Federal Communications Commission
Washington, D.C. 20554
April 3, 2013
DA 13-601In Reply Refer to:
Released: April 3, 2013
Stuart W. Nolan, Jr., Esq.
4 Family Life Lane
Front Royal, VA 22630
Lee W. Shubert, Esq.
Sciarrino & Shubert PLLC
5425 Tree Line Drive
Centreville, VA 20120
In re: WDND(AM), South Bend, IN
Facility ID No. 87112
Artistic Media Partners, Inc.
File No. BAL-20121207AAU
Application for Assignment of License
Dear Mr. Nolan and Mr. Shubert:
We have before us the referenced application (“Application”) filed on December 7, 2012, by
Artistic Media Partners, Inc. (“Artistic”) requesting approval to assign Station WDND(AM), South Bend,
Indiana (“Station”) to Fort Wayne Catholic Radio Group, Inc (“Fort Wayne”). For the reasons set forth
below, we deny the Application.
. Pursuant to the Review of the AM Service Order
,1 the Commission permitted AM
licensees awarded expanded band frequencies to operate both the standard band AM station and the
expanded band AM station for a period of five years from the grant of the license for the expanded band
station. One of the stated goals of this proceeding was not to authorize more AM stations, but rather to
“improve the technical quality of the AM service . . . by reducing congestion and interference in the AM
band.”2 Thus, the dual operating authority was conditioned on the surrender of one of the two licenses at
the end of this period.3 Additionally, licensees and permittees granted dual operating authority are not
permitted to assign or transfer control of the authorization of one of the “paired” frequencies.4
The Station is an AM expanded band station licensed on May18, 2001.5 Its paired lower band
1 See Review of the Technical Assignment Criteria for the AM Broadcast Service
, Report and Order, 6 FCC Rcd
6273 (1991) (“Review of the AM Service Order
”), recon. granted in part and denied in part
, 8 FCC Rcd 3250
(1993), recon. granted in part and denied in part
, 10 FCC Rcd 12143 (1995), recon. denied
, 11 FCC Rcd 12444
(1996), recon. granted in part and denied in part
, 12 FCC Rcd 3361 (1997).
2 Review of the AM Service Order
, 6 FCC Rcd at 6276.
3 See, Review of the AM Service Order. See also, WGIT(AM), Canovanas, PR,
Letter, 21 FCC Rcd 2200, 2202,
n.16 (MB 2006) (discussing the assignment of one license in an expanded band pair and the need to surrender one
upon expiration of the trial period, respectively.)
4 47 C.F.R. § 73.1150(c), Review of AM Service Order
, 6 FCC Rcd at 6320.
BL-19981116AG, granted on May 18, 2001.
station is WHLY(AM), South Bend, Indiana, currently owned by Times Communications, Inc (“Times”).
On September 24, 1999, Times filed an assignment application to assign both WDND(AM) and
WHLY(AM) to Artistic (the “1999 Assignment Application”).6 The staff granted the uncontested
application on November 23, 1999. However, notwithstanding the prohibition on severing the paired
stations, on March 31, 2000, Artistic consummated the sale only of WDND(AM). Artistic subsequently
informed the staff that it did not consummate the acquisition of WHLY(AM) “due to environmental
issues,” and indicated that it intended to continue operating WDND(AM) notwithstanding the imminent
expiration of the five-year transition period.7 On December 7, 2012, Artistic filed the Application.
Neither party indicated that the Station had once been part of a jointly-operated AM station pair or that
the assignment was unique in any way. Additionally, the parties certified that the agreements for the sale
of the Station “comply fully with the Commission’s Rules and policies.”8
As stated above, Times and Artistic violated Section 73.1150(c) of the
Commission’s Rules (“Rules”)9 subsequent to grant of the 1999 Assignment Application. Therefore,
although none is requested here, we cannot grant the Application without waiving that Rule.
The Commission may waive its policies or rules upon a showing of good cause. It also may
exercise its discretion to waive a policy or rule where the particular facts make strict compliance
inconsistent with the public interest.10 In addition, the Commission may take into account considerations
of hardship, equity, or more effective implementation of overall policy on an individual basis.11
However, waiver of the Commission’s policies or rules is appropriate only if both (i) special
circumstances warrant a deviation from the general rule, and (ii) such deviation will serve the public
We will not waive Section 73.1150(c) on the facts presented here, and we deny the Application
and reject any further assignment of this license except as specified below. There are no “special
circumstances” here, as the rule violation was occasioned by Artistic’s own conduct and, as evidenced by
the License Surrender Letter
, undertaken with full knowledge of the Rules. Additionally, grant of the
Application would be contrary to the public interest, as it would have several negative consequences. It
would: (1) constitute a further violation of a Commission-imposed processing policy; (2) bestow a further
benefit on a party that knowingly engaged in such violation; (3) be unfair to those licensees that have
returned one of the paired licenses;13 and (4) be inconsistent with the expanded band licensing principle
that each licensee surrender one license at the expiration of the dual operating authority period. We note
that the Commission has faced a similar situation involving standard band station WMHG(AM),
Muskegon, Michigan, and its expanded band paired station WPRR(AM) (then WDSS(AM)), Ada,
File No. BAP-19990924AAG.
7 Artistic stated that, if the continued operation of WHLY is not authorized, it presumed Times would cease
operation of that Station by May 18, 2006, and that “any efforts to sustain or continue the operation of [WHLY]
beyond May 18, 2006, will be undertaken by, and should be attributed to, [Times] only.” Letter from Lee Shubert,
, (rec’d May 1, 2006) (“License Surrender Letter
8 Application, Section II, Item 3.c. and Section III, Item 3.b.
9 47 C.F.R. § 73.1150(c).
10 Northeast Cellular Telephone Co. v. FCC,
897 F.2d 1164, 1166 (D.C. Cir. 1990) (“Northeast Cellular
11 WAIT Radio,
418 F.2d at 1159; Northeast Cellular,
897 F.2d at 1166.
12 Network IP, LLC v. FCC,
548 F.3d 116, 125-128 (D.C. Cir. 2008); Northeast Cellular,
897 F.2d at 1166.
13 See Promoting Diversification of Ownership in the Broadcasting Services
, Report and Order and Third Further
Notice of Proposed Rule Making, 23 FCC Rcd 5922, 5952 (2007) (noting that, “To date, 19 licensees have
surrendered their lower band licenses and one licensee has surrendered its expanded band license at the end of each
of these licensees's five-year dual operating authority period.”).
Michigan, and similarly declined to grant the subsequent assignment of one of the expanded band station
Accordingly, we find that grant of the Application would not serve the public interest and
therefore deny the Application pursuant to Section 309(a) of the Communications Act of 1934, as
amended.15 We note that the only assignment application we will approve for this Station is one which
will result in the Station and WHLY(AM) being held by a single licensee.
Accordingly, IT IS ORDERED that the application for consent to assignment of
license for Station WDND(AM), South Bend, Indiana, filed on December 7, 2012, by Artistic Media
Partners, Inc. and Fort Wayne Catholic Radio Group, Inc. (File No. BAL-20121207AAU), IS DENIED.
Peter H. Doyle
Chief, Audio Division
cc: Artistic Media Partners, Inc.
Fort Wayne Catholic Radio Group, Inc.
14 In that case, Goodrich initially held the license for standard band station WMHG(AM) and obtained a
construction permit for a paired expanded band station (WPRR(AM)) at 1680 KHz. In August of 1999, Goodrich
assigned the license for WMHG to Connoisseur Communications of Muskegon, L.P. (“Connoisseur”) (see
BAL-19990608GJ, granted on July 28, 1999), while retaining ownership of WDSS(AM), in violation of Section
73.1150(c). Connoisseur subsequently sold WMHG(AM) to Cumulus Licensing, LLC(“Cumulus”) (See
BAL-19991208ABA, granted on March 15, 2000). Later that same year, Goodrich filed a request for nunc pro tunc
waiver that would retroactively excuse Goodrich’s apparent breach of Section 73.1150(c) of the Rules and allow
Goodrich to continue owning and operating the AM expanded band station separately from its standard band
companion, and Cumulus applied for Commission approval to assign WMHG(AM) to Clear Channel
Communications, Inc. (See
File No. BAL-20000817ADC). See Existing Shareholders of Clear Channel
Communications, Inc. (Transferors),
Memorandum Opinion and Order, 23 FCC Rcd 1421, 1435 (2008).
Ultimately, pursuant to settlement, Cumulus surrendered the authorization for WMHG(AM) and requested dismissal
of the application to assign the station license to Clear Channel.
15 47 U.S.C. §309(a).