Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C.

In re Application of ) ) AIR MIX VIRGINIA ) File No. 0000073441 ) Facility ID #193001 For Renewal of the License for ) WVAI-LP ) Charlottesville, Virginia )

TO: The Secretary ATTN: Chief, Audio Division, Media Bureau

OPPOSITION TO CONSOLIDATED PETITION TO DENY

Air Mix Virginia (“Air Mix”), by counsel, hereby opposes the Consolidated Petition to

Deny its above-identified application for renewal of the license for WVAI-LP, filed by Tidewater

Communications, LLC (“Tidewater”) on September 3, 2019. 1 Tidewater’s bellicose Petition is full of sound and fury, but signifies nothing. By misinterpreting documents, relationships among independent radio station licensees, and the Commission’s rules, Tidewater has inferred wrong- doing where none exists. Tidewater’s Petition, insofar as it concerns Air Mix and WVAI-LP, must be denied or dismissed.

Tidewater petitioned the Commission to deny the license renewal applications for five low power FM stations and combined its arguments into one consolidated pleading. One of those five stations is WVAI-LP, of which Air Mix is the licensee. In this Opposition pleading, Air Mix addresses only those elements of the Petition that pertain to WVAI-LP.

1 By an email announcement from Audio Division staff on October 11, 2019, the deadline for filing this Opposition was extended until October 25, 2019.

-1- Operating Agreement

Tidewater’s first and most prominent assertion about alleged wrong-doing by WVAI-LP and the other stations is that they “are parties to a prohibited operating agreement or management agreement.” 2 Tidewater claims that the stations’ agreement violates §73.860(e) of the

Commission’s rules. It is true that Air Mix is a member of and is party to the operating agreement for the limited liability company known as Virginia Radio Coop, LLC. All of the five licensees that are the subject of Tidewater’s Petition are members of the Coop and parties to the agreement. However, nothing about that agreement can be construed to violate §73.860(e).

A copy of the Virginia Radio Coop LLC Operating Agreement is attached as Exhibit 1.

Key provisions of the Agreement are as follows:

2.10 The Class I members agree to the sharing of a common transmitter site, sharing equally in the costs of rent, utilities, and common area maintenance. In the initial phase, this sharing of costs will include that for acquisition of common equipment needed for transmission, including equipment shelter, and expenses related to locating on the tower.

2.11 All members retain the ability to set their own rates and allowable discounts for commercial underwriting. Members may enter in to agreements with one or more external entities for the purposes of or promoting the stations.

2.12 The members agree to share expenses related to the production of materials, administration, and personnel at the Coop level. . . . .

2.13 Nothing in this Operating Agreement shall supercede or violate any FCC, IRS, or federal, state or local statute, rule or regulation pertaining the separate and distinct businesses and operational integrity of its members.

The only substantive element of agreement among the parties to this agreement is the use and financing of a common transmitter site. There is no provision to specify joint operation of

2 Petition, at ii.

-2- any other element of the stations. The use of the term, “Operating” in the title of the agreement, i.e., “Operating Agreement,” pertains only to the mechanics of conducting the business of the limited liability company and is not concerned with any aspect of operating the individual radio stations.

The rule states that “No LPFM licensee may enter into an operating agreement of any type, including a time brokerage or management agreement, with either a full power broadcast station or another LPFM station.” 3 Tidewater has gotten itself into a semantic tangle concerning the term, “operating agreement.” The rule obviously is intended to pertain only to the kind of agreement where one station is furnishing a substantial portion of the management and/or programming for another station, such as in a “time brokerage” or “management agreement.”

Other kinds of operating agreements by LPFM licensees that result in lesser degrees of integration are anticipated and permitted by other rules. Time-share agreements – both voluntary and involuntary – are encouraged in §73.872(c) and (d)(2). Time-share agreements frequently involve the use of common office and production facilities, and the use of a common transmitter site and transmission equipment. Indeed, the use of a common transmitter site by LPFM stations in a time-share agreement is facilitated by the Commission. Section 73.870(a) of the rules offers a waiver of the maximum distance limit on the relocation of a transmitter site as a minor modification if the purpose of the move is to accommodate and/or facilitate a time-share agreement in connection with the use of a common transmitter site. One has to conclude therefore that §73.860(e) was not intended to prohibit agreements to share a common transmitter site. Even a cursory reading of the Coop limited liability company Operating Agreement shows

3 47 CFR §73.860(e).

-3- that the use of a common transmitter site and office facilities is the only substantive purpose for the Coop. Attached in Exhibit 2 is a Declaration from Joseph Middleton, Air Mix’s president and the General Manager and Program Director of WVAI-LP. He confirms that the Coop’s only substantive activity is to provide support for the station’s technical facilities, including the common antenna site. The Coop Operating Agreement cannot therefore be construed to violate

§73.860(e).

The Coop Operating Agreement does not identify underwriting or as activities which the Coop would undertake. In fact, as cited above, Section 2.11 of the Operating

Agreement explicitly states that the member stations would remain quite independent in their respective approaches to these matters. Member stations are free to set their own underwriting rates and to engage “external entities” for marketing and promotion Despite these provisions in the Coop Operating Agreement, Tidewater alleges that the activities and literature of an entity called Experience Media, LLC demonstrate that WVAI-LP and the other stations are part of a joint marketing and promotion effort, which Tidewater infers must be an illicit management agreement prohibited by §73.860(e). 4

In the attached Declaration, Mr. Middleton explains that WVAI-LP does accept underwriting spots that have been procured by Experience Media. However, there is no written agreement about that relationship. Mr. Middleton states that WVAI-LP sets the price for its underwriting spots, is free to reject spots, and indeed has rejected some of the spots provided by

Experience Media. Tidewater attached as an exhibit to its Petition a so-called rate card, allegedly used by Experience Media to sell underwriting spots for the stations. Mr. Middleton states that

4 Petition, at 3-5.

-4- Air Mix had no input into the content of the rate card, and indeed, prior to his receipt of

Tidewater’s Petition, Mr. Middleton says that he had not even seen the rate card.

Tidewater asserts that use of the possessive pronoun “our” in the rate card, referencing

“Our stations” and “our signals,” “is unmistakably a reference to common ownership or common management of the LPFM Stations.” 5 Without further evidence, Tidewater jumps to infer its own interpretation of the use of the word, “our.” However, it is more likely referring to the stations in “our” group, meaning, “which we represent,” rather than “which we own or control.”

Further, Tidewater’s premise is completely faulty for several other reasons. First, it is based on the assumption that Air Mix is an active participant in whatever enterprise Experience

Media may be perpetrating with the rate card. However, as stated above, Air Mix has had nothing to do with the development or use of Experience Media’s promotional materials. Whatever impression is intended by the use of the rate card is entirely the invention of Experience Media.

One party acting by itself obviously cannot unilaterally create an operating agreement that includes or binds another party. Air Mix has not agreed to be a part of any such combine. This is a one-sided affair, the consequences of which Tidewater would unfairly impose on an uninvolved and innocent Air Mix.

Second, assuming for the purpose of discussion that Air Mix is an active participant in the Experience Media endeavor, there is nothing inherently improper about an outside entity representing an LPFM station for underwriting sales. The concept has been successfully and legally implemented for full power noncommercial radio stations by entities such as National

Public Media. This noncommercial activity is broadly analogous to the common practice of

5 Petition, at 5.

-5- “rep” firms that represent commercial radio stations in selling commercial spot time. The act of soliciting sponsors and selling sponsorships hardly makes one a “manager” of the station for which the sponsorships are sold. Tidewater’s allegation about this relationship is speculative, conclusory, and totally lacking in factual basis. In any event, as Mr. Middleton has stated,

WVAI-LP sets the rates for its underwriting announcements – not Experience Media, and retains the complete and exclusive discretion to reject any spots presented by Experience Media.

Finally, it cannot be said that Experience Media’s purported representation of WVAI-LP for underwriting spot sales is in any way analogous to the categories of management agreements prohibited by §73.860(e). Arrangements for soliciting underwriting, as described in the

Experience Media literature and by Mr. Middleton, could not be considered a time brokerage agreement within the meaning of the rule. The Commission long ago established the definition of a time brokerage agreement: “A time broker is simply one who buys time and then resells it to others. The time is the broker’s to do with as he wishes and the risk is entirely the broker’s since, if he cannot resell the time, he still is responsible for payment to the station of the agreed sum.”

United Co. of New York, Inc. , Memorandum Opinion and Order, 40 FCC 224, at

¶21 (1965). Experience Media does not buy spots from the station and then attempt to resell them. 6 Experience Media bears no risk. The representation model under which Experience Media

is described as operating simply does not conform to the common definition of time brokerage.

6 Whether an arrangement for a broker to buy spot time for noncommercial underwriting announcements in order to resell it to underwriters would be contrary the noncommercial underwriting rules is beside the point for the purposes of determining whether the arrangement constitutes an operating or management agreement prohibited by §73.860(e).

-6- The actual facts about the Virginia Radio Coop and the operations of Experience Media with respect to WVAI-LP simply do not support Tidewater’s allegations of violations of

§73.860(e). The Commission must reject Tidewater’s speculative and unfounded accusations.

Doing so will also dispose of Tidewater’s specious claim that Air Mix, as one of the subject renewal applicants, included false certifications about its relationships to other entities in its

Form 318 construction permit application, the 2014 grant of which by the Commission has long since become final. 7

Underwriting Announcements

Tidewater alleges that Air Mix “is operating its LPFM station as a commercial radio station,” and that WVAI-LP has broadcast announcements that “far exceed the Commission’s guidelines for noncommercial educational stations’ underwriting acknowledgments.” 8

The Commission has long recognized that determining what is legitimate content for an underwriting announcement can be an unwieldy task. The agency has stated, "We recognize that it may be difficult to distinguish at times between announcements that promote and those that identify. We only expect our public broadcast licensees to exercise their reasonable, good faith judgments in this regard." Commission Policy Regarding the Noncommercial Nature of

Educational Broadcasting Stations, 90 FCC 2d 895, 911 (1982).

Air Mix has endeavored to employ its reasonable good faith judgment in fashioning the content for its underwriting announcements. In his Declaration, Mr. Middleton confirms that he has relied on good faith judgment in this regard. He also commits to an enhanced vetting regime

7 See Petition, at 17-18.

8 Petition, at 11-12.

-7- that includes vetting of the language for announcements by communications counsel. The good faith broadcast of the announcements cited by Tidewater in its Petition at Attachment 6 does not give rise to a basis for denying the renewal application for WVAI-LP, 9

Program Format and Community Service

Tidewater cites the required statement of educational objectives included in Air Mix’s

original Form 318 construction permit application and then complains that WVAI-LP is

“consistently broadcasting Hip-Hop and Rhythm and Blues music,” in contravention of its

commitment to educational service. 10 In its application, Air Mix committed to provide

“Opportunities for community involvement in the development of unique noncommercial

programming, training in radio operations and production, and journalism at the local level.”

Contrary to Tidewater’s allegation, Air Mix has met and is meeting this commitment.

Mr. Middleton describes in his attached Declaration the wide range of activities that the

station offers for community members to become involved in programming, and to interact with

station staff at community events. The station endeavors to satisfy a community need by offering

an urban music format that is not otherwise available in the Charlottesville radio market. WVAI-

LP pursues a regular program of training community volunteers to work in radio broadcasting.

There are currently 12 community volunteers serving on the station’s staff. It seems apparent that

Tidewater’s allegation on this point was born of total ignorance of the facts and speculation about

9 Even if the Commission were to find that one or more of the announcements broadcast by WVAI-LP were not proper underwriting announcements, such a finding would not justify the denial of the renewal application or the designation of the application for a hearing. See, Weber State University, Memorandum Opinion and Order, 32 FCC Rcd 4598, 4601 (MB 2017).

10 Petition, at 11.

-8- the station’s format. As is well-known, the Commission declines to become involved in evaluating whether a given programming format is appropriate for a noncommercial station.

Licensees are entitled to broad discretion in the scheduling, selection, and presentation of programming. This is particularly so with regard to the programming decisions of noncommercial stations. The Commission historically "has had the appropriately limited role of facilitating the development of the system rather than determining the content of its programming." Pittsburg State University, Letter Order, 22 FCC Rcd 12983, 12985

(MB 2007), quoting Revision of Programming Policies and Reporting Requirements Related to

Public Broadcasting Licensees, Notice of Proposed Rule Making, 87 FCC 2d 716, 732 (1981).

Based upon an apparently random and uninformed air check of WVAI-LP’s programming, Tidewater has spun a fanciful claim that Air Mix is not providing a legitimate noncommercial broadcast service that is consistent with its original proposal.. This grasp at straws must also be rejected as any basis for denying the station’s license renewal application.

Conclusion

Tidewater has failed to demonstrate any reason why the license renewal application for

WVAI-LP should be denied. Most assuredly, Air Mix has not allowed its station to be operated or managed by any third party and has not violated the restrictions of §73.860(e). During the expiring license term, Air Mix has presented a noncommercial broadcast service that has addressed the needs and interesta of the community in its service area. Air Mix is operating a model LPFM radio station – providing alternative programming while also deeply involved in community relationships and service. WVAI-LP is the epitome of the kind of grass roots radio station that the Commission envisioned when it created the low power FM service. At great cost

-9- to the public interest, Tidewater would have the Commission silence this instrument of public service on the basis of ill-formed and unsupported allegations. With respect to WVAI-LP,

Tidewater’s Petition to Deny must be denied.

Respectfully submitted,

AIR MIX VIRGINIA

By: / Donald Martin/ Donald Martin

DONALD E. MARTIN, P.C. P.O. Box 8433 Falls Church, Virginia 22041 (703) 642-2344 [email protected]

Its Attorney

October 25, 2019

-10- EXHIBIT 1

OPERATING AGREEMENT FOR VIRGINIA RADIO COOP, LLC

EXHIBIT 2

DECLARATION OF JOSEPH MIDDLETON DECLARATION OF JOSEPH MIDDLETON

Joseph “Jaquan” Middleton deposes and states as follows:

1. I am a director and the president of Air Mix Virginia, the licensee of low power FM station WVAI-LP, Charlottesville, Virginia. I am also the General Manager and Program Director for WVAI-LP.

2. Air Mix Virginia is a member of the Virginia Radio Coop, LLC. The Coop is a cooperative arrangement among the licensees of several low power FM stations, the purpose of which is to save money and station resources by using a common antenna site and sharing the rent for a common building in which the stations have their offices and studios. We each pay an equal share of the rent for the antenna site and the studio/office building. Neither the Coop nor any of the other members of the Coop has any involvement in the management or execution of WVAI-LP’s programming, finances or personnel. The directors, officers and management of Air Mix Virginia maintain complete and exclusive control over each of those aspects of operating WVAI-LP. Air Mix Virginia has no collaborative agreement or nor ad hoc arrangement for managing WVAI-LP with any other party.

3. WVAI-LP broadcasts underwriting announcements. We obtain sponsors identified in these announcements through our own efforts. We also accept payment in connection with announcements arranged by third-parties, including an entity called Experience Media. WVAI- LP has complete discretion to accept or reject any announcements brought to us by Experience Media. We have rejected some announcements in the past. The Consolidated Petition to Deny filed by Tidewater Communications, LLC, against the license renewal applications for WVAI-LP and other LPFM stations, included a so-called rate card for underwriting sales by Experience Media. Although that document contained references to WVAI-LP and prices for underwriting announcements on WVAI-LP, WVAI-LP staff and management had no input in the creation or production of that document, nor did we set the prices listed for WVAI-LP announcements. In fact, prior to receipt of the Consolidated Petition to Deny, I had never seen this document.

4. In developing the content for noncommercial underwriting announcements, we, the management and staff of WVAI-LP, have used our good faith judgment to attempt to create announcements that comply with the FCC’s rules and policies. In an effort to improve our performance in this area, we have implemented increased vetting of our spots by legal counsel.

5. Air Mix Virginia is committed using its opportunity to broadcast over WVAI-LP to provide a service to the residents of the station’s coverage area. The station currently airs an urban format with content that is not otherwise available in the Charlottesville radio market. We are involved in the civic life of the Charlottesville community. We send our 101.3 jamz mobile units to cover, support and participate in various civic and social events. These include events such as back-to-school nights for high school students; a fall harvest festival that teaches children about the importance of agriculture; events to encourage and support sobriety and addiction recovery by an organization called Community Recovery All Neighborhoods United; an annual black business expo; and partnering with Montpellier for Juneteenth events. 6. Air Mix Virginia actively trains and instructs community volunteers in radio broadcasting. We currently have 12 community volunteers on our active staff. We invite anyone from the community who may be interested to come to our facilities to learn about radio. We offer a free two-month training course about radio announcing, program production and business affairs.

The foregoing statement is true and correct to the best of my knowledge and belief, and is given under the penalty of perjury.

10/24/2019 ______Joseph Middleton Date CERTIFICATE OF SERVICE

I, Donald E. Martin, hereby certify this 25th day of October, 2019, that I have caused a copy of the foregoing document to be served by electronic mail upon the following:

Gary Smithwick, Esquire Smithwick & Belendiuk, P.C. 5028 Wisconsin Avenue, N.W. Suite 301 Washington, D.C. 20016 Counsel for Tidewater Communications, LLC

Michael Richards, Esquire Law Office of Michael W. Richards LC P.O. Box 5842 Takoma Park, Maryland 20913 Counsel for Blue Ridge Free Media, Inc.

Lee Peltzman, Esquire Shainis & Peltzman, Chartered 1850 M Street, N.W. Suite 240 Washington, D.C. 20036 Counsel for Promise Land Communications

Cary S. Tepper, Esquire Tepper Law Firm, LLC 4900 Auburn Avenue, Suite 100 Bethesda, Maryland 20814 Counsel for Genesis Communications

Jerrold D. Miller, Esquire Miller and Neely 3750 University Boulevard West, Suite 203 Kensington, Maryland 20895 Counsel for Gateway Media

Albert Shuldiner, Esquire Chief, Audio Division, Media Bureau Federal Communications Commission Washington, D.C. 20554 Michael Wagner, Esquire Audio Division, Media Bureau Federal Communications Commission Washington, D.C. 20554

/Donald E. Martin/ Donald E. Martin