Federal Communications Commission.
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.
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.
Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554.Start Further Info
FOR FURTHER INFORMATION CONTACT:
Gary Schonman, firstname.lastname@example.org, Enforcement Bureau, Investigations and Hearings Division, (202) 418-1795.End Further Info End Preamble Start Supplemental 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 email@example.com or call the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).
Synopsis of the Order
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 Start Printed Page 54881U.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.
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 § 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 § 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 § 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 Start Printed Page 54882applications 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 § 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 §§ 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.Start Signature
Federal Communications Commission.
Marlene H. Dortch,
[FR Doc. 2010-22532 Filed 9-8-10; 8:45 am]
BILLING CODE 6712-01-P