WPCKC 2MB-RK Z3|jTimes New RomanUniversTimes New Roman Bold;P"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+SS88WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNddzzzzzzzzzzCCCCozdddddddYYYYY8888dddddddndddddYd2KiZ  K] "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$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxdHP LaserJet 4Si/4Si MX344-1HPLA4SMX.WRSC\  P6Q,, RP X-   I. A. 1. a.(1)(a) i) a) 1. 1. 1. a.(1)(a) i) a)#X}xP75XP##XP\  P6QXP#.fExSxSxSxo7oE]A]AN:*LS7JSSSSS.4}}S2S}277JJS77SS7J72t7[[[[^ee*C`^.wRSSn[Cfx`xWlRx[][ceIfIs`Wx[rriwge*7DSS77S^*7*.SSSSSSSSSS..^^^Jxooxf]xx7Axfxx]xo]fxxxxf7.7NS7JSJSJ7SS..S.SSSS7A.SSxSSJP!PZ7SJSS7]777JJ:S7A7xx*7SSSS!S7.S^7SC[227`L*724S}}}Jxxxxxxoffff7777xxxxxxx^xxxxxx]SJJJJJJoJJJJJ....SSSSSSS[SSSSSSS"i~'^:DpddȨDDDdp4D48ddddddddddDDpppd|Ld|pȐD8DtdDdpXpXDdp8Dp8pdppXLDpdddXP,PhD4htDDD4DDDDDDdDp8dddddȐXXXXXJ8J8J8J8pddddppppddpddddzpdddXXhXXXXXdddhdptL8LpLDLpphhp8ZDP8pppddƐXXXpLpLpLphfDtppppppȐhXXXpDppLDd4ddC6CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxHjdDdddddddYzzzzCCCCqodYYYYYYYYYYY8888dddddddnddddddd X-   I. A. 1. a.(1)(a) i) a) 1. 1. 1. a.(1)(a) i) a)#X}xP7XP##XP\  P6QXP#Ѣy.X80,H;X\  P6G;P 2}CC,5X}xP7XP7jC:,Xj\  P6G;XP7nC:,kXn4  pG;XW!@(#,8h@\  P6G;hPH5!,8,5\  P6G;,P\5hC:,- Xh*f9 xr G;XX2Coddȧ8CCdr2C28ddddddddddCCrrrdzNdzoȐC8CtdCdoYoYCdo8Co8odooYNCodddYO,OhCddddCoCȜCCddFdCNC2Cdddd,dC8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""""2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""No. 961436 (D.C. Cir. Nov. 25, 1996). In that letter, the staff concluded that the assignment  X- xof KOLA from the Receiver, Stanfield, to Inland was permissible under the Commission's Second  X- x.Thursdayu(  yO -  NԍxSecond Thursday Corp., 22 FCC 2d 515, 516, recon. granted, 25 FCC 2d 112 (1970). As a matter of  xMgeneral policy, the Commission will not approve an assignment or transfer application where a licensee's  yOX"- xqualifications to continue holding the license are at issue. Jefferson Radio v. FCC, 340 F.2d 781 (D.C. Cir. 1964).  yO #- xIf, after hearing, a licensee is found not qualified, there will be no license to assign. However, in Second Thursday,  x,the Commission established an exception to this general policy. In that case, a licensee in hearing on qualifications  xissues was forced into bankruptcy, and the bankruptcy trustee sought to assign the license to a new party. The  xCommission determined that the license could be assigned where the individuals charged with the misconduct: (1)  xwould have no part in the proposed operations, and (2) would derive no benefit from the grant of the application  xor would receive only a minor benefit which would be outweighed by equitable considerations in favor of innocent"',-(-(g'"  yO-creditors. Second Thursday Corp., 22 FCC 2d at 516.u policy because, under the terms of the sale, all proceeds would be paid to innocent"X,-(-(ZZ"  xcreditors and the wrongdoer, Cote, would receive no direct or indirect benefit from the  X- xassignment. That determination and others made by the staff in the KOLA Letter have been  X- x{affirmed by the Commission. See KOLA, Inc., 11 FCC Rcd 14297. With respect to Jones'  xchallenge to the California court's appointment of Stanfield as receiver, the staff stated that it  xwould not substitute its judgment for that of the state court. The staff also rejected Jones'  xargument that Stanfield had prematurely assumed control of KMET. The staff noted that  xStanfield had merely conducted an inventory of the assets of KOLA, Inc. at the court's direction  xduring the period between his appointment as receiver and the Commission's grant of shortform  x/assignments of the licenses of KOLA and KMET to Stanfield, and that such action did not  xLconstitute a premature transfer of control. Thus, the staff granted the assignment of KMET to  x1Robeson conditioned on an accounting to be provided to the staff within 90 days of  xconsummation of the assignment of KMET to Robeson to ensure that Cote would receive no  X - xbenefit.Z  X yO-  kԍxStanfield reports that the assignment of the license of KMET to Robeson was consummated December 1,  x1995. Stanfield filed the required accounting on February 26, 1996. The staff's review of this filing confirms that Cote did not receive any proceeds of the sale. Z The 90day condition paralleled a condition imposed in the KOLA Letter to ensure that  X -the sale of KOLA to Inland did not result in Cote benefiting from that sale.   |x5. Jones filed a petition for reconsideration of the November 8, 1995 staff decision on  xDecember 12, 1995, raising essentially the same allegations he had raised in his petition to deny.  xKThe staff dismissed Jones' petition for reconsideration for lack of standing in a letter dated March  x26, 1996. The staff explained that as an informal objector to the assignment application, Jones  xwas not a party to the proceeding who was entitled to file a petition for reconsideration under 47  xyU.S.C. Section 405 and 47 C.F.R. Section 1.106. Furthermore, the staff noted that Jones had not  xmade the showing required of a party attempting to enter a proceeding for the first time at the  xpetition for reconsideration stage. Specifically, Jones had failed to demonstrate that his interests  xjwere adversely affected by the staff's November 8, 1995 action and that there was good reason  xwhy it was not possible for him to have participated in the assignment proceeding as a petitioner  X- xkto deny. See 47 C.F.R. Section 1.106(b)(1); Montgomery County Broadcasting Corp., 5 FCC  X-Rcd 876 (1977).  X|-  x6. Discussion. Jones raises four challenges to the March 26, 1996 staff decision  xdismissing his petition for reconsideration. We have examined his four arguments and conclude that they are without merit.   x7. First, Jones asserts that the staff erred by failing to consider that he had a pending  X - xapplication for review of a prior assignment grant involving KMET, i.e., the assignment from  xKOLA, Inc. to the courtappointed receiver, Stanfield. Jones references "File No. BALH x940513EC," which concerns the assignment of license of KOLA from KOLA, Inc. to Stanfield.  xJones filed a "Petition for Administrative Review" on August 7, 1995 challenging certain actions" @,-(-(ZZ"  X- x taken in the KOLA Letter. Jones' petition, which most closely resembles an application for  X- x/review, has, as noted, been denied by the Commission. See KOLA, Inc., 11 FCC Rcd 14297  x.(1996). In any event, the application for review involved KOLA, not KMET. Jones in fact has  xLnever challenged the assignment of the KMET license to Stanfield either at the staff level or at  xthe Commission level. He did not file a petition to deny the assignment of license of either  x=KOLA or KMET to Stanfield, and though he filed a petition for reconsideration subsequent to  x[the grant of the assignment of KOLA's license to Stanfield, Jones did not seek reconsideration  xLof the grant of the assignment of KMET's license to Stanfield. Thus, there was no impediment  xto the staff's grant of the assignment of the KMET license from Stanfield to Robeson.  xFurthermore, the filing of an appeal does not stay the effectiveness of a staff decision, so the  xstaff's grant of a subsequent assignment from Stanfield to Robeson would not have been in error  X - x=even if Jones had filed an appeal of the KMET assignment grant to Stanfield. See Chapman S.  X - xyRoot, 8 FCC Rcd 4223 (1993) (holding that pending appeal of grants of license renewals did not  xKundermine effectiveness of subsequent assignment grants); 47 C.F.R. Section 1.102(b) ("Effective  X - xydates of actions taken pursuant to delegated authority").   yO7-  [ԍxSection 1.102(b) provides that "[n]onhearing or interlocutory actions taken pursuant to delegated authority  xYshall, unless otherwise ordered by the designated authority, be effective upon release of the document containing the  xfull text of such action, or in the event such a document is not released, upon release of a public notice announcing the action in question." 47 C.F.R. Section 1.102(b)(1). See also Committee to Save WEAM  X - xv. FCC, 808 F.2d 113, 119 (D.C. Cir. 1986) (upholding Section 1.102(b) of the Commission's  x=rules and finding that it "merely prevent[s] [an] appellant from insisting on the maintenance of  x/the status quo pending review" and does not "deprive [an] appellant of the opportunity to challenge [an] assignment before the Commission and the [court of appeals].").   lx8. Secondly, Jones asserts that the staff failed to consider a "Petition for Review" of the  xkgrant of the assignment of the KOLA and KMET licenses from KOLA, Inc. to Stanfield that  xJones filed in the U. S. Court of Appeals for the District of Columbia Circuit on November 11,  x1995. As stated in the foregoing paragraph, the filing of an appeal does not stay the effectiveness  x-of a staff decision, so the staff was warranted in granting a subsequent assignment of the license  xof KMET notwithstanding Jones' "Petition for Review" of the grant of license of KMET to  xStanfield. Furthermore, the "Petition for Review" has since been dismissed by the appeals court  X- xon the grounds that Jones had not yet exhausted his administrative remedies. See Joseph D. Jones  X|- xv. FCC, No. 951572, 1996 WL 523826 (D.C. Cir. Aug. 28, 1996) (per curiam). See also 47  x?U.S.C. Section 155(c)(7) (application for review of F.C.C. bureau decision is a "condition  XN- x"precedent to judicial review"); Committee to Save WEAM v. FCC, 808 F.2d at 11516  x(dismissing petition where appellant failed to seek full Commission review of FCC staff decision).  xzTherefore, Jones' argument that he has been prejudiced by the staff's grant of a subsequent assignment is moot as a result of the court's action dismissing his appeal of the prior assignment.  g"tS   g"tS "!,-(-(ZZ "Ԍ  nx9. Thirdly, Jones asserts that the staff's grant of the KMET license to Stanfield as  X- xreceiver violated the Arecibo Radiob yOb-ԍxArecibo Radio Corp., 101 FCC 2d 545 (1985).b policy because the staff acted prematurely in accepting the  xkcourt's appointment of Stanfield while Jones had filed a pending appeal of the appointment.  x<Jones also asserts that the staff did not provide a reasoned explanation for its action granting the  x{subsequent assignment from Stanfield to Robeson, which violated the same policy. The  X- xCommission's policy, as stated in Arecibo Radio, is "to accommodate state and local court  xldecrees adjudicating disputes over contract and property rights, unless a public interest  X_- x determination . . . compels a different result." Arecibo Radio Corp., 101 FCC 2d at 550 n.12.  xContrary to Jones' contention, the staff's actions in this case were consistent with the decisions  xof local courts which appointed Stanfield as a receiver and supervised his actions in disposal of  xthe stations. We note in this regard that Jones has apparently failed in his attempts to challenge  X - x-the California court's appointment of Stanfield as receiver in the state courts.  X yO -  \ԍxStanfield, in his Opposition to Application for Review filed May 13, 1996, provides an unsigned, undated  xorder from the Court of Appeal of the State of California denying Jones' appeal of a lower court order denying his  ximotion to intervene in a breach of contract action against KOLA, Inc. in order to challenge the appointment of Stanfield as receiver. Further, Jones has  xpresented nothing to warrant departure from the Commission's policy of deferral to the state  X - xcourts in determining the legitimacy of Stanfield's appointment. See H. Edward Dillon, 42 FCC  X - x2d 203, 205 (1973). See also KOLA Letter (rejecting Jones' attempts to deny assignment of KOLA, Inc. assets to Stanfield).   "x10. Fourthly, Jones asserts that the staff's treatment of this case was unfair in that it  xdismissed his petition to deny as untimely while accepting "latefiled documents" from opposing  xcounsel without imposing sanctions. Jones states that he advised the Commission on April 14,  x1995 that KMET was off the air, but that Stanfield "failed to report to the Commission that  xKMET had been off the air for weeks." Stanfield has not filed any documents late in connection  xwith this proceeding or in connection with the silent status of KMET. As Stanfield states in his  xopposition pleading, he informed Commission staff by letter on March 30, 1995 that KMETAM  xyhad gone dark on March 20, 1995. On April 19, 1995, Stanfield requested permission for KMET  x\to remain dark for an additional 90 days, which the staff granted on May 19, 1995. Stanfield  xreports that KMETAM resumed operation on June 5, 1995. Broadcast licensees are required to  X- x=notify the Commission not later than the 10th day of limited or discontinued operation. See 47  x C.F.R. Section 73.1740(a)(4). Stanfield acted in compliance with this rule. Therefore, we do  x[not find any merit in Jones' assertion that he was treated differently from other parties because  xwe dismissed his latefiled petition to deny as untimely. In any case, full consideration has been given to the substance of his objections concerning the instant transaction."7@ ,-(-(ZZ{"   ]x11. Accordingly, IT IS ORDERED that pursuant to Section 1.115(g) of the Commission's  xLRules, 47 C.F.R. Section 1.115(g), the Application for Review filed by Joseph D. Jones on April 26, 1996 IS HEREBY DENIED. x` `  hh@FEDERAL COMMUNICATIONS COMMISSION x` `  hh@William F. Caton x` `  hh@Acting Secretary