Federal Communications Commission FCC 96D-10
Before the
Federal Communications Commission 
Washington, D.C. 20554
In the Matter of I MM DOCKET NO. 96-184
) 
CONCORD AREA BROADCASTING )
)
Order to Show Cause Why the License ) 
.for Station KRHT(AM) Concord, California } 
Should Not Be Revoked i
Appearances
David Tillotson, Esq. on behalf of Concord Area Broadcasting, Inc. and 
Kenneth M. Scheibel, Jr., Esq. on behalf of the Chief, Mass Media Bureau, Federal 
Communications Commission.
SUhWARY DECISION OF 
ADMINISTRATIVE LAW JUDGE JOHN M. FRXSIAK
Issued: October 24, 1996 Released: October 28, 1996
Preliminary Statement
1. By Order to Show Cause and Hearing Designation Order (DA 96-1466)'' 
released August 30, 1996 ("OSC"), the Assistant Chief, Audio Services Division, 
Mass Media Bureau, by delegated authority, directed the Concord Area Broadcasting, 
Inc. ("Concord") ~c show cause why the license for Station KRHT(AM), Concord, 
California (the "Station11!, should not: be revoked. The following issues were 
specified: (OSC at 5 5.)
{1; To determine whether Concord Area 
Broadcasting has the capability and intent to 
expeditiously resume tne broadcast operations 
of KRHT(AM), consistent with the Commission's 
Rules;
(2) To determine whether Concord Area 
Broadcasting has violated Sections 73.1740 
and/or 73.1750 of the Commission's Rules; and
(3) To determine, in light of the evidence 
adduced pursuant to the foregoing issues, 
whether Concocd Area Broadcasting is 
qualified to be and remain the licensee of 
KRHT(AM!.
1 .See HRRATHM. released September 9 I<J96 correcting !)A number from OA 96-184 to DA 96-1466.
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Federal Communications Commission FCC 96D-10
2. The OSC placed upon the Mass Media Bureau ("Bureau") both the burden of 
proceeding with the introduction of evidence and the burden of proof with respect 
to all the issues. (OSC at 1 6.)
3. Presently under consideration are a Motion for Summary Decision 
'."Motion"), filed on September 20, 1996, by Concord; Supplements, thereto, filed 
on October 3, 1996, October 21, 1996, arid Comments in support of the Motion filed 
on October 10, 1996, by the Bureau.
Findings of Fact
4. The OSC recited the following facts as the basis for the specification 
on the issues in this proceeding (OSC at If 2, 3 and 4, footnotes omitted.):
Concord suspended broadcast operations on January 31, 
1993, due to stated financial difficulties and the loss of 
the lease for its transmitter site. The licensee 
indicated that it required special temporary authority to 
remain silent while it reorganized the licensed entity and 
found a new transmitter site. On June 1, 1993, the staff 
granted Concord special temporary authority to resolve its 
problems.
On May 20, 1996, Concord requested an eighth extension of 
this temporary authorization, reporting that discussions 
were continuing with city officials regarding the 
utilization of city property for KRHT's proposed 5-tower 
array. On July 19, 1996, Concord's request was approved 
for a thirty-day period. The authorization indicated that 
no further extensions were contemplated absent 
documentation regarding the licensee's lengthy attempts to 
secure a suitable transmitter site.
On August 15, 1996, Concord requested a ninth extension of 
its silent authority. This new request establishes that 
both the city and the owner of a site in Canyon Creek 
rejected Concord's proposals to relocate KRHT's facilities 
on their properties. Concord contends, however, that the 
city administration provided it with two unspecified leads 
for other sites. However, a letter dated August 14, 1996 
from Peter Dragovich, City of Concord Senior 
Administrative Analyst, does not appear to support this 
claim. Moreover, KRHTfAM; has been.off-air for over three 
years, is not presently a-ath.ori.zed to remain silent, has 
not shown the likelihood of securing a transmitter site in 
the near future, and has not demonstrated that broadcast 
operations can be resumed expeditiously. Consequently, 
Concord is in apparent violation of Sections 73.1"?40!a/ !4; 
and "73.1750 of the Commission's Pules.
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Federal Communications Commission FCC 96D-10
5. In it's Motion for Summary Decision, Concord does not dispute the facts 
quoted above. Rather, Concord relies on the following additional facts to support
its Motion.-
6. On September 5, 1996, Corrie Development Corporation, one of the property 
owners that the City of Concord had suggested that Buerry contact, sent Buerry a 
letter advising him that it was interested "in leasing a portion of [its] property 
to relocate your 5 towers and transmitter." (Motion at 6.)
1. On December 3, 1993, the Commission published a tentative list of the 
stations that had applied to migrate to the expanded AM band. KRHT ranked ninth 
on this list, virtually guaranteeing it an expanded band frequency if it were to 
retain this ranking when the final ranking of applicants for the expanded band was 
released. Following release of the tentative ranking of applicants for the 
expanded band, Coleman spoke with an official in the FCC's AM Branch and explained 
that, in light of the difficulties that Concord was experiencing in locating a site 
at which KRHT's 5-tower array could be constructed, it was Concord's intention if 
it were ultimately awarded a frequency in the expanded band to turn in its 
construction permit for the new 5-tower array on its current frequency and only to 
construct an expanded band facility since a station in the expanded band would 
operate nondirectionally, requiring far less land and giving Concord much more 
flexibility, in selecting a transmitter site. (Motion at pp. 6-7.)
8. The staff official advised Coleman chat the AM Branch would not object 
to Concord deferring action on finding a site at which new facilities for KRHT 
could be constructed until after a final decision was made as to whether Concord 
would be awarded an expanded band frequency, and this advice was confirmed by the 
staff action granting Concord's application for reinstatement of its construction 
permit for KRHT's five tower array wherein Concord had clearly stated its intention 
to defer efforts to secure a new site for KRHT until a final determination was made 
as to whether it would be awarded an expanded band frequency. (Motion at 7.)
9. On August 21, 1995, Coleman fiied a report concerning steps 
that Concord had taken ~c construct the facilities authorized in its 
construction permit for KRHT's ne» 5-tower array wherein he reiterated the problems 
that Concord was experiencing in locating a suitable site for KRHT due to "the 
relatively large tract of land needed" and "the high level of urbanization in the 
areas in which the facilities ^ould need to be constructed." In this letter, 
Coleman also reiterated Concord's .decision not to continue tc search for a new for 
KRHT until the Commission made a final determination as to whether KRHT would be 
awarded a channel in the expanded band. (Motion at 8.)
10. On or about November 1, 1S95, Coleman and Concord's FCC counsel met 
with the Chief of the AM Branch, James Burtle and William Ball, an engineer in the 
AM Branch, to discuss Concord's problems in securing a suitable site for the 
facilities specified in KRHT's construction permit and whether Concord should file 
an application to reinstate its construction permit for the facilities. Concord
  The tactual matter contained in Concord's Motion is supported by the declaration under penalty of perjury 
ol Chester P. Coleman. ("Coleman") Concord's Chairman and 50% stockholder (referred to as "Motion at pg. _") 
and the specific exhibits cited in the text.
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Federal Communications Commission FCC 96D-10
had allowed the permit to expire because the site specified in the construction 
permit was no longer available and, tneret'ore, Concord would not be able to 
construct those facilities regardless of the outcome of its application to migrated 
i.n the expanded band. Messrs. Hurtle arid Bail advised Coleman that Concord should 
file an application to reinstate the expired construction permit, notwithstanding 
the fact that it had no intention of constructing the facilities, since the 
construction permit facilities would be used in computing the amount of 
interference caused by KRHT and, thus, KRHT's priority ranking for an expanded band 
frequency. (Motion at 9.)
11. Following the meeting with Messrs. Hurtle and Ball, Concord filed an 
application (BP-951103DA) for reinstatement of KRHT's expired permit for its five 
tower array. This application, which was granted on February 16, 1996, 
specifically reflected the fact that Concord had no intention of building the 
facilities if it was awarded an expanded frequency and that Concord did not intend 
to resume looking for a new site for KRHT until the question as to whether it would 
be awarded an expanded band frequency was resolved. (Motion at 9-10.)
12. When the Telecommunications Act of 1996 was enacted with the provisions 
that stations which had been silent for one year would lose their licenses, Concord 
realized that it would need to locate a site at which KRHT could be placed back on 
the air before the first anniversary of enactment of the Act. Therefore, Concord 
renewed its suspended efforts to secure a site at which KRHT's five tower array 
could be constructed. These efforts consisted of renewing negotiations with the 
City of Concord concerning the possibility of using the Concord Pavilion site and 
contacting the owners of several other potential sites. As a result of these 
renewed efforts. Concord secured reasonable assurance that it could lease property 
of sufficient size to accommodate KRHT's five tower array from Corrie Development 
Corporation and from the Lesher Trust. (Motion at 10.)
13. Even before Corrie Development and the Lesher Trust properties had 
responded to Concord's requests to lease their properties for KRHT, Coleman sent 
topographical maps of their properties to Hatfield and Dawson and instructed that 
firm to study the feasibility of the properties as transmitter sites for KRHT. 
Immediately after being notified that Corrie Development and the Lesher Trust had 
agreed to lease their properties to KRHT, Coleman instructed Hatfield and Dawson 
to expedite their review ol both sices and to prepare the technical portion of an 
application for construction permit for one of the sites as soon as a determination 
is made that one of the sites meets the FCC's technical requirements. (Motion at 
11.)
14. On September 20, 1996, Motion was supplemented to reflect that 
Concord's engineering consultants, Hatfield and Dawson have determined that KRHT 
can operate from the Lesher Property site referred to in the Motion, in full 
compliance with the FCC's technical rules and that Hatfield and. Dawson are in the 
process of preparing the technical portion of an application for a construction 
permit for KRHT to operate from that site.
15. Concord intends to promptly file an application to relocate KRHT to 
the Lesher Property site with requests for expedited processing of the application 
and for special temporary authority to allow Concord immediately to install a
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Federal Communications Commission FCC 96D-10
single tower sc that KRHT can begin operations at reduced 
power prior to February 9, 1997. (Motion at 11.)
16. Concord notes that at all relevant times Station KRHT has been silent 
with Commission authorization. Moreover, as reflected in the requests for 
extensions of KRHT" s silence authority, the applications for reinstatement of its 
construction permit, and the report to the Commission that Coleman filed in August, 
1995, the Commission has been kept fully apprised as to the difficulties that 
Concord faced in securing a new transmitter site and of Concord's decision not to 
pursue a new transmitter site until a final determination was made as to whether 
KRHT would be awarded an expanded band frequency. It is also clear from the 
documents submitted herewith that the Commission gave its tacit approval of 
Concord's decision to defer finding a new site for KRHT until a final determination 
was made as to whether KRHT would receive an expanded band frequency when by 
granting Concord's applications for reinstatement of KRHT's construction permit and 
Concord's requests for extension of KRHT's authority to remain silent after the 
Commission was explicitly apprised of Concord's decision in this regard. (Motion 
at pp. 11-12. )
Conclusions of Law
17. Concord's Motion is filed pursuant to Section 1.251 of the Commission's 
Rules. This Section requires, inter alia, that the moving party demonstrate, by 
supporting affidavit or by other materials subject to consideration by the 
Presiding Judge, that there is no genuine issue of fact for determination at the 
hearing. In the instant case, Concord indicates that it .did not return Station 
KRHT(AM) to the air during the February 1993 through August 1996 period because 
Concord, after losing the lease for its transmitter site, J expected to migrate to 
the AM expanded band, and thus suspended its search for a site large enough to 
support the directional antenna system needed for its existing-band construction 
permit. An award of an sxpanded-band construction permit would allow Concord to 
employ a non-directionalized antenna system, utilizing a smaller site. Concord 
correctly observes that, the lengthy process attending the Commission's finalizing' 
the expanded-band allocation was noc a circumstance within Concord's control. 
Indeed, the Bureau submits that Concord has established that its delay in return 
the station to the air was reasonable.
18. The Bureau further submits that, in view of the foregoing, no issue 
warranting hearing on the matter of revocation of the station's license, or 
possible violation of Section 73.1740 and/or 73.1750 of the Commission's Rules, any 
longer exists. The Bureau supports. Concord's Motion and joins in its request that 
the instant proceeding be -erminatsd.
In support of its original S'l'A rei|iiest on February 26. 1993. Concord submitted the February 18. 1993 
eviction notice it received from counsel lor its landlord. After acquiring the properly through foreclosure, the new 
owners refused to extend a lease for the use of radio towers on their site
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Federal Communications Commission FCC 96D-10
Accordingly, IT IS ORDERED that the Motion for Summary Decision, filed 
September 20, 1996, by Concord Area Broadcasting, Inc. IS GRANTED, and issues 
(1), (2) and (3) ARE RESOLVED in favor of Concord Area Broadcasting, Inc.
IT IS FURTHER ORDERED that the hearing scheduled for January 23, 1997 IS 
CANCELLED and this proceeding IS TERMINATED.4
FEDERAL COMMUNICATIONS COMMISSION
Q^ A-
/John M. Frysiak 
Administrative Law Judge
4 In !  at exceptions are not filed within 30 days after the release of this Summary Decision, and the 
Commiss.- •••. ?ves not review the case on its own motion, this Summary Decision shall become effective 50 days 
aft. it: public release, pursuant to 47 C.F.R. 1.276(d).
14320 OFFICE: 1996-417-484/60006