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this proposition may have had some validity at the time of the filing of the petition to deny on September 15, 1977, the denial of the motion for rehearing by the Texas Supreme Court on April 11, 1979, resolves this litigation and moots Stoner's allegation.

KMIO Assignment 7. Stoner bases his conclusion that the petition to deny the assignment of KMIO filed by the Malkan Group on behalf of Radio Corpus Christi, Inc.2 was a “sham” pleading and, therefore, a strike petition on the following grounds: (1) the Commission dismissed the petition to deny filed by the Malkans, finding it to be without merit; (2) the Malkan Group neither sight reconsideration by the Commission nor court review of the Com nission decision, Sinton Broadcasting Company, Inc., 38 RR 2d 341 (1976); (3) the Sinton decision occurred prior to the Malkan Group's efforts to acquire KZFM and the Malkan Group initiated efforts to acquire KZFM within a day after the release of the decision;3 and (4) the Commission did not deal with a material question of fact in Sinton, raised by the denial of a member of the Malkan Group, E. C. Stein, that he and the Malkan group threatened to do anything possible to prevent the sale of KMIO if Stoner did not sell to the Malkan group.

8. The Commission's criteria for determining “strike petitions" are set out in Radio Carrollton, 43 RR 2d 29 (1978);

Accordingly, in order to justify specification of a strike petition issue, the charging party must make a strong showing that delay is the primary and substantial purpose behind a petition to deny . . . In determining this primary delaying purpose, we shall consider several factors, which, depending on the particular facts, may or may not all be present in the same case. The following factors are the principal ones which we consider as significant indications a petition to deny was filed primarily or substantially for purpose of delay. (a) Statements by the licensee's principals or officers admitting the obstructive purpose. (b) (misrepresentation) or withholding information relevant to disposition of the requested issues . . . (c) The absence of any reasonable basis for the adverse allegations in the petition. Should it appear that the allegations in the petition are specious, with little or no factual or legal basis, such evidence would tend to raise the question whether petitioner was acting in good faith. (d) Economic motivation indicating a delaying purpose. However, we will not infer a 'strike' motive from the mere filing of a petition to deny, even though some ‘benefit' may accrue to the licensee from normal processing delays...

2 RCC is the licensee of station KEYS, Corpus Christi, Texas, a competitor of KMIO, Sinton, Texas. The Malkans are principals in RCC. RCC's petition in Sinton alleged that the proposed assignee was not financially qualified. The Commission denied the petition and granted the application. Sinton Broadcasting Company, Inc., supra. Stoner was not a party to that proceeding. 3 Stoner adds the allegation that the Commission's News Release of Sinton, supra, preceded the release of the Commission's Opinion and Order by a day even though the Opinion and Order was adopted by the Commission a week earlier. Although this bare statement may be true, no conclusion is drawn by Stoner; standing by itself, this allegation raises no substantial and material question of fact. 4 We denied a petition for reconsideration of Radio Carrollton, supra, in Radio

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9. We find that Stoner's allegations are untimely and fail to make the required "strong showings” that assignor's petition was filed for the primary purpose of delaying the grant of the KMIO assignment application. See Sandpiper Broadcasting Company 44 RR 2d 1312 (1978). The Malkan Group's failure to seek Commission reconsideration or review by the Court of Appeals of the Sinton decision is of no significance. A petitioner is within his rights to refrain from further legal proceedings after the Commission has rendered a decision. A finding to the contrary would raise a presumption against the bona fides of a petitioner who fails to seek reconsideration or review and would encumber the administrative process with spurious and unnecessary litigation. Likewise, the timing of the news release and the efforts of the Malkan Group to acquire KZFM are not circumstances that indicate sham and delaying tactics. The Malkan Group was free to negotiate the sale of an FM station at any time unless the purchase would violate the Commission's multiple ownership rules. Further, the alleged threat by Mr. Stein that the Malkan Group would do "anything possible to prevent the sale” was not mentioned in Sinton, supra., and was denied by Mr. Stein in an affidavit attached to the Malkan Group's reply in the Sinton proceeding. The Sinton decision neither mentions this allegation and the ensuing denial by Stein, nor does it question the Malkan Group's good faith in filing the petition to deny against the assignment of KMIO. Thus, we find no basis to conclude that the Malkan Group's petition to deny filed against the assignment application of KMIO was a sham and, therefore, a strike petition.

10. We find no merit to Stoner's two remaining allegations that the Malkan Group engaged in misrepresentation in the prosecution of its 1977 KEYS renewal application and that it engaged in questionable conduct in its attempt to acquire KZFM in the instant application. In Radio Corpus Christi, 70 FCC 2d 1555 (1979), we treated these same allegations, resolving them in favor of the Malkans. The only substantive difference at that time was that Stoner's appeal from the adverse decisions of the lower courts in his suit for specific performance had not been decided by the Texas Supreme Court. Since then the Supreme Court has upheld the Court of Appeals and has filed a final order.

11. No substantial and material questions of fact have been presented by the petitioner which require resolution in an evidentiary hearing. We further find that the transferees are fully qualified to effectuate the transaction as proposed and that a grant of the application will serve the public interest.

12. Accordingly, IT IS ORDERED, That the petition filed on behalf of Roger H. Stoner IS DENIED, and that the application (BTC

Carrollton, 72 FCC 2d 264 (1979). In so doing, we dropped the word “substantial,” establishing that “substantial” was included within the meaning of "primary" in line three of the quoted material above.

8419) to transfer the license of FM Station, KZFM, Corpus Christi, Texas IS GRANTED.

FEDERAL COMMUNICATIONS COMMISSION,

WILLIAM J. TRICARICO, Secretary.

73 F.C.C. ad
September 7, 1979 – November 15, 1979

The following are summaries of Commission actions which are not printed in full.

ASSIGNMENTS AND TRANSFERS

Pre-hearing letter sent to proposed assignee of WRAK and WRAK-FM, Williamsport, Pa., Stainless B/cing Co., informing it that acquisition of a third station would be proscribed by the three station regional concentration" rules, Secs. 73.35(b), 73.240(a)(2) and 73.636(aX2). September 13, 1979. (FCC 79-543)

AURAL MATTERS

Application of Concord-Kannapolis (WPEG(FM)), Concord, N.C. for reconsideration of Commission's dismissal of its application for an increase in effective radiated power, denied; request for waiver of multiple ownership rules, also denied. September 13, 1979. (FCC 79-547) Petition by White River Valley B/cers to deny application of Maggie, Inc., Batesville, Ark., for a new AM station, denied; application of Maggie, Inc., granted with conditions. September 27, 1979. (FCC 79-578)

Application for CP by KBMR Radio, Inc. of Bismarck, N. Dak., for power increase and change in community of license, designated for hearing on suburban community and main studio location rule issues; petition of Bismarck. Mandan Communicatons, Inc. (KBOM(AM), Bismarck) granted. September 27, 1979. (FCC 79-605)

Appeal by John E. Bonine for review of General counsel's partial denial of his FOIA request regarding Commission policy on waiver of search and copying fees under FOIA, granted in part and otherwise denied. September 27, 1979. (FCC 79-590)

Application by Checkpoint Systems, Inc. for review of ruling of Chief Engineer and General Counsel which granted on FOIA request by Don Alt and Assocs. for review of agency records on equipment certification matters regarding Checkpoint equipment, denied. September 17, 1979. (FCC 79-554)

BROADCAST MATTERS

Petition by Durham Coalition to deny license renewal application of Carolina Radio of Durham, Inc. (WSRC, Durham, N.C.) treated as informal objection and denied, and license renewal granted. September 13, 1979.

Petition of Food and Beverage Trades Dept. of AFL-CIO to deny license renewal application of North Albama B/cers, Inc. (WHNT-TV, Huntsville, Ala.), treated as informal objection and dismissed, and license renewal granted. September 13, 1979.

Comments on preliminary reports of the Network Inquiry Special Staff must be filed by January 14, 1980; comments on topics contained in paragraphs 43-53 of the Further Notice of Inquiry (October 16, 1979) must be filed by February 15, 1979, Docket No. 21049. October 16, 1979. 44 FR 61230, dated 10-24-79.

Application of G.R.G. Associates, Inc., Marshall, Mich., for CP for new AM b/cast station, dismissed and petition of
National B/cing Co., Inc. to deny, granted. October 2, 1979. (FCC 79-622)
Petition to deny application of RAAD B/cing Co. (WXYX, Bayamon, P.R.) denied and request by Wilfredo Blanco Pi
for reconsideration of FCC staff's acceptance and extension application denied. September 18, 1979. (FCC 79-579)

Maggie, Inc. (Batesville, Ark.) application for CP is granted with conditions and White River Valley B/cers, Inc.'s petition to deny denied. September 18, 1979. (FCC 79578) Application of Ned Hughes Radio, Inc. (WYNE, Kimberly, Wisc.) for CP to change its community of license granted, and petition of Cummings Communications Corp. (WNAM-AM, Neenah-Menasha, Wisc.), denied. October 16, 1979. Petition of Birmingham B/cing Co., Birmingham, Ala., to reconsider CP grant to Chapman Radio and TV Co., Homewood, Ala., and related petitions, denied and dismissed. November 6, 1979. Applications of Charles A. Esposito, Avon Park, Florida, for review and of Broadcast Bureau for strike motion, both denied in BC Docket No. 79-84 and 85. October 25, 1979. Application by PCF Communications for waiver of cut-off rule and acceptance of late-filed application for CP for new noncommercial educational TV b/cast station in Denton, Texas, granted. October 25, 1979. In b/cast license renewal proceeding, immunity granted for specified key witnesses pursuant to petitions by Broadcast Bureau, Gilore B/cing Corp. (KODE-TV) and Mid-America B/cing (KTVJ-TV), both of Joplin, Mo. BC 78-81,82, 83. October 25, 1979.

827 Broadcast Bureau's request to withdraw exceptions to ID granted, previously scheduled oral argument cancelled. and proceeding terminated in the matter of United Television Co. of New Hampshire (WMUR, Manchester, N.H.), et al. Dockets 19336, 19338. October 25, 1979.

Sec. 73.642(aX3) of rules, allowing only one STV (subscription TV station) to a community, deleted. Docket No. 21502, September 25, 1979. (FCC 79-535) Part 73 of Rules amended to streamline the Alphabetical Index in Vol. III of Part 73. September 27, 1979. (FCC 79-608) In radio and TV b/cing reregulation program, Parts 73 and 74 amended to combine rules for each b/cast service into rules common to all stations, including rules on modulation limits, frequency tolerances and revisions of operating power determinations. Fed. Reg. dated 10-11-79/58729. (FCC 79-609) In radio and TV b/cing reregulation program, Part 73 of Rules amended to clarify and rewrite the “sale of a station" rule (Sec. 73.1150) and amend FCC Forms to conform to recent changes. Fed. Reg. dated 10-11-79/58719 (FCC 79-610) Pursuant to petition by Central Va. Educational TV Corp. (WNVT) for rulemaking, UHF-TV channel 56 is reassigned from Washington, D.C. to Fairfax, Va., with site limitations specified, for noncommercial educational use. BC 78-52. September 27, 1979. (FCC 79-612) 44 FR 58720, dated 10-11-79. Regarding Tucson FM Being Corp.' application for CP in a comparative hearing matter, Broadcast Bureau issues environmental impact study concluding that applicant's proposed construction will not have any adverse environ mental impact, and environmental issue is not warranted. November 6, 1979. (FCC 79-737)

Application by ITC Communications of Arizona, Inc. for review of Broadcast Bureau's ruling which denied peti tioner's FOIA request for release of certain annual reports (re KNIX, Tempe, Ariz. and KNIX-FM, Phoenix, Ariz.) from Buck Owens B/cing, Inc., application denied by the Commission. September 28, 1979 (FCC 79-618) Application of King Communications, Inc. (WGSE-TV, Myrtle Beach, S. Car.) for extension of time to construct a station, reinstated and designated for oral argument. BC Docket No. 79-301, November 6, 1979. (FCC 79740) 44 FR 69364 dated 12-379.

Application by John H. Bickel for review of Broadcast Bureau denial of his Fairness Doctrine complaint against NBC, Inc., denied by Commission. October 10, 1979 (FCC 79-655)

Application of Radio Nevada Corp. (KDWN, Las Vegas, Nev.) for CP to increase nighttime power, petition to deny by WGN Continental B/cing Co. and related pleadings, designated for hearing. (44 FR 69365; BC Docket No. 79-313); November 9, 1979. (FCC 79.748) Petition by Community Coalition for Media Change for reconsideration of license renewal grant of Miami Valley B/cing Corp. (KTVU-TV, Oakland, Calif.), 69 FCC 2d 870, denied; licensee's motion to strike the late filed affidavit of Ronald Johnson, granted. November 9, 1979. (FCC 79-746) Notice of proposed rule making issued on 9-13-79 that would amend Secs. 73.35, 73.240 and 73.636 relating to multiple ownership of AM, FM and TV b/cast stations. BC Docket No. 79-233. 44 FR 55603, dated 9-27-79. (FCC 79537)

Letter sent to Sen. Ernest F. Hollings, Chairman of Senate Subcommittee on Communications, transmitting requested FCC Forms 324 filed during 1978, and outlining the privileged nature of the information in those forms. September 17, 1979. (FCC 79-581)

Applications of WSM, Inc., Nashville, Tenn., (WSM(AM)) and Midwest Radio-TV, Inc. (WCCO(AM)) of Minne
apolis, Minn., for permission to operate their Class I-A stations with super-power, are returned to the filers, and
related pleadings dismissed. September 18, 1979. (FCC 79-577)
Application of KXA, Inc. (KXA), Seattle, Wash., for CP to increase daytime power, addition of nighttime operating
hours and transmitter relocation, and for related waivers of Rules Secs. 73.22 and 73.25, denied; petition by American
B/cing Cos. (WABC, New York, N. Y.) to deny the application and waiver, granted. September 18, 1979. (FCC 79-576)
Petition by Lincoln Television (KTSF-TV, San Francisco, Cal.) for reconsideration of previous application to dismiss
CP application of K&L Communications, Inc. (San Francisco, Cal.), denied. September 13, 1979. (FCC 79-551)
Petition by Rust Communications Group, Inc. for reconsideration of 73 FCC 2d 39, in which commission affirmed ID
which denied renewal of licenses for WHAM and WHFM(FM), Rochester, N.Y., on EEO and other grounds, denied.
Docket No. 20477. December 19, 1979. (FCC 79-871)
NPRM issued on September 27, 1979 to amend Secs.73.202(b), Table of Assignments, regarding an FM channel in
Lockhart, Tex. Printed in full at 44 FR 58764. BC Docket No. 79-256. September 27, 1979. (FCC 79-611)
CP application and petition for waiver of Sec. 73.30(a)(1) of Rules, filed by Frederick R. Cote (KGUD(AM), Banning,
Calif.) denied by Commission, September 27, 1979. (FCC 79-604)
Application by Thomas A. McCrary for review of Broadcast Bureau's denial of his complaint against Station
WAGA-TV, Atlanta, Ga., denied. October 10, 1979 (FCC 79-654)

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