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 Federal  Communications  Commission  FCC  01-  232 
 Before  the 
 Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of  the  Applications  of 
 Shareholders  of  CBS  Corporation, 
 (Transferor) 


 and 
 Viacom,  Inc., 
 (Transferee) 


 For  Transfer  of  Control  of  CBS 
 Corporation  and  Certain  Subsidiaries,  Licensees 
 Of  KCBS-  TV,  Los  Angeles,  CA,  et  al. 


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 File  Nos.  BTCCT-  19991116ABA,  et  al. 


 MEMORANDUM  OPINION  AND  ORDER  ON  RECONSIDERATION 
 Adopted:  August  10,  2001  Released:  August  21,  2001 
 By  the  Commission: 


 1.  The  Commission  has  before  it  a  petition  filed  by  Al  Westcott,  Glenn  C.  Benfield  and 
 Kathleeen  Benfield  (“  Petitioners”),  seeking  reconsideration  of  our  decision  in  Shareholders  of  CBS 
 Corporation,  15  FCC  Rcd  8930  (2000)(“  CBS-  Viacom”).  Petitioners  ask  that  we  set  aside  our  previous 
 decision  granting  the  transfer  of  control  of  CBS  Corporation  and  its  subsidiaries,  which  were  the  licensees 
 of  182  television  and  radio  broadcast  stations,  to  Viacom,  Inc.  For  the  reasons  stated  below,  we  deny  the 
 petition  for  reconsideration. 


 2.  Petitioners  claim  that  the  Commission’s  grant  of  the  transfer  of  control  application  in  CBS-Viacom 
 violated  the  doctrine  of  Jefferson  Radio  Co.,  Inc.  v  FCC,  350  F.  2d  781  (D.  C.  Cir. 
 1964)(“  Jefferson  Radio”).  They  base  their  argument  on  the  fact  that  the  application  was  granted  while  the 
 license  renewal  application  of  the  CBS  station  WXRK(  FM),  New  York,  New  York  was  still  pending.  1 
 Petitioners  claim  that  it  was  error  to  grant  the  overall  transfer  before  the  license  renewal  application  was 
 granted. 


 3.  Contrary  to  Petitioners’  claim,  Jefferson  Radio  does  not  prohibit  the  Commission  from 
 acting  on  a  transfer  of  control  application  while  a  renewal  application  is  pending  for  a  station  included  in 
 the  transfer.  The  Commission  repeatedly  has  held  that,  in  multi-  station  transactions,  it  will  grant  the 
 transfer  of  control  application  while  the  renewal  application  is  pending  as  long  as  there  are  no  basic 
 qualification  issues  pending  against  the  transferor  or  transferee  that  could  not  be  resolved  in  the  context  of 


 1  The  license  renewal  application  has  since  been  granted. 
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 Federal  Communications  Commission  FCC  01-  232 
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 the  transfer  proceeding,  and  the  transferee  explicitly  assents  to  standing  in  the  stead  of  the  transferor  in  the 
 pending  renewal  proceeding.  2  In  the  transfer  of  control  application,  Viacom  stated  that  it  was  willing  “to 
 assume  the  consequences  associated  with  succeeding  to  the  place  of  CBS  (and  any  of  its  license 
 subsidiaries)  in  any  renewal  applications  that  may  remain  pending”  at  the  time  the  merger  is  consummated.  3 
 Therefore,  the  only  remaining  matter  is  whether  there  were  any  outstanding  basic  qualification  issues 
 which  could  not  have  been  resolved  in  the  context  of  the  transfer  proceeding. 


 4.  In  the  CBS/  Viacom  transfer  proceeding,  Petitioners  claimed  that  certain  broadcasts  of  the 
 Howard  Stern  show  carried  on  CBS  owned  stations  were  indecent  and,  therefore,  that  CBS  is  unqualified  to 
 be  a  licensee.  One  of  the  Petitioners,  Mr.  Westcott,  relied  on  the  same  arguments  and  some  of  the  same 
 evidence  as  the  basis  to  file  a  petition  to  deny  the  renewal  of  WXRK(  FM).  4  As  we  noted  in  CBS/  Viacom, 
 the  Commission  had  already  considered  the  complained  of  broadcasts  in  connection  with  other  proceedings 
 and  found  them  not  to  be  indecent  as  alleged.  5  In  each  of  those  other  proceedings,  the  Commission 
 determined  that  these  broadcasts,  therefore,  did  not  implicate  the  qualifications  of  the  licensees  that  had 
 aired  the  material.  6  Because  the  same  allegedly  indecent  broadcasts  form  the  basis  of  Petitioners  claims 
 here  and  Mr.  Westcott’s  petition  against  WXRK(  FM),  there  were  no  unresolved  qualifications  issues 
 outstanding  at  the  time  the  merger  was  approved.  7 


 5.  ACCORDINGLY,  IT  IS  ORDERED,  That  the  petition  for  reconsideration  filed  by  by  Al 
 Westcott,  Glenn  C.  Benfield  and  Kathleeen  Benfield  IS  DENIED. 


 FEDERAL  COMMUNICATIONS  COMMISSION 
 Magalie  Roman  Salas 
 Secretary 


 2  See,  e.  g.,  Stockholders  of  CBS,  Inc.,  11  FCC  Rcd  3733  (1995),  aff”  d,  Serafyn  v.  FCC,  149  F.  3d  1213  (D.  C.  Cir. 
 1998);  Capital  Cities/  ABC,  Inc.,  11  FCC  Rcd  5841  (1996). 
 3  See,  Application  for  Transfer  of  Control  of  CBS  Corporation  and  Its  License  Subsidiaries  from  Shareholders  of 


 CBS  Corporation  to  Viacom,  Inc.,  Files  Nos.  BTCCT-  19991116  AAX,  et  al.,  Assignee’s  Portion,  Exhibit  II,  pp. 
 4-  5. 


 4  See,  Petition  to  Deny  Application  for  Transfer  of  Control  of  CBS  Corporation  and  Its  License  Subsidiaries  from 


 Shareholders  of  CBS  Corporation  to  Viacom,  Inc  filed  by  Al  Westcott,  et.  al.  at  9. 
 5  CBS/  Viacom,  15  FCC  Rcd  at  8246. 


 6  Id. 
 7  Petitioners  have  also  sought  reconsideration  based  on  a  May  18,  2000  press  release  by  Commissioner  Gloria 
 Tristani.  Commissioner  Tristani’s  press  release  was  issued  after  the  transfer  applications  were  approved  and  in  a 
 wholly  different  context.  It  is  not  related  to  this  proceeding  and  provides  no  basis  on  which  to  reverse  our  earlier 
 decision. 
2