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Great Radio, LLC Informal Objection

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Released: March 20, 2013
Federal Communications Commission
Washington, D.C. 20554
March 20, 2013
DA 13-512
In Reply Refer to:
1800B3-PPD
Released: March 20, 2013
Mark B. Denbo, Esq.
Drinker Biddle & Reath LLP
1500 K Street, N.W.
Suite 1100
Washington, DC 20005
David G. O’Neil, Esq.
Rini Coran, P.C.
1140 19th Street, N.W.
Suite 600
Washington, DC 20036
Harry F. Cole, Esq.
Fletcher, Heald & Hildreth, PLC
1300 North 17th Street
Suite 1100
Arlington, VA 22209

In re:

WVIN-FM, Bath, NY
Facility ID No. 52121
WABH(AM), Bath, NY
Facility ID No. 52119
WQRW(FM), Wellsville, NY
Facility ID No.165995
Richard A. Foreman, Receiver, as Transferor
and Robert J. Pfuntner, as Transferee
File No. BTCH-20121109AAS

Informal Objection

Dear Counsel:
We have before us an Informal Objection filed by Great Radio, LLC (“Great Radio”) to the
above-captioned application (“Application”). The Application seeks consent for the transfer of control of
Pembrook Pines Mass Media N.A. Corp. (“Pembrook Pines”), licensee of stations WVIN-FM,
WABH(AM), and WQRW(FM) (collectively, the “Stations”), from Richard A. Foreman (“Foreman”),
Receiver to Robert J. Pfuntner (“Pfuntner”). For the reasons discussed below, we deny Great Radio’s
Informal Objection and grant the Application.

Background.

The Application essentially seeks to return transfer of control of Pembrook Pines
and the Stations to Pfuntner, the sole stockholder of Pembrook Pines. In March 2012, in a lawsuit
brought by a creditor against Pembrook Pines and Pfuntner, a Court Order required Pfuntner to transfer
control of Pembrook Pines to Foreman, who was appointed as Receiver and directed to take control of
and seek buyers for the Stations to satisfy the financial obligations of Pembrook Pines and Pfuntner.
Accordingly, Foreman filed an application on FCC Form 316 for consent to the involuntary transfer of
control of Pembrook Pines and the Stations from Pfuntner to Foreman. The Commission granted that
application.1
Later, in August 2012, Foreman held an auction for the Stations. Great Radio was the winning
bidder for stations WVIN-FM and WABH(AM) (“Bath Stations”), and Pfuntner was the winning bidder
for WQRW(FM). Thereafter, in September 2012, before the Court approved Great Radio’s acquisition of
the Bath Stations, Pfuntner informed the Court that he had satisfied the financial obligation to the creditor,
allowing him to re-acquire control of the Bath Stations from Foreman. On November 6, 2012, the Court
approved Pfuntner’s motion to re-acquire control of the Bath Stations, discharged the Receiver, and
ordered the parties to file an application with the Commission for consent to transfer control of Pembrook
Pines from Foreman back to Pfuntner. On November 9, 2012, Foreman and Pfuntner filed the
Application on FCC Form 316 for consent to transfer control of Pembrook Pines from Foreman to
Pfuntner.2 Great Radio filed its Informal Objection to the Application on November 20, 2012, and
Pfuntner filed an Opposition to Informal Objection on December 20, 2012.

Discussion.

An informal objection must set forth facts to support its concerns and a basis for the
remedy it seeks.3 For the reasons discussed below, we find that Great Radio has failed to meet this
standard.
Great Radio’s only objection to the Application is the use of the short form application, Form
316, instead of a long form application, Form 315.4 Great Radio argues the use of Form 316 was
inappropriate because the transfer of control in this instance does not meet any of the criteria for using the
short form as detailed in Section 73.3540(f) of the Rules5 or the instructions to Form 316.6 Great Radio
further argues that use of Form 316 is prohibited because Foreman is transferring all voting rights to
Pfuntner.7 According to Section B of the instructions, use of Form 316 “[g]enerally…is prohibited if the
previously approved principals of the licensee/permittee will not retain more than 50 percent of the
station’s voting rights or when more than 50 percent of the station’s voting rights is being assigned or
transferred, irrespective of whether or not the recipient(s) are already holders of such stock.”8


1 See FCC File No. BTCH-20120314ADD. Foreman filed a notice of consummation on April 30, 2012, indicating
that transfer of control had been consummated as of March 22, 2012.
2 In the application, Pfuntner identified the transfer as an involuntary transfer of control.
3 See Astroline Communications Co. v. FCC, 857 F.2d 1556 (D.C. Cir. 1988).
4 Great Radio advocates the use of Form 315 to allow the Commission to evaluate the qualifications of Pfuntner.
5 See 47 C.F.R. §73.3540(f).
6 In addition to the six situations described in Section 73.3540(f) as appropriate for use of a short-form application,
the instructions to Form 316 identify two additional such situations. Great Radio has also argued that the transfer of
control at issue here is not involuntary.
7 Great Radio notes that Section III, Item 5 of the Application indicates that the effect of a grant of the transfer of
control would result in Pfuntner holding 100 percent of the votes and total assets of Pembrook Pines and Foreman
holding zero percent of the votes and total assets. Informal Objection at 3.
8 Instructions for FCC 316, Application For Consent To Assign Broadcast Station Construction Permit Or License
Or Transfer Of Control Of Entity Holding Broadcast Station Construction Permit Or License (emphasis in original).
2

We find no merit to Great Radio’s objections. The Commission has allowed the use of short-
form application procedures previously where a court has ordered that control of a licensee be transferred
back from a court-approved fiduciary to a party previously passed upon as a controlling principal of a
licensee. See Canton 67, Ltd., Debtor-in-Possession, Memorandum Opinion and Order, 7 FCC Rcd 736
(1992) (“Canton 67”).
Canton 67 involved a limited partnership comprised of three general partners: Morton Kent
(“Kent”) (33% equity interest); Media Central, Inc., controlled by Kent (22% equity interest); and David
R. Vaughn (1% equity interest). The remaining equity was held by limited partners. Over time, Media
Central, Inc. sought federal protection from creditors under Chapter 11 of the U.S. Bankruptcy Code for
its television stations. The Commission approved the Form 316 application for the involuntary
assignment of license of one station from Canton 67, Ltd. to Canton 67, Ltd., Debtor-in-Possession.
Thereafter, following consummation, the parties filed a Form 316 application for consent to assign the
license of this station to Kent, as an individual. Franklin L. Lavin, who had attempted to purchase the
station at issue, argued the use of Form 316 was inappropriate because the assignment of license from
Canton 67, Ltd., Debtor in Possession to Kent was a substantial change requiring the filing of a long-form
application. The Commission noted that Kent was passed on in a previous long-form application. The
Commission also concluded that less than 50% of equity was changing hands, which was not a substantial
change.9 Considering these two factors, the Commission permitted Kent to change his interest from 55%
equity to 100% equity and 100% control through a short-form application.
Based on the Commission’s decision in Canton 67, the conclusion here is straightforward.
Pfuntner’s qualifications have previously been approved in a long-form application.10 The transfer to
Pfuntner following the Receiver’s discharge and pursuant to court order11 is a “corporate reorganization
which involves no substantial change in the beneficial ownership of the corporation.”12 Foreman, as
Receiver, never acquired any beneficial interest in Pembrook Pines.13 Rather, he was appointed as a
fiduciary to take control of Pembrook Pines for the benefit of all parties with an interest in the litigation
against Pembrook Pines and Pfuntner. The facts of this case are more favorable than those in Canton 67
because Pfuntner has continuously held a 100% beneficial interest in Pembrook Pines. Because no equity
is changing hands, the transfer of control does not involve a “substantial change” in the ownership of
Pembrook Pines, thus the transfer may be approved pursuant to the Application.


9 The Commission analyzed the transaction as a whole rather than focusing only on the assignment of license from
the Debtor-in-Possession to Kent. See 7 FCC Rcd at 738 n. 11.
10 See Application at Exhibit 15.
11 We disagree with Great Radio’s characterization of the Application as involving a voluntary transaction. The
transaction is court-ordered and therefore involuntary, notwithstanding that Pfuntner requested the issuance of the
order.
12 47 C.F.R. §73.3540(f)(4).
13 Great Radio is correct that the Application indicates that Foreman holds 100% of the equity of Pembrook Pines.
See n. 7 supra and Application, Section III, Question 5. There was a corresponding entry in the Form 316
application by which Foreman’s appointment as Receiver of Pembrook Pines was approved. These are clearly
erroneous entries, as neither of the court orders provided for any transfer of stock in Pembrook Pines. Although we
could ask the parties to amend the Application to correct this error, we find it unnecessary to do so due to the fact
that the court order submitted with the Application clearly delineates the transaction.
3

Conclusion.

Accordingly, IT IS ORDERED, that Great Radio, LLC’s Informal Objection filed
on November 20, 2012, IS DENIED. IT IS FURTHER ORDERED that Pembrook Pines Mass Media
N.A. Corp.’s application for consent to transfer control of Pembrook Pines Mass Media N.A. Corp.,
licensee of stations WVIN-FM, WABH(AM), and WQRW(FM), from Richard A. Foreman to Robert J.
Pfuntner, File No. BTCH-20121109AAS, IS GRANTED.
Sincerely,
Peter H. Doyle
Chief, Audio Division
Media Bureau
4

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