## Facts

- Birach Broadcasting Corporation sought renewal of the AM broadcast licenses for WBVA(AM) (Bayside, Virginia) and WVAB(AM) (Virginia Beach, Virginia).
- Birach acquired the stations in 2008 after the stations’ shared tower site was destroyed and reported difficulties obtaining local zoning approval for a replacement tower.
- FCC records indicated WBVA operated only about 120 days between April 1, 2008 and November 30, 2017, and was otherwise silent.
- When operating, WBVA used a temporary facility at approximately 30 watts from a non-licensed site that the FCC estimated served roughly 10% of the station’s authorized service area.
- WVAB likewise experienced extended periods of silence during and after the license term.
- The FCC expressed concern that extended silence and minimal operation meant the stations provided little or no service to their communities of license.
- The FCC adopted and released a Hearing Designation Order designating the renewal applications for an evidentiary hearing before the Commission.

## Issues

1. Whether, under 47 U.S.C. § 309(k)(1), the stations’ operation during the relevant terms served the public interest, complied substantially with the Communications Act and FCC rules, and avoided serious violations or a pattern of abuse.
2. Whether the repeated, extended silence and reduced operation constituted a failure to serve the communities of license warranting denial, conditional renewal, or a shortened renewal term.
3. Whether the operating history raised substantial and material questions about misuse of the licensing process, including possible spectrum warehousing, bearing on Birach’s fitness to remain a Commission licensee.

## Decision

- The FCC designated Birach’s renewal applications for WBVA(AM) and WVAB(AM) for hearing before the Commission.
- The FCC found that the stations’ extended silence and minimal service raised substantial and material questions of fact that could not be resolved on the written record.
- The FCC directed that the hearing develop evidence on the reasons for the prolonged silence and reduced operations, Birach’s efforts to restore service, the public-service impact, and any factors relevant to renewal, conditional renewal, shortened-term renewal, or denial.
- The FCC set procedures for participation, including allowing interested persons to seek leave to intervene.

## Legal Principles

- A broadcast license confers authority to use spectrum only on the condition that the station provides actual service to its community consistent with the public interest.
- License renewal under 47 U.S.C. § 309(k)(1) turns on whether the station served the public interest, complied with governing law and FCC rules, and avoided serious violations or a pattern of abuse during the preceding term.
- Prolonged silence and operation at substantially reduced facilities may create substantial and material questions about public-interest service, compliance, and potential abuse of the licensing process.
- When substantial and material questions of fact exist regarding renewal qualifications, the FCC may designate the renewal application for an evidentiary hearing rather than grant renewal on the written record.

## Conclusion

The FCC did not resolve the merits of Birach’s renewal requests; it initiated a hearing because the stations’ long-term silence and severely limited operation raised substantial factual questions under § 309(k) about public-interest service, compliance, and potential misuse of the broadcast licenses.


In re Birach Broad. Corp., 33 F.C.C.R. 852 (2018)