FCC 90D-29 Federal Communications Commission Record 5 FCC Red No. 14

MONORE • LIVINGSTON RADIO ASSOCIATES Before the Federal Communications Commission Findings of Fact Washington, D.C. 20554 3. Monroe-Livingston Radio Associates (MLRA) is a general partnership organized pursuant to a written part­ nership agreement, executed August 14, 1987. under the laws of the State of New York. The partnership consists of MM Docket No. 88-309 one partner, Linda P. Savage who holds for comparative purposes. 70 percent of the equity. Prior to May 4, 1990, In re Applications of MLRA consisted of four partners with the following eq­ uity interests: Linda P. Savage ((0 percent), Robert C. MONROE-LIVINGSTON File No. BPH-870817MI Savage (10 percent), Robert M. Scott (15 percent) and RADIO ASSOCIATES Michael J. Johnson (5 percent). By amendment received on June 1, 1990, MLRA reports that on May 3, 1990, Mary Ann Hurlburt File No. BPH-870819NG Messrs. Scott and Johnson transferred their equity inter­ ests to Mr. Savage and withdrew from the application, and et al., d/b/a that Mr. Savage has also withdrawn. leaving Ms. Savage as HFH COMMUNICATIONS the only remaining partner. (See Order, released June 20, ASSOCIATES 1990 (FCC 90M-1776)).

For a Construction Permit for a Diversification New FM Station on Channel 397A 4. MLRA, as a legal entity, does not have any attrib- · Honeoye Falls, New York utable ownership interest, either legal or beneficial, direct or indirect, in any broadcast facility or any other outlet of mass communications. Ms. Savage is a limited partner (25 Appearances percent) in Radio Livingston, Ltd., the licensee of WYSL (AM) Avon, New York (MLRA. Ex. #1). In the event Timothy K. Brady on behalf of Monroe-Livingston Ra­ that MLRA's application is granted, Linda Savage will dio Associates (MLRA) and James L. Oyster on behalf of divest herself of her interest in WYSL (AM) (MLRA, Ex. Mary Ann Hurlburt et al., d/b/a HFH Communications #1). Associates (HFH). 5. A former principal of MLRA. Robert C. Savage is a general partner (50 percent) of Radio Livingston Ltd .. the licensee of WYSL (AM) Avon, New York, a limited part­ INITIAL DECISION OF ADMINISTRATIVE ner (22.5 percent) in American Paradise Television Ltd., LAW JUDGE JOSEPH P. GONZALEZ which is the sole shareholder of American Television. Inc .. the permittee of WVGI (TV). Charlotte Amalie. V.I. Issued: June 21, 1990; Released: July 2, 1990 Mr. Savage is also an officer and director of American Paradise Television, Inc. (MLRA, Ex. #1 ). In addition. he 1. By Hearing Designation Order released in this pro­ recently acquired an ownership interest in Clarion Pub­ ceeding on July 20. 1988, the applications of Monroe­ lications. Inc. which publishes The Clarion. a weekly Livingston Radio Associates and HFH Communications newspaper serving northern Livingston County. New Associates were designated for hearing on the following York (Order FCC 90M-447. released on March 9, 1990). issues: 1 Mr. Savage pledged to divest himself of all of these media interest in the event that MLRA is the successful ap­ plicant (MLRA. Ex. #1; Order FCC 90M-447. released on (I) To determine which of the proposals would, on March 9. 1990). a comparative basis, best serve the public interest: and Best Practicable Service (2) To determine. in the light of the evidence ad­ duced pursuant to the foregoing issues, which of the Linda P. Savage applications should be granted. 6. Linda P. Savage proposes to work full-time. a mint­ mum of 40 hours a week, as General Manager of the The Hearing Designation Order also required adduction of proposed station. She will be responsible for all phases of evidence of comparative coverage under the standard the station's operations. including overall supervision of comparative issue for the purpose of determining whether the station ·s employees. and she will oversee the continu­ a comparative preference should accrue to anyone of the ing ascertainment of community's needs and interests, applicants. formulate programming responsive to those needs and 2. A prehearing conference was held on October 7, interests. set station policy, and assure the station's com­ 1988, and hearing sessions were held in Washington. pliance with the Commission's rules and regulations. All D.C., on April 10 and 11. 1989. The record was closed on management level employees will report directly to her April 11, 1989 (Tr. 249). The record was reopened to (MLRA. Ex. #2). receive additional evidence and again closed by Order 7. Ms. Savage has. since May 1985, resided within the ( 89M -1409) released on May 11, 1989. primary service contour of MLRA's proposed station (MLRA. Ex. #2). Ms. Savage is currently employed as an Account Executive at WOKR-TV, Rochester, New York.

3942 5 FCC Red No. 14 Federal Communications Commission Record FCC 90D-29

Prior to serving in that position, she was a Saies Manager (5) A 50 percent general partner of Concord Broad­ at WYSL (AM), Avon, New York, and an Account Execu­ casting Associates, permittee of standard broadcast tive at WHEC-TV, Rochester. New York and WTAE station WNHA, Concord, New Hampshire. (AM). Pittsburgh, Pennsylvania (MLRA, Ex. #2). (6) A 49 percent stockholder, and director of Moreland Group. Inc., the 88 percent general part­ Auxiliary Power ner of Moreland Broadcast Associates, permittee of 8. MLRA will install and utilize auxiliary power gen­ television broadcast station WFYF (TV), Watertown, erating equipment at both its studio and transmitter sites New York and LPTV station Wi5AB, Watertown~ for the propose of providing continuous service to the New York. Mr. Kimble is also a one percent general community and service area in the event of a power partner of Moreland Broadcast Associates (BLRA. outage or other emergency situation requiring an auxil­ Ex. #7). iary power source (MLRA, Ex. #1). (7) A 49 percent general partner of AGK Commu­ nications Associates permittee of low power TV sta­ Conclusions of Law tion W13BK, State College, Pennsylvania (MLRA, 9. Ms. Savage will serve as full-time General Manager of Ex. #7); a 25 percent stockholder of Syracuse TV the proposed station. a position which entitles MLRA to a Corp .. permittee of low power TV station W18AL, quantitative integration credit of 70 percent. This credit is Syracuse, New York; the 100 percent individual qualitatively enhanced by Ms. Savage's residence since permittee of low power TV stations in Stroudsburg, 1985 within the service contour of the proposed station, Pottsville, Mansfield. State College and Carbondale. her gender, and her past broadcast experience. Pennsylvania (MLRA, Ex. #7). ( 8) Until September 4, 1987, when it was sold, Mr. Kimble was a 90 percent shareholder in Kimmanger HFH COMMUNICATIONS ASSOCIATES Communications, Inc., the licensee of WONY (FM), Ithaca. New York. Findings of Fact (9) A 51 percent shareholder in AGK Communica­ 10. HFH Communications Associates (HFH) is a limit­ tions. Inc .. the licensee of station WAQX-FM, Syra­ ed partnership. Mary Ann Hurlburt is the sole general cuse. New York until it was sold in October 1988 partner with a 25 percent equity interest. George Kimble. (MLRA. Ex. #7. Tr. 221). who is Ms. Hurlburt's brother. is the only limited partner. with 75 percent of the equity (HFH, Ex. #1: Tr. 79). ( iO) A 75 percent limited partner of KIC Radio. Craig L. Fox holds an option, which may be exercised at Ltd .. permittee of a new FM broadcast station in any time. to acquire one half of the limited partnership Clyde. New York, granted April 6, 1989 (MLRA, interest currently held by George Kimble (Tr. 132, Ex. #7). 205-132). (11) A 37.5 limited partner of Webster-Fuller Com­ munications Associates. applicant for a new FM Diversification broadcast station at Webster. New York (MLRA. Ex. ll. Neither HFH. as a legal entity, nor Mary Ann #7). 2 Hurlburt have any other media interests (HFH. Ex. #1). (12) The 75 percent limited partner of Lake County Monica Kimble. the wife of George Kimble. owns a 50 Broadcasting, L.P. permittee of a new FM broadcast percent interest in WYLF (AM). Penn Yan, 0/ew York station at Waterloo, New York (MLRA, Ex. #7). (Tr. 83-84. 221 ). Penn Yan is located approximately 30 miles from HFH's proposed transmitter site (MLRA. Ex. (13) An 80 percent limited partner of Williamsport #8. p. 2). George Kimble has the following media inter­ Television Associates. permittee of television broad­ ests: cast station WILF (TV).

Craig L. Fox has the following media interests: {1) A 31 percent general partner of WOLF TV Associates. L.P. which is the general partner of Scranton TV Partners. Ltd .. the licensee of television ( 1) A 31 percent general partner of WOLf-TV Asso­ station WOLF-TV. Scranton. Pennsylvania, the li­ ciates L.P. which is the general partner of Scranton censee of television station WWLF-TV, Hazelton, TV Partners, Ltd .. the licensee of television station Pennsylvania. and the permittee of LPTV station WOLF-TV. Scranton, Pennsylvania; the licensee of W32AE. Duboistown. Pennsylvania (MLRA, Ex. television stations WWLF-TV, Hazelton. Pennsylva­ #7). nia; and the permittee of LPTV station W32AE, Duboistown, Pennsylvania (MLRA. Ex. #9). (2) A 49 percent stockholder and Vice President of WOLF Radio. Inc .. the licensee of station WNYR (2) A 51 percent stockholder and president of (AM). Syracuse. New York (MLRA. Ex. #7). WOLF Radio. Inc., the licensee of WNYR (AM) Syracuse. New York (MLRA, Ex. #9). (3) A 50 percent general partner of Canton Broad­ casting Associates. permittee of WNYS (AM), Can­ (3) A 50 percent general partner of Canton Broad­ ton, New York (MLRA. Ex. #7). casting Associates. the permittee of WNYS (AM), Canton. New York (MLRA. Ex. #9). (4) The 50 percent general partner of Jamestown TV Associates. permittee of WTJA-TV. Jamestown. (4) A 50 percent general partner of Jamestown TV New York. Associates, permittee of WTJA-TV. Jamestown. New York (MLRA, Ex. #9).

3943 FCC 900-29 Federal Communications Commission Record 5 FCC Red No. 14

(5) A 50 percent general partner of Concord Broad­ Auxiliary Power casting Associates, permittee of standard broadcast 15. HFH proposes to install auxiliary power generators station WNHA, Concord, New Hampshire (MLRA, at the studio and transmitter sites to insure operation Ex. #9). during an emergency (HFH, Ex. #1). (6) A Vice President and a 49 percent stockholder Comparative Coverage and Director of Moreland Group, Inc. which is an 16. The parties have stipulated that neither of their 88 percent general partner of Moreland Broadcast proposals would provide service to unserved or Associates, permittee of television broadcasting sta­ underserved areas. The following table presents the popu­ tion WFYF (TV), Watertown, New York, and LPTV lation and area data for each applicant: station W25AB, Watertown, New York (MLRA, Ex. #9). Applicant Population Area (sq. km.) (7) A 38 percent general partner of Ithaca TV Asso­ ciates, permittee of television broadcast station MLRA 485,824 1,860.3 HFH 530,456 1,8H.O WACA-TV, Ithaca New York (MLRA, Ex. #9). (8) A Vice President and a 37.5 percent stockholder The population estimates for the two proposals differ by in Mohawk Valley Broadcasting, Inc., the licensee 44.632 persons. or 8.41 percent (Joint Engineering Ex­ of WTUV-TV, Utica, New York (MLRA, Ex. #9). hibit). (9) A 49 percent general partner of AGK Commu­ nications Associates permittee of low power station Conclusions of Law Wl3BK. State College. Pennsylvania; a 25 percent 17. HFH seeks a 100 percent quantitative integration stockholder of Syracuse TV Corp., permittee of low credit on the basis of its proposal to integrate its general power TV station Wl8AL, Syracuse, New York: the partner, Mary Ann Hurlburt into the affairs of the station. 100 percent individual permittee of low power TV The evidence of record indicates, however. that George stations in Syracuse, Nedrow, Fayetteville and Kimble, a 75 percent equity owner of HFH and Mrs. Cazenova, New York (MLRA, Ex. #9). Hurlburt's brother has played a major part in the prep­ (10) Until October 1988. Mr. Fox was a 49 percent aration and promotion of HFH's application which is stockholder of AGR Communications, Inc .. the li­ inconsistent with his status as a limited partner. Mr. censee of station WAQX-FM, Syracuse. New York Kimble actually contacted HFH's communications coun­ {MLRA, Ex. #9). sel (Tr. 100) who has had prior dealings with George Kimble and has represented him for approximately 20 (11) Holder of an option to acquire an interest in years (Tr. 100, 213 ). It was Mr. Kimble who suggested the KIC Radio, Ltd .. the permittee for a new FM station limited partnership format (Tr. 101), and. according to in Clyde. New York (Tr. 228); Lake County Broad­ Mrs. Hurlburt's testimony. she had approximately 5 or 6 casting, L.P.. permittee of a new FM station at meetings with Mr. Kimble regarding the application and Waterloo, Iowa (Tr. 231 ); and Williamsport Televi­ the limited partnership prior to the filing of HFH's ap­ sion Associates. the permittee of station WILF (TV). plication (Tr. 101 ). The technical portions of the applica­ Williamsport, New York (Tr. 232). tion were prepared by Craig Fox (Tr. 101) on Mr. Kimble's recommendation (Tr. 102). who also made the Best Practicable Service initial contact with Mr. Fox (Tr. 102). Mr. Fox recei.,·ed an option to acquire 50 percent of the limited partnership Mary Ann Hurlburt interest currently held by George Kimble in exchange for 12. Ms. Hurlburt will serve as Station Manager at these services (Tr. 205-06). This option can be exercised at· HFH's proposed broadcast facility working at least 40 any time. As of the date the application was filed and the hours a week. As Station Manager, she will be responsible dates of the hearing, Mrs. Hurlburt had never had any for and supervise all phases of the day-to-day operations contact with Mr. Fox (Tr. 103. 122). had not paid him. or of the station (HFH, Ex. #1). received any statement of account from him (Tr. 108). 13. Ms. Hurlburt currently lives in Farmington, New 18. HFH's partnership agreement was prepared by York which is located within the city grade contour of the HFH's local counsel. Steve Sundell (Tr. 119). Mr. Sundell proposed station. She has lived there for the past 11 years had never represented Mrs. Hurlburt before. but had and within HFH's proposed service area for a total of 25 performed professional services for George Kimble in the years. From 1986 to 1988, Ms. Hurlburt served as a past (Tr. 117-18, 214). Mrs. Hurlburt did not meet with volunteer with the Cub Scouts and participated in fund Mr. Sundell regarding the preparation of the limited part­ raising activities for that organization. In 1987, she served nership agreement. nor did she speak to him by tele­ for a brief period of time as a volunteer with the Salva­ phone (Tr. 119). Mrs. Hurlburt was unable to say whether tion Army (HFH. Ex. #1). or not Mr. Kimble spoke with him or whether he had any meetings with Mr. Sundell (Tr. 119) and although she 14. Ms. Hurlburt is currently employed as a part-time acknowledged that Mr. Kimble was present and partici­ salesperson at radio station WYLF, Penn Yan, New York. pated in the meeting with the transmitter site owner (Tr. Prior to 1988, she worked for approximately eight years as 103), she was unable to say whether or not he participated a full-time traffic manager and salesperson at station in the discussion (Tr. 104). She acknowledged, however, WCGR (AM)/WFLC (FM), Canandaigua, New York. that she discussed the programming and staffing proposals for the station with George Kimble (Tr. 105-106), and the station's budget (Tr. 105). The meetings between Mrs.

3944 5 FCC Red No.·l4 Federal Communications Commission Record FCC 90D-29

Hurlburt and Mr. Kimble which occurred prior to the RULINGS filing of HFH's application consisted of both face-to-face 25. IT IS ORDERED that unless an appeal from this meetings as well as telephone conferences (Tr. 106). Initial Decision is taken by a party, or the Commission 19. Between the time of the filing of the application reviews this Initial Decision on its own motion in accor­ and the taking of Mrs. Hurlburt's oral disposition in dance with the provisions of Section 1.276 of the Com­ January 1989, she testified that she had at least five addi­ mission's Rules. 47 C.F.R. 1.276, the application of tional meetings with Mr. Kimble regarding matters relat­ Monroe-Livingston Radio Associates (File No. BPH- ing to the application or the partnership (Tr. 121-122. 870817MI) for authority to construct a new FM station on 130). Some of these meetings were conducted over the ·channel 397A in Honeoye Falls, New York IS GRANT­ telephone and others at face-to-face meetings, some of ED; and the application of Mary Ann Hurlburt et al., which were held at Mr. Kimbles's home (Tr. 122). d/b/a HFH Communications Associates (File No. BPH- 20. The fact that Mrs. Hurlburt and Mr. Kimble are 870819NG), IS DENIED. 3 brother and sister and, therefore, presumed to have a close personal relationship does not preclude a finding FEDERAL COMMUNICATIONS COMMISSION that Mr. Kimble has acted in a manner inconsistent with his position as a limited partner. In fact this familial relationship strengthens the presumption raised by his active preparation in prosecuting this application, both before its filing and afterwards, that Mr. Kimble will Joseph P. Gonzalez continue to assist and advise his sister with respect to Administrative Law Judge matters dealing with the station in the event that HFH is the licensee. This close, family interdependency is further illustrated by the fact that Mrs. Hurlburt has, in the past. FOOTNOTES worked at a station owned in part by George Kimble's 1 wife and Mrs. Hurlburt's older brother, Russell Kimble The application of Sima Birach (File No. BPH-87081&MA) (Tr. 83-84). and at another station owned by the Kimble was also designated for hearing but was dismissed with prejudice family and managed by George Kimbfe (Tr. 85-86). The by Order (FCC 89M-1088) released on April 5. 1989. Presiding Judge concludes, therefore. that the evidence of 2 An Initial Decision released on May 15, 1990 granted the record demonstrates that the limited partner, George application of Webster-Fuller Communications Associates for a Kimble is not properly insulated. and that HFH is entitled new FM station to be licensed to Webster. New York. (See Order to ·a quantitative integration credit of only 25 percent FCC 90M-1749. released June 20. 1990.) which represents the extent of Mrs. Hurlburt's equity 3 In the event exceptions are not filed within 30 days after the interest in the venture. release, of this Initial Decision, and the Commission does not review the case on its own motion, this Initial Decision shall become effective 50 days after its public release pursuant to ULTIMATE CONCLUSIONS Section 1.276(d). 21. The quantitative integration credit awarded HFH is only 25 percent as compared to the 70 percent quantita­ tive integration credit awarded MLRA. No purpose would be served in determining whether or not either credit is entitled to any qualitative enhancements, since HFH would not be able to overcome MLRA's clear preference under this criterion. Accordingly, the Presiding Judge finds that MLRA is entitled to a substantial preference over HFH under the best practicable service criterion. 22. MLRA is also entitled to a substantial preference over HFH under the diversification criterion. Although Mrs. Hurlburt and HFH have no media interests. Mr. Kimble who has been found not to be properly insulated has extensive broadcast interests. as does the option hold­ er, Craig L. Fox. MLRA has no chargeable media interests in view of Ms. and Mr. Savage's divestiture commitments. 23. As noted above. there is less than a 10 percent difference in the overall population that would be served by the respective proposals. There being no substantial overall coverage advantage, neither party will receive any preference on the basis of comparative coverage. 24. The Presiding Judge concludes, therefore. that MLRA is the clear winner under both the diversification and best practicable service criteria, and that its proposal would best serve the public interest. Accordingly, MLRA's application for the Honeoye Falls, New York broadcast facility will be granted and that of HFH denied.

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