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V.I. Senators Fail in Bid to Deny Radio Station License Transfer

Dec. 15, 2007 — The Federal Communications Commission Thursday dismissed the bid of a half-dozen Virgin Islands senators and a handful of citizens to deny the transfer of the broadcasting license of St. Croix radio station WYAC-FM from its current owners, Philip and Ellen Kuhlman, to the station’s lessee, Roger W. Morgan.
The commission did however find that the Kuhlmans and Morgan violated the FCC’s Main Studio Rule, for which the Kuhlmans agreed to “voluntarily” pay $15,000 and Morgan agreed to pay $8,000 to the federal government under a consent decree. The rule requires that licensees, in this case the Kuhlmans, were bound to maintain a certain level of control over the operations of the station, which had been leased by Morgan’s company The Rain Broadcasting, Inc. about four years ago. The Kuhlmans — who reportedly paid some $350,000 for the license to a firm in Puerto Rico in 2003 — and Morgan conceded that the licensees had failed to properly monitor the management of the station under Morgan’s lease, including its finances, personnel selection and the facility’s day-to-day operations.
“We find that the public interest will be served by its [the consent decree] approval and by terminating all pending proceedings relating to the [Media] Bureau’s consideration of whether the Licensees and the Broker [Rain Broadcasting] participated in an unauthorized transfer of control or violated the Main Studio Rule,” the FCC finding said. “Therefore, the portion of the Senators’ Informal Objection pertaining to these allegations will be dismissed with prejudice,” meaning the complaints would not be entertained again by FCC.
The flap between Morgan and the legislators arose from Morgan’s support of a recall effort against four St. Croix senators after the 26th Legislature passed a measure dramatically raising the salaries of its members and the governor and lieutenant governor in the final hours of its closing session in 2006. The recall ultimately failed, since the number of signatures required to qualify it for a vote fell short.
The senators, led by Sen. Ronald Russell, filed a petition to deny transfer of the license to Morgan on Jan. 11, 2007. “Because the Senators’ pleading was not served on the Licensee,” as required, the FCC stated, it was treated as an “informal objection.”
The senators alleged that the transfer of the license to Morgan should be denied for four reasons: Morgan allowed a candidate for delegate to the Virgin Islands Constitutional Convention — St. Croix resident Steve Nisky — to host a program on the station the day before the special election to choose the delegates was held; the licensees violated the Main Station Rule; the transfer was not in the best interests of the residents of St. Croix because Morgan was using the station to “destabilize the legislative branch of the government and to promote divisiveness within the St. Croix community;” and the station was being used “for political reasons without offering equal airtime to those holding opposing views and to lodge personal attacks on sitting senators.” The FCC agreed with Morgan and the Kuhlmans that the commission’s rules on the use of the station by “candidates for public office” did not apply, since the senators were unable to show that a delegate to the constitutional convention would hold a “public office.” Although some states have laws defining what a public office is, the Virgin Islands has never adopted any such statute, the FCC pointed out. The senators also failed to show that any competing candidate for delegate requested airtime.
The FCC dismissed the complaints about the nature of Morgan’s programming, in particular the popular talk show “Free Speech” aired daily on WYAC as moot, since the FCC does not have any direct control over the content of what radio stations broadcast nor can it arbitrarily suspend the First Amendment right to freedom of speech. The senators’ argument, the FCC noted, “appears to be grounded in the Fairness Doctrine,” which was dropped in 1987 under President Ronald Reagan, thus rendering the senators’ claims “unavailing.” As for the senators’ claims of “personal attacks,” the FCC said that under a ruling from a federal district court in October of 2000, an existing FCC rule about such attacks “was repealed” and therefore inapplicable.
As part of the consent decree, the Kuhlmans and Morgan agreed to institute certain procedures under a compliance plan. These include the station’s conducting training for its employees regarding compliance with FCC rules by an “outside counsel or other comparable professionals.” The training must be videotaped and used as a training tool and refresher at least every 12 months. The decree also requires Morgan to “engage FCC counsel on an ongoing basis to provide guidance to Rain of FCC compliance issues” and to provide a report to FCC certifying its adherence to the Compliance Plan and all pertinent FCC rules on a yearly basis.
“We are deeply grateful for the support of our listeners and our advertisers,” Morgan told the Source, “without which we would not have been able to prevail.”
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