Federal Communications Commission FCC 96D-04
Before the
Federal Communications Commission 
Washington, D.C. 20554
In the Matter of ) MM DOCKET NO. 96-104 
Southwestern Broadcasting Corporation ) File No. BRH-900315UC
For Renewal of License )
for Station KLZK(FM) )
Brownfield, Texas )
Appearances
Lawrence J. Bernard, Jr., Esq. on behalf of Southwestern Broadcasting 
Corporation and Kenneth M. Scheibel, Esq. on behalf of the Chief, Mass Media 
Bureau
SUMMARY DECISION
OF 
ADMINISTRATIVE LAW JUDGE RICHARD L. SIPPEL
Issued: July 25, 1996 Released: July 29, 1996
1. This case was set for hearing by Hearing Designation Order ("HDO") (DA 96-657), 
released April 29, 1996. A Prehearing Conference was held on June 6, 1996. The parties 
represented that they had agreed to negotiate the terms of a Consent Order which might result 
in the renewal of the license of Southwestern Broadcasting Corporation ("SBC"). In view of the 
treatment of silent stations under the Telecommunications Act of 1996,1 an important ingredient 
to a viable settlement would be an expedited review by the Mass Media Bureau ("Bureau") of 
an upgrade application which SBC had filed after the case was designated for hearing. An 
agreed schedule was incorporated into a ruling as recommended by the parties. See Order FCC 
96M-151, released June 10, 1996.
1 Section 403(1) of the Telecommunications Act of 1996 [47 U.S.C. §312(g)] provides for the automatic 
expiration of licenses if a broadcast station fails to transmit signals for any consecutive 12-month period. The 
relevant period of the silence is that of the station and not that of the licensee or facility. Special temporary 
authorities to remain silent or other such transactions will not toll or extend the 12-month period. Nor can the 
Commission prevent automatic expiration of a license by waiver. The new law leaves no room to compromise and 
allows for no discretion. See Commission Order FCC 96-218, released May 17, 1996, 61 Fed. Reg. 28,766 (June 6, 
1996). 9120
Federal Communications Commission FCC 96D-04
2. On June 21, 1996, the Bureau reported that it had reviewed its policy under the facts 
of this case and concluded that the amendment sought after the release of the HDO would not 
be expedited. Cf. Procedures Announced For Expedited Processing Of Applications Filed By 
Silent Broadcast Stations (DA 96-818), released May 22, 1996 (expediting procedures contem 
plated where silent stations seek to return to the air). For further clarification, on July 3, 1996, 
the Bureau filed a Memorandum Of Law And Policy wherein it stated:
Under existing policy, the Bureau will not process a modification application filed 
after a silent station is designated for hearing.  . The Commission's Public Notice 
[supra] is a narrow exception to the Bureau's existing policy - not applicable here.
Under the circumstances, SBC was authorized to seek a summary decision. See Order FCC 
96M-168, released July 1, 1996.
3. On July 5, 1996, SBC filed a Motion For Summary Decision. The Mass Media 
Bureau's Comments In Opposition To Motion For Summary Decision And Countermotion For 
Summary Decision was filed on July 19, 1996. On July 24, 1996, SBC advised that it would 
accept a summary decision based on the present state of the record without filing a responsive 
pleading to the countermotion.2
4. SBC contends that it could not return Station KLZK(FM) to the air because 
intervening short spacing caused by authorizations to KMMX(FM), KIOL-FM and KKYN-FM 
prevented SBC's upgrade or downgrade or restoration to Channel 280A. The Bureau contends 
that under various scenarios of short-spacing SBC has always had an option to return to the air.
FACTS 
Actions of Previous Owner
5. Station KLZK(FM) [formerly KKTC(FM)] is licensed to serve Brownfield, Texas as 
a Class A FM station. The HDO concludes and SBC concedes that the station has been off the 
air (silent) for seven years. In 1988, the Station's previous owner, Brownfield Broadcasting Corp. 
("Brownfield"), informed the Commission that it had suspended operations pending Commission 
action on its petition to upgrade to a C2 facility and an associated application to relocate the
2 See Southwest's Conditional Waiver Of Opposition Rights. The Bureau advises that it does not necessarily 
concur that under Commission rules there is any right to respond to a countermotion. See 47 C.F.R. §1.253(b) (any 
other party may file an opposition or a countermotion for summary decision.) See also Summary Decision 
Procedures. 34 F.C.C. 2d 485, 490 (1972). The Bureau correctly notes that there is no comparable provision in the 
rule for responding to a countermotion. Since both parties are relying on the same record and the Bureau has not 
filed any counter-affidavit, there would be no need to consider a responsive pleading and therefore SBC would not 
be prejudiced.
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Federal Communications Commission FCC 96D-04
transmitter site. The rulemaking petition was granted on December 14, 1987. In 1988, 
Brownfield advised the Commission that it had suspended the Station's operations pending 
application on the upgrade and approval of a relocation of transmitter site and an increase in 
power on Channel 282C2. On September 28, 1988, Brownfield's upgrade proposal was accepted 
by the Bureau in Report and Order. 3 F.C.C. Red 6158 (1988) provided that there was 
compliance with minimum spacing to an existing Carlsbad, NM site. In October, 1989, 
Brownfield applied to implement the upgraded facilities. While the 1989 upgrade application was 
pending, the Station remained silent. On February 23,1990, Brownfield filed a request to assign 
the Station to SBC. On March 15, 1990, while that application to assign was pending, 
Brownfield filed the renewal application which is the subject of this proceeding. The assignment 
application was granted shortly thereafter and SBC assumed ownership of Station KZLK(FM) 
on May 4, 1990.
Intervening Short-Spacing
6. In December 1990, Station KKYN(FM) (Plainview, TX) was authorized to change 
frequencies and upgrade to Channel 280C1. KKYN's upgrade would eventually preclude KLZK's 
resumption of service on its authorized Channel 280A. But SBC still had options to return to 
the air. See Report and Order (MM Docket 88-571), 4 F.C.C. Red 8788 (1989) (KLZK 
authorized to "continue or reestablish operation" on Channel 280A at anytime until the KKYN 
upgrade construction permit was issued). The Report and Order also contemplated that 
KKZK(FM) could thereafter pursue its Channel 282C2 upgrade or file an application to 
downgrade to Channel 282A in lieu of operating on Channel 280A. See Report and Order 
4 F.C.C. Red at 8788.
7. The options for SBC were narrowed to seeking the Channel 280A downgrade because 
in March 1992, the month prior to the license grant for Station KKYN(FM), SBC's upgrade 
application had been dismissed by the Bureau due to short-spacing. (Motion at Exh. H.) No 
appeal of that dismissal was taken by SBC. Nor was there any corrected application filed for a 
Channel 282C2 upgrade, or any application for a Channel 282A downgrade prior to the 
designation of this case for a hearing.
8. In a related short-spacing, on March 25, 1988, the Bureau authorized Station KMMX- 
FM(Lamesa, TX) and Station KIOL-FM (Lamesa, TX) to exchange licenses so that KIOL could 
broadcast on Channel 262C1 and KMMX could broadcast on Channel 284C1. Both Stations 
received Special Temporary Authority ("STA") while the Bureau processed an application for 
permanent authority. (Motion Exh. B.) The STA sites also were short-spaced to the site at which 
SBC sought to operate KLZK(FM) on upgraded Channel 282C2. SBC represents that the STA 
authorized facilities were also short spaced to any Class A operation of KLZK(FM) on the same 
channel, i.e, Channel 282A. The KMMX(FM) facilities were granted successive STAs through 
September 6, 1996. (Motion at Exh. D.) But there was no effort made by SBC to have the STAs 
set aside in favor of its desired upgrade.
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Federal Communications Commission FCC 96D-04
Actions of Current Owner
9. On July 1, 1990, SBC closed on the purchase of Station KLZK(FM). Crane states that 
he soon learned of the short-spacing problems through informal conversations with Bureau staff 
who advised Crane to work it out privately. Crane represents that in 1990 he hired an engineer 
and made a proposal to Station KIOL(FM) which was never answered. In January 1991, Crane 
directed a proposal to the Bureau. The Chief of the FM branch responded by letter dated January 
30, 1991. (Motion at Exh.G.) In that letter the complexity of the situation was succinctly 
outlined: SBC was licensed to broadcast on Channel 280A and it was seeking an upgrade by 
modification application to move to Channel 282C2. By 1991, there had been a competing 
application filed on top of SBC's renewal application and there would be an unresolved short- 
spacing if the move to Channel 282C2 was approved. In addition, Crane's proposal would 
involve a change of frequency for stations in two separate communities which would involve a 
rule making. In January 1991, the Bureau advised Crane:
[We] encourage the filing of a petition for rulemaking, as such action would 
provide each party a forum to express its views as well as afford the Commission 
an opportunity to achieve a comprehensive solution in this matter.
(Motion at Exh G.) SBC did not follow-up on the advice in a manner calculated to return to the 
air. Nor did SBC obtain an STA to remain silent.
10. In 1989, Brownfield had filed an upgrade application. On March 17, 1992, the 
Brownfield proposal was dismissed by the Bureau as unacceptable for filing. See letter to 
Southwestern Broadcasting Corp. (Ref. 8920-JAG), dated March 17, 1992. (Motion at Exh. H.) 
SBC ascribes the dismissal to "relatively minor short-spacing problems unrelated to the KMMX 
STA operation" which could have been corrected. Crane represents that he did not consider 
refiling the dismissed application for several years because Crane thought that the operation of 
KMMX under an STA "made it impossible" to propose any facilities on Channel 282C2 which 
could serve Brownfield. However, an STA is by nature a temporary arrangement and therefore 
it can be revoked by the Commission at anytime that a favored upgrade application is filed.3
11. On December 2, 1992, the Bureau made a status inquiry of SBC which summarized 
the history and status of Station KZLK(FM) that presented the Station with three options: First, 
notify the Bureau that the Station had resumed Class A operations; second, advise the Bureau that 
operations would be resumed immediately; or third, request an STA to remain silent. (Motion 
Exh. A.) SBC chose the third option and requested an STA to remain silent for six months or 
until a permit was issued for an upgrade on Channel 282C2. Despite the advice of the Bureau 
to pursue the upgrade, no Channel 282C2 application was filed before issuance of the HDO. 
(Motion at Exh. I.)
See 47 C.F.R. §73.1635(b) (STAs may be modified or cancelled without prior notice.)
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Federal Communications Commission FCC 96D-04
12. Station KLZK(FM) has been silent since before its assignment from Brownfield to 
SBC with no feasible corrective action taken by SBC until January 6, 1993, when a request was 
made to remain silent. That request was denied by the Bureau in a letter dated December 1, 
1993 due to SBC's failure to submit a detailed timetable for resumption of operations. (Motion 
at Exh. A.)4 SBC informed the Bureau by letter dated February 21, 1994, that it would not 
restore service on a Class A channel because "it was not fiscally wise" to do so. (Motion at Exh. 
M.) Rather, SBC engaged in extended negotiations with the respective owners of KMMX-FM 
and KIOL-FM in an effort to gain an upgrade. Those negotiations partially succeeded in a 
rulemaking filed by KIOL-FM for a change of community which removed that short-spacing and 
the further extension of the STAs. See Notice of Proposed Rulemaking (MM Docket 95-58), 10 
F.C.C. Red 4945 (1995), adopted 10 F.C.C. Red 11,018 (1995). According to the Bureau, that 
rulemaking was filed after SBC had entered into an agreement with the other licensees on 
December 31, 1993. (Motion at Exh. K.) The Bureau represents in its Comment that the further 
extensions of the KMMX and KIOL STAs during the pendency of the rulemaking were based 
upon SBC's negotiated agreement with those stations. Clearly, SBC was expending its resources 
in seeking a way to obtain an upgrade because that was perceived to be the most economically 
efficient way to proceed. It also shows that SBC was determined not to return to the air on a 
Class A frequency.
13. On May 8, 1996, obviously spurred by the HDO's release, SBC filed its Channel 
282C2 upgrade application (File No. BPH-960508IA). Crane admits that it was not until after 
designation that he prepared the application and obtained permission to use a new transmitter site 
to operate on Channel 282C2. It was also after the designation of the case for a hearing that 
Crane prepared a projection of expenses and obtained a bank letter dated June 11, 1996, more 
than a month after the HDO. Crane now estimates, without providing a schedule, that it will take 
90 days from renewal to construct and return to air.
CONCLUSIONS OF LAW
14. The Commission's rules provide that in considering a motion for summary decision:
The party filing the motion may not rest upon mere allegations or denials but must 
show, by affidavit or by other materials subject to consideration by the presiding 
officer, that there is no genuine issue of material fact for determination at the 
hearing.
* In that same letter, the Bureau cancelled the KMMX-FM and KIOL-FM modification applications and related 
STAs. That definitive Commission action made it possible for SBC to resume broadcast operations on Channel 282A 
or to pursue its Channel 282C2 upgrade. The "primary problem" was identified in the letter as short-spacing with 
another station's proposal. However, the problem was SBC's to resolve and SBC took no action that would be 
effective under the rule.
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Federal Communications Commission FCC 96D-04
47 C.F.R. §1.25(a)(l). The moving party has the burden of establishing that summary decision 
would be appropriate based on its papers. Summary Decision Procedures. 34 F.C.C. 2d 485,487- 
88 (1972). For reasons stated below, it is concluded that SBC has not met its burden and that 
the facts as to which there is no genuine issue support the countermotion.
15. The issues set in the HDO for determination are as follows:
(1) To determine whether Southwestern Broadcasting Corporation has the 
capability and intent to expeditiously resume the broadcast operations of 
KLZK(FM), consistent with the Commission's Rules.
(2) To determine whether Southwestern Broadcasting Corporation has violated 
Sections 73.1740 [minimum operating schedule] and/or 73.1750 
[discontinuance of operation] of the Commission's Rules.
(3) To determine, in light of the evidence adduced pursuant to the preceding 
issues, whether grant of the subject renewal of license application would 
serve the public interest, convenience and necessity.
16. The facts as established by the papers submitted by SBC, as commented on by the 
Bureau, establish that there is no genuine issue of material fact in the following respects: First, 
SBC would only return to the air in connection with a C2 upgrade and would not take any steps 
to return Station KLZK(FM) to the air on a Class A frequency; second, as a result of SBC's 
failure to file applications for an upgrade on Channel 282C2 in the face of existing STAs and 
its failure to file an application to return to Channel 280A or to obtain a downgrade on Channel 
282A, Station KLZK(FM) chose to remain silent for over six years; third, as a direct result of 
SBC's strategy to upgrade, Station KLZK(FM) has been silent since SBC acquired it on May 4, 
1990.
17. It is accepted as a matter of law and policy that special temporary authorizations 
which result in temporary short-spacing do not preclude the Commission from terminating the 
STAs in order to remove short-spacing in granting an application for an upgrade. 47 C.F.R. 
§73.1635(b). See also Conflicts Between Applications and Petitions For Rulemaking. 7 F.C.C. 
Red 4917 n.3 (1992) (upgrade has priority over modification application and associated STA). 
While the record does not support a finding of intentional abandonment, the failure by SBC over 
a period of six years to seek authority to upgrade to Channel 282C2, or to use the once assigned 
Channel 280A, or to apply to downgrade to Channel 282A establish that as of April 29, 1996, 
the date of the release of the HDO, SBC had neither the capability nor the intent to resume the
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Federal Communications Commission FCC 96D-04
broadcast operations of Station KLZK(FM) consistent with the Commission's rules.5 It is also 
determined that SBC has voluntarily violated Sections 73.1740 and 73.1750 of the Commission's 
Rules.6
ORDER
IT IS ORDERED that the Motion For Summary Decision filed on July 5, 1996, by 
Southwestern Broadcasting Corporation IS DENIED.
IT IS FURTHER ORDERED that the Countermotion For Summary Decision filed on July 
19, 1996, by the Mass Media Bureau IS GRANTED.
IT IS FURTHER ORDERED that the renewal application of Southwestern Broadcasting 
Corporation (File No. BRH-900315UC) for renewal of license for Station KLZK(FM), 
Brownfield, Texas IS DENIED and the Station's license IS CANCELLED.7
FEDERAL COMMUNICATIONS COMMISSION
Richard L. Sippel 
Administrative Law Judge
s Without expediting the postdesignation application, SBC probably would not have the capability to return to 
the air before February 8, 1997, when by operation of law all licenses to stations which have remained silent since 
February 8, 1996, shall terminate. See fn.l, supra.
6 These rules provide respectively for a required number of broadcast hours and the surrender of license for a 
discontinued operation.
7 In the event exceptions are not filed within 30 days after the release of this Summary Decision, and the 
Commission does not review the case on its own motion, this Summary Decision will become effective 50 days after 
its public release pursuant to Section 1.276(d).
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