Petitioner objects to deal on grounds involving FCC process


The sale of a pair of FM translators in Florida drew objections, and one of the specific points brought up by a petitioner was the use by the seller of the consent decree process to evade liability for a possible FCC disciplinary action. Of course, since the FCC was itself party to the consent decree, it found this particular objection to be ill-founded. Or as the FCC succinctly put it, “…this argument fails.”

In the proposed and now approved deal, David Carus is sending W272BA Cocoa Beach FL and W264AS Rockledge FL to non-profit National Christian Network under President Ray Kassis for $24K cash. NCN intends to use the translators to extend the reach of WMIE-FM Cocoa, part of the Melbourne-Titusville-Cocoa market.
Two petitions to deny came into the FCC, one from Brevard Youth Educational Broadcasting Corporation, and another from Community Radio Foundation of Florida. The petitions made four assertions: Three are these: that Carus had promised to donate the stations to CRF back in 2004; the Carus had acted in a “close legal capacity” for both petitioners and had access to sensitive business information that he may have used in his dealings with the FCC; and that transferring the stations to NCN is not in the public interest.

But by far our favorite is this one: that the FCC should not permit Carus to “secretly walk away” from an enforcement proceeding by entering into a consent decree with that very same FCC.

The FCC brushed aside the latter complaint with the simple statement that the consent decree is a completely legal and commonly used option available to the Commission at its discretion, and that the decision to enter into a consent decree is not reviewable.

The FCC agreed with Carus that resolution of the 2004 donation agreement was a matter for the local courts. On the legal services front, the FCC said “…that the petitioners “…fail to support this argument or even specify in what specific capacity Carus worked for them.” And they find nothing contrary to the public interest in NCN’s use of the translators.

The consent decree between Carus and the FCC involved a complicated set of circumstances and involved underwriting problems and a possible unauthorized transfer of control of the stations.

Since the consent decree cleared up Carus’ business with the FCC, and since NCN is a qualified licensee, the petitions were denied and the transaction was approved.

RBR-TVBR observation: How could anybody make this argument? Why not just go all the way – why sugar coat it? Howzabout: “We believe this deal should be denied on account of the FCC is a horrible miserable corrupt and dissolute institution that does little more than function as a tool, lackey and stooge of the proposed assignee.” That ought to win over the Media Bureau.

We don’t mean to make light of the petitioner’s complaints – to all appearances the assignee has been an erratic licensee – however, those matters are now settled.

Rather, we note the legal precision needed to successfully appeal a transaction, and in particular, we question the wisdom of an argument that implicates the very institution you are trying to win over. If ever there was an argument to simply leave out of the equation, this was it.