The efforts of a Michigan-based broadcaster with a presence in the Lone Star State to get the FCC to reconsider the expiry of a 100kw FM’s license and subsequent call letter deletion have proven to be for naught.
The Commission on Friday adopted a Memorandum Opinion and Order that effectively kills a Class C station along the Texas Gulf Coast.
With the March 23 decision, released Monday (3/26), Roy E. Henderson‘s Application for Review of a November 2017 decision by the Media Bureau’s Audio Division that upheld the expiration and call letter deletion of KROY-FM 99.7 in Palacios, Tex., was denied.
At issue with Henderson is the contention by the Media Bureau that KROY-FM’s license automatically expired under Section 312(g) of the Communications Act of 1934, as amended (the Act), and all subsequent acts stemming from this.
From December 26, 2009, to March 25, 2014, KROY-FM either was silent or operated sporadically with unauthorized facilities, the Commission found.
Accordingly, on January 11, 2017, the Bureau found that the station’s license had automatically expired.
But, the Commission is empowered to reinstate a terminated license if, in its judgment, such action would promote “equity and fairness.”
That didn’t come, as the Bureau rejected Henderson’s argument that the cancellation of KROY-FM’s license was inconsistent with the Commission’s practice of accepting late-filed renewal applications, and his assertion that Bureau staff violated the general principles of agency bias and the Commission’s ex parte rules.
In the AFR, Henderson does not dispute that the automatic expiration provision of Section 312(g) was triggered by the circumstances of this case. “Instead, Henderson raises, often verbatim, the same arguments the Bureau rejected in the Letter Decision,” the Commissioners note in this Order.
Upon review of the AFR and the entire record, the FCC made its conclusion: “Henderson has failed to demonstrate the Bureau erred.”
It continued, “It is uncontroverted that between December 2009 and March 2014 the station was either silent or operated intermittently from an unauthorized and unlicensed site. In the AFR, Henderson again attempts to minimize this transgression by arguing that it ‘had no knowledge that it ever operated from an unauthorized location,’ and by placing blame on its engineer for not making the necessary filings with the Commission. As the Bureau previously explained, however, it is axiomatic that a licensee is directly responsible for compliance with the Commission’s rules and cannot evade responsibility by attributing the misconduct to a station agent or employee. Henderson alone is responsible for his lack of diligence to maintain authorized operations and the corresponding statutory consequences. Thus, the station’s failure to transmit authorized broadcast signals for 12 consecutive months was clearly not due to compelling circumstances beyond the licensee’s control.”
Some six weeks before KROY’s license deletion, Henderson attempted to sell KROY-FM.
On Nov. 30, 2016 RBR + TVBR reported that KROY was sold to New Wavo II for $550,000. An escrow deposit of $27,500 had been made to Henderson’s escrow agent. There was no broker involved in this transaction; John Trent of Putbrese Hunsacker & Trent P.C. served as the legal representative for Henderson.
The FCC reviewed the Form 314 asset purchase agreement, and it ruled the transaction could not proceed… because the station no longer existed. That set the wheels in motion for Henderson’s reconsideration requests.
According to the FCC, KROY-FM was silent or operating with unauthorized facilities from Dec. 26, 2009 (the day after a Second Engineering STA for the “Palacios Site” expired), to March 15, 2014, when automatic program test authority commenced at the “Matagorda Site.” Furthermore, during the two brief periods of operation Henderson reported during this time (March 1-9, 2013, and Dec. 23, 2013-Jan. 2, 2014), “the station lacked any sort of commission authority to operate—STA, PTA, or license to cover—at either site. Therefore, the station’s license expired as a matter of law on or about Dec. 26, 2010, pursuant to Section 312(g) of the Act.”
In a Jan. 16, 2017 conversation with RBR+TVBR conducted via e-mail, Henderson said, “The FCC has made an incorrect judgment in the KROY decision and it is under appeal.”
In the Petition, Henderson claimed that the Bureau overlooked the station’s service to Palacios since 2000; his 2016 application to assign KROY to New Wavo; and his efforts to restore broadcast operation. Henderson also claims that the Bureau ignored evidence, such as statements from local listeners, that KROY-FM did indeed broadcast during the relevant time period.
Henderson submitted with the Petition new evidence purporting to show that KROY-FM broadcast — albeit from an unauthorized site, the commission notes — during the relevant time period.
Now, it appears all of Henderson’s arguments have been dismissed by the Commission.
This follows a Media Bureau ruling made in November 2017 that prohibited a Michigan-based entity, Henderson’s N Content Marketing, from getting a brand-new Class C2 FM facility in the resort town of Gaylord, Mich.
Why couldn’t the owner of WARD-AM 750 in Petoskey, Mich., and 1 AM and 3 FMs in Traverse City, Mich., get it? A joint counterproposal filed by Henderson himself and another one of his operations, Great Northern Broadcasting System, threw a wrench into the original plan, the Media Bureau ruled.