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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 Applications of ) ) Aspen FM, Inc., a California Corporation) (Assignor) ) ) and ) ) Aspen FM, Inc., a Colorado Corporation) (Assignee) ) ) For Assignment of Permit of ) File No. BAPH-960805GF KPVW(FM), ) Aspen, Colorado ) ) ) Aspen FM, Inc., a California Corporation) ) For Extensions of Time to Construct ) File Nos. BMPH-950822JA KPVW(FM), ) BMPH-960711JB Aspen, Colorado ) BMPH-970214JB MEMORANDUM OPINION AND ORDER Adopted: October 15, 1997 Released: October 21, 1997 By the Commission: Introduction 1. The Commission has before it: (1) a September 23, 1996, petition for reconsideration filed by Moss Entertainment Corporation ("Moss"), licensee of KSPN(FM), Aspen, Colorado, seeking reconsideration of the staff's August 20, 1996, grant of the above-captioned application for the pro forma assignment of the KPVW(FM) construction permit from Aspen FM, Inc., a California corporation ("AFI/California"), to Aspen FM, Inc., a Colorado corporation ("AFI"); (2) a September 30, 1996, application for review of an August 27, 1996, letter order ("August 27 Letter Order") by the Chief, Audio Services Division, Mass Media Bureau, which denied a Moss petition for reconsideration and affirmed the staff grant of AFI/California's August 22, 1995 application for a second extension of time to construct Station KPVW (File No. BMPH-950822JA); (3) a November 22, 1996, Moss petition for reconsideration of an October 16, 1996, letter order ("October 16 Letter Order") by the Chief, Audio Services Division, Mass Media Bureau, which dismissed Moss's informal objection to AFI/California's July 11, 1996, application for a third extension of time to construct Station KPVW (File No. BMPH- 960711JB); and (4) an April 7, 1997, Moss informal objection to a February 14, 1997, AFI application for a fourth extension of time to construct Station KPVW (File No. BMPH-970214JB). Other related pleadings also have been filed by Moss and AFI. Because Moss raises similar issues in its two petitions for reconsideration and its application for review, the Mass Media Bureau has referred the two petitions for reconsideration to the Commission, as permitted pursuant to 1.106(a)(1) of the Commission's rules, for resolution in conjunction with our consideration of the application for review. In the interest of administrative efficiency, the Mass Media Bureau also has referred the fourth extension request to the Commission in accordance with  0.283(a)(9)(iii) of the Commission's rules. For the reasons set forth below, we deny the application for review, both petitions for reconsideration, and the informal objection, and we grant the application for a fourth extension of time to construct Station KPVW. Background 2. On July 12, 1985, AFI/California filed an application for a construction permit for a new commercial FM station in Aspen, Colorado (File No. BPH-850712PH). Following a comparative hearing, the Commission granted on May 19, 1992, the AFI/California application. On November 4, 1993, AFI/California filed its first application for extension of the KPVW permit, claiming that construction at the authorized Upper Red Mountain antenna site would be too difficult and expensive (File No. BMPH-931104JB). The staff denied this initial extension request and cancelled the KPVW permit on February 6, 1995. However, on June 22, 1995, the staff granted AFI/California's petition for reconsideration of the February 6, 1995, cancellation order, and reinstated and extended the KPVW permit for two months. In its reconsideration order, the staff set an August 22, 1995, deadline for the filing of an application to modify the KPVW construction permit to specify a new transmitter site. 3. On August 22, 1995, AFI/California filed simultaneously an application for a second extension of the KPVW construction permit (File No. BMPH-950822JA), and a modification application (File No. BMPH-950822ID). AFI proposed to relocate its technical facilities to Williams Hill. The modification application disclosed that the Bureau of Land Management ("BLM") had agreed to entertain a request from AFI/California for a right of way to operate at this designated multi-user radio site in Pitkin County, Colorado. Finding that AFI/California had diligently sought to resolve construction problems and had obtained reasonable assurance of the proposed antenna site, the staff on January 18, 1996, denied an informal objection filed by Moss and granted both AFI/California's second extension application and modification application. Moss filed a petition for reconsideration of the staff's denial of its informal objection on February 22, 1996, which was denied on August 27, 1996. As noted in paragraph 1, supra, Moss now seeks Commission review of this action. 4. On July 11, 1996, AFI/California filed with the Commission an application for a third extension of the KPVW permit, citing zoning and land use problems with the Williams Hill site that were beyond its control (File No. BMPH-960711JB). Specifically, AFI/California avers that after submitting its application for a Williams Hill right of way, the BLM informed AFI/California that it would not act on AFI/California's application until all Pitkin County land use requirements are satisfied. AFI/California has retained an Aspen law firm to secure the necessary county approvals. The staff granted the July 11, 1996, extension application on August 22, 1996, extending the permit to February 22, 1997. On August 23, 1996, Moss filed with the Commission an informal objection to the extension application, which the staff dismissed as untimely on October 16, 1996. As noted in paragraph 1, supra, Moss now seeks reconsideration of this action. 5. On August 5, 1996, shortly after the filing of its third extension request, AFI/California submitted an application for consent to the pro forma assignment of the KPVW permit from AFI/California to AFI (File No. BAPH-960805GF). The Commission granted the pro forma assignment application on August 20, 1996. As noted in paragraph 1, supra, Moss now seeks reconsideration of this action. 6. On February 14, 1997, AFI filed an application for a fourth extension of time to construct Station KPVW based on continuing difficulties in obtaining a Williams Hill right of way from the BLM (File No. BMPH-970214JB). This application discloses that AFI submitted an application seeking Pitkin County zoning approval. AFI reports that, on October 1, 1996, it received a Special Use Permit, as well as a Growth Management Quota System Exemption from the Pitkin County Planning and Zoning Commission. AFI explains, however, that it is now waiting for the Board of County Commissioners of Pitkin County to affirm the Planning and Zoning Commission's approval and that action by the County Commissioners has been delayed pending the BLM's response to a county inquiry. As noted in paragraph 1, supra, Moss has filed an informal objection to this application. September 23, 1996, Petition for Reconsideration of Grant of Pro Forma Assignment Application 7. Moss asserts that the staff erred in granting the application for the pro forma assignment of the KPVW construction permit from AFI/California to AFI. Moss alleges that AFI/California was unable to assign its construction permit to AFI because AFI/California's corporate privileges were suspended under California law on December 1, 1988, for failure to pay state franchise taxes. Moss contends that AFI/California's suspension bars it from carrying on any business before the Commission, including the prosecution of the assignment application. Moss further contends that the staff grant of the pro forma assignment application was in violation of  73.3535(d) of the Commission's rules and that the assignment application was improperly filed on FCC Form 316. Moss maintains that inter-corporate assignments must be submitted on FCC Form 314. Finally, Moss asserts that AFI/California violated 1.65 of the Commission's rules by withholding from the Commission the fact that the California Secretary of State had suspended its corporate privileges. 8. AFI acknowledges that the California Secretary of State suspended AFI/California's corporate charter in 1988. AFI asserts that this suspension was an oversight by the officers of AFI/California that did not impact its ability to file the KPVW assignment application. AFI contends that AFI/California was suspended, not terminated, under California law and that the corporation could have revived itself by paying the back taxes which it owed. AFI argues that AFI/California's ability to prosecute an FCC application was resolved by the Commission's consent to the assignment of the KPVW construction permit. AFI states that following the assignment of the KPVW construction permit to AFI, AFI/California no longer has any assets and that the AFI/California stockholders have no plans to revive the corporation. AFI contends that the suspension of AFI/California under state law cannot form the basis for a determination that either AFI or its predecessor, AFI/California, lacks the basic qualifications to be a Commission licensee. Finally, AFI asserts that  73.3540(f)(4) of the Commission's rules permits a "short form" assignment application in the case of a corporate reorganization which involves no substantial change in the beneficial ownership of the corporation. 9. Although it did not oppose AFI/California's pro forma assignment application, Moss has standing, pursuant to 1.106 of the Commission's rules, to file the instant petition for reconsideration of the staff's action granting that application. Moss and AFI would compete for listeners in the Aspen market, and thus, Moss meets the "aggrieved/adversely affected" test for standing. See FCC v. Sanders Bros., 309 U.S. 470 (1940). Consent to the KPVW permit assignment was granted only five days after the issuance of the Public Notice of the acceptance of the assignment application. In similar circumstances, the Commission has found that such a short filing opportunity effectively precludes participation during the initial consideration of an application. See Ted and Jana Tucker, 4 FCC Rcd 2816 (1989) (concluding that a petitioner that had not participated previously had standing when modification application granted four days after Public Notice of its acceptance). Thus, as required by 1.106(b)(1), Moss has shown good cause why it was unable to participate in earlier stages of this proceeding. 10. However, we find that Moss's allegations of error are without merit. In order to prevail on reconsideration, a petitioner must demonstrate that the underlying action was based on errors of fact or law. See 47 C.F.R.  1.106(d)(2). Moss has not met this burden. To the extent that Moss argues that AFI/California's prosecution of the assignment application is barred or somehow without effect, it must seek relief from the appropriate local court. AFI/California's suspension and its effect on corporate actions taken during the period of the suspension are state law matters. The Commission has traditionally declined to consider such issues where no challenge has been made in state court and the determination is one that is more appropriately resolved by a local court of competent jurisdiction. See North American Broadcasting Co., Inc., 15 FCC 2d 979 (1969). 11. Moreover, Moss's argument that the assignment of the KPVW permit is barred by 47 C.F.R.  73.3535(d) is without merit. This rule, which prohibits the assignment of broadcast authorizations after the expiration of the initial construction period, does not apply to AFI/California's "short form" permit assignment application. See Amendment of Section 73.3598 and Associated Rules Concerning the Construction of Broadcast Stations, 102 FCC 2d 1054, n.6 (1985). In addition, AFI/California was not required to file a "long form" assignment application on FCC Form 314. Section 73.3540(f)(5) of the Commission's rules specifically permits a "short form" application for an assignment to another corporation owned or controlled by the assignor stockholders without substantial change in their interests. 47 C.F.R.  73.3540(f)(5). Here, the officers, directors and shareholders of AFI/California and AFI are the same - the only change is the domicile of the corporation. Therefore, the staff's consideration of the proposed permit assignment under its short form procedures was proper. Moreover, to the extent that it has alleged that AFI/California intentionally misrepresented to the Commission its loss of good standing, Moss has failed to supply any substantiation for this claim. Finally, Moss has failed to identify the information in AFI/California's assignment application that is no longer "substantially accurate and complete in all significant respects . . ." 47 C.F.R.  1.65(a) (emphasis added). Accordingly, Moss's September 23, 1996, petition for reconsideration is denied. September 30, 1996, Application for Review of Grant of the Second Extension Request 12. The August 27, 1996, Letter Order denied Moss's February 22, 1996, petition for reconsideration of the staff's January 18, 1996, decision denying Moss's informal objection and granting AFI/California's application for a second extension of the KPVW construction permit. In its application for review, Moss contends that the August 27 Letter Order should be reversed because: (a) AFI and its predecessor, AFI/California, have not put forth a "good faith" effort to construct Station KPVW; and (b) AFI/California did not meet the requirements for the extension of a construction permit, as set forth in  73.3534(b) of the Commission's rules. 13. In opposition, AFI asserts that the Chief, Audio Services Division, Mass Media Bureau correctly applied  73.3534(b) of the Commission's rules which sets forth the requirements for the extension of construction permits. AFI contends that by demonstrating reasonable assurance of a new site under Alden Communications Corp., 3 FCC Rcd 3937 (1988), affirmed by judgment, 917 F.2d 62 (D.C. Cir. 1990), it satisfied the  73.3534(b)(3) requirement that it take all possible steps to expeditiously resolve the problem preventing construction of Station KPVW. AFI also argues that there is no rule or policy which prohibits permit extensions unless the Commission specifically finds that a permittee has engaged in "good faith" construction efforts. 14. We affirm the August 27 Letter Order's determination that the second extension of the KPVW construction permit represented a proper application of the Commission's rules and precedent. The record fully supports the staff conclusion that AFI/California's site acquisition difficulties constituted a circumstance beyond its control preventing construction and that AFI/California took all possible steps during the relevant construction period to expeditiously resolve this problem and proceed with the construction of Station KPVW at the new Williams Hill site. These included the identification of a new site, the filing of a modification application, and the initiation of the Pitkin County zoning approval process. See 47 C.F.R.  73.3534(b)(3). Finally, neither the Commission's rules nor precedent support Moss's contention that an applicant satisfy a distinct "good faith" construction standard when it seeks a construction permit extension. The Commission's rules set forth specific, objective standards for determining whether a permittee has diligently attempted to construct the authorized facilities. Plainly, an applicant's good faith is squarely in issue when the Commission considers the subsection (b)(3) issue whether "all possible steps" have been taken to resolve construction problems. In these circumstances, the addition of a new, generalized "good faith" criterion is neither necessary nor appropriate. Accordingly, Moss's September 30, 1996, application for review is denied. November 22, 1996, Petition for Reconsideration of Grant of the Third Extension Request 15. In the October 16 Letter Order, the Chief, Audio Services Division, Mass Media Bureau dismissed as untimely an informal objection, styled as a "Petition to Dismiss," filed by Moss against the July 11, 1996, AFI/California application for a third extension of the KPVW construction permit. Moss now seeks reconsideration of the October 16 Letter Order. Moss contends that its informal objection was filed subsequent to the Commission's grant of AFI/California's extension application because: (a) AFI/California did not give notice of the extension application to Moss; and (b) the Commission was tardy in issuing a Public Notice of the extension application's acceptance. Moss, citing Roy M. Speer, FCC 96-100 (released March 11, 1996) ("Speer"), also argues that its untimely informal objection should have been treated as a petition for reconsideration. 16. AFI contends that Moss's petition for reconsideration should be dismissed pursuant to  1.106 of the rules because Moss has not demonstrated a material error or omission in the October 16 Letter Order, nor has it raised any new facts. AFI avers that the October 16 Letter Order correctly dismissed Moss's informal objection on the grounds that the informal objection was untimely. 17. We find that Moss's allegations of error are without merit and affirm the October 16 Letter Order. The Chief, Audio Services Division, Mass Media Bureau correctly dismissed Moss's untimely informal objection, which was filed on August 23, 1996, one day after the staff grant of the third extension of the KPVW construction permit. Section 73.3587 of the Commission's rules provides, in pertinent part, that "[b]efore FCC action on any application for an instrument of authorization, any person may file informal objections to the grant." 47 C.F.R.  73.3587 (emphasis added). AFI/California was under no obligation to serve Moss with a copy of the KPVW extension application. Furthermore, the Commission issued a Public Notice of its acceptance of the extension application on July 29, 1996. However, Moss did not file an informal objection until August 23, 1996, more than three weeks later. Thus, Moss had ample opportunity to file a timely informal objection. In any event, it is well settled that zoning difficulties which have not been resolved despite a permittee's diligent efforts constitute a circumstance beyond such permittee's control that warrant an extension of the underlying authorization. See, e.g., Letter to Tanja L. Kozicky, Esq., 11 FCC Rcd 4163, 4165 (Audio Serv. Div. 1996). 18. Moss's argument that its untimely informal objection should have been treated as a petition for reconsideration is also unavailing. We recognize that in Speer, the Commission treated Urban Broadcasting Corporation's ("Urban") late-filed informal objection to an application for consent to the transfer of control of Silver King Communications, Inc. ("Silver King") as a petition for reconsideration. However, Speer is plainly distinguishable on its facts. Urban's late-filed informal objection raised serious and very credible allegations of misrepresentation, lack of candor and unauthorized transfer of control against Silver King, a large Urban shareholder. Absent such compelling circumstances, it is the Commission's practice not to treat an untimely informal objection as a petition for reconsideration. Moss's contentions are not of the same gravity as those raised by Urban, and therefore the dismissal of its informal objection was proper. Accordingly, Moss's November 22, 1996, petition for reconsideration is denied. February 14, 1997, Application for Fourth Extension of Time to Construct Station KPVW 19. Predictably, Moss opposes AFI's fourth extension request. Moss contends that AFI has made no progress toward the construction of Station KPVW during the most recent construction period. Therefore, Moss requests that either AFI's extension request be denied or a hearing be conducted to explore both the reasons for AFI's failure to make progress in the construction of Station KPVW, as well as AFI's fitness to remain a permittee. AFI opposes Moss's informal objection and asserts that circumstances beyond its control have prevented further progress toward the construction of Station KPVW. 20. AFI asserts that its inability to obtain the necessary federal and local zoning and land use approvals from the BLM and Pitkin County continues to constitute a circumstance beyond its control which has prevented further progress. Moreover, AFI contends that during the relevant construction period - August 22, 1996, to February 22, 1997 - it has diligently taken "all actions that it can to secure land use approvals." Specifically, AFI submitted an application for Pitkin County zoning approval, which was approved by the Pitkin County Planning and Zoning Commission on October 1, 1996. While the next step in the approval process is for the Pitkin County Board of Commissioners to act on AFI's zoning request, a hearing before this board has been delayed pending the receipt of information from the BLM. Furthermore, per the BLM's request, AFI has engaged an archaeological consultant to determine whether the proposed construction will cause any adverse archaeological impact. 21. We find that despite its continuing diligent efforts, AFI has been stymied in its attempt to construct Station KPVW by circumstances clearly beyond its control, i.e., its difficulty in obtaining the requisite federal and local zoning and land use approvals. As noted in paragraph 17, supra, it is well settled that zoning difficulties which have not been resolved despite a permittee's diligent efforts constitute a circumstance beyond such permittee's control that warrant an extension of the underlying authorization. Accordingly, Moss's informal objection is denied and AFI's February 14, 1997, application for a fourth extension of time to construct Station KPVW is granted. We are constrained to note, however, that with each subsequent KPVW extension application, AFI will face increased scrutiny as to both the sufficiency of its efforts to expeditiously resolve the Williams Hill zoning and land use problems and the likelihood that it will be successful in its attempt to construct the authorized facilities. Ordering Clauses 22. Accordingly, IT IS ORDERED, That, pursuant to Section 1.106(j) of the Commission's rules, 47 C.F.R.  1.106(j), the September 23, 1996, Petition for Reconsideration filed by Moss Entertainment Corp. IS DENIED. 23. IT IS FURTHER ORDERED, That, pursuant to Section 1.115(g) of the Commission's rules, 47 C.F.R.  1.115(g), the September 30, 1996, Application for Review filed by Moss Entertainment Corp. IS DENIED. 24. IT IS FURTHER ORDERED, That, pursuant to Section 1.106(j) of the Commission's rules, 47 C.F.R.  1.106(j), the November 22, 1996, Petition for Reconsideration filed by Moss Entertainment Corp. IS DENIED. 25. IT IS FURTHER ORDERED, That, pursuant to Section 73.3534 of the Commission's rules, 47 C.F.R.  73.3534, the April 7, 1997, informal objection filed by Moss Entertainment Corp. is DENIED and the February 14, 1997, Application for Extension of Broadcast Construction Permit filed by Aspen FM, Inc., a Colorado corporation, IS GRANTED. The KPVW construction permit (BPH- 850712PH) is hereby extended for a period of six months from the date of release of this order. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary