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FCC Disposes Of AFR Regarding WBLS(FM) And WLIB(AM), New York, NY.

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Released: June 10, 2014
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Federal Communications Commission

FCC 14-83

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of

)

)

Urban Radio I, L.L.C., Debtor-in-Possession

)

and YMF Media, New York Licensee LLC for

)

Consent to Assign Licenses

)

File Nos. BAL-20120430ADH, et seq.

)

WBLS(FM), New York, NY

)

Facility ID No. 28203

WLIB(AM), New York, NY1

)

Facility ID No. 28204

MEMORANDUM OPINION AND ORDER

Adopted: June 9, 2014

Released: June 10, 2014

By the Commission:

1.

In this Memorandum Opinion and Order, we dismiss in part and deny in part the

October 12, 2012, “Application for Review” (“AFR”)2 filed pro se by Bob Law, Michael D. North, Betty

Dopson and New York City Councilman Charles Barron (collectively, the “Petitioners”).3 Petitioners

seek review of the Media Bureau’s (the “Bureau”) September 12, 2012, decision denying their May 29,

2012, Petition to Deny (“Petition”) and approving the captioned applications (collectively, the

“Applications”) to assign two New York radio stations (collectively, the “Stations”), as well as 13 others

in South Carolina, Mississippi and California from the commonly-controlled assignors (collectively,

“Urban Radio”) to the commonly-controlled assignees (collectively, “YMF”).4

2.

Under Section 1.115(a) of the Commission’s rules (“Rules”) and Section 5(c)(4) of the

Communications Act of 1934, as amended (the “Act”), an applicant for review must be a “person

1 The license assignments for the captioned stations proposed in the captioned applications were consummated on

October 22, 2012. See October 26, 2012, “Opposition to Application for Review” of YMF Media New York

Licensee LLC (“Opposition”) at 1. Currently, pending are applications for the further assignment of those licenses

stations from YMF Media, New York Licensee LLC (“YMF Media New York”) to WBLS-WLIB License LLC. See

File Nos. BAL-20140221AAQ, et seq.

2 47 C.F.R. §1.115(f) provides that applications for review “shall not exceed 25 double-space typewritten pages.”

Here, the AFR is 34 double-spaced pages, not including its Table of Contents, Summary of the Argument, or the

attached Declarations and Exhibits. See 47 C.F.R. §1.48(a). Petitioners request a waiver of the page-limit rule in

the A4R because the AFR addresses “important public policy issues . . . .”2

AFR at 1. Because we consider below

and reject all the arguments raised in the AFR on other grounds, we need not address the waiver request.

3 On October 26, 2012, YMF New York filed its “Opposition.” On November 16, 2012, Petitioners untimely filed a

“Reply to Opposition to Application for Review” (“Reply”). In the Reply, Petitioners requested “an exception to the

ten-day reply provision of 47 C.F.R. § 1.115(d) by reason of the interruption in electricity to . . . [Bob Law] caused

by Hurricane Sandy.” Reply at 1. Because we are dismissing the AFR for reasons not addressed in the Reply, we

need not rule on this request.

4 See Staff Decision. The Staff Decision also denied the June 4, 2012 “Petition to Deny” filed by New York resident

Lloyd Douglas, who did not appeal this Decision.

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Federal Communications Commission

FCC 14-83

aggrieved” by an action taken pursuant to delegated authority.5 To show that it is “aggrieved” by an

action, an applicant for review must demonstrate a direct causal link between the challenged action and

the alleged injury to the applicant, and show that the injury would be prevented or redressed by the relief

requested.6 In the broadcast regulatory context, standing is generally obtained in one of three ways: (1) as

a competitor in the market suffering signal interference; (2) as a competitor in the market suffering

economic harm; or (3) as a resident of the station's service area or regular listener of the station.

Although the caption of the AFR references only the applications for approval of the assignment of New

York Stations WBLS(FM) and WLIB(AM), the text of the pleading also seeks review of the Staff

Decision as it relates to the applications for assignment of the remaining 13 stations, located in South

Carolina, Mississippi and California, from Urban Radio affiliates (as debtors-in-possession) to YMF

Media New York affiliates.7 Although, in the AFR, each of the Petitioners represents that he or she

resides within the city grade contours of the New York stations,8 there is no showing of standing to seek

review of the Bureau’s approval of the assignment of the South Carolina, Mississippi or California

stations: none of the Petitioners alleges competitive harm or signal interference, or claims to be a listener

of the station. Moreover, Petitioners have failed to demonstrate a causal link between any claimed injury

and the grants at issue. For all of these reasons, Petitioners have failed to identify a direct economic or

other connection between their interests and the Bureau’s grants of the South Carolina, Mississippi or

California assignment applications. Therefore, we dismiss, for lack of standing, the Application for

Review to the extent that it challenges the Bureau’s grant of those applications.

3.

In the AFR, Petitioners improperly raise for the first time9 that the Staff Decision violates

the United States Constitution’s Equal Protection Clause; the Fifth Amendment; the United States Court

of Appeals for the Third Circuit decision in Prometheus Radio Project v. FCC;10 and ignores the alleged

disparate racial impact caused by grant of the Applications.11 Petitioners have failed to provide any

explanation as to why they did not raise these arguments previously before the Bureau. Because

5 47 U.S.C. § 155(c)(4); 47 C.F.R. § 1.115(a) (“Any person aggrieved by any action taken pursuant to delegated

authority may file an application requesting review of that action by the Commission . . . Any application for review

which fails to make an adequate showing in this respect will be dismissed.”).

6 See, e.g., Applications of AT&T Inc. and Deutsche Telecom AG for Consent to Assign or Transfer Control of

Licenses and Authorizations, Memorandum Opinion and Order, 27 FCC Rcd 4423, 4425 (2012); Applications of

WINV, Inc. and WGUL-FM, Inc. for Renewal and Assignment of License of WINV(AM), Inverness, Florida,

Memorandum Opinion and Order, 14 FCC Rcd 2032, 2033 (1998).

7 See Urban Radio II, L.L.C., Debtor-in-Possession and YMF Media South Carolina Licensee, LLC for Consent to

Assign Licenses for Stations WOIC(AM), Columbia, SC (Facility ID No. 73370), WARQ(FM), Columbia, SC

(Facility ID No. 58400), WHXT(FM), Orangeburg, SC (Facility ID No. 50522), WMFX(FM), St. Andrews, SC

(Facility ID No. 19471), and WWDM(FM), Sumter, SC (Facility ID No. 58398), File Nos. BAL-20120430ADJ, et

seq.; Urban Radio II, L.L.C., Debtor-in-Possession and YMF Media Mississippi Licensee, LLC for Consent to

Assign Licenses for Stations WOAD(AM), Jackson, MS (Facility ID No. 50404),WJQS(AM), Jackson, MS

(Facility ID No. 50409),WJMI(FM), Jackson, MS (Facility ID No. 50408),WKXI-FM, Magee, MS (Facility ID No.

50407),WJNT(AM), Pearl, MS (Facility ID No. 7691),WKRS(FM), Pickens, MS (Facility ID No. 29512), File Nos.

BAL-201202430ADO, et seq.; and Urban Radio III, L.L.C., Debtor-in-Possession and YMF Media California

Licensee, LLC for Consent to Assign Licenses for KVTO(AM), Berkley, CA (Facility ID No. 28681), KVVN(AM),

Santa Clara, CA (Facility ID No. 28438), File Nos. BAL-20120430ADU, et seq.

8 AFR at 8.

9 See 47 C.F.R. § 1.115(c) (“No application for review will be granted if it relies on questions of fact or law upon

which the designated authority has been afforded no opportunity to pass.”).

10 Prometheus Radio Project v. FCC, 652 F.3d 431 (3rd Cir. 2011).

11 See AFR at 13-15.

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Federal Communications Commission

FCC 14-83

Petitioners did not afford the Bureau an opportunity to address these arguments, we dismiss the AFR to

the extent that it makes these contentions.12

4.

Moreover, with regard to Petitioners’ remaining arguments concerning the Applications,

we affirm the Staff Decision for the reasons stated therein. Petitioners’ arguments below and on review13

are conclusory and unsupported, at least with regard to these transactions, and Petitioners have failed to

raise a substantial and material question of fact regarding the qualifications of Urban Radio or YMF

Media New York or shown that grant of the Applications was contrary to the public interest.14

5.

We agree with Petitioners that promoting broadcast ownership diversity is an important

Commission goal.15 However, as observed by the Bureau, the scope of the Commission’s review of an

assignment application such as those at issue here is statutorily limited to the transaction before it; we

cannot consider whether the public interest, convenience, and necessity might be served by the

assignment or transfer of the station license to any other than the proposed assignee or transferee.16 The

Bureau properly found in the Staff Decision, on the basis of the Applications and pleadings, that grant of

the Applications is in the public interest,17 i.e., that the parties are qualified under, and the proposed

transactions do not violate, the Act, the Rules or Commission policies.18 The transactions here, which

carry out the determination of the bankruptcy court that, subject to the Commission’s approval, each

station noted herein should be assigned to the assignee named in its assignment application, involve steps

taken in accordance with longstanding Commission policies of protecting creditors’ interests.19

12 See e.g. BDPCS, 351 F.3d at 1184 (it is an “open-and-shut case: the Commission’s rules do not permit the

Commission to grant an application for review ‘if it relies on questions of fact or law upon which the designated

authority has been afforded no opportunity to pass.’”); Spectrum IVDS, L.L.C. Memorandum Opinion and Order, 25

FCC Rcd 10457, 10463 (2010) (“Because Spectrum IVDS failed to present this argument to the Bureau, the

argument cannot now provide Spectrum IVDS with a basis for relief.”); and Fireside Media, Memorandum Opinion

and Order, 25 FCC Rcd 7754, 7757 (2010).

13 Petitioners argued that grant of the Applications: (1) would result in an unlawful reduction of programming geared

toward Black and local audiences; 2) promote further consolidation of media into the hands of “corporate elite”; and

(3) that transaction documents disclose that Fortress Investment Group has control of the assignees so as to

constitute an attributable interest; prematurely assumed control over the Stations; lacked the qualifications to be a

Commission licensee because it was in violation of the alien ownership restrictions set forth in Section 310(b) of the

Act; had not been candid with the Commission about the degree of control it exercises over certain Ohio, Florida,

and Texas stations; and had engaged in a pattern of predatory and racially discriminatory lending practices that has

led to the demise of numerous locally and Black-owned stations. See Staff Decision at 3.

14 The Staff Decision contains a complete description of the facts underlying this case, which we incorporate by

reference herein. See Staff Decision at 2- 4.

15 See e.g. Promoting Diversification of Ownership in the Broadcasting Services, Sixth Further Notice of Proposed

Rulemaking, 28 FCC Rcd 461, 463 (2013) (“It has been a longstanding goal of the Commission to promote diverse

ownership of broadcast stations, including ownership by women and minorities.”).

16 Staff Decision at 5. See 47 U.S.C. § 310(d). See, e.g., Shareholders of Stop 26 Riverbend, Inc., Memorandum

Opinion and Order, 27 FCC Rcd 6516, 6522 n. 47 (2012).

17 Staff Decision at 7.

18 See 47 U.S.C. § 310(d). See also Jerry Russell d/b/a the Russell Company and Hanszen Broadcasting,

Memorandum Opinion and Order, 27 FCC Rcd 8323, 8330 (MB 2012).

19 See e.g. LaRose v. FCC, 494 F.2d 1145 (D.C. Cir. 1974) (Commission is obligated to protect innocent creditors so

long as the transaction in question does not unduly interfere with objectives of the Act); Dale J. Parsons, Jr.,

Memorandum Opinion and Order, 10 FCC Rcd 2718, 2720 (1995); and Shell Broadcasting, Inc., Memorandum

Opinion and Order, 38 FCC 2d 929, 931 (1973).

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Federal Communications Commission

FCC 14-83

6.

ACCORDINGLY, IT IS ORDERED that, pursuant to Section 5(c)(5) of the

Communications Act of 1934, as amended,20 and Section 1.115 (a), (c) and (f) of the Commission’s

rules,21 the Application for Review IS DISMISSED IN PART AND DENIED IN PART.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

20 47 U.S.C. § 155(c)(5).

21 47 C.F.R. §§ 1.115(a),(c), (f).

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