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-BSH

Stephen Diaz Gavin, Esq.
Patton Boggs, L.L.P.
2550 M Street, N.W.
Washington, D.C.  20036

Roger J. Metzler, Esq.
McQuaid, Metzler, McCormick & Van Zandt
One Maritime Plaza, 23rd Floor
San Francisco, CA  94111-3577

                                   In re:    KBER(FM), Ogden, UT
                                        Assignment of License
                                        BALH-960530EC

Dear Counsel:

This is in response to the Petition to Deny filed July 11, 1996 by Terry Schmidt ("Schmidt")
against the above-captioned application to assign station KBER(FM), Ogden, Utah, from
RadioWest Communications, L.P. ("RadioWest") to Citadel Broadcasting Company.  Schmidt
argues that the Commission should not consent to the proposed transaction because RadioWest
principal Susan Andrews abused the Commission's process by soliciting and abetting a strike
pleading directed at a prior assignment application for KBER(FM) and because RadioWest has
violated the public inspection file rule, 47 C.F.R. Section 73.3526.  As discussed below, we will
deny the petition, grant the application and admonish RadioWest for violation of the public
inspection file rule.

Schmidt's allegations refer to a February 21, 1994 letter pleading from Gil Medina ("Medina")
that objected to the sale of KBER(FM) from Chestnut Broadcasting, Inc. (then the licensee of
KBER(FM)) to Hekili Broadcasting Company.  There was no such assignment application on file
when Medina submitted his letter to the Commission.  On April 11, 1994, an assignment
application was filed proposing such an assignment (file no. BALH-940411GF).  On December
12, 1994, the application was dismissed at the request of the assignor and assignee.  At the time
Medina filed his February 21, 1994 letter, Susan Andrews was the General Manager of
KBER(FM).  

In view of the rights of persons to file pleadings with the Commission, a party alleging that a
pleading is a strike petition must make a strong showing that delay is the primary and substantial
purpose behind the filing.  Radio Carrollton, 69 FCC 2d 1139, 1150 (1978).  Factors recognized
as significant indications of a primary delaying purpose include: (a) statements by the licensee's
principals or officers admitting an obstructive purpose; (b) the withholding of information
relevant to disposition of the issues raised; (c) the absence of any reasonable basis for the adverse
allegation in the pleading; (d) economic motivation indicating a delaying purpose; and (e) other
conduct of the licensee.  Id. at 1151.  Schmidt has not made the required strong showing and,
indeed, has not presented any credible evidence that the February 21, 1994 letter from Medina
protesting a prior assignment of KBER(FM) was a strike pleading, that Susan Andrews was
responsible for its filing, or that Susan Andrews abused Commission processes.

The record before us, however, demonstrates that RadioWest has violated Section 73.3526 of the
Commission's rules by failing to maintain an accessible public inspection file in KBER(FM)'s
community of license and by failing to keep current the filings in the public inspection file. 
RadioWest states that it is in the process of moving its public inspection file, now located in Salt
Lake City, to Ogden and properly updating that file.  Additionally, RadioWest states that it has
informed its staff regarding the specific Commission requirements for the public inspection file. 

We do not find that RadioWest's violation of Section 73.3526 of the Commission's rules warrants
designation for hearing.  The conduct does not raise a substantial and material question as to
RadioWest's qualifications or to whether the public interest will be served by grant of the above-
captioned application.  However, licensees are required to comply with the Commission's rules
and regulations.  Therefore, RadioWest IS ADMONISHED for its failure to maintain a properly
updated public inspection file in KBER(FM)'s community of license, in violation of 47 C.F.R.
Section 73.3526.  The licensee of KBER(FM) IS HEREBY DIRECTED to correspond with the
undersigned within thirty days of the date of this letter to describe how KBER(FM) has fully
complied with the public inspection file rule.

In light of the above, the Petition to Deny filed by Terry Schmidt IS DENIED and the above-
captioned application IS GRANTED.

                                   Sincerely,



                                   Linda Blair, Chief
                                   Audio Services Division
                                   Mass Media Bureau  
      

Return to the Audio Services Division screen

Return to the Mass Media Bureau screen

FCC Home Page