11 FCC Red No. 5 Federal Communic~tions Commission Record FCC 96R·02 Before the Federal Communications Commission Washington, D.C. 20554 MM Docket No. 93-107 In re Applications of DAVID. A. RINGER ASF BROADCASTING CORPORATION File No. BPH-911230MA File No. BPH-911230MB WILBURN INDUSTRIES, INC. File No. BPH-911230MC SHELLEE F. DAVIS OHIO RADIO ASSOCIATES, INC. For Construction Permit for a File No. BPH-911231MA File No. BPH-911231MC New FM Station on Channel 280A. Westerville, Ohio MEMORANDUM OPINION AND ORDER Adopted: February 22, 1996; Released: March 1, 1996 By the Review Board: MARINO (Chairman), and GREENE. 1. On December 13, 1995, the five applicants in this case filed a Joint Request for Approval of Settlement Agree ment, Dismissal of Pending Pleadings. Dismissal of Ap plications and Grant of Application. The Mass Media Bureau filed comments in support on January 16, 1996. We will grant the joint request which complies with all the legal requirements established by the Commission to im plement 47 U.S.C. 31 l(c)(3). 2. Shellee F. Davis has agreed to pay the sum of $125,000 to each of four applicants, David A. Ringer (Ringer), ASF Broadcasting Corp. (ASF). Wilburn Indus tries. Inc. (Wilburn), and Ohio Radio Associates. Inc. (ORA), who, in return, have agreed to dismiss their ap plications. As required by Section 73.3525. 47 CFR § 73.3525, all applicants have established that their applica tions were not filed for purposes of reaching a settlement agreement. They have also urged that approval of the agreement will serve the public interest by expediting the institution of a new FM broadcast station in Westerville. Ohio. Finally, because the parties have reached a universal settlement within the time period established by the Com mission, the limitation on payments to dismissing appli cants has been waived. See Public Notice, 10 FCC Red 12182 (1995). and Charisma Broadcasting Corporation, FCC 95I-35, released December 13, 1995. 3. On January 26, 1996, after the universal settlement was filed, Shellee F. Davis filed a motion for leave to amend her application to change the name and structure of 2521 the application. First, she proposes to chan~e it~ ~am~ t~ Davis Broadcasting Company, Ltd., an Oh10 L1m1ted Li ability Corporation. Davis urges that, since she will retain majority control of the new entity, the proposed amend ment is a permissible ownership change, under the Com mission's rules. See 47 CFR § 73.3573(a) and (b) (defining major ownership change). Next, Davis requests that, as provided for in FCC Freezes Comparative Proceedings, 9 FCC Red 1055 (1994), she formally be released from her prior integration pledge, and amends her application :ic cordingly. We will grant this proposed amendment which has been shown to be fully consistent with controlling Commission precedent. Charisma, supra. 4. An earlier petition for leave to amend was filed by Davis on August 15, 1994, before the settlement, proposing a new transmitter site. This amendment was supported by an engineering exhibit of more than 20 pages. Before reaching the merits of the site amendment, we will con sider a petition to intervene filed pursuant to 47 CFR § 1.223 by Radio Stations WPA Y/WPFB, Inc. on September 23, 1994. This petition contained the bare allegation that allowing the Davis amendment would result in "short spaced sites, to the extent that WPA Y-FM may well be precluded from changing its own site, antenna height or other operating parameters." However, no factual justifica tion supports this conclusion. Nor was an affidavit by a person with personal knowledge of the facts presented or the petition supported by "the affidavit of a qualified radio engineer" as required by the Commission's intervention rule. See 47 § CFR 1.223(c) which provides that a petition to intervene: .... shall be accompanied by the affidavit of a person with knowledge of the facts set forth in, the petition, and where petitioner claims that a grant of the ap plication would cause objectionable interference un der applicable provisions of this chapter, the petition to intervene must be accompanied by the affidavit of a qualified radio engineer showing the extent of such alleged interference according to the methods de scribed in paragraph (a) of this section. The petition f~r leave to intervene is defective for both procedural and substantive reasons and will be denied. We also note that petitioner simply cannot show any justiciable injury because Davis' proposed site is "in conforman~e with the Commission's technical rules." See Mass Media Bureau"s Opposition to Petition to Intervene filed October 4, 1994. 5. Returning to the merits of the Davis site amendment, we note that besides the substantial engineering showing it contains. the Bureau. in comments filed August 24. 1994, supported a grant of the amendment because the four month period between the time Davis discovered that her original site was no longer available and the submission of the amendment "is not excessive in view of the efforts undertaken to secure a new site and to prepare a new engineering proposal. See Mableton Bro,1dcasting Company, Inc., 5 FCC Red 6314, 6320-21 (Rev. Bd. 1990)." And, after reviewing Davis' technical proposal. the Bureau's staff de termined that it conforms with the Commission's rules. We agree with the Bureau that Davis' showing fully justifies our decision to grant the amendment. 6. ACCORDINGLY, IT IS ORDERED. That the petition to intervene fiftd September 23. 1994. by Radio Stations WPA Y/WPFB, iiic. IS DENIED; FCC 96R·02 Federal Communications Commission Record 7. IT IS FURTHER ORDERED, That the petition for leave to amend filed on August 15, 1994, and the motion for leave to amend filed on January 26, 1996, by Shellee F. Davis ARE GRANTED, and that the tendered amendments ARE ACCEPTED; and, 8. IT IS FURTHER ORDERED, That the exceptions and related pleadings ARE DISMISSED; that applicants' Joint Request For Approval of Settlement Agreement, Dismissal Of Pending Pleadings, Dismissal of Applications and Grant of Application, filed December 13, 1995, IS GRANTED; that the amended application of Davis Broadcasting Com pany, Ltd. (File No. BPH-911231MA) for a construction permit for a new FM station on Channel 280A in Westerville, Ohio, IS GRANTED; that the applications of David A. Ringer, ASF Broadcasting Corporation, Wilburn Industries, Inc., and Ohio Radio Associates, Inc., ARE DISMISSED; and that this proceeding IS TERMINATED. FEDERAL COMMUNICATIONS COMMISSION Joseph A. Marino Chairman, Review Board 2522 11 FCC Red No. 5