FCC 91R·121 Federal Communications Commission Record 7 FCC Rcd No.2
Before the
Federal Communications Commission
Washington, D.C. 20554
MM Docket No. 90·94
In Re Applications of
BIBLE BROADCASTING File No. BPED-880301 ML
NETWORK, INC.
WEISS BROADCASTING File No. BPH-880301MQ
OF NOBLESVILLE, INC
BROADCAST File No. BPH-880301MZ
COMMUNICATIONS, INC
BEN L. UMBERGER File No. BPH-880301PD
For Construction Permit for
New FM Station on Channel 230A.
Noblesville, Indiana
Appearances
Gary S. Smithwick and Lisa Thornton on behalf of Bible
Broadcasting Network. Inc.: Donald J. EvallS and Andrew
D. Fisher on behalf of Weiss Broadcasting of Noblesville.
Inc.: Nathaniel F. Emmons on behalf of Broadcast Com 
munications. Inc.: and Stephen C. Simpson on behalf of
Ben L. Umberger.
DECISION
Adopted: December 20, 1991; . Released: January 15, 1992
Bv the Review Board: MARINO (Chairman).
BLUMENTHAL. and GREENE
Board Member GREENE:
1. Before the Review Board is the Initial Decision of
Administrative Law Judge Edward J. Kuhlmann. 6 FCC
Rcd 3576 (1991). which granted the construction permit
application of Weiss Broadcasting of Noblesville. Inc.
(Weiss) and denied the applications of Bible Broadcasting
Network. Inc. (Bible), Broadcast Communications, Inc.
(BCI), and Ben L. Umberger (Umberger). The losing
applicants have excepted to the Initial Decision. and Weiss
has filed contingent exceptions. The Board held an oral
argument on October 18, 1991, in which Weiss and BCI
participated.
1
For the reasons set forth below. we are
affirming the grant to Weiss.
2. The Hearing Designation Order in this proceeding,
R&B Ltd., 5 FCC Rcd 1901 (1990), originally designated
these four applicants and four additional applicants for
I Bible and Umberger notified the Board Ihat they did nOI
plan to attend the argument and would rest on their exceptions.
hearing on the "standard comparative" issue. which is
governed primarily by the guidelines set forth in the
Commission's Policy Statement on Comparative Broadcast
Hearings, I FCC 2d 393 (1965) (Policy Statement). In
addition, the AU designated the following issues against
BCI:
1. To determine whether BCI misrepresented or
lacked candor by representing that Julio Fernandez
has no other attributable media interests.
2. To determine whether BCI transferred control of
station WYIC in 1985 without prior Commission
approval.
3. To determine whether. in light of the foregoing,
BCI has the requisite qualifications to be a Commis 
sion licensee.
R&B Ltd., FCC 90M-1594 (Admin. Law Judge, released
June 27, 1990).
3. After hearing evidence on these issues, the AU con 
cluded that BCI is not qualified. He found that BCI
deliberately withheld information about the corporate of 
ficer position held by Fernandez. a BCI shareholder and
officer, with Wabash Valley Broadcasting Corporation,
which holds broadcast licenses in Florida and Indiana and
owns two radio networks serving radio stations in Indiana
as well as the program production and syndication di 
vision headed by Fernandez. Initial Decision at 3576-77
para. 4. 3582 para. 54. The AU also found that BCI
willingly turned over control of daytime-only AM station
WYIC Noblesville. to a prospective purchaser without
prior Commission approval. Initial Decision at 3583-84
para. 63. The AU would not have disqualified SCI for
the Wabash Valley incident, but when he weighed that
with the transfer of control incident. he concluded that
BCI has not demonstrated its basic qualifications. Initial
Decision at 3582 para. 54. 3583-84 para. 63. 3585 para. 73.
4. Of the remaining three applicants. the AU found
that only Weiss and Umberger are entitled to full quan 
titative integration. and that Weiss is preferred qualitatively
under the integration factor. She has lived in the service
area for many years and been active in civic affairs. has
past broadcast experience, and is a female. Umberger. on
the other hand. has more broadcast experience but will
not move to Noblesville unless he wins the authorization.
Initial Decision at 3585 para. 71. The AU also found that
Weiss is superior under the diversification factor because
she has no other broadcast interests. whereas Bible is the
licensee of several stations. and Umberger did not show
he does not have other interests. Id. at para. 72. Weiss is
the only one of the three who proposed auxiliary power.
5. Weiss. Two of the applicants challenge the integration
credit given Mary B. Weiss for her promise to work at the
station full time as its general manager. Weiss is an In 
diana corporation with both common voting stock and
preferred non-voting stock. Initial Decision at 3579 para.
25. Ms. Weiss is president, secretary. and treasurer of the
corporation and holds all of the authorized voting shares.
Her son holds preferred Class B shares, and four others
hold preferred Class A shares. Ms. Weiss and her son
432 I
7 FCC Red No.2 Federal Communications Commission Record FCC 91R·121
contributed one-seventh of the funds but hold 76.1
percent of the equity. Referring only to this disparity and
the fact that two of the preferred shareholders are success 
ful businessmen who once had media interests,2 Umberger
asserts that Weiss' investors must be in control and, there 
fore, the application must be a sham.
6. To obtain comparative credit, an applicant must
establish the overall reliability of its integration proposal.
See Royce International Broadcasting, 5 FCC Rcd 7063
(1990), recon. denied, 6 FCC Rcd 26(H (1991). If it does
not do so, the Commission will not take the applicant's
claim to integration credit at face value. See generally
Coast TV, 5 FCC Rcd 2751, 2752-53 para. 15 (1990).
Here, Ms. Weiss has made the required showing. She has
committed to terminating her current employment and
has no other business obligations that could conflict with
her integration pledge. Weiss Ex. 2. She formed the cor 
poration in February 1988 with one class of stock and in
June 1988 amended the articles of incorporation to au 
thorize issuance of non-voting preferred stock. The cur 
rent preferred shareholders entered the company in 1990
at her invitation. Id.; Initial Decision at 3579 para. 25.
2 Thomas Binford, a banker, once held broadcast and cable
television interests. Fred Tucker. a realtor. once had an interest
in a cable television franchise.
3 Umberger argues that the AU erred in refusing to add issues
requested by R & B. Ltd., an applicant who dismissed its ap 
plication before the AU had acted on all of its three petitions to
enlarge the issues against Weiss. The AU denied R&B's peti 
tions in ;'y[emorandum Opinion and Order. FCC 90M-15q4 (re 
leased June 27, 19QO). and Memorandum Opinion and Order,
FCC QOM-2822 (released Sept. 10, 1(90). Umberger complains of
these rulings because "the parties were foreclosed from cross 
examination at the hearing regarding same." Umberger Excep 
tions to Initial Decision. page Q, an argument that does not meet
the showing of "points of fact and law relied on" that is re 
quired by 47 C.F.R. sec. 1.276 (a)(2)(v). The 80ard has no
obligation to fashion arguments for parties and for this reason
alone could dismiss Umberger's exception as unsupported. Al 
though the Commission is expected to look beyond procedure
when it is shown "a good deal of smoke," Citizens for Jaz:: on
WRVR, Inc. v. FCC, 775 F.2d 392. 397 (D.C. Cir. 1(85). that is
not the case here. We have reviewed the R & B petitions that
Umberger has asked uS to officially notice and find more specu 
lation than fact. We conclude from them and the responsive
pleadings filed by Weiss that there is no substantial and material
question of fact concerning Weiss' qualifications. See generally
Citizens for Jazz on WRVR. As the court stated clearly in
Beaumont Branch of the NAACP v. FCC, 854 F.2d 501. 507 (D.C.
Cir. IQ8S)." mere conclusory allegations are not sufficient" to
trigger a factual dispute.
R & B filed a Petition to Enlarge on April 10. 1990. after
spotting inconsistencies in the numbers of shares of stock re 
ported in Weiss' March 1989 annual report filed with the In 
diana Secretary of State and its application in this proceeding. R
& 8 sought a misrepresentation issue and further speculated
that there must be a problem with Weiss' financial qualifica 
tions. Weiss responded that the annual report had errors be 
cause of Ms. Weiss' inexperience with such reports. and that
these errors had been corrected in her 1990 report filed with the
Secretary of State before R & B filed its petition with the AU.
Weiss Opposition to Motion to Enlarge. April 25, 19QO. In
addition, although R & 8's allegations about Weiss' financial
qU<jlifications were purely speculative. Weiss showed that its
cerHfication of its financial qualifications was based on a bank
lending commitment issued after the bank had reviewed Ms.
433
-Neither Umberger nor Bible point to anything in the
record that suggests that the passive investors have been
anything other than passive in their investments in Weiss
or that otherwise contradicts Ms. Weiss' pledge. The pas 
sive investors here are inconsequential for integration
purposes, and Weiss is entitled to full integration credit
based on Ms. Weiss' proposal to integrate her voting
ownership full time into management. See generally Swan
Broadcasting Limited, 6 FCC Rcd 17, 19 para. 12 (Rev.
Bd.1991).3
7. BCI. BCI excepts to the AU's conclusion that it is
not qualified to become a licensee of the Noblesville
facility and argues that it is the comparatively superior
applicant because of its claimed eligibility for the
daytimer preference provided in A vailability of FA! Broad 
cast Assignments, 101 FCC 2d 638, 644-47 (1985), r;larified,
59 RR 2d 1221 (1986). Weiss agrees with the AU and
argues further that BCI's current ownership structure is a
s,ham created on the eve of the cut-off for BCI's compara 
tive advantage. In our analysis, we have assumed that BCI
is fully qualified to hold a license and that BCI is entitled
to the 90.95 percent integration credit it claims for the
Weiss' personal finances. In FCC 90M-1594 the AU held. "It
appears that Weiss made a few errors in reporting but those
errors did not change the form or substance of Weiss' owner 
ship." Para. 4.
R & B filed its Second Petition to Enlarge on August I. 1990,
alleging that Ms. Weiss had offered her potential license as
collateral for a new bank loan and Weiss was not as forthcoming
as R & B had wished in document production. R & B inferred
that Weiss was no longer financially qualified because the bank
had denied the new loan and Weiss was obligated to pay divi 
dends to the new preferred shareholders during the pendency of
the proceeding. In its August 13 opposition. Weiss demonstrated
that its underlying financial qualifications had not lapsed. Ms.
Weiss had merely pursued a firm financial commitment from
an alternate bank in Noblesville but was premature in doing so.
Weiss also showed that both Ms. Weiss and the bank understood
that she intended using Weiss stock as collateral, not an FCC
license. The AU correctly concluded in FCC QOM-2822 at para.
7 that "Weiss has demonstrated that R & 8's contentions are
without foundation."
R & B filed its Third Petition to Enlarge on August 10, 1990.
asking the ALJ to add an abuse of process issue against Weiss.
Counsel for Weiss had written to counsel for R & 8 questioning
whether R & 8's general partner had an ethical problem under
ethics rules for the United States House of Representatives
because, as a Congressman's principal staff assistant, she ac 
cepted an equity interest in the applicant disproportionately
greater than her expected investment in the applicant. In its
August 23, 19QO. opposition, Weiss explained that R & 8's
general partner had received a 25 percent partnership interest
but was obligated to provide only one percent of the equity, that
the general partner had no previous broadcast experience. and
that R & B repeatedly emphasized the general partner's connec 
tion to the Congressman for whom she worked as her most
important asset. Weiss had suggested that Weiss and the general
partner seek a private ruling on the question from the House
Ethics Committee. The AU correctly held that "Weiss' explana 
tion of its actions demonstrates that it did not use the Commis 
sion's processes improperly." FCC 90M-2822 at para. 8.
FCC 91R·121 Federal Communications Commission Record 7 FCC Red No.2
full-time employment of its president at the station, BCI
Ex. 1, pp. 4-5. On the basis of our comparative evaluation
of BCI and Weiss, we conclude that Weiss is preferred to
BCI.
8. Diversification. BCI is an Indiana corporation, which
was incorporated in 1978 with one class of common stock
and restructured a few days before the application was
filed by adding Class A and Class B common stock. As a
result of this restructuring, BCI has issued and outstand 
ing 505 shares of common stock with one vote each. one
share of Class A stock with 8,540 votes, and one share of
Class B stock with 415 votes. Each share of stock is equal
in value to every other share, regardless of voting rights.
BCI Ex. 1, p. 1. Emmett E. DePoy, BCI's President.
Assistant Secretary and Treasurer, holds 100 shares of
common stock and the sole share of Class A stock. With
this, he has 91,33 percent of the voting rights (90.95
percent at the cut-off date) and 19.22 percent of the
equity. Id. at page 2. He is the only BCI owner who
proposes to be fully integrated in the applicant's day 
to-day operations. Julio Fernandez. BCI's Vice President
and Secretary, holds 65 shares of common stock and the
sole share of Class B stock. He has 5.07 percent' of the
voting rights and 13.02 percent of the equity. Id.
Fernandez also is Vice President and General Manager of
TelX Entertainment, the video syndication and produc 
tion division of Wabash Valley Broadcasting Co., and is a
corporate vice president of Wabash. Wabash is the li 
censee of WTHI-AM-FM-TV. Terre Haute. Indiana. (about
80 miles from Noblesville. BCI Ex. 2. p. 4) and two
television stations in Florida. It owns two radio networks:
Network Indiana. which provides news programming to
46 radio stations in Indiana: and Agri-America, which
provides programming to 65 radio stations. most of which
are in Indiana. Initial Decision at 3576 para. 4. BCI has no
other officers.
9. BCI's remaining shareholders have interests ranging
from 0.42 percent to 1.06 percent of the voting rights
(7.89 percent to 19.72 percent of the equity). RCI Ex. 1.
p. 2. Of these. only Robert A. and Sandra S. Borns. who
jointly own 40 shares of common stock (0.42 percent of
the voting rights), have any other media interests. Id., pp.
3-4. Robert Borns owns 5.7 percent of the voting stock
and is a director of Heritage Partners Management. which
is the general partner of University Broadcasting Co.. the
licensee of FM broadcast stations in Lafayette and Bloom 
ington, Indiana. Heritage owns three percent of the equity
in University and also owns 34.98 percent of University's
limited partner. Sandra Borns owns 4.4 percent of the
voting stock in Heritage. In addition. Ms. Borns and
James Morris (1.06 percent of BCI's voting rights and
19.72 percent of its equity) have been members of the
Board of Trustees of Butler University. licensee of educa 
tional station WAJC-FM. Indianapolis. Initial Decision at
3580 para. 39. These interests are de minimis. See Can 
non's Point Broadcasting Co., 93 FCC 2d 643, 647-48 para.
8 (Rev. Bd. 1983) (subsequent history omitted).
10. BCI has no directors. Under the Articles of Restate 
ment of the Articles of Incorporation of Broadcast Com 
munications, Inc.. adopted a few days before BCI filed its
application, BCI Ex. 1, Tab B. the duties normally per-
4 There the Commission noted that "those parties who wield
particular influence are reasonably certain to appear as officers
434
formed by directors shall be performed by the sharehold 
ers, including service on any committees of shareholders.
Id. at 6. Shareholders may meet periodically, id. at 8-9,
although, Fernandez testified that he attended only one
shareholders meeting since the Articles of Restatement
were adopted, on May 11, 1988. BCI Ex. 2. p. 3. Special
meetings can be held on demand of holders of twenty-five
percent of the votes. Articles of Restatement, sec. 7.2, BCI
Ex. 1, Tab B. pp. 8-9. Actions requiring shareholder or
committee meetings can be taken without a meeting if
written consents are signed by all shareholders or commit 
tee members entitled to vote at the meeting. Id., sec. 7.3,
p.9.
11. In its Policy Statement at 394, the Commission
clearly stated that diversification of the control of the
media of mass communications is "a factor of primary
significance" in its licensing decisions. The Commission
was guided by the Supreme Court's statement in Asso 
ciated Press v. United States, 326 U.S. I, 20, that the first
amendment to the Constitution" 'rests on the assumption
that the widest possible dissemination of information from
diverse and antagonistic sources is essential to the welfare
of the public.' " Policy Statement at 394 n. 4. The Com 
mission also clearly stated that it will consider both com 
mon control and "less than controlling interests in other
broadcast stations and other media of mass communica 
tions. The less the degree of interest.... the less will be the
significance of the factor." Id. at 394. Both direct and
indirect media interests are relevant to the diversification
analysis. See ClL Broadcasting, Inc., 95 FCC 2d 544. 549
para. 11 (1983).
12. BCI argues that. in its case. diversification should
have little significance because Fernandez' Wabash posi 
tion does not involve broadcasting. We disagree for. as the
record shows. Fernandez is not fully insulated from con 
tact with the other parts of the company. and there is
some overlapping of interests. Wabash is a single corpora 
tion with separate divisions (but not separate subsidiaries)
for its broadcasting, network. and video produc 
tion/syndication interests. Fernandez has "perfo.rmed in an
advisory capacity in one of IOcala Station WOGX'j
events" and has provided advice to "WFDX. the station in
Fort Myers for the same purpose." i.e .. coverage of a
parade. Tr. 582. Typical of the advice would be an ex 
change between Fernandez and the station general man 
ager regarding talent at the event. Tr. 583-84. Fernandez
once attended the Indiana Broadcaster's Convention. Tr.
584. He and the other corporate vice presidents who head
divisions usually attend Board meetings. which are held at
a Wabash television station. to make presentations to the
Board. Tr. 586. The presentations are attended by all the
division heads and address philosophy. accomplishments,
and future plans, Tr. 588-89. but division heads do not
comment on the presentations of other divisions or dis 
cuss operations with each other.
13. In Allribution of Ownership Interests, 97 FCC 2d at
1008 para. 19,4 1009 para. 21, the Commission specifically
found that officers and directors of licensee corporations
are attributable whether or not they have any ownership
interest in the corporation. because of the opportunity
they have to influence multiple broadcast licensees.
s
The
and directors and to have an interest attributed on that basis."
5 Attributable interests for purposes of diversity analysis have
7 FCC Red No. 2 Federal Communications Commission Record FCC 91R-121
Commission did recognize that its premise might not be
valid in all cases, so it provided a waiver mechanism for
officials "whose duties and responsibilities are neither
directly nor indirectly related to the activities of any
broadcast licensee in which their corporation has a cog 
nizable interest." Id. at 1025 para. 58; see id. n. 67. BCI
would have the Review Board act as if there had been a
waiver, see Tr. 793, 795, 800-801, but no formal waiver
has been requested here, and no information has been
provided about Wabash's views on Fernandez' current or
future role with the company or on an attribution waiver
for Fernandez. More important, as noted above and as
found by the ALl at Initial Decision at 3577 para. 4.
Fernandez has had involvement with Wabash's stations."
14. BCI also argues that Fernandez is inactive at BCI.
See BCI Ex. 2. pp. 3-4. Nonetheless, Fernandez does have
slightly more than five percent of the voting rights at BCI
through his stock ownership, and he is the only corporate
officer of BCI other than the president. Although BCI
would have us treat his role as passive in fact, even if not
passive by law, we are having difficulty reconciling his
position as Vice President and Secretary with BCrs asser 
tion of his non-involvement. We note further that BCI
shareholders function in lieu of a board of directors.
Although the shareholders have not met since the cut-off
date. we cannot assume that they will never playa role.
Indeed. BCI's Articles of Restatement at sec. 7.3 provide
that corporate actions requiring shareholder approval can 
not be taken outside shareholder meetings without the
approval of all the shareholders. not just those controlling
a majority of the votes.
15. Integration. In comparing BCI with Weiss. we have
considered whether BCrs integration position is sufficient
to overcome the negative effect of the attribution of
Fernandez' media interest and conclude that it is not.
Emmett DePoy, BCrs president who controls almost
ninety-one percent of the voting rights. will be integrated
full-time at the station. DePoy has lived in the service
area almost all of his life and has intermittently been a
member of local civic or business organizations. BCI Ex.
1. pp. 5. 9-10. although some of these memberships are
remote in time. See Radio Jonesboro. Inc .. 96 FCC 2d
1106. 1109-10 para. 6 (Rev. Bd. 1984) (credit diminished
by remoteness in time). review denied. 100 FCC 2d 941
(1985). accord, Ronald Sorenson. 6 FCC Rcd 1952. 1953
para. 10 (1991). DePoy was a member of the Carmel/Clay
Kiwanis Club from 1973-76. a member of the Noblesville
not always been treated the same as attributable interests for
multiple ownership purposes. Because of its concern that com 
parative selections of broadcast licensees favor those with no
other media interests or fewer other interests than other ap 
plicants, the Commission has been more inclusive in what it
considers relevant for diversification than it has for multiple
ownership attribution. See. e.g.. Doylan Forney. 5 FCC Red
5423.5427 para. 30 (1990). a!f'd by judgment sub nom. Maricopa
Media, Inc. v. FCC, No. 90-1456 (D.C. Cir. Oct. 7, 19(1); Woods
Communications Group. 6 FCC Rcd 3529, 3533 n. 4 (Rev. Bd.
1(91). Daytona Broadcasting Company, Inc .. !O3 FCC 2d 931.
934-35 (1986), was notable because it excluded from diversity
analysis those passive interests that had been excluded from
attribution for multiple ownership purposes. Until Daytona,
even the media interests of passive owners had been weighed
adversely in the comparative diversity analysis. The Commis 
sion has clearly stated the value of the diversification objective
in comparative proceedings;
Elks Lodge from 1979-80 and from 1987 to the present
(he served on the regional committee to promote a fund
raising event in 1985), and a member of the Carmel and
Noblesville Chambers of Commerce from 1987. He served
on the Committee for the Noblesville on the River Fes 
tival from 1988-89. See Oliver Kelley and Mary Ann Kelley,
FCC 9IR-llO, slip op. at 5 para. 20 (Rev. Bd. released
Dec. 16, 1991) (postfiling civic involvements are accorded
little weight). More than twenty years ago, he served on a
Conference of Cities Committee that arranged accom 
modations and schedules for out-of-town visitors to
Indianapolis, BCI Ex. 1, p. 9. See Linda Crook, 3 FCC
Rcd 354 para. 5 (Rev. Bd. 1988) (an activity occurring
more than 20 years ago is too remote to be meaningful).
16. In contrast, Weiss is entitled to 100 percent quan 
titative integration credit for Ms. Weiss' proposed full 
time management role at the station. Ms. Weiss, like
DePoy, receives credit for her long-term residence (since
1972), but she has had greater and continuous civic in 
volvement in a wider range of activities since 1973, in 
dicating a greater overall knowledge of and interest in the
community than DePoy. See Ronald Sorenson at 1953
para. 11; see also Policy Statement, I FCC 2d at 396. Ms.
Weiss' activities include; membership in the Indiana
Chapter of American Women in Radio and Television
which, among other service area activities. supports a
community child care crisis center (she held leadership
positions in 1981-82, 1982-83. 1984-85, was president
from 1986-87. served on the charity fund raising commit 
tee from 1985-87 and chaired it in 1988 and 1989): active
membership on the St. Margaret's Hospital Guild since
1985: current membership on the Board of Directors of
Girls Clubs of Greater Indianapolis: and membership on
the United Way of Greater Indianapolis' Fund Raising
Team in 1988. She also chaired the Old Time Radio
Fundraiser for St. Mary's Child Care Center in 1984 and
served on the committee in 1983. She promoted the
Broadripple Art Fair for the Indianapolis Art League in
1984 and. in 1988. worked with the Noblesville Chamber
of Commerce for broadcast promotion of the Noblesville
on the River event. Weiss Ex. 2. pp. 3-6. See Initial
Decision at 3579 para. 27. See also Oliver Kelley and Mary
Ann Kelley, supra, (post-filing civic activities are accorded
little weight). Although DePoy has lived in the area long 
er than Ms. Weiss has. any advantage accruing to DePoy
for length of residence is outweighed by Ms. Weiss' sub 
stantial advantage for civic activities. Thus, in the overall
Diversification of control is a public good in a free soci 
ety, and is additionally desirable where a government
licensing system limits access by the public to the use of
radio and television facilities.
Policy Statement, I FCC Rcd at 394.
h A significant interest in a network also carries diversification
ramifications. See generally Policy Statement. I FCC 2d at 394;
Ronald Sorenson. 5 FCC Rcd 3144, 3149 n. 15 (Rev. Bd. 1990),
modified on a/her grounds. 6 FCC Rcd 1952 (1991). During oral
argument, counsel for BCI advised the Board that, "There is no
evidence that IBCI's AM stationl didn't Icarry Wabash network
programmingl," although questions were asked on that point.
Tr. 804. There also is no showing that BCI would not carry
Wabash network programming on the FM station if awarded the
license.
435 '
FCC 91R-121 Federal Communications Commission Record 7 FCC Red No.2
comparison, Weiss is entitled to a significant enhancement
credit on the local residence factor. See Ronald Sorenson,
supra.
17. BCI is entitled to enhancement credit for the past
broadcast experience of DePoy, who has spent virtually
his whole career in broadcasting in both management and
non-management positions. Ordinarily, this enhancement
would carry less weight than the strong credit given for
the local residence enhancement. see Policy Statement at
396, Swan Broadcasting Limited, 6 FCC Rcd at 21 para.
17, or the lesser female gender preference to which Weiss
is entitled. See Swan. However, BCI also claims credit for
substantial participation in management at its daytime 
only station WYIC in Noblesville. This would upgrade the
value of its broadcast experience credit to that of local
residence. Availability of FM Broadcast Assignments, 101
FCC 2d at 645 para. 20.!
18. To be eligible for this enhanced credit, BCI must.
among other factors,
demonstrate that members of the entity holding cog 
nizable ownership interests spent more than 20
hours per week (either individually or in the ag 
gregate) participating in the management of the day 
time-only facility during the three-year period.
A vailability of FM Broadcast Assignments, 59 RR 2d at
1229 para. 22. The three-year period is the three continu 
ous years before filing the FM application. Id. at 1230
para. 23. BCI bases its claim to the preference on the
successive participation of BCI President James Mathis
from March 1, 1985 to May 20. 1986 (17.2 % voting
stockholder until his death in 1986), BCI Vice President
and then President Julio Fernandez from May 20. 1986 to
January 1, 1987 (no stock interest during this time). and
BCIPresid~ntand then Vice President Emmett DePoy
from January 1. 1987 to March 1. 1988 (15.5 % voting
stockholder during that time). BCI Ex. I, Tab. I. Weiss
argues that BCI cannot receive credit for an owner who
died during the three-year period or for an officer who
worked at the station but did not have an ownership
interest until later. We disagree. The preference is avail 
able to the AM Iicensee/FM applicant. i.e., BCI. It runs
with the applicant rather than the individuals who
worked at the applicant's AM station. see Availability of
FM Broadcast Assignments, 59 RR 2d at 1229 para. 21,
and is awarded when members of BCI holding cognizable
ownership interests under the Commission's attribution
rules. including officers and directors, meet the required
showing of participation at the AM station. either individ 
ually or in the aggregate, and the other criteria are met.
BCI is entitled to the credit to the extent that it is integrated,
i.e., to the extent of DePoy's participation as an owner in the
FM station's management. Availability of FIH Broadcast Assign 
ments, 101 FCC 2d at 646 n. 14.
8 Applicants must also propose integration of ownership into
the management of the FM station and must promise to divest
the AM station within 3 years from the commencement date of
program test authority. Availability of FM Broadcast Assign 
ments, 101 FCC 2d at 646 paras. 21-22.
9 The nine percent disparity between BCI and Weiss is relevant
but. by itself. is not decisional. Compare Continental Broadcast 
ing Company, 88 FCC 2d 830, 850 (Rev. Bd. 1981) (12.5 percent
quantitative difference is significant enough to warrant a slight
preference regardless of qualitative enhancements), with Metro
436
Id. at para. 22. Thus, BCI can aggregate the participation
of those whose interests are attributed to it over the three
year period in making its showing of entitlement to the
enhancement.
19. No one disputes that Fernandez and DePoy worked
at the station at least 20 hours a week during the periods
claimed for them. However, Weiss questions whether BCI
has made an adequate showing with respect to the time
Mathis spent at the AM broadcast station before he died.
In his findings on the AM preference issue, the AU had
referenced only the hearsay testimony of DePoy who did
not personally observe Mathis' work at the station during
the period relevant to the AM preference. However, the
record includes Fernandez' testimony that he worked with
Mathis during the relevant period and observed that
Mathis spent about fifty hours each week working for
BCI. "All told, he spent about half his overall time on
WYIC and half on syndication matters." BCI Ex. 2, p. 2.
This unrebutted testimony is sufficient to establish that
Mathis' participation satisfied the minimum time require 
ment for the period during which BCI is relying on
Mathis' work at the AM station.
20. BCI meets the other criteria for the daytimer pref 
erence and, thus. is entitled to the enhanced preference
for past broadcast experience available to applicants who
also operate a daytime AM station in the same commu 
nity as the proposed FM station.
8
Ms. Weiss, who has past
broadcast experience in sales and as an account executive
since 1979. has no management experience and no claim
to the enhanced AM daytimer preference. See Initial De 
cision at 3579 para. 28. Thus, her very minimal enhance 
ment under the broadcast experience factor is
substantially outweighed by BCI's credit.
21. Conclusion. In the final analysis, however. Weiss is a
stronger applicant than BCI. It has no diversification
demerit, and it is 100 percent integrated. BCI has a diver 
sification demerit from Fernandez' positions at BCI and
Wabash, and it is not quite ninety-one percent integrated.
9
Although BCI claims a dispositive integration enhance 
ment from its daytimer AM preference. this is not suffi 
cient to overcome Weiss' superior quantitative integration
with its superior local residence and its gender enhance 
ment and BCl's diversity demerit.
lll
22. Weiss also is comparatively superior to both Bible
and Umberger. Bible has substantial broadcast interests
for which it receives a diversification demerit. and it does
not propose to be integrated. See Initial Decision at 3579
paras. 23-24, 3584-85 paras. 71-72. Umberger proposes to
be fully integrated into the management of the station, see
id. at 3581, paras. 45-47. but his promise to move to
Noblesville if he wins is "accorded less weight" than Ms.
Broadcasting, fnc., 2 FCC Rcd 1474, 1475 para. 9 (1987) (a
difference of about three percent is not significant) (subsequent
history omitted).
III Weiss has questioned the bona fides of BCI,s ownership
structure as it applies to both BCI's quantitative integration
claim and its claim to an AM daytimer preference. Weiss also
has asked for air hazard and real-party-in-interest issues against
BCl. Each of these points is mooted by the disposition here.
With respect to the real-party-in-interest issue, we note the
AU's finding that the issue would be necessary if BCI were a
comparative contender in this case. fnitial Decision at 3584 para.
70. Thus, if BCI could otherwise prevail, further hearing might
be necessary. Cf. Sunshine Broadcasting, fnc., b FCC Rcd 5981,
5984 para. 18 (Rev. Bd. 1991).
7 FCC Red No.2 Federal Communications Commission Record FCC 91R-121
Weiss' enhancement for long-term local residence and
civic activities. Policy Statement, 1 FCC 2d at 396. His past
broadcast experience. although superior to Ms. Weiss',
also does not carry the weight of her local residence
enhancement. See id. (local residence has great signifi 
cance but past broadcast experience has only "minor sig 
nificance" in the comparative integration analysis)Y
23. ACCORDINGLY, IT IS ORDERED That the Peti 
tions for Leave to Amend filed by Bible Broadcasting
Network. Inc., on July 22. August 26. October 7. Novem 
ber 7, and December 20, 1991, ARE GRANTED and the
amendments ARE ACCEPTED.
24. IT IS FURTHER ORDERED That the Petitions for
Leave to Amend filed by Broadcast Communications,
Inc.. on July 19 and August L 1991, ARE GRANTED
and the amendments ARE ACCEPTED for informational
purposes and that the Petition for Leave to Amend filed
by Broadcast Communications. Inc., on October 11, 1991,
IS GRANTED and the amendment IS ACCEPTED.
12
25. IT IS FURTHER ORDERED That the application
of Weiss Broadcasting of Noblesville. Inc. (File No. BPH 
880301MO) for a construction permit for a new FM
station at Noblesville, Indiana. IS GRANTED; and that
the applications of Bible Broadcasting Network. Inc. (File
No. BPH-880301ML), Broadcast Communications, Inc.
(File No. BPH-880301MZ). and Ben L. Umberger (File
No. BPH-880301PD) ARE DENIED.
FEDERAL COMMUNICATIONS COMMISSION
Marjorie Reed Greene
Member. Review Board
11 Our decision here moots the issues raised regarding the
diversification demerit that the AU gave Umberger for failing
to provide evidence "about any media interests," Initial Decision
at 3585 para. 72, and the full integration credit he gave
Umberger who has a pending application for a new FM station
in Chandler, Indiana. Id. at 3584-85 para. 71.
12 BCI filed a petition to amend its application by substituting
a new transmitter site after the tower on its previous site was
437
sold and dismantled. The Mass Media Bureau filed comments
stating that the amendment meets the appropriate technical
standards. BCI has demonstrated good cause, and its amendment
is accepted. See Erwin O'Conner Broadcasting Co., 22 FCC 2d
140. 143 (Rev. Bd. 1970).