CASWELL CAPITAL PARTNERS, LLC and WAY-FM MEDIA GROUP, INC
Federal Communications Commission
Washington, D.C. 20554December 4, 2009
In Reply Refer to:
Released: December 4, 2009
Caswell Capital Partners, LLC
c/o Erwin G. Krasnow, Esquire
Garvey Schubert Barer
1000 Potomac Street, NW, 5th Floor
Washington, DC 20007
Gresham Communications, Inc.
c/o Dan J. Alpert, Esquire
The Law Office of Dan J. Alpert
2120 N. 21st Road
Arlington, Virginia 22201
WAY-FM Media Group, Inc.
c/o A. Wray Fitch, Esquire
Gammon & Grange, P.C.
8280 Greensboro Drive
McLean, Virginia 22102-3807
In re: WPAL-FM, Ridgeville, SC
Facility ID No. 25374
File No. BALH-20090306ACK
Application for Assignment of LicenseGentleman:
We have before us an application (the “Application”) for Commission consent to the assignment
of the license of Station WPAL-FM, Ridgeville, South Carolina, (the “Station”) from Caswell Capital
Partners, LLC (“Caswell”) to WAY-FM Media Group, Inc. (“WAY-FM).1 We also have before us an
April 10, 2009, Petition to Deny the Application2 (the “Petition”) filed by former licensee Gresham
Communications, Inc. (“Gresham”). For the reasons stated below, we deny the Petition and grant the
Background. Previously, Gresham petitioned for reconsideration of the staff’s grant of an
involuntary assignment of the Station from it to Charles W. Cherry, Receiver for Gresham
Communications, Inc. (“Receiver”)3 and petitioned to deny the voluntary assignment of the Station from
the Receiver to Caswell.4 The involuntary and voluntary assignments (collectively “Previous
1 File No. BALH-20090306ACK.
2 Caswell and WAY-FM filed a Joint Opposition to the Petition on April 27, 2009 (“Joint Opposition”), to which
Gresham filed a Reply on May 18, 2009 (“Reply”). Additionally, Caswell and WAY-FM submitted a Motion for
Leave to File Supplement (“Motion”) and a Supplement to the Petition on September 3, 2009 (“Supplement”).
3 File No. BALH-20070327AEK.
4 File No. BALH-20070406ADD.
Assignments”) arose out of Caswell’s private litigation, commenced in 2006, to collect on a judgment
against Gresham.5 On March 3, 2009, the Media Bureau (the “Bureau”) granted in part and denied in part
Gresham’s petitions, affirmed the grant of involuntary assignment, and granted the voluntary assignment
to Caswell.6 Subsequently, Caswell consummated the assignment of the Station and filed the current
Application. Gresham’s timely filed Application for Review of the Decision Letter remains pending.7
In the Petition, Gresham argues that the Application should be denied or a decision deferred until
the Commission acts on its Application for Review. Gresham contends that the Previous Assignments
violated Commission precedent and that while its appeal remains pending “it would be improper for the
Bureau to give its approval for a further assignment . . . [as it will only] complicate the ability for this
case to be un-wound.”8 Specifically, Gresham asserts that as part of the proceedings involving the
Previous Assignments, the Station’s license was improperly attached by the South Carolina Court of
Common Pleas (the “Court”), in violation of the Communications Act of 1934, as amended, (the “Act”),
and that the only asset transferred was the Station’s bare license. Additionally, citing Jefferson Radio Co.
v. FCC,9 Gresham declares that the Application cannot be granted because there are unresolved issues
concerning Caswell’s basic qualifications to be a Commission licensee. In particular, Gresham contends
that Caswell is unqualified to be a Commission licensee because it has engaged in misrepresentations
concerning ownership of certain physical Station assets that it had previously claimed were “used and
usable in the operation of WPAL-FM.”10
In the Joint Opposition, Caswell and WAY-FM (collectively “Respondents”) submit, as an
attachment, Caswell’s Opposition to Application for Review,11 filed in connection with the Previous
Assignments. 12 Respondents claim that Gresham’s Petition “contains – virtually verbatim – the identical
arguments it unsuccessfully propounded [against the Previous Assignments] . . . .”13 Gresham counters
that the Joint Opposition is procedurally defective and should be rejected.14 Lastly, Gresham notes that it
has submitted the Decision Letter to the Court “to allow [it] . . . to become aware that its ruling exceeded
permissible limits of the federal law.”15
5 See Letter to Charles W. Cherry, II, et. al., Letter, 24 FCC Rcd 2894 (MB 2009) (“Decision Letter”).
7 See Application for Review (filed Apr. 2, 2009).
8 Petition at 22.
9 340 F.2d 781 (D.C. Cir. 1964) (“Jefferson Radio”).
10 Petition at 21 (citation omitted).
11 Opposition to Application for Review (Apr. 17, 2009).
12 The Respondents state that they are doing so “to conserve Bureau resources” because Gresham raises arguments
identical to those previously considered and rejected by the Bureau. Joint Opposition at 3.
13 Joint Opposition at 2.
14 Gresham states that the Joint Opposition provided no response to the Petition to Deny, but instead, merely,
attempted to “incorporate by reference” the previously filed Opposition to Gresham’s Application for Review.
Gresham argues that such procedure is improper citing 47 C.F.R. §1.44. Reply at 2.
15 Id. at 13-14. Although not in response to Gresham’s filing of the Decision Letter with the Court, on September 2,
2009, the Court ordered Gresham to pay certain attorneys’ fees claimed by Caswell and the Receiver. See Ex Parte:
Saunders v. Gresham Communications of Walterboro, Inc., No. 92-CP-15-508, slip op. at 7 (SC Ct. of Com. Pleas.
Fourteenth Cir. Aug. 28, 2009). . In dictum, the Court stated that it “has ruled consistently that it was attaching the
proceeds of a sale of the WPAL-FM] license, after and conditioned upon approval of the transfer of the license by
the FCC . . . .” Id. at 2 note 1.
Discussion.Section 310(d) of the Act16 requires the Commission to determine whether the
proposed transfer or assignment of a broadcast license would be in the public interest. Pursuant to
Section 309(d)(1) of the Act,17 any party in interest may file a petition to deny an application. In order to
assess the merits of a petition to deny, a two-step analysis is required. First, the petition must make
specific allegations of fact sufficient to demonstrate that the petitioner is a party in interest and that a
grant of the application would be prima facie inconsistent with the public interest, convenience, and
necessity.18 This threshold determination is made by evaluating the petition and the supporting affidavits.
If the petition meets this threshold requirement, the Commission must then examine all of the material
before it to determine whether there is a substantial and material question of fact calling for further
inquiry and requiring resolution in a hearing.19 If no such question is raised, the Commission will deny
the petition and grant the application if it concludes that such grant otherwise serves the public interest,
convenience, and necessity. Using this standard, we will consider Gresham’s arguments.
We have previously rejected Gresham’s arguments regarding the propriety of the Court
proceeding in connection with the Previous Assignments.20 Gresham concedes as much by stating that
“[t]he matters raised in [its Petition] . . . are similar to certain issues raised in the earlier litigation . . . .”21
We will not revisit issues “merely for the purpose of again debating matters on which the tribunal has
once deliberated and spoken.”22 Those matters are pending before the full Commission, and we reject
Gresham’s and the Respondents’ attempts to reargue them before the staff.23 Therefore, we will not
revisit these issues as raised in the parties’ pleadings. Accordingly, in this proceeding only, we will also
deny the Respondents’ Motion and dismiss the Supplement, as the material contained in the Supplement
clearly pertains only to the Previous Assignments.24
We conclude that Gresham’s arguments regarding Caswell’s qualifications also are without merit.
In particular, we note that the primary finding in the Decision Letter was that there was no bare license
assignment due to the simultaneous conveyance of other Station assets: the public inspection file and
advertiser lists.25 These items were “sufficient assets to counter Gresham’s allegation” that the prior sale
constituted sale of a bare license.26 Lastly, because the Receiver and Caswell consummated the
assignment on March 3, 2009, Commission records indicate that the Station has been and is currently on-
the-air. Thus Caswell did, in fact, acquire or arrange for the use of sufficient technical facilities to operate
the Station. Accordingly, we need not consider further conflicting claims regarding the equipment that
Caswell acquired in the Station sale.27
16 47 U.S.C. § 310(d).
17 47 U.S.C. § 309(d)(1).
18 See id.; Astroline Communications Co. v. FCC, 857 F.2d 1556, 1561 (D.C. Cir. 1988).
19 47 U.S.C. § 309(d)(2).
20 See Decision Letter at 2-6.
21 Reply at 2.
22 WWIZ, Inc., Memorandum Opinion and Order, 37 FCC 685, 686 (1964), aff'd sub nom. Lorain Journal Company
v. FCC, 351 F.2d 824 (D.C. Cir 1965), cert. denied, 383 U.S. 967 (1966). See also Letter to Richard R. Zaragoza,
Esq. et. al., 24 FCC Rcd 5743, 5744 (MB 2009).
23 See Letter to Percy Squire, Esq. and Mark J. Prak, Esq., DA 09-1796 (MB rel. Aug. 12, 2009)(“Letter to Percy
Squire, Esq.”) (rejecting review of previously raised arguments in related proceedings).
24 A similar Motion and Supplement were also submitted by Caswell and the Receiver in opposition to Gresham’s
pending Application for Review of the previous assignments. Our action today does not affect the status of
Caswell’s and the Receiver’s filings in that proceeding.
25 Decision Letter at 5.
27 See Richard T. and Della R. Moring, Memorandum Opinion and Order, 11 FCC Rcd. 2333, 2334 (1996) (quoting
Finally, we turn to Gresham’s assertion that the Application should not be granted because the
Bureau’s grant of the Previous Assignments was “improper” and is under appeal. Gresham opines that it
will be difficult for the parties to undo an additional assignment should the Decision Letter be reversed.
We do not find this argument persuasive. It is well established that a decision to grant an assignment
application is merely a finding that the parties are qualified under, and the proposed transaction does not
violate, the Act, and the Commission’s Rules, and policies. Thus, a grant is permissive, not mandatory.28
When parties consummate after a grant is effective, but before it is “final,” they proceed at their own
peril, as the Commission or the courts may later require the sale to be undone. 29 Additionally, such
action by the parties does not prejudice the rights of objecting parties seeking administrative review or
judicial appeal of the Commission's action.30 All parties are on notice that, should Gresham’s appeal of
the grant of the previous applications be granted the Commission will take appropriate action regarding
the Station’s license. Accordingly, we find no impediment to our acting upon the instant Application
prior to finality of the Previous Assignments.31
Conclusions/Actions.Based on the evidence presented in the record, we find that Gresham has
failed to raise a substantial and material question of fact warranting further inquiry. We further find
WAY-FM to be fully qualified to be the licensee of Station WPAL-FM and that grant of the Application
will further the public interest, convenience, and necessity.
Accordingly, IT IS ORDERED, that the September 3, 2009, Motion for Leave to File Supplement
filed by Caswell Capital Partners, LLC and WAY-FM Media Group, Inc. IS DENIED and the
Supplement attached thereto IS DISMISSED.
IT IS FURTHER ORDERED that the April 10, 2009, Petition to Deny filed by Gresham
Communications, Inc., IS DENIED. IT IS FURTHER ORDERED, that the Application (File No. BALH-
20090306ACK) for consent to assign the license of Station WPAL-FM, Ridgeville, South Carolina, from
Caswell Capital Partners, LLC to WAY-FM Media Group, Inc., IS GRANTED.
Peter H. Doyle
Chief, Audio Division
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Broadcast Enterprises v. FCC, 390 F.2d 483, 485 (D.C. Cir. 1968) (contradictory allegations and affidavits which
create some possibly unresolved factual issue . . . do not invariably necessitate an evidentiary hearing) .
28 Cumulus Licensing, LLC, Letter, 21 FCC Rcd 2998, 3007 (MB 2006).
29 See Improvement Leasing Co., Memorandum Opinion and Order, 73 FCC 2d 676, 684 (1979), aff'd sub nom.
Washington Association for Television and Children v. FCC, 665 F.2d 1264 (D.C. Cir. 1981) (parties who
consummate a sale transaction before its approval becomes final assume the risk that the sale may later be set aside
by the Commission or the courts).
30 See Letter to Dennis P. Corbett, Esq. and Katrina C. Gleber, Esq., 22 FCC Rcd. 4795, 4797-98 (MB 2007).
31 See, e.g. Letter to Percy Squire, Esq., supra note 24, (granting voluntary assignments from receiver to other
parties while Application for Review pending against grant of involuntary assignments to receiver).
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