Federal Communications Commission
Washington, D.C. 20554
December 7, 2012
In Reply Refer to:
Released: December 7, 2012
David D. Burns, Esq.
Latham & Watkins LLP
555 Eleventh Street, N.W. Suite 1000
Washington, D.C. 20004
Gregory L. Masters, Esq.
Wiley Rein LLP
1776 K Street N.W.
Washington, D.C. 20006
Barry A. Friedman, Esq.
Thompson Hine LLP
1920 N Street, N.W. Suite 800
Washington, D.C. 20036
WOR(AM), New York, New York
Facility ID No. 7710
File No. BAL-20120816AAQ
Application for Assignment of License
WHTZ(FM), Newark, NJ
Facility ID No. 59953
File No. BRH-20060201AAU
Application for Renewal
We have before us the above-referenced application (“Assignment Application”) seeking
approval for the proposed assignment of the license for station WOR(AM), New York, New York, from
Buckley Broadcasting/WOR, LLC (“Buckley”) to AMFM Radio Licenses, LLC (“AMFM”), a subsidiary
of Clear Channel Communications, Inc. (“Clear Channel”).1 Also before us is the above-referenced
application of AMFM for renewal of the license for station WHTZ(FM), Newark, New Jersey (the
“Renewal Application”) (collectively, the “AMFM Applications”). On September 19, 2012, Connoisseur
Media of Long Island, LLC (“Connoisseur”) filed an Informal Objection to both AMFM Applications
File No. BAL-20120816AAQ, Exhibit 13.
(“Informal Objection”), raising issues related to the divestiture of a number of former Clear Channel
stations currently held by Aloha Station Trust (“AST”). AST and AMFM each filed responsive
pleadings.2 For the reasons set forth below, we deny the Informal Objection and grant the Assignment
In an order released January 8, 2008, the Commission granted consent to the
transfer of control of Clear Channel from its public shareholders to two private equity funds.4 In order to
ensure compliance with the multiple ownership rules, the Commission conditioned its consent on the
divestiture of a number of Clear Channel stations (“Trust Stations”) to AST, a trust insulated from Clear
Channel control.5 In the Divestiture Order
, the Commission “encouraged [AST] to consummate the sale
of all the stations within six months of the [transfer of control] consummation date.”6 Clear Channel
consummated the assignments of the Trust Stations to AST on July 30, 2008, contemporaneously with the
consummation of the transfer of control of Clear Channel.7
Connoisseur argues that Clear Channel and AST have failed to divest all the Trust Stations within
six months as contemplated in the Divestiture Order
.8 Stations held in prolonged trust, Connoisseur
argues, do not compete aggressively with other stations and are merely “warehoused” to the detriment of
the public interest.9 The remedy, according to Connoisseur, is for the Commission to establish a final
divestiture period of six months, during which all remaining Trust Stations must be sold or risk the
licenses being revoked for willful failure to comply with an express Commission order.10 Connoisseur
also asks the Commission to postpone processing the AMFM Applications until the AST divestiture
issues raised by the Informal Objection have been resolved.11
AST responds that it has “acted with the requisite independence and has operated and controlled
the Trust Stations, consistent with its duty to preserve the assets of the Stations and maintain the status
2 On October 1, 2012, AMFM and AST filed separate letters opposing the Informal Objection (“AMFM Opposition”
and “AST Opposition,” respectively) (collectively, the “Oppositions”). On October 12, 2012, Connoisseur replied
to the Oppositions (“Connoisseur Reply”). On October 17, 2012, Buckley filed a Request for Expedited
Consideration of the Assignment Application.
3 The Renewal Application is currently subject to an unrelated administrative hold.
4 Existing Shareholders of Clear Channel Communications, Inc. (Transferors) and Shareholders of Thomas H. Lee
Equity Fund VI, L.P., Bain Capital (CC) IX, L.P., and BT Triple Crown Capital Holdings III, Inc. (Transferees)
Memorandum Opinion and Order, 23 FCC Rcd 1421 (2008) (“Divestiture Order
5 Divestiture Order
, 23 FCC Rcd at 1425-27.
. at 1427.
7 AST Opposition, Exhibit A at 3; See also, e.g.
, File Nos. BAL-20070619ABU (assignment of licenses to AST) and
BTCH-20061212CCF (transfer of control of Clear Channel).
8 Informal Objection at 2, 7.
. at 3, 7.
. at 7.
. at 7-8.
quo . . .”12 AST asserts that it has successfully divested the majority of the Trust Stations.13 Although it
has actively sought to sell the Trust Stations, AST says, that “task [is] made more difficult by a persistent
recessionary economy, a difficult lending environment, a shifting advertising marketplace, and the growth
of competing media targeting the over-the-air listening market . . .”14 In this regard, AST submits a
representative copy of the bi-annual status reports it has provided to the Commission regarding the
In reply to AST, Connoisseur suggests that if the terms of its recent offer to purchase one of the
Trust Stations were made public, they would “constitute specific allegations of fact sufficient to make a prima facie
case that AST is in violation of its obligations under the [Divestiture Order].”16 Connoisseur
also takes issue with AST’s declaration that AST is operating the Trust Stations competitively, arguing
that not only is AST prevented from taking “key actions such as entering into material contracts or
changing station formats” but that the profit motive, “which drives competitive economic activity . . . is
entirely absent in a trust situation . . . since all profits accrue to Clear Channel.”17
In its Opposition, AMFM contends that Connoisseur’s objection to both the AST divestiture
process and the AMFM Applications is a “strange and incongruous pairing.”18 It notes that the AST
divestiture process is the primary—nearly exclusive—focus of Connoisseur’s letter.19 Yet AST is not a
party to either AMFM Application; it is not proposing to acquire WOR(AM) and it is not the licensee of
WHTZ(FM).20 Neither WOR(AM) nor WHTZ(FM) are among the stations that Connoisseur claims are
“languish[ing]” in AST’s trusteeship.21 Moreover, AMFM observes, the Informal Objection “contains not
a single allegation concerning the particulars of the WOR assignment, or the performance of WHTZ
during the license term under review.”22 AMFM argues that Connoisseur has fabricated a connection
between these matters through “speculation that ‘further investigation’ into its [AST] allegations ‘could
result’ in information bearing upon Clear Channel’s truthfulness and candor.”23 Therefore, AMFM
12 AST Opposition at 2.
. at 2, n.5.
. at 3.
. at 2-3, Exhibit A.
16 Connoisseur Reply at 2.
. at 3.
18 AMFM Opposition at 1.
. at 2.
contends, Connoisseur has provided “nothing to justify any delay in, let alone denial of, the two Clear
Channel applications to which the letter purports to object.”24
In reply to AMFM, Connoisseur argues that Clear Channel is directly involved in the AST
divestiture because, under the Trust Agreement, Clear Channel sets the minimum sale price for the Trust
Stations.25 Furthermore, Connoisseur submits, Clear Channel participated as a party in the sale of at least
one Trust Station (WURH(FM), Waterbury, Connecticut) in violation of the Divestiture Order.26 In
support, Connoisseur submits a copy of the WURH(FM) sale agreement, in which Clear Channel is
identified as the “Seller.”27 These activities, according to Connoisseur, raise issues that bear upon Clear
Channel’s (and therefore, presumably, AMFM’s) qualifications as a Commission licensee.28
Informal objections, like petitions to deny, must allege properly supported facts that,
if true, would establish a substantial and material question of fact that grant of the application would be
inconsistent with the public interest.29 In this case, Connoisseur has failed to meet this threshold burden
with respect to the AMFM Applications. Connoisseur’s primary complaint is that AST has been dilatory
in its duty under the Trust Agreement30 to sell the Trust Stations “as soon as reasonably practicable.”31
We agree with AMFM that AST is not a party to either AMFM Application, since AST is not proposing
to acquire WOR(AM) and it is not the licensee of WHTZ(FM). Nor are WOR(AM) and WHTZ(FM)
among the Trust Stations at issue. Moreover, Connoisseur does not argue, nor do the facts suggest, that
AMFM—as a subsidiary of the trust beneficiary Clear Channel—is impeding the expeditious divestiture
of the Trust Stations or otherwise exercising improper influence over them. The Informal Objection does
not address the particulars of either the WOR assignment or AMFM’s performance as licensee during the
license term under review. Therefore, we decline to assess AST’s performance as a trustee in carrying
out timely divestitures of the Trust Stations in the context of the AMFM Applications.
With respect to Connoisseur’s argument regarding Clear Channel’s alleged unlawful participation
in the WURH(FM) sale, the evidence on record does not rise to the level of calling into question the
overall qualifications of either AST or Clear Channel—much less the relevant licensee, AMFM.32
25 Connoisseur Reply at 4.
. at 5-6.
., Exhibit A, File No. BALH-20090224ABA.
. at 5-6.
29 See, e.g.
, WWOR-TV, Inc.,
Memorandum Opinion and Order, 6 FCC Rcd 193, 197 note 10 (1990), aff'd sub nom.
Garden State Broadcasting L.P. v. FCC
, 996 F.2d 386 (D.C. Cir. 1993) (rehearing denied
); Area Christian
, Memorandum Opinion and Order, 60 RR 2d 862, 864 (1986) (”[I]nformal objections like petitions
to deny must also contain adequate and specific factual allegations sufficient to warrant the relief requested.”).
File No. BAL-20070619ABU, Exhibit 5.
31 Informal Objection at 4.
32 The Commission granted the WURH(FM) assignment of license from AST to Red Wolf Broadcasting
Corporation on April 10, 2009. See Broadcast Actions
, Public Notice, Report No. 46964 (Apr. 15, 2009). The
parties consummated the transaction on May 13, 2009. No petitions to deny were filed against the transaction, nor
were any reconsideration petitions filed against the grant. Therefore, to the extent that the Informal Objection
(continued . . .)
Connoisseur argues that Clear Channel’s participation in the sale of its formerly-owned station
WURH(FM) amounts to an unauthorized, de facto
transfer of control. To determine whether there has
been an unauthorized transfer of control, the Commission examines whether an entity other than the
licensee sets a station’s basic operating policies with respect to personnel, programming, and finances.33
Here, Connoisseur does not make any specific allegations regarding WURH(FM)’s personnel,
programming, and finances, nor does the WURH(FM) sale agreement provide evidence regarding such
day-to-day operational matters. Therefore, on the record before us, no substantial and material question
of fact has been raised regarding Clear Channel’s alleged control of station WURH(FM) or its
qualifications to be a Commission licensee.34 Moreover, Connoisseur’s allegations regarding station
WURH(FM) are highly attenuated from the matter before us: the AMFM Applications concern different
stations and a different corporate licensee. Accordingly, we find that Connoisseur fails to establish any
substantial or material question of fact whether AMFM is qualified to acquire or renew the licenses of
stations WOR(AM) or WHTZ(FM), respectively, on the basis of its parent Clear Channel’s alleged
involvement in the sale of WURH(FM).35 We therefore deny Connoisseur’s Informal Objection to the
We find that Connoisseur fails to establish a substantial and material
question of fact that grant of the AMFM Applications would be inconsistent with the public interest. We
also find that AMFM is qualified to hold the WOR(AM) and WHTZ(FM) station licenses and that grant
of the Assignment Application is consistent with the public interest, convenience, and necessity.
Accordingly, IT IS ORDERED that the Informal Objection filed by Connoisseur Media of Long Island,
LLC IS DENIED.
(Continued from previous page)
challenges the grant of the WURH(FM) assignment application, such a challenge is untimely. See
47 C.F.R. §
33 See WGPR, Inc.
, Memorandum Opinion and Order, 10 FCC Rcd 8140, 8142-46 (2005), vacated on other grounds
sub nom. Serafyn v. FCC
, 149 F.3d 1213 (D.C. Cir. 1998) (“WGPR
”); Choctaw Broadcasting Corporation
Memorandum Opinion and Order, 12 FCC Rcd 8534, 8538-39 (1997).
34 Should it come to our attention, however, that Clear Channel is impermissibly exercising de facto
control over the
operation of the Trust Stations in violation of the Commission’s rules or the Divestiture Order, we are prepared to
apply the full weight of available sanctions. See Clear Channel Broadcasting Licenses, Inc
., Memorandum Opinion
and Order and Notice of Apparent Liability for Forfeiture, 24 FCC Rcd 14078, 14095-14097 (2009) (finding that
Clear Channel exercised de facto
control over an AST station and issuing a notice of apparent liability for
35 See, e.g.
, 47 U.S.C. § 309(d) (prohibiting the Commission from considering “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.”).
IT IS FURTHER ORDERED that the application to assign the license of station WOR(AM),
New York, New York (FCC File No. BAL-20120816AAQ) from Buckley Broadcasting/WOR, LLC to
AMFM Radio Licenses, LLC IS GRANTED.
Peter H. Doyle
Chief, Audio Division