This document was provided by the petitioners to the Boston Radio Archives in paper form, and scanned by us. There are doubtless scanning errors. Any discrepancy between this document and the paper version filed with the FCC is to be resolved in favor of the latter.
The Boston Radio Archives
LAW OFFICES of HALEY BADER & POTTS P.L.C.
4350 NORTH FAIRFAX DR., SUITE 900
ARLINGTON, VIRGINIA 22209-1633
TELEPHONE (703) 841-0606
FAX (703) 841-2345
E-MAIL: haleybp@haleybp.com
June 18, 1997
OUR FILE No. 0020-102-63
Mr. William F. Caton
Acting Secretary
Federal Communications Commission
Washington, D.C. 20554
Re: W232AJ
W240AM
W288AM
W288AZ
Dear Mr. Caton:
Transmitted herewith on behalf of Carter Broadcasting Gorporation
are an original and four copies of a Complaint and Request for
Investigation which is being filed with respect to Brian A. Dodge and
Harvest Broadcasting Association. If there are any questions
concerning this submission, please contact the undersigned.
Sincerely,
/s/ John M. Pelkey
JMP/ned
Before The
Federal Communications Commission
Washington, D.C. 20554
In the Matter of:
| Brian A. Dodge | |
| Harvest Broadcasting Association | |
| W232AJ | Greenville, Jaffrey, New Boston and Peterborough, New Hampshire |
| W240AM | West Keene and Troy, New Hampshire |
| W288AM | West Brattleboro, Vermont, Hinsdale and West Chesterfield, New Hampshire |
| W288AZ | Bernardston and Greenfield, Massachusetts |
Complaint and Request for Investigation
HALEY BADER & POTTS P.L.C.
Suite 900
4350 North Fairfax Drive
Arlington, VA 22203-1633
Carter Broadcasting Corporation ("Carter Broadcasting"), through counsel, hereby requests that the Commission commence an investigation of the activities of Harvest Broadcasting Association ("HBA") and HBA principal Brian A. Dodge to determine the fitness of HBA and Mr. Dodge to be Commission licensees.
As will be shown below, Brian Dodge, operating through the sham entity known as Harvest Broadcasting Association, has routinely and flagrantly violated the Commission's rules. In particular, Mr. Dodge has (1) engaged in unauthorized transfers of control, (2) operated a translator station in a manner inconsistent in almost every particular with the terms of that station's authorization, and (3) violated Section 74.1232 of the Commission's rules by operating a chain of translator stations in the name of "LOVE Radio" that rebroadcasts the signals of Albany, New York area stations far beyond the 1 mV/m contour of those stations while maintaining a business relationship with those stations. The conclusion is inescapable that Mr. Dodge and HBA have no regard for the Commission's rules and have adopted a course of conduct that evidences a contempt for the Commission's processes and the rule of law. The Commission no longer has any choice but to cease its toleration of Mr. Dodge's activities. It must institute an investigation of those activities and commence the proceedings necessary to revoke the authorizations that have been issued to HBA and Brian Dodge and to impose a substantial forfeiture on both HBA and Mr. Dodge.
By letter of May 24, 1993,4 Mr. William Wittik, who described himself as the "managing partner" of HBA, informed the Commission that HBA is a partnership that was formed in March, 1984, by Etta Dodge and Marian Akley, that Susan Chamberlin joined the Partnership in 1989 and that Mr. Wittik became Managing Partner in 1993. By implication, these four individuals were HBA's only partners. The alleged purpose of the letter was to inform the Commission that Harvest had changed its name to "Harvest Translators" so as to distance itself from a "non-profit group in New Hampshire with the same name." In point of fact, the May 24, 1993 letter is nothing less than an exercise in revisionist history, purposely designed to hide from the Commission the fact that Mr. Brian Dodge had become (if indeed, he had not always been) the real party in interest behind HBA.5
There is some support for the proposition that HBA originally was a partnership of Marian Akley and Etta Dodge. The FCC Form 346 that was filed by HBA in 1982 whereby HBA sought authority to construct its West Brattleboro, Vermont, translator,6 listed Etta M. Dodge as the "Chairperson" and "Marrian (sic7) Akley" as the "Vice Chairperson" of HBA. Although the relevance of the positions of Chairperson and Vice Chairperson to a partnership, which HBA claimed to be, is unclear, it is true that Ms. Dodge and Ms. Akley were the only two persons listed as having an ownership interest in the partnership. Moreover, the engineering exhibit for the application was prepared by Mr. Tim Allen, who is identified as the "Technical Director" of HBA. Brian Dodge's involvement in the application purportedly was limited to the function of providing the transmitter site to be used by HBA. Thus, on its face, the 1982 HBA application purported to depict an entity controlled by Etta Dodge and Marian Akley in which Brian Dodge's involvement was limited to that of transmitter site provider.
Assuming that the 1982 West Brattleboro application accurately depicted HBA's ownership, matters soon changed. Beginning in 1985 and continuing up to the point at which the HBA translators were required to file their renewal applications, Brian Dodge, for all intents and purposes, became HBA. The July 25, 1985, application for extension of construction permit filed by HBA to extend the construction permit for the West Brattleboro translator was signed by Brian Dodge.8 The applicant certification in the July 25, 1985 covering license application filed for the West Brattleboro translator9 was signed by Brian Dodge and gave Mr. Dodge's name as the person to be contacted in the event that the transmitter was required to be turned off in an emergency. The notification that the West Brattleboro translator had begun rebroadcasting WJJR, Rutland, VT, instead of WTIJ, Bellows Falls, VT, was executed by Brian Dodge. When HBA filed an amended covering license application, the applicant certification continued to be signed by Mr. Dodge and the cover note accompanying the amended application was signed by Mr. Dodge."
The West Brattleboro scenario is not an isolated one. In fact, Mr. Dodge even took to signing the applicant certification in the construction permit applications filed by HBA after 1985. Thus, for example, the construction permit application filed by HBA for Channel 288A in Bernardston, Massachusetts, was signed by Mr. Dodge.12 The 1986 construction permit application for Channel 240 in Bernardston was signed by Mr. Dodge.13 The applicant certification in the 1987 application whereby HBA sought authority to construct a translator on Channel 240 in West Keene, New Hampshire, was signed by Mr. Dodge.14 With respect to each of these applications, Mr. Dodge prepared the engineering portion of the application.15 Mr. Dodge also signed the applicant certification on each of the covering license applications filed with respect to each of these translator stations.16 In each case, Mr. Dodge described his title as being "Director" -- a position that normally would be considered to be unusual in a partnership but which is understandable in an organization where the two named partners hold the positions of Chairperson and Vice Chairperson.
Mr. Dodge's activities were not limited to acting as the nearly exclusive liaison between HBA and the Commission between 1985 and 1990. The Commission's files reflect that Mr. Dodge was also acting on behalf of HBA in attempting to obtain retransmission consent. On November 12, 1985, Mr. John J. Long, Jr., then President of the licensee of WJJR, Rutland, New York, wrote to the Commission to provide it with copies of letters that he had sent to Brian Dodge with respect to Mr. Dodge's efforts to obtain retransmission consent for the HBA West Brattleboro station.17 That correspondence revealed that Mr. Long had authorized Mr. Dodge, in his capacity as President of "WTIJ", to rebroadcast the signal of WJJR.18 According to Mr. Long, Mr. Dodge had assured him that he had the right to "operate the translator" inasmuch as Mr. Dodge "owned, operated and maintained the translator in question". Because Mr. Long learned from the engineer in charge of the Boston field office that the authorization to construct the Brattleboro translator had expired, Mr. Long withdrew WJJR's consent to the retransmission of WJJR over the Brattleboro station. As a result of Mr. Long's withdrawal of this consent, the Commission staff, by letter of February 20, 1986, directed HBA to cease rebroadcasting WJJR over the West Brattleboro station. Significantly, the response to the Commission's letter came from Brian Dodge, who informed the Commission that the West Brattleboro translator was now rebroadcasting WTIJ. Mr. Dodge's letter to the Commission acknowledged that Mr. Dodge was acting "for Harvest Broadcasting Assoc."19
HBA's activities did not go unnoticed by the Commission. By letter of May 16, 1988,20 the Chief, Auxiliary Services Branch, admonished HBA to strictly comply with the Commission's rules. In particular, the staff advised HBA that Brian Dodge should not be signing applications that require the signature of a principal of HBA if Brian Dodge was no more than a consultant. Nevertheless, Mr. Dodge continued to sign HBA's applications for several months after the issuance of the May 16, 1988 letter. For example, the applicant certification on the November 15, 1988 covering license application for W232AJ was signed by Brian Dodge.21 Similarly, the covering license application for W240AM, which also was received by the Commission on November 15, 1988, was executed by Mr. Dodge.22
Nevertheless, the Commission's admonition apparently had a salutary effect inasmuch as the renewal applications filed by HBA in January 1990 were signed by Susan S. Chamberlin. Significantly, however, she described herself in those applications as being "Director" of HBA which, of course, is the very same title that had been used by Brian Dodge in signing numerous applications on behalf of HBA. The Commission again called HBA to task for the fact that a person identifying herself as a "Director" was filing on behalf of a partnership.23 The Commission's policies, of course, require that a partner sign the application of a partnership. Ms. Chamberlin responded by striking through the term "Director" and inserting the word "Partner" on the renewal application form.
The submission of the renewal applications in 1990 began a short-lived period of nominal compliance by HBA with the Commission's requirements. By that time, however, it had become abundantly clear that Brian Dodge had become the real party in interest behind HBA. He acted for HBA on nearly all applications and correspondence between HBA and the Commission for at least the five year period between 1985 and January 1990. He also apparently was responsible for obtaining the retransmission consent for the translators.
Even HBA's superficial compliance with respect to the execution of the renewal applications was illusory, however, for Brian Dodge continued to be the real party in interest behind HBA. In 1990, an entity known as "Harvest Broadcasting" filed an Ownership Report with the Commission.24 The submission of the report was required in light of the entity's position as the permittee of WWNH(AM), Madbury, New Hampshire. The report reflected that Harvest Broadcasting was a sole proprietorship owned by Brian Dodge. The cover letter accompanying the 1990 Harvest Broadcasting Ownership Report25 was written on the letterhead of an entity known as "Harvest Broadcasting Services" and was signed by Brian Dodge. The address listed on the letterhead was Box 105 FM, Hinsdale, New Hampshire 03451, which was the same address on file with the Commission for Harvest Broadcasting Association.26
Moreover, while the Commission was being misled into believing that Brian Dodge was not a principal in HBA, the State of New Hampshire was being told something quite different. According to the Department of State of the State of New Hampshire, "Harvest Broadcasting Association" is a trade name, i.e., it has no status as a legal entity. The application for registration of that trade name was filed on August 26, 1994.27 The address for Harvest Broadcasting Association that was listed in the trade name application was P.O. Box 69, 284 Knox Marsh Road, Dover, New Hampshire 03820. The application was filed by Brian Dodge, in his role as President of We Trust in Jesus Broadcasting, Inc. The address listed in the application for We Trust in Jesus Broadcasting, Inc. was 284 Knox Marsh Road, i.e., the same address as that listed for Harvest Broadcasting Association. Even though the application requesting treatment of Harvest Broadcasting Association as a trade name for We Trust in Jesus Broadcasting, Inc. specified that We Trust in Jesus Broadcasting, Inc. is the owner of the "Harvest Broadcasting Association" name, Mr. Dodge, by letter dated June 22, 1994,28 granted permission to We Trust in Jesus Broadcasting, Inc. to use the name "Harvest Broadcasting Association", thus implying that he, and not We Trust in Jesus Broadcasting, Inc., is the owner of the name. In addition, Mr. Dodge, only six months previously, had informed the Department of State of the State of New Hampshire that he was the owner of the name "Harvest Broadcasting".29 At that time, he informed the Department of State that his address was P.O. Box 69, Dover, New Hampshire, which is the same address as the address for Harvest Broadcasting Association.
At nearly the same time that Mr. Dodge was informing the New Hampshire Department of State that the address for We Trust in Jesus Broadcasting and himself was P.O. Box 69, Dover, New Hampshire 03820, he was also informing that same department that the address for We Trust in Jesus Broadcasting and himself was P.O. Box 1840, Dover, New Hampshire 03820. Thus, his application for registration of a foreign non-profit corporation, filed with the New Hampshire Department of State on August 26, 1994,30 recited an address of P.O. Box 1840, as did a June 23, 1994 letter from that department to We Trust in Jesus.31 The use of this address is significant inasmuch as it was the address provided to the Commission as the address for Harvest Broadcasting Association in letters of January 27, 199332 and October 25, 199033 from Mr. Dodge and a letter to the Commission of January 11, 1993, from Brenda DuBois, who described herself as the Secretary of Harvest Broadcasting Association.34
So far as the structure of We Trust in Jesus Broadcasting, Inc., is concerned, the New Hampshire Department of State was informed that Brian Dodge, Etta Dodge and Marian Akley were the sole officers and directors of the corporation.35 Of course, Ms. Dodge and Ms. Akley were described to the Commission as being the original partners in Harvest Broadcasting Association.
It is thus apparent that Mr. Wittik's May 24, 1993 letter was no more than a smokescreen designed to hide Brian Dodge's involvement in HBA. A letter of August 13, 1993 from Mr. Wittik to the Commission36 continues the gambit. In that letter, Mr. Wittik informs the Commission that Harvest Translators has been incorporated in the state of New Hampshire and that the principals therein remain the same as those in the partnership. In a pleading styled as an "Amendment for Petition to Deny" and received by the Commission on May 16, 1997, HBA again recites that "Harvest Broadcasting Association" is merely a trade name being used by an entity known as Harvest Translators Inc.37
Although the Articles of Incorporation of Harvest Translators Inc., which are attached hereto as Exhibit CC, do not reflect the names of the officers and directors of the corporation, the address of the corporation is listed as P.O. Box 69, Dover, New Hampshire, 03820. This is the same address that was supplied to the State of New Hampshire by Mr. Brian Dodge as his address.38 In addition, Mr. Dodge, in a letter that accompanied the Articles of Incorporation and was dated the same day as the Articles, recites that his address is P.O. Box 69, Dover, New Hampshire, 03820.39 Once again, it is clear that, despite the purported change in ownership structure, Brian Dodge remains as the real party in interest behind HBA.
Moreover, despite HBA's statement to the Commission in May 1997 that "Harvest Broadcasting Association" is a trade name used by Harvest Translators, Inc., the fact is that Harvest Translators, Inc., ceased its corporate existence more than 18 months ago. Although it was originally incorporated in New Hampshire in 1993, it never filed the annual reports providing the names of the corporation's officers and directors. As a result, the corporation was involuntarily terminated by the State of New Hampshire on November 1, 1995. Harvest never saw fit to even inform the Commission of the transfer of control, much less to seek its consent to that transfer of control. In fact, Harvest actually sought to affirmatively mislead the Commission in its May 1997 submission by characterizing "Harvest Broadcasting Association" as being a trade name of Harvest Translators Inc. -- thus clearly implying that Harvest Translators Inc. continues to exist.
Moreover, Mr. Dodge's involvement in HBA's Petition to Deny against Cardwell Broadcasting, Inc. ("Cardwell"), as well as his involvement in the "Amendment for Petition to Deny" provides yet further testimony as to Mr. Dodge's control over HBA. On January 23, 1997, Brian Dodge telephoned Cardwell's WPVQ and spoke with Mr. Glenn Cardinal, who is Cardwell's President and the General Manager of WPVQ. Cardwell had filed applications to construct translators in South Hadley and Amherst, Massachusetts, to rebroadcast WPVQ in an effort to overcome reception difficulties being encountered within certain portions of that station's 1 mV/m contour. On March 1, 1997, Mr. Dodge left a message on the WPVQ answering machine in which he requested to speak to Cardwell's engineer about one of the Cardwell translator applications. On March 4, 1997, Mr. Dodge visited the WPVQ offices to speak with Cardwell's Chief Engineer. On March 5, 1997, Mr. Dodge again visited the WPVQ studios -- this time to inspect the station's Local Public File. On March 6, 1997, the Commission received a "Petition to Deny" against one of those translator applications that appeared to be in Mr. Dodge's handwriting. Although the petition was ostensibly signed by Etta Dodge, the return address on the petition is Mr. Dodge's address. On April 28, 1997, WPVQ received a letter from Mr. Dodge in which he threatened "to advise" HBA to submit the "Amendment" if Cardwell did not agree to withdraw both its South Hadley and Amherst applications by noon on April 30. WPVQ's service copy of the "Amendment" was in an envelope that was addressed in Mr. Dodge's handwriting.40
It is thus apparent that We Trust in Jesus Broadcasting, Inc., Harvest Broadcasting and Harvest Broadcasting Association are mere alter egos for Brian A. Dodge. Despite this fact, HBA has consistently misled the Commission by failing to disclose that Mr. Dodge is the real party in interest behind HBA. If there were any doubt on this matter, that doubt is resolved when the programming being placed over the HBA translators is taken into consideration.
There is another entity that uses P.O. Box 1840, Dover, New Hampshire, as its mailing address. That entity is known as "LOVE Radio". According to the Department of State of the State of New Hampshire, "LOVE Radio", like "Harvest Broadcasting Association" is a trade name. According to the re-registration application filed with the New Hampshire Department of State on May 24, 1995, the trade name is owned by Brian Dodge and WTIJ Broadcasting.41 According to its own newsletter, LOVE Radio provides the programming for 6 translators located in New Hampshire, Vermont and Massachusetts.42 The translators operate on 99.7 MHz in Wilmington, Vermont; 105.5 MHz in Brattleboro, Vermont; 95.9 MHz in Keene, New Hampshire; 94.3 MHz in Peterborough, New Hampshire; 105.5 MHz in Greenfield, Massachusetts; and 92.1 MHz in Westfield, Springfield and Northhampton, Massachusetts. All but the first and last of these translators are licensed to HBA. The Wilmington translator has never been licensed, but a construction permit for that translator was issued to Rothschild Broadcasting Inc.43 The Westfield translator is licensed to an individual by the name of Gary Kenny. The Westfield translator apparently is a matter of particular pride to LOVE Radio. The November 19, 1996 LOVE Radio newsletter crowed that listeners could expect to hear LOVE Radio programming "over our new FM Translator 92.1 in the Westfield/Springfield area ...."
LOVE Radio pulls no punches when it comes to describing the real party in interest behind that organization. Its March 24, 1997 newsletter describes Brian Dodge as being "our founder" and the person behind LOVE Radio.44
Recently, LOVE Radio moved its headquarters. The March 24, 1997 LOVE Radio newsletter reflects an address of P.O. Box 2401, Brattleboro, Vermont. As can be seen from the "Application for Addition to Checklist" that is attached hereto as Exhibit HH45, Brian Dodge uses that post office box as his mailing address and he has advised the town of Brattleboro that his principal dwelling place is at 93 Landmark Drive, Brattleboro, Vermont. Although HBA has not informed the Commission of a change in its mailing address, the Petition to Deny filed with the Commission by HBA with respect to one of the Cardwell translator applications recited a mailing address for HBA of 93 Landmark Drive in Brattleboro, the very same address as Brian Dodge's.
Mr. Dodge has ample reason to hide his involvement in HBA. First, Mr. Dodge is a convicted felon, having been convicted by the State of Vermont as the result of an automobile accident in which a person was killed. A copy of that conviction as supplied by the court is attached hereto as Exhibit II. That conviction was affirmed on appeal in State v. Dodge, 567 A.2d 1143 (VT 1989). Second, Mr. Dodge has outstanding character issues against him as a result of his failure to provide the Commission with accurate and updated information concerning his broadcast interests. See Laqueth Fleming, 3 FCC Rcd. 3712, 3714 (1988). Third, certain of Mr. Dodge's activities are currently under investigation by the Commission. See Rothschild Broadcasting, Inc., 10 FCC Rcd. 7226, 7227n.6 (1995). Each of these three matters could easily lead to the disqualification of any entity in which Mr. Dodge is involved. Even if they can each be explained away, however, their mere existence would subject any application in which Mr. Dodge has an ownership interest to petitions to deny and, even if such petitions were not filed, would result in a delay in processing such applications while the Commission addressed these various issues.46
Mr. Dodge's execution of applications on behalf of HBA, Mr. Dodge's representations to the State of New Hampshire with respect to his ownership of the trade name "Harvest Broadcasting Association", the commonality of addresses used by HBA, Brian Dodge and LOVE Radio, the fact that Mr. Dodge's LOVE Radio provides programming over several of the HBA translators and Mr. Dodge's involvement in HBA's Petition to Deny and related pleadings with respect to the Cardwell translators all conclusively demonstrate that Brian Dodge is the real party in interest behind HBA. HBA has never disclosed this interest, however. As a result, the Commission should commence an investigation to determine whether HBA and Mr. Dodge hold the requisite qualifications to be Commission licensees.
As has been pointed out above, LOVE Radio has taken special pride in "our new FM translator 92.1 in the Westfield/Springfield area." The FCC's records, however, disclose that no translator has been licensed to Brian Dodge, LOVE Radio or HBA in the Westfield/Springfield area on 92.1 MHz. The only translator that the Commission has authorized on that frequency in the Westfield/Springfield area is a translator licensed to one Gary Kenny. A review of the Commission's files with respect to that translator, however, reveals an all too familiar pattern. Although the translator application was filed in the name of Mr. Kenny, the engineering portion of that application was prepared by Brian Dodge. Thus, once again, a situation arises where Mr. Dodge is instrumental in the preparation of a translator application, LOVE Radio claims that it is "our" translator and LOVE Radio programs that translator.
In the present case, moreover, the connection between Mr. Kenny and the translator is even more tenuous than the connection between HBA and the translators licensed in HBA's name. The mailing address on file with the Commission for Mr. Kenny is an address in Neosho, Missouri. What possible reason a resident of Neosho, Missouri, would have for being the licensee of a translator in Westfield, Massachusetts is less than clear. It should be noted, however, that the biography of Brian Dodge distributed by LOVE Radio recites that Mr. Dodge at one point was instrumental in establishing radio facilities in a number of Mid-Western States, including Missouri.47 While the connection between Mr. Dodge and Mr. Kenny is somewhat unclear, the fact is that Mr. Dodge, quite literally, has left his fingerprints all over the Westfield translator. As can be seen from Exhibit LL, which is a photograph of the front of the Westfield translator transmitter, the transmitter bears a note stating that, if there are problems with the transmitter, the telephone number to be called is 800-805-8815. This is the telephone number that LOVE Radio uses for its fund raising efforts. See pp. 32 - 33, infra. See also Ex. RR hereto.
Mr. Dodge thus prepared the application for the Westfield translator, supplies the programming for the Westfield translator, and is the person who is in charge of its continued operation. That Mr. Dodge has taken over control of the translator (if indeed, he did not have control from the beginning) is now clear. Nevertheless, no assignment or transfer application was ever filed with respect to the Westfield translator. Under such circumstances, it is clear that Brian Dodge and LOVE Radio have been involved in an unauthorized transfer of control of the Westfield translator.
It may be noted that the license for the Kenny translator application was filed in 1986. Why would LOVE Radio be touting this station in a 1996 newsletter as being "new"? The reason is quite simple. It is new, having been built at a new location, with a different antenna, with higher transmitter power, and a much higher height than the facilities authorized by the Commission.
As is explained in the attached Affidavit of Robert Shotwell, who is Carter Broadcasting's Assistant Director of Engineering for Special Engineering Projects, Mr. Shotwell had noticed in approximately March 1997 that a translator was operating on 92.1 MHz from a facility located somewhere to the south of Northampton, Massachusetts. A check of online data base information revealed that the only facility authorized to operate on 92.1 MHz in the vicinity was the translator station licensed to Mr. Kenny. That translator station, however, was, according to the Commission's records, operating from a location in Westfield, Massachusetts. Because Westfield is on the other side of Mt. Tom from Amherst and South Hadley, the Westfield translator should have been barely heard in those communities. In fact, the 92.1 MHz translator was placing a strong signal into those two communities, as well as to numerous communities far to the east of Mt. Tom. Using direction finding techniques, Mr. Shotwell determined that the translator, rather than operating from its licensed location, was operating from Mt. Tom itself. A subsequent visit to Mt. Tom disclosed that the translator was operating from a transmitter building being used by other non-broadcast communications facilities. Pictures of the Mt. Tom site are attached hereto as Exhibits LL through NN. Those pictures reveal not only the note in Mr. Dodge's handwriting that is referenced above, but also the model number of the transmitter and the meter reading. Those pictures also reveal that the translator was using a 6 element yagi.
As Mr. Shotwell explains in his Declaration and as can be seen from the picture of the transmitter face, the metering switch of the translator transmitter was in the Forward Power position at the time that the picture was taken and the meter itself indicated that the transmitter was operating at approximately 80% of full scale. Based on this information and the fact that the TEPCO Model J-317 that was being used is type accepted at 5 to 12 watts, Mr. Shotwell estimates the Forward Power at approximately 10 watts. Because a 6 element yagi of the type being used by the translator has at least a gain of 5 dB, Mr. Shotwell estimates that the main lobe ERP of the translator was, conservatively, between 40 and 50 watts rather than the 2 watts for which the station is licensed. In summary, the station was operating with a power at least 20 times greater than that authorized, was operating at a location approximately 9.5 miles from its licensed location and was operating with an antenna that was 920 feet higher than that permitted by the Commission.
The operation of this "Westfield" translator was such a flagrant violation of the Commission's rules that, in May 1997, the Commission's Boston field office took action which led to the station being taken off the air. While this action has taken care of the immediate problem, it does not address the longer range problem. Brian Dodge and LOVE Radio not only took over control of a translator without Commission approval, but they operated that translator in a manner that was blatantly unlawful. If the Commission is to forestall future activities of this type, it must take action by finding Mr. Dodge, LOVE Radio and HBA unfit to be Commission licensees and to impose a significant forfeiture.
The need for such action is abundantly clear. Mr. Dodge unlawfully assumed control over HBA. He unlawfully assumed control over the Gary Kenny translator. The situation is not unique. In a 1993 decision, the Commission staff found that Mr. Dodge had engaged in an unauthorized transfer of control of the license for WKBR(AM). The staff issued a Notice of Apparent Liability to the licensee as a result of Mr. Dodge's activity.48 Apparently, however, that Commission action has not dissuaded Mr. Dodge from continuing his unlawful activities. It is time for the Commission to take effective action against Mr. Dodge so as to insure that he abides by the Communications Act and the Commission's rules in the future.49
Although contrary to the explicit requirements of Section 74.1251, Brian Dodge a/k/a LOVE Radio, a/k/a HBA, changed the input frequencies utilized by W221AP, W232AJ, W240AM, W288AN, and W288AZ (the "LOVE Radio Translators") so that those translators now retransmit programming originated by WHAZ, an AM station licensed to Troy, New York. The programming placed over WHAZ is also rebroadcast by two FM stations, WMYY(FM) in Schoharie, New York, and WBAR(FM), Lake Luzerne, New York.50 The LOVE Radio Translators are all, however located well outside of the 1 mV/m contours of either WMYY(FM) or WBAR(FM). The translators thus act to significantly increase the coverage area of WHAZ, WMYY(FM) and WBAR(FM), all of which are licensed to Capital Media Corporation.
In its solicitations for funds, LOVE Radio has been very explicit as to the reason for the change in the primary station being rebroadcast by the LOVE Radio Translators. As was stated by LOVE Radio in its November 1996 newsletter, the change was made because the previous primary station refused to provide support to LOVE Radio, whereas the new primary station had agreed to support the LOVE Radio Translators:
Previously, support that was being sent to WGLV (our most recent signal provider) for the LOVE Radio Translator signal could not be used for keeping up with the expenses of maintaining and providing that signal. Our new affiliation with the Alive Radio Ministries will provide some of that needed support we were missing in the past, and will allow Love Radio some additional finances that are desperately needed to continue our signal. That's good news to us, our listeners, and more importantly, the ministries that depend on these LOVE Radio Translators to get the word out.
Section 74.1232 of the Commission's rules explicitly prohibits such support.
The rule is clear:
An FM translator station whose coverage contour goes beyond the protected contour of the commercial primary station shall not receive any support, before or after construction, either directly or indirectly, from the commercial primary FM radio broadcast station.
LOVE Radio's newsletter is no less than an admission that LOVE Radio which, like HBA, is nothing more than a trade name under which Brian Dodge operates, switched primary stations in order to permit a violation of Section 73.1232 to take place.51
That LOVE Radio has been receiving support from the WHAZ stations is clear not only from LOVE Radio's November 1996 newsletter, but also from recent activities of the stations. Attached hereto as Exhibit OO is an advertisement that appeared in the Greenfield Recorder for a so-called "LOVE-A-THON" that was broadcast over all three of the WHAZ stations and the LOVE Radio Translators on March 12-14, 1997. This "LOVE-A-THON" took place on each one of these days from approximately 1 p.m. to 5 p.m. The "LOVE-A-THON" was broadcast from the studios of the WHAZ stations. In attendance were Brian Dodge and Paul Lotters, who is the General Manager of the WHAZ stations and the President of the licensee of those stations.52 The "LOVE-A-THON" began with a recitation that the "LOVE-A-THON" was being broadcast from the WHAZ studios and was being broadcast over all three WHAZ stations, and the LOVE Radio Translators:
OK and here we are, this is the LOVE Radio LOVE-A-THON. I'm here, John Baron, good afternoon and Paul Lotters is here as well and you know, lots of people. We're broadcasting live from the beautiful majestic Mohawk River Valley here and the Mohawk is going by and we are broadcasting to the Connecticut River to LOVE Radio listeners as well as the WMYY, WBAR, WHAZ listeners and we've got a lot of exciting things happening here, this afternoon, from 1 to 5 and the Lord is, well, gave us a real good trip over, didn't he John.
As the LOVE-A-THON continued, Brian Dodge set forth the translator stations in the LOVE Radio Network over which the WHAZ programming was being broadcast:
And you know the opportunity is there for us to spread even further. Our ministry is to help Christian Radio expand. OK? I mean, I am praying for 20 people per listening area that we have to get in and to get going, to make pledges in that area. Now, if you're in Brattleboro, Vermont, is 105.5 FM. The Wilmington, Vermont area is 99.7 FM. The Springfield, Westfield, Northampton, Chicopee, Holyoke area is 92.1 FM,53 Greenfield, 105.5 that you can get down into the Northampton, Amherst area. We're going to talk about how we're going to expand in that area. Keene, New Hampshire, 95.9 FM, the Peterborough/Jaffrey/Milford into Nashua you know you can hear 94.3 is on top of Monadnock, one of the highest peaks in the East and Mt. Monadnock there, and it goes, I'm telling you, you can get it down into Massachusetts and you can go a lot of different places from 94.3 and we need your support. We've got some music we're going to play here because I'm behind schedule. . .
That Brian Dodge considers LOVE Radio and HBA to be all the same entity is evidenced by a later comment made by him during the course of the LOVE-A-THON:
And, you know, get behind LOVE Radio, the Share-A-Thon, the LOVE-A-THON we're having today, tomorrow and Friday, to raise the funds. Frank, you know, we've got several areas we want to expand to. Bennington, we have a license already granted. All we need is the money to build it. Manchester, Vermont, We have a license for the highest peak.
LOVE Radio has no license to operate a station in Bennington; HBA does however. It is W228AU.
The pitch for support over the WHAZ stations and the LOVE Radio Network was blatant:
If you're listening to Alive Radio in the Tri-State Region of New Hampshire, Vermont and Massachusetts, you owe a debt of gratitude to the supporters and sponsors of the LOVE Radio Network, with translators in Wilmington, Brattleboro, Peterborough, Keene, Greenfield and Westfield, reaching a potential audience of over a million people with the Gospel message 24 hours a day. Won't you have a part in covering the expenses of these translators so others can hear too? Costs include site rent, insurance, electricity and equipment upkeep. Send your gift to LOVE Radio, Post Office Box 2401, Brattleboro, Vermont 05303, and please let us know you're coming on board during this special time by calling 1-800-805-8815. Volunteers are standing by to receive your call. That's 1-800-805-8815. Please call now.
The "800" number supplied for solicitations is, of course, the very "800" number that was pasted to the front of the illegal Westfield translator.
Moreover, the expense items for which funds were being solicited in the above excerpt were not just programming costs. They included items such as tower site rental, insurance, electricity and the like. The request for funds for these items was a continuing refrain:
When's the last time anyone worked for a dollar an hour? Well, that's the approximate cost of each of the LOVE Radio translators which bring Alive Radio to the Tri-State Region of Vermont, New Hampshire and Massachusetts... That rather modest figure includes the cost of tower site rental, insurance, electricity, upkeep of equipment and overhead items such as postage and telephone calls. Yet the combined potential audience of the 6 translators which make up the network is over a million people in Western Massachusetts and Southern Vermont and New Hampshire. Won't you add your gift to those supporting this outreach? For more information, call LOVE Radio at 1-800-805-8815 or write to LOVE Radio at Box 2401, Brattleboro, Vermont 05303. It's so important that we hear from you during these days of opportunity. Once again, the number to call is 1-800-805-8815. Please call now. [Emphasis added.]
And again:
If you're listening to Alive Radio in the Tri-State Region of New Hampshire, Vermont and Massachusetts, you owe a debt of gratitude to the supporters and sponsors of the LOVE Radio Network with translators in Wilmington, Brattleboro, Peterborough, Keene, Greenfield and Westfield, reaching a potential audience of over a million people with the Gospel message 24 hours a day. Won't you have a part in covering the expenses of these translators so others can hear too? Costs include site rental, insurance, electricity and equipment upkeep. Send your gift to LOVE Radio, Post Office Box 2401, Brattleboro, Vermont 05303, and please let us know you're coming on board during this special time by calling 1-800-805-8815. Volunteers are standing by to receive your call. That's 1-800-805-8815. Please call now. [Emphasis added.]
This LOVE-A-THON, which went on for a total of 12 hours over three days, represented a substantial commitment of air time by the WHAZ stations. In and of itself, this type of support violates Section 74.1232 of the Commission's rules. WHAZ's support, however, is not merely limited to the provision of air time for the LOVE-A-THON. During the course of the LOVE-A-THON, Brian Dodge explained that the LOVE Radio Network would be able to reach up to half a million people for a dollar an hour "with the help and the partnership of WHAZ." Similar references to the arrangement with WHAZ were made by Mr. Dodge throughout the LOVE-A-THON:
"What a great opportunity to nave a partnership with WHAZ . . .".
"We have a new feed and what a great partnership between WHAZ and LOVE Radio . . .".
Finally, at the end of the LOVE-A-THON on March 14, 1997, Mr. Dodge explained the nature of his "partnership" with WHAZ:
One of the great blessings with WHAZ, unlike the other network that we had been previously broadcasting, is that, with WHAZ, you send a dollar over here, it comes right back to LOVE Radio. There is no dipping in the till here at WHAZ. They support LOVE Radio 100%. When you buy advertising time on WHAZ, we split, we split the revenues and LOVE Radio helps, it helps to minister to LOVE Radio, OK? In the area. We didn't have that before. I want to thank some new sponsors that are coming on line and they're getting excited about sponsoring and they want their, they want their message in the Capital District too. So the great thing is that LOVE Radio, you know, benefits and unlike it has in the past. And this will help us to further pay the financial commitments but we need people to pledge. [Emphasis added.]
Mr. Dodge's words clearly articulate the relationship between LOVE Radio and the WHAZ stations. It is a partnership. It is a partnership whereby advertising revenues are being split. This arrangement is a direct violation of Section 74.1232 inasmuch as it is a situation wherein the licensee of the primary station is providing support for the translators retransmitting the primary station's signal.
Moreover, even if Mr. Dodge could claim in good faith that he is not the real party in interest behind HBA, the arrangement with WHAZ is clearly unlawful. Mr. Dodge is in partnership with WHAZ. Even if the HBA ownership information on file with the Commission could be taken at face value, it would indicate that Mr. Dodge's mother, Etta Dodge, is a principal in HBA. As Mr. Dodge's mother, Etta Dodge is a family member of someone who is in partnership with the primary station that "her" translators rebroadcast. The flow of funds from the WHAZ/Dodge partnership to Etta Dodge thus would violate Section 74.1232 even if Brian Dodge were not the real party in interest behind HBA.
The LOVE-A-THON, however, provides yet further evidence that Mr. Dodge is the real party in interest behind HBA. The purpose of the LOVE-A-THON is to obtain funds for such operational expenses as tower leases, tower site rental, insurance, electricity and equipment maintenance. In describing the Bennington license, Mr. Dodge states that "we" have a license already granted. In describing the antenna for the translator covering Northampton and Amherst, he describes the antenna as "our" antenna. In short, the LOVE-A-THON is nothing but a reaffirmation of the fact that HBA is merely an alter ego for Brian Dodge.
As has been explained above, Brian Dodge has been thumbing his nose at the Commission for years. He takes over control of translators. He operates transmitters with facilities far in excess of that authorized. He extends the signal of translators far beyond that permitted by the Commission's rules. His hubris knows no bounds.
If any further evidence of Mr. Dodge's total disregard for the Commission's rules were required, such evidence has now been provided in the proceeding whereby a permittee of a new facility in Farmington, New Hampshire, will be selected. A total of nine applications were filed for that allocation during the window that closed on April 7, 1997.55 Three of those applications require special scrutiny, namely, the applications of Green Mountain Educational Fellowship, Inc.; Pioneer Valley Educational Fellowship, Inc.; and Northeastern Educational Radio Fellowship, Inc. The three applications bear a striking resemblance to one another.56 Each of those applications was filed by an entity describing itself as a "Non Profit Educational Corporation." In fact, with respect to each one of these three applications, the exhibit setting forth the legal structure of the entity and the programming proposal of the entity is identical. Each is labeled "Exhibit 2A & 2B". They all appear to have been copied from the same master. In each case, the entity consists of three board members, each of which holds a 33% interest in the entity. Although each applicant describes itself as a corporation, the State of New Hampshire has no record that Northeastern Educational Radio Fellowship, Inc., has ever been incorporated despite the fact that the three officers, directors and shareholders all reside in New Hampshire and the State of Massachusetts has no record that Pioneer Valley Educational Fellowship, Inc., has ever been incorporated despite the fact that all three officers, directors and shareholders reside in that State.
Each of the three applicants proposes the same transmitter site and recites that reasonable assurance for the use of that site was obtained from Mr. Mike Bartlett of 2Way Communication Services, Inc. The Engineering Statements supplied with the applications appear to have been copied from the same master with the exception that the figures provided with respect to RF exposure have been whited out and modified on each of the three applications given the fact that each of the three applicants is proposing to place its antenna on a slightly different location on the tower and use slightly different power levels.
Each of the engineering exhibits for the three applicants was prepared by Brian Dodge.57 Discussions with Mr. Bartlett have revealed that reasonable assurance for each of the three applicants was obtained by Brian Dodge.58
The Local Public File for each of the three applicants was established by Brian Dodge who, using a single covering letter to accompany all three applications, and operating under the name of "Harvard Broadcasting Services" wrote to the Assistant Town Clerk of Farmington, New Hampshire, to ask her assistance in maintaining the Local Public File. A copy of that letter is attached hereto as Exhibit QQ.
The President of Green Mountain Educational Fellowship, Inc., is William Wittik, who, it will be recalled, wrote to the FCC on March 24, 1993, to explain that he is the "Managing Partner" of Harvest Translators.
It is now clear that Mr. Dodge has lifted his sights. Not content with making a mockery of auxiliary services, he now seeks to exercise the same legerdemain he has used so successfully to circumvent the Commission's translator rules to obtain a full service facility.
The Commission has made it clear that it is absolutely necessary that its licensees be fully candid with it: "A licensee's duty of candor is critical given the FCC's many duties. The FCC has an affirmative obligation to license more than 10,000 radio and television stations in the public interest.... `As a result, the Commission must rely heavily on the completeness and accuracy of the submissions made to it, and its applicants in turn have an affirmative duty to inform the Commission of the facts it needs in order to fulfill its statutory mandate.' " Fox Television Stations Inc., 10 FCC Rcd. 8452, 8478 (1995), quoting RKO General, Inc. v. FCC, 670 F.2d 215,232 (D.C. Cir. 1981), cert. denied, 456 U.S. 927 and 457 U.S. 1119 (1982). If a licensee cannot be trusted, it should not hold a license.
The time has come for the Commission to tell Mr. Dodge that enough
is enough. The integrity of the Commission's processes are at
risk. The Commission should forthwith commence an investigation of
Mr. Dodge, HBA and LOVE Radio to determine whether any of these
entities, or any other entity associated with Mr. Dodge, is entitled
to be a Commission licensee. Carter Broadcasting, which has been a
Commission licensee for several decades, and wishes to see the
Commission embark on an era of renewed self-respect and commitment
to the fundamental guidelines of the Communications Act, looks forward
to the hearing designation order.
Respectfully submitted,
CARTER BROADCASTING CORPORATION
By: /s/ John M. Pelkey,
Its Attorney
HALEY BADER & POTTS P.L.C.
Suite 900
4350 North Fairfax Drive
Arlington, VA 22203-1633
703/841-0606
Date: June 18, 1997
I, Robert A. Shotwell, do hereby declare under penalty of perjury as follows:
I have reviewed the foregoing Complaint and Request for Investigation. Other than the facts of which public notice may be taken or facts to which Mr. Callahan is attesting in his Declaration, the factual allegations therein are true and correct to the best of my knowledge and belief.
Without in any way limiting the foregoing, I hereby declare as follows:
I am Assistant Director of Engineering, Special Projects, for Carter Broadcasting Corporation. I am also a principal in Cardwell Broadcasting, Inc.
In late March 1997, I noticed that a translator was operating on 92.1 MHz from a facility located somewhere to the south of Northampton, Massachusetts. My review of the on-line data bases to which I have access disclosed that the only facility authorized to operate on 92.1 MHz in the vicinity was a translator station licensed to a Gary Kenny. That translator station, however, was, according to the data bases, operating from a location in Westfield, Massachusetts. Because Westfield is on the other side of Mt. Tom from Amherst and South Hadley, Massachusetts, the Westfield translator should have been barely heard in those communities. In fact, the 92.1 MHz translator was placing a strong signal into both of those communities, as well as to numerous communities to the east of Mt. Tom. Using direction finding techniques, I determined that the translator, rather than operating from its licensed location, was operating from Mt. Tom itself. On Tuesday, March 25, 1997, I located the station operating on 92.1 MHz on Mt. Tom. The translator was operating from a transmitter building used by a number of communications facilities. I took photographs of the transmitter site. These photographs are included as Exhibits MM and NN to the Complaint and Request for Investigation.
On May 13, 1997, I returned to the Mt. Tom site. At that time, I photographed the front panel of the transmitter. That photograph is attached to the Complaint and Request for Investigation as Exhibit LL. The transmitter being used by the translator is a Tepco model J-317 with an original input channel of Channel 276 and an original output channel of Channel 223. This unit is type accepted at 5-12 watts. The metering switch of the transmitter was in the Forward Power position. The meter indicated that the transmitter was operating at approximately 80% of full scale. I would estimate the forward power of the transmitter at approximately 10 watts. A 6 element V-Pol yagi was being used in conjunction with the transmitter. That type of antenna has an approximate gain of 5 db. Thus, the main lobe ERP of the translator was approximately 40 to 50 watts. Compared to the authorized location and facilities of the 92.1 MHz translator, the Mt. Tom translator represents a relocation of 9.5 miles, an elevation increase of 920 ft. (1,150 ft. vs. 230 ft.) and a power increase of at least 20 times that authorized.
During the second week of March, 1997, I became aware of the fact that WHAZ, WMYY(FM) and WBAR(FM) were carrying a "LOVE-A-THON" that was also being transmitted over certain translators that constituted the "LOVE Radio Network". The LOVE-A-THON was held on March 12,13 and 14, 1997, and took place on each of those days from approximately 1 p.m. to 5 p.m. I recorded all 12 hours of the LOVE-A-THON. Excerpts from those recordings appear in the Complaint and Request for Investigation. I am willing to make the tapes of the LOVE-A-THON available to the Commission staff upon request.
/s/ Robert A. Shotwell
Date: June 17, 1997
I, Steven Callahan, under penalty of perjury, hereby declare as follows:
I am the Direction of Engineering for Carter Broadcasting Corporation.
On May 15, 1997, I visited the Farmington, New Hampshire Town Hall to review applications that had been filed for a new FM facility to operate at Farmington.
Among those applications that I reviewed were those that had been filed by Northeastern Educational Radio Fellowship, Inc.; Green Mountain Educational Fellowship, Inc.; and Pioneer Valley Educational Fellowship, Inc. The Local Public Files for all three of the applications were being maintained at the Town Clerk's office. Accompanying one of the applications was a cover letter that encompassed all three applications. The letter was addressed to the Assistant Town Clerk and was from an entity describing itself as ``Harvard Broadcasting Service''. The letter was signed by Mr. Brian Dodge. A copy of that letter has been attached to the foregoing Complaint and Request for Investigation as Exhibit QQ.
The three applicants "mea in the preceding paragraph propose the same transmitter site and recite that reasonable assurance for the use of that site was obtained from Mr Mike Bartlett of 2Way Communications Services, Inc. On May 20, 1997, I met with Mr. Mike Bartlett at his shop in Newington, New Hampshire. Mr. Bartlett informed me that he had received only one Lnquiry concerning the possible use of the transmitter site. That inquiry came from Brian Dodge and was made in a telephone call to Mr. Bartlett by Mr. Dodge.
/s/ Steven Callahan
Date: 6/17/97