FCC 96·132 Federal Communications Commission Record 11 FCC Red No. 8

to the public interest. Delta does not challenge the Com­ Before the mission's findings with regard to any of these former al­ Federal Communications Commission legations. Washington, D.C. 20554 3. In the application for review, Delta, citing the circumstances surrounding the recent modification request filed by the proposed buyer in connection with its other In re Application of FM station, WKDJ(FM), Clarksdale, Mississippi, raises the entirely new argument that the Commission's grap.t is in­ CAROL B. INGRAM consistent with the policy prohibiting an applicant from (Assignor) modifying the facilities of an existing station in order to permit it to acquire an additional station. See NewCity . Communications of Massachusetts, Inc., 10 FCC Red 4985, and File No. BALH - 941107GF 4987 (1995) appeal pending sub nom. WSB, Inc. v. FCC, No. 95-1289 (D.C. Cir.) (reversing grant of a modification ap­ RADIO CLEVELAND, INC. plication after finding that the "sole purpose of the modi­ (Assignee) fication application" was to circumvent the Commission's multiple ownership rules). Delta is prohibited from raising For Assignment of License of a new argument such as this in an application for review. WMJW(FM), Rosedale, Mississippi See Section l.115(c) of the Commission's rules, 47 C.F.R. Section l.115(c) ("No application for review will be grant­ ed if it relies on questions of fact or law upon which the MEMORANDUM OPINION AND ORDER designated authority has been afforded no opportunity to pass."). See also Kenny D. Hopkins, 5 FCC R~~ 6~4 (1990) Adopted: March 25, 1996; Released: April 5, 1996 (denying application for review where de mimmis overlap argument was raised for first time at application for review stage); Brent Buell, et al. v. WCBS-TV, 97 F~C 2d 55 (19~4) By the Commission: (denying application for review where Fairness Doctr_me argument was raised initially at the application for rev_1ew l. The Commission has under consideration: (1) an Ap­ stage). The application for review therefore must be denied. plication for Review filed on August 21, 1995 by Delta 4. We also note that the factual circumstance giving rise Radio, Inc. ("Delta"), licensee of stations WOHT(FM), to Delta's new assertions -- Radio Cleveland's October 18, Drew, Mississippi, and WDTL-FM and WDSK(AM), Clev~­ 1994 dismissal of WKDJ(FM)'s then-pending license ap~ Iand, Mississippi; and (2) an Opposition filed by Radio plication so that it could return the station to its prior site, Cleveland, Inc. ("Radio Cleveland") on September 5, 1995. and thereby achieve compliance with the multiple owner­ Delta requests review of the staffs action July 18, 1995 ship rules · respecting its subsequent acquisition of granting the above-captioned assignment application. Citing WMJW(FM) - could have been, but was not raised in the circumstances surrounding a modification request filed connection with Delta's original petition to deny filed . by the proposed buyer in connection with one of its FM against the November 7, 1994 assignment application. Del­ stations, WKDJ(FM), Clarksdale. Mississippi, Delta argues ta offers no explanation for this failure. Consequently, even that grant of the assignment application is contrary to the if Delta had filed a petition for reconsideration_ alleging the Commission's policy prohibiting the filing of modification same matters set forth in the application for review, Delta applications solely to permit compliance with the Commi~­ would not have met the requirements of 47 C.F.R. Section sion's _multiple ownership rules. Delta also alleges that 1.106(c), because the pleading fails to explain why the facts Radio Cleveland has abandoned an authorized upgrade for upon which it relies were not brought to the attention of WKDJ(FM) from a Class A facility to a Class C3 facility in the staff at an earlier stage of the proceeding. order to circumvent our multiple ownership rules. For the reasons set. forth below, we deny Delta's application for 5. Accordingly, IT IS ORDERED, That pursuant to Sec­ review and we affirm the staffs grant of the assignment tion l.l 15(g) of the Commission's Rules, 47 C.F.R. Section application. 1.l 15(g), the Application for Review filed by Delta Radio, Inc. on August 21, 1995 IS HEREBY DENIED. 2. Carol B. Ingram ("Mrs. Ingram") filed the captioned application to assign the license of WMJW(FM), R?~edale, Mississippi on November 7, 1994. Delta filed a pet1t1on to FEDERAL COMMUNICATIONS COMMISSION deny the application on January 13, 1995. Delta alleged that the assignment would place Radio Cleveland in viola­ tion of the local multiple ownership rules: that the parties had engaged in a premature transfer of control of the licensed station; and that Mrs. Ingram had violated the William F. Caton Commission's rules concerning the maintenance of the Acting Secretary station's main studio, public inspection file, and placement of local public notice. The staff found that the acquisition of WMJW would not place Radio Cleveland in violation of the multiple ownership rules. The staff examined ~elta's other allegations and further found that Delta Radio had failed to raise a substantial and material question of fact that grant of the assignment application would be contrary.

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