aka Eddie Floyd, at his address of record: 
405 Apple Street, Reno, NV 89502.
    19. It is further ordered, that a copy of this Order shall be sent 
by Certified Mail, Return Receipt Requested, and by regular first class 
mail to Wilks License Company-Reno LLC, at 3775 Mansell Road, 
Alpharetta, GA 30022, with a copy to Richard Zaragoza, Esq., Pillsbury 
Winthrop Show Pittman LLP, 2300 N Street, NW., Washington, DC 20037.
    20. It is further ordered, that the Secretary of the Commission 
shall cause to have this Order or a summary thereof published in the 
Federal Register.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 2010-22532 Filed 9-8-10; 8:45 am]
BILLING CODE 6712-01-P


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