WPC 2BJ Z Courier3|x w RomanTimes New Roman BoldX@HP LaserJet 4M Rm. 344 LPT2:332HL4MPCAD.PRSx  @\![X@26KNX)wCourierTimes New Roman"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxd<?xxx,>x6X@`7X@s7jC:,9Xj\  P6G;XPt7nC:,|Xn4  pG;X\5hC:,-2Xh*f9 xr G;XX2H K#DnKK "i~'^:DpddȨDDDdp4D48ddddddddddDDpppd|Ld|pȐD8DtdDdpXpXDdp8Dp8pdppXLDpdddXP,PhD4htDDD4DDDDDDdDp8dddddȐXXXXXJ8J8J8J8pddddppppddpddddzpdddXXhXXXXXdddhdptL8LpLDLpphhp8ZDP8pppddƐXXXpLpLpLphfDtppppppȐhXXXpDppLDd4ddC6CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxHjdDddddddx6X@`7X@s7jC:,9Xj\  P6G;XPt7nC:,|Xn4  pG;X\u5hC:,-2Xh*f9 xr G;XXvW!@(#,h@\  P6G;hP<R&HHH,>K,H6X@`7h@y.X80,X\  P6G;P"i~'^09CSS999S]+9+/SSSSSSSSSS//]]]Ixnnxg]xx9?xgxx]xn]gxxxxg9/9MS9ISISI9SS//S/SSSS9?/SSxSSIP!PZ9+ZM999+99999999S/xIxIxIxIxIlnIgIgIgIgI9/9/9/9/xSxSxSxSxSxSxSxSxSxSxIxSxRxSxSxS]SxIxIxInInInZnIxigIgIgIgIxSxSxSxZxSxZxS9/9S999Su]ZZxSg/gCg9g9g/xSbxSxSxSxSxn9n9n9]?]?]?]ZgFg/gMxSxSxSxSxSxSxxZgIgIgIxSg9xS]?g9xSi+SS88WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN/>/>/>/x]SSSSx]x]x]x]xSxSx]SSxSxSf]xSxSxSxIxIxWxIx{nInInInISSSWS]a?/?]?9?]]WW]n/nKn9nCn/x]xx]x]SSxxIxIxI]?]?]?]WnUn9nax]x]x]x]x]x]xxWnInInIx]n9x]]?n9xSz+SS8-8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNx6X@`7X@s7jC:,9Xj\  P6G;XPt7nC:,|Xn4  pG;X\u5hC:,-2Xh*f9 xr G;XXvW!@(#,h@\  P6G;hP<R&HHH,>K,H6X@`7h@wy.X80,X\  P6G;Py.\80,T\4  pG;VV|\V\4 V V>4V4f^V^::ђp  i  !"w~TwTvȈ'02 X4[ #Xj\  P6G;9XP# FEDERAL COMMUNICATIONS COMMISSION  X'+Washington, D.C. 20554 ă  V4` `  hhCqppIn reply refer to: ` `  hhCqpp1800B1JD William L. Zawila, Esq. 12550 Brookhurst Street Suite A Garden Grove, California 92640 Richard J. Hayes, Jr., Esq. 13809 Black Meadow Road Spotsylvania, Virginia 22553  X 4` `  hhCqRe: Western States Broadcasting, Inc. ` `  hhCqKCHQ(FM), Altamont, Oregon ` `  hhCqFile No. BAPH960924GE ` `  hhCqApplication for Assignment of License  Xb4` `  hhCq   Dear Messrs. Zawila and Hayes:      This letter refers to: (1) Western States Broadcasting, Inc.'s (Western) and George J. Wade's September 13, 1996 Application for Consent to Assignment of Broadcast Station Construction Permit (File No. BAPH960924GE) for silent station KCHQ(FM), Altamont, Oregon, and (2) Wynne Broadcasting Company, Inc.'s (Wynne) October 15, 1996 informal  X4objection to the proposed assignment.0 O:4ԍ#]\  PCP#Western has also filed a Petition Requesting Expedited Consideration of an Application of a Silent  yO'Station, which we dismiss as moot in light of our action here. We also have on file Western's November 5, 1996 Opposition, Wynne's November 25, 1996 Response and Western's December 16, 1996 Supplemental  yO'Opposition. #x6X@K>X@# For the reasons stated below, we deny the informal objection and grant the assignment application. Additionally, we grant KCHQ special temporary authority to remain silent for 90 days from the date of this letter.  Xe4[ Background ă   X74In the instant assignment, Western proposes to assign the construction permit7 O"4ԍ#]\  PCP#Western filed a license application on May 10, 1991 (File No. BLH910510KC), which remains  yO#'pending.#x6X@K>X@# for KCHQ(FM) and to sell one portable transmitter building, one rotary converter and one spare transformer for a 20 KW Harris FM transmitter to Mr. Wade for a total of $30,000. In its informal objection, Wynne asserts that the assignment application should be denied because (1) Western proposes to sell an unbuilt station for more than expenses in violation of 47 C.F.R. Section 73.3597, (2) Western proposes to sell a bare construction permit, and (3)  X!4Western has failed to file a minor modification application required to implement a channel"!(0*0*0*? " class change pursuant to a 1992 Commission order.  X'  X',_Discussionà  X4Built/Unbuilt Station. Wynne states that KCHQ is an unbuilt station, implying that the sale of the station for more than expenses would violate our rules. Generally, we will not consent to the assignment of a construction permit of an unbuilt station if the sale agreement provides for payment to the seller of a sum in excess of legitimate and prudent expenses reasonably necessary to place the station in operation. 47 U.S.C. 73.3597(c)(2). However, a station is considered "built" and does not fall under Section 73.3597(c)(2) if it has conducted  X 4program testing. See 47 U.S.C. 73.3597(c)(1)(i) ("unbuilt station refers to [a] broadcast station for which a construction permit is outstanding, and, regardless of the stage of physical  X 4completion, as to which program tests have not commenced...."). See also Syracuse Channel  X 462, Inc., 60 RR 2d 1161, 1166 (1986) (station operating on limited schedule under special  X 4temporary authority qualified as built under Commission rules). Because KCHQ commenced  X4program tests in 1991, O 4ԍ#]\  PCP#Letter from William L. Zawila, President, Western States Broadcasting, Inc., to Secretary, Federal  yO'Communications Commission (February 1, 1991).#x6X@K>X@# 73.3597(c)(1)(i) does not apply. KCHQ may therefore be sold in excess of the expenses that were reasonably necessary to place the station in operation.   XK4 Bare Construction Permit. Wynne equates the KCHQ assignment to that of a bare  X44license, stating that Western has nothing to sell other than a construction permit. The sale of  X4a bare license is generally prohibited under Commission policy. See Edward B. Mulrooney,  X413 FCC 2d 946, 947 (1968). Construction permits, however, may be transferred without additional assets. Accepting for sake of argument Wynne's analogy of this construction permit to a license, we would not find this transaction inconsistent with our policy. The reason for the bare license policy is to prevent speculation and to encourage prompt initiation  X4or resumption of broadcast operations. In the present application for assignment, the construction permit is accompanied by three additional assets: a portable transmitter building, a rotary converter and a spare transformer for a 20 KW Harris FM transmitter. These constitute physical assets transferred to the assignee separate from the license and sufficient to  XN4outweigh allegations of a bare Commission authorization sale. See Kirk Merkley, Receiver,  X7494 FCC 2d 829, 837 (1983), recons. den., 56 RR 2d 413 (1984)  . Therefore, even if the bare license policy were applicable to construction permits like KCHQ's, the transaction would not be considered as a sale of a bare authorization.  X4 Channel Class Change . KCHQ was granted authority to operate on Channel 267C on March 22, 1988 (File No. BPH870609MB). On August 1, 1990, KCHQ's construction  X!4permit was modified to specify operation on Channel 267C1 (File No. BMPH890922IB).   At Western's request, in 1992 we modified KCHQ's authorization to specify operation on  X#4Channel 249C1. Report and Order, Amendment of Section 73.202(b), Table of Allotments,  Xh$4FM Broadcast Stations (Altamont and Bandon, Oregon, Tulelake, California), 7 FCC Rcd  XQ%44599 (MMB, July 23, 1992) ("Order").#x6X@K>X@##o\  PC9XP# The ordering clause contained a condition, routinely"Q%00*0*0*#"  X4attached to rulemakings, which stated that within 90 days of the effective date of the Order  X4the permittee was to submit a minor change application for a construction permit. Id. at 4600. Western has failed to submit a minor change application to effectuate the rulemaking. Wynne argues that Western's failure to file the modification application within the 90  X4days specified in the Order is fatal to its current assignment application because KCHQ cannot now assign a construction permit to build on a channel where they no longer have a right to  X_4operate. The Order specifically amended the FM Table of Allotments, 73.202(b), with  XH4respect to Altamont, Oregon, effective September 8, 1992, irrespective of whether a minor modification application for a construction permit was filed within 90 days of the effective  X 4date of the Order. The Commission's rules and policies do not provide for the automatic termination of an allotment when a 90day condition such as that specified in the Altamont  X 4rulemaking is not satisfied. See Letter from Larry D. Eads, Chief, Audio Services Division, Mass Media Bureau, to Great American Television and Radio Company, Inc. (File Nos. BMLH901119KE, BPH920603IG) (June 11, 1993). Although we strongly encourage compliance with a 90day condition, an allotment approved in our rules does not cease to exist at the end of that period if a minor modification application is not filed. Thus, the channel is available for KCHQ. However, KCHQ must operate from Channel 249C1 to  Xb4comply with the Table of Allotments. We have relied on the Altamont amendment to the  XK4Table of Allotments since it was effective in 1992.K O4ԍ #]\  PCP#The license for KYAX(FM), Alturas, California, was subsequently modified to specify operation on Channel 267C, a channel on which KCHQ was previously authorized, and the FM Table of Allotments was  yOd'amended to reflect the modification effective May 10, 1993. See Report and Order, Amendment of Section  yO,'73.202(b), Table of Allotments, FM Broadcast Stations. (Alturas, California.), 8 FCC Rcd 2158 (MMB, March  yO'25, 1993). However, KYAX, now under the call sign KCNO , continues to operate on Channel 233C1, the same  yO'channel from which it operated prior to the modification.   If KCHQ operates instead from its old channel, 267C1, before it goes on the air from 249C1, it would do so at its own risk. The Commission will consider proposals by other applicants to broadcast from Channel 267C1 that would conflict with KCHQ's operation from that channel. Thus, KCHQ's authority to operate on Channel 267C1 may be forfeited if a conflicting facility is ready to commence program test operations on that channel.  X4 Silent Station Deadline. The assignee, Mr. Wade, states in a December 10, 1996 declaration that he is ready, willing and able to return KCHQ to the air expeditiously via a lowpower auxiliary facility or a local management agreement with Western if necessary to adhere to the Telecommunications Act of 1996, which mandates that the broadcast license of a station silent for 12 consecutive months will expire as a matter of law if broadcast  X74operations do not resume on or before February 8, 1997. See 47 U.S.C. 312(g). However, the Telecommunications Act does not apply in KCHQ's situation. We made clear in our silent station order that the Telecommunications Act applies to stations that are or had been  X4licensed. Order, Silent Station Authorizations, FCC 96218 (May 17, 1996). KCHQ is an unusual case in that it has conducted program tests and has a license application pending, but was never actually licensed and currently has only a construction permit. Because KCHQ has never been licensed, we find that the February 8,1997 deadline as a matter of law does not apply to it. ""P0*0*0* "Ԍ "J ԙ  "J #o\  PC9XP#Accordingly, Wynne Broadcasting Company, Inc.'s informal objection IS DENIED. Having found the applicants qualified and that the assignment would serve the public interest, the Application for Assignment of the KCHQ(FM) construction permit from Western States Broadcasting, Inc. to George J. Wade IS GRANTED SUBJECT TO THE FOLLOWING APPROPRIATE CONDITIONS: (1) The assignment is consummated within sixty (60) days of the date of this letter. (2) The Commission is notified of such consummation one (1) day thereafter. (3) If Mr. Wade is able to commence operation on Channel 249 from the site and with other technical facilities specified in the station permit, such operation must commence within thirty (30) days of consummation. KCHQ must file an amendment to its license application within 10 days after it commences operation. (4) In the event that operation on Channel 249 must be from a new site or with facilities other than those specified in its permit, KCHQ must file a FCC Form 301 within 30 days of consummation. (5) The Chief, Audio Services Division (attention: Glenn Greisman, Room 332) is notified of the resumption of broadcasting within one (1) day thereafter. Nothing contained herein shall be construed as authorizing any change in the authorization for KCHQ(FM). Any changes to KCHQ(FM)'s current authorization require prior approval pursuant to an application for modification of construction permit (FCC Form  X4301). Finally, to facilitate KCHQ's expeditious return to the air, we GRANT SPECIAL TEMPORARY AUTHORITY for KCHQ(FM) to remain silent for ninety (90) days from the date of this letter.  X 4 ` `  hhCqSincerely, ` `  hhCq ` `  hhCqLinda B. Blair, Chief ` `  hhCqAudio Services Division ` `  hhCqMass Media Bureau