Federal Communications Commission DA 23-304 Before the

Federal Communications Commission DA 23-304

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of

ROGER WAHL

WQZS(FM), Meyersdale, PA

)

MB Docket No. 21-401

Facility ID No. 57424

REVOCATION ORDER

Issued: April 12, 2023 Released: April 12, 2023

By the Chief, Enforcement Bureau:

I. INTRODUCTION

1. Pursuant to section 312 of the Communications Act of 1934, as amended, and section

0.111(a)(18) of the Commission’s rules, we hereby revoke the license of Mr. Roger Wahl (Mr. Wahl) for

FM Station WQZS in Meyersdale, Pennsylvania.

This action follows an Order by Administrative Law

Judge Jane Hinckley Halprin (ALJ) terminating a hearing into Mr. Wahl’s qualifications to be a licensee

and certifying the case to the Commission after Mr. Wahl waived his right to a hearing by failing to

respond to discovery requests and failing to comply with other procedural obligations.

2. We find that Mr. Wahl lacks the qualifications to be or remain a Commission licensee.

The record in this proceeding—particularly Mr. Wahl’s 2020 convictions for a felony and four

misdemeanors, and the facts underlying those convictions—establishes that he lacks the requisite

character to be a Commission licensee as described in the Commission’s Character Qualifications Policy

Statement.

II. BACKGROUND

A. Factual Background

3. On July 8, 2020, Mr. Wahl pleaded guilty to five crimes.

The facts supporting Mr.

Wahl’s guilty plea were recited for the court at the time his plea was entered, and Mr. Wahl confirmed

that the recitation was accurate.

Specifically, Mr. Wahl admitted that he: (a) secretly took nude photos

See 47 U.S.C. § 312(a)(2); 47 CFR § 0.111(a)(18) (delegating to the Enforcement Bureau authority to “[i]ssue …

appropriate orders after a hearing proceeding has been terminated by the presiding officer on the basis of waiver”).

Also implicated is a pending application for consent to assignment of license for Station WQZS(FM), Meyersdale,

Pennsylvania. See FCC File No. BALH-20200305AAH. That application will be dismissed as moot once the

revocation of the WQZS license becomes a final order.

See Roger Wahl, Order Terminating Proceeding, MB Docket No. 21-401 (Halprin, ALJ, Aug. 2, 2022) (Final

Termination Order); 47 CFR § 1.92(a), (c), (d).

See Policy Regarding Character Qualifications In Broad. Licensing, Report, Order, and Policy Statement, 102

F.C.C.2d 1179 (January 1986 Policy Statement), recon. dismissed/denied¸ 1 FCC Rcd 421 (November 1986 Policy

Statement); Policy Regarding Character Qualifications in Broad. Licensing, Policy Statement and Order, 5 FCC

Rcd 3252 (1990) (1990 Policy Statement), modified, Memorandum Opinion and Order, 6 FCC Rcd 3448 (1991)

(1991 Policy Statement), further modified, Memorandum Opinion and Order, 7 FCC Rcd 6564 (1992) (collectively,

Character Qualifications Policy Statement).

See Commonwealth of Pa. v. Wahl, No. 56-CR-0000952-2019 (Ct. of C.P., Somerset C’nty, Pa. July 8, 2020)

(Initial Order of the Court).

See Commonwealth of Pa. v. Wahl, Sentence of Court, No. 56-CR-0000952-2019 (Ct. of C.P., Somerset C’nty, Pa.

Nov. 16, 2020).

Federal Communications Commission DA 23-304

of a woman inside her home using a concealed camera he installed in her bathroom; (b) impersonated the

woman on an online dating site; (c) sent the nude photos of the woman to at least one man whom he,

posing as the woman, connected with through that site; and (d) posing as the woman, solicited the man to

have sexual relations with her.

In addition, upon learning of the Pennsylvania State Police investigation,

Mr. Wahl deleted the nude photos from his mobile phone and deleted the communications he made via

the online dating site.

4. Mr. Wahl pleaded guilty to criminal use of a communication facility, which is a third-

degree felony,

and four related misdemeanors.

Specifically, Mr. Wahl pleaded guilty to second degree

misdemeanors for recklessly endangering another person, unlawful dissemination of an intimate image,

and tampering with evidence.

He also initially pleaded guilty to invasion of privacy.

On November

16, 2020, Mr. Wahl was sentenced to concurrent sentences that effectively placed him on probation for

three years, with four months of electronic monitoring, and required him to pay $600 in fines and the

costs of his prosecution and supervision.

5. On October 19, 2021, the Commission’s Media Bureau released an Order to Show Cause

to commence a hearing proceeding before the ALJ to determine whether Mr. Wahl’s license should be

revoked.

The events that precipitated termination of that hearing are detailed in the Final Termination

Order, and we briefly recount them here. Mr. Wahl, who is not an attorney, chose to represent himself in

this hearing rather than retain counsel.

For that reason, the ALJ repeatedly excused procedural

deficiencies and took pains to explain to Mr. Wahl his responsibility to respond fully to the Enforcement

Bureau’s discovery requests and to orders issued by the ALJ.

Even so, problems with Mr. Wahl’s self-

representation began immediately, as he failed to file his Notice of Appearance in the Commission’s

Electronic Comment Filing System (ECFS), as specified in the Order to Show Cause, and did not

See id. In their investigation, the police obtained screen shots of the dating profile and photos, id. at 10-11 and 14,

and seized Mr. Wahl’s phone after finding the nude photos in the deleted photos file of the phone. Id. at 15-16.

See id.

See Initial Order of the Court. The police report from 2019 described this charge as use of a communication

device to facilitate the commission of a felony or attempted felony. See Pa. State Police GO# PA 2019-1197584 at

29 (Wahl Police Report).

See Initial Order of the Court.

See id.

See id. Subsequently, according to the record in the criminal proceeding, Mr. Wahl learned that a conviction on

the invasion of privacy charge would require registration and notification as a sex offender. He then withdrew his

plea of guilty with respect to that charge, and instead pleaded guilty to identity theft, a first-degree misdemeanor.

See Commonwealth of Pa. v. Wahl, Motion to Withdraw Guilty Plea, No. 56-CR-0000952-2019 (Ct. of C.P.,

Somerset C’nty, Pa. July 27, 2020); Commonwealth of Pa. v. Wahl, Order, No. 56-CR-0000952-2019 (Ct. of C.P.,

Somerset C’nty, Pa. Nov. 16, 2020) (accepting withdrawal of guilty plea).

See Commonwealth of Pa. v. Wahl, Sentence of Court, No. 56-CR-0000952-2019 (Ct. of C.P., Somerset C’nty,

Pa. Nov. 16, 2020). In imposing the sentence, the court observed that the victim of Mr. Wahl’s criminal activity was

not physically assaulted. At the same time, it stated: “We do note that the Defendant indeed maintains a minimal

prior record; however, he has caused the victim in this case substantial emotional harm. The seriousness of the

offenses, the multiple actions, and the extent to which the Defendant went to perpetrate harm on the victim warrants

a lengthy period of supervision. Any lesser sentence in our view would depreciate the seriousness of the offenses.”

Id. at 4.

Roger Wahl, Hearing Designation Order, Order to Show Cause, and Notice of Opportunity for Hearing, MB

Docket No. 21-401, DA 21-1305 (MB Oct. 19, 2021) (Order to Show Cause).

Final Termination Order at 1-2, para. 3.

See id.

Federal Communications Commission DA 23-304

properly serve the ALJ, as required by the Commission’s rules.

The ALJ informed Mr. Wahl several

times that failure to comply with filing requirements could cause him to lose his license.

Nevertheless,

these problems continued, as Mr. Wahl repeatedly failed to comply with his obligations in the hearing

proceeding over the next six months.

6. In light of Mr. Wahl’s failure to comply with the ALJ’s orders and his discovery

obligations, the Enforcement Bureau, on May 31, 2022, asked the ALJ to either dismiss this hearing

proceeding or compel a response to then-outstanding discovery requests.

At the outset of the hearing

proceeding, Mr. Wahl had indicated in his Notice of Appearance that “I, Roger Wahl, appear in the above

referenced matter and intend to present evidence on the matters specified in the said order.”

Finding he

had not lived up to that commitment, however, the ALJ determined Mr. Wahl was not participating in the

proceeding at the level necessary to render it a meaningful exercise of the opportunity for a hearing that

had been afforded him.

The ALJ therefore found that Mr. Wahl had waived his right to a hearing,

terminated the hearing proceeding, and certified the case to the Commission for further disposition

consistent with her order.

B. Legal Background

7. Section 312(a)(2) of the Act provides that the Commission may revoke any license if

“conditions com[e] to the attention of the Commission which would warrant it in refusing to grant a

license or permit on an original application.”

Section 308(b) of the Act identifies the character of an

applicant to be among those factors that the Commission considers in determining whether an applicant

has the requisite qualifications to be a Commission licensee.

Thus, a character defect that would

warrant the Commission’s refusal to grant a license in the original application would likewise support a

Commission determination to revoke a license.

See id. See Order to Show Cause at para. 23; 47 CFR § 1.210 (all pleadings in a hearing proceeding are to be filed

in ECFS with a courtesy copy contemporaneously provided to the presiding officer).

Roger Wahl, Order, MB Docket No. 21-401, 22M-01 (ALJ Jan. 11, 2022) at 1, para. 3 (“Dates and deadlines

established throughout this proceeding are not suggestions. While the Commission’s rules include procedures for

requesting extensions of time if circumstances warrant, a party who does not make such a request and simply

ignores a deadline is in significant danger of being held in default”); Transcript of Initial Status Conference, Tr.

7:16-19 (Mar. 8, 2022) (“This case is very formal; that's how these hearings work. And failure to follow the rules

could result in dismissal of the case and revocation of your license”); Roger Wahl, Order Summarizing Initial Status

Conference, MB Docket No. 21-401, 22M-05 (ALJ Mar. 10, 2022) at 2, para. 3 (“Finally, the Presiding Judge

emphasized that failure to adhere to the Commission’s hearing regulations and procedures, including filing

deadlines, could lead to dismissal of this proceeding with prejudice”); Roger Wahl, Discovery Order, MB Docket

No. 21-401, 22M-12 (ALJ Apr. 29, 2022) at para. 7.

See id.; Final Termination Order at 4, para. 7.

Enforcement Bureau’s Motion to Dismiss for Failure to Participate and Waiver of Hearing, or, in the Alternative,

Motion to Compel a Response to the Enforcement Bureau’s Outstanding Discovery Requests, MB Docket No. 21-

401 (filed May 31, 2022).

Roger Wahl, Notice of Appearance, MB Docket No. 21-401 (filed Nov. 11, 2021).

Final Termination Order at 4, para. 7 (noting that “[t]o date, he has filed no substantive documents in this

proceeding”).

Id. at 5-6, paras. 10-12.

47 U.S.C. § 312(a)(2).

Id. § 308(b) (“All applications for station licenses, or modifications or renewals thereof, shall set forth such facts

as the Commission by regulation may prescribe as to the citizenship, character, and financial, technical, and other

qualifications of the applicant to operate the station.”). See Character Qualifications Policy Statement.

Federal Communications Commission DA 23-304

8. Reliability is a key element of character necessary to operate a broadcast station in the

public interest.

The fundamental purpose of the Commission’s character inquiry is to make predictive

judgments about an applicant’s truthfulness and propensity to comply with the Act and the Commission’s

rules.

For this reason, inquiries into a licensee’s basic character eligibility are to “focus on the

likelihood that a[] [licensee] will deal truthfully with the Commission and comply with the

Communications Act and our rules and policies.”

9. Under the Commission’s Character Qualifications Policy Statement, non-FCC

misconduct may call into question a licensee’s character.

In assessing character qualifications in

broadcasting matters, the Commission considers, as relevant, “evidence of any conviction for misconduct

constituting a felony.”

In particular, the Commission has found that “[b]ecause all felonies are serious

crimes, any conviction provides an indication of an applicant’s or licensee’s propensity to obey the law”

and conform to provisions of both the Act and the Commission’s rules and policies.

In addition, the

Commission retains discretion to consider certain types of misdemeanors to be relevant.

The Character

Qualifications Policy Statement also affirms that “a specific finding of fraudulent representation to

another governmental unit” may cast doubt on a licensee’s truthfulness, whether it occurs in the context

of a criminal or civil dispute.

Such fraudulent representation may take the form of a lack of candor

“involv[ing] concealment, evasion, and other failures to be fully informative.”

10. The question of whether misconduct is disqualifying turns on the facts of each case.

When making determinations in particular cases, the Commission generally considers factors such as “the

willfulness of the misconduct, the frequency of the misconduct, the currentness of the misconduct, the

seriousness of the misconduct, the nature of the participation (if any) of managers or owners, efforts made

to remedy the wrong, overall record of compliance with FCC rules and policies, and rehabilitation.”

III. DISCUSSION

11. On the undisputed record before us, we find that revocation is warranted under section

312(a)(2) of the Act. Mr. Wahl was given the opportunity, pursuant to the Order to Show Cause, to

demonstrate that he is qualified to be and remain a Commission licensee, but he waived his right to a

hearing by failing to participate.

If Mr. Wahl’s initial license applications were now under review, the

Commission would reject them based on failure to satisfy the character requirement of section 308(b).

January 1986 Policy Statement, 102 F.C.C.2d at 1209-20, paras. 55-57.

See id. at 1189, 1232, paras. 21, 114; see also id. at 1210, para. 60 (“[T]he trait of ‘truthfulness’ is one of the two

key elements of character necessary to operate a broadcast station in the public interest.”); id. at 1211, para. 61

(“The integrity of the Commission’s processes cannot be maintained without honest dealing . . . by licensees.”);

1990 Policy Statement, 5 FCC Rcd at 3252, paras. 3-4 (willingness to violate other laws bears on propensity to

comply with Communications Act and Commission rules).

January 1986 Policy Statement, 102 F.C.C.2d at 1183, para. 7.

The term “non-FCC misconduct” refers to misconduct other than a violation of the Commission’s rules or the

Communications Act. January 1986 Policy Statement, 102 F.C.C.2d at 1183 n.11, para. 7.

See 1990 Policy Statement, 5 FCC Rcd at 3252, para. 4.

Id.

Id. at 3252, and 3254, n.3; 1991 Policy Statement, 6 FCC Rcd at 3448.

January 1986 Policy Statement, 102 F.C.C.2d at 1195-96, paras. 35-36.

Id.

1990 Policy Statement, 5 FCC Rcd at 3252, para. 5; January 1986 Policy Statement, 102 F.C.C.2d at 1227-29,

paras. 102-06.

Id.

See supra paras. 5-6.

Federal Communications Commission DA 23-304

Under section 312(a)(2), Mr. Wahl’s station license should thus be revoked because of conditions that

would warrant refusal to grant him a license in the first place.

12. Mr. Wahl’s conviction for criminal use of a communication facility, a third-degree

felony, by itself merits revocation of his license. Any felony conviction casts doubt on an applicant’s or

licensee’s character.

The propensity to comply with the law generally is relevant to character

qualifications, and an applicant or licensee’s willingness to violate other laws, and, in particular, to

commit felonies, is indicative of whether the applicant or licensee will conform to the Commission’s rules

or policies.

This conviction, which concerned acts intended to harm—and causing actual harm to—an

individual, disqualifies Mr. Wahl as a licensee on the basis of character defect.

13. Mr. Wahl’s four misdemeanor convictions form an independent basis for revoking his

license. The Commission has the discretion to consider serious misdemeanor convictions in appropriate

cases,

and this is such a case. Mr. Wahl pleaded guilty to an array of misdemeanor criminal offenses

(identity theft, unlawful dissemination of an intimate image, recklessly endangering another person, and

tampering with evidence) based on misconduct involving multiple actions over a period of time designed

to harm his victim. Mr. Wahl then sought to evade responsibility for those actions. We find that these

misdemeanor convictions directly implicate his character qualifications. In particular, the facts

surrounding his conviction for identity theft show him to be deceitful both because he concealed a camera

in the victim’s bathroom and because he then impersonated his victim on an online dating site. His

conviction for unlawful dissemination of an intimate image also shows him to be untruthful, as he

assumed the victim’s identity when disseminating her image—and these same deceitful acts formed the

basis for his conviction for recklessly endangering another person. Further, his conviction for tampering

with evidence by attempting to conceal his earlier misdeeds buttresses the conclusion that he is untruthful

and lacks the character to be a licensee.

14. We also find that Mr. Wahl’s station license should be revoked because of his attempt to

deceive another government agency, as evidenced by his conviction for tampering with evidence. Acts of

“concealment, evasion, and other failures to be fully informative” to a governmental unit equate to

fraudulent representations.

The facts supporting Mr. Wahl’s guilty plea state that Mr. Wahl deleted the

communications he made via the online dating site upon learning of the Pennsylvania State Police

investigation, and he likewise deleted the nude photos of the woman from his mobile phone.

These

efforts at concealment and evasion in the face of a government investigation merit revocation of his

license.

15. Thus, Mr. Wahl’s felony conviction, his misdemeanor convictions, and his fraudulent

misconduct before a government agency each establish that his character falls short of the standard

described in the Character Qualifications Policy Statement—particularly in light of the factors the

Commission considers when making such determinations.

His conduct was adjudicated to be entirely

willful, comprising a sequence of acts performed over time and calculated to harm his victim.

The court

47 U.S.C. § 312(a)(2).

See 1990 Policy Statement, 5 FCC Rcd at 3252, para. 4. See generally Contemp. Media, Inc. v. FCC, 214 F.3d

187 (D.C. Cir. 2000).

See 1990 Policy Statement, 5 FCC Rcd at 3252, para. 3.

Id. at 3252, and 3254, n.3; 1991 Policy Statement, 6 FCC Rcd at 3448.

January 1986 Policy Statement, 102 F.C.C.2d at 1195-96, paras. 35-36.

See Initial Order of the Court.

See 1990 Policy Statement, 5 FCC Rcd at 3252, para. 5; January 1986 Policy Statement, 102 F.C.C.2d at 1227-29,

paras. 102-06.

See Commonwealth of Pa. v. Wahl, Sentence of Court, No. 56-CR-0000952-2019 (Ct. of C.P., Somerset C’nty,

Pa. Nov. 16, 2020).

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in the criminal case acknowledged their seriousness of these acts.

And even though Mr. Wahl has

typically complied with FCC rules and policies, the record reflects no efforts by Mr. Wahl to remedy

these wrongs. As fewer than three years have passed since his convictions, the Commission cannot hold

that his character has been rehabilitated. Revocation of Mr. Wahl’s license is thus warranted pursuant to

section 312(a)(2) of the Act.

IV. ORDERING CLAUSES

16. Accordingly, IT IS ORDERED, pursuant to sections 308 and 312 of the

Communications Act, 47 U.S.C. §§ 308, 312, and sections 0.111 and 1.92 of the Commission’s rules, 47

CFR §§ 0.111, 1.92, and the Character Qualifications Policy Statement,

that the radio station license for

WQZS(FM), Meyersdale, Pennsylvania, held by Mr. Wahl is REVOKED, effective the fortieth (40th)

day after release of this Order, unless Mr. Wahl files a petition for reconsideration or application for

review within thirty (30) days of the release of this Order, in which case the effective date will be

suspended, pending further order of the Commission.

17. IT IS FURTHER ORDERED that the application for consent to assignment of license

for radio station WQZS(FM), Meyersdale, Pennsylvania (FCC File No. BALH-20200305AAH) will be

dismissed as moot once the revocation of the WQZS(FM) license becomes a final order.

18. IT IS FURTHER ORDERED that a copy of this ORDER OF REVOCATION shall

be sent by certified mail, return receipt requested, to:

Roger Wahl

128 Hunsrick Road

Meyersdale, PA 15552

FEDERAL COMMUNICATIONS COMMISSION

Loyaan A. Egal

Chief

Enforcement Bureau

See id. at 4.

See supra note 3.