******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. 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 Applications of) ) Stockholders of CBS Inc.) (Transferor)) ) and) ) Westinghouse Electric Company) (Transferee)) ) For Transfer of Control of)File Nos. BTC, BTCH, BTCCT- CBS Inc., Licensee of )950803KF through 950803LI WCBS-TV, New York, New York) WCBS(AM), New York, New York) WCBS-FM, New York, New York) KCBS-TV, Los Angeles, California) KNX(AM), Los Angeles, California) KCBS-FM, Los Angeles, California) WBBM-TV, Chicago, Illinois) WBBM(AM), Chicago, Illinois) WBBM-FM, Chicago, Illinois) WGPR-TV, Detroit, Michigan) WWJ(AM), Detroit, Michigan) WYST-FM, Detroit, Michigan) WCCO-TV, Minneapolis, Minnesota) KCCO-TV, Alexandria, Michigan) KCCW-TV, Alexandria, Michigan) WCCO-AM, Minneapolis, Minnesota) WLTE-FM, Minneapolis, Minnesota) WFRV-TV, Green Bay, Wisconsin) WJMN-TV, Escanaba, Michigan) WPRI-TV, Providence, Rhode Island) WGMP(AM), Philadelphia, Pennsylvania) WOGL-FM, Philadelphia, Pennsylvania) KCBS(AM), San Francisco, California) KRQR-FM, San Francisco, California) WODS-FM, Boston, Massachusetts) WARW-FM, Bethesda, Maryland) KRRW-FM, Dallas, Texas) KTXQ-FM, Fort Worth, Texas) KKRW-FM, Houston, Texas) KMOX(AM), St. Louis, Missouri) KLOU-FM, St. Louis, Missouri) MEMORANDUM OPINION AND ORDER Adopted: December 16, 1996Released: December 17, 1996 By the Commission: 1. The Commission has before it a petition for reconsideration filed by Spectrum Detroit, Inc. (Spectrum) seeking reversal of our November 22, 1995 grant of the above-captioned applications for approval of the transfer of control of CBS Inc. (CBS) from the shareholders of CBS to Westinghouse Electric Company (Westinghouse). Stockholders of CBS Inc., 11 FCC Rcd 3733 (1995). CBS filed an Opposition on February 14, 1996. Background 2. In October, 1994, the Commission received an application for assignment of license of WGPR, Inc., licensee of WGPR-TV, Detroit, Michigan, to CBS Inc. Spectrum, a Michigan corporation owned by seven African-American individuals who reside in the WGPR-TV service area, filed a petition to deny this assignment, based primarily upon the allegation that CBS had assumed premature control of WGPR-TV through the local marketing agreement (LMA) it had entered into with WGPR, Inc. concurrently with the execution of the purchase and sale agreement for that station. Petitioner also argued that the WGPR-TV application should be designated for hearing to determine whether the public interest would be served by the sale of the minority-owned television station to CBS, rather than to a minority-owned buyer. On July 27, 1995, the Commission denied the Spectrum petition and granted the assignment application. WGPR, Inc., 10 FCC Rcd 8140 (1995). In denying the petition, the Commission found that WGPR, Inc. and CBS had entered a legitimate LMA and, consequently, that WGPR, Inc. had not prematurely ceded control of its station to CBS. Id. at 8142-46. With respect to the issue of minority ownership, the Commission noted that Section 310(d) of the Communications Act, 47 C.F.R. 310(d), prohibits it from consideration of an assignee or transferee other than the one before it, and that it cannot therefore deny the assignment based on Spectrum's argument that the station should be sold to a minority buyer. A day after release of WGPR, Inc., petitioner appealed the decision to the United States Court of Appeals for the District of Columbia. 3. On August 3, 1995, the above-captioned applications were filed seeking consent to the transfer of control to Westinghouse of the broadcast licenses held by CBS. This included the license of WGPR-TV. The Mass Media Bureau issued a public notice on August 9, 1995, affording interested parties 30 days for the filing of petitions to deny. Spectrum filed a petition to deny or defer action, on September 7, 1995, in which it urged the Commission to either deny the merger or, in the alternative, to approve the merger expressly conditioned upon the outcome of its court appeal in the WGPR-TV case. Several other petitions were filed, including one by The Office of Communication of the United Church of Christ (UCC). Determining that "[t]he matters addressed by the United Church of Christ petition pertaining to the children's television and political broadcast obligations of the parties to this transaction raise issues of general applicability on which broad public participation would be of assistance," the Mass Media Bureau issued a public notice in which it announced that the matters at issue in the UCC petition would be treated as non-restricted, as permitted by Section 1.1200(a) of the Commission's ex parte rules. 47 C.F.R. 1.1200(a). It also stated, however, that pursuant to Section 1.1208, 47 C.F.R. 1208, "[a]ll other aspects of this proceeding will continue to be classified as restricted" and that "[e]x parte presentations thus are prohibited with respect to all other issues involved." Public Notice, MM 95-93, DA 95-1963, released Sept. 12, 1995. 4. Between September 15 and September 22, 1995, parties representing Westinghouse made several contacts with Commission personnel, and subsequently filed reports with the Commission regarding these contacts. On September 14, CBS and Westinghouse each filed Oppositions to the Spectrum petition, to which Spectrum filed a Reply on September 22, 1995. 5. On November 22, the Commission granted the transfer of control. It also denied Spectrum's petition to deny or defer action, noting that "[n]either the Communications Act nor any Commission rule or policy mandates the maintenance of the status quo pending a judicial appeal of its order," Stockholders of CBS Inc., 11 FCC Rcd 3733, 3744 (1995) (citations omitted). Spectrum would not be precluded from any legal redress accorded it in its appeal, reasoned the Commission, because in the event the court reversed the WGPR, Inc. decision, it would then remand the case to the Commission which would carry out the court's judgment pursuant to Section 402(h) of the Act. 47 U.S.C. 402(h). The Commission did, however, remind Westinghouse that it would proceed at its own risk vis- -vis WGPR-TV since it, as well as CBS, would "bear all potential costs in consummating a Commission-approved transaction that is later reversed by the Court of Appeals." Stockholders of CBS, Inc., 11 FCC Rcd at 3744 (citations omitted). Spectrum now seeks reconsideration of our denial of its petition in Stockholders of CBS Inc. Spectrum's Petition for Reconsideration 6. Spectrum bases its petition for reconsideration on the assertion that the Bureau's public notice concerning the modified ex parte rules and the various contacts between the Commission and representatives from Westinghouse under that public notice, violated the ex parte rules. Specifically, Spectrum asserts that when an opposition is filed to a pending broadcast application, that proceeding becomes restricted, 47 C.F.R. 1.1208(c)(1)(i)(B), (ii)(A), and the Commission does not have the authority to designate as non-restricted part of such a proceeding. Even if the Commission could bifurcate a proceeding in this manner, asserts petitioner, the Commission "simply cannot deal with some public interest considerations . . . based on the public record and deal with other public interest considerations based in part on private lobbying activities, and arrive at an adjudication of all of those public interest considerations that is fair and even handed to parties who were not invited to the private lobbying sessions." Petition for Reconsideration at 11. And, even if the Commission could conduct the adjudication fairly using this procedure, Spectrum alleges that the Commission inadequately explained the manner in which the ex parte communications influenced its disposition of the UCC petition. Finally, it claims that Westinghouse reports detailing its meetings with the Commission to discuss the UCC issues were neither timely submitted on the day of the oral presentation, nor comprehensive enough to meet the other reporting requirements for non-restricted proceedings outlined in Section 1.1206(a)(2), 47 C.F.R. 1.1206(a). 7. In response, Westinghouse claims that the Spectrum Petition for Reconsideration improperly raised matters for the first time which should have been raised prior to the Commission's decision in the case, thus violating the Commission's rule governing such petitions. 47 C.F.R. 1.106. Regarding the substance of Spectrum's allegations, Westinghouse argues that the restricted status of the WGPR-TV proceeding does not govern Commission consideration of the CBS-Westinghouse merger, a separate transfer, and that the August meeting between the CBS-Westinghouse representatives and Commissioner Quello about the proposed merger, not yet subject to any ex parte restrictions, did not violate any ex parte rules. Westinghouse further claims that the September meetings between it and the Commission did not disadvantage Spectrum since these meetings did not deal with the still-restricted issues raised by Spectrum, and that the Commission does have the discretion, pursuant to Section 1.1200(a), to modify its ex parte rules when the public interest requires such modification. Westinghouse concludes by asserting that it did not contravene any of the Commission's non-restricted proceeding ex parte contact reporting requirements, noting that "arguably, these reports were not even required under the current provisions of Section 1.1206 since they did not involve contacts in which data or arguments were presented which were not reflected in the written filings in the proceeding." CBS Opposition at 9. Discussion 8. We find that Spectrum's Petition for Reconsideration is procedurally defective and therefore should be dismissed. Under Commission rules, a petition for reconsideration which relies on facts not previously presented to the Commission may be granted only if these facts relate to events which have occurred or circumstances which have changed since the last opportunity to present such matters, or if these facts were unknown to petitioner until after its last opportunity to present such matters. Should these circumstances not be present, the rules nevertheless allow grant of the petition for reconsideration should the Commission determine that consideration of the facts relied on by petitioner is in the public interest. Id. at 1.106(c)(2). As noted by CBS, the matters raised by Spectrum in its petition for reconsideration, which were all based upon actions that occurred prior to Commission approval of the CBS-Westinghouse transfer, could have been raised earlier. If Spectrum believed that the Bureau's modification of the Commission's ex parte rules was improper or inappropriate, it could have petitioned the Bureau to reconsider, or the Commission to review, that action based on the reasons Spectrum now gives here. Similarly, if Spectrum believed that impermissible ex parte presentations occurred in the proceeding, it could have raised this matter prior to Commission action on the merger applications. Moreover, as pointed out by Westinghouse, "all of these reports were served on petitioner in September and early October of 1995 with an invitation to address any questions in connection therewith to Westinghouse's attorneys." CBS Opposition at 10 (footnote omitted). Thus, Spectrum had ample opportunity to contest modification of the ex parte procedures as well as the propriety of any ex parte communications that may have occurred. Indeed, not only could Spectrum have raised its allegations prior to Commission approval of the merger, but according to our rules any party to a proceeding "who has substantial reason to believe that a violation of [the ex parte rules] has been . . . committed, shall promptly advise the Managing Director in writing of all the facts and circumstances concerning the matter which are known to him." 47 C.F.R. 1.1214 (emphasis added). 9. Finally, contrary to Spectrum's argument, the approval of the CBS-Westinghouse merger does not impact the Commission's ability to fully and fairly consider the issue raised by Spectrum in the WGPR, Inc. case, should that case be remanded to the Commission by the D.C. Circuit. When discussing procedural issues related to the ongoing WGPR, Inc. case in the Order granting the CBS- Westinghouse transfer, we noted that CBS and Westinghouse "bear all potential costs in consummating a Commission-approved transaction that is later reversed by the Court of Appeals." Stockholders of CBS Inc., 11 FCC Rcd at 3744. In light of the fact that this appears to be the sole basis of Spectrum's interest in this proceeding, we fail to see the harm Spectrum would suffer by our approval of the CBS-Westinghouse merger and therefore find no public interest basis for considering now Spectrum's untimely arguments. Conclusion 10. In view of the foregoing, we conclude that no new facts have been presented that would cause us to reconsider our previous approval of the CBS-Westinghouse applications for transfer of control and that no other public interest reasons exist to cause us to set aside that earlier action. 11. Accordingly, IT IS ORDERED that the petition for reconsideration filed by Spectrum Detroit, Inc. IS DISMISSED. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary