*Pages 1--4 from Microsoft Word - 53833.doc* Federal Communications Commission FCC 05- 212 Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D. C. 20554 In re Applications of ) ) Kidd Communications ) (Assignor) ) File No. BAL- 20010724AAW ) Facility ID No. 51528 and ) ) Alan Slater, Trustee, Chief Executive ) Officer/ Clerk of the Superior Court of the State ) of California ) (Assignee) ) ) For Involuntary Assignment of License of ) Station KTHO( AM), South Lake Tahoe, ) California ) ) and ) ) Alan Slater, Trustee, Chief Executive ) Officer/ Clerk of the Superior Court of the State ) File No. BAL- 20010808AAR of California ) Facility ID No. 51528 (Assignor) ) ) and ) ) Paradise Broadcasting, Inc. ) (Assignee) ) ) For Assignment of License of Station ) KTHO( AM), South Lake Tahoe, California ) ) and ) ) Paradise Broadcasting, Inc. ) File No. BAL- 20040210AAM (Assignor) ) Facility ID No. 51528 ) and ) ) Live Wire Media Partners, LLC ) (Assignee) ) ) For Assignment of License of Station ) KTHO( AM), South Lake Tahoe, California ) 1 Federal Communications Commission FCC 05- 212 2 ORDER Adopted: December 16, 2005 Released: December 20, 2005 By the Commission: 1. On October 25, 2005, the United States Court of Appeals for the District of Columbia Circuit (the “Court”) issued its decision vacating the Commission’s decision in Kidd Communications 1 and remanding Kidd Communications v. FCC, Case No. 04- 1274 (slip op., decided October 25, 2005). We anticipate that the Court will enter its mandate in this case in the near future. By this Order, we take actions to facilitate the prompt implementation of the mandate of the Court. 2. The vacated Commission decision denied Kidd Communications’ Application for Review of the staff’s grants of the captioned applications. The Court remanded this application proceeding to the Commission because it had failed both to adequately explain why its general policy prohibiting a license holder from granting a security interest in a broadcast license does not apply in this case and also to reconcile this policy with its competing policy of accommodating state court decisions. 3. Following release of the Court opinion, the Media Bureau contacted Kidd Communications, intervenor Paradise Broadcasting, Inc. (“ PBI”) and current KTHO( AM) licensee, Live Wire Media Partners, LLC (“ Live Wire”). The Bureau’s letter request sought comment on what, if any, arrangements should be put in place to permit interim operations of KTHO( AM) (the “Station”) for the duration of the Commission’s remand proceeding. Each of the parties filed comments and replies. 2 Kidd Communications proposes that the Station be permitted to go silent while it constructs facilities from which to operate. In the alternative, Kidd Communications advocates that the Commission permit Live Wire to operate the Station under Kidd Communications’ control. Kidd Communications also seeks to condition such operations on Live Wire’s agreement to terminate operations upon notification that Kidd Communications’ operations are ready to commence. PBI urges that the Commission permit Live Wire to operate KTHO( AM) pending resolution of the Court’s remand. Live Wire argues that it must remain licensee of the Station because the grant of its license assignment application from PBI is final and no longer subject to appeal. 3 4. Live Wire’s claim that the Commission is powerless to displace Live Wire as the Station’s licensee is incorrect. All license grants are subject to the limitations of the Communications Act, including the right to judicial review and the obligation to give effect to any resulting judgment. 4 Moreover, the Media Bureau’s decision denying Kidd Communications’ Petition for Reconsideration of the assignment of the Station’s license to Live Wire provided clear notice that the assignment to Live Wire was subject to the ultimate determination of the Court concerning the previous assignments of the Station’s license. 5 The reconsideration decision specifically quoted from the initial staff decision which 1 19 FCC Rcd 13584 (2004). 2 Comments were filed by Live Wire on November 3, 2005, and by PBI and Kidd Communications on November 4, 2005. All three parties filed additional comments on November 8, 2005. 3 File No. BAL- 20040210AAM. 4 See Alianza Federal de Mercedes v. FCC, 539 F. 2d 732 (D. C. Cir. 1976). 5 See Letter to Dan J. Alpert, Esq., Thomas Gillenwater and Steven F. Coombs, (DA 05- 2308, Aug. 22, 2005). 2 Federal Communications Commission FCC 05- 212 3 held that the grant of the assignment application “does not prejudice any relief to which [Kidd Communications] was entitled” resulting from its appeal of Kidd Communications to the Court. 6 The Court’s mandate will nullify the Commission order approving the assignment of the Station license from Kidd to Paradise and the subsequent assignment from Paradise to Live Wire. Thus, Kidd will become the licensee of KTHO( AM) upon entry of the mandate. 5. We conclude that the best course of action is to authorize Live Wire to operate KTHO( AM) on an interim basis pursuant to Section 4( i) of the Communications Act. 7 Both the Commission and the courts have recognized that Section 4( i) permits the Commission to fashion orders to address unforeseen circumstances, provided that the Commission is acting within its general authority and not inconsistently with the Act. 8 In fact, the Commission has relied on this provision to authorize interim operations in similar circumstances. 9 In this case, Live Wire acquired the Station license from Paradise following Commission consent to the transaction. Moreover, the Court did not conclude that the assignment at issue in Kidd Communications was unlawful. Rather, it found that the Commission had failed to adequately explain its decision. In vacating and remanding Kidd Communications, the Court provided the Commission a further opportunity to consider whether grant of the assignment application is in the public interest. No issues regarding Live Wire’s basic qualifications are present. In these circumstances there is little benefit in ordering Live Wire to cease broadcast operations immediately. Rather, such an order would unreasonably deprive local listeners of radio service from KTHO( AM), which would be contrary to the public interest. Finally, we find that the proposal to have Live Wire operate the Station under the control of Kidd Communications is not practicable because the interests of these two parties are fundamentally in conflict. As discussed above, the Comission has authority to grant Live Wire interim operating authority under Section 4( i) of the Act and Kidd Communications does not contend otherwise. 6. In order to ensure uninterrupted service to South Lake Tahoe, California, we will, on our own motion, grant an Interim Operating Authorization to Live Wire to permit its continued operation of the Station. 10 Live Wire’s authorization will permit it to operate the Station with the Station’s current transmission facilities. Kidd Communications may, however, file an application for a minor modification of the KTHO( AM) license to enable it to resume operations of the Station, 11 and we shall act expeditiously upon the filing of such an application. In the event that Kidd Communications completes construction of facilities and files a Form 302- AM application prior to resolution of the Court’s remand, we will issue a follow- up Order to coordinate Live Wire’s cessation of operations at KTHO( AM) and the commencement of operations by Kidd Communications. 6 Id. at ¶ 6. 7 47 U. S. C. § 154( i). 8 See, e. g., KDAB, Inc., 91 FCC 2d 277, 284 (1982) and authorities cited therein. 9 Id. at 284- 85 (interim operating authority granted pursuant to Section 4( i) following D. C. Circuit reversal of grant of construction permit applications where permittees had constructed stations and commenced broadcast operations). 10 See Orion Communications, Ltd. v. FCC, 121 F. 3d 176 (D. C. Cir. 1997) remanded to Orion Communication Ltd., 13 FCC Rcd 5642 (1998). 11 Any construction by Kidd will be at its own risk and subject to any action taken by the Commission in this remand proceeding. 3 Federal Communications Commission FCC 05- 212 4 7. Accordingly, IT IS ORDERED, That the applications to involuntarily assign the license for station KTHO( AM), South Lake Tahoe, California, from Kidd Communications to Alan Slater, Trustee, Chief Executive Officer/ Clerk of the Superior Court of the State of California (File No. BAL-20010724AAW), to assign the license of station KTHO( AM), from Alan Slater, Trustee, Chief Executive Officer/ Clerk of the Superior Court of the State of California to Paradise Broadcasting, Inc. (File No. BAL- 20010808AAR), and to assign the license of KTHO( AM) from Paradise Broadcasting, Inc. to Live Wire Media Partners, LLC (File No. BAL- 20040210AAM) ARE REINSTATED TO PENDING STATUS, the grants of those applications having been vacated by the Court. On our own motion, IT IS FURTHER ORDERED, That pursuant to Section 4( i) of the Communications Act, Interim Operating Authorization to operate KTHO( AM) IS GRANTED to Live Wire Media Partners, LLC, subject to the terms of a Media Bureau authorization that is being issued simultaneously with this Order. IT IS FURTHER ORDERED, That this Order shall be effective upon the issuance of the Court’s mandate in this proceeding. 12 FEDERAL COMMUNICATIONS COMMISSION Marlene H. Dortch Secretary 12 See 47 C. F. R. § 1.103( a). 4