This document was originally prepared in Word Perfect 5.1. If the original document contained footnotes or special formatting, such as boldface or italics, that information is missing from the on-line ASCII version. The document format (spacing, margins, tabs, etc.) may be changed too. If you need the complete document, download the Word Perfect version.

                FEDERAL COMMUNICATIONS COMMISSION
                           WASHINGTON, DC 20554

                                     
                                                                 IN REPLY REFER TO:
                                                                                                                                                         1800B3-VEK



James S. Bubar, Esq.
Suite 830
1050 Seventeenth Street, N.W.
Washington, D.C. 20036

Donald A. Fishman, Esq.
Eric L. Bernthal, Esq.
Latham & Watkins
1001 Pennsylvania Ave., N.W.
Suite 1300
Washington, D.C. 20004-2505

                                            
                                           In re:    KIFM(FM), San Diego, CA
                                           KIFM Broadcasting Limited Partnership
                                           BALH-960206GI
                                           Application to Assign License
                                           

Dear Counsel:

The staff has before it a "Petition to Withdraw or Dismiss" ("petition") filed on March 14, 1996 by Josie Calderon,
Elida Chavez and Marta Concha, (the "Limited Partners"), limited partners in KIFM Broadcasting Limited
Partnership ("KIFM"), licensee of radio station KIFM(FM), San Diego, California.  The limited partners object to
the above-referenced application for assignment of the license and sale of the assets of the station from KIFM to
Jefferson-Pilot Communications Company ("Jefferson-Pilot").  As set forth below, the petition will be denied and
the assignment application will be granted.

The limited partners contend that they have a contractual right under the Partnership Agreement to approve the
proposed sale of the station to Jefferson-Pilot and that they have neither given their consent to the sale nor
authorized the general partner to file the assignment application on their behalf.  Thus, the limited partners request
that the assignment application be withdrawn or dismissed.  Alternatively, the limited partners request that any grant
of the assignment be conditioned on the outcome of the civil litigation they have instituted against KIFM.

Discussion.  The issue of whether the general partners of station KIFM had the authority to sell the station without
the prior approval of the limited partners or whether the limited partners have the right to disapprove the sale of the
station is a matter of state corporate law and is beyond our jurisdiction.  See John R. Kingsbery, 71 FCC 2d 1173
(1979).   The Commission has traditionally deferred to the judgment of competent courts on such matters, because
the Commission has neither the authority nor the machinery to adjudicate alleged claims arising out of private
contractual agreements.  Transcontinent Television Corp., 21 RR 945 (1961).  Thus, the Commission has
consistently held that it is not the proper forum for the resolution of private disputes and that interested parties
should seek redress in a local court of competent jurisdiction. See Decatur Telecasting, Inc., 7 FCC Rcd 8622
(1992); John F. Runner, Receiver (KBIF), 36 RR 2d 773, 778 (1976).  

In the instant case, the limited partners indicate that they are seeking relief in connection with the sale of the station
in violation of the Partnership Agreement in the Superior Court of the District of Columbia;  the limited partners
also filed an action in the United States District Court for the District of Columbia against the assignee, Jefferson-
Pilot, seeking a declaratory judgment that the Purchase Agreement is null and void.  Additionally, KIFM has filed
an action against the limited partners before the Superior Court of the State of California for the County of San
Diego.  The Commission recognizes that it must balance its jurisdiction over licensing with the power of state and
local courts to adjudicate contractual disputes.  See Arecibo Radio Corp., 101 FCC 2d 545, 548 (1985).  The
Commission therefore can and will take whatever steps it deems appropriate to accommodate a local court's ruling
on a matter within its jurisdiction.  See Dale J. Parsons, Jr., 10 FCC Rcd 2718, 2719-20 (1995) appeal filed sub
nom.  Dale J. Parsons, Jr. v. FCC, No. 95-1191 (D.C. Cir. April 4, 1995).  Similarly here, only if a local court of
competent jurisdiction resolves the issues of state corporate law would the Commission be in a position to
determine whether any action is required on our part.  Deferral or dismissal of the instant assignment application
based on the pending civil proceedings is therefore inappropriate.  See, e.g., Sonderling Broadcasting Co., 46 RR
2d 890, 895 (1979).  In this regard, we note that the limited partners have not obtained a court-issued injunction
enjoining the sale from going forward.


With respect to the limited partners' contention that the Commission should condition the grant of the assignment
application on the outcome of the civil actions, we note that Commission grant of an assignment application merely
finds that the parties are qualified under, and that the proposed transaction does not violate, the Communications
Act of 1934, as amended, and the Commission's rules and policies.  As such, it is permissive only and does not
compel the transaction to go forward.  It therefore does not prejudice any relief that the parties ultimately may be
entitled to under civil suit.  Therefore, a grant made without an express condition pertaining to the litigation does
not afford the applicants any greater rights than they would otherwise be entitled to and does not limit the
Commission from taking any appropriate future action based on the final outcome of the civil suits.  
  
For the foregoing reasons, we find that the petition filed by the limited partners is without merit.  We also find that
KIFM and Jefferson-Pilot are fully qualified under the Act and Commission rules and policies, and that approval of
this sale would serve the public interest, convenience and necessity.

Accordingly, the Limited Partners' Motion for Leave to File Supplement to the Reply to the Opposition to the
Petition to Withdraw or Dismiss" IS DENIED, and the attached Supplement IS DISMISSED.  Additionally, the
Limited Partners' "Petition to Withdraw or Dismiss" IS HEREBY DENIED and the above-referenced application
(File No. BALH-960206GI)  for consent to assign KIFM(FM), San Diego, California from KIFM Broadcasting
Limited Partnership to Jefferson-Pilot Communications Company IS HEREBY GRANTED.  Again, we
emphasize that the Commission's grant of the assignment application is not intended to prejudice any relief to
which a court of competent jurisdiction may ultimately determine that any person is entitled.


                                               Sincerely,



                                               Linda Blair, Chief
                                               Audio Services Division
                                               Mass Media Bureau









cc:  Daniel K. McAlister, Esq.
       

Return to the Audio Services Division screen

Return to the Mass Media Bureau screen

FCC Home Page