$// Bennett Gilbert Gaines (Baltimore MD) AM CP MM 90-125 FCC 95- 22 //$ $/ 300.309 Action on Applications /$ $/ 1.106 Petition for Reconsideration /$ $/ 73.3540 Application for Voluntary Assignment /$ $/ 500.3170 Financial Qualifications /$ $/ 500.3180 Site Availability or Suitability /$ ///newjob/// $///FCC 95-22,1/17/95///$ Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 FCC 95-22 In re Applications of ) MM Docket No. 90-125 ) BENNETT GILBERT GAINES, ) File No. BR-880830UA INTERLOCUTORY RECEIVER FOR ) MAGIC 680, INC. ) ) For renewal of License for ) Station WCBM(AM), ) Baltimore, Maryland ) ) BENNETT GILBERT GAINES, ) File No. BAL-881117EB INTERLOCUTORY RECEIVER FOR ) MAGIC 680, INC. ) (Assignor) ) ) and ) ) WCBM MARYLAND, INC. ) (Assignee) ) ) For Consent to the Assignment ) of License of Station WCBM(AM) ) Baltimore, Maryland ) ) MOUNT VERNON BROADCASTING ) File No. BP-880901AD Baltimore, Maryland ) ) For a Construction Permit ) for a New AM Station on 680 ) kHz at Baltimore, Maryland ) MEMORANDUM OPINION AND ORDER Adopted: January 12, 1995; Released: January 20, 1995 By the Commission: 1. By this action we deny a Petition for Reconsideration filed March 2, 1994, by Mount Vernon Broadcasting (MVB), and Petition for Expedited Relief filed March 17, 1994 by Bennett Gilbert Gaines (Gaines) and WCBM Maryland, Inc. (WMI), and we affirm a Commission order, Bennett Gilbert Gaines, 9 FCC Rcd 533 (1994), which in turn, affirmed that part of a Review Board Decision which found MVB was not financially qualified to be a licensee and denied MVB's application. Bennett Gilbert Gaines, 8 FCC Rcd 1405, recon. denied, 8 FCC Rcd 3986 (Rev. Bd. 1993). The Commission also resolved an unauthorized transfer of control issue in favor of Gaines and WMI, but remanded the proceeding for further hearings concerning the candor of WMI's principal. 2. MVB's Petition for Reconsideration challenges the finding that MVB lacks funds to finance the purchase of its proposed transmitter site and that it is not financially qualified to be a licensee. MVB previously presented arguments concerning its financial qualifications in its Application for Review. It is well settled that a petition for reconsideration which simply reiterates arguments that were previously considered and rejected will be denied. WWIZ, Inc., 37 FCC 685 (1965), aff'd sub nom. Lorain Journal Co. v. FCC, 351 F.2d 825 (D.C. Cir. 1965), cert. denied, 383 U.S. 967 (1966). Thus, MVB's repetitive arguments are not entitled to further consideration. To the extent that MVB presents new facts seeking to establish its financial qualifications, its proffer is untimely, the facts alleged are not part of the record, and the record establishes that MVB is not financially qualified to be a licensee. Further comments, however, are warranted with respect to arguments by MVB concerning Bechtel v. FCC, 10 F.3d 875 (D.C. Cir. 1993), whether the Commission should modify its site availability policies to assume that WCBM's antenna site would be available to MVB as a successor licensee, and the impact of the remanded candor issue on the unauthorized transfer of control issue, as well as Gaines' and WMI's argument that Gaines was improperly assigned the burden of proof in the remanded proceeding. 3. Bechtel: MVB in essence argues that in light of the Commission's post-Bechtel freeze and its status as a minority applicant, the Commission should recognize that MVB can in fact fulfill the Commission's policy relating to the financial qualifications of broadcast applicants. Although MVB in this regard cites Statement on Minority Ownership of Broadcast Facilities, 68 FCC 2d 979, 981 (1978), we have never interpreted our policies favoring minority ownership as excusing an applicant from meeting all relevant qualifications requirements. Even where an applicant is the sole remaining applicant, its failure to establish its financial qualifications in a timely manner is a valid consideration justifying the denial of its application. Pontchartrain Broadcast Co. v. FCC, Case No. 93-1291 (D.C. Cir., Feb. 11, 1994). Thus, even though MVB's principal is a minority group member, its failure to establish its financial qualifications during the hearing in this proceeding fully justifies the denial of its application. 4. Site Availability: MVB argues that in George E. Cameron Communications, 71 FCC 2d 460 (1979), the Commission established a policy in comparative renewal proceedings assuming that the renewal applicant would be receptive to the challenger's offer to purchase or lease the physical facilities. It asserts that the Commission abandoned that policy in the First Report and Order in Docket 81-742, 4 FCC Rcd 4780 (1989), and as a result placed an unrealistic burden on MVB to show that it had the ability to acquire, rather than simply leasing, WCBM's current transmitter site. 5. MVB's argument is untimely and is procedurally deficient under 47 C.F.R.  1.106(b)(2). In any event, MVB is asking the Commission to overturn a policy determination made in a rule making proceeding in which all interested parties had ample opportunity to file comments. In the rule making, the Commission determined that in situations such as here, where the site is not owned by the renewal applicant but by a third party, it would not be "unreasonable to require a challenger to make contingent arrangements with the site owner" to demonstrate that the site would be available should its application be granted. 4 FCC Rcd at 4789  67. Consistent with this policy, MVB proposed to purchase its transmitter site, but MVB failed to show that it had the necessary resources to finance the purchase. Accordingly, it was found to lack the financial qualifications to be a licensee. Under these circumstances, MVB has not shown that the Commission's policy is unreasonable, and it has not alleged facts warranting a change in the site availability policy. 6. The Unauthorized Transfer of Control Issue: The Review Board concluded that Gaines, as Receiver of WCBM, has retained control over the station's operations and that there has not been an unauthorized transfer of control of WCBM. The Board relied on testimony from Gaines and WMI's principal concerning Gaines' continuing involvement and ultimate responsibility for operating control of the station. The Board also found that two former employees of WCBM, who testified on behalf of MVB, admitted that they did not know whether WMI's principal consulted with Gaines about decision-making at the station. 8 FCC Rcd at 1407  17. MVB argues that the remanded proceeding calls into question the veracity of WMI's principal and that the Commission will have to reevaluate the transfer of control issue when the evidence adduced in the remanded proceeding becomes ripe for consideration. However, there is no need for further consideration of this question at this time. Compare Dorothy O. Schulze and Deborah Brigham, 5 FCC Rcd 3227, 3228  13-14 (1990) (where decisions below were specifically based on explicit credibility findings, ALJ was accorded discretion to reconsider earlier findings if circumstances warranted). 7. Burden of Proof: The Commission assigned the burden of proof on the remanded issues to Gaines and WMI. 9 FCC Rcd at 534  10. WMI and Gaines argue that the specified issues relate solely to WMI, and that pursuant to Richard Bott II, 8 FCC Rcd 4074 (1973), WMI should bear the burden of proof alone. In Bott the designated issues related solely to the assignor's qualifications to retain its broadcast authorization while here the issues relate to the assignee's qualifications to be a recipient of the proposed assignment. Moreover, Gaines could have knowledge and information bearing on the resolution of the remanded issues, and he has a stake, as the proponent of a finding that the public interest would be served by a grant of the assignment application, in establishing that WMI is qualified to be a licensee. Thus, both Gaines and WMI were properly assigned the burden of proof. 8. ACCORDINGLY, IT IS ORDERED, that the Petition for Reconsideration filed March 2, 1994, by Mount Vernon Broadcasting and the Petition for Expedited Relief filed March 17, 1994 by Bennett Gilbert Gaines and WCBM Maryland, Inc. ARE DENIED. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary