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MonsterFM.com/KBKH 92.9-FM |
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(205) 385-8224 (Voice) (806) 256-1223 (Fax) kbkh@kbkh.com |
September 22, 2004
VIA
CERTIFIED MAIL
RETURN RECEIPT
REQUESTED
Enforcement Bureau
Investigations and
Hearings Division
Dear Mr. Scheibel;
I have prepared the following response to
your inquiries regarding my operation of KBKH-FM (formerly KRMN), facility ID
#81640, Shamrock,
Unauthorized Transfer of Control
Pertaining to inquiry #1, the issue of
unauthorized transfer of control, two of the three questions that you have
asked of me can be answered only by the parties that were involved and,
unfortunately, the events surrounding these matters occurred three years or
more before my knowledge of the station’s (KRMN’s) existence. Accordingly, I
shall be submitting to you as much fact as possible based upon what was
represented to me upon my agreement accepting the responsibilities of becoming
the licensee of the station:
(a).
As explained to me by both Mr. James Turvaville as well as the parties
comprising the former Shamrock Broadcasting of Texas, Inc., a second
application for consent to transfer was never filed due to the continuation of
a TBA agreement between Mr. Turvaville (FCC recognized controlling interest)
and the interests of Shamrock Broadcasting of Texas, Inc. According to
statements made personally to me by both parties, operation was continued under
a TBA agreement that was held in the public files that were unlawfully
misappropriated from the station, under armed force, by Mr. David Rushing and
his cohorts in an unlawful armed “raid” on
(b). This matter has previously been taken
into consideration in the response to an informal objection filed by an
attorney of questionable integrity due to his numerous court censures and
transgressions. (Please see the enclosed “District attorney sued for
back taxes” article from the Amarillo Globe-News.) This attorney
either was or is, employed by Mr. Rushing’s “Shamrock Economic Development
Corporation” in seeking the dismissal of the application for consent to
transfer that was granted by the commission on
(c). Much more public notice was given than is
legally required by 47 C.F.R. § 73.3580 (c)-(d) in that, upon the refusal of the town’s only local newspaper (partially
financed by Mr. Rushing’s SEDC, as I understand it) to sell advertising to us
for the purpose of announcing the filing of the application for consent to
transfer, I elected (pursuant to 47 C.F.R. §73.3580(e) of the rules and regulations) to run the announcements
on the air at the rate of one notice per hour (exceeding requirements as set
forth in 47 C.F.R. §73.3580(c)-(d) by far) for the duration of the notification period
as the station is the community’s only aural service. I treated
the situation as though there were no local newspaper since the newspaper was
unwilling to run the ad even though I had offered full payment in advance. In
fact, this is the very same “announcement
from Mr. James Turvaville”[2] that Mr. Rushing has
testified in several court proceedings, while under oath, is the means by which
he became aware that the application for consent to transfer had been prepared
and filed. Mr. Rushing’s attorney had advised him on several occasions, with
myself and others as witness, that there could be no application for consent
to transfer “in the works” and that he had “taken steps in Washington to
see that no license transfer can happen
because the station license is part of the collateral involved in a lien”.
This was apparently based on the misguided understanding that the station
license was held as collateral in a loan agreement with the former TBA holders
who had departed by this time. The holders of that TBA were not ever licensees
of the station. Please find included with this response (Exhibit #2) a copy of the announcement as recorded in Mr. James
Turvaville’s voice. The announcement is in full compliance with 47
C.F.R. § 73.3580 (c)-(d) and was aired hourly from
As further background in this matter, an investigation will reveal that
Mr. Rushing is also known to be director of the Shamrock Economic Development
Corporation, also known as SEDC. It is SEDC who had previously guaranteed a
loan for the former TBA holders and who had expected to secure that same loan
by claiming a lien against the physical broadcast plant as well as the actual
station license. Neither the former controlling interest, Mr. James A.
Turvaville, nor I was a party to any such loan agreement and do not owe any of
the parties to this or any other loan so much as a single penny. Mr. Rushing is
obviously attempting to circumvent federal regulations that prevent the taking
of a broadcast license as collateral in a loan agreement and to continue his
attempts at exercising a defacto
unauthorized assumption of control[3] by continually pursuing
these and other complaints and misleading public press releases[4]. A careful check of the
FCC’s records has indicated to us that “KRMN” and “KBKH” are both one and the
same broadcast station and that both even share a common FCC facility ID
#81640. However even these facts do not deter the continuation of this
never-ending string of complaints and false claims of ownership by Mr. Rushing
and on the behalf of Mr. Rushing. Mr. Rushing still frequently is found to be
telling local business owners that it is a waste of time to transact business
with KBKH and that, “just as soon as KBKH is out of business, the city will
once again put KRMN back on the air (on 92.7) and the city owned station will
be a much better place for the advertising of local businesses.”
Further, as Mr. Rushing alleges “the notification to the FCC that we transferred the station from
Jim Turvaville to Shamrock Broadcasting didn’t go through so, we handled the
transfer through our own methods locally”. Mr. Rushing’s ignorance of the
entire license transfer procedure is obvious in his previous behavior and he
appears to be somewhat confused in that (pursuant to 47
C.F.R. §73.3540(a)) “Prior consent of the FCC must be obtained for a
voluntary assignment or transfer of control” and I submit to you, with all
due respect, that this application is the same application that was dismissed
previously by the Commission as being patently defective and for which the
parties involved simply lost interest in pursuing said transfer due to a strong desire to not remain in the city
of Shamrock, Texas, due to being constantly harassed by the likes of Mr. David
Rushing. Mr. Rushing. Mr. Rushing simply does not view the act of
filing an application for consent to transfer as being an act of “seeking permission from a governing body to
initiate a transfer”. Mr. Rushing as well as his esteemed council have, on
several occasions, testified in local courts that the “application for consent
to transfer is just a notification to the FCC advising them (the Commission)
that a transfer of ownership has
already taken place so they (the commission) can update their records
to reflect the changes that have already
occured.”
As Mr. Rushing has both publicly
asserted his and SEDC’s “ownership” of KRMN and, subsequently, KBKH[5] and has led an armed raid
on the station’s former location with no prior notice and/or no rights to due
process as provided by either the State of Texas and/or the United States of
America[6], I submit to you that it
is Mr. Rushing and his cohorts who have been and are currently engaged in an
underhanded attempt at bringing about a rather shoddily contrived unauthorized
transfer of control into Mr. Rushing
and SEDC’s own hands if he has not, in fact, already committed outright
terrorist acts and/or acts of guerilla warfare (Exhibit #11) in operating as such a loosely organized “gang of
thugs” who are so adept at ignoring the existence of both state and federal
laws, statutes, rules and regulations that are designed to prevent the
occurrence of criminal acts just such as those that he and his cohorts will be
found guilty of committing, should an investigation be carried out by an agency
that is not based in the local area and not influenced by the locally
predominant “good old boy” mentality.
As further proof of Mr. Rushing’s “gang’s” quasi-terrorist tactics, I
refer you to the previously successful tactic of forcibly removing (by threats
of criminal prosecution and by threats of bodily harm) well over 90% of the
income generated by the station license during the time ranging from
Public Inspection File
Pertaining to
inquiry #2, the issue of the Public Inspection File:
(a). The
station’s Public Inspection File has been continually located at the station’s
studio site (6700 US Hwy 83, Shamrock, Texas) since it was reconstructed during
the days and weeks immediately following the theft of the original Public
Inspection File that is (presumably) still unlawfully held at the station’s
former studio location at 201 North Main Street in Shamrock, Texas. Portions of
the station’s Public Inspection File have been presented on numerous
occasions at various court hearings that were all the result of Mr. Rushing’s
continuous complaining to local and state authorities. This entire element of
Mr. Rushing’s claim is based on information that is known to be false by Mr.
Rushing, as well as by most others, and should indicate the validity of the
remainder of these never ending complaints. Again, these fraudulently filed
complaints are designed to do nothing more than to bring further hardships to
the station licensee as well as a weak attempt at bringing about the potential
loss of the community’s only aural service that has been credited with saving
numerous lives during tornadoes and thunderstorms as are extremely frequent in
this particular area[9].
(b)
The station’s Public Inspection file was (in “skeleton form”)
reconstructed during the first thirty days of operation from the new studio
location. This was necessitated due to Mr. Rushing’s armed assault on the
station’s original studio site during which the original Public Inspection File
was unlawfully seized and held by Mr. Rushing and his cohorts[10].
The Public Inspection File has now grown to include some eighteen 1-1/2” thick
books of information[11]
and remains at this location (
(c). The Public Inspection File was indeed
almost non-existent during the first days immediately following the
misappropriation of the original Public Inspection File. Although the file was
reconstructed in a rudimentary fashion during the first thirty days following
the misappropriation of the original Public Inspection File. The Public
Inspection File shall be in a state of constant growth and update, as is the
nature of such files. Even now, the Public Inspection File is sorely lacking in
original “old information” from the former licensee’s time. This is due to the
desires of Mr. Rushing to continue keeping all such records away from the
station so that it cannot be added back to the Public Inspection File, again.
Please understand that this is no fault of ours as Mr. Rushing and his cohorts
misappropriated the original files on
(d). The Public Inspection
File is located at 6700 US Hwy 83, Shamrock, Texas and is available for
inspection by anyone, without any form of prior notification, from 9 AM until 5
PM Monday through Friday (with the exception of holidays) and at special times
(24 hours per day, including holidays) with reasonable prior notification.
(e). The Public
Inspection File is maintained by the station licensee.
(f). The station policy toward responding to
requests for access to the Public Inspection File is to ask any person making
such request to sign a “guestbook” type of list and to immediately escort said
person to the Public Inspection File. We offer free copies of documents (up to
10 documents after which, a small fee is charged in order to offset costs of
printing) from the file from our on-site copy machine. I have also begun the
process of setting up an online Public Inspection File. The online file,
although incomplete, is located at http://www.monsterfm.com/927/publicfile/
but, as it is a very involved process, this has necessarily taken a backseat to
the actual operation of the station with the bulk of my time and expenses going
toward defending ourselves from the never-ending onslaught of legal attacks
launched by Mr. Rushing.[12]
(g). There is no validity to Mr. Rushing’s claims
and once again, Mr. Rushing is seeking to use any means at his disposal to
bring further hardship and suffering to the licensee of the station and his
family as well as enacting a maliciously contrived attempt to cause the loss of
the community’s only aural service by continuing to file more complaints that
simply cannot be substantiated and are based on delusions rather than facts.
Telephone Conversation Broadcast Rule
Pertaining to
inquiry #3, the issue of the telephone call between Mr. Rushing and Mr. Parvin:
(a).
Mr. Rushing did indeed call Mr. Parvin and begin a conversation in which
Mr. Rushing advised Mr. Parvin to “avoid doing any business with the Shamrock
radio station (KBKH)”. The entire conversation was approximately eight to ten
minutes in length and, during the conversation, Mr. Rushing did (not by
implication but, by statement of fact) indicate that I (
(b).
Admittedly, this is simply a matter of one persons word against another
but, permission was granted for the recording of this call and I would
challenge Mr. Rushing to demonstrate otherwise. Also, as Mr. Rushing is an
employee of local government, his job is public and as he plainly stated in the
original conversation, “My name is David Rushing and I’m the director of the
Shamrock Chamber of Commerce”, he was acting under the color of public office and was, therefore subject to public
scrutiny for his actions during these acts. It is also important to note that at
no time, even after the recording was made and excerpts aired, has Mr. Rushing
ever contacted either myself or anyone else and requested that we either not
air and/or destroy said recording. Further, during a discussion that I had with
Mr.in which I had personally inquired into of our airing of the conversation,
Mr. Rushing responded with: “Go ahead if it makes you feel any better. The
town’s people know I own that station.”
(c).
Normal station policy regarding the recording and airing of telephone
calls and conversation is to advise the participating parties that the call is
being recorded and may be aired and to obtain their verbal permission to do so[16].
(g). Again, there is no validity to Mr. Rushing’s
claims and, as before, Mr. Rushing is again seeking to use any means at his
disposal to bring further hardship and suffering to the licensee of the station
and his family and/or to cause the loss of the community’s only aural facility
by continuing to file more complaints that cannot be substantiated. Mr. Rushing
did not object to the original recording of the conversation. Mr. Rushing did
not object during a later conversation with myself. To this day, Mr. Rushing has
not objected to the recording and/or airing of this conversation to me,
personally, or to anyone else associated with the station. Also, as
Mr. Rushing was so proud to claim to be “representing the good city of
Shamrock” in the many numerous calls just such as this one, I feel that there
are more than enough people in the community who have heard his fraudulent
claims first-hand and that, as these calls were made in his official capacity
as director of the Chamber of Commerce and/or as director of the SEDC, Mr.
Rushing’s false claims are public knowledge, and should be treated as such.
Unauthorized Operation
Pertaining to
inquiry #4, the issue of Unauthorized Operation:
(a).
The station has operated, since
(b).
Construction activity of any nature has not commenced on any permanent
facility pending the granting of a new construction permit for which I am
planning to file an application within the next few days.
(c).
Please see the enclosed STA[17]
that was granted July 2, 2003 and remains in effect until October 2, 2004 and
for which we have not yet sought so much as a single extension.
Character Qualifications
Pertaining to
inquiry #4, the issue of Character Qualifications:
(a).
I was indeed charged with a misdemeanor offense in Gregg County, Texas,
during March of 2001. The offense was related to an incident in which I had withdrawn
all available cash from my personal account in order to have my two year old
daughter’s partially severed thumb re-attached during October of 2000. I had
subsequently attempted to “pick up” the several checks that were outstanding on
the account and had missed picking up a single small check. Upon learning of
the warrant, during late 2002 in
(b).
I was indeed charged with a felony offense in Wheeler County, Texas, in
October of 2002 in which a grand jury panel (comprised partially of friends and
relatives of Mr. Rushing’s SEDC gang) indicted me for the depositing of KBKH-FM
funds into my own bank account during the time in which I was operating the
station under a valid TBA agreement with the former licensee. It is important
to note that this is entirely within the scope of the agreement with the former
licensee[18]
and was also during the time in which I was working out the details of the
license transfer from Mr. Turvaville as well as being lead to believe that I
was negotiating the payoff of the loan that was in default (from the previous
TBA holders) in order to complete the purchase of the building and physical
properties that were unlawfully “forclosed” without benefit of any form of
court authorization. To this very day (
(c).
I was indeed charged with a crime in
(d)
I was
indeed charged with a crime in
(e)
I have
not ever (until the Wheeler County, Texas, “conviction” that is currently
pending appeal and is, therefore, a “non-finalized” verdict) been convicted of
a felony of any kind in any location.
(f)
I
responded, in the original application for transfer, to questions 19-23 (File No. BALH-20020624AAP) affirmatively
because, at that time, I had not ever been subject to any adverse finding taken
by any court or administrative body in a civil or criminal proceeding brought
in connection with any felony. As stated above: No prior felony convictions.
Further, I do not expect to be found guilty of a felony when the appeals in the
Wheeler County, Texas case are concluded.
Under penalty of perjury, I, Terry Keith
Hammond, do swear that the above information is true and correct to the best of
my ability.
Sincerely,
Terry Keith Hammond
President/General Manager
Certificate of Service
I, Terry
Keith Hammond, do hereby certify that, on this date, a copy of this response
has been served on Mr. David Rushing,
__________________
Terry Keith Hammond
[1] Exhibit #1
an untimely filed informal objection as filed by attorney John Mann as well as
the determination and response of the Federal Communications Commission. (View
Exhibit 1: Page 1, Page 2, Page 3, Page 4)
[3] There is no exact formula by
which control of a broadcast station can be determined. In ascertaining whether a transfer of control
has occurred, we (the Commission) traditionally look to whether a new entity or
individual has obtained the right to determine the basic operating policies of
the station. See WHDH, Inc.,
17 FCC 2d 856 (1969), aff'd sub nom. Greater Boston Television Corp.
v. FCC, 444 F.2d 841 (D.C. Cir. 1970), cert. denied, 403 U.S. 923
(1971). Specifically, we (the
Commission) look to three essential areas of station operation: the programming, personnel, and
finances. See e.g., Stereo
Broadcasters, Inc., 87 FCC 2d 87 (1981), recon. denied, 50 R.R. 2d
1346 (1982). Licensees are permitted
under Section 310(d) of the Act to delegate day-to-day operations relating to
those three areas, so long as they continue to set the policies guiding those
operations. See
[4] Please see the included Exhibit #3 in which Rushing and SEDC have initiated a civil action
against myself, my wife and the former station licensee by alleging that the
defendants (myself, my wife and the former licensee) were “engaging in an unlawful
conspiracy with the Defendant, JAMES TURVAVILLE, to undermine the radio station
so as to assure it’s demise. Such piracy was committed so that Defendant
TURVAVILLE and Defendant TERRY KEITH HAMMOND could open up another radio
station in direct competition with radio station KRMN”. (View Exhibit 3: Page 1, Page 2,
Page 3, Page 4, Page 5, Page 6,
Page 7)
[5] Please see the attached articles that have been
printed in the local newspaper referencing myself as once being “an employee of
SEDC while managing SEDC’s radio station, KRMN” that are labeled as Exhibit #4 (View Exhibit 4: Page 1, Page 2,
Page 3), Exhibit
#5, Exhibit #6, Exhibit #7 and Exhibit
#8. Please also see the attached e-mail (Exhibit #9) from the
local superintendent of schools indicating that “David Rushing has expressed a desire that your station not be allowed
to participate in any activities within the local community”, as well as
Mr. Rushing’s “business memo” to local businesses (Exhibit #10)
seeking to subvert the station by any means at his disposal.
[7] During the May court proceeding, Mr. Rushing
testified, “I didn’t give Mr. Hammond a choice in where we put the income generated
by the station. I physically removed it from the station and deposited it into
an account that I had set up for that purpose to keep it away from him (Mr.
Hammond).” This will be reflected in the court transcript.
[8] Exhibit
#4 (View Exhibit 4: Page 1, Page 2, Page 3), Exhibit
#5, Exhibit #6, Exhibit #7 and Exhibit
#8.
[11] Exhibit #13 (View Exhibit 13: Page 1, Page 2),
Exhibit #14 (View Exhibit 14: Page 1, Page 2), Exhibit #15, Exhibit #16, Exhibit #17 (View Exhibit 17: Page 1, Page 2),
Exhibit #18, .Exhibit #19 (View Exhibit 19: Page 1, Page 2, Page 3)
[12] Please see the included memo from Mr. Rushing on Shamrock Economic Development Corporation letterhead to local businesses in which he advises local business owners to avoid doing business with KBKH-FM. This is included as Exhibit #10.
[13] Please be aware of the included audio file that is labeled as Exhibit #20. Please also note that, in the audio file, Mr. Rushing appears to become just a bit “perturbed” in that he is now unable to sell me a radio station that I already hold a license for!
[14] Please see the included newspaper articles labeled as Exhibit #4 (View
Exhibit 4: Page 1, Page 2, Page 3), Exhibit #5, Exhibit #6, Exhibit #7 and Exhibit
#8.
[15] Please see the enclosed memo on Shamrock Economic Development
Corporation letterhead that is labeled as Exhibit #10. Also, please see the included newspaper articles
labeled as Exhibit
#4 (View Exhibit 4: Page 1, Page 2, Page 3), Exhibit
#5, Exhibit #6, Exhibit #7 and Exhibit
#8.
[16] Please see the included Exhibit #21, the
statement of Dan Gettlefinger verifying that Mr. Parvin’s authorization was
obtained for the use of his telephone conversation with Mr. Rushing.
[19] Please see also the included Exhibit #24 (View Exhibit 24: Page 1, Page 2, Page 3,
Page 4) in which
Mr. Rushing has conspired with other area business owners in an attempt at
seeking the same kind of falsely contrived criminal charges, most notably the
National Bank of Commerce in which both the local vice president as well as the
national CEO conspired with Mr. Rushing by refusing to honor a valid contract.
At one point, National Bank of Commerce had mailed a payment check to me. Mr.
Rushing had that check “apprehended and forcibly removed” from the possession
of my wife at a local bank. The local chief deputy then rushed the check, made
payable to my radio station, to Mr. Rushing’s office where it was deposited
into Mr. Rushing’s SEDC bank account. It was well over a year later that I
personally threatened the filing of complaints with the Comptroller of the
Currency. At that point, a replacement check was issued post haste and the
local bank vice president advised me (through my attorney) that he would be
“forced to seek re-imbursement from Mr. Rushing”. Again, these people will stop
at nothing in the ongoing commission of these vicious criminal conspiracies!