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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In re Application of ) ) WZAD, INC. ) Assignor ) ) File No. BALH-950912GF and ) ) BEEHIVE ENTERTAINMENT ) CORPORATION ) Assignee ) ) For Assignment of License of ) WZAD(FM), Wurtsboro, New York ) MEMORANDUM OPINION AND ORDER Adopted: July 1, 1997 Released: July 10, 1997 By the Commission: 1. The Commission has before it an April 23, 1996 application for review filed by Charles A. Stewart ("Stewart") of a March 28, 1996 letter ruling from the Chief, Audio Services Division, Mass Media Bureau ("Bureau"). By that action, the Bureau dismissed Stewart's December 6, 1995 petition for reconsideration of the Audio Services Division's ("Division") earlier denial of Stewart's informal objection to the above-captioned assignment of Station WZAD(FM), Wurtsboro, New York, from WZAD, Inc. to Beehive Entertainment Corporation ("Beehive"). Beehive opposes Stewart's application for review. For the reasons stated below, we deny Stewart's request for review. Background 2. On October 24, 1995, Stewart filed an informal objection against the subject application, contending that he had raised an issue of misrepresentation in a proceeding involving the acquisition of stations in Middletown, New York, by an entity in which Beehive's sole stockholder is also the sole stockholder. Stewart argued that the pendency of the misrepresentation allegations in the Middletown proceeding required the Commission to defer action on the WZAD(FM) assignment until resolution of the allegations. Stewart further claimed that grant of the subject application would result in Beehive's undue concentration of control of radio stations in the Mid-Hudson Valley area. The staff denied Stewart's informal objection. On reconsideration, the staff found that Stewart lacked standing to appeal the staff decision because he had not met the standard set forth in 47 CF.R.  1.106 and that he failed to raise any matters that would necessitate sua sponte reconsideration of that decision. Thus, the Bureau dismissed Stewart's pleading. 3. Stewart now contends that the Bureau erred in failing to accord him standing on reconsideration and that, even if he had failed to establish standing for reconsideration, he had provided evidence of misrepresentation which the Bureau should have considered on its own motion before granting the WZAD(FM) assignment application. Stewart questions how the Bureau was able to determine that there was insufficient evidence of misrepresentation to warrant denial of the WZAD(FM) assignment while the misrepresentation allegations were still pending against the assignment of the Middletown stations. He also argues again that the Commission should have addressed the question of whether Beehive's acquisition of a seventh commonly owned or controlled radio station in the "Mid-Hudson Valley radio market" would result in an undue concentration of control, notwithstanding Beehive's compliance with 47 C.F.R.  73.3555. Discussion 4. Even assuming, arguendo, that Stewart had demonstrated standing to file a petition for reconsideration in the instant proceeding, the allegations raised in that pleading are clearly without merit. The issues raised by Stewart in a petition to deny and subsequent petition for reconsideration in the Middletown proceeding had been considered by the staff and resolved in favor of the Middletown applicants prior to approval of the license assignment of WZAD(FM) to Beehive. Furthermore, the alleged "misrepresentation" concerned a statement attributed to the assignor in the Middletown proceeding and was raised for the first time in connection with Stewart's application for review. Stewart had not alleged misrepresentation on the part of either WZAD, Inc. or Beehive, or against the principals of either entity. In any event, we have now considered Stewart's application for review of the grant of the Middletown applications and all allegations have been resolved in favor of the applicants. See Atlantic Morris, 11 FCC Rcd at 4723. 5. The argument that Beehive's acquisition of WZAD(FM) would result in an undue concentration of control is also without merit and is basically the same argument raised by him in the Middletown proceeding. See Atlantic Morris, 11 FCC Rcd at 4723. Stewart merely alleged that the grant of the WZAD(FM) application would result in the common ownership of seven radio stations in a single "Mid- Hudson Valley" market. The seven stations involved are WEOK(AM)/WPDH(FM), licensed to Poughkeepsie, New York, and WCZX(FM), licensed to Hyde Park, New York; WALL(AM)/WRRV(FM), licensed to Middletown, New York; WZAD(FM), licensed to Wurtsboro, New York; and WPDA(FM), licensed to Jeffersonville, New York. Stewart suggested that the fact that one of the Poughkeepsie FM stations (WPDH(FM)) received a reportable audience share in the Arbitron designated "Newburgh- Middletown, NY (Mid-Hudson Valley)" radio metro market was evidence that the stations were part of a single radio market, despite the fact that Arbitron lists WEOK(AM)/WPDH(FM), Poughkeepsie, and WCZX(FM), Hyde Park, in a separate "Poughkeepsie" radio metro market. 6. In the applications to acquire WALL(AM) and WRRV(FM) in Middletown, New York, and WZAD(FM) in Wurtsboro, New York, Beehive's principals demonstrated that the proposed common ownership of these stations complied in all respects with the local radio ownership rules then in effect. Under both the former rules and the rules as revised pursuant to the Telecommunications Act of 1996, a local radio market is defined by the area encompassed by the principal community contours of the mutually overlapping stations proposed to be co-owned. See Implemtation Order, 11 FCC Rcd at 12370. Beehive showed that the proposed common ownership of four radio stations in the Newburgh-Middletown area and the three radio stations that it already owned in the Poughkeepsie/Hyde Park area would result in its ownership of radio stations in three separate local radio markets, each composed of stations with mutually overlapping principal community contours: (1) WEOK(AM)/WPDH(FM), Poughkeepsie, and WCZX(FM), Hyde Park; although the contours of these stations overlap each other, contour overlap does not exist between any of these stations and any other station proposed to be commonly owned; (2) WALL(AM)/WRRV(FM), Middletown, and WZAD(FM), Wurtsboro; and (3) WZAD(FM), Wurtsboro, and WPDA(FM), Jeffersonville, New York. Beehive also demonstrated that it complied with the numerical ownership limits and, where applicable, with the audience share benchmark, relevent to these separate local markets. 7. Our local radio ownership rules were at the time of the underlying decision in this case and continue to be based on the existence of principal community contour overlap between commonly owned stations. This market definition reflects our determination that the contour overlap standard best addresses our core concerns with competition and diversity. See Revision of Radio Rules and Policies, 7 FCC Rcd 6387, 6395. Here, there is no overlap of relevent contours between the Poughkeepsie/Hyde Park stations and any other station that is commonly owned by Beehive or its principals. In the absence of such overlap, there is no common local radio market to assess and application of the radio ownership rules and the concerns they address are not triggered, therefore, as regards those stations. 8. Accordingly, IT IS ORDERED, that the April 23, 1996, Application for Review filed by Charles A. Stewart IS DENIED; and the May 5, 1996 motion to strike and October 25, 1996 motion to hold in abeyance, also filed by Charles A. Stewart, ARE DISMISSED as moot . FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary