FCC 90R·58 Federal Communications Commission Record 5 FCC Red No. 17 
Before the 
Federal Communications Commission 
Washington, D.C. 20554 
MM Docket No. 88-421 
In re Applications of 
SCIOTO 
BROADCASTERS, 
Limited Partnership 
MID-OHIO 
RADIO LIMITED 
HORACE E. PERKINS 
File No. BPH-870514MU 
File No. BPH-870515NM 
File No. BPH-870515NP 
For Construction Permit for 
New FM Station, Channel 298A, 
Columbus, Ohio 
Appearances 
George R. Borsari, Jr., on behalf of Mid-Ohio Radio 
Limited; William E. Kennard, on behalf of Scioto Broad­
casters, Limited Partnership; Robert B. Jacobi, Lawrence 
N. Cohn, and Cheryl R. Glickfield, on behalf of Horace E. 
Perkins. 
DECISION 
Adopted: June 22, 1990; Released: August 14, 1990 
By the Review Board: MARINO (Chairman), 
BLUMENTHAL, and ESBENSEN. 
Board Member ESBENSEN: 
1. Now before the Review Board are the Initial De­
cision, 5 FCC Red 424 ( 1990) (I.D.), of Administrative 
Law Judge Edward J. Kuhlmann (AU), and the excep­
tions (and replies) filed by the three remaining parties to 
this proceeding: t Scioto Broadcasters, Limited Partner­
ship (Scioto); Mid-Ohio Radio Limited (Radio); and Hor­
ace E. Perkins (Perkins). Based upon our review of the 
pleadings. the hearing record below, and having heard 
oral argument on June 15. 1990, we affirm the AU's 
award of the construction permit at issue for a new Class 
A FM facility at Columbus, Ohio to Perkins. 
2. In addition to the standard comparative issue, the 
Hearing Designation Order. 3 FCC Red 5480, 5484 (1988) 
(HDO), specified the following relevant issues (I.D., para. 
1 ): 
[1] To determine, with respect to ... Perkins: 
(a) The basis for, and the validity of, the cost 
estimates projected by . . . Perkins to build 
and to operate [his] respective proposed facili­
ties without revenues for three months; 
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(b) Whether [Perkins has J sufficient net 
liquid assets on hand. or available from com­
mitted sources to construct and operate [his] . 
.. proposed facilities for three months without 
revenues; 
(c) Whether, in light of the evidence adduced 
pursuant to the foregoing issues. [Perkins is] 
financially qualified. 
[2] To determine whether the proposal of the fol­
lowing applicants would provide coverage of the 
city sought to be served, as required by Section 
73.315(a) of the Commission's Rules, and, if not, 
whether circumstances exist which warrant waiver 
of that Section: Scioto, Radio, and Perkins. 
[3] If an environmental impact statement is issued 
with respect to Perkins, in which it is concluded 
that the proposed facilities are likely to have an 
adverse effect on the quality of the environment. to 
determine whether its proposal is consistent with 
the National Environmental Policy Act. as imple­
mented by Sections 1.1301-1319 of the Commis­
sion's Rules. 
CITY OF LICENSE COVERAGE ISSUE 
3. No party has excepted to the AU's ultimate 
conclusion that (l.D., para. 88): 
None of the applicants are able to provide 80% 
coverage of the entire city of Columbus, although 
each will cover at least 71.4% of the city. The Mass 
Media Bureau has supported waiving the city cov­
erage rule, § 73.315(a), [ 4 7 CFR § 73.315(a)], be­
cause the area of the city is too great to permit 
coverage of 3.16 m V/m with a Class A FM channel. 
The failure to cover the entire city is ameliorated, 
the Bureau believes, by the fact that the applicants 
will cover 85% or more of the population. A waiver 
will be granted to every applicant. 
PERKINS 
4. Financial Considerations: In the HDO, the Mass Me­
dia Bureau (Bureau) noted that it had randomly selected 
this proceeding to examine the financial aspects of each 
applicant pursuant to the Commission's Public Notice. 
FCC 87-97, released March 19. 1987. With respect to 
Perkins' estimates for construction and operation, the Bu­
reau observed that his estimates were lower than those of 
the other applicants, and noted that the bank letter relied 
upon by Perkins to establish his financial qualifications 
did not indicate a specific interest rate to be charged for 
his proposed loan. It thus specified issues to inquire into 
Perkins' estimates and availability of funds, and whether 
or not he was financially qualified. HDO at 5482, 5484. 
No financial misrepresentation (or lack of candor issue 
arising therefrom) was specified against Perkins. See id .. at 
5484. 
5. Within thirty days of publication of the HDO, Per­
kins timely filed a Petition for Leave to Amend his ap­
plication. The amendment included. inter alia, a new 
equipment cost estimate prepared by Harris Corporation. 
a revised monthly operating budget, and a letter dated 
October 24, 1988 from the Huntington National Bank 
5 FCC Red No. 17 Federal Communications Commission FCC 90R-58 
(Bank) indicating that it would loan Perkins up to 
$350,000, and specified the interest rate to be charged on 
the loan. The same day Perkins filed his amendment, he 
also filed a Motion for Summary Decision on the des­
ignated financial issues, contending that the amendment 
conclusively demonstrated that he was financially quali­
fied to construct and operate his proposed facility. 
6. Perkins' Petition for Leave to Amend was not op­
posed by any party. Perkins' Motion for Summary 
Decision was opposed only by Radio; however, that ap­
plicant raised no argument about the sufficiency of Per­
kins' revised financial proposal. Radio merely contended 
that Perkins' Motion did not address the alleged 
shortcomings in his initial financial proposal. By Memo­
randum Opinion and Order, FCC 88M-4151, released De­
cember 6, 1988, the ALI (1) granted Perkins' unopposed 
Petition; (2) concluded that Radio's opposition to Perkins' 
Motion had thereby been rendered moot; and, (3) granted 
Perkins· Motion for Summary Decision. 
7. In their Exceptions, Radio and Scioto argue that the 
financial issue against Perkins should not have been re­
solved by summary decision. Radio focuses on Perkins' 
initial proposal (submitted July 1. 1987). claiming that the 
ALI's summary decision "had the effect of foreclosing any 
inquiry into the financial issue designated by the Commis­
sion." 2 Radio Exceptions at 6-7. Additionally, Radio and 
Scioto also now argue, for the first time, that Perkins· 
Motion for Summary Decision was improperly granted 
because, in their view. Perkins· amended financial show­
ing relied upon a bank letter which was not a commit­
ment to make a loan. but rather a mere 
"accommodation" letter. Radio Exceptions 8 - 11; Scioto 
Exceptions 20 - 23. These exceptors note that the October 
24. 1988 Huntington Bank letter is conditioned on the 
following: ( 1) the filing of a formal loan application with 
the Bank: (2) collateral values and appraisals satisfactory 
to the Bank; (3) approval by the appropriate lending 
authorities of the Bank: and ( 4) financial information 
satisfactory to the Bank. 
8. More specifically, the October 24, 1988 Bank letter 
provides as follows (Scioto Exceptions. Attachment 2): 
Mr. Horace E. Perkins 
1039 Sunbury Road 
Columbus. Ohio 43219 
Dear Mr. Perkins: 
This letter will confirm the willingness of The Hun­
tington National Bank to make available up to 
$350.000 for the purpose of constructing and op­
erating a new FM Radio Station at Columbus, Ohio. 
While the final terms and conditions can not be 
established until the time at which such a loan 
would be extended. we have discussed a loan having 
the following terms: 
Borrower: Horace E. Perkins, an individual. 
Loan Amount: Three Hundred Fifty Thousand and 
NoilOO Dollars ($350,000.00). 
5159 
Use of Proceeds: Start up costs associated with the 
financing of a FM Radio Station to be located in 
Columbus, Ohio. 
Interest Rate: Huntington National Bank Prime 
Commercial Rate, as defined in our loan docu­
ments, plus 2% and a 1% fee. The Prime Rate as of 
October 11. 1988 is 10.0%. 
Repayment: 5 Year term loan; interest only to be 
paid on the outstanding balance monthly for the 
first six months. Monthly Principal payments of 
$5,833 plus interest will begin six months after the 
loan is closed. 
Collateral: First li-en on equipment a11d 2nd mort­
gage on real estate located at 1039 Sunbury Road. 
Our approval to advance the above-described loan is 
expressly subject to the following conditions: 
1. The filing of a formal loan application with our 
Bank. 
2. Collateral values and appraisals satisfactory to our 
Bank. 
3. Approval by the appropriate lending authorities 
of our Bank. 
4. Financial information satisfactory to the Bank. 
This letter is not to be construed as an approval or 
commitment for the above loan: rather it indicates 
our willingness to extend the above loan provided 
that the preceding conditions are met. 
Sincerely. 
Robert W. Erwin 
Vice President 
9. Turning first to procedural considerations, the ALI 
properly accepted Perkins' financial amendment pursuant 
to 47 CFR § 73.3522(b)(2). Perkins timely filed this 
amendment within 30 days of the publication of the HDO 
which, for the first time. raised financial issues against 
Perkins. Thus, Perkins' amendment was timely filed "as a 
matter of right." Additionally. since Radio and Scioto did 
not raise any objection as to the adequacy of Perkins' 
amended financial showing for nearly two years (until the 
filing of their exceptions before the Board). these un­
timely exceptions could be dismissed without further con­
sideration. Nonetheless, in the interest of clarity, the 
Board will address Perkins' financial qualifications. 
10. The Board has recently observed in numerous pro­
ceedings (1) that substantial and material questions of fact 
have been raised about financial proposals which have 
required a remand for further hearings on appropriate 
financial issues; or, (2) that various applicants must be 
disqualified on already-specified financial issues. See, e.g., 
Shawn Phalen, 5 FCC Red 53, 54 (Rev. Bel. 1990) (re­
mand ordered where additional document from lending 
institution and principals' own testimony raised substan­
tial and material questions of fact as to financial qualifica­
tions); Global Information Technologies, Inc., 5 FCC Red 
FCC 90R-58 Federal Communications Commission Record 5 FCC Red No. 17 
3385 (Rev. Bd. 1990) (remand where bank letter, inter 
alia, stated "although we have not reviewed financial in­
formation required by us to fully consider a loan commit­
ment, we are seriously interested in exploring " a potential 
loan) (emphasis added); Rebecca L. Boedker, 5 FCC Red 
2855 (Rev. Bd. 1990) (affirming disqualification of ap­
plicant who obtained bank letter which merely stated that 
the bank " has an interest " in financing proposed facility. 
and that its letter "is not a commitment but rather an 
expression of interest ... and a tentative plan of structuring 
the financing .... " Also, bank officer testified letter was 
only an "accommodation") (emphases added); Aspen FM. 
Inc., 5 FCC Red 3196 (Rev. Bd. 1990) (disqualification 
where principal lender did not demonstrate "sufficient net 
liquid assets" at time of certification); Charisma Broadcast­
ing Corp., 5 FCC Red 2916 (Rev. Bd. 1990) (remand 
where questions raised as to documentation of availability 
of funds). 
11. Although an applicant need not have a binding 
written agreement to certify that it is financially qualified, 
Las Vegas Valley Broadcasting Co. v. FCC. 589 F.2d 594. 
599-601 (D.C. Cir. 1978). the Commission does require 
"reasonable assurance" of committed funding to construct 
the proposed facility and to operate for three months 
without revenue. The application form utilized by Perkins 
(see FCC Form 30 l. Instructions, Section III) provided as 
follows: 
An applicant for a new station must certify that it 
has sufficient net liquid assets on hand or commit­
ted sources of funds to construct the proposed fa­
cility and operate for three months. without 
revenue. In so certifying, the applicant is also attest­
ing that it can and will meet all contractual require­
ments, if any. as to collateral, guarantees. and 
capital investments. 
Additionally. the certifications specifically required by 
Questions 1 and 2 of Section III. FCC Form 301. were as 
follows: 
l. The applicant certifies that sufficient net liquid 
assets are on hand or are available from committed 
sources to construct and operate the requested facili­
ties for three months without revenue. 
2. The applicant certifies that: (a) it has a reasonable 
assurance of a present firm intention for each agree­
ment to furnish capital or purchase capital stock by 
parties to the application. each loan by banks, finan­
cial institutions or others, and each purchase of 
equipment or credit: (b) it can and will meet all 
contractual requirements as to collateral. guarantees. 
and capital investment .... 
See JAM Communications, Inc., 4 FCC Red 3754. 3757 
(Rev. Bd. 1989). And, as the Commission noted in North­
ampton ,\1edia Associates, 4 FCC Red 5517, 5518-19 
(1989): 3 
In order to prove reasonable assurance of financial 
qualifications at the time of certification, the ap­
plicant must adduce probative evidence that, prior 
to certification, it engaged in serious and reasonable 
efforts to ascertain predictable construction and op-
5160 
eration costs. To establish the availability of funds to 
meet these estimated expenses, the applicant must 
provide substantial net liquid assets on hand, or 
committed sources of funds to construct and operate 
for three months without revenue .... 
* * * 
Probative evidence necessarily includes something 
more than the self-serving, uncorroborated state­
ment of the individual responsible for the certifica­
tion that he had taken steps to secure the needed 
funds. For example. uncontroverted affidavits or tes­
timony establishing an oral contract to lend money 
would suffice to demonstrate a committed source of 
funds. 
As the Board stated in Las Americas Communications, Inc .. 
1 FCC Red 786, 788 (Rev. Bd. 1986): 
The law is and remains that loan agreements and 
bank commitment letters must be prepared and 
must be sufficiently specific and complete to furnish 
reasonable assurance of the availability of the loans. 
Jay Sadow. 39 FCC 2d 808. 810, 26 RR 2d 1032, 
1035 (Rev. Bd. 1973). 
12. Thus. in order for the Board to determine that an 
applicant has "reasonable assurance" of "committed 
sources of funds" from a lending institution. we will 
review the following factors: Whether ( l) the bank has a 
long and established relationship with the borrower suffi­
cient to infer that the lender is thoroughly familiar with 
the borrower's assets, credit history, current business plan. 
and similar data. see Multi-State Communications, Inc. v. 
FCC, 590 F.2d 1117 (D.C. Cir. 1978); or, (2) the prospec­
tive borrower has provided the bank with such data, and 
the bank is sufficiently satisfied with this financial in­
formation (e.g., collateral guarantees, see Chapman Radio 
and Television Co., 70 FCC 2d 2063, 2072 (1979)) that. 
ceteris paribus, a loan in the stated amount would be 
forthcoming. and that the borrower is fully familiar with. 
and accepts the terms and conditions of the proposed loan 
(e.g., payment period. interest rate, collateral require­
ments, and other basic terms). Short of these ordinary 
fundamentals. it would be difficult to infer "reasonable 
assurance" from a "committed source." In other words, 
central to any successful "reasonable assurance" showing 
of a loan from a financial institution is that the "individ­
ual qualifications" of the borrower have been preliminar­
ily reviewed, Christina Communications, 2 FCC Red 1971, 
1974 ( 1987), that adequate collateral has been demon­
strated, Chapman Radio. supra, and that the tentative 
terms of the loan are specifically identified and are sat­
isfactory to both borrower and lender. As noted above. 
where these fundamentals have been absent in recent 
cases, the Board has found no "reasonable assurance." 
See, e.g., Rebecca Boedker, supra; Marlin Broadcasting of 
Central Florida. Inc .. 4 FCC Red 7945, 7946 (Rev. Bd. 
1989). Conversely, where these fundamentals have been 
satisfied. we have found such "reasonable assurance." See, 
e.g., Colonial Communications. Inc., 5 FCC Red 1967 
(Rev. Bd. 1990). recon. denied, FCC 90R-52, released June 
25, 1990. 
S FCC Red No. 17 Federal Communications Commission FCC 90R-S8 
13. We find here that Perkins had established the requi­
site "reasonable assurance" of the "present firm inten­
tion" of the Huntington Bank to make funds available to 
him. While the Bank's letter is not a binding written 
agreement (which. of course, is not required, see Las 
Vegas Valley, supra), Perkins has submitted a document 
(the Bank letter) which specifically (1) identifies the bor­
rower/applicant; (2) indicates the amount of the loan; (3) 
identifies the specific use of the proceeds of the proposed 
loan; ( 4) specifies a particular interest rate; ( 5) specifies 
terms of repayment; ( 6) identifies the specific collateral 
required; and (7) identifies specific conditions for final 
approval. Moreover. the exceptors have proffered nothing 
to indicate that the Bank letter is not valid, or is merely 
an "accommodation letter." See generally Christina Com­
munications, supra. Indeed, as the Commission declared in 
Merrimack Valley Broadcasting, Inc., 82 FCC 2d 166. 167 
( 1980): 
Insofar as the bank's specific requirements are con­
cerned, we are not troubled by the following lan­
guage: "(t)his commitment is contingent upon final 
terms and amounts of capitalization of our potential 
borrower, the Merrimack Valley Broadcasting Co .. 
Inc .. being satisfactory to the Bank." For a bank to 
base its final decision on conditions existing at the 
time a grant is actually made is a common business 
practice which does not in and of itself make reli­
ance on the commitment unjustified. Multi-State 
Communications, Inc. v. FCC, 590 F.2d 1117 (D.C. 
Cir. 1978), 44 RR 2d 487. A present firm intention 
to make a loan, future conditions permitting, is the 
essence of our "reasonable assurance" standard. 
Thus, in light of the admitted failure of the exceptors to 
timely raise objections to Perkins' amended financial 
showing, and their failure to raise substantial and material 
questions of fact as to Perkins· "reasonable assurance" of 
the "present firm intention" of the Huntington Bank to 
make funds available to him to construct and operate as 
proposed, "future conditions permitting," all exceptions 
in this regard are denied. 
14. Actions of Counsel: Scioto urges that Perkins' coun­
sel, Cohn and Marks, should have been "disqualified" in 
this proceeding. More specifically, Scioto (1) contends 
that Perkins' counsel violated the Code of Professional 
Responsibility by its representation of Perkins in this 
proceeding and its simultaneous representation of another 
former applicant here. Clear Channel Communications, 
Inc. (Clear Channel). in matters unrelated to this proceed­
ing; and (2) seeks a remand for additional cross-examina­
tion of Perkins, due to alleged inadequate examination of 
him at hearing. Perkins replies (Reply to Exceptions at 
11-12) that counsel commenced representation of Perkins 
in connection with this Columbus allocation several years 
prior to the announcement of the Columbus "filing win­
dow." After the window was announced, another client of 
the firm, Clear Channel. expressed interest in filing for 
this same frequency. Counsel informed Clear Channel of 
its prior retention by Perkins. and advised that it could 
not represent Clear Channel in this proceeding. "The 
firm also discussed the matter with Perkins, informing 
him of the various ways in which its ability to represent 
him would be limited, should he desire to continue to 
retain the firm as his counsel." (I d.) Perkins consented to 
these limitations on the firm's ability to represent him, 
5161 
and reaffirmed retention. Perkins claims he "did so be­
cause he saw no need to attack Clear Channel's applica­
tion in this proceeding, given that his own comparative 
credentials would of necessity be greatly superior to any 
showing which the publicly-traded, multi-station owner 
Clear Channel entity could hope to muster." (Id.) 
15. It is further claimed by Perkins that, "due to the 
disparity between the relative comparative strengths of the 
two applicants," counsel perceived no need to engage in 
any attack on the Clear Channel application in order to 
provide adequate representation of Perkins, and "it there­
fore did not withdraw from representation of Perkins. 
Clear Channel, as well, perceived no conflict in the situ­
ation. and it proceeded to retain its own separate, in­
dependent counsel, the firm Wilner & Scheiner, to 
represent it in connection with its Columbus application" 
(id.). Thus, Perkins' counsel did not perceive any reason 
requiring it to withdraw from representation of Perkins in 
this proceeding because (1) the two clients involved gave 
their consent to the multiple representation; (2) Perkins 
requested that the firm continue as his counsel; and (3) 
the firm did not perceive any impediment, under the 
specific circumstances of the case, to its ability to render 
representation "adequate to the purposes of [its] clients." 
Perkins' counsel further claims that this action "was con­
sistent with the applicable disciplinary rules, as inter­
preted by the relevant D.C. Bar Legal Ethics Committee 
opinions." (I d.) 
16. Both the Board and the Commission are reluctant 
to resolve claims of attorney misconduct in advance of 
review by relevant bar officials charged with maintaining 
ethical standards, see, e.g .. Opal Chadwell, 2 FCC Red 
3458 ( 1987). and will intervene only where, for example, 
a conflict is so clear that an untainted record would be all 
but impossible to achieve, thus requiring a hearing de 
novo. see Dorothy J. Owens, 104 FCC 2d 848 (Rev. Bd. 
1986), review denied, 2 FCC Red 38 ( 1987), petition for 
judicial review dismissed on other grounds sub nom. Law 
Offices of Seymour M. Chase, P. C. v. FCC, 843 F.2d 517 
(D.C. Cir. 1988) (table), or where the conduct of an 
attorney is so opprobrious or disruptive that immediate 
action must be taken to preserve the integrity of FCC 
processes. See , Benedict P. Cottone, 39 RR 2d 1661, recon. 
denied. 41 RR 2d 241 ( 1977); cf. Thomas Root, FCC 
90-240, released June 28, 1990. Neither situation obtains 
here. Upon reviewing the pertinent authorities. we find 
that the essence of the law·s demand in situations such as 
that before us is "informed consent." 4 and the 
unchallenged representations before us reflect that Per­
kins' was fully aware of his counsel's long-time repre­
sentation of Clear Channel in other proceedings. of 
counsel's refusal to seriously attack Clear Channel here, 
and yet retained the law firm for representation. We find 
no absolute conflict, nor do we believe that counsel's 
alleged failure to attack Clear Channel is significant. All 
of the other parties had a full opportunity to discredit 
Clear Channel (which has since withdrawn its application 
and has been dismissed, see Order, FCC 90R-56, released 
July 5, 1990), and Scioto has not explained how it has 
been prejudiced vis a vis any other remaining applicant. 
Its exceptions in this regard are denied. 
17. Perkins' Comparative Considerations: The ALJ found 
that Perkins. an individual African-American applicant. 
proposes to work full-time as the general manager (and 
sales manager) of his proposed facility. Perkins has lived 
in the proposed community of license (Columbus, Ohio) 
FCC 90R-58 Federal Communications Commission Record 5 FCC Red No. 17 
continuously for over 26 years, and has been employed at 
WVKO(AM), Columbus, Ohio for over 27 years. I.D., 
para. 68. Scioto does not except to these findings of the 
ALJ, but Radio claims that Perkins is entitled to no credit 
whatsoever for his 26-year continuous residence in Co­
lumbus, because Perkins "does not have any record of 
civic participation .... " (I.D .. para. 104). Radio further 
claims that Perkins is not entitled to any credit whatso­
ever for his broadcast experience because his job was 
"non-managerial." 5 and his broadcast experience was no 
more "than the fact that he may have listened to the radio 
with interest over the last twenty years." Radio Exceptions 
at 21-23. 
18. Radio's exceptions as to Perkins' comparative 
attributes will be denied. Local residence and civic partici­
pation are discrete factors and extensive residence, as 
here, is entitled to substantial credit in its own right. 
Policy Statement on Comparative Broadcast Hearings, 1 
FCC 2d 393, 395-396 (1965) (" Policy Statement "); Radio 
Jonesboro, Inc., 100 FCC 2d 941, 947 (1985). Further, 
broadcast experience is cognizable, whether or not of a 
managerial nature. James and Sharon Deon Sepulveda. 3 
FCC Red 9 (Rev. Bd. 1988); farad Broadcasting Co., Inc., 
1 FCC Red 181 (Rev. Bd. 1986)(subsequent history omit­
ted): New Continental Broadcasting Co .. 88 FCC 2d 830, 
849-850 (Rev. Bd. 1981)(subsequent history omitted)("the 
Policy Statement [does not] require that ... broadcast 
experience be management-related .... "). Perkins will 
receive full credit for his proposed 100% integration into 
ownership and management (a factor of "substantial im­
portance," see Policy Statement at 395: Julia S. Zozaya, 5 
FCC Red 856 (Rev. Bd. 1990)), substantial credit for 
long-term local residence, significantly enhanced by exten­
sive broadcast experience (see Policy Statement at 396), 
and minority participation (see Metro Broadcasting, Inc. v. 
FCC, 110 S.Ct. 2997 (decided June 27, 1990)). Perkins 
will also receive comparative credit for auxiliary power; 
and, because Perkins has no interest in any medium of 
mass communications, no demerit will be assessed in this 
regard. See Policy Statement at 394-395. 
SCIOTO 
19. Scioto is depicted as a limited partnership, with one 
general partner, Paul D. Warfield, an African-American, 
who holds 25% of the equity. Scioto Exh. 1, at l. It 
claims three limited partners: Ernest Green, who holds 
26% of the equity, Samuel Morgan. who holds 25% of 
the equity. and Ben Espy, who owns 24% of the equity. 
!d. Warfield proposes to work full-time as the station's 
general manager. Scioto Exh. 2 at 2. He will be responsi­
ble for all aspects of the management and operation of the 
station. I.D., para. 45. Scioto has no attributable mass 
media interests. ld .. para. 70. 
20. Warfield previously lived in Columbus (from 1960 
to June 1964 and from January 1965 to June 1965), 
apparently while a college student. From June 1987 
through October 1988 he "maintained a part-time resi­
dence in Columbus." He currently lives (since November 
1988) in Gahanna, Ohio, which is located within the 
service area of Scioto's proposed station. Warfield's per­
manent residence at the "B cutoff" date was Beachwood, 
Ohio (near Cleveland), over 100 miles from Columbus. 
Tr. 653-64. From June 1987 to October 1988, Warfield 
worked in Dayton, Ohio. Tr. 655. Over the past 16 years, 
Warfield has been employed by one radio station, eight 
5162 
television stations, and various television networks in po­
sitions including: (1) "part-time sportscaster and radio talk 
show host" (17 months); (2) "part-time sports anchor" (4 
months); (3) "full-time assistant sports director" (2 years); 
(4) "analyst for NFL football" (8 months); (5) "analyst for 
college football" ( 4 months); (6) "analyst for Cleveland 
Browns football" (2 months); (7) "substitute analyst for 
NFL football" (1 game); (8) "part-time sports announcer" 
for NFL (3 months); (9) "part-time sports announcer" 
(high school football and NFL analysis) (6 months); (10) 
"part-time sports announcer" (1983 to present). Scioto 
Exh. 2, at 5-6; I.D., paras. 46-47. 
21. The ALJ determined that Warfield has been active 
in civic affairs since he returned to the Columbus area 
(subsequent to the time Scioto filed its application) in 
1987; however, the ALJ concluded that Warfield's resi­
dence in Columbus, and his recent civic activities, did not 
outweigh Perkins 27-year, continuous residence in Co­
lumbus. I.D., para. 104. While Warfield and Perkins both 
have broadcast experience, the ALJ concluded that Per­
kins was to be preferred "because his experience is full 
time, continuous, and of long duration." ld., at para. 105. 
22. Scioto does not except to any of the ALI's findings 
or conclusions with respect to its application. Radio ar­
gues only that Warfield has conflicting business interests 
(i.e., Warfield testified he will continue to work at his 
business. as President of Warfield and Morgan. for some 
20 hours per week). and thus should not receive credit 
for full-time integration of ownership into management. 
Perkins claims that the ALJ did not quantify the "civic 
participation" enhancement awarded Scioto, which, at 
best, should only be "slight." (Perkins Contingent Excep­
tions at 3.) 
23. With respect to Warfield's "civic participation," 
MTF Enterprises, 99 FCC 2d 297, 300-301 (Rev. Bd. 1984) 
holds that: 
In ... Bradley, Hand and Triplett, 89 FCC 2d 657, 
663 (Rev. Bd. 1982), we held that civic activities 
that post-date the application filing date will be 
accorded some credit, "although not as much as a 
past record of such activities would warrant." We 
reasoned there that because the Policy Statement, 
supra, 1 FCC 2d at 396, accords some credit for 
proposed future local residence, albeit less weight 
than residence of several years' duration. and past 
civic participation is considered a part of an owner's 
local residence background, some slight credit 
should be awarded current civic involvement. See 
also Radio Jonesboro, Inc., 55 RR 2d 991. 994 (Rev. 
Bd. 1984). Similarly. we hold that local residence 
beyond the application filing date might also receive 
some light recognition. but not so much as would 
accrue to a history of local residence of several 
years' pre-application duration. 
Thus, Warfield is entitled to only slight credit for his 
post-filing civic activities. 
24. In comparing Perkins and Scioto, both applicants 
are equal with respect to quantitative "integration" of 
ownership and management, minority enhancements, 
auxiliary power, and neither applicant has attributable 
mass media interests. However, we hold that Perkins is 
clearly preferred over Scioto because of his long-term 
continuous local residence, which significantly exceeds 
5 FCC Red No. 17 Federal Communications Commission FCC 90R-58 
Scioto's limited residence credit and minor edge for civic 
participation, see Radio Jonesboro. Inc., 100 FCC 2d 941, 
948 (1985), as well as for Perkins' longer broadcast exper­
ience. Radio's exceptions, which would only further di­
minish Scioto's comparative status, are thus not 
decisionally significant. 
RADIO 
25. The ALI determined that Radio's sole general part­
ner, Karen Murray, proposes to work full-time at the 
station as its general manager. Murray holds only 15% of 
the equity of the applicant. Of two limited partners, 
McFadden Communications Corporation (MCC) holds an 
80% equity interest and William Roth holds a 5% equity 
interest. I.D., para. 94. Murray lived in Columbus at the 
time Radio made its proposaL and she had lived there 
since 1985 (for a period of two years and nine months) 
until early 1988. From 1980 to 1985 she was employed at 
various broadcast stations (id., at para. 100), and was 
apparently somewhat involved in Columbus civic activi­
ties (id., at para. 65). 
26. However, the ALJ held (id.): 
Shaky as Ms. Murray's role has been in orgamzmg 
and pursuing the proposaL it cannot be concluded 
that Ms. Murray would not work full time, 40 hours 
per week, managing the station. She is entitled to 
some integration credit. However, it is unestablished 
that Ms. Murray will be the station's general man­
ager since the partnership agreement provides that 
her management role will be determined by con­
tract with the partnership after a grant is made. The 
partnership agreement is silent about who will make 
that determination and Ms. Murray did not know 
who would either. 
27. Radio excepts to the "reduction" of Murray's in­
tegration credit. (Radio Exceptions at 12-13.) Scioto ar­
gues that Radio is entitled to no integration credit 
whatsoever, claiming that Radio's application is a "sham." 
(Scioto Exceptions at 24-36.) Perkins agrees, noting that 
the bona fides of Radio's application was not properly 
tested at hearing because. inter alia, of the failure of 
attorney Douglas McFadden, a principal of limited part­
ner MCC, to respond to questions at hearing. (Perkins 
Exceptions at 5-6.) 
28. More specifically. Scioto observes (Exceptions at 
24-33): 
The Presiding Judge concluded that Mr. McFadden 
organized the applicant. I.D. at para. 94. Mr. 
McFadden, never having inquired into or seen Ms. 
Murray's financial records, mailed her a limited 
partnership agreement. prepared by his law office. 
I.D. at para. 57. The agreement had the name of the 
limited partnership and the partners' equity per­
centages already filled in. Id. Ms. Murray retained 
Mr. McFadden's law firm without knowing its hour­
ly rates. I.D. at para. 59. The firm has a deferred 
billing arrangement with Radio (I.D. at para. 60) 
even though it does not have such arrangements 
with the vast majority of its clients. Id. 
5163 
* * * 
Mr. McFadden's firm began as Radio's counsel and 
continues to provide legal services, on a deferred­
payment basis. I.D. at para. 60. Capital contribu­
tions have not been made on a pro rata basis and, in 
Mr. Roth's case, not at all. I.D. at para. 63. Con­
tributions have been made almost entirely by MCC. 
I.D. at para. 63. No negotiations ever took place 
over the respective ownership interest of the part­
ners. I.D. at para. 57. Ms. Murray simply ratified 
the offer presented by Mr. McFadden. I.D. at para. 
57. 
* * * 
Ms. Murray has paid only $1,500 to Radio to date. 
I. D. at para. 63. She has directed all of Radio's 
capital calls to MCC/McFadden which has exceeded 
its 80% pro rata share. I.D. at para. 63. Most impor­
tantly, Radio need not pay legal fees until this pro­
ceeding has terminated. I.D. at para. 60. By 
controlling access to legal services. Mr. McFadden is 
able to exert considerable influence over Radio. At 
the hearing, Mr. McFadden repeatedly refused to 
comply with the Presiding Judge's directives to an­
swer questions. I.D. at 64. The Presiding Judge 
found that Mr. McFadden displayed a "hostile and 
contemptuous attitude" toward the Presiding Judge 
and was "totally uncooperative." ld. 
29. Under the circumstances here present, Radio would 
not in any event be entitled to more than 15% "integra­
tion" credit for Murray's proposed role as "general man­
ager" in light of the limited partner's active role as 
counsel. Magdalene Gunden Partnership, 3 FCC Red 7186 
(1988) (McFadden firm involved in limited partnership; 
Commission holds equity interest of limited partners who 
provide legal services are attributable). Moreover, given 
the fact that Radio's partnership agreement provides that 
Murray's actual position at the proposed facility will not 
even be determined until after grant. even that 15% "in­
tegration" credit cannot be awarded here. See Voce 
Imersectario Verdad America. Inc., 100 FCC 2d 1607, 
1614-1615 (Rev. Bd. 1985). Radio is therefore clearly out 
of comparative consideration.6 
CONCLUSIONS 
30. The Board has here determined that Perkins. on a 
comparative basis. is entitled to 100% quantitative integra­
tion credit augmented by credit for long-term 26-year 
continuous residence in the proposed city of license, sub­
stantial long-term 27-year broadcast experience. minority 
participation, and auxiliary power. Even with Scioto's 
principal, Warfield, receiving 100% "integration" credit. 
his local residence is of significantly lesser duration. Thus, 
notwithstanding his slight advantage for civic participa­
tion, his minority and auxiliary power enhancements, and 
credit for some broadcast experience, Scioto cannot pre­
vail over Perkins. With little or no quantitative credit, 
Radio finishes a distant third. In light of the foregoing, 
Perkins is clearly preferred, and will be awarded the 
construction permit at issue here. 
FCC 90R-58 Federal Communications Commission Record 5 FCC Red No. 17 
31. With respect to the "environmental impact" issue 
specified against Perkins, the ALJ concluded (I.D., para. 
43): 
After the close of the record. the Chief. Audio 
Services Division. found that. there will. be no 
adverse environmental impact from Perkins' pro­
posal if measures to protect humans from 
nonionizing radiation are carried out. The Bureau 
requested that a grant to Perkins be conditioned to 
achieve that protection. On August 15. 1989. Per­
kins accepted the condition imposed by the Bureau. 
Thus, the grant of the construction permit is conditioned 
to the extent that Perkins, upon construction. will be fully 
in compliance with the foregoing to provide protection 
from nonionizing radiation. 
32. ACCORDINGLY, IT IS ORDERED, That the ap­
plications of Scioto Broadcasters, Limited Partnership 
(File No. BPH-870514MU) and Mid-Ohio Radio Limited 
(File No. BPH-870515NM) ARE DENIED, and the ap­
plication of Horace E. Perkins (File No. BPH-870515NP), 
for a new Class A FM facility at Columbus. Ohio, IS 
GRANTED, subject to the environmental considerations 
set forth in paragraph 31, supra.-
FEDERAL COMMUNICATIONS COMMISSION 
Eric T. Esbensen 
Member, Review Board 
FOOTNOTES 
1 Twelve applicants were originally designated for hearing. See 
Hearing Designation Order, 3 FCC Red 5480 (1988). 
2 In the HDO (at 5482), the Bureau stated as its basis for 
inquiry into Perkins financial qualifications that Perkins' es­
timates were "significantly lower than the estimates provided by 
the other applicants, with the exception of [two others no longer 
parties to this proceeding]." It is clear that the Board has no 
authority to review the issues specified in the HDO. Frank F. 
Yemm, 39 RR 2d 1657 (1977). Thus. the exceptors' claim that 
the Board should modify the HDO and add a misrepresentation 
issue against Perkins based upon his initial financial showing is 
without merit. Additionally, having reviewed the financial 
qualifications of Perkins (as noted in text), we find no indepen­
dent basis for adding such an issue. 
3 Scioto argues (with respect to seeking a financial misrepre­
sentation issue against Perkins) that Perkins had only "verbal 
discussions" with the Bank prior to the time he filed his ap­
plication. As noted in the text, Perkins timely amended his 
application as "a matter of right" and satisfied the financial 
issues specified against him. As Northampton permits, these 
initial "verbal discussions" were subsequently documented, and 
Perkins has submitted "probative evidence" of his source of 
funds. "[U]nder the provisions of [FCC] Form 301 in effect [at 
the time Perkins filed his application], oral loan agreements are 
not presumptively invalid and supporting documentation need 
not necessarily be in existence at the time of certification." 
Northampton, at 5519. 
4 Perkins also observes (Reply at 9-10; footnotes omitted): 
5164 
Scioto's primary argument concerning the ethical issue is 
that the District of Columbia Code of Professional Re­
sponsibility embodies an "absolute prohibition" of what 
Scioto vaguely terms the "simultaneous representation of 
clients in the context of litigation." Scioto Exceptions at 
6-9 & 14 (citing District of Columbia Bar Legal Ethics 
Committee Opinion No. 131). Scioto is simply wrong 
about the law. The provisions of DR 5-105 of the Code do 
not, by their express terms, create any "absolute prohibi­
tion" of multiple representation where litigation is in­
volved, and neither the decisions which Scioto cites nor 
any other interpretive decisions have construed the Code 
as creating an "absolute prohibition" of simultaneous re­
presentation "in the context of litigation." Rather, the 
decisions uniformly indicate that, whether the representa­
tion in question entails litigation or other matters, it is 
permissible, if (1) the clients involved have given their 
informed consent; and (2) adequate represe'ntation can be 
provided .... 
D.C. Bar Ethics Opinion No. 49; accord. e.g., D.C. Bar 
Ethics Opinion Nos. 54, 68, 92, 94, 106, 131, 136, 140, 163 
& 165; see e.g., City Consumer Services. Inc. v. Horne, 571 
F.Supp. 964. 970-71 (C.D. Utah 1983) (citing Unified Sew­
erage Agency v. Jelco. Inc., 646 F.2d 1339 (9th Cir. 1981)); 
see also Duca v. Ramark Industries. 663 F.Supp. 184, 190 
(E.D. Pa. 1986); Clay v. Doherty, 608 F.Supp. 295, 302-03 
(N.D. 111. 1985). Indeed, many of the D.C. Bar Ethics 
Opinions which interpret DR 5, lOS( C) of the Code ex­
pressly approve instances of simultaneous representation 
in the context of litigation. E.g., D.C. Bar Ethics Opinion 
Nos. 54, 92. 136, 140, 163 & 165; cf. D.C. Bar Ethics 
Opinion No. 106; see also, e.g., City Consumer Services. 
Inc. v. Horne, supra; Clay v. Doherty, supra.The decision 
on which Scioto principally relies, D.C. Bar Ethics Opin­
ion No. 13 I, did not purport to create any "absolute" ban 
on multiple representation in circumstances involving 
litigation. Rather, Opinion No. 131 -- which is "the only 
instance in which [the D.C. Bar Legal Ethics! committee 
has refused to give effect to consent to sim ul tan eo us 
representation in circumstances not involving conflicting 
representation in the same matter--turned on the unique 
facts of the multiple" representation there involved .... 
Finally, although not to take effect until January 1, 1991, the 
new Rules of Professional Conduct of the District of Columbia 
Bar continue to trend toward "informed consent" in potential 
conflict situations. Thus, under Rule 1.7, unless there is a 
conflict in the "same matter," a "lawyer may represent a client . 
.. if: 
"(l) Each potentially affected client provides consent to 
such representation after full disclosure of the existence 
and nature of the possible conflict and the possible 
adverse consequences of such representation; and, 
(2) The lawyer is able to comply with all other applicable 
rules with respect to such representation." 
Rule 1.7(c). (We do not comment here on whether Perkins' law 
firm's attitude toward Clear Channel implicates Rules 1.3 
("Diligence and Zeal") for the reasons set forth in paragraph 16 
of text.) 
5 Perkins claims that the ALJ failed to make a finding that 
Perkins "had responsibility for managing the station's sales staff 
in the absence of the sales manager for approximately 1 month 
per year during the past 5 years." Perkins Contingent Excep­
tions at 4. Perkins showing in this regard is uncontroverted and 
unimpeached. 
5 FCC Red No. 17 Federal Communications Commission 
6 Even if Murray were to receive full 100% "integration" 
credit, Radio could not prevail over Perkins. Murray was a 
resident of Columbus between August 1985 to May 1988, prom­
ises to return to the area if Radio's application is granted, and is 
entitled to credit for some broadcast experience. However, none 
of these attributes can outweigh Perkins multiple superior com­
parative preferences (see para. 18, supra). That is, Perkins' sub­
stantial local residence preference outweighs Radio's promise to 
have Murray relocate to Columbus and its minor civic partici­
pation credit, see Radio Jonesboro, supra,at 948, his minority 
enhancement credit exceeds Radio's female enhancement credit, 
see Horne Industries, Inc., 98 FCC 2d at 601. 603 (1984), and 
Perkins plainly has greater broadcast experience than Radio. 
7 The release of this document has been delayed by computer 
problems. 
5165 
FCC 90R-58