. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .In reply refer to:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1800B3-JR

James K. Edmundson, Esquire
1301 K Street NW
Suite 900, East Tower
Washington, D.C. 20005

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .In re: Station WINU(AM), Highland, IL
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Transfer of Control
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . File No. BTC-960624GF
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Petition to Deny
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Request for Recission

Dear Mr. Edmundson:

This concerns: (1) the captioned application to transfer control of WIN-You, Ltd. ("WIN-You"), licensee of Station WINU(AM), Highland, Illinois, from Jack E. Chor ("Chor") and Marianna Kasten to ORTCK Communications, Inc. ("ORTCK"); (2) the Petition to Deny filed by David Wheeler ("Wheeler") (see Footnote 1); and (3) Wheeler's August 7, 1996 Request for Rescission. See Footnote 2. For the reasons set forth below, the petition to deny will be dismissed and the rescission request denied.

The transfer application appeared on two Public Notices announcing acceptance for filing. Initially, it appeared June 28, 1996 (Report No. 23770) with the File No. BAPL-960624GF. On July 2, 1996, a second notice (Report No. 23772) referenced File No. BTC-960624EA (see Footnote 3), was issued. Both notices specified the station, community of license, and parties to the proposed transfer of control. The application was granted July 31, 1996. Subsequently, on August 1, 1996, Wheeler filed the Petition to Deny, referencing the second announced file number, BTC-960624EA. The petition to deny deadline calculated from the date of the first public notice was July 29, 1996. See 47 C.F.R. §73.3584(a). Thus, Wheeler's pleading was not a timely filed petition to deny vis-a-vis the initial notice. It would have been timely vis-a-vis the second notice. The transfer of control was consummated August 5, 1996.

Petition to deny. Wheeler claims that Chor defrauded him of WIN-You stock, that transfer of control required his consent, which was never given, that he seeks specific performance in state court of a contract pursuant to which he is entitled to half interest in the licensee, that his litigation position would be adversely affected by grant of the transfer application, and that Chor is not qualified to be a licensee in light of his fraud and misrepresentations to the Commission concerning Wheeler's stock interest. Wheeler also alleges that WIN-You was late in informing the Commission of his corporate position, that several annual ownership reports were late filed, and that regulatory fees for 1994 and 1995 had not been paid. Further, Wheeler asserts that ORTCK prematurely assumed control of WINU. Alternatively, should the Commission not dismiss or deny the transfer of control application, Wheeler requests a stay in the transfer proceeding pending resolution of Wheeler's civil lawsuit.

Request for rescission. Wheeler indicates that the WINU(AM) transfer application erroneously was granted prior to the expiration of the statutory 30-day period following issuance of the July 2, 1996 (second) Public Notice of the acceptance of the application. Thus, he argues, the Commission should rescind the grant of the application and fully consider his petition to deny.

Petition to Deny. The issue of an applicant or petitioner's reliance on an erroneous second public notice has been addressed by both the Commission and the Court of Appeals for the District of Columbia Circuit. In The State of Oregon Acting By and Through The State Board of Higher Education ("State of Oregon"), 8 FCC Rcd 3558 (1995), recon. denied, 11 FCC Rcd 1843 (1995), appeal pending State of Oregon v. FCC, Case No. 96-1056 (D.C. Cir. 1996), the Commission rejected an argument by a "competing" applicant that the confusion engendered by the issuance of two notices and conflicting deadlines was tantamount to failure of the Commission to follow its own rules and, therefore, the first deadline was not valid. Citing the Court of Appeals decision in Florida Institute of Technology v. FCC "(Florida Institute"), 952 F. 2d 1356 (D.C. Cir. 1992), the Commission declined to hold the placement of an application on two cut-off lists equivalent to lack of adequate notice of a filing deadline. State of Oregon, supra, 8 FCC Rcd at 3561. Significantly also, the court in Florida Institute determined that the second cut-off deadline could not supplant the earlier one, because an agency's failure to follow its own procedures is fatal to the deviant action. 952 F. 2d at 553. Here, analogous to State of Oregon, the deviant staff action was the placement of the transfer application on the second Public Notice. Thus, the only relevant petition to deny deadline against the transfer application was July 29, 1996, as set forth in the initial notice. See Footnote 4. Accordingly, Wheeler's August 1, 1996 petition, being late-filed, is procedurally defective and cannot be considered pursuant to §73.3584 of the Commission's Rules. See Footnote 5. Wheeler's petition, having been filed subsequent to the July 31, 1996 grant of the transfer application, is also defective as an informal objection under 47 C.F.R. §73.3587. That rule requires such informal objections to be filed prior to action on a challenged application. See Letter to Vincent L. Hoffart, Senior from the Chief, Audio Services Division, Mass Media Bureau, April 3, 1996 (reference 1800B2, 8910-AJ).

Request for Stay. Wheeler's stay request is also deficient. Pursuant to 47 C.F.R. §1.44(e),such a request must be filed as a separate pleading. Further, absent a showing of irreparable injury, the Commission will not stay the grant of an already consummated assignment or transfer. See Runner, supra, 36 RR 2d at 776 (1976) (stay request rendered moot by consummation). Wheeler has not demonstrated that he will be irreparably harmed absent a stay. Specifically, there exists the possibility that "adequate compensatory or other corrective relief will be available at a later date" pursuant to the pending state court action. See Wisconsin Gas Co. v. FERC, 758 F. 2d 669, 674 (D.C. Cir. 1985). Additionally in this regard, while the Commission will not withhold action on pending applications pending the outcome of civil litigation involving private parties, see, e.g., Sonderling Broadcasting Co., 79 FCC 2d 647 (1979), it could rescind its prior transfer grant to give effect to a judicial determination favoring Wheeler. See Dale J. Parsons, Jr., 10 FCC Rcd 2719 (1995).

Conclusion. In light of the above and pursuant to 47 C.F.R. §0.283, the Petition to Deny filed July 29, 1996, including the request for stay contained therein, and the Request for Rescission filed August 7, 1996 by David Wheeler ARE DISMISSED AND DENIED, respectively.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sincerely,

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . signed Michael F. Wagner for
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Linda Blair, Chief
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Audio Services Division
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mass Media Bureau


cc: Christopher D. Imlay, Esquire
. . . .WIN-You, Limited
. . . .ORTCK Communications, Inc.

Footnotes:

Footnote 1: WIN-You filed an Opposition on August 14 and Wheeler a Reply thereto on August 26, 1996. Additionally, on October 18, 1996, WIN-You filed a "Statement for the Record."

Footnote 2: WIN-You filed an Opposition on August 9 and Wheeler a Reply on August 14, 1996.

Footnote 3: Italics [underlining in original] has been added for emphasis only. The "BAPL" prefix normally indicates a proposed assignment of a construction permit and license. However, the notice described the proposed action as a transfer of control. The "BTC" prefix references a proposal to transfer control of a permittee or licensee.

Footnote 4: The June 28, 1996 notice, while incorrectly setting forth a "BAPL" prefix, clearly and correctly described the requested action (the proposed voluntary transfer of control), the parties (from Chor to ORTCK), the facility (AM Station WINU), the community of license (Highland, IL), and the frequency (1510 kHz). Thus, the June 28 release constituted adequate notice of the proposed transaction. Further, that notice specified an application on FCC Form 315, for a transfer of control of a licensee or permittee. Thus, insofar as Wheeler contends that notice constitutes a "misrepresentation" and is confusing, that argument is rejected. See Hancock Communications, Inc., 10 FCC Rcd 13,068 (1995).

Footnote 5: Similarly, because under State of Oregon the first Public Notice of the acceptance of the WINU(AM) transfer application was controlling, Wheeler's argument in favor of rescission that the application was erroneously granted prior to expiration of the statutory 30-day period from the date of the second Public Notice is incorrect. As noted below, the request for rescission will be denied.