Federal Communications Commission
Washington, D.C. 20554
February 24, 2014
In Reply Refer to:
Released: February 24, 2014
Lewis J. Paper, Esq.
Pillsbury Winthrop Shaw Pittman LLP
2300 N Street, N.W.
Washington, DC 20037-1122
Anne Goodwin Crump, Esq.
Fletcher, Heald & Hildreth, PLC
1300 North 17th St., 11th Floor
Arlington, VA 22209
Larry Perry, Esq.
11464 Saga Lane, Suite 400
Knoxville, TN 37931-2819
DKTDK(FM), Sanger, TX
Facility ID No. 26146
File No. BALH-20130701ADA
File No. BLH-20050309AAI
Application for Assignment of License
Cancellation of License
Petitions for Reconsideration
We have before us an October 21, 2013, Petition for Reconsideration (“Assignment Petition”)1 jointly
filed by Whitley Media, LLC (“Whitley”) and North Texas Radio Group, L.P. (“North Texas”) seeking
reconsideration of a September 19, 2013, staff decision2 dismissing the referenced application (“Assignment
Application”) which sought approval for a proposed assignment of license for Station KTDK(FM), Sanger,
Texas (“Station”) from Susquehanna Radio Corp., a subsidiary of Cumulus Media, Inc. (“Susquehanna” or
“Cumulus”), to Whitley. We also have before us a November 22, 2013, Petition for Reconsideration
(“License Petition”)3 filed by Whitley and North Texas seeking reconsideration of the staff’s October 18,
1 Whitley and North Texas filed a Supplement to the Assignment Petition (“Supplement”) on November 12, 2013.
We note that on October 31, 2013, First IV Media, Inc. (“First IV”), licensee of Station KGAF(AM), Gainesville,
Texas, filed a Motion to Dismiss the Petition (“Motion”), which, on November 13, 2013, Whitley and North Texas
opposed (“Opposition to Motion”). On November 25, 2013, First IV replied (“Reply”) to the Opposition to Motion.
2 See Lewis J. Paper, Esq., and Larry Perry, Esq.,
Letter, DA 13-1938 (MB rel. Sep. 19, 2013) (“Staff Decision
3 On November 25, 2013, Whitley and North Texas filed a Supplement to the License Petition (“License Petition
2013, cancellation of the Station’s license, per licensee Cumulus’ request.4 For the reasons stated below, we
dismiss the Supplements, dismiss the License Petition, and dismiss the Assignment Petition.
The Station was located on the fringe of the Dallas-
Ft. Worth, Texas, radio market,
the fifth-largest radio market in the country.5 In that market, a party may own or hold attributable
interests in up to eight radio stations, no more than five of which may be in the same service.6 Cumulus,
through subsidiaries such as Susquehanna, owned five FM stations and three AM stations in the market.7
Whitley is wholly owned by Mr. William Whitley, an experienced media broker working for the Media
Services Group, a nationally recognized media brokerage firm.
On July 1, 2013, Susquehanna filed the Assignment Application proposing to assign the Station
to Whitley. The Assignment Application included an amended Asset Purchase Agreement (“APA”)
submitted by the parties. The stated consideration for the sale was: (1) one hundred dollars ($100) in
cash at Closing and (2) all proceeds which Buyer receives from the subsequent sale of the Station Assets,
less (a) fifty thousand dollars ($50,000); (b) all reasonable expenses incurred by Whitley from the
operation of the Station and the ownership and holding of the Station Assets after Closing; and (c) all
reasonable expenses incurred by Buyer in the marketing and subsequent sale of the Station. Further,
Whitley was to “use commercially reasonable efforts to sell the Station Assets for the maximum amount
of consideration available in the market.”8
On August 7, 2013, Cumulus announced that it had reached a long-term Local Marketing
Agreement (“LMA”) for it to program Station KESN(FM), Dallas, Texas, effective upon the closing of
the Station’s sale.9 But for consummation of the Assignment Application, the LMA would result in
Cumulus having an attributable interest in nine radio stations, six of which were FM stations in the
Dallas-Ft. Worth market, in violation of the local radio ownership provisions in Section 73.3555(a)(1)(i)
of the Commission’s Rules (the “Rules”).
On September 19, 2013, the staff dismissed the Assignment Application, finding that Cumulus’
and Whitley’s characterization of the transaction was untenable. The staff found that, in fact, the
transaction was a brokerage agreement in which Whitley was tasked with finding a buyer for the Station
4 See Letter to Marlene H. Dortch, Secretary, FCC,
filed September 30, 2013, by Susquehanna, giving notice that
the Station would permanently discontinue operations as of 11:59 p.m. on Sunday, October 6, 2013, in accordance
with 47 C.F.R. § 73.1750 and that the license and all other instruments of authorization would be forwarded to the
Commission on Monday, October 7, 2013. See Broadcast Actions,
Public Notice, Report No. 48100 (rel. Oct. 23,
Arbitron Commission Radio Market Rankings: Spring 2013.
6 47 C.F.R. § 73.3555(a)(1)(i).
7 WBAP(AM), Fort Worth (Fac. ID No. 71200); WBAP-FM, Flower Mound (Fac. ID No. 26468); KSCS(FM), Fort
Worth (Fac. ID No. 71201); KLIF(AM), Dallas (Fac. ID No. 35061); KPLX(FM), Fort Worth (Fac. ID No. 54675);
KLIF-FM, Haltom (Fac. ID No. 27299); and KTCK(AM), Dallas (Fac. ID No. 8773).
Assignment Application, Exhibit 5 and Attachment 5 (emphasis in original).
Motion at Attachments 1 and 2 (ESPN Audio Restructures Operations in the Dallas Market
, ESPN Media
Zone, Aug. 7, 2013 and Cumulus to LMA ESPN 103.3 Dallas
, Radio Insight, Oct. 4, 2013); see also
October 8, 2013, and filed by Cumulus and KESN Assets, LLC, an ESPN affiliate, on January 28, 2014.
and was to be compensated for doing so by the payment of a $50,000 flat fee when that transaction
On September 24, 2013, Cumulus filed a petition for reconsideration of the staff’s dismissal of
the Assignment Application. On September 27, 2013, Cumulus and Whitley further amended the
Assignment Application’s APA to modify the purchase price of the Station to an amount slightly greater
than market value and to confirm that Cumulus would no longer have an attributable interest in the
Station upon assignment to Whitley. However, on September 30, 2013, Cumulus surrendered the
Station’s license for cancellation and shortly afterward requested withdrawal of its petition for
reconsideration.10 On October 21 and November 22, 2013, respectively, Whitley and North Texas timely
filed the Assignment Petition and License Petition.
In the Assignment Petition, Whitley and North Texas state that Whitley and North Texas had
entered into a “letter of intent” pursuant to which North Texas agreed to purchase the Station from
Whitley once Whitley acquired it from Cumulus.11 Whitley and North Texas contend that the
Assignment Application, with the September 27, 2013, amendment to the APA, should be reinstated and
immediately granted, “conditioned upon an immediate consummation of the assignment to Whitley,” so
that the Station may be further assigned to North Texas.12 Whitley and North Texas argue that this
outcome would be in the public interest because it would advance the Commission’s goal of localism, and
the residents of Sanger, Texas, would thus retain a commercial station to serve their needs and interests.13
In the Supplement, Whitley and North Texas acknowledge that, due to the LMA with Station KESN(FM),
grant of the Assignment Petition would cause Cumulus briefly to have attributable interests in excess of
the local market caps in Section 73.3555(a) of the Rules until the Station is assigned to Whitley.14
Therefore, they request a waiver of the Rules so that the silent Station could resume providing local
service to the residents of Sanger, Texas, rather than allowing the frequency to remain vacant for “several
years” until an allotment proceeding concludes.15
In the License Petition, Whitley and North Texas seek reinstatement of the cancellation of the
Station’s license. They reiterate the arguments made in the Petition, stressing that a brief, temporary
waiver of the local radio ownership caps until Cumulus can assign the Station to Whitley would be in the
public interest. In the License Petition Supplement, Whitley and North Texas attach a Declaration made
under penalty of perjury by Susquehanna’s Senior Vice President and General Counsel Richard S.
Denning stating that Cumulus’ subsidiary Susquehanna has no objection to the relief sought by Whitley
and North Texas “if the grant of such relief will not have any adverse effect on Susquehanna or its
affiliates, including any non-compliance with the FCC’s multiple ownership rules which has not been
Notice of Withdrawal of Petition for Reconsideration filed October 17, 2013. See also
long-term LMA with Station KESN(FM), Dallas, took effect on October 8, 2013.
11 Assignment Petition at 2.
at 2 and 5. Commission records indicate that Whitley and North Texas never filed an application for consent
to the assignment of the Station from Whitley to North Texas.
at 5, 6.
14 Supplement at 2.
License Petition Supplement at Attachment (“Declaration of Richard S. Denning”).
. Section 405(a) of the Communications Act of 1934, as amended (the “Act”), states
that any party to an order, decision, report, or action, or any other person aggrieved or whose interests are
adversely affected, may petition for reconsideration.17 In order to show standing, a petitioner who is not a
party to the proceeding must: (1) state with particularity the manner in which its interests are adversely
affected by the action taken, and (2) show good reason why it was not possible to participate in the earlier
stages of the proceeding.18 To determine if a party's interests have been adversely affected, the
Commission frequently relies upon a three-pronged standing test under which a party must establish: (1)
a distinct and palpable injury-in-fact that is (2) traceable to the respondent's conduct and (3) redressable
by the relief requested.
Initially, we note that Section 1.45 of the Rules19 specifies that only a petition, an opposition, and
a reply may be filed unless additional pleadings are specifically requested or authorized by the
Commission. In this case, the Commission has neither requested nor authorized the filing of additional
pleadings, and they add no decisionally significant facts to the record here. Such unauthorized pleadings
are subject to dismissal without consideration,20 and we will dismiss Whitley’s and North Texas’
supplemental pleadings below. 21
In the License Petition,
Whitley and North Texas assert that they have standing to petition for
reconsideration as potential assignees adversely affected by the cancelled license.22 We disagree.
Whitley and North Texas have no rights with regard to the Station’s license and therefore no interest
which could be adversely affected by the surrender and cancellation of the Station license.23 Also, as a
mere applicant and potential licensee, Whitley and North Texas fail to demonstrate that their interests
have been “adversely affected” by the voluntary cancellation of the Station’s license.24 Accordingly, we
will dismiss the License Petition.25
that Whitley and North Texas had standing to file the License Petition, we
are unable to provide the relief requested, namely, reinstatement of the Station’s license to Cumulus and
17 47 C.F.R. § 405(a).
18 47 C.F.R. § 1.106(b)(1).
19 47 C.F.R. § 1.45.
20 See, e.g., Lee. G. Petro, Esq.
, Letter, 25 FCC Rcd 4486, 4488 (MB 2010) (dismissing pleadings not authorized by
21 See, e.g., John Garziglia, Esq., Peter Guttman, Esq., John S. Neely, Esq.,
Letter, 20 FCC Rcd 12105, 12107 (MB
2005) (unauthorized pleadings provide the record no decisionally significant facts that are required to be considered
in our determination of the public interest).
22 License Petition at 1.
23 See Scott R. Flick, Esq.,
Letter, 24 FCC Rcd 9064, 9065 (MB 2009) recon. denied
, 25 FCC Rcd 13725 (MB 2010)
”) (“[P]otential licensee . . . has no rights with regard to assignment or disposal of this license and therefore
no interest which could be adversely affected by its cancellation.”).
24 See, e.g., Jose A. Ortiz Lozada,
Hearing Designation Order, 3 FCC Rcd 3943 n.2 (MMB 1988) (in a short-spacing
proceeding, a “mere applicant” for a channel is not a party to the proceeding and lacks standing).
25 See, e.g., Benedek Broadcasting of the Virgin Islands, Inc.,
Letter, 14 FCC Rcd 13554, 13555 (MMB 1999)
”) (petition for reconsideration, seeking review of staff decision cancelling station’s license, deleting call
letters and dismissing application for assignment of license, dismissed).
subsequent waiver of the Commission’s radio ownership rules. The Commission has no authority to
require any party to hold or, as is the case here, to reacquire a license and to accept the corresponding
duties and responsibilities of a licensee.26 Moreover, in order to affect the potential assignment Whitley
and North Texas seek, we would be required to return the Station license to Cumulus, which would cause
Cumulus to be in violation of the local radio ownership rules.
With the dismissal of the License Petition, the cancellation of the Station’s license remains in
effect. Therefore, there is nothing to assign.27 Accordingly the Assignment Petition also will be
dismissed as moot.
. Accordingly, IT IS ORDERED, that the Supplements filed on November
12 and 25, 2013, by Whitley Media, LLC, and North Texas Radio Group, L.P., ARE DISMISSED.
IT IS FURTHER ORDERED, that the October 21, 2013, and November 22, 2013, Petitions for
Reconsideration filed by Whitley Media, LLC, and North Texas Radio Group, L.P., ARE DISMISSED.
Peter H. Doyle
Chief, Audio Division
26 See Flick,
24 FCC Rcd at 9066 (Commission cannot force a license upon a party).
27 See Jefferson Radio Corp. v. FCC
, 340 F.2d 781, 783 (D.C. Cir. 1964) (“It is the recognized policy of the
Commission that assignment of broadcast authorization will not be considered until the Commission has determined
that the assignor has not forfeited the authorization.”); see also A-1-A Repeater Company
, Memorandum Opinion
and Order, 16 FCC Rcd 9748 ¶ 7 (2001) (grant of assignment application set aside; Commission holds there was no
authorization to assign because license had automatically cancelled).