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Media Bureau Grants WLNI (FM), Lynchburg, VA Assignment Application

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Released: August 22, 2013

Federal Communications Commission

Washington, D.C. 20554

August 22, 2013

DA 13-1792
In Reply Refer to:
1800B3-HOD
Released: August 22, 2013
John F. Garziglia, Esq.
Womble Carlyle Sandridge & Rice, LLP
1200 19th Street, N.W.
Suite 500
Washington, DC 20036
Leonard Wheeler, President
Mel Wheeler, Inc.
3934 Electric Road
Roanoke, VA 24018
Gary E. Burns, CEO
3 Daughters Media Inc.
PO Box 348
Forest, VA 24551
In re:

WLNI(FM), Lynchburg, VA

Facility ID No. 22663
File No. BALH-20130104ABX

Application for Assignment of License

Petition to Deny

Dear Counsel:
We have before us the referenced application ("Application") seeking approval for the proposed
assignment of the license of Station WLNI(FM), Lynchburg, Virginia ("Station"), from Centennial
Licensing, LLC ("Centennial"), to Mel Wheeler, Inc. ("MWI") (collectively, "Applicants"). We also
have before us a Petition to Deny ("Petition") filed by 3 Daughters Media Inc. ("3 Daughters") on
February 1, 2013.1 For the reasons discussed below, we deny the Petition and grant the Application.

Background.

The Applicants filed the Application on January 4, 2013. 3 Daughters timely filed
its Petition to Deny, asserting that the proposed assignment violates the Commission's local radio
ownership rule, "will upset the competitive balance in the [Roanoke-Lynchburg Arbitron] market" and
"discourage opportunities for females, minorities and small business to secure financing and to expand
the marketplace."2 In response, Applicants argue that 3 Daughters lacks standing to file the Petition.3
Applicants also argue that 3 Daughters has failed to make a prima facie case that the proposed assignment

1 Applicants filed a Joint Opposition ("Opposition") on February 14, 2013. Petitioner filed a Reply to Joint
Opposition to Petition to Deny ("Reply") on March 4, 2013.
2 Petition at 2.
3 Opposition at 2-3.

either violates the local radio ownership rule or otherwise is inconsistent with the public interest.4 In
reply, 3 Daughters asserts that it has standing and that it did make a prima facie case.5

Discussion.

Procedural Issue. Standing. Section 309(d)(1) of the Act provides that only a
"party in interest" may file a petition to deny a proposed assignment." 6 The Commission accords party in
interest status to a petitioner if grant of the application would result in, or be reasonably likely to result in,
some injury of a direct, tangible or substantial nature.7 It is well established that a competitor of an
applicant qualifies as a party in interest.8 We note that contrary to Applicants' assertions,9 where standing
is derived from status as a competitor in the market, a petitioner "does not need to demonstrate that it will
suffer a direct injury from grant" of an application.10 Nor, as a competitor, "must it demonstrate, or even
allege . . . that it will be subjected to increased or materially different competition as a result of the
proposed assignment."11 Accordingly, we find that 3 Daughters which holds the licenses for three AM
stations and one FM translator station located in the same market as the Station has standing to file a
petition to deny the Application.
Substantive Issues. Undue Concentration. 3 Daughters claims that, if allowed to acquire the
station, MWI's market revenue share will exceed 50 percent.12 3 Daughters also asserts that MWI would
control all 5 of the top 5 rated stations in the Roanoke Metro and, thus, the proposed transaction would
result in excessive market concentration. 3 Daughters, however, ignores the fact that, when the
Commission adopted its bright-line, geography-based radio rule for rated markets, it concluded that "by
applying the numerical limits of the local radio ownership rule to a more rational market definition, we
believe that, in virtually all cases, the rule will protect against excessive concentration levels in local
radio markets that might otherwise threaten the public interest."13 While we are bound to give a "hard
look" to petitions that allege that a particular transaction is not in the public interest, notwithstanding

4 Id. at 3-14.
5 Reply at 2-10.
6 47 U.S.C. 309(d)(1).
7 See, e.g., Pinelands, Inc., Memorandum Opinion and Order, 7 FCC Rcd 6058, 6063 (1992); Telesis Corp.,
Memorandum Opinion and Order, 68 FCC2d 696 (1978).
8 FCC v. Sanders Brothers Radio Station, 309 U.S. 470, 476-477 (1940); Office of Communications of the United
Church of Christ v. FCC
, 359 F.2d 994 (1966).
9 See Opposition at 2, citing KERM Inc. V. FCC, 353 F.3d. 57, 60-61 (D.C. Cir. 2004) ("KERM"). We find
Applicants' reliance on KERM to be misplaced. That case addresses "[Article III] standing to seek judicial review
of administrative action." KERM, 353 F.3d. at 61 (emphasis added). While the Commission generally follows
judicial standing principles, it does not require competitors to specifically allege injury in order to establish standing
under Section 309(d) of the Act. See CAPH v. FCC, 778 F.2d 823, 826 n.8 (D.C. Cir. 1985) ("The Article III
restrictions under which this court operates do not, of course, apply to the FCC. The Commission may choose to
allow persons without Article III `standing' to participate in FCC proceedings, as it did in this case."); National
Welfare Rights Org. v. Finch
, 429 F.2d 725, 732 n.27 (D.C. Cir. 1970) ("Standing to sue depends on more restrictive
criteria than standing to appear before administrative agencies . . . .").
10 See Waterman Broadcasting Corporation of Florida, Letter, 17 FCC Rcd 15742, 15744 n.2 (MB 2002 ), citing
American Mobilphone, Inc. and Ram Technologies, Inc.,
Order, 10 FCC Rcd 12297, 12298 (WTB 1995) ("American
Mobilphone
").
11 American Mobilphone, 10 FCC Rcd at 12298.
12 Petition at 2 and 9.
13 See 2002 Biennial Regulatory Review Review of the Commission's Broadcast Ownership Rules and Other
Rules,
Report and Order and Notice of Proposed Rulemaking, 18 FCC Rcd 13620, 13813 497 (2003) ("Ownership
Order
") (emphasis added).
2

compliance with the new rule,14 the petitioner faces a high hurdle and must present specific allegations of
fact sufficient to show that a grant of the application would be prima facie inconsistent with the public
interest."15 We find that 3 Daughter's challenge ultimately fails under this standard and that departure
from the rule is unwarranted in this case. 3 Daughters relies, in large part, on advertising revenue shares
in asserting its competition concerns. The Commission, however, has concluded that ad revenue share is
of "decreasing relevance . . . as a barometer of competition,"16 and explicitly rejected arguments that it
incorporate a market share analysis into the local ownership rule.17 We are unpersuaded that application
of the new radio ownership rule is inadequate to protect against competitive harm in this case. We
therefore analyze these transactions by applying the numerical limits of Section 73.3555(a).
Radio Multiple Ownership Analysis. The Station is located in the Roanoke-Lynchburg, Virginia
Arbitron Metro market ("Roanoke Metro"). BIA lists a total of 46 commercial and noncommercial full
power stations as "home" to this market. Under the Commission's local radio ownership rule, in a radio
market with 45 or more full-power commercial and noncommercial radio stations, an entity may hold a
cognizable interest in up to a total of eight commercial radio stations, not more than 5 of which are in the
same service.18
Applicants state that the proposed transaction would result in MWI having cognizable interests in
5 FM and 2 AM stations in the Roanoke Metro and thus that the proposed transaction complies with both
the applicable numerical limit and AM/FM subcap.19 3 Daughters, on the other hand, asserts that the
proposed transaction violates the local radio ownership rule. 3 Daughters argues that BIA incorrectly
includes three stations WWZW(FM), Buena Vista, Virginia, WODI(AM), Brookneal, Virginia, and
WOWZ(AM), Appomattox, Virginia in the station count for the Roanoke Metro. 3 Daughters states
that, when these stations are excluded, the number of stations that are "home" to the Roanoke Metro
drops to 43. 3 Daughters notes that the applicable numerical limit and AM/FM subcap decrease from
eight to seven and five to four, respectively.20 Thus, according to 3 Daughters, the local radio ownership
rule would bar MWI's acquisition of the Station. Applicants dispute 3 Daughters claims. In addition,
Applicants urge us to include three additional counties and at least nine additional radio stations in the
Roanoke Metro. As discussed in detail below, we agree with 3 Daughters that we should exclude
WOWZ(AM) from our station count but find that WWZW(FM) and WODI(AM) should be included in
that count.

14 Ownership Order, 18 FCC Rcd at 13647 85 (explaining that although "we are confident that the modified rules
will reduce the chances of precluding transactions that are in the public interest or, alternatively, permitting
transactions that are not in the public interest . . . we are obligated to give a hard look both to waiver requests . . . as
well as petitions to deny.").
15 Id. at 13647, n. 131, citing 47 U.S.C. 309(d) and case precedent (case citations omitted).
16 Id. at 13642 68.
17 Id. at 13639 -43 60-68.
18 47 C.F.R. 73.3555(a)(1).
19 Applicants acknowledge that MWI also holds a cognizable interest in WVBB(FM), Elliston-Lafayette, Virginia,
but note that this station is not located within the geographic boundaries of the Roanoke Metro or otherwise or
otherwise qualifies as"home" to that Metro. Applicants also note that the predicted community contours of the
Station and WVBB(FM) do not overlap. Thus, Applicants assert that the proposed transaction complies with the
local radio ownership rule. In contrast, Three Daughters argues that BIA incorrectly excludes WVBB(FM) from the
Roanoke Metro. Given our findings below, we need not reach this issue.
20 In radio markets with between 30 and 44 full-power commercial and noncommercial radio stations, an entity can
own or hold a cognizable interest in a total of no more than 7 commercial radio stations, no more than 4 of which are
in the same service. See 47 C.F.R. 73.3555(a)(ii). MWI already holds cognizable interests in 4 FM and 2 AM
stations in the Roanoke Metro.
3

WWZW(FM). 3 Daughters argues that we should exclude WWZW(FM) because "it does not
cover a significant part of the market and has only registered in 2 of the last 18 reporting periods by
BIA."21 We do not find this sufficient to justify exclusion of the station.22 Moreover, we note that the
two-year waiting period for inclusion of WWZW(FM) in the Roanoke Metro expired on August 1,
2013.23 Accordingly, we will count WWZW(FM) as part of the Roanoke Metro for purposes of our
analysis.
WODI(AM). 3 Daughters urges us to exclude WODI(AM) because, according to Three
Daughters, the station has been dark since at least October 2012.24 Three Daughters submits an email
from the former owner of WODI(AM) confirming that the station is dark and has been since October
2012.25 3 Daughters also states that its CEO drives by the station's transmitter site "at least 4 times each
week and each time monitors the frequency."26 According to 3 Daughters, "WODI is and has been off the
air for quite some time." Applicants observe that, according to the BIA data included in the Petition and
the Commission's records, WODI(AM) is licensed and operating.27 Given the conflicting information
before us, we requested that JKC Ventures, LLC ("JKC"), the licensee of WODI(AM), clarify its
operational status.28 JKC indicates that, since it became licensee of the WODI(AM) in October 2010, the
station "has not been silent for a period of 30 consecutive days or more.29 JKC also states that
WODI(AM) currently is operational.30 We find that WODI(AM) is not silent at this time and was not
silent for the last six months. Accordingly, we will count it as part of the Roanoke Metro for purposes of
our analysis.
WOWZ(AM). 3 Daughters last argues that we should exclude WOWZ(AM) because it "has been
off more than it has been on in the last three years."31 Since its license renewal in September 2011,
WOWZ(AM) has operated less than 5 months and been silent for nearly 16 months.32 Its most recent

21 Petition at 7-8.
22 See WKML License Limited Partnership, Letter, 20 FCC Rcd 10877 (MB 2005) ("zero audience shares do not
necessarily correspond to non-home status).
23 Ownership Order, 18 FCC Rcd at 13726 278. The Commission "will not allow a party to receive the benefit of
the inclusion of a radio station as `home' to a Metro unless such station's community of license is located within the
Metro or such station has been considered home to that Metro for at least two years." Id. This safeguard is intended
to ensure that changes in "home market designations will be made to reflect actual market conditions and not to
circumvent the local radio ownership rule." Id. BIA designated WWZW(FM) part of the Roanoke Metro on August
1, 2011.
24 Petition at 8.
25 Reply at Attach. D.
26 Reply at 7.
27 Opposition at 8.
28 Letter to Shelley Sadowsky, Esq., Counsel for JKC Ventures, LLC, from Peter H. Doyle, Chief, Audio Division,
Media Bureau (dated May 28, 2013).
29 Letter to Victoria McCauley, Esq, Audio Division, Media Bureau, from Shelley Sadowsky, Esq., Counsel for JKC
Ventures, LLC (dated June 27, 2013).
30 Id.
31 Petition at 7.
32 We renewed WOWZ(AM)'s license on September 27, 2011. See Broadcast Actions, Public Notice, Report No.
47583 (Sept. 30, 2011). While the station was operating at that time, it went dark on November 8, 2011. See File
No. BLSTA-BLSTA-20111108AHF (requesting special temporary authority ("STA") to remain silent and citing the
need to relocate the station as the reason for its silence). It did not resume operations until October 31, 2012. See
Notice of Resumption of Operations (Nov. 2, 2012). The station operated at reduced power from October 31, 2012
until January 28, 2013, at which time it went silent again. See File Nos. BSTA-20121102ADT (requesting STA to
4

period of silence commenced on January 28, 2013. At this time, WOWZ(AM) has been silent for more
than 6 months. WOWZ(AM) is not a viable competitor.33 For this reason, we will not count
WOWZ(AM) as part of the Roanoke Metro for purposes of our analysis.34
Excluding WWOZ(AM), 45 commercial and noncommercial full power stations are "home" to the
Roanoke Metro. Under the Commission's local radio ownership rule, in a radio market with 45 or more
full-power commercial and noncommercial radio stations, an entity may hold a cognizable interest in up
to a total of 8 commercial radio stations, not more than 5 of which are in the same service. MWI
currently holds cognizable interests in 4 FM and 2 AM radio stations in the Roanoke Metro. Its proposed
acquisition of WLNI(FM) would result in it owning 5 FM and 2 AM stations. This is permissible under
the local radio ownership rule.35
Other Public Interest Concerns. 3 Daughters asserts that approval of this assignment "will
discourage opportunities for females, minorities and small business to secure financing and to expand in
the marketplace."36 Three Daughters has provided no support for this generalized allegation. We consider
this allegation no further.

Conclusion/Actions.

Based on the evidence before us, we find no substantial and material
questions of fact that warrant further inquiry. We conclude that the Applicants are fully qualified and that
grant of the Assignment Applications will serve the public interest, convenience, and necessity.
Accordingly, IT IS ORDERED that the Petition to Deny filed by 3 Daughters Media Inc. on February 1,
2013, IS DENIED. IT IS FURTHER ORDERED, that the application to assign the license for stations
WLNI(FM), Lynchburg, Virginia (File No. BALH-20130104ABX), from Centennial Licensing, LLC to
Mel Wheeler Inc. IS GRANTED.
Sincerely,
Peter H. Doyle
Chief, Audio Division
Media Bureau

operate at reduced power and from a different site) and BLSTA-20130207AAX (requesting STA to remain silent
and citing financing as the reason for going silent). At that time, the station's owner indicated it "hope[d] to be back
up and operating within the next 90 days." To date, the station has not resumed operations.
33 Revision of Radio Rules and Policies, Memorandum Opinion and Order and Further Notice of Proposed
Rulemaking, 7 FCC Rcd 6387 39 (1992). While the Commission decided to exclude stations that have been dark
for more than 6 months when it defined local radio markets using the contour overlap methodology, the reasoning
behind the decision that a station that has been dark for more than 6 months is not a viable competitor remains
equally valid under the current rule.
34 Given our finding, we need not reach 3 Daughters' argument that we should exclude WOWZ(AM) because of its
limited signal coverage. Petition at 7.
35 Given this conclusion, we need not address Applicants' argument that we should redefine the Roanoke Metro to
include additional counties. Opposition at 11-12.
36 Petition at 2, 9.
5

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