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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 Application of ) ) Barnco, Inc. ) (Assignor) ) File No. BALH-980721EA ) and ) ) Waitt Radio, Inc. ) (Assignee) ) ) For Assignment of License of Station ) KZSR(FM), formerly KOLK(FM), Onawa, Iowa ) MEMORANDUM OPINION AND ORDER Adopted: October 7, 1999 Released: October 14, 1999 By the Commission: Commissioner Tristani approving in part, dissenting in part and issuing a statement. 1. The Commission has under consideration a Petition for Reconsideration filed on April 26, 1999 by Saga Communications, Inc., ("Saga") and related responsive pleadings. Saga seeks reconsideration of a Commission order which denied its Petition to Deny and granted the above-captioned assignment of license of station KZSR(FM), Onawa, Iowa from Barnco, Inc. to Waitt Radio, Inc. ("Waitt") and a related permanent waiver of 47 C.F.R.  73.3555(c), the one-to-a-market rule, to allow Waitt to own both a radio station and a television station, KMEG(TV), in the same market. Barnco, Inc., 14 FCC Rcd 5414 (1999) (Commissioner Tristani dissenting and issuing a statement). For the reasons discussed below, we deny the Petition for Reconsideration. 2. On reconsideration, as in its earlier Petition to Deny, Saga challenges the sufficiency of Waitt's one- to-a-market waiver showing, particularly with regard to cost savings and programming and service benefits to be derived from common ownership and joint operation of KZSR(FM) and KMEG(TV). Additionally, Saga raises new arguments concerning Waitt's alleged lack of candor in two instances. First, Waitt allegedly failed to disclose that KZSR was operating at reduced power in discussing a drop in audience share. Second, according to Saga, Waitt violated 47 C.F.R.  1.65 and lacked candor in failing to disclose interests in other Iowa radio stations. 3. Reconsideration is appropriate where the petitioner shows a material error or omission in the original order or raises additional facts not known or not existing until after petitioner's last opportunity to present such matters. See 47 C.F.R.  1.106(c), (d). With respect to Waitt's waiver showing, the Petition for Reconsideration makes the same arguments presented in the Petition to Deny and has not established that there are any material errors of fact or law. The Commission decision at issue contains a thorough analysis of Waitt's waiver request and concludes that Waitt provides sufficient public interest showings to justify a waiver, that a waiver would be consistent with the Commission's treatment of waiver requests from licensees serving similar sized markets, and that Waitt is qualified. Nothing in Saga's Petition for Reconsideration demonstrates any reason to disturb that decision. Reconsideration is not warranted merely to reargue these same issues that were adequately and correctly resolved in Barnco. See WWIZ, Inc., 37 FCC 685, 686 (1964), aff'd sub nom. Lorain Journal Company v. FCC, 351 F.2d 824 (D.C. Cir. 1965), cert. denied, 383 U.S. 967, rehearing denied, 384 U.S. 947, petition to reopen denied, 4 FCC 2d 608 (1966). 4. With regard to new allegations of Waitt's lack of candor, Saga has not demonstrated any matter that would raise a substantial and material question of fact about Waitt's qualifications. In particular, we find no question of any intent to deceive, which is a necessary and essential element of any showing of misrepresentation or lack of candor. See Fox River Broadcasting, Inc., 93 FCC 2d 127 (1983). The alleged failure of Waitt to indicate that KZSR was operating at reduced power for 10 days out of a 12 week ratings period does not evidence an intent to mislead the Commission about the cause of the station's poor ratings. Moreover, as indicated in Barnco, KZSR's ratings were not material to the Commission's decision. Similarly, we reject Saga's allegation that Waitt lacked candor because it did not amend the KZSR application to report its subsequent applications to acquire and/or program additional Iowa radio stations. Section 1.65 of our rules requires an applicant to report a substantial change to its application no later than 30 days after the change. 47 C.F.R.  1.65(a). Waitt indicates that it believed the need to amend became moot because the Commission granted the current application two weeks into the 30 day period. The obligation to amend pursuant to Section 1.65 remains in effect until a transaction is no longer subject to appeal, and therefore, Waitt should have submitted an amendment. See 47 C.F.R.  1.65(a). Nevertheless, KZSR's applications for the additional Iowa radio stations was a matter of Commission record, and there is no indication that the failure to amend the KZSR application was intended to deceive the Commission. See e.g., California State University, Sacramento, 13 FCC Rcd 17960, 17964 (1998) (no lack of candor found in extension of construction permit application where loss of site reported 6 weeks later in subsequent modification of permit application). The staff evaluated the subsequent applications and resolved the underlying issue by concluding that Waitt could own the stations at issue here, as well as obtaining or programming the additional Iowa stations. Waitt timely disclosed all of its interests in that context. Thus, we find that Waitt did not lack candor. 5. Accordingly, IT IS ORDERED that the Petition for Reconsideration filed by Saga Communications, Inc., IS HEREBY DENIED. FEDERAL COMMUNICATIONS COMMISSION Magalie Roman Salas Secretary STATEMENT OF COMMISSIONER GLORIA TRISTANI, DISSENTING IN PART In re Applications of Barnco, Inc. and Waitt Radio, Inc., File No. BALH-980721EA For the reasons set forth in my previous statement in this case (See Barnco, Inc., 14 FCC Rcd 5414 (1999)), I dissent on the issue of the Commission's denial of reconsideration of the one-to-a-market waiver.