Federal Communications Commission FCC 21M-06 Federal Communications Commission Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) AUBURN NETWORK, INC. ) MB Docket No. 21-20 ) WANI(AM), Opelika, AL ) Facility ID No. 63796 ) WGZZ(FM), Waverly, AL ) Facility ID No. 15283 ) W242AX(FX), Auburn, AL ) Facility ID No. 146140 ) W254AY(FX), Auburn, AL ) Facility ID No. 138347 ) W294AR(FX), Auburn, AL ) Facility ID No. 14119 ) WHBD-LD, Auburn, AL ) Facility ID No. 185816 ) Application for Original Construction Permit ) File No. BNPFT-20180327ABZ NEW(FX), Auburn, AL ) Facility ID No. 201389 DISCOVERY ORDER Issued: May 12, 2021 Released: May 12, 2021 I. BACKGROUND/PLEADINGS 1. This hearing proceeding was initiated by the Media Bureau in light of the felony convictions of Michael G. Hubbard, the president and 100 percent shareholder of Auburn Network, Inc. (ANI), licensee of the above-captioned stations. The Hearing Designation Order in this proceeding designated the following issues for resolution: a) To determine the effects, if any, of Michael G. Hubbard’s felony convictions on his qualifications and thus the qualifications of Auburn Network, Inc. to be a Commission licensee; b) To determine whether Michael G. Hubbard and thus Auburn Network, Inc. is qualified to be a Commission licensee; c) To determine whether Auburn Network, Inc.’s Commission authorizations should be revoked; and d) To determine whether the captioned application for original construction permit for a new FM translator station at Auburn, Alabama, should be granted, denied, or dismissed.1 On March 30, 2021, the Commission’s Enforcement Bureau served its initial document requests and interrogatories on ANI.2 ANI submitted timely objections to all of the document requests and most of the interrogatories.3 In response, the Enforcement Bureau filed a Motion to Compel on April 16, 2021, that asks the Presiding Judge to compel ANI to (a) produce all non-privileged documents in its possession, custody, and control in response to the Bureau’s March 30 document request; (b) provide a privilege log for any responsive documents for which it asserts attorney-client or work product privilege; and (c) provide complete responses to Interrogatories 24-47 and 51-53.4 2. ANI filed an opposition to the Enforcement Bureau Motion to Compel on April 27, 2021. Auburn Network, Inc.’s Opposition to Enforcement Bureau’s Motion to Compel Complete Responses to its Request for Production of Documents and Interrogatories, MB Docket No. 21-20 (filed Apr. 27, 2021) (Auburn Network Opposition to Motion to Compel). The Bureau moved to strike that opposition as untimely on April 28, 2021. Enforcement Bureau’s Motion to Strike Auburn Network, Inc.’s Opposition, MB Docket No. 21-20 (filed Apr. 28, 2021). ANI filed an opposition to the motion to strike that acknowledges its error in calculating the filing deadline, and filed a motion asking that its late-filed pleading be accepted. Auburn Network, Inc., Motion to Accept Late-Filed Pleading, MB Docket No. 21-20 (filed May 3, 2021); Auburn Network, Inc.’s Opposition to Enforcement Bureau’s Motion to Strike Auburn Network, Inc.’s Opposition, MB Docket No. 21-20 (filed May 3, 2021). The Enforcement Bureau submitted an opposition to ANI’s motion to accept the late-filed pleading. Enforcement Bureau’s Opposition to Auburn Network, Inc.’s Motion to Accept Late-Filed Pleading, MB Docket No. 21-20 (filed May 5, 2021). Due to the importance of the issues raised here and the severity of the consequences of this case, ANI’s late-filed pleading is accepted and the Bureau’s Motion to Strike is denied in this one instance. The Initial Case Order in this proceeding specified that “all parties are put on notice that they are expected to be fully cognizant of Part 1 of the Commission's rules concerning Practice and Procedure, 47 CFR Part 1, Subparts A and B.” Auburn Network, Inc., Initial Case Order, MB Docket No. 21-20, 21M-01 (rel. Mar. 2, 2021) at para. 7. ANI is reminded that if a filing period does not specify “business days,” then calendar days are to be used in calculating when a filing is due, unless 1 Auburn Network, Inc., Hearing Designation Order, Order to Show Cause and Notice of Opportunity for Hearing, MB Docket No. 21-20, DA 21-79 (rel. Feb. 11, 2021) (Auburn Network HDO) at para 31. 2 Enforcement Bureau’s First Request for Production of Documents and Things to Auburn Network, Inc., MB Docket No. 21-20 (filed Mar. 30, 2021); Enforcement Bureau’s First Set of Interrogatories to Auburn Network, Inc., MB Docket No. 21-20 (filed Mar. 30, 2021). 3 Auburn Network, Inc.’s Response to Enforcement Bureau’s First Request for Production of Documents and Things to Auburn Network, Inc., MB Docket No. 21-20 (filed Apr. 9, 2021) (Auburn Network First Document Response); Auburn Network, Inc.’s Response to Enforcement Bureau’s First Set of Interrogatories to Auburn Network, Inc., MB Docket No. 21-20 (filed Apr. 13, 2021) (Auburn Network First Interrogatories Response). 4 Enforcement Bureau’s Motion to Compel Complete Responses to its Request for Production of Documents and Interrogatories, MB Docket No. 21-20 (filed Apr. 16, 2021) (Enforcement Bureau Motion to Compel). the filing period is less than seven days. 47 CFR § 1.4(g). The Bureau also indicates that ANI did not follow section 1.49 of the Commission’s rules, 47 CFR § 1.49, which requires that pleadings longer than 10 pages include a table of contents and a summary. For the same reasons, the Motion to Strike will not be granted on that basis but ANI is reminded going forward to include a summary and table of contents in accord with section 1.49. 3. In its opposition to the Bureau’s document request, ANI contends that requiring it to respond to the discovery requests as currently posed will entail significant time and expense, contrary to the goal of the Commission’s procedures for written – rather than oral – hearings. Auburn Network First Document Response at 2 (citing Procedural Streamlining of Administrative Hearings, Report and Order, EB Docket No. 19-214, 35 FCC Rcd. 10729 (2020) (Written Hearings Report and Order). It is notable that the Commission did not choose to substantially revise longstanding discovery rules in the proceeding that culminated in the 2020 Written Hearings Report and Order. As such, the Commission’s preference for a written hearing in this case does not in itself provide a basis for limiting discovery. It is always the goal of the Presiding Judge to conduct hearings as efficiently as possible, and the rulings set forth below are made with that aim in mind. The Presiding Judge also remains mindful that the burden of proof in this matter, except for the construction permit application, lies with the Enforcement Bureau, and that the applicable standard for discovery is whether the information requested “appears reasonably calculated to lead to the discovery of admissible evidence,” even if the specific request is for information that may not itself be admissible. 47 CFR § 1.311(b). II. SCOPE OF DISCOVERY 4. Most of ANI’s objections to producing the information requested by the Enforcement Bureau are based on one of two grounds, either that the information is publicly available or that the request is overbroad because it involves matters beyond the felonies for which Mr. Hubbard currently stands convicted. Auburn Network Opposition to Motion to Compel. The Enforcement Bureau contends that the public availability of information that it seeks is immaterial and ANI must produce it if it is within its possession, custody, or control. Enforcement Bureau Motion to Compel at 5-7. The Bureau further argues that the plain language of the questions designated for hearing by the Media Bureau in the Auburn Network HDO present a separate issue as to whether, aside from Mr. Hubbard’s convictions, he and, by extension, Auburn Network is qualified to be a Commission licensee. Id. at 3-5. 5. Publicly-available information. ANI’s view that it should not have to produce publicly-available documents is not persuasive. Pursuant to section 1.325 of the Commission’s rules, 47 CFR § 1.325, a party in a hearing proceeding may request that another party produce relevant information that is within the party’s possession, custody, or control. While Commission hearings may follow the Federal Rules of Civil Procedure (FRCP) as a guide, we are not bound by those rules. ANI has not shown that the documents that it claims to be publicly available are not within its possession, custody, or control for purposes of section 1.325. The fact that the information may be publicly available is irrelevant. Even applying the standard posited by ANI, Alabama state court records regarding the prosecution and conviction of Mr. Hubbard cannot reasonably be said to be equally available to a third party like the Enforcement Bureau as they are to a party to those proceedings. Further, federal courts do not uniformly interpret the FRCP to relieve a party from producing publicly-available documents.16 The Presiding Judge believes it appropriate to require ANI to produce publicly-available documents under section 1.325, but also to permit ANI to provide the uniform resource locator (URL) of the publicly-available website or websites, if any, where those documents may be obtained without charge rather than to produce the documents themselves. This approach balances the burden on each party while ensuring full discovery of relevant documents, especially in this instance where ANI asserts that the majority of the documents regarding the criminal case are available on publicly-available websites but the Enforcement Bureau indicates that it has been unable to locate the documents.17 As detailed below, ANI is directed to produce such information accordingly. 6. Character issues other than felonies. ANI deems irrelevant the requested information and documents regarding the proposed assignment of its licenses to a third party under an exception to the Jefferson Radio policy, which is not at issue in this proceeding.18 The Enforcement Bureau contends that because the Auburn Network HDO raises a question of the licensee’s character apart from Mr. Hubbard’s felony convictions, it is entitled to probe the truthfulness and reliability of statements ANI made to the Commission in the course of pursuing that proposed assignment. The Enforcement Bureau reads the Auburn Network HDO too broadly. 7. Most FCC orders designating issues for hearing regarding felony adjudications present the ramifications of the underlying convictions as two separate, but related, issues – first, “[t]o determine the effects of [principal’s] felony convictions on his qualifications to be and remain a Commission licensee;” and second, “[t]o determine, in light of the evidence adduced pursuant to the foregoing issue, whether the licensee of [principal] should be revoked.”19 In the Auburn Network HDO, the Media Bureau omits from the second designated issue the “in light of the foregoing” qualifier and simply asks “whether Michael G. Hubbard and thus Auburn Network, Inc. is qualified to be a Commission licensee.”20 There are several indicators that this omission is the result of inexact drafting and does not evidence the Media Bureau’s intention to designate character issues for hearing beyond Mr. Hubbard’s felony convictions. Notably, the text of the item does not allege or discuss any potential character qualification issues beyond Mr. 16 See, e.g., Sierra Club v. GenOn Power Midwest LP, CA No. 2:19-cv-1284, 2020 WL 7240367 (W.D. Pa. Oct. 19, 2020); CRST Expedited, Inc. v. Swift Transportation Co. Of Arizona, LLC, 328 F.R.D. 231 (N.D. Iowa 2018); Shatsky v. Syrian Arab Republic, 312 F.R.D. 219 (D.D.C. 2015). 17 Enforcement Bureau Motion to Compel at 6; Auburn Network Inc. Opposition to Motion to Compel at 6, statement of R. Lance Bell. 18 The Jefferson Radio policy is longstanding FCC doctrine that the Commission will not, absent exceptional circumstances, renew or approve assignment or transfer of licenses when the licensee’s qualifications to hold a license are in question. Jefferson Radio Co., Inc. v. FCC, 340 F.2d 781 (D.C. Cir. 1964). While there are exceptions to that policy, the Media Bureau found that Auburn Network did not satisfy any of those exceptions. Auburn Network HDO at paras. 12-15. The assignment application is currently being held in abeyance pending the resolution of this proceeding. Id. at para. 7. 19 David L. Titus, 22 FCC Rcd. 1638, 1640 (EB 2007). Similar language has been used in a number of cases. See Patrick Sullivan (Assignor) and Lake Broadcasting, Inc. (Assignee), Hearing Designation Order, MB Docket No. 14-82, 29 FCC Rcd. 5421 (MB 2014); Lonnie L. Keeney, Order to Show Cause, 22 FCC Rcd 19975 (EB 2007); Jack R. Sharples, Hearing Designation Order, 22 FCC Rcd 9381 (WTB 2007); Robert D. Landis, Order to Show Cause, 21 FCC Rcd. 8741 (EB 2006). 20Auburn Network HDO at para. 31. Hubbard’s felonies. The introduction to the Auburn Network HDO states the following: As discussed more fully below, Hubbard was recently convicted of a number of felonies under the Alabama Code of Ethics for Public Officials, Employees, Etc. (Alabama’s Ethics Act) (citation omitted). Given this, substantial and material questions exist as to whether, in light of Hubbard’s criminal convictions, Hubbard and, hence, ANI, possess the basic character qualifications to hold Commission authorizations.21 8. After that, a recounting of Mr. Hubbard’s criminal case is followed by a detailed discussion of the way the Commission assesses the impact on a licensee’s qualifications of felonies that are not FCCrelated pursuant to the Commission’s 1990 Character Qualifications Policy Statement.22 The designation order does not allege additional instances of misconduct or discuss other behavior that would raise character issues before concluding that, “[b]ased on the record before the Commission, there is a substantial and material question as to whether Hubbard, and thus, ANI, possesses the requisite character qualifications to be a Commission licensee.”23 Further, the order provides that, “based on the felony conviction, we find that there is a substantial and material question as to whether Hubbard and ANI have the basic character qualifications to hold Commission broadcast licenses,” and that, “the record indicates, and the licensee has admitted, that its principal was convicted of a felony, and we are designating a character issue for hearing on that basis.”24 If the Media Bureau had identified other character issues beyond the felony convictions, those could have been designated for hearing in the same order.25 9. Additional evidence that the Media Bureau did not intend to identify character issues beyond the effect of Mr. Hubbard’s felony convictions is found in the Federal Register summary for the Auburn Network HDO.26 The Auburn Network FR Summary, prepared by the Media Bureau, states the purpose of the proceeding as, “to determine whether, in light of recent felony convictions, the licensee of stations in the Auburn, AL, market is qualified to hold FCC authorizations, and consequently, whether licensee’s current license authorizations should be revoked, whether the applications for renewal of various licenses should be granted, and whether the application for an FM translator construction permit should be 21 Id. at para. 2 22 Policy Regarding Character Qualifications in Broadcast Licensing, Policy Statement and Order, 5 FCC Rcd. 3252 (1990) (1990 Character Qualifications Policy Statement), modified, Memorandum Opinion and Order, 6 FCC Rcd. 3448 (1991), further modified, Memorandum Opinion and Order, 7 FCC Rcd. 6564 (1992). 23 Auburn Network HDO at para. 11. 24 Id. at para. 14 & n.26. In addition, the way the issues were delineated in the Auburn Network HDO includes typographical errors that certainly aren’t dispositive but do contribute to the perception that that portion of the item was not precisely drafted. 25 See, e.g., Eddie Floyd, Order to Show Cause, Hearing Designation Order and Notice of Apparent Liability for a Forfeiture, 25 FCC Rcd. 11348 (2010) (designated issues based on both felony conviction and failure to disclose conviction to the Commission; Pendleton C. Waugh, Charles M. Austin, and Jay R. Bishop, Preferred Communications Systems, Inc., Order to Show Cause and Notice of Opportunity for Hearing, 22 FCC Rcd. 13363 (2007) (designated issues based on felony convictions, undisclosed party in interest, unauthorized transfer of control, material representation/lack of candor, failure to maintain accurate filings, failure to respond to official requests for information, discontinuance of operations). 26 Auburn Network, Inc., License Revocation Proceeding for Radio Stations in the Auburn, AL, Market, 86 Fed Reg 15669 (Mar. 24, 2021) (Auburn Network FR Summary). granted.” Auburn Network FR Summary, 86 Fed Reg at 15669. A few paragraphs later, the aim of the proceeding is restated in a similar manner: “The Order commences a hearing proceeding before the Commission to determine whether multiple felony convictions render licensee, Michael G. Hubbard (Hubbard), unqualified to hold FCC authorizations, and consequently, whether license authorizations should be revoked” pursuant to the Communications Act. Id. The summary further indicates that the proceeding “stems from Hubbard’s multiple felony convictions under the [Alabama Ethics Act], which raise a substantial and material question of fact as to Hubbard’s character qualifications.” Id. Given these several statements regarding the extent of the material questions of fact to be explored in this hearing proceeding, as well as the absence of additional indicia of misconduct in the Auburn Network HDO, it is not appropriate for discovery to extend beyond the issue of whether Mr. Hubbard’s felonies disqualify him from being a Commission licensee. Rulings below regarding pending discovery requests are made accordingly. 10. Convictions versus charges. Mr. Hubbard is currently incarcerated based on six felony convictions. He was originally charged with 23 counts of violating the Alabama Ethics Code. A jury convicted Mr. Hubbard of 12 of the 23 counts and six of those convictions were reversed on appeal. Hubbard v. Alabama, No. CR-16-0012 (Ala. Crim. App. Aug. 27, 2018), 2018 WL 4079590 (reversing conviction on one count); Ex Parte Hubbard, No. 1180047 (Supreme Court of Alabama Apr. 10, 2020), 2020 WL 1814587 (reversing convictions on five counts). The Enforcement Bureau seeks information concerning all of the charges against Mr. Hubbard, not just the six felonies of which he stands convicted. The Bureau acknowledges that charges not resulting in convictions would not on their own support revocation, but contends that such information is relevant to assessing Mr. Hubbard’s overall qualification to remain a Commission licensee. Enforcement Bureau Motion to Compel at 7. Character Qualifications Policy Statement, 5 FCC Rcd at 3252. As discussed above, the inquiry in this hearing proceeding does not extend to conduct beyond the six felonies for which Mr. Hubbard stands convicted. The Commission made clear in its 1990 Character Qualifications Policy Statement that it will not make licensing decisions based on non-FCC misconduct that has not resulted in a conviction except in rare circumstances not alleged here.32 Accordingly, information regarding those charges for which Mr. Hubbard was not convicted or for which the conviction was overturned on appeal are not within the scope of this proceeding. For purposes of document production, in the event that information in a requested document regarding the felony convictions is not severable from information about activities that did not result in conviction, ANI is directed to produce the document in its entirety. 11. Claims of privilege. ANI asserts that Document Request No. 1 seeks potentially privileged information. ANI argues that the request for documents relating to negotiations, petitions, and memoranda regarding the Alabama criminal proceedings “is vague, ambiguous and, if they exist and are not publicly available, may include documents protected under the attorney client privilege and thus not discoverable,” and that non-identical copies of such documents as sought by the Enforcement Bureau, “if they exist, are protected by attorney-client privilege and attorney work product.” Auburn Network First Document Response at 7. The Enforcement Bureau responds that to the extent ANI intends to rely on attorney-client privilege, it must confirm whether responsive material exists and provide a privilege log that includes for each document the name of the preparers, the name of all recipients, the date and type of document, and the general nature of the subject matter. Enforcement Bureau Motion to Compel at 8-9. ANI attaches a statement of one of Mr. Hubbard‘s criminal attorneys, who asserts that internal memoranda and non-identical copies of documents are privileged and that a search of seven years of records located in four law firms would be exceedingly burdensome and would ultimately “be of little or no probative value.” Auburn Network Opposition to Motion to Compel at 9 (citing statement of R. Lance Bell). The Presiding Judge cannot rule on claims of privilege without some idea of the underlying documents for which the privilege is being asserted. Information regarding the felonies of which Mr. Hubbard stands convicted is directly probative of the effect of those convictions on his and ANI‘s qualifications to be a Commission licensee, which is the inquiry at the crux of this case. If ANI is in possession of such documents, it must either produce them or describe them in a privilege log in a way that is sufficiently specific to support a claim of privilege. Because internal drafts and memoranda not shared beyond the firms involved in Mr. Hubbard‘s criminal case are clearly going to be privileged, ANI does not need to include those items in its privilege log. There may, however, be other information for which the privilege is not so apparent. Accordingly, ANI is directed to provide a privilege log including all responsive documents for which it claims a privilege exists, excluding internal drafts and memoranda. Due to the volume of records that must be searched, the Presiding Judge will extend the 10-day deadline for production of records in section 1.325 of the Commission’s rules such that, for non-public materials, either a privilege log or responsive documents are to be provided to the Enforcement Bureau within 60 days of the release date of this Order. ANI also asserts that the Document Request No. 17, which seeks copies of drafts of the asset purchase agreement for the stations, is subject to both attorney work product and attorney-client privilege. Because the Motion to Compel is denied herein with respect to Request No. 17 as beyond the scope of this proceeding, that argument is moot. III. SPECIFIC DISCOVERY RULINGS A. Document Requests Requests 1-5 re Alabama criminal matters. Motion to Compel granted with respect to the six felonies of which Mr. Hubbard stands convicted. ANI may provide the URL for the website or websites containing publicly-available information and, if the responsive documents cannot be located based upon basic case information such as the case number, must provide any additional information necessary to locate the responsive documents. As specified above, a privilege log is required for non-public documents for which privilege is claimed. Requests 6-37 re arrangement to sell stations. Motion to Compel denied as beyond the scope of this proceeding. Request 38 re communications with the FCC. Motion to Compel granted to the extent the communications concern the felonies for which Mr. Hubbard stands convicted and are not publicly available on the Commission’s website. Contrary to ANI’s assertion, this information is not readily available in the agency’s files. Auburn Network First Interrogatories Response at 9. Rather, as noted by the Enforcement Bureau, because hearing proceedings are restricted under the Commission’s ex parte rules, it cannot obtain from the Media Bureau communications between the Media Bureau and ANI. Enforcement Bureau Motion to Compel at 7 n.27. Requests 39-42 re financial arrangements between ANI and prospective buyer. Motion to Compel denied as beyond the scope of this proceeding. B. Interrogatories 24-47 and 51-53 Interrogatories 24-29 re genesis of arrangement to sell stations. Motion to Compel denied as beyond the scope of this proceeding. Interrogatories 30-36 re creditors/debt of Hubbard and ANI. Motion to Compel denied as beyond the scope of this proceeding. Interrogatories 37-39 re payments resulting from assignment of stations. Motion to Compel denied as beyond the scope of this proceeding. Interrogatories 40-43 re valuation of stations. Motion to Compel denied as beyond the scope of this proceeding. Interrogatory 44 re identification of ANI employees. Motion to Compel denied as beyond the scope of this proceeding. Interrogatory 45 re buyer commitment to hire ANI employees. Motion to Compel denied as beyond the scope of this proceeding. Interrogatories 46-47 re clarification of statements appended to assignment application. Motion to Compel denied as beyond the scope of this proceeding. Interrogatories 51-53 re factors for exception to Jefferson Radio policy. Motion to Compel denied as beyond the scope of this proceeding. IV. ORDERING CLAUSES 12. Accordingly, IT IS ORDERED that the Enforcement Bureau’s Motion to Compel Complete Responses to its Request for Production of Documents and Interrogatories, filed April 16, 2021, IS GRANTED to the extent indicated herein and IS OTHERWISE DENIED. 13. IT IS FURTHER ORDERED that all responses for which the Enforcement Bureau’s Motion to Compel is granted shall be provided no later than 60 days following release of this order, except that for those documents that are publicly available, ANI is directed to produce either the documents or the uniform resource locator (URL) as described herein within 20 days following release of this order. 14. IT IS FURTHER ORDERED that the Enforcement Bureau’s Motion to Strike Auburn Network, Inc.’s Opposition, filed April 28, 2021, IS DENIED. 15. IT IS FURTHER ORDERED that Auburn Network, Inc.’s Motion to Accept Late-Filed Pleading, filed May 3, 2021, IS GRANTED. 16. IT IS FURTHER ORDERED that in light of the revised deadlines adopted in this Order, the schedule for this case as agreed upon at the initial conference See Order Summarizing Initial Status Conference, MB Docket No. 21-20, FCC 21M-02 (Mar. 17, 2021). is adjusted as follows: Deadline for Completion of Discovery July 14, 2021 Affirmative Case Due August 30, 2021 Responsive Case Due October 14, 2021 Reply to Responsive Case Due November 3, 2021 Deadline to Request Oral Hearing Deadline to File Motion to Accept November 17, 2021 Additional Pleadings November 17, 2021 17. IT IS FURTHER ORDERED that all parties are reminded that they are expected to be fully cognizant of Part 1 of the Commission's rules concerning Practice and Procedure, 47 CFR Part 1, Subparts A and B. FEDERAL COMMUNICATIONS COMMISSION Jane Hinckley Halprin Administrative Law Judge 3