Before the Federal Communications Commission Washington, DC 20554

In the Matter of ) MB Docket No. 16-357 ) Entercom License, LLC ) Facility ID No. 65483 Applications for Renewal of License for ) File Nos. BRH-20050728AUU Station KDND(FM), Sacramento, California ) and BRH-20130730ANM

To: Marlene H. Dortch, Secretary Federal Communications Commission

Attn: Richard L. Sippel Chief Administrative Law Judge

OPPOSITION TO PETITION TO ENLARGE ISSUES BY MEDIA ACTION CENTER AND SUE WILSON

Entercom License, LLC (“Entercom”), pursuant to 47 C.F.R. § 1.294(c)(1), hereby opposes the Petition to Enlarge Issues (the “Petition”) filed by Media Action Center and Sue

Wilson (collectively, “MAC”).1

The Petition urges the Presiding Judge to enlarge the hearing in three ways: (1) designate

five additional renewal applications for hearing to determine whether Entercom failed to

properly train and supervise its staff at these stations, whether Entercom operated these stations

in the public interest during their license terms, and whether the renewal applications should be

granted; (2) designate a character qualification issue against Entercom with regard to Station

KDND(FM) and these other five stations; and (3) designate a reporting issue under Section

73.3588.2 The Petition, however, utterly fails to present a basis sufficient to justify the Presiding

Judge taking any of these actions. Indeed, the Petition is little more than a collateral attack on

1 Petition to Enlarge Issues by Media Action Center and Sue Wilson, MB Docket No. 16-357 (filed Jan. 9, 2017) (“Petition”). 2 Id. at 14-15 (proposed issues (j) – (n)).

the KDND HDO, asking the Presiding Judge to revisit and reverse legal determinations made by the Commission after careful deliberation.3 As MAC states, the Petition is based on the same facts already before the Commission, as well as issues already considered and ruled on by the

Commission.4 MAC simply disagrees with the Commission’s findings and interpretation of 47

U.S.C. § 309(k).5 For these reasons, and as discussed below, it would be wholly inappropriate for the Presiding Judge to designate for hearing MAC’s proposed issues (j) – (n) and the

Presiding Judge should deny the Petition.

I. ADDITIONAL RENEWAL APPLICATIONS SHOULD NOT BE DESIGNATED FOR HEARING.

The Petition asks the Presiding Judge to designate for hearing the then-pending renewal applications for Stations KUDL(FM), KIFM(AM), KKDO(FM), KRXQ(FM), and KSEG(FM) to determine whether Entercom failed to properly train and supervise its staff at these stations, whether Entercom operated these stations in the public interest during their license terms, and whether the renewal applications should be granted.6 This request is effectively moot because yesterday, January 18, 2017, the Media Bureau granted the renewal applications for these five stations.7 For the Presiding Judge to attempt to exercise authority over renewal applications that have been granted would be extraordinary and wholly unwarranted.

There is no provision in the Communications Act or the Commission’s delegated authority rules authorizing Administrative Law Judges (“ALJs”) to designate renewal

3 Entercom License, LLC, 31 FCC Rcd 12196, 12207-08 ¶ 28 (2016) (“KDND HDO”). 4 Petition at 1. 5 Id. at 6. 6 Id. at 14-15 (proposed issues (j) - (l)). 7 See Letter from Peter H. Doyle, Chief, Audio Division, Media Bureau, Federal Communications Commission, to Dennis J. Kelley, Esq. et al., 1800B3-JM (Jan. 18, 2017), http://licensing.fcc.gov/cgi- bin/prod/cdbs/forms/prod/getimportletter_exh.cgi?import_letter_id=71468.

applications for hearing in the first place. The Presiding Judge has broad authority to administer matters designated for hearing, but nothing in the authority delegated to ALJs authorizes a

Presiding Judge (or the Chief ALJ) to exercise jurisdiction over renewal applications unless and

until the applications have been designated for hearing.8 This is the case even with regard to

proceedings involving the same applicant or similar issues. The Chief ALJ has authority to

consolidate proceedings involving the same applicant or similar issues only after the proceedings

have been designated for hearing.9 In short, there is no basis for the Chief ALJ to reach out and exercise jurisdiction over renewal applications that have been granted and not designated for

hearing.

For these reasons, the Presiding Judge should decline to designate MAC’s proposed

issues (j) - (l).

II. THE PRESIDING JUDGE SHOULD NOT TO DESIGNATE A CHARACTER QUALIFICATIONS ISSUE.

MAC’s proposed issue (m) relates to whether Entercom possesses the requisite character

qualifications to hold licenses for to Stations KDND(FM), KUDL(FM), KIFM(AM),

KKDO(FM), KRXQ(FM), and KSEG(FM).10 There is no basis for the Presiding Judge to designate any issue with respect to Stations KUDL(FM), KIFM(AM), KKDO(FM), KRXQ(FM),

and KSEG(FM). The Media Bureau has granted these renewal applications, effectively finding

Entercom to be qualified to hold broadcast licenses.11

8 See 47 C.F.R. §§ 0.151 (functions of the Office of ALJs), 0.341 (authority of ALJs), 0.351 (authority of Chief ALJ). In contrast, the Media Bureau has authority to “[p]rocess applications for . . . renewal of media services . . . .” Id. § 0.61(a). 9 Id. § 0.351(i). 10 Petition at 15 (proposed issue (m)). 11 See supra note 7.

With respect to Station KDND(FM), MAC had previously requested the Commission to designate a character issue against Entercom and the Commission declined to do so. As the

Commission explained, this outcome is dictated by the express language of Section 309(k)(1) of the Act, which limits the Commission’s consideration of a renewal application to consideration of the licensee’s operation of the station for which license renewal is sought.12 The Commission reasoned, “The limited scope of our review of renewal applications under the Act does not include consideration of questions of character that do not involve serious violations of the Act or Rules.”13 The Commission found no basis for designating a character issue in this case.14

Although some petitions to enlarge, or other interlocutory pleadings, may have the appearance of seeking reconsideration of the Commission’s hearing designation issues, the

Commission has expressed confidence that its “subordinate officials will exercise good judgment in these situations and that they will not, in the face of a clear record showing our thorough consideration of the particular question at the time of designation, so rule as to undo what we

12 47 U.S.C. § 309(k)(1) (“If the licensee of a broadcast station submits an application to the Commission for renewal of such license, the Commission shall grant the application if it finds, with respect to that station, during the preceding term of its license . . .”) (emphasis added); KDND HDO, 31 FCC Rcd at 12208 ¶ 28 (“for renewal purposes, Section 309(k)(1) limits the scope of our review to the station for which license renewal is being considered.”); Visionary Related Entm’t, LLC, 27 FCC Rcd 1392, 1396 ¶ 13 (MB 2012) (“The plain language and structure of [Section 309(k)] clearly establish that the scope of the ‘violations’ listed in Section 309(k)(1) is limited to the station for which license renewal is being considered. Congress has expressly limited the scope of the license renewal inquiry to matters occurring at the particular station for which license renewal is sought. We will therefore consider each station individually.”). 13 KDND HDO, 31 FCC Rcd at 12209-10 n.122. The Commission reiterated this principle in a separate order issued the same day declining to designate other Entercom stations for a renewal hearing based on the KDND contest. Entercom License, LLC, 31 FCC Rcd 12034, 12036 n.13 (2016) (the Commission “cannot[] override the statutory limitation that, in acting on a renewal application, the Commission is limited to consideration of the licensee’s operation of the station for which license renewal is sought.”). 14 KDND HDO, 31 FCC Rcd at 12209-10 n.122. Cf. Edward R. Stolz II v. FCC, U.S. Court of Appeals for the District of Columbia Circuit, No. 16-1248, Brief for Appellee at 30 (filed Dec. 15, 2016) (“Contrary to Royce’s suggestion, Entercom’s qualifications to be the licensee of KUDL are not at issue in the FCC proceeding, which instead concerns whether to renew the KDND license.”) (citing KDND HDO, 31 FCC Rcd at 12229 ¶ 83)).

have done.”15 Indeed, where “there has been a thorough consideration of a particular issue in a

Designation Order, the Commission’s judgment is the law of the case in the absence of any new

facts.”16

Under these standards, the Presiding Judge should not seek to substitute his judgment for

that of the Commission. Parties raised the possibility of designating a character issue before the

Commission, the Commission evaluated that question, and declined to designate a character

issue, carefully explaining its reasons for not doing so.17 The Commission went a step further to

explain that it would not initiate a revocation proceeding to address Entercom’s character

qualifications. The Media Bureau has now reconfirmed Entercom’s qualifications as a broadcast

licensee by granting the renewal applications for Stations KUDL(FM), KIFM(AM),

KKDO(FM), KRXQ(FM), and KSEG(FM). The Petition does not introduce any new facts or

arguments that warrant the Presiding Judge to reverse the Commission here.

For these reasons, the Presiding Judge should not designate MAC’s proposed issue (m)

for hearing.

15 Fidelity Radio, Inc., 1 F.C.C.2d 661, 662 ¶ 4 (1965). 16 Simon Geller, 90 F.C.C.2d 250, 266 n.75 (1982) (citing Atlantic Broadcasting Co., 5 F.C.C.2d 717 (1966)). Accord, Tri-State Broadcasting Co., 5 FCC Rcd 1156, 1173 ¶ 118 (Rev. Bd. 1990) (“Finally, the Board may not entertain Tri-State’s argument that the ALJ erred in refusing to add a financial issue against G&C (or a collateral misrepresentation issue). This matter was discussed in the HDO, and neither the ALJ nor the Board may second-guess a matter fully considered and resolved in a hearing designation order.”). 17 KDND HDO, 31 FCC Rcd at 12209-10 n.122. See also id. at 12201 ¶ 11 (“MAC urges that the Applications be designated for a hearing to determine whether Entercom has the basic character qualifications to remain a Commission licensee.”) (citation omitted).

III. MAC’S READING OF SECTION 309(K) IS INCORRRECT AND DOES NOT SUPPORT DESIGNATING NEW ISSUES IN THIS HEARING.

MAC does not agree with the Commission’s interpretation of Section 309(k), arguing that, properly read, Section 309(k) supports designating new issues in this hearing.18 As discussed above, it would be inappropriate for the Presiding Judge to reverse the Commission’s legal judgments here. In any event, MAC is wrong as a matter of law.

Section 309(k) provides in pertinent part:

If the licensee of a broadcast station submits an application to the Commission for renewal of such license, the Commission shall grant the application if it finds, with respect to that station, during the preceding term of its license –

(A) the station has served the public interest, convenience, and necessity;

(B) there have been no serious violations by the licensee of this Act or the rules and regulations of the Commission; and

(C) there have been no other violations by the licensee of this Act or the rules and regulations of the Commission which, taken together, would constitute a pattern of abuse.19

The Commission reads the “with respect to that station” language as modifying each of the following subsections (A) – (C), such that Section 309(k)(1) limits the scope of its review to the station for which license renewal is being considered.20

MAC disagrees, arguing that the legislative history conflicts with the Commission’s interpretation of Section 309(k). Specifically, MAC asserts that the passing reference in the legislative history to “violations by the licensee” along with its bracketed interpretation of other

18 See Petition at 6. 19 47 U.S.C. § 309(k) (emphasis added). 20 See supra notes 12 and 13.

language in the legislative history is sufficient to allow the Presiding Judge to reverse the

Commission’s own interpretation of Section 309(k).21

The legislative history does not bear the weight MAC would give it. The structure and

language of Section 309(k)(1) make clear that the phrase “with respect to that station” was

intended to modify the three subsections of Section 309(k)(1) – (A), (B), and (C) – that follow

the introductory language. The fact that the legislative history does not include the modifying

phrase “with respect to that station,” does not, as MAC suggests, indicate that Section 309(k)

does not limit the Commission’s consideration of a broadcast renewal application to the

licensee’s operation of the station for which license renewal is sought. To the contrary, the

statutory language “represents the clearest indication of Congressional intent”22 and necessarily

trumps any potentially contrary legislative history, absent any ambiguity or an absurd or

unreasonable result.23

IV. MAC’S ALLEGATION OF A REPORTING VIOLATION UNDER SECTION 73.3588 OF THE RULES IS MISPLACED.

MAC’s proposed issue (n) relates to whether Entercom violated Section 73.3588 of the rules for failing to disclose all the terms of Entercom’s Settlement Agreement with Jennifer

21 Petition at 7-8. MAC’s citation to Walton Broadcasting Inc. (KIKX), 78 F.C.C.2d 857 (1980), is likewise inapposite. Petition at 9. That case was decided 16 years before Congress enacted Section 309(k) as part of the Telecommunications Act of 1996, and thus deals with different broadcast license renewal standards. 22 Nat’l Pub. Radio, Inc. v. FCC, 254 F.3d 226, 230 (D.C. Cir. 2001). 23 See, e.g., American Civil Liberties Union v. FCC, 823 F.2d 1554, 1568 (D.C. Cir. 1987), cert. denied, 485 U.S. 959 (1988) (“The general interpretive principle - a reluctance to rely upon legislative history in construing an unambiguous statute - is of especial force where, as here, resort to legislative history is sought to support a result contrary to the statute’s express terms.” (emphasis in original)); Elm City Broadcasting Corp. v. United States, 235 F.2d 811, 816 (D.C. Cir. 1956) (“It is elementary in the law of statutory construction that, absent ambiguity or an absurd or unreasonable result, the literal language of a statute controls and resort to legislative history is not only unnecessary but improper.” (citing United States v. Missouri Pac. R. Co., 278 U.S. 269 (1929)).

Strange’s family related to their civil lawsuit.24 Section 73.3588 does not pertain to the

settlement agreement and the Presiding Judge should not designate MAC’s proposed issue (n).

Section 73.3588 provides in pertinent part:

Whenever a petition to deny or an informal objection has been filed against any application, and the filing party seeks to dismiss or withdraw the petition to deny or the informal objection, either unilaterally or in exchange for financial consideration, that party must file with the Commission a request for approval of the dismissal or withdrawal, a copy of any written agreement related to the dismissal or withdrawal, and an affidavit . . . .25

The Strange family, however, did not file a petition to deny or an informal objection in this

proceeding. On January 22, 2007, the Strange family filed a letter with then-Chairman Martin.26

The Commission treated that submission as a complaint to be handled by the Enforcement

Bureau27 and Ms. Strange’s family subsequently withdrew that complaint.28 The submission was not treated as petition to deny or informal objection in the KDND(FM) renewal application proceeding. Thus, given that Ms. Strange’s family did not file and withdraw either a petition to deny or informal objection to the KDND(FM) renewal application, Section 73.3588 did not pertain to the Strange family’s withdrawal letter.

24 Petition at 15 (proposed issue (n)). 25 47 C.F.R. § 73.3588 (emphasis added). 26 KDND HDO, 31 FCC Rcd at 12200 ¶ 9, n.30 (citing Letter from Roger A. Dreyer, Esq., to Kevin J. Martin, Chairman, Federal Communications Commission (Jan. 22, 2007)). 27 Letter from Benigno E. Bartolome, Deputy Chief, Investigations and Hearings Division, Enforcement Bureau, Federal Communications Commission, to John C. Dunleavie, Executive Vice President and General Counsel, Entercom Sacramento License, LLC, File No. EB-07-IH-3992 (Jan. 31, 2007). See also KDND HDO, 31 FCC Rcd at 12200 ¶ 9, n.30 (describing the Strange Family submission as a “complaint.”). 28 Id. at 12200 ¶ 10, n.38 (citing Letter from Roger A. Dreyer, Esq., Counsel for the family of Jennifer Strange, to P. Michele Ellison, Chief, Enforcement Bureau, Federal Communications Commission, File No. EB-07-IH-3992 (Nov. 9, 2009)).

Further, even if Section 73.3588 did apply to the Strange family’s withdrawal letter, the

rule imposes no obligation on Entercom. Section 73.3588 expressly imposes obligations only on

the party that filed the petition to deny or informal objection and not the applicant. Thus, even if

there was a violation of Section 73.3588 here, which there was not, that violation would rest with

the Strange family and not Entercom. In short, there is no material question of fact regarding

whether Entercom violated Section 73.3588 because it could not do so.

The Presiding Judge should therefore decline to designate for hearing MAC’s proposed

issue (n) and should deny the Petition.

V. CONCLUSION

For the foregoing reasons, the Presiding Judge should deny the Petition in its entirety.

Respectfully submitted,

ENTERCOM LICENSE, LLC

By: /s/ David H. Solomon Jane E. Mago David H. Solomon Special Counsel J. Wade Lindsay ENTERCOM COMMUNICATIONS CORP. Jennifer L. Oberhausen 4154 Cortland Way WILKINSON BARKER KNAUER, LLP Naples, FL 34119 1800 M Street NW, Suite 800N 703.861.0286 Washington, DC 20036 202.783.4141

Steven A. Lerman LERMAN SENTER, PLLC 2001 L Street, NW, Suite 400 Washington, DC 20036 202.429.8970

Its Attorneys

Date: January 19, 2017

CERTIFICATE OF SERVICE

I, Blake A. Zanardi, hereby certify that on this nineteenth day of January, 2017, copies of the attached Media Action Center and Sue Wilson’s Petition to Enlarge issues were served via email to the following:

Travis LeBlanc Michael Couzens Chief, Enforcement Bureau 6536 Telegraph Avenue, Suite B201 Federal Communications Commission Oakland, CA 94609 445 12th Street, SW [email protected] Washington, DC 20554 [email protected]

Pamela A. Kane The Honorable Richard L. Sippel Michael Engel Chief Administrative Law Judge Federal Communications Commission Office of Administrative Law Judges 445 12th Street, S.W., Room 4-C330 Federal Communications Commission Washington, DC 20554 [email protected] [email protected] [email protected]

Rachel Funk Patricia Ducksworth Attorney Advisor Legal Technician Office of Administrative Law Judges Office of Administrative Law Judges Federal Communications Commission Federal Communications Commission [email protected] [email protected]

/s/ Blake A. Zanardi Blake A. Zanardi