Attachment 2019_02_19_16_55_18.

2019_02_19_16_55_18.

PUBLIC NOTICE

Accepted for Filing Public Notice

2019-01-28

This document pretains to 325-RWL-20190107-00002 for Renewal on a Permit to Foreign Broadcast filing.

IBFS_325RWL2019010700002_1631441

BER)RE THE fEI)ERAL COMMUNICATIONS COIM1SS1ON W’ASHINGTON, D.C. 2t)55.3 In re Ci ER Southem California. I J C’ Application for Extension of Special ) File No. 325—STA—20 I $071 0-OOt)02 fpontry /\UthOfitV for I)eliverv of Programming to Mexican Station XEWW-AM. Rosarita. l3aja California Norte. Me>ico To: Secretary Attn.: Chic f. I titernatiumil Bureau SUPPLErt1ENT TO OPPoSITION To SPECIAL TEMPORARY AtTIIORITV EX’FENSIt)N 1. Introduction Chinese Sound of Oriental and West I Icritage (“CSO’’). licensee of KQEV—LP. Walnut. California. by its attorneys. hereby liles this Supl)lement’ lo its Opposition to Special Temporary Authority Extension, tiled January 29. 2019 (“Opposition’). in which CS() will address both the request to extend the STA (“Request to Extend STA”’) flied on .lanuarv 28. 2019 and the Reply to Opposition to Special Temporary Authority Extension. filed February 8. 2019. by GLR Southern c’SO hereby requests lease to submit this Supplement. As explained herein. (he (‘SO Opposition was flied before seeing the GLR Request to Extend STA. (‘SC) filed its Opposition out of concern For the l,rlctice ol ike Commission to grant an STA ithout providing a thirt—da public notice as required h Section 3f)0 ol the Act. ike original GER STA request was filed on Jul 20. 201 8 and granted on July 24, 201 8. Public ivo!ic’c’ Permit t’u Deliver Progrwns to I’orelgl7 Broadcast Stat umc. Report No 325—0f)21 6 (2018). urns, to assure the critical issues . were presented prior to Commission action. the (‘SO Opposition was anticipatory. litriher. the issues presented arc critical as they address core Commission authorit. Also. consideration of this information is warranted to provide the Commission vith a full and robust record. In Re Application of TelevLhm U isccinsin hw.. 5% R’C’ 2d 1232. par. 3 ] 975).

California IA C (‘Gilt’) and its parcnt company. ll&l I Group USA 1.3 flhl&l 39? ith respect to the above-referenced Special Temporary Authority (“STA”). The Cliii Request to Hxtend the STA was filed on January 28. 2019, the day the Commission reopened after the fedend goemment shutdown. The original STA expired on January 19. 2019, during the federal government shutdown. The original STA was granted without being placed on thirty-day public notice. and the request for that STA has never been posted on the Commission’s website. Anticipating that an extension could he granted without public notice. CSO filed its Opposition on January 29, 2019, without seeing CUR’s Request to Extend STA. Therefore, as CSO had no opportunity to address the content of the Request to Extend STA. (‘SO is submitting this Supplement to its Opposition to respond to both the content ofthe Request to Extend STh and to GUR’s Reply. In its Reply. OUR maintains that C.SO (a) raises an untimely objection to the grant of the STA; (b) fails to provide any evidence that the programming delivered to XHWW-AM is not in the public interest; (c) does not present cognizable interference claims as to the operations of XEWW-AM; and (d) does not raise any national security issues. As detailed below, the Reply ignores the plain reading of the Communications Act and of the voluminous facts in the record and ignores specific controlling (‘onunission precedent. As such. the Reply is dnoid of merit. ii. Discussion 4. 77w (‘onwaunlcaffinu Ad and C ‘cnnmlaclun pn’cedeni masukisr ck’nkd 111w STI exiesulon appilculian GUI submits that there is no reason to deny the Si’A extension. Reply. at 2. That submission conveniently ignores that Section 309(h) of the Communications Act requires that 2As shall be discussed herein, the filing of the STA request by CUR as now controlled by liSt)) raises a serious issue of an unauthuritcd transfer of control of the Pemilt 2

before an) license or permit may be granted. the Commission must first provide thirty-day notice thereof and determine that a grant is in the public interest. Sec Opposition to Special Temporary Authority Extension, filed by (‘SC) on January 29,2019 (Opposition). at 4-7. Section 309(c) provides an exception to the mandate of Section 309(b), authorizing the Commission to grant in 5Th without a thirty-day public notice. provided ‘ihe programs to be transmitted are special events not of a continuing nature.” Section 309(cX2)(F). The STA was not conditioned in this manner and therefore was issued in violation of Section 309. Because the grant of the STA was not pennhted by statute. its grant was ultra vires. The Supreme Court has previously found an act done by the Commission to be ultra vires: Both their powor to act and how they are to act is authoritatively prescribed b) Congress. so that when they act improperly, no less than when they act beyond theirjurisdiction. what the) do is ultra vir& It is black-letter law that, where a governmental action is ultra vires. that act is wAd oh inftio and has no legal effect Legally, the act never happened. Federal Crop ins. Corp. v. .4k’rrii, 332 115.380(1947). As such. in not giving thirty-day public notice mid not limiting the STA to special events not of a continuing nature, the original STA was a legal nullity and extending it would also be a legal nullity. Gl.R attempts to evade this legal nullity by arguing that CSO is filing an untimely petition for reconsideration of the original 5Th. GIR misses the critical point4 The CSO Opposition is to the currently pending STh extension request. To be dear. CSO does not ask the Commission to reconsider and somehow ‘und& the grant ofthe STA made in July 2018, as GL.R suggests. Reply, note 3. Instead. the pivotal point is that the (‘ily qfArThsgion v. Ft t 133 S. Ct 1863. 1869 (20l3. GLR supports its untimeliness argwnent with citations. presented at noteS of the Reply. that are irrelevant, as they concem procedures as to pleading cycles, not ultra vires actions. 3

Commission lacks authority to erant the current S1’A extension application flied on .lanuar 2t. 2019. GLR argues that (Sf) is incorrect to maintain that a S’l’A may he granted onl for special events not of U Cofltintiin nature. Rcpl at 3. GLR ignores Section 309(c)(2)(F) of the Communications Act, which very specifically recluircs that any STA issued without giving a tluHv—dav public, nOtice must CC)nlOl’m If) the “special events not ofa continuing nalure” condition. The Reply attempts to circtimvent this condition and does not address the Commission?s discussion of ibis condition in detail Ifl Mo//i’ Eazikei’, which was cued by CSO. Opposition, at 4-?. In an effort to evade the ‘special events not ol a connnuingnature conclinon. GLR says (‘SO failed to take note of the subsequent history of the !tIolli’ Pauker case citing C ‘ha,?nel 51 of San Diego The. i’. FC( 79 F3d I I 7 (I).C. Cit 1996) and 1’ox Jelei’ision Statioii.v Inc.. Ii FCC ‘, Rcd I 487(1. par. 23 (1996). GI R misleads. ilie subsequent history is irrelevant to the issue presented by the Request to I xtcnd SEA. as there is nothing in ( ‘hunnet 51 that overrules, vacates or modifies the “special events not of a continuing nature” holding detailed in \Iu1Ij’ Pcnikc’r. Iii ( ‘Izunnc’l 5], that issue ‘as not presented to or discussed by the t’ourt.’ In that case. the C.’ourt addressed the need for issue mesponsit’e programming. not the legal standard fiw 0 FCC RucI 4394 (MB 1 004) l’he issuance ofan SiA was mentioned in Part II. I liswrv of Current Proceedings of the Court’s thtir parts decision. ‘Ilie Court noted: “I3ecause Fox anticipated a lengthy FCC decision process on its permit applications, it sought and obtained Special l’emporar Authority tS’F to transmit the NH. games to XVFV throiih the end of the 1994 season. or until the 1-C C rtiled Ofl its permit application, whichever came earlier. The FC(’ granted the STA request on August 11. 1094. and Fox transmitted the I 994 thutball games to XI’l’V.” (‘huniwl 51 at 1100. At no point did the Court discuss the ]eeal standard for issuance of an S A without public notice. 4

ranting an SIA ithout giving thin —day public nOtice of the SIA application.’ in thai case the Court concluded: We simply conclude that the FC( erred in holding that Ni\FlA’s Annex Vi prohibits application of AI3C I 972s §325 issue—responsive programming requirement.. In light of our holding that the FCC misinterpreted N!\HA’s impact on the role of the issue-responsive piogranulling requirement in §325 proceedings. we vacate that portion of the FCC’s Order that grants a §325 penflit to Fox for cross-border transmission to XET\’. We remand the case to the Ft’(’ for treatment consistent with this Opinion. See 47 U.S.C. §402(h).8 Also. GER ignores that. ifan unlimited SFA was granted in the subsequent case history. it was to Fox. which ‘as then a permit holder, eligible for an unlimited STA. I lere. ll&] us not a permit holder and has not been found qualified to deliver programming to XFWW-AM to be broadcast back into the U.S. GLR asserts that the Commission has routinely granted S’iAs for Section 325 permits since the decisions in :1ol1y Paukcr and lox 7’tcvisiou and —— says GLR —— there is no reason tO change. Reply, at 4. (ILR cites instances in which the Commission granted STAs hut provides no details from those cases. thus. G1.R has not demonstrated that the STAs serc not uranted for special events not of a continuing nature. More importantly. if Si As have been granted fhr the delivery of programming that is not ‘special events not of a continuing nature’’ without a thirty— day public notice, those grants were issued illegally also. No matter the current practice, prior unlawful actions cannot sustain continuation ol’ne unlawful actions. It is fundamental “that an agency may not bootstrap itself into an area in which ii has no Jurisdiction.” At/urns i)i,ii’ ( ‘a. v. Btuielt. 494 U.S. 63i. 650 (1990). Sirnilarh. the Commission did not disetiss in fox TeJc’t[vitni. II FCC Red at par. 23. the legal standard for grant of an SiA without public notice. r Channel 51 at 1192. 5

B. ihcic has been aii (aitihori:cc1 iransft’r o/( on!ro/ nfihe Per,ni/ The Request to Extend SI A demonstrates that there has been Ifl Ufl]UthOfl/.Cd transfer of control of the Permit. Ihe Applicalioii to transfer control of the Permit requested permission to transier control ol Gl_R Southern (‘alifiwnia. I LC. which holds the Permit, from GLR Services. Inc. to Il&l I Group JSA 1.LC. That Application has not been granted. On July 24. 201 , the Commission Granted GLR Southern t’alilornia. LLC an S’IA to deliver broadcast programs to XEWW—AM. As the transfer of control has not been authorized, the rart in control oIGLR Southern California should still be GLR Services. Hoever. the Request to Extend STA indicates that GLR Southern Califhrnia is now owned and control lcd by M&I 1. 1 his clearly demonstrates that there has been an unauthorized transfi.r of control of the Permit. Indeed, the January 28. 2t) 1 C) SFA request is sianed by Vivian f-Iuo as President of GLR Southern California. Moreover, the Reply filed on Februar 8. 2019. asserts that it is lilcd on behalf of GLR Southern Call fhrnia and its parent company I l&) I. Thus. I l&l I has plainly stated that it has assumed oiwrship ofGLR Southern California. and control of the Permit. without Commission approval. All of the Commission precedent appl\ ing Section 325(e) make clear that contt’ol ala permit is not nhlowd until the Commission acts upon an application for the transfer. .It)ll) PaiiktT. C ‘hcninc’l ) 1. I’t)X icIc1’LVIt)IL Thereftre. the Commission must direct the parties to undue the transfer at control to I l&l I. and the (‘ommission should institute sanction actions, under Section 312 f)t the Act, against the parties for ha’ing engaged in an tinauthoriicd transfer of control . •l’hc Commission hw allowed parties to an application for a transfer ol control ula broadcast station license to enter into local markctitw tnircernents and time brokeraie aureemems such that the transferee could h’gin programming a station prior to grant of the transfer of control application. I lowe er. in all such instances, the licensee must maintain control of the station until the transfer of control is granted. See. Uplima C’onmiunk’aficm.v. Inc.. .4ssii,’nor. wul Pikes 6

C. Eie,idiiir. ilw sJ.A ID Cf iflhllUW (I/)CJ’flI1tul! ii’ill CdttSL’ in/ti-fc%Cnet.? and pose rivk.c IC) IUltit)h7U1 SCCltl7Il, - 1 Ihe lueson station is at minimalist power. lest it cause interference to the border hlastiim Mexican station: and the FIastaff station is notpcrationaL lest it cause interference to the border blaster GLR maintains that no interference occurs by a grant of the extension application. Reply. at 4-5. GLR ignores that (‘SO provided flictual engineering documentation that XEWW-AM limits the power of K(’LF(AM) 690. lucson and new facilities on AM 69() at Flagstaff. Ari?ona.t° This interference is avoided only because of the dominant power ofXEWW—AM and the subservient power of the two other AM 69() stations. If the power of XFW\V—AM was ftirl balanced as to the Arizona stations as required by the North American Free Trade Agreement —- which overrides the (‘ommission’s Agreement with Mexico —- all three stations would better serve their respective public interests.t XEWW—AM simply drowns otit iii whole and!o)r in significant parts the capacity of the two /\rizona stations to serve their respective communities. [his imbalance is inconsistent with the purpose nINAFIA and is relevant to a grant of the underlying Permit t\pphication and to an extension of the STA. Further. contrary to the (iLR argument. CS() has standing as a station in the coverage area of XL\VW.-AM to complain as to any and all portions of both AM station applications. 12 Peik ?cleviskni. Inc’. .-I.v. ‘iwc’f I’ C (fl1.Vtlfl /f) .-1S.VigiliflfflI t)f Lic’c’iicc’ O/,SICltit)1l KRDO—1”.I. .Securiiv, Colorado. 3() FCC’ Red. 1413(1 (MB 2(115). 1 lere there has been a transfer of’ control prior to a grant by the (‘ommission. in violation of Section 325c. to (‘SC) Supplement to Petition to Den’s. filed September 4. 2018. PP 22—24. Exhs. 2—3. By no means is this to suggest that the proposal to permit China—controlled Phoenix TV t ‘SA Ltd. To provide prorammin to XEWW—AM is in any way in the public interest of American listeners. 12 CS() Reply to Response to Unauthorized Filings. tiled October 17. 20] 8. pp. 21-22. 7

2. The GLR areument that the PhoniTV twoaran 1jnu does not pose risks to U.S. naticmal security defies the collective_research and studied judtments of uovenxens GLR claims the pwgramnung provided to XI.W\V—AM and bwa(lCaSt back into the U.S. is purely neutral C’liinese language music and entertainment. Reply. at 5. That is flatly inconsistent with the documents. research. declarations of others. incluclinu scholars. economic and trade analysts, security analysts, think tanks and. importantly. eovcrnment oflicials whose responsibilities include national security. 3 Other than the self—serving declaration of principals of Phoenix IV USA I Ad.. GLR has Failed to produce any factual support Jbr itsposition. GLR would have the C’ommission believe that (‘So simply is engaged in stereotyping. Reply, at 6. Yet. GLR has not provided an research. expert opinions, scholarl analyses or studies in support of its position. As such. there is a factual dispute as to the risks to national security. The C’ommission must designate the contested factual issues fw an evidentiary hearing to resolve the disputes in accordance with Section 309(e) of the Act. III. Conchision As a (‘hinese—American entity. (‘SO’s primary goal is ensure the best possible servee to the (‘hinese—Ainericun community. (‘So has examined the fundamental evidence and governmental analyses of the People’s Republic of (‘liinu (“PRU”) propaganda machine and has submitted that evidence and govcrnrncntal analyses to the (‘ommission. ‘Ihe evidence and government anal ses slio that the PRU considers the (‘hinese diaspora as “hetonwng to (‘hina.” The PRU believes overseas (Thinese should support ( ‘hina and the goals of’ the (‘hinese -‘ See (‘SO Petition to Den filed Augu%t 8. 2t) I 8. j 4—8: (‘So Supplement to Petition to l)cny. filed September 4. 2() I 8. pp. 3—10: USC) Reply to Opposition to Petition to Den. tiled September 11. 201 8. pp. 1 0—Il Lxh. I, 1 )eclaration of (‘hung Pong: Reply to Response to Unauthorized . Filings, tiled october 1 7. 20)18. J)f). 4—9. 8

Communist Party to dominate American and global interests. The PRU does not hesitate to enlist overseas ethnic Chinese to do its bidding. as evidenced by the conviction of former Phoenix TV employee-spies.’4 The expert evidence demonstrates that we now live in a world of two superpowers. and China — a deeply intolerant authoritarian regime -- has global ambitions. including the domination of U.S. interests. The PRC seeks to improperly influence the attitudes of Chinese Americans toward the U.S. Id this case, Phoenix TV. the designated programmer, has a history of broadcasting pro-PRC propaganda. The Commission must be igilant and not allow propaganda risks to undermine U.S. elections and/or national interests. In this case. we have an unauthorized transfer of control of the Pennit This alone demonstrates that H&H should not be granted the Permit and should not be allocd to continue the STA. There is no statutory basis upon which the STA can be extended or renewed. The Commission is statutorily precluded from granting an 5Th without a thirty-day public notice of the request unless the STA is for “special events not of a continuing nature.” Moreover, as CSO has demonstrated in its pleadings filed in this proceeding. the Commission lacks a record before it upon which ft can determine that a grant of the Application and the STA are in the public interest. Pivotally. a grant extending a void STi grant would be ultra vfres and void. The 5Th and the Application must both be denied. ‘3C50 Reply to Response to Unauthorized Filings, filed October 17.2018. pp 10-11. Phoenix TV engineer convicted of spying for PRC. 9

RespcctftiIiv submitted. (IIINESE SOUND Of ORIENTAL ANI) WEST HERITAGE 1 nston JBIN. WINSTON. I)IERCKS. I JARRIS & COOKE. LLP 120! Connecticut Avenue. NW. Suite 200 Washintton. D.C. 20036 202) $61-t)X?0 jwinston mnvdbc.com February 19. 201 9 10

CERTIFICATE Of SERVICE I, Sheree Kellogg, do hereby certify that I sent via U.S. mail (except where indicated), on this 19th day of februaiy, 2019, copies of the foregoing SUPPLEMENT TO OPPOSITION TO SPECIAL TEMPORARY AUTHORITY EXTENSION to the following: David Oxenford Wilkinson, Barker, Knauer, LLP 1800 M Street, NW Stiite 800N Washington, DC 20036 Reid Avett Duane Morris, LLP 505 9th Street, NW, Suite 1000 Washington, DC 20004-2 166 Paige K. fronbarger Wilkinson, Barker, Knauer, LLP 1800 M Street, NW, Suite 800N Washington, DC 20036 Brandon Moss* International Bureau Federal Communications Commission 445 12th Street, SW Washington, DC 20554 Brandon.Mossfcc.gov Janice Shields* International Bureau Federal Communications Commission 445 l2 Street, SW Washington, DC 20554 Janice.Shieldsfcc.gov *sent via email only 1’ ti/I Sheree Kellogg ‘ ,I)



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Document Modified: 2019-04-27 00:10:57
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