Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554

In re Applications of ) ) Allbritton Communications Co. ) MB Docket No. 13-203 ) BTCCDT-20130809ACD For Consent to Transfer of Control of WJLA-TV, ) Washington, DC, to Sinclair Television Group, Inc. ) ) WRGT Licensee, LLC ) ) For Assignment of License of WRGT-TV, Dayton, Ohio, to ) BALCT-20031107AAU WRGT Licensee, LLC (New Nevada LLC) ) ) WVAH Licensee, LLC ) ) For Assignment of License of WVAH-TV, Charleston, WV, to ) BALCT-20031107ABB WVAH Licensee, LLC (New Nevada LLC) ) ) WTAT Licensee, LLC ) ) For Assignment of License of WTAT-TV, Charleston, SC, to ) BALCT-20031107ABM WTAT Licensee, LLC (New Nevada LLC) ) ) Cunningham Broadcasting Corporation (Transferor) and ) Sinclair Acquisition XIII, Inc. ) ) For Consent to Transfer of Control of Columbus (WTTE-TV) ) BTCCT-20031107AAF Licensee, Inc., licensee of WTTE-TV, Columbus, OH ) ) Cunningham Broadcasting Corporation (Transferor) and ) Sinclair Acquisition XIV, Inc. ) ) For Consent to Transfer of Control of Baltimore (WNUV-TV) ) BTCCT-20031107AAP Licensee, Inc., licensee of WNUV-TV, Baltimore, MD )

TO THE COMMISSION

APPLICATION FOR REVIEW

The Rainbow PUSH Coalition (“Rainbow PUSH”), pursuant to 47 U.S.C. §405 and 47

C.F.R. §1.115, respectfully applies for review of Allbritton Communications Co., MB Docket No. 13-203, DA 14-1055 (Media Bureau, released July 24, 2014) (“Allbritton”), insofar as the 2

Bureau failed to designate the above-referenced applications for evidentiary hearing.1 The Allbritton decision is in conflict with statute,2 regulation,3 and case precedent4 requiring designation for hearing when a substantial and material question of fact is presented; as well as established Commission policy disfavoring recidivism. Rainbow PUSH is an appropriate party to bring this matter to the Commission’s attention,5 and no jurisdictional issues prevent the Commission from reaching the merits.6 I. THE HISTORY OF THIS CASE This saga began in 1991 when Sinclair established a sham company, Glencairn Ltd., to hold licenses Sinclair was not permitted to hold under the duopoly rule, and to avail itself of the

1 In Allbritton, the Bureau denied a September 13, 2013 Petition to Deny (the “Rainbow PUSH 2013 Petition to Deny”) that was directed to the application for transfer of control covering WJLA-TV, Washington, DC (BTCCDT-20130809ACD) (the “D.C. Litigation”). The underlying allegations, which concern the basic qualifications of Sinclair Television Group, Inc., its parents, subsidiaries and affiliates (collectively “Sinclair”) have been before the Commission since 2003 in connection with BALCT-20031107AAU (covering WRGT-TV, Dayton, OH and the four other stations in the caption above (hereinafter, the “Dayton Litigation.”) Although the Allbritton decision states that this 2004 Petition for Reconsideration “remains pending” (id. at 5 n. 27), the Allbritton decision has apparently ruled on all of the issues raised by Rainbow PUSH in its March 29, 2004 Petition for Reconsideration in the Dayton Litigation. Therefore both the D.C. Litigation and the Dayton Litigation are both properly before the Commission for consideration by way of this Application for Review. 2 47 U.S.C. §309(e). 3 47 C.F.R. §73.3593. 4 E.g., Office of Communication of the United Church of Christ v. FCC, 359 F.2d 994, 1006 (D.C. Cir. 1966). 5 Rainbow PUSH is a non-profit civil rights organization whose mission includes the development of entrepreneurial and employment opportunities for people of color in the media and telecommunications industries, as well as the advancement of accurate, non-stereotypical news and other media content for, by and about people of color. Rainbow PUSH has participated in dozens of proceedings before the FCC over the past three decades, including adjudications and rulemakings focused on media ownership structure and its impact on diversity of viewpoints, content and ownership. Since 1998, Rainbow PUSH has been the principal party objecting to sham ownership structures developed and implemented by respondent Sinclair. 6 All pleadings in the D.C. Litigation and in the Dayton Litigation were timely filed. The Bureau found that Rainbow PUSH has standing. Allbritton at 8 ¶23. 3

(then) tax certificate policy.7 Glencairn’s purported principal was Sinclair employee Edwin Edwards, who as it happened had no material involvement in Glencairn, made no decisions favoring Glencairn’s interests over Sinclair’s, and had no knowledge of the most rudimentary elements of Glencairn’s operations, such as the price of a station Glencairn was acquiring. In 2001, ruling on a 1999 petition to deny by Rainbow PUSH, the Commission found that Edwards had unlawfully ceded control of Glencairn to Sinclair as part of a scheme by Sinclair to control more stations than permitted under the duopoly rule. The Commission fined Sinclair and Glencairn $40,000 each. Dissenting Commissioner Michael Copps would have designated the applications for hearing.8 When faced with such an unequivocal finding of ownership fraud, every law abiding licensee would have immediately expressed remorse and come into compliance. Sinclair, amazingly, did the opposite and created, in Glencairn’s place, a new and even more brazen fraudulent entity known as Cunningham Broadcasting Corp. To create Cunningham, Mr. Edwards was ejected from Glencairn and, in his place, Sinclair installed Mrs. Carolyn Smith (since deceased), the mother of the four brothers who control Sinclair. To manage Cunningham, Mrs. Smith hired the only person on the planet who a judge had found to be controlled by Sinclair; and during her tenure she made no decisions in Cunningham’s interest and only made decisions in Sinclair’s interest. Sinclair imposed on Cunningham the same stringent control protocols involving financing, staffing and programming as those that had characterized the

Sinclair/Glencairn relationship; all of these protocols worked to the disadvantage of Glencairn

7 Established in 1978 and repealed by Congress in 1995, the Tax Certificate Policy was designed to promote minority broadcast ownership. See Statement of Policy on Minority Ownership of Broadcast Facilities, 68 FCC2d 979, 983 (1978). To Rainbow PUSH’s knowledge, the Pittsburgh, PA station licensed to Glencairn was only instance of fraud in the history of the Tax Certificate Policy. 8 Glencairn Ltd., 16 FCC Rcd 22236, 22258 (2001), aff’d without reaching the merits in Rainbow/PUSH Coalition v. FCC, 330 F.3d 539 (D.C. Cir. 2003), rehearing denied, 2003 U.S. Lexis 18829 (September 10, 2003). 4 and to the advantage of Sinclair for no apparent legitimate business reason.9 Sinclair controlled every material element of Cunningham’s operation, operating as though Glencairn Ltd. had never been decided. In 2002 and again in 2003, Sinclair filed applications seeking approval to acquire five stations licensed to Cunningham, and requesting waivers of the Commission’s television duopoly rule in connection with those acquisitions.10 Rainbow PUSH challenged all of these applications. Now, 11 years later, the Commission at last has an opportunity to consider whether its largest television licensee, as a lawbreaker and serial recidivist, is entitled to be a licensee.11 In addition to the pleadings filed by Rainbow PUSH, Free Press placed in the record a copious and compelling report on Sinclair’s control of Cunningham.12 Rainbow PUSH concurs with Free Press’ report and incorporates it into the record before the Commission. II. WHY THE COMMISSION SHOULD REVERSE THE BUREAU’S DECISION In Allbritton, the Bureau maintained that Sinclair’s 2002-2003 behavior “had been favorably reviewed by the Commission in Glencairn Ltd.”13 Only it wasn’t. Instead, Glencairn

9 See Petition to Deny, And For Other Relief, BALCT-20031107AAU, et al., at 4-7 (filed Dec. 19, 2003) (“Rainbow PUSH 2003 Petition to Deny”) at 4-14. 10 See Application of WRGT Licensee, LLC, For Assignment of License of WRGT-TV, Dayton, Ohio et al., BALCT-20020718ABH et al. (filed July 18, 2002) (the “2002 Applications”); Application of WRGT Licensee, LLC, For Assignment of License of WRGT-TV, Dayton, Ohio, et al., BALCT-20031107AAU et al. (filed Nov. 7, 2003) (the “2003 Applications”); see Rainbow PUSH 2003 Petition to Deny. 11 It is unfortunate that the Bureau failed for 11 years to rule on allegations that the nation’s largest broadcast licensee was operating a sham enterprise in violation of the Commission’s duopoly rule – and then only ruled (in the most cursory and irrational way) on these allegations when they were reiterated in a petition to deny on which it had to rule because it was directed at a multi-million dollar merger. Rainbow PUSH, and the viewing public, deserved better. To be fair, it must be noted that the Bureau is understaffed. Still, this interminable a delay recalls former Broadcast Bureau Chief Dick Shiben’s 1976 “Deny the Petition Day.” 12 Derek Turner, Cease to Resist: How the FCC’s Failure to Enforce its Rules Created a new Wave of Media Consolidation, Free Press (October 2013). 13 Allbritton at 11 ¶32, citing Kathryn R. Schmeltzer, Esq., Letter, 19 FCC Rcd 3897, 3899-3900 (2004)) (“2004 Letter Decision”). On March 29, 2004, Rainbow PUSH petitioned for 5

Ltd. makes it crystal clear that the relationship between Sinclair and Glencairn was unlawful.14 The Bureau does not – nor could it - find that Sinclair’s behavior post-Glencairn Ltd. was any different from Sinclair’s behavior pre-Glencairn Ltd.; indeed Sinclair’s post-Glencairn Ltd. conduct was even more egregious than its pre-Glencairn Ltd. behavior. The Bureau also made short shrift of Free Press’ report. Without a word about the merits of the report, the Bureau simply noted that Sinclair had issued a press release critiquing the report.15 The Bureau’s ruling does not even meet the “rational basis” test and, if accepted as precedent, the ruling would make Commission enforcement of any rule virtually impossible. It is easy to see why. Suppose a motorist receives a ticket for driving 90 in a 55 mph zone. Later, upon being stopped for driving 110, she could say “your Honor, you didn’t revoke my license for driving 90, so I concluded that driving 110 would be OK.” And a broadcaster who failed to light both of its towers would have a complete defense: “you didn’t revoke my license when one tower wasn’t lit.”

reconsideration of the 2004 Letter Decision. Allbritton rules on all issues raised by Rainbow PUSH in that petition for reconsideration. 14 See Glencairn Ltd., 16 FCC Rcd at 22249-50 ¶¶23-24 (concluding that “a combination of facts” led to the conclusion that Sinclair exercised de facto control of Glencairn, including, inter alia, “the structuring of the Sullivan III transaction to allow Sinclair to pay almost all of the purchase price of the Sullivan III stations and Glencairn to obtain these stations at a small fraction of their value”; the creation of a “debtor-creditor relationship between Glencairn and Sinclair” and Glencairn’s agreement “to sell ball but two of Glencairn’s television stations to Sinclair immediately following adoption of the new multiple ownership rules” for “a small fraction of their value.” This “combination of facts” meant that “Edwards was not in control of Glencairn and passively permitted Sinclair to dictate the terms and conditions of the deal.” Id. at 22250 ¶27. These same factors – and more – also characterized Cunningham’s relationship with Sinclair. 15 See Allbritton at 6 ¶17. 6

This case is about one paramount issue: recidivism, and its close cousin, licensee credibility.16 Suppose an agency finds that a licensee broke the law, but only issues a forfeiture. Then it allows that party to break the same law again on the pretext that such recidivism was OK because the agency previously hadn’t revoked its licenses. If that is permitted, there can be no progressive discipline. Indeed, the basis for Commission enforcement of any rules will have been eviscerated since there will be no protection against serial violators.

16 In Allbritton, the Bureau also rejected, without a merits analysis, additional Rainbow PUSH allegations to the effect that Sinclair had, inter alia, misrepresented and withheld critical facts before the Commission, attempted to conceal or falsely report campaign contributions, and failed to disclose its material interest with respect to a news story. Allbritton at 10-12 ¶¶31-35; see Rainbow PUSH 2003 Petition to Deny at 8. Rainbow PUSH does not seek designation of these issues for hearing; administrative economy favors simply going to the heart of the matter, which is Sinclair’s unlawful control of Cunningham. Credibility, however, is always at issue in a hearing, and thus the HDO should affirm that, at the appropriate time, the ALJ should consider whether Sinclair’s history of unlawful and unseemly behavior before this agency and other tribunals requires the drawing of adverse inferences regarding Sinclair’s credibility. Two additional sets of pleadings filed since 2004 amplify upon and further develop the record on Sinclair’s credibility:

• the Nashville Tripoly Controversy of 2005, in which Rainbow PUSH and others alleged that Sinclair had essentially created the nation’s first medium market full power television tripoly through the use of an unlawful arrangement with a captive third party (see Application of Nashville License Holdings, LLC For Assignment of License of WNAB-TV, Nashville, TN, File No. BALCT- 20050721ABW (the “WNAB-TV Application”); and

• the Retransmission Consent Controversy of 2009, in which Rainbow PUSH filed, inter alia, a letter demonstrating that Sinclair was using its control of Cunningham to exercise unprecedented market power to artificially skew retransmission consent negotiations, to the detriment of consumers. Letter of Rainbow PUSH Coalition, Mediacomm Communications Corporation v. Sinclair Broadcast Group, Inc., CSR-8233-C and CSR-8234-M (December 11, 2009). Rainbow PUSH requests that the records associated with the 2002 Applications and the 2003 Applications, the WNAB-TV Application and Nashville Triopoly Controversy of 2005, and the 2009 Retransmission Consent Controversy, including all letters and pleadings, be associated with and incorporated by reference as a part of this docket. 7

III. THE ISSUES THAT SHOULD BE TRIED IN HEARING The Commission must reverse and designate the applications for hearing. In doing so, it should specify at least these three issues:

1. Whether, in light of Sinclair’s recidivism as expressed by its control of Cunningham, Sinclair and Cunningham are basically qualified to be broadcast licensees; and

2. If and only if Sinclair and Cunningham are basically qualified, whether Sinclair’s relationship to Cunningham, as documented by Rainbow PUSH and others, is predictive of whether Sinclair will impose on other companies with which it has LMAs, JSAs or SSAs, operating conditions that would violate the duopoly rule or not serve the public interest; and

3. If and only if Sinclair and Cunningham are basically qualified, whether Sinclair’s relationships to Cunningham and other third parties with which it has LMAs, JSAs and SSAs should be reformed to conform to the letter and spirit of the duopoly rule and to serve the public interest.

The Bureau states that a further order will address a continuing LMA violation in

Charleston, SC, one of the communities that is the subject of Rainbow PUSH’s 2003 Petition.

See Allbritton at 10 ¶30 and 12 ¶37. The Bureau does not describe the violation. The Charleston

(WTAT-TV) LMA is now before the Commission through this Application for Review.

Therefore, the Commission should call up to the 8th floor the Bureau’s hanging Charleston LMA issue and consider it in tandem with its consideration of this Application for Review.

IV. WHY THIS CASE IS OF PROFOUND IMPORTANCE This case has great importance, involving, as it does, the basic qualifications of America’s largest television broadcaster,17 and the uses and potential abuses of ownership structures – LMAs, JSAs and SSAs – that have long vexed the Commission and its staff. As NABOB

17 This Petition is not intended as an indictment of Sinclair Broadcasting Co., which has improved its EEO practices and has shown leadership in the development of mobile video technology and multichannel DTV technology. As Rainbow PUSH has noted, however, “[t]hese achievements, while not relevant to whether the case should be designated for hearing, are equitable factors that the Commission is permitted to weigh in determining the appropriate remedy when it reviews the record compiled in a hearing.” Rainbow PUSH 2013 Petition to Deny at 8. 8 recently pointed out, “the ongoing consolidation of ownership ... undermines the Commission’s ability to promote any improvement in minority ownership” in part because instruments like SSAs “often result in sham transactions in which the titular owner exercises no actual control.”18 Occasionally, an LMA, JSA or SSA can preserve service that might otherwise disappear, or can be structured to empower a new entrant, secure its independence from larger broadcasters, and thus promote diversity. Unfortunately, many JSAs and most SSAs afford the public few if any such benefits. NABET, the National Hispanic Media Coalition, the Office of Communication of the United Church of Christ, Inc., Free Press, and many others have made a powerful case that these devices generally reduce diversity. In light of these extraordinary equities, this case should be heard by the full Commission upon oral argument.

Respectfully submitted,

David Honig Law Office of David Honig 3636 16th Street N.W. #B-366 Washington, D.C. 20010 (202) 332-7005 [email protected]

Counsel for the Rainbow PUSH Coalition August 25, 2014

18 Letter of James Winston, Executive Director and General Counsel, NABOB, to Hon. Mignon Clyburn, MB Dockets 09-182 and 07-294 (filed September 9, 2013), at 1 and 2 n. 1.

CERTIFICATE OF SERVICE

I, David Honig, hereby certify that I have this 25th day of August, 2014, caused a copy of the foregoing “Application for Review” to be delivered by U.S. First Class Mail, postage prepaid, to the following:

Hon. Tom Wheeler Chairman Federal Communications Commission 445 12th St. S.W. Washington, D.C. 20554

Hon. Mignon Clyburn Commissioner Federal Communications Commission 445 12th St. S.W. Washington, D.C. 20554

Hon. Ajit Pai Commissioner Federal Communications Commission 445 12th St. S.W. Washington, D.C. 20554

Hon. Jessica Rosenworcel Commissioner Federal Communications Commission 445 12th St. S.W. Washington, D.C. 20554

Hon. Michael O’Rielly Commissioner Federal Communications Commission 445 12th St. S.W. Washington, D.C. 20554

William Lake, Esq. Chief, Media Bureau Federal Communications Commission 445 12th St. S.W. Washington, D.C. 20554

Jerald Fritz, Esq. Allbritton Communications 1000 Wilson Blvd., Suite 2700 Arlington, VA 22209 Counsel for Allbritton Communications Co.

Clifford Harrington, Esq. Pillsbury Winthrop et al. 2300 N St. N.W. Washington, D.C. 20037 Counsel for Sinclair Television Group, Inc.

______David Honig