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Ohio LPFM Hearing Terminated After Series of Missteps

Hearing instigated after concerns about transfer of control and candor

A changing board of directors, unanswered letters of inquiry, a missing attorney — and now the cancellation of a hearing by an FCC Administrative Law Judge — have thwarted a low-power station’s efforts to renew its license.

As licensee of WWGH(LP) in Marion, Ohio, the nonprofit corporation Marion Educational Exchange ran into trouble when it was revealed that the board of directors listed on its FCC application were different from the board of directors listed in documents it submitted to the State of Ohio. 

In May 2019, the Media Bureau approved the reassignment of WWGH to Marion from its previous licensee. When that application was processed, Marion indicated that the same five individuals that made up the previous licensee’s board of directors would remain in place. A week later, Marion filed an application for transfer of control of the station and noted that one of the individuals — and only one — on the board was to be replaced.

Sometime later, the Media Bureau learned that an entirely new set of board of directors appeared on the documents that Marion filed with the State of Ohio. 

The Media Bureau sought more information from Marion — in three separate letters of inquiry — but the bureau found that Marion either did not reply by the deadline or did not provide enough information. 

As a result, the bureau set up a hearing to look into several issues: if Marion violated FCC rules by failing to completely respond to commission inquiries, if it lacked candor when it answered questions posed by the Media Bureau, if it failed to notify the commission of a transfer of control that seemed to have occurred in May 2019 and if its renewal application should be approved in light of these issues. 

[Related: “Ohio LPFM Heading to Hearing Over Alleged Violations“]

Once a matter proceeds to a hearing in front of an FCC Administrative Law Judge, a licensee is required to retain counsel. At the outset of the proceeding, an attorney by the name of George M. Wolfe filed a notice saying he would be representing Marion. A few weeks after that initial status counsel, however, Wolfe asked to withdraw as Marion’s counsel, citing Marion’s failure to communicate with him. Soon after, Marion filed a notice of appearance indicating that it would represent itself in the hearing. But Administrative Law Judge Jane Hinckley Halprin disagreed in light of the repeated failure of Marion to adhere to filing deadlines and to familiarize itself with FCC rules.

Hinckley Halprin gave Marion 20 days to retain counsel. On the 20th day, another attorney asked that the proceeding be suspended while he considered whether to take the case, but the judge rejected that request. Instead, the judge gave Marion an additional seven days to find an attorney. But nothing was filed in response, the commission said. 

Soon after Shawn Craft, who is president of Marion, filed a letter saying that Marion attempted to retain alternative counsel but has been unable to do so. He also claimed that the previous attorney did not inform Marion that he was withdrawing from the case and that Marion never received the Enforcement Bureau’s discovery requests. 

Since his station is a 100 Watt low-power FM station without significant financial resources, Craft said he needs an attorney that would take the case pro bono so that the station can continue to serve the local community. Craft told Judge Hinckley Halprin that Marion did not mean to mislead the commission and he asked that his station be allowed to remain on air until the end of the year and that the case be dismissed or settled with the payment of a fine.

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But the Enforcement Bureau said that even after the judge gave Marion three chances to find an attorney, Marion did not retain counsel as requested. As a result, the bureau said this proceeding should be dismissed with prejudice. “By repeatedly failing to comply with the commission’s rules and with orders of the presiding judge … [Marion] has demonstrated that it is not likely to fully or timely participate in this case going forward,” the bureau said. “In essence, [Marion] wants the presiding judge to simply render a determination in its favor, without [Marion] participating in this proceeding, without the development of a thorough record on the designated issues, and without [Marion] meeting its statutorily proscribed burden of proof.”

It’s important to note that Marion bears the burden of proving that it is worthy of bearing a radio station license, the bureau said. 

“When a licensee that bears the burden of proof does not fully participate in a hearing, it forfeits its opportunity to show that grant of its application is in the public interest,” the bureau said. “As a result, the presiding judge therefore has no choice at this point but to dismiss this hearing proceeding due to [Marion’s] failure to prosecute its application.”

As a result, the administrative law judge terminated Marion’s hearing proceeding permanently.