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Gresham v. FCC, No. 11-1343 (D.C. Cir.)

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Released: March 15, 2012
ORAL ARGUMENT NOT YET SCHEDULED
USCA Case #11-1343 Document #1363964 Filed: 03/15/2012 Page 1 of 39
BRIEF FOR APPELLEE
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
NO. 11-1343
GRESHAM COMMUNICATIONS, INC.,
APPELLANT,
V.
FEDERAL COMMUNICATIONS COMMISSION,
APPELLEE.
ON APPEAL OF AN ORDER OF THE
FEDERAL COMMUNICATIONS COMMISSION
AUSTIN C. SCHLICK
GENERAL COUNSEL
PETER KARANJIA
DEPUTY GENERAL COUNSEL
JACOB M. LEWIS
ASSOCIATE GENERAL COUNSEL
PAMELA L. SMITH
COUNSEL
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
(202) 418-1740

USCA Case #11-1343 Document #1363964 Filed: 03/15/2012 Page 2 of 39

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

1. Parties.
All parties, intervenors, and amici in this case are listed in the Brief of
Appellant.
2. Rulings under review.
Gresham Communications, Inc., Memorandum Opinion and Order, 26 FCC
Rcd 11895 (2011) (JA )
3. Related cases.
The order on appeal has not previously been before this Court or any other
court, and counsel is not aware of any related case before this or any other
court.

USCA Case #11-1343 Document #1363964 Filed: 03/15/2012 Page 3 of 39

TABLE OF CONTENTS

TABLE OF CONTENTS .................................................................................. i
TABLE OF AUTHORITIES ........................................................................... ii
GLOSSARY .................................................................................................... iv
JURISDICTION................................................................................................1
QUESTION PRESENTED ...............................................................................1
STATUTES AND REGULATIONS ................................................................2
COUNTERSTATEMENT ................................................................................2
I.
STATUTORY AND REGULATORY BACKGROUND.........................2
II. FACTUAL BACKGROUND ....................................................................4
A.
The State Court Collection Action. .......................................................4
B.
The Bureau’s Letter Decision. ..............................................................7
C.
The Commission Order on Appeal. ....................................................10
SUMMARY OF ARGUMENT ......................................................................12
ARGUMENT ..................................................................................................14
I.
THE STANDARD OF REVIEW IS HIGHLY
DEFERENTIAL.......................................................................................14
II. THE COMMISSION ACTED WITHIN ITS DISCRETION
IN CONSENTING TO THE ASSIGNMENTS OF THE
WPAL-FM LICENSE..............................................................................15
CONCLUSION ...............................................................................................27
i

USCA Case #11-1343 Document #1363964 Filed: 03/15/2012 Page 4 of 39

TABLE OF AUTHORITIES

CASES

AT&T Corp. v. FCC, 220 F.3d 607 (D.C. Cir. 2000) .....................................14
Bowman Transp. Inc. v. Arkansas-Best Freight Sys.,
419 U.S. 281 (1974) ....................................................................................15
Harrison v. Morris, 370 F. Supp. 142 (D.S.C. 1974) .......................................5
Kidd Communications, Inc. v. FCC, 427 F.3d 1
(D.C. Cir. 2005)...........................................................................................22
Listeners’ Guild, Inc. v. FCC, 813 F.2d 465 (D.C.
Cir. 1987).....................................................................................................25
MLQ Investors, L.P. v. Pacific Quadracasting, Inc.,
146 F.3d 746 (9th Cir. 1998).......................................................................24
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29 (1983)........................................................................14
*
Radio Station WOW, Inc. v. Johnson, 326 U.S. 120
(1945) ................................................................................................... 15, 16

ADMINISTRATIVE DECISIONS

*
Arecibo Radio Corp., 101 FCC 2d 545 (1985) .................. 8, 15, 16, 18, 20, 21
D.H. Overmyer Telecasting Co., 94 FCC 2d 117
(1983) ............................................................................................. 19, 21, 25
In re Cheskey, 9 FCC Rcd 986 (1994) ..................................................... 17, 24
KDEW(AM), DeWitt, Arkansas, 11 FCC Rcd 13683
(1996) ..........................................................................................................25
Kirk Merkley, 94 FCC 2d 829 (1984), recon.
denied, 56 RR 2d 413 (1984), aff’d mem. sub
nom. Merkley v. FCC
, 776 F.2d 365 (D.C. Cir.
1985)......................................................................................... 15, 16, 19, 23
Letter to Percy Squire, Esq., 24 FCC Rcd 10669
(MB 2009) ...................................................................................................19
Letter to Richard A. Helmick, 26 FCC Rcd 10715
(MB 2011) ...................................................................................................26
O.D.T. International, 9 FCC Rcd 2575 (1994) ........................................ 19, 25
ii

USCA Case #11-1343 Document #1363964 Filed: 03/15/2012 Page 5 of 39
Radio KDAN, 11 FCC 2d 934 (1968), recon.
denied, 13 RR 2d 100 (1968), aff’d on procedural
grounds sub nom. W.H. Hansen v. FCC
, 413 F.2d
374 (D.C. Cir. 1969)....................................................................................17

STATUTES AND REGULATIONS

5 U.S.C. § 706(2)(A) .......................................................................................14
47 U.S.C. § 301 .......................................................................................... 2, 16
*
47 U.S.C. § 310(d)................................................................................ 3, 16, 17
47 U.S.C. § 402(b).............................................................................................1
47 U.S.C. § 402(c).............................................................................................1
47 U.S.C. 151 et seq. .........................................................................................2
47 C.F.R. § 73.3540 ..........................................................................................3
47 C.F.R. § 73.3541 ..........................................................................................3
* Cases and other authorities principally relied upon are marked with
asterisks.

iii

USCA Case #11-1343 Document #1363964 Filed: 03/15/2012 Page 6 of 39

GLOSSARY

Bureau Media
Bureau,
Federal
Communications Commission
Caswell
Caswell Capital Partners, LLC
(intervenor)
Commission or FCC
Federal Communications Commission
(appellee)
February 21, 2007 Order
Beach v. Gresham Commc’ns, et al.,
Order, C.A. No. 92-CP-15-508 (S.C.
Ct. Com. Pl. Feb. 21, 2007) (JA )
Gresham Gresham
Communications,
Inc.
(appellant)
Letter Decision
Letter to Charles W. Cherry, II,
Receiver for Gresham
Communications, Inc.
, 24 FCC Rcd
2894 (MB 2009) (JA )
License Attachment Order
Beach v. Gresham Commc’ns, et al.,
Order, C.A. No. 92-CP-15-508 (S.C.
Ct. Com. Pl. Sept. 22, 2006) (JA )
Order on Appeal
Gresham Communications, Inc.,
Memorandum Opinion and Order, 26
FCC Rcd 11895 (2011) (JA )
Receiver Appointment Order
Beach v. Gresham Commc’ns, et al.,
Order, C.A. No. 92-CP-15-508 (S.C.
Ct. Com. Pl. Mar. 26, 2007) (JA )
iv

USCA Case #11-1343 Document #1363964 Filed: 03/15/2012 Page 7 of 39
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
NO. 11-1343
GRESHAM COMMUNICATIONS, INC.,
APPELLANT,
V.
FEDERAL COMMUNICATIONS COMMISSION,
APPELLEE.
ON APPEAL OF AN ORDER OF THE
FEDERAL COMMUNICATIONS COMMISSION
BRIEF FOR APPELLEE

JURISDICTION

The Federal Communications Commission (“FCC” or “Commission”)
order that is the subject of this appeal was released on August 25, 2011. The
notice of appeal was timely filed on September 23, 2011. See 47 U.S.C.
§ 402(c). The Court has jurisdiction under 47 U.S.C. § 402(b).

QUESTION PRESENTED

This appeal arises from the FCC’s authorization of an assignment of a
radio station license from Gresham Communications, Inc. (“Gresham”) to a
court-appointed receiver for Gresham, and a subsequent assignment of the
license from the receiver to Caswell Capital Partners, LLC (“Caswell”), a

USCA Case #11-1343 Document #1363964 Filed: 03/15/2012 Page 8 of 39
third-party creditor. After Gresham failed to pay a debt due on a promissory
note, a South Carolina state court attached Gresham’s station license to
satisfy an unpaid money judgment that Gresham owed to Caswell.
The question presented is whether, given its unchallenged finding that
the state court’s attachment of the radio license was “void ab initio,” the
Commission acted within its discretion in nevertheless consenting to the
assignment of the license to the court-appointed receiver for Gresham, and to
the subsequent assignment of that license to Caswell.

STATUTES AND REGULATIONS

The pertinent statutory provisions and regulations are set forth in the
appendix to this brief.

COUNTERSTATEMENT

I.

STATUTORY AND REGULATORY BACKGROUND

The Communications Act of 1934 (the “Act”), 47 U.S.C. 151 et seq.,
establishes a comprehensive framework for federal regulation of the trans-
mission and use of radio signals in the United States. To “maintain the
control of the United States over all the channels of radio transmission” and
“to provide for the use of such channels, but not the ownership thereof,” the
Act requires all persons seeking to use the electromagnetic spectrum,
including those wishing to engage in radio broadcasting, to obtain a license
from the FCC. 47 U.S.C. § 301. The Act further provides that FCC-issued
2

USCA Case #11-1343 Document #1363964 Filed: 03/15/2012 Page 9 of 39
radio licenses cannot be “transferred, assigned, or disposed of in any manner,
voluntarily or involuntarily, directly or indirectly, or by transfer of control of
any corporation holding such . . . license, to any person except upon
application to the Commission and upon finding by the Commission that the
public interest, convenience, and necessity will be served thereby.” 47
U.S.C. § 310(d).
An application for FCC consent to a voluntary assignment or transfer
of control of a license (except for certain pro forma changes in ownership) is
filed on FCC Form 314. 47 C.F.R. § 73.3540. An application for FCC
consent to an involuntary assignment or transfer of control of a license, such
as one resulting from the death or “legal disability” of the licensee, “to a
person or entity legally qualified to succeed to the [licensee’s] interests under
the laws of the place having jurisdiction over the estate involved,” is filed on
FCC Form 316. 47 C.F.R. § 73.3541. FCC Form 316 is specifically used
where “[t]here is an involuntary assignment or transfer of a controlling
interest in a licensee/permittee to a court-appointed . . . receiver” (in state
court receivership proceedings). Instructions for FCC Form 316, General
Instruction A.8. See http://transition.fcc.gov/Forms/Form316/316.pdf.
3

USCA Case #11-1343 Document #1363964 Filed: 03/15/2012 Page 10 of 39

II.

FACTUAL BACKGROUND

A. The State Court Collection Action.

In 1988, Gresham executed a promissory note with Nancy R. Beach, a
creditor. Because the amount due on the note “remained unpaid” (Initial
Brief of Appellant (“Gresham Br.”) at 9) for several years, Beach filed suit
against Gresham in August 1992 to collect the outstanding debt. Beach v.
Gresham Commc’ns, et al., Complaint, C.A. No. 92-CP-15-508 (S.C. Ct.
Com. Pl. Aug. 18, 1992). In June 1998, Beach obtained a $56,276.10
judgment against Gresham on the note. See Beach v. Gresham Commc’ns, et
al., C.A. No. 92-CP-15-508 (S.C. Ct. Com. Pl. June 6, 2008) at 2 (JA ). In
August 2006, after purchasing the judgment, Caswell brought an action in the
South Carolina Court of Common Pleas for Colleton County (the “state
court”) to collect on the outstanding judgment. Id. at 3 (JA ).
On September 22, 2006, after hearing testimony that Gresham’s sole
asset was an FCC license to operate radio station WPAL-FM in Ridgeville,
1
South Carolina, the state court ordered the attachment and judicial sale of the

1 On November 4, 2010, the station’s call sign was changed to WAYA-FM.
Consistent with the pertinent agency orders and Gresham’s brief, we refer to
the station by its prior call sign – WPAL-FM – throughout this brief.
4

USCA Case #11-1343 Document #1363964 Filed: 03/15/2012 Page 11 of 39
2
license to satisfy the judgment held by Caswell against Gresham. See Beach
v. Gresham Commc’ns, et al., Order, C.A. No. 92-CP-15-508 (S.C. Ct. Com.
Pl. Sept. 22, 2006) (the “License Attachment Order”) (JA ). In a later order
(the “February 21, 2007 Order”), the state court denied Gresham’s motion
for a stay of the judicial sale and ordered that upon the sale of the license,
“[the] judgment debtor, as assignee, and the Successful Bidder, as assignor,”
shall “promptly and without delay apply for FCC approval of the assignment
of [the] License to the Successful Bidder.” Beach v. Gresham Commc’ns, et
al., Order, C.A. No. 92-CP-15-508 (S.C. Ct. Com. Pl. Feb. 21, 2007) at 2 (JA
). In doing so, the state court emphasized that the sale of the license “will be
final” only “upon FCC grant of consent to the assignment.” Ibid.
At the same time, the state court denied Caswell’s request to “facilitate
the application for transfer” by appointing a receiver who would seek FCC
consent to the transfer of the license to the successful bidder at the judicial
sale. February 21, 2007 Order at 3 (JA ). Instead, the court ordered
Gresham to “fully and timely cooperate with the preparation and filing of the
application for FCC approval of the assignment of the license to the
successful bidder.” Ibid. (emphasis omitted) (JA ). The court warned,

2 Under South Carolina law, the effect of an attachment is to create a lien or
encumbrance on the property attached. Harrison v. Morris, 370 F. Supp.
142, 148 (D.S.C. 1974).
5

USCA Case #11-1343 Document #1363964 Filed: 03/15/2012 Page 12 of 39
however, that “should the judgment debtor fail or refuse to sign any forms,
provide any information necessary to complete or file the application for FCC
consent to assignment of the License, . . . this Court will immediately appoint
a receiver to take those actions on behalf of the judgment debtor.” Ibid.
(JA ).
The judicial auction took place on February 15, 2007, with Caswell the
successful bidder. See February 21, 2007 Order at 1 (JA ). After Gresham
refused to cooperate in seeking FCC consent to assign the WPAL-FM license
to Caswell, the court appointed a receiver (Charles W. Cherry, II) for
Gresham. Beach v. Gresham Commc’ns, et al., Order, C.A. No. 92-CP-15-
508 (S.C. Ct. Com. Pl. Mar. 26, 2007) (“Receiver Appointment Order”) (JA ).
The state court instructed the receiver to promptly seek the FCC’s
consent for involuntary assignment of the WPAL-FM license, and upon
obtaining the FCC’s consent, to operate the station “as he in his discretion
shall deem appropriate to conserve the business and assets of the station as is
consistent with the FCC’s rules and policies until a sale of the stations [sic]
assets is confirmed.” Id. at 2 (JA ). The court also provided that the
receiver’s appointment would end once “a purchaser is found for the station
acceptable to the Receiver and the FCC has granted its consent for transfer of
the FCC licenses [sic] to such purchaser.” Id. (JA ).
6

USCA Case #11-1343 Document #1363964 Filed: 03/15/2012 Page 13 of 39
On March 27, 2007, the receiver filed an application for the FCC’s
consent to the involuntary assignment of the license from Gresham to
receiver (the “Involuntary Assignment Application”), which the staff of the
FCC’s Media Bureau (the “Bureau”) granted on April 3, 2007. See Public
Notice, Broadcast Actions, Report No. 46459 (Apr. 6, 2007) (JA ). Then, on
April 6, 2007, the receiver filed an application for the FCC’s consent to the
voluntary transfer of control of station WPAL-FM, including assignment of
the station’s license, from the receiver to Caswell (the “Voluntary
Assignment Application”). See Public Notice, Broadcast Applications,
Report No. 46462 (Apr. 11, 2007) (JA ).

B.

The Bureau’s Letter Decision.

On May 7, 2007, Gresham petitioned the Bureau to reconsider its grant
of the application for involuntary assignment to the receiver, and on May 11,
2007, petitioned the Bureau to deny the application for voluntary assignment
to Caswell. Letter to Charles W. Cherry, II, Receiver for Gresham
Communications, Inc., 24 FCC Rcd 2894, 2895 (MB 2009) (“Letter
3
Decision”) (JA ).

3 On April 7, 2008, a year later, Gresham sought to satisfy the judgment by
depositing $106,268.78 (representing the original amount due, along with
attorneys’ fees, plus interest) with the clerk of the state court, but the state
court rejected this late-filed tender. Beach v. Gresham Commc’ns, et al.,
Order, C.A. No. 92-CP-15-508 (S.C. Ct. Com. Pl. June 6, 2008) (JA ).
7

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On March 3, 2009, the Bureau granted in part and denied in part each
petition. Id. at 2899 (JA ). The Bureau explained that the Commission’s
“long-standing policy is to accommodate the actions of state courts, thereby
avoiding conflicts between state and federal authority, unless a public interest
determination under the Act would compel a different result.” Id. at 2896
(JA ) (citing, inter alia, Arecibo Radio Corp., 101 FCC 2d 545 (1985)
(“Arecibo”)). This deference, the Bureau explained, is subject to an
important limitation. Because “a broadcast license does not confer a property
right,” ibid., the “Commission has repeatedly observed that a ‘license, as
distinguished from a station’s physical assets, is not subject to a mortgage,
security interest, or lien, pledge, attachment, seizure, or similar property
right.’” Id. at 2987 (emphasis in original) (citation omitted) (JA ).
The Bureau found that the state court’s License Attachment Order was,
by its “plain language,” “facially inconsistent with the Commission’s policy
prohibiting attachment of a Station license.” Id. at 2897 (JA ). It
accordingly ruled that, notwithstanding “the Commission’s general deference
to state court orders, . . . the Court’s attachment of the WPAL-FM license
exceeded its authority and to this extent its order” was “void ab initio as
violative of the Act and Commission policy.” Id. at 2897-98 (JA ).
8

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“[N]otwithstanding the invalidity of the State Court Order vis-à-vis
attachment of the Station’s license,” the Bureau found “no reason to overturn
the staff’s action granting the Involuntary Assignment Application” to the
receiver. Id. at 2898 (JA ). As the Bureau explained, “in cases of
bankruptcy or receivership, the Commission does permit trustees or receivers
to hold licenses on a temporary basis pending disposition of station assets.”
Id. at 2898 (JA ). This policy serves the public interest, the Bureau stated,
because the station assets “would be of comparatively little value if the
Commission did not permit the operating authorization to accompany them
pending ultimate passage of all [assets] to a qualified buyer.” Ibid. (citation
4
omitted) (JA ).
In addition to finding “no error in the staff’s grant of the Involuntary
Assignment Application,” the Bureau examined the application for voluntary
assignment of the station from the receiver to Caswell. Id. at 2899 (JA ).
Finding “Caswell to be fully qualified to be the licensee of Station WPAL-
FM” – a fact that Gresham did not dispute – “and that grant of the [Voluntary

4 The Bureau noted that the receiver held some of the station’s non-license
assets, including “the local public inspection file and its advertiser lists,” and
that Caswell acquired other station assets, “including ‘the WPAL-FM tower,
antenna and most of the station’s furniture fixtures and equipment,’” through
separate transactions. Ibid. (JA ).
9

USCA Case #11-1343 Document #1363964 Filed: 03/15/2012 Page 16 of 39
Assignment] Application will further the public interest, convenience, and
necessity,” the Bureau accordingly granted the application. Ibid. (JA ).

C. The Commission Order on Appeal.

Gresham filed an application for review of the Letter Decision, which
the Commission denied. Gresham Communications, Inc., Memorandum
Opinion and Order, 26 FCC Rcd 11895 (2011) (“Order on Appeal”) (JA ).
The Commission first agreed with the Bureau that the “plain language”
of the state court’s License Attachment Order “improperly sought to attach
the [WPAL-FM] Station License in violation of Commission policy.” 26
FCC Rcd at 11900 ¶ 11 (JA ). Thus, although the Commission’s general
policy “is to accommodate the actions of state courts” wherever possible, the
Commission explained that it “is neither bound by nor need approve a state
court decision that is contrary to the Commission’s rules or policies.” Id. at
¶ 10 (JA ).
In contrast, the Commission concluded that the state court’s separate
Receiver Appointment Order “does not conflict with Commission policy.”
Id. at ¶ 13 (JA ). As the Commission observed, “[t]here is nothing unique, or
violative of the Commission’s policies, in the Court appointing a receiver to
facilitate the orderly disposition of the Station’s license for the benefit of the
judgment holder and assignee, Caswell.” Id. at ¶ 14 (JA ). Thus, the
10

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Commission explained, “Gresham misconstrues the Commission’s Rules and
policies when it argues that the Commission should not honor the Receiver
Appointment Order because that order facilitates the ultimate assignment of
the Station License to Caswell.” Id. at ¶ 13 (JA ). On the contrary, the
Commission agreed with the Bureau that “the Receiver Appointment Order
furthers the public interest by ultimately uniting the Station License with the
assets necessary to enable the licensee to operate the Station.” Id. at ¶ 14
(JA ). “[C]onsistent with our long-standing precedent of accommodation of
state court actions compliant with the Commission’s rules and policies,” the
Commission concluded that it should “defer to the Court’s appointment of a
Receiver.” Id. at ¶ 13 (JA ).
The Commission made clear that “[c]ompliance with Commission
policy is the critical distinction in our decision to defer to the Receiver
Appointment Order, but not the License Attachment Order.” Ibid. (JA ).
Because it found that “the Receiver’s appointment and the transfer of the
Station through the Involuntary Assignment Application were in accord with
Commission policy,” the Commission “affirm[ed] the [Bureau’s] decision to
give effect to the Receiver Appointment Order.” Id. at ¶ 14 (JA ). The
Commission likewise affirmed the Bureau’s decision to approve the
Voluntary Assignment Application, finding “that the Receiver’s actions in
11

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operating and assigning the Station to Caswell were consistent with the
5
Commission’s Rules and practice.” Ibid. (JA ). This appeal followed.

SUMMARY OF ARGUMENT


The Commission acted within its broad discretion over spectrum
licensing determinations when it consented to the involuntary assignment of
the WPAL-FM license from Gresham to the state court-appointed receiver, as
well as the subsequent voluntary assignment of that license from the receiver
to Caswell. The agency’s decision therefore should be affirmed.
It is undisputed that the state court exceeded its authority in attaching
WPAL-FM’s license to ensure that Gresham satisfied the money judgment
resulting from its unpaid debt to Caswell. It has long been settled that FCC
radio station licenses are not property subject to attachment or mortgage – a
rule designed to preserve the agency’s exclusive jurisdiction over licensing
matters. The Commission accordingly, and correctly, upheld the Bureau’s

5 The Commission also rejected two other challenges asserted by Gresham
to the Letter Decision: (1) that grant of the application for voluntary
assignment to Caswell violated the Commission’s “prohibition on the transfer
of a bare license,” and (2) that Caswell was not qualified to be a Commission
licensee because “Caswell made material misrepresentations to the
Commission.” Order on Appeal at ¶¶ 15-19 (JA ). Gresham does not contest
these determinations on appeal. See Gresham Br. at 12 n.4; accord id. at 14
n.5.
12

USCA Case #11-1343 Document #1363964 Filed: 03/15/2012 Page 19 of 39
determination that the state court’s License Attachment Order was “void ab
initio.
The state court’s procedural misstep with regard to attachment did not,
however, compel the Commission to refuse its consent to the subsequent
assignment of the license to Gresham’s receiver under the agency’s routine
procedures for processing such applications. The Commission ordinarily acts
to accommodate state law where doing so will not impermissibly undermine
federal policies. Accordingly, it routinely defers to state court determinations
to appoint receivers to conserve, operate, and facilitate the transfer of radio
station licenses and assets to qualified buyers. That is what happened here.
The state court appointed a receiver after Gresham refused to cooperate in
seeking FCC consent to the sale of the station to satisfy an outstanding
judgment, and nothing in the record suggests that the court would not have
done so if it had refrained from attaching the station license. It was thus
perfectly appropriate for the Commission to treat the state court’s Receiver
Appointment Order as distinct from the License Attachment Order, which
was a nullity from the outset.
Once the Commission properly refused to defer to the state court’s
attachment, this case presented a garden-variety request for consent to the
involuntary assignment of a radio station license occasioned by the
13

USCA Case #11-1343 Document #1363964 Filed: 03/15/2012 Page 20 of 39
appointment under state law of a receiver for a debtor-licensee. As the
Commission explained, such consent comports with settled Commission
policy while at the same time accommodating state law by ensuring, among
other things, that the station’s operating authority travels with the rest of the
station assets. The Commission also acted within its discretion in authorizing
the ensuing voluntary assignment from the receiver to Caswell. The record
shows that the Commission reasonably found that Caswell has the technical
assets necessary to operate the station and that transfer of the station license
was in the public interest.

ARGUMENT

I.

THE STANDARD OF REVIEW IS HIGHLY
DEFERENTIAL.

The Court must affirm the Order on Appeal unless Gresham
demonstrates that the challenged agency action is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A). This “[h]ighly deferential” standard of review “presumes the
validity of agency action.” AT&T Corp. v. FCC, 220 F.3d 607, 616 (D.C.
Cir. 2000). Moreover, in determining whether the agency articulated a
“rational connection between the facts found and the choice made,” Motor
Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)
(citation omitted), the courts are bound to “uphold a decision of less than
14

USCA Case #11-1343 Document #1363964 Filed: 03/15/2012 Page 21 of 39
ideal clarity if the agency’s path may reasonably be discerned,” ibid. (quoting
Bowman Transp. Inc. v. Arkansas-Best Freight Sys., 419 U.S. 281, 286
(1974)).

II.

THE COMMISSION ACTED WITHIN ITS DISCRETION
IN CONSENTING TO THE ASSIGNMENTS OF THE
WPAL-FM LICENSE.

In this case, Gresham relies on a principle designed to preserve the
FCC’s broad discretion over licensing determinations as grounds to deprive
the agency of discretion. The fact that the state court’s attachment order was
a nullity because it violated the FCC-protective principle against allowing a
security interest in an FCC license, did not deprive the Commission of
discretion to approve the subsequent assignments that enabled Caswell to
collect its unpaid money judgment against Gresham.
1. The FCC and the courts have long applied a “principle of fair
accommodation” to avoid conflict between a state’s authority over contract
disputes and the Commission’s authority over radio station licensing. See,
e.g., Radio Station WOW, Inc. v. Johnson, 326 U.S. 120, 132 (1945) (“Radio
WOW”); Arecibo, 101 FCC 2d at 548; Kirk Merkley, 94 FCC 2d 829, 838
(1984) (“Merkley”), recon. denied, 56 RR 2d 413 (1984), aff’d mem. sub
nom. Merkley v. FCC, 776 F.2d 365 (D.C. Cir. 1985). Applying that
principle, and recognizing that “the Commission does not possess the
15

USCA Case #11-1343 Document #1363964 Filed: 03/15/2012 Page 22 of 39
resources, expertise, or jurisdiction to adjudicate [state law contract]
questions fully,” the Commission “normally defer[s] to judicial
determinations regarding the interpretation and enforcement of contracts for
the sale of broadcast stations.” Arecibo, 101 FCC 2d at 548 ¶ 8. Indeed, the
Supreme Court has instructed that “the principle of fair accommodation
between State and federal authority . . . should be observed” where the state’s
laws “can be effectively respected while at the same time reasonable
opportunity is afforded for the protection of [the] public interest” that
undergirds the FCC’s licensing decisions. Radio WOW, 326 U.S. at 132
(emphasis added).
It is equally well established, however, that a broadcast license confers
no right of “ownership,” 47 U.S.C. § 301, and that such a license may not “be
transferred, assigned, or disposed of in any manner” without the
Commission’s prior determination that such disposition will be in the public
interest, 47 U.S.C. § 310(d). Accordingly, “a broadcast license, as
distinguished from a station’s plant or physical assets, is not an owned asset
or vested property interest so as to be subject to a mortgage, lien, pledge,
attachment, seizure, or similar property right.” Merkley, 94 FCC 2d at 830
¶ 3. See also Radio KDAN, 11 FCC 2d 934, 934 n. 1 (1968) (rejecting as
“untenable” “[t]he extraordinary notion that a station license issued by this
16

USCA Case #11-1343 Document #1363964 Filed: 03/15/2012 Page 23 of 39
Commission is a mortgageable chattel in the ordinary commercial sense”),
recon. denied, 13 RR 2d 100 (1968), aff’d on procedural grounds sub nom.
W.H. Hansen v. FCC, 413 F.2d 374 (D.C. Cir. 1969) (“Radio KDAN”).
This bedrock principle preserves the FCC’s exclusive control over
licensing allocations: “[T]he Commission’s statutory mandate requires it to
approve the qualifications of every applicant for a license” and, “[i]f a
security interest holder were to foreclose on the collateral license, by
operation of law, the license could transfer hands without the prior approval
of the Commission.” In re Cheskey, 9 FCC Rcd 986, 987 ¶ 8 (1994)
(“Cheskey”) (citing 47 U.S.C. § 310(d)); see also Radio KDAN, 13 RR 2d at
102 (“such a hypothecation endangers the independence of the licensee who
is and who should be at all times responsible for and accountable to the
Commission in the exercise of the broadcasting trust”).
2. In this case, the Bureau recognized, and the Commission affirmed,
that the state court’s License Attachment Order was “facially inconsistent
with the Commission’s policy prohibiting attachment of a Station license.”
Letter Decision, 24 FCC Rcd at 2897 (JA ). Accord Order on Appeal, 26
FCC Rcd at 11900 ¶ 11 (JA ) (the state court “improperly sought to attach
the Station License in violation of Commission policy.”). As the Bureau
declared, the state court’s attachment of the WPAL-FM license was “void ab
17

USCA Case #11-1343 Document #1363964 Filed: 03/15/2012 Page 24 of 39
initio.” Letter Decision, 24 FCC Rcd at 2897-98 (JA ). Thus, far from
“approving [an] illegal attachment” (Gresham Br. at 19) by endorsing the
notion that the transfer of an FCC license is permissible without the agency’s
consent, the Commission underscored that the state court’s attachment was a
nullity from the outset, and determined that it should give no weight to it.
Having done so, the Commission reasonably exercised its discretion in
concluding that it nevertheless would be in the public interest to consent to
the involuntary assignment of the license to the state-appointed receiver. As
the Commission explained, the “critical distinction” was that, unlike the
License Attachment Order, the Receiver Appointment Order “compli[ed] with
Commission policy.” Order on Appeal at ¶ 13 (JA ). See Arecibo, 101 FCC
2d at 550 ¶ 11 (“Our responsibility to reach fair accommodation between
federal and nonfederal interests compels us to take into account those aspects
of the [state] Court’s decrees which do not usurp the Commission’s exclusive
authority over licensing matters.”).
Here, the state court issued a separate appointment order that in no way
“usurp[ed] the Commission’s exclusive authority over licensing matters.”
Ibid. The receiver’s appointment, the Commission explained, not only served
to “facilitate the orderly disposition of the Station’s license for the benefit of
the judgment holder and assignee, Caswell,” but “further[ed] the public
18

USCA Case #11-1343 Document #1363964 Filed: 03/15/2012 Page 25 of 39
interest by ultimately uniting the Station License with the assets necessary to
enable the licensee to operate the Station.” Order on Appeal at 14 (JA ).
Indeed, the Commission noted, the agency “routinely grants trustees or
receivers consent to acquire broadcast licenses on a temporary basis pending
disposition of station assets.” O.D.T. International, 9 FCC Rcd 2575, 2576
6
¶ 7 (1994). In doing so, the Commission recognizes that the assets
associated with a station license “would be of comparatively little value if the
Commission did not permit the operating authorization to accompany them
pending ultimate passage of all to a qualified buyer.” Ibid. Accord Merkley,
94 FCC 2d at 837 ¶ 16 (recognizing that “the operating authorization must
usually accompany the physical assets, pending ultimate passage of all to a
qualified applicant.”).
Given the Commission’s proper – and uncontested – determination not
to defer to the defective license attachment, the facts of this case closely
parallel those in Arecibo, where the FCC similarly approved a license

6 See also Letter to Percy Squire, Esq., 24 FCC Rcd 10669, 10673 (MB
2009) (“it is well-established that the Commission will accommodate court
decrees, such as the appointment of the Receiver for the Stations, unless a
public interest determination compels a different result”); D.H. Overmyer
Telecasting Co.
, 94 FCC 2d 117, 123 ¶ 9 (1983) (“Overmyer”) (“we have
consistently held that the Commission will not generally question the
appointment of a bankruptcy trustee or receiver where a court is seeking to
protect the creditors of a financially disabled licensee”).
19

USCA Case #11-1343 Document #1363964 Filed: 03/15/2012 Page 26 of 39
transfer. In Arecibo, the Superior Court of Puerto Rico ordered the court’s
Marshall to sign applications to obtain FCC consent to the involuntary
transfer of two radio station licenses so that the licenses could accompany the
sale of station assets that had been disposed of at a judicial sale to satisfy a
money judgment. See 101 FCC 2d at 546-47 ¶¶ 2-3. The Commission
rejected the licensee’s argument that the agency was barred from deferring to
the Puerto Rico court’s action by consenting to the involuntary transfer. As
the Commission explained, the Puerto Rico court, which had jurisdiction to
adjudicate the underlying contractual dispute, had properly given the
Commission the opportunity to determine whether the licenses should be
assigned to the purchaser of the rest of the station’s assets. Id. at 549 ¶ 9.
The Commission found that the mechanism by which the Puerto Rico court
did so – having the Marshall sign the applications – was a permissible
consequence of the licensee’s defiance of the court’s prior order to sign them
itself. Ibid. In so concluding, the Commission emphasized that the court left
the licensee free “to assert before the Commission any argument regarding
the assignment applications,” and “specifically left to the Commission the
determination of all public interest issues which might be raised by the
applications.” Id. at 549 ¶ 10.
20

USCA Case #11-1343 Document #1363964 Filed: 03/15/2012 Page 27 of 39
Similarly here, upon Gresham’s failure to cooperate, the state court
appointed a receiver for Gresham (rather than directing a court employee to
sign the necessary papers) to obtain the FCC’s consent to transfer of its
license, but left the Commission free to determine whether the proposed
assignment would be in the public interest. Compare Receiver Appointment
Order at 1 (JA ) with Arecibo, 101 FCC 2d at 549 ¶ 10 (“the court did not
infringe federal licensing responsibilities in any way” by having a court
7
employee sign the assignment application in place of the licensee).
3. Gresham contends on appeal that the Commission unlawfully
allowed Caswell to “foreclose upon” Gresham’s license (Gresham Br. 24),
and improperly approved a license transfer “by operation of law,” id. at 25.
That is incorrect. The Commission unambiguously declared the License
Attachment Order to be void, and refused to defer to it as inconsistent with
Commission policy. Order on Appeal, 26 FCC Rcd at 11900-01 ¶ 11 (JA );
see Letter Decision, 24 FCC Rcd at 2897-98 (JA ). Unlike the defective
License Attachment Order, the appointment of the receiver did not intrude

7 In determining whether the public interest is served by the appointment of
a receiver, “as opposed to proceedings where a new, fully independent
licensee is being reviewed, the Commission is only considering a party who
will be operating the facility on a temporary basis; i.e., only until the
bankruptcy estate is settled” (or, as in this case, until supplemental collection
proceedings can be concluded) “and a new licensee can be approved by the
Commission.” Overmyer, 94 FCC 2d at 124 (emphasis added).
21

USCA Case #11-1343 Document #1363964 Filed: 03/15/2012 Page 28 of 39
into the Commission’s licensing authority. On the contrary, the state court
specified that the judicial sale would be “final” only “upon the FCC grant of
consent to the assignment” February 21, 2007 Order at 2 (JA ), and
appointed the receiver “subject to issuance by the FCC of consent to the
involuntary assignment of the Gresham license[],” and in order to permit the
receiver to obtain FCC consent to the license assignment. Receiver
Appointment Order at 1 (JA ) (emphasis added). Similarly, the Commission
and the Bureau consented to the involuntary transfer of Gresham’s license to
the receiver (and the subsequent voluntary transfer to Caswell) only after
determining that those transfers comported with Commission policy and were
in the public interest. Order on Appeal, 26 FCC Rcd at 11901-02 ¶¶ 13-14
(JA ); Letter Decision, 24 FCC Rcd at 2898-99 (JA ). These Commission
actions are within its core discretion over licensing allocations, and did not
result in any license transfers “by operation of law” or otherwise without
FCC consent.
Gresham’s reliance on Kidd Communications, Inc. v. FCC, 427 F.3d 1
(D.C. Cir. 2005), and Merkley is thus misplaced. In Kidd, the Court found
that the Commission erred in failing to explain how its consent to the
assignment of a license to a predecessor licensee did not give effect to the
assignee’s impermissible reversionary interest in the license. 427 F.3d at 4-6.
22

USCA Case #11-1343 Document #1363964 Filed: 03/15/2012 Page 29 of 39
In Merkley, the Commission refused to approve license transfers because to
do so would have recognized the receiver’s rights based on an agreement that
impermissibly provided for the former licensee to “regain control
automatically of the station and [the] license” and thus was “tantamount to a
. . . vested security interest in the license itself.” Merkley, 94 FCC 2d at 839
¶ 20. Here, consistent with Merkley, the Commission declined to give effect
to the attachment – declaring it a nullity from the outset – and evaluated the
subsequent assignment applications on their own merits.
Gresham also speculates that “[b]ut for” the state court’s “illegal
attachment” of its license, “there would have been no appointment of a
receiver to force [its] assignment” to Caswell. Gresham Br. 34. Gresham’s
theory is unsupported by the record. The receivership order was adopted in
supplemental proceedings to aid in the satisfaction of an unpaid judgment
under South Carolina law. See S.C. Code § 15-39-430 (authorizing
appointment of a receiver in such proceedings). Throughout the proceedings,
the state court made clear that its ultimate goal was to ensure satisfaction of
the substantial money judgment that Gresham owed to Caswell. See, e.g.,
February 21, 2007 Order at 1 (JA ) (ordering judicial sale “to satisfy the
judgment”). There is no reason to think that if the state court had refrained
23

USCA Case #11-1343 Document #1363964 Filed: 03/15/2012 Page 30 of 39
from attaching the license itself (as opposed to the proceeds thereof) it would
not have appointed a receiver to facilitate satisfaction of the unpaid judgment.
In contrast with the license itself, “proceeds from the sale [of a radio
license] are subject to attachment and may be used to satisfy a judgment.”
Order on Appeal, 26 FCC Rcd at 11900 ¶ 11 (JA ) (emphasis added). See
MLQ Investors, L.P. v. Pacific Quadracasting, Inc., 146 F.3d 746, 749 (9th
Cir. 1998). As the Commission explained in Cheskey, 9 FCC Rcd at 987 ¶ 9,
“[w]hen a licensee gives a security interest in the proceeds of the sale of [the
station], including the license, . . . [t]he creditor has no rights over the license
itself, nor can it take any action under its security interest until there has been
a transfer which yields proceeds subject to the security interest.” In short, the
state court could have attached the proceeds of the sale of the WPAL-FM
license, rather than the license itself, without running afoul of the
Communications Act or Commission policies. The Commission was thus
entirely justified in analyzing the license assignment applications before it
without reference to the defective license attachment, which it appropriately
declined to honor.
In any event, Gresham’s speculation about what the state court might
have done if it had not attached the license itself (but instead only the
proceeds thereof) is effectively an objection to the receiver’s authority under
24

USCA Case #11-1343 Document #1363964 Filed: 03/15/2012 Page 31 of 39
state law, a matter into which the Commission does not inquire. See, e.g.,
KDEW(AM), DeWitt, Arkansas, 11 FCC Rcd 13683, 13686-87 ¶¶ 9-11
(1996); Overmyer, 94 FCC 2d at 123-24 ¶ 9. The Commission has
“consistently indicated that controversies which do not reflect upon the
qualifications of a Commission licensee are best left to the local courts for
resolution.” O.D.T. Int’l, 9 FCC Rcd at 2576 ¶ 9. Cf. Listeners’ Guild, Inc.
v. FCC, 813 F.2d 465, 469 (D.C. Cir. 1987) (noting “the Commission’s
longstanding policy of refusing to adjudicate private contract law questions
for which a forum exists in the state courts”).
Finally, Gresham contends that whatever the basis for the
Commission’s approval of the involuntary transfer of its license to the
receiver, the FCC provided “no justification . . . whatsoever” for the approval
of the voluntary transfer of the license from the receiver to Caswell. Gresham
Br. 36. Gresham is wrong. Examining evidence that Caswell had acquired,
among other things, “the WPAL-FM tower, antenna, and most of the station’s
furniture fixtures and equipment,” the Commission agreed with the Bureau
that Caswell “possess[ed] the technical assets required to assure continuation
of broadcast service.” Order on Appeal, 26 FCC Rcd at 11903 ¶ 15 (JA );
accord Letter Decision, 24 FCC Rcd at 2898-99 (JA ). In addition, the
Commission explained, “[a] review of the Station’s record in the
25

USCA Case #11-1343 Document #1363964 Filed: 03/15/2012 Page 32 of 39
Commission’s database reveals that it has been fully operational under
8
Caswell’s stewardship.” Order on Appeal, 26 FCC Rcd at 11903 ¶ 15 (JA ).
The Bureau specifically examined the application for voluntary transfer and
found “Caswell 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.” Letter Decision, 24 FCC Rcd at 2899 (JA ). The
Commission likewise concluded that the receiver’s actions in “assigning the
Station to Caswell were consistent with the Commission’s Rules and
9
practice.” Order on Appeal, 26 FCC Rcd at 11902 ¶ 14 (JA ). Those
determinations were reasonable and supported by the record. Indeed,
Gresham did not argue to the Commission (nor does it argue on appeal) that
Caswell is not otherwise qualified to hold the WPAL-FM license. The
Commission’s decision accordingly should be upheld.

8 Gresham asserts that the station went off the air “on April 8, 2007, almost
immediately after the Receiver assumed control of the station, and the station
remained off the air until February 25, 2008.” Gresham Br. 40. The receiver
was in control of the station during this entire period, as the station license
assignment to Caswell was not approved by the Bureau until March 3, 2009.
See Letter Decision, 24 FCC Rcd at 2899 (JA ).
9 For this reason, the Bureau’s decision in Letter to Richard A. Helmick, 26
FCC Rcd 10715 (MB 2011) (“KJOX(AM)”), cited in Gresham Br. at 28, is
inapposite. In KJOX(AM), unlike this case, the Bureau found that the
proposed transaction was “against the public interest because it [was] patently
not in accord with [Commission] policy.” 26 FCC Rcd at 10720.
26

USCA Case #11-1343 Document #1363964 Filed: 03/15/2012 Page 33 of 39

CONCLUSION

For the foregoing reasons, the Order on Appeal should be affirmed.
Respectfully
submitted,

AUSTIN C. SCHLICK
GENERAL COUNSEL
PETER KARANJIA
DEPUTY GENERAL COUNSEL
JACOB M. LEWIS
ASSOCIATE GENERAL COUNSEL
/s/ Pamela L. Smith
PAMELA L. SMITH
COUNSEL
FEDERAL COMMUNICATIONS
COMMISSION
WASHINGTON, D.C. 20554
(202) 418-1740
March 15, 2012
27

USCA Case #11-1343 Document #1363964 Filed: 03/15/2012 Page 34 of 39
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
GRESHAM COMMUNICATIONS, INC.,
APPELLANT,
v.
NO. 11-1343
FEDERAL COMMUNICATIONS COMMISSION,
APPELLEE.
CERTIFICATE OF COMPLIANCE
Pursuant to the requirements of Fed. R. App. P. 32(a)(7), I hereby
certify that the accompanying “Brief for Appellee” in the captioned case
contains 5,818 words.
/s/ Pamela L. Smith
Pamela L. Smith

Counsel
Federal Communications Commission
Washington, D.C. 20554
(202) 418-1740 (Telephone)
(202) 418-2819 (Fax)
March 15, 2012

USCA Case #11-1343 Document #1363964 Filed: 03/15/2012 Page 35 of 39
STATUTORY APPENDIX
Communications Act Provisions:
47 U.S.C. § 301
47 U.S.C. § 310(d)
FCC Rules:
47 C.F.R. § 73.3540
47 C.F.R. § 73.3541




USCA Case #11-1343 Document #1363964 Filed: 03/15/2012 Page 36 of 39
47 U.S.C.
§ 301. License for radio communication or transmission of energy
It is the purpose of this chapter, among other things, to maintain the control of the
United States over all the channels of radio transmission; and to provide for the use of
such channels, but not the ownership thereof, by persons for limited periods of time,
under licenses granted by Federal authority, and no such license shall be construed to
create any right, beyond the terms, conditions, and periods of the license. No person
shall use or operate any apparatus for the transmission of energy or communications or
signals by radio (a) from one place in any State, Territory, or possession of the United
States or in the District of Columbia to another place in the same State, Territory,
possession, or District; or (b) from any State, Territory, or possession of the United
States, or from the District of Columbia to any other State, Territory, or possession of
the United States; or (c) from any place in any State, Territory, or possession of the
United States, or in the District of Columbia, to any place in any foreign country or to
any vessel; or (d) within any State when the effects of such use extend beyond the
borders of said State, or when interference is caused by such use or operation with the
transmission of such energy, communications, or signals from within said State to any
place beyond its borders, or from any place beyond its borders to any place within said
State, or with the transmission or reception of such energy, communications, or signals
from and/or to places beyond the borders of said State; or (e) upon any vessel or
aircraft of the United States (except as provided in section 303(t) of this title); or (f)
upon any other mobile stations within the jurisdiction of the United States, except
under and in accordance with this chapter and with a license in that behalf granted
under the provisions of this chapter.
§ 310. License ownership restrictions
(d) Assignment and transfer of construction permit or station license

No construction permit or station license, or any rights thereunder, shall be transferred,
assigned, or disposed of in any manner, voluntarily or involuntarily, directly or
indirectly, or by transfer of control of any corporation holding such permit or license,
to any person except upon application to the Commission and upon finding by the
Commission that the public interest, convenience, and necessity will be served thereby.
Any such application shall be disposed of as if the proposed transferee or assignee
were making application under section 308 of this title for the permit or license in
question; but in acting thereon the Commission may not consider whether the public
interest, convenience, and necessity might be served by the transfer, assignment, or
disposal of the permit or license to a person other than the proposed transferee or
assignee.
2

USCA Case #11-1343 Document #1363964 Filed: 03/15/2012 Page 37 of 39
47 C.F.R.
§ 73.3540 Application for voluntary assignment or transfer of control.
(a) Prior consent of the FCC must be obtained for a voluntary assignment or transfer of
control.
(b) Application should be filed with the FCC at least 45 days prior to the contemplated
effective date of assignment or transfer of control.
(c) Application for consent to the assignment of construction permit or license must be
filed on FCC Form 314 “Assignment of license” or FCC Form 316 “Short form” (See
paragraph (f) of this section).
(d) Application for consent to the transfer of control of a corporation holding a
construction permit or license must be filed on FCC Form 315 “Transfer of Control” or
FCC Form 316 “Short form” (see paragraph (f) of this section).
(e) Application for consent to the assignment of construction permit or license or to the
transfer of control of a corporate licensee or permittee for an FM or TV translator
station, a low power TV station and any associated auxiliary station, such as translator
microwave relay stations and UHF translator booster stations, only must be filed on
FCC Form 345 “Application for Transfer of Control of Corporate Licensee or
Permittee, or Assignment of License or Permit for an FM or TV translator Station, or a
Low Power TV Station.”
(f) The following assignment or transfer applications may be filed on FCC “Short
form” 316:
(1) Assignment from an individual or individuals (including partnerships) to a
corporation owned and controlled by such individuals or partnerships without any
substantial change in their relative interests;
(2) Assignment from a corporation to its individual stockholders without effecting
any substantial change in the disposition of their interests;
(3) Assignment or transfer by which certain stockholders retire and the interest
transferred is not a controlling one;
(4) Corporate reorganization which involves no substantial change in the beneficial
ownership of the corporation;
(5) Assignment or transfer from a corporation to a wholly owned subsidiary thereof
3

USCA Case #11-1343 Document #1363964 Filed: 03/15/2012 Page 38 of 39
or vice versa, or where there is an assignment from a corporation to a corporation
owned or controlled by the assignor stockholders without substantial change in
their interests; or
(6) Assignment of less than a controlling interest in a partnership.
§ 73.3541 Application for involuntary assignment of license or transfer of control.
(a) The FCC shall be notified in writing promptly of the death or legal disability of an
individual permittee or licensee, a member of a partnership, or a person directly or
indirectly in control of a corporation which is a permittee or licensee.
(b) Within 30 days after the occurrence of such death or legal disability, an application
on FCC Form 316 shall be filed requesting consent to involuntary assignment of such
permit or license or for involuntary transfer of control of such corporation to a person
or entity legally qualified to succeed to the foregoing interests under the laws of the
place having jurisdiction over the estate involved.
4

USCA Case #11-1343 Document #1363964 Filed: 03/15/2012 Page 39 of 39
11-1343

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Gresham Communications, Inc., Appellant

v.

Federal Communications Commission, Appellee.

CERTIFICATE OF SERVICE

I, Pamela L. Smith, hereby certify that on March 15, 2012, I electronically
filed the foregoing Brief for Appellee with the Clerk of the Court for the
United States Court of Appeals for the D.C. Circuit by using the CM/ECF
system. Participants in the case who are registered CM/ECF users will be
served by the CM/ECF system.
Some of the participants in the case, denoted with asterisks below, are not
CM/ECF users. I certify further that I have directed that copies of the
foregoing document be mailed by First-Class Mail to those persons, unless
another attorney at the same mailing address is receiving electronic service.
Dan J. Alpert
Richard B. Beckner
The Law Office of Dan J. Alpert
*Erwin G. Krasnow
2120 N. 21st Road
Garvey Schubert Barer
Arlington, VA 22201
1000 Potomac Street, N.W.
Counsel for: Gresham
Flour Mill Building, 5th Floor
Communications, Inc.
Washington, D.C. 20007-3501
Counsel for: Caswell Capital
Partners, LLC

/s/ Pamela L. Smith

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