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.