WPCu, 2~BJZCourier3|jTimes New Roman@`7X@HP LaserJet 4M (PCL) 344-1HPLAS4S0.PRSx  @\2PX@ X-  #X}xP7ZyXP##XP\  P6QxXP#2~f X& 6jCourierUnivers",tB^ f ^CCd||CCC|CCCC||||||||||CCh|so8okv|xCCCddCkskskHss00k0ssssFdHsooo`YdY|9|||||C||||||d|x0kkkkkksksksksk80808080sssssssssoktssosvsl|lll||tl||||tlt||||||80||||9x`|||l0lD||lHl0tt|t|HH|ddd||P|H||st||ts|x`x`x`|||||||oCddCCCWddddddddddddddddddddddddddddddddddddddddNd||Choo||~QQ|LLdd|LCCdd~JJ~~zzdddzzCddL"djd9 dCCvCd|o~dC~d~skzUvdYYCCCCo~kodks]zUsk80dhoo~UssvkvvY~]k`sC~koCC~~~~~~~CsdYC\   pxtll\tll@\@\`L<?xxx,>^x6X@`7X@ g2}CC,ZyX}xP7XP7jC:,xXj\  P6G;XP?xxx,>^x6X@`7X@ 2K-  Z8"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxd3|jTimes New RomanUniversTimes New Roman BoldHP LaserJet 4M (PCL) 344-1HPLAS4S0.PRSC\  P6Q\2PP2KKZKn"i~'^09CSS999S]+9+/SSSSSSSSSS//]]]Ixnnxg]xx9?xgxx]xn]gxxxxg9/9MS9ISISI9SS//S/SSSS9?/SSxSSIP!PZ9+ZM999+99999999S/xIxIxIxIxIlnIgIgIgIgI9/9/9/9/xSxSxSxSxSxSxSxSxSxSxIxSxRxSxSxS]SxIxIxInInInZnIxigIgIgIgIxSxSxSxZxSxZxS9/9S999Su]ZZxSg/gCg9g9g/xSbxSxSxSxSxn9n9n9]?]?]?]ZgFg/gMxSxSxSxSxSxSxxZgIgIgIxSg9xS]?g9xSi+SS88WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""""2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""interest consideration that would warrant a grant of the petition. Thus, Metro's reliance on  X"- xCosmos Broadcasting of Louisiana, Inc., 56 FCC 2d 320 (1975) (considering subject matter of  xydismissed petition for reconsideration EEO issues on public interest grounds), and Section  x1.106(c)(2), is unavailing here, where the staff has already fully considered and rejected its public  XQ%-interest argument.   "Q%,-(-(ZZ $"  X- B.xSection 307(b) Issue  X-   x11. Metro asserts that the staff's decision granting North Texas' application to change  xits community of license to Plano was contrary to Commission precedent applying Section  x=307(b). According to Metro, North Texas' application to move from Wichita Falls should have  xbeen denied because North Texas failed to rebut a "presumption" that it actually intended to serve  xthe entire DallasFt. Worth area, given that Plano is located within the DallasFt. Worth  X_- xyUrbanized Area. Metro cites as authority for its position a series of cases beginning with Faye  XH- xand Richard Tuck, Inc., 3 FCC Rcd 5374 (1988) ("Tuck"). The staff correctly determined that  x-the cases relied upon by Metro were inapposite, and that no such presumption exists with regard to individual AM applicants seeking a change in community of license.   x12. The Commission is charged with the responsibility "to provide a fair, efficient and  xequitable distribution of radio service . . . ." 47 U.S.C. Section 307(b). Thus, whenever an  xapplicant seeks to change its community of license, the Commission compares the relative needs  X - xof the existing and proposed communities for radio service. See ArkValley Broadcasting  X- xCompany, Inc., 15 FCC 818, 820 (1951). The Commission generally has preferred a community  xwith no local transmission service over a community that already has a local station without  Xb- xregard to the comparative ability of each applicant to serve its respective community. Tuck, 3  xFCC Rcd at 5376. Metro, relying on a line of cases involving comparative hearings, and FM and  xTV allotment proceedings, argues that the staff should have adopted a presumption when  X- xZanalyzing KAAM's modification application that KAAM intended to serve the DallasFort Worth  xkcommunity and that had the staff done so it could not have concluded that Plano was to be  xpreferred over KAAM's then existing community of license, Wichita Falls. Metro concludes that the staff erred in failing to designate the change of community of license application for hearing.  X-  x13. In Tuck, the first case relied upon by Metro, the Commission took the opportunity  X- xto clarify its Huntington doctrine,xQ yO -ԍxHuntington Broadcasting Co. v. FCC, 192 F.2d 33 (D.C. Cir. 1951).x which the Court of Appeals had previously found confusing.  X|- xNTuck, 3 FCC Rcd at 5376; see New Radio Corp. v. FCC, 804 F.2d 756, 762 (D.C. Cir. 1987).  Xe- xThe Huntington doctrine is a limited exception to the usual 307(b) presumption that every  XN- x[separate community needs at least one local transmission service. Id. Since 1951, the doctrine  xhas been applied in comparative hearing cases to defeat the dispositive preference for first local  xtransmission service which applicants proposing service to suburban communities might otherwise  xenjoy. It is applied where competing applications are filed for separate communities that are  xxdependent upon, and contiguous to, a central city, and the applicants propose sufficient power to  x/serve the entire metropolitan area. The rationale is that selection should not be based on a  xSection 307(b) preference in such cases because all applicants are likely proposing to serve the  x\metropolitan area. Selection among mutually exclusive applications is based instead on the  X"- xstandard comparative criteria. Tuck, 3 FCC Rcd at 5376. The Commission noted in Tuck that the Court of Appeals requires the Commission to give adequate reasons for any extension of this "#X,-(-(ZZe""  X- xz"exceptional" doctrine. See id. at 5377 (citing Miners Broadcasting Service, Inc. v. FCC, 349 F.2d 199, 201 (D.C. Cir. 1965)).  X-  x14. In Tuck, the Commission adopted the Census Bureau's Urbanized Area to define a  X- xymetropolitan area "community" for purposes of applying the Huntington doctrine. See Tuck, 3  X- xFCC Rcd at 5379. The Commission later indicated that Huntington could be applied in  Xv- xproceedings to amend the FM and TV Tables of Allotments. See Modification of FM and TV  X_- xAuthorizations to Specify a New Community of License, 4 FCC Rcd 4870 (1989), clarified, 5  xFCC Rcd 7094, 709596 & n.11 (1990). The Commission was addressing a concern that the  xprocedural flexibility afforded by its recently adopted rule allowing FM and TV applicants to  xspecify a new community of license, 47 C.F.R. Section 1.420(i), could result in "the wholesale  X - xmigration of stations from rural to urban areas." Id. at 7096. In 1992, the staff applied a  X - xHuntingtonĩtype analysis to an FM allotment proceeding to deny a first local service preference  X - xto Norwood, which is located within the Cincinnati Urbanized Area. See Fairfield and Norwood,  X - xOhio, 7 FCC Rcd 2377, 2378 (MMB 1992). We have also recently applied Huntington, in a  X - xylimited context, in a TV allotment proceeding. See Bessemer and Tuscaloosa, Alabama, 11 FCC  xRcd 2967 (1996) (awarding a first local service preference to Bessemer, which is 15 miles from  xBirmingham, which is located within the Birmingham Urbanized Area, and which has a  Xb- xpopulation 1/8 that of Birmingham). Notwithstanding these extensions of Huntington to TV and  XK- xKFM allotment proceedings, we have never required application of the Huntington doctrine to AM  X4-singleton applicants, i.e., those not facing mutually exclusive applications.  X-  x15. Since 1975, AM singleton applicants have been permitted to specify first local service  xto suburban communities without facing a presumption that they actually intend to serve the  X- xlarger nearby community. See Suburban Community Policy, the Berwick Doctrine, and the De  X- x?Facto Reallocation Policy, 93 FCC 2d 436, 439 (1983), recon. denied, 56 RR 2d 835 (1984).  xWhile we have always required a showing that such changes comply with our standards under  X- xSection 307(b),fXQ yO -  =ԍxIn this case, the staff noted the presence of ten radio stations, including eight FM and two AM stations, that  x,would continue to be licensed to Wichita Falls, as well as three TV stations, and contrasted this level of service with the absence of any stations licensed to Plano.f our application of a Huntington analysis in the AM service has been limited to  xZcases involving mutually exclusive applicants. There has been no recent rule change, as with FM  xand TV, that would raise a concern that AM applicants will be able to engage in a wholesale  x.migration from rural to urban areas. The staff therefore correctly decided that the extension of  X7- xthe Huntington doctrine to a singleton AM applicant attempting to change its community of  xilicense, as urged by Metro, was not required by existing policy, and that North Texas was entitled  X - xto a first local service preference for specifying Plano as its new community of license. In any  X- xevent, it does not appear that consideration of Huntington would likely result in depriving North  x=Texas of a first local transmission service preference in relocating to Plano. An examination of  x.KAAM's proposed 5.0 mV/m daytime contour indicates less than 50% coverage of the Dallas xFort Worth metropolitan area. Secondly, Plano is located 15 miles from downtown Dallas and  x[has a 1990 U.S. Census population of 128,713 (oneeighth that of Dallas), which is estimated to"",-(-(ZZ!"  X- xlbe 150,600 as of 1995. See Rand McNally Commercial Atlas and Marketing Guide (1995).  xjThirdly, Plano has numerous indicia of independence, including the fact that it is incorporated,  xthat it has hospitals, banks and post offices, and that it is listed by Rand McNally as a "principal  X- xKbusiness center." See id. Consequently, we find that grant of North Texas' change of community  xof license application for KAAM without designation for hearing on 307(b) issues was appropriate. x  X_-x  XH-C.xUnauthorized Transfer of Control  X -x16.` ` Section 310(d) of the Communications Act states in pertinent part:  aXxNo construction permit or station license, or any rights thereunder, shall be  transferred, assigned, or disposed of in any manner, voluntarily or involuntarily,  Qdirectly or indirectly, or by transfer of control of any corporation holding such  permit or license, to any person except upon application to the Commission and  Cupon finding by the Commission that the public interest, convenience, and necessity will be served thereby.   x{47 U.S.C. Section 310(d). Section 73.3540(a) of the Commission's Rules provides that the  x"[p]rior consent of the FCC must be obtained for a voluntary assignment or transfer of control." 47 C.F.R. Section 73.3540(a).   nx17. In ascertaining whether a prohibited transfer of control has occurred, we have  xtraditionally looked beyond legal title to see whether a new entity or individual has obtained the  X- x=right to determine basic operating policies of the station. See WHDH, Inc., 17 FCC 2d 856, 863  X- x>(1969), aff'd sub nom. Greater Boston Television Corp. v. FCC, 444 F.2d 841 (D.C. Cir. 1970),  X- xcert. denied, 403 U.S. 923 (1971). Although a licensee may delegate certain functions to an  xagent or employee on a daytoday basis, ultimate responsibility for essential station matters, such  Xe- x-as personnel, programming and finances, is nondelegable. Southwest Texas Public Broadcasting  XN-Council, 85 FCC 2d 713, 715 (1981).  X -  x18. Metro alleges that the Bureau erred in failing to conclude that Metro raised a  xsubstantial and material question of fact that North Texas and Collin County had engaged in an  xunauthorized transfer of control of the license of KAAM. In urging the necessity for a hearing,  X- xMetro relies on California Public Broadcasting Forum v. FCC, 752 F.2d 670 (D.C. Cir. 1985)  xifor the proposition that "the determination of which factual version is indeed accurate is precisely  X!- xthe function of an evidentiary hearing." Id. at 680. However, a hearing is only warranted where  X"- x[disputed facts relate to a substantial and material issue. See id. at 674. In this case, there is no dispute as to facts, only as to the conclusions to be drawn from those facts.   x19. Metro alleges that "Collin County's principal owner," Jack Sellmeyer, prepared  x-KAAM's application to change its community of license. North Texas does not dispute this fact.  xJack Sellmeyer is a consulting engineer whose firm is listed in Commission records as providing"#',-(-(ZZ%"  xengineering services for North Texas for nearly a decade. His involvement in the application  x?does not therefore demonstrate control by Sellmeyer in connection with the assignment  xLapplication. Metro also urges the Commission to infer that an unauthorized transfer of control  xhas taken place from the fact that "Collin County's Washington attorney prepared North Texas'  xopposition to Metro's petition for reconsideration." North Texas does not dispute this fact, but  xinstead contends that no unauthorized transfer of control has taken place and provides supporting  xdocumentation that North Texas had separately retained the attorney in question, and that it had done so prior to filing its application to change community of license.  XH-   x20. Metro urges the Commission to conclude that the proposed buyer, Collin County,  x"took KAAM off the air in anticipation of the Plano move and paid for the relocation" based on  X - x<the facts: (1) that KAAM went off the air after North Texas entered into the purchase agreement;  x(2) that North Texas received a deposit and entered into a loan agreement with Collin County;  xZand (3) that a Collin County principal recorded a telephone message announcing that KAAM had  xceased broadcasting from Wichita Falls and that Collin County investors had transported the  x[station's broadcasting equipment to a warehouse, and were making arrangements for KAAM's  X- xtower construction and looking for new studio and office space. These facts also are not  xdisputed. The Bureau declined to reach the conclusions urged by Metro, however, based on the  xadditional facts that KAAM had been planning to move as early as February 1994, when it filed  XK- xits major change application; that the loan amount was to be repaid by North Texas in the event  X4- xKthat Collin County did not purchase KAAM ; and that the Purchase Agreement in question called  xfor the buyer and seller to "cooperate" in the relocation of the station facilities. We do not agree  xwith Metro that the provisions calling for KAAM to cease broadcasting and relocate are indicative  xof a premature transfer of control in this case. The contract provisions merely assured the  X- xintended buyer, Collin County, that the licensee would maintain the status quo ante, i.e., that the  xlicensee would continue to prosecute the change of community of license that it had begun nearly  xone year prior to entering into the purchase agreement, and that had already been approved by  x\the Commission. Furthermore, the phone message relied upon by Metro for its assertion of  xunauthorized transfer of control indicated only that the speaker had knowledge of the relocation  xrather than control over it. The Collin County principal, Hue Beavers, simply stated that KAAM  xhad ceased broadcasting from Wichita Falls "never to return to the air at that location," and that  xseveral persons associated with the proposed buyer "picked up much of the transmitting equipment from Wichita Falls and transported it to a warehouse."   x21. Metro criticizes the Bureau's decision as not being based on substantial evidence  xbecause it credited the declarations of principals of the proposed seller and buyer, Don Whan and  xJack Sellmeyer, respectively, which it characterizes as "selfserving and vague," and because the  xBureau failed to weigh these declarations against the "specific facts" presented in Metro's  xPetition. Metro contends that neither Whan nor Sellmeyer provided sufficient details about how  x-Whan "supervised" the removal of the four towers from the Wichita Falls site, or how Whan was  xj"active" in the relocation of the station's equipment from Wichita Falls and the construction of  xithe Plano facility to support the Bureau's conclusion that no unauthorized transfer of control took place. Metro states also that it finds "significant" the fact that Mr. Beavers, the Collin County ":&,-(-(ZZ$"  x.principal, made no mention in his public phone messages of Whan having any involvement in  X-transporting KAAM's equipment.   x22. Metro, however, mischaracterizes the Bureau's decision in asserting that it was based  x[solely on Whan's and Sellmeyer's declarations. In reviewing the record as a whole, the Bureau  xKfound that Whan remained in control of the station's relocation in part because Whan had shown  xthat he had hired the attorney for the station relocation, and that he had signed relevant FCC  xapplications, including a Feb. 6, 1995 request for special temporary authority to remain silent  xduring construction of the new facility. Furthermore, it is not significant that Hue Beavers made  xno mention of Whan's supervision of the move in the listeners' telephone message. Metro's  x-implication that such omission constitutes evidence that an unauthorized transfer of control took  xplace is purely speculative and unsupported. Consequently, the Bureau properly found that Metro  xzfailed to raise a substantial and material question of fact that Whan abdicated control of the relocation.   x23. Metro also disputes the Bureau's finding that a clause in the Asset Purchase  X- xAgreement describing a future time brokerage agreement did not indicate that control over  xKAAM had passed from North Texas to Collin County. Metro reiterates its position that the  x"buyout" provisions of the potential time brokerage agreement are evidence of Collin County's  xunauthorized assumption of control over KAAM. The Bureau found that the buyout payment  xԩ return of Collin County's financial contribution and TBA payments, plus 50% of the net  xproceeds of any sale of the station to a subsequent purchaser in the event that the proposed  xtransaction did not close was designed to ensure performance of the sale agreement and that  xthe damages did not relate primarily to termination of a time brokerage agreement. We affirm  xythe staff's decision that the inclusion of the buyout payment clause in the sales agreement did  xnot confer control over KAAM to Collin County under the circumstances of the present case, and  xthat it did not indicate that Collin County was in a position to control the licensee. Furthermore,  x.since such agreement was never executed, and according to the parties' counsel, will not be, it  xis unnecessary for us to decide whether such an agreement would violate our time brokerage policy.   x24. We conclude that Metro has failed to raise a substantial and material question of fact  x?that North Texas and Collin County had engaged in an unauthorized transfer of control.  xkFurthermore, the Bureau's decision that Metro had failed to do so was based on substantial evidence.  X!-} IV. CONCLUSION ĐTP x25. After carefully examining the arguments raised in the Application for Review, together with the Joint Opposition and the Reply, we conclude that the staff did not err in determining: (1) that Metro lacked standing to file the petition for reconsideration; (2) that the decision to grant KAAM's change of community application did not violate Section 307(b) of the Communications Act or applicable policy and precedent; and (3) that Metro"#' ,-(-(ZZ%" failed to raise a substantial and material question of fact that North Texas and Collin County had engaged in a premature transfer of control of the license of KAAM. x26. Accordingly, IT IS ORDERED, That pursuant to Section 1.115(g) of the Commission's Rules, 47 C.F.R. Section 1.115(g), the Application for Review filed by Metro BroadcastersTexas, Inc. on June 29, 1995 IS HEREBY DENIED. x` `  hh@FEDERAL COMMUNICATIONS COMMISSION x` `  hh@William F. Caton x` `  hh@Acting Secretary