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File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ************************************************************************* $// MO&O, Hanford, CA, KGEN-FM, FCC 96-293//$ $/ 1.115(a), Application for Review/$ Before the Federal Communications Commission Washington, D.C. 20554 In re Application of ) ) LAWRENCE AND NAYEREH WRATHALL ) File No. BAPH-950313GI D/B/A HANFORD FM RADIO, ) Assignor ) ) and ) ) ROLANDO COLLANTES ) Assignee ) ) For Assignment of the ) Construction Permit of) Station KGEN-FM, Hanford, CA ) In re Application of ) ) LAWRENCE AND NAYEREH WRATHALL ) File No. BMPH-950329JZ D/B/A/ HANFORD FM RADIO ) ) Extension of Construction Permit ) Station KGEN-FM, Hanford, CA ) MEMORANDUM OPINION AND ORDER Adopted: June 28, 1996 Released: July 17, 1996 By the Commission: 1. The Commission has before it an application for review filed by Crystal Communications, Inc. ("Crystal") and California Community Television Network ("CCTN") of an October 6, 1995 letter ruling (the "October Letter Ruling") from the Chief, Audio Services Division. By that action the staff denied an August 17, 1995 joint petition for reconsideration, filed by Crystal and CCTN, of the denial of their joint informal objection (the "Informal Objection") to the above-captioned applications (the "Applications"). On reconsideration, the staff affirmed the grant of the Applications which sought authority to assign the construction permit of unbuilt station KGEN-FM, Hanford, California from Lawrence and Nayereh Wrathall d/b/a Hanford FM Radio ("Hanford") to Rolando Collantes ("Collantes") and to extend the KGEN-FM construction permit. For the reasons stated below, we dismiss Crystal's and CCTN's application for review. 2. In 1986, Villamil FM Radio ("Villamil"), in which Hanford's principals are 40 percent general partners, filed for a new FM station at Salinas, California. Crystal and CCTN filed mutually exclusive applications for the Salinas permit. These applications remain pending. Artichoke Broadcasting Corporation, 10 FCC Rcd 12631 (1995) (remanded to Review Board). In July 1987, Hanford filed an application for a new FM facility at Hanford, California. On August 31, 1987 it filed an amendment (the "Hanford Amendment") in which the Wrathalls represented that "it is the[ir] intention to divest themselves" of their Villamil partnership interests in the event the Commission granted the Hanford new station application. Villamil made these same disclosures to its comparative detriment in the Salinas proceeding where the presiding judge denied Villamil integration credit because the Wrathalls' integration pledge was "contingent upon a denial of [Hanford's] pending application for a new station at Hanford, California." Salinas Broadcasting Limited Partnership, 4 FCC Rcd 2762, 2771 (ALJ 1989) (subsequent history omitted). 3. In October 1993 the Commission granted the Hanford application. On November 2, 1993 Villamil filed a petition for leave to amend (the "Villamil Petition"), which disclosed that the Wrathalls had decided to pursue their interest in the Salinas facility only, and had elected to divest themselves of the Hanford permit. Applications to assign the KGEN-FM construction permit to Collantes and to extend the construction period followed. In response, Crystal and CCTN separately filed motions to reopen the record and to enlarge issues against Villamil in the Salinas proceeding and jointly filed the Informal Objection in this proceeding. They contend that the Wrathalls' abandonment of their Hanford "integration pledge" constituted a misrepresentation or evidenced a lack of candor in both proceedings. They also argued that Hanford violated the Commission's ex parte rules in prosecuting the Applications. On July 18, 1995, the staff denied the Informal Objection and granted the Applications (the "July Letter Ruling"). The October Letter Ruling denied the joint petition for reconsideration of the July Letter Ruling, rejecting as meritless the ex parte claims and concluding that the staff had properly declined to designate the Applications for hearing on the basis of the Wrathalls' alleged misrepresentations. Crystal and CCTN now seek review. 4. An applicant for review must show that it is a "person aggrieved" by an action taken pursuant to delegated authority. See 47 C.F.R.  1.115(a). Hanford argues that Crystal and CCTN do not meet this standing requirement, and thus that the Commission should dismiss the application for review. We agree. Neither Crystal nor CCTN allege that they would be either competitors of or listeners to KGEN-FM. Nor would KGEN-FM operations technically impact on the facilities proposed by either Crystal or CCTN in Salinas. Although Crystal, CCTN, and Villamil are competing applicants in the Salinas proceeding, this alone is insufficient to establish that Crystal and CCTN would be aggrieved by the assignment of a construction permit for a station in a different market by two individuals who hold a 40 percent interest in Villamil. Consequently, Crystal and CCTN, having failed to identify any direct economic or other connection between their interests and grant of the applications, lack standing under the Commission's rules to file an application for review. See In Re Applications of Clarke Broadcasting Corporation, 11 FCC Rcd 3057 (1996) (where no nexus between challenged application and applicant for review, such applicant is not "aggrieved" for purposes of 47 C.F.R.  1.115(a)). 5. The Commission demands candor from those who come before it and will not tolerate deliberate misrepresentations. E.g., WOKO, Inc., 329 U.S. 223 (1946); Mid-Ohio Communications, Inc., 5 FCC Rcd 940, affirmed, 5 FCC Rcd 4596 (1990). Accordingly, we briefly consider on our own motion the misrepresentation allegations raised by Crystal and CCTN and conclude, with regard to the Applications, that the decision to sell the Hanford permit does not raise any issue regarding the Wrathalls' qualifications to hold or assign a Commission authorization. There is simply no similarity between the Wrathalls' actions and the situation where a permittee prevails on the basis of its integration pledge, and then attempts to abandon this pledge and sell the permit. E.g., Richard Bott II, 8 FCC Rcd 4074 (1993) (subsequent history omitted). Foremost, the Hanford Amendment is not an "integration pledge" at all, much less a pledge made at the start of a comparative hearing. As a result, the decision to divest the Hanford permit falls outside the ambit of our modified "Ruarch policy." See Report and Order in re Reform of the Commission's Comparative Hearing Process to Expedite the Resolution of Cases, 6 FCC Rcd 157, 160 (1990) (once applications reach hearing stage, successful applicant expected to fulfill diversification and integration pledges). 6. Hanford was awarded the KGEN-FM construction permit following the dismissal of the only competing application, i.e., the Commission never designated the Hanford application for comparative hearing. More than six years elapsed between the time the Hanford principals expressed their "intention" to divest their interest in Villamil in certain circumstances and the filing of the Villamil Petition. Though the divestiture pledge, plainly and consistently disclosed in the Salinas proceeding and in the Hanford Amendment, had adverse comparative consequences for Villamil, it was not material to the award of the KGEN-FM construction permit. Nothing about these circumstances is probative of misrepresentation or lack of candor, or otherwise suggests that the Wrathalls have engaged in gamesmanship in an attempt to undermine the integrity of the Commission's licensing processes. 7. ACCORDINGLY, IT IS ORDERED, That pursuant to  1.115(g) of the Commission's rules, the Application for Review filed by Crystal Communications, Inc. and California Community Television Network on November 6, 1995 IS DISMISSED. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary