Attachment 2019_03_29_15_42_21.

2019_03_29_15_42_21.

OPPOSITION submitted by CSO Opposition to Request Extension of time

CSO Opposition to Request for Extension of time to respond

2019-03-04

This document pretains to 325-NEW-20180614-00001 for New Application on a Permit to Foreign Broadcast filing.

IBFS_325NEW2018061400001_1641093

BEFORE THE FEI)ERAL C’f)MMtNICATIONS COMMISSION WAShINGTON, I).C. 20554 In re (ii R Sotnhern C’al.ilbrnia. I It’ :\pplieation flr Permit ) File No. 325—N EW—201 8061 1—0t)0Ol tbr I)eliverv C)! ) Programming to Mexican Station XEWW—AM. ) Rosarita. Baja california Norte. Mexico ) 1 n: Secretary Attn.: Chic 1. International Bureau oPPOSITION TO REQUEST FOR EXTENSION OF i’IME I. Introduction Chinese Sound of Oriental and West Hettage (“CSO”). licensee of’KQEV-LP. Walnut. (‘alitbrnia. by its attorneys, pursuant to Section 1 .45 of the Commission’s Rules. 47 CFR 1.45. hereby files this Opposition to the letter requesting an extension of time (“Rec1uest for Extension of lime ). filed March 1. 2019 1w GI..R Southern California LLC (“GLR”) and its parent company. I I&1I Group USA LI_C (1 I&I F’). It is rare amorm practitioners before the Commission to oppose a reqtiesl br extension of time. Jiow ever. the facts of this case are so unique and so egregious. CSt) must oppose this Request for Extension ofTime. tIER and I I&1 I are operating in a flagrantly unlawful manner. Members of the hat reco2nize that client unavailability and/or the press of other commitments may necessitate the need to file a request fur extension of time. As such difliculties occur tot most practitioners horn time—to—time, we often extend this courtes without ohection. Such a courtesy is not warranted here as it v ill extend the time durinu which USC) is suffering irreparable injury, as is more (lilly set out I’clow.

They have achieved all tl]at their Permit Application was filed to accomplish, even though that Application has not been granted: (1) I l&l I has consummated the purchase of(ILR and thus taken ownership and control of the Permit without authority from the Commission. (2) GLR and I l& II have been operating pursuant to a Special Temporary Authontv (“SEA”) that was unla’.vftillv issued, and (3) (1LR and I l&I I have been deliverin Phoenix Television2 programming to XEWW—AM for broadcast into the United States since July 25. 2018— almost pace debt months. Now. 1 I&I 1 and UI .R seek to Continue this unlawful operation by slo ing the of the Commission’s investigation ot this situation. Such a slowdown is unwarranted and damaging to CSO. The Commission should deny the Request for Lxtensìon of Time. However. if the (‘ommission grants the Request for Fxtension of ‘lime. it should not extend the S’I’A. as set out below. II. The Request for Kxtcnsion ot’ ‘I’ime Should be I)cniccl On February I 5. 2019. the Commission issued an lnfbrmation Request to GLR and I l&l I and requested that they respond in 3t) clays. The Information Request seeks information about the relationships between I l&1 I. GI .R. and Phoenix Iclevision. and seeks details about the operation of XEWW-AM. The infhrmation requested is necessary br the Commission to properly review the issues before it in this proceeding. I l&l I and Gl.R begin their Request fbr Extensic)n of time by noting they received the Information Request h U.S. Mail on tebruar’ 25. 2019. ten days after the clam on the letter) H&1 I and (iLk then attempt to demonstrate good 2 Phoenix belevision is used to describe inditiduallv and collectively the group of entities controlled by Phoenix Media Investment (1 loldings) limited. I I&l I and (iLk have slated that they have contracted for programming from one of these entities, Phoenix Radio 1.1£. Response to Unauthorized Filings, tiled September 24. 2018. Exhibit A at I The letter was posted on the Commission’s website on Pehruarv 1 5. 2ff 19. I l&I I and (u.k do not state whether the’ obtained a copy ol the Information Request 1mm the vebsite before they 2

cause for a requested extension of time for three weeks, until Apr11 8.2019. The requested three- week extension appears excessive, given that the alleged mail delay was 11 days less than the three weeks requested. I lowever. I l&l I and GLR go much further than merely asking for an extension of time. They have also advised the Commission that at would like to discuss ways to clarify (and possibly narrow) the scope of the Request” This clearly is an inappropriate request. This is a contested proceeding. Any discussion” between H&H. 011 and the Commission must include Cso. Additionally. there is nothing to discuss.” The Information Request is clear and explicit Either the information requested exists or ft does not. I I&l I and (LR provide examples of documents that they propose to provide and seek “clarification” of certain other documents requested. The production of documents should proceed on the time schedule set by the Commission. If H&l I and GLR refuse to produce documents that they know to exist, the instructions contained in the Infonnation Request explain the steps they must take. There is no and need for a discussion with the Commission of the Information Request. It is clear that H&H GLR an attempting to slow and narrow the Commission’s inquiry. Ill. The STA Should Not he Extended The Request for lxtension ofTime highlights the continuing fundamental and irreparable injury to CSO caused by this proceeding. CSO is injured every day that H&ll. OLR and Phoenix are broadcasting over XEWW-AM pursuant to an unlawfully issued STA. The Request for Extension ofTime is an attempt to slowdown the Commission’s review of this unlawful received it in the mail. While USPS has its issues, it rarely fails to deliver a letter in less than 10 day& 3

operation. (‘SO has been attempting to bring to the Commission’s attention the many reasons why this unlawful operation must not.be extended.3 As CSO is seeking to get the (‘ommission to order the cessation of this unbi liii operation, this request is similar to a request for a stay of Commission action. In Ratc’s fir buersitue hunule Calling .%rrkes. 31 FCC Red. 10936 (VB 2016)? the Commission set out the four parts of the test to obtain a stay: (1)1 las the petitioner shown that it is likely to prevail on the merits? (2)1 las the petitioner shown that without such relief; it will be irreparably injured? (3) Would the issuance ofa stay substantially bum other parties interested in the proceedings? (4) Where lies the public interest?’ Applying the Commission’s test to this case demonstrates clearly that the Commission should: (I) deny the Request for Extension of Time. and (2) deny the Request to Extend the STA. First, the likelihood of CSO demonstrating that the underlying Peimit Application should not be granted is very high. Over the course of this proceeding (‘SO has demonstrated that: I. There has been an unauthorized transfer ofcontrol of the Permit. This demonstrates that H&ll and GER line violated the Communications Act and thus cannot be trusted to comply with the Act going forward? 2. The STA ‘was unlawfully granted, because it failed to provide the public thirty-days’ notice of the STA application, and failed to limit the 5Th to provide programming that is ‘only special events not ofa continuing nature.” As the original STA was unlawfully granted. it cannot be lawfully extended.’ January 29,2019 CSO filed its “Opposition to Special Temporary Authority Extension and on February 19.2019, CSO filed its “Supplement to Opposition to Special Temporary Authority Extension.” setting forth the reasons for denial of the extension of the STA. 5The Commission Mlows the test set forth in Iflrsh. .Ieiro. Area Transit C’cnnmtuian it Holiday Tours, Inc. 559 F.2d MI l).C. Cir. 1977). ‘31 FCC Red 10936. par. 9. 7Supplement to Opposition to Special Temporary Authority Extension at 6. ‘Opposition to Special Temporary Authority Extension at #7. Supplement to Opposition to Special Temporar) Authority Extension at 2-5. 4

3. Ii is apparent flom the available c idence that I t& 11 is a Iront fhr Phoenix Felevision. which is controlled by the Peoples Republic of China (PRC”). and the programming ‘ that is being broadcast is presented as a form of propaganda fdr the PR( 4. Numerous fidcral agencies and other authorities have described the type of programming in which Phoenix Television is enuwted as a threat to national security. 5. Phoenix Television has been shown previously to attempt to manipulate the ownership and operation of 11.5. broadcast facilities fbr the purpose ul providing propanda for the PRC.’’ 6.Afbrmer News I)ireetor for Phoenix lelevision has provided (SO with a declaration 2 describing the propaganda acti’ ities ol the PRC directed through Phoenix lelevision. 7. The Foreign Agents Registration Act requires I l&1 1. (ilk and Phoenix Television to register as lreign agents.’ 8. IL&l I. (it .R and Phoenix Television are required to seek approval of the Committee on Foreign Investment in the inited States.’3 9. \E\\W—AM causes ifltCrlCfeI)ee to two U.S. radio station aiithonzations.’ Given this list ol unlawful and/or improper actions. CSO has demonstrated that the Permit should not be granted, and CS() would ha\c a high degree of probability of succeeding on the merits of having the Permit Application denied by the Commission. If the Commission were to grant the Permit Application despite all of this evidence, it would he re\crsible error. Second, (‘SO is sufRriiw irreparable inlur e cry day that I l&l 1. GER and Phoenix lelevision continue their unlaw lid broadcasts. CSO. as a noncommercial, low power FM Supplement to Petition to Deny, filed September 4. 201 8. at 11—21: Reply to Opposition to Petition to Den. filed September II. 2t) 18 at 6—12: Reph to Response to tnauthorized Filings. filed october 17. 2() 18. at 9—20. ° Petition to 1)env. flied August 8. 2018. at 4—8: Supplement to Petition to Deny, filed September 4. 2018. at 3—1 1; Reply to Response to Unauthorized Filings at 4-9. ° Supplement to Petition to Den’ at I 5—16: Reply to Response to I. nauthorized Filiims at It)—] I 12 Reply to opposition to Petition to I)en at 10—12 and Exhibit I ° Supplement to Petition to Den at 1 7—18. ‘‘ Supplement to Petition to Den’ at 1 8—1 9. ‘ Supplement to Petition to Deny at 22—24 and Exhibits 1—3. 5

station, competes sith XEWW-AM for listeners. For CSO to sunhe. it must encourage listeners and other potential donors to make donations to the station. With its vastly more powerful signal, XRWW-AM has the potential to draw listeners and potential donors away from listening to CSO’s station. CSO has no remedy at law or hi equity to be compensated for damages sustained as a result ofthe unlawfully granted STA. Third. the Commission must ask whether the issuance of a stay would substantially harm other parties interested in the proceedings. The other interested parties are H&l I. (ILR and Phoenix Television. As has been demonstrated above, these parties are benefiting from consummating a transfer of control before the Commission authorized that transfer and from utilizing an unlawfully granted STA. These panics have no reasonable expectation that they should be allowed to continue their unlawful operation. Thus. the potential harm to those parties. which would be the termination of the STA. is an appropriate result for the unlawful operation. Fourth. the Commission must ask, where lies the public interest? The above discussion clearly demonstrates that H&l I. OUR and Phoenix Television are engaged in an unlawful operation, which unfortunately has been facilitated by the CommissioWs improvident granting of the STA and its failure to declare it now void. The public interest can never be served by the Commission allowing an unlawful operation to continue. The public interest is served by proper execution of the Commission’s statutory authority. In this case, that requires the denial ofthe Request for Extension of Time, denial of the Request to Extend the STA, and denial of the transfer ofthe Pennil. ilL Conclusion CSO suffers irreparable injur) each and every day that the unlawful operation of H&l I and CILR continues. That unlawful operation has extended almost eight months already. The 6

Commission is cf)fl’ect to seek th’ additional information specified ifl the lflk)fl1tlOfl Request. I lowever. as (‘SO has demonstrated. the Si A should not be extended while H&ll and GLR respond to the In formation Request. 1 his is especially true now that I I&1 I and G I R are attempting to drau the timing of this proceeding out even Further and to limit the (‘ommissions inquiry into exactly what they arc up to. Given this unlawful Operation. I l&I I and GLR should not he granted an extension of time rn respond to the Information Request. I lowcvcr. If the Commission e,rants the extension of time. the Commission should not extend the STA. Respectfull submitted. CHINESE SOUNI) OF ORIENTAL AND WEST HERITACE 13v its Attorneys. t s I.. \Vinston a er :. lLrc $ RUBIN. WINSTON. l)IERCKS. I IARRIS & CooKE. tLP 1201 Connecticut Avenue. N.W. Suite 200 Washington. D.C. 20036 (202) 861-0870 wiflstOn(LrwdhC.com March 4. 2019 7

CERTIFICATE Of SERVICE I, Sheree Kellogg, do hereby certify that I sent via U.S. mail (except where indicated), on this 4th day of March, 2019, copies of the foregoing OPPOSITION TO REQUEST FOR EXTENSION OF TIME to the Ibliowing: David Oxenford Wilkinson, Barker, Knauer, LLP 1800 M Street, NW Suite SOON Washington, DC 20036 Reid Avett Duane Morris, LLP 505 9th Street, NW, Suite 1000 Washington, DC 20004-2166 Paige K. fronbarger Wilkinson, Barker, Knauer, LLP 1800 M Street, NW, Suite $OON Washington, DC 20036 Brandon Moss* International Bureau Federal Communications Commission 445 l2 Street, SW Washington, DC 20554 Brandon.Mossfcc.gov Janice Shields* International Bureau Federal Communications Commission 445 I2thStreet,SW Washington, DC 20554 Janice.Shie1dsfcc.gov *sent via email only Sheree Kellogg 77


Document Created: 2019-05-27 06:07:02
Document Modified: 2019-05-27 06:07:02
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