federal communications commission fcc 98-200 · the commission's ex pane rules which piohibit...

Federal Communications Commission FCC 98-200

Before theFederal Communications Commission

Washington, D.C. 20554

In re Applications of

ROY M. SPEER(Transferor)

and

SILVER MANAGEMENT COMPANY(Transferee)

For Transfer of Control of

SKIL Broadcasting Partnership, Licensee of WEHS-TV, Aurora, IL

SKDA Broadcasting Partnership, Licensee of KHSX-TV, Irving, TX

SKHO Broadcasting Partnership, Licensee of KHSH-TV, Alvin, TX

SKMD Broadcasting Partnership, Licensee of WHSW-TV, Baltimore, MD

SKNJ Broadcasting Partnership, Licensee of WHSE-TV, Newark, NJ, WHSI-TV, Smithtown, NY, and W60AI, New York, NY

SKOH Broadcasting Partnership, Licensee of WQHS-TV, Cleveland, OH

SKLA Broadcasting Partnership, Licensee of KHSC-TV, Ontario, CA

SKVI Broadcasting Partnership, Licensee of WHSP-TV, Vineland, NJ

SKFL Broadcasting Partnership, Licensee of WYHS-TV, Hollywood, FL

File Nos. BTCCT-950913KG

BTCCT-950913KE

BTCCT-950913KF

BTCCT-950913KH

BTCCT-950913KJ BTCCT-950913KK BTCTTL-950913KQ

BTCCT-950913KL

BTCCT-950913KM

BTCCT-950913KN

BTCCT-950913KO

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SKTA Broadcasting Partnership, Licensee of WBHS-TV, Tampa, FL

SKMA Broadcasting Partnership Licensee of WHSH-TV, Marlborough, MA

North Central LPTV, Inc., Licensee of W13BN, Columbus, OH, K21OD, St. Louis, MO K26CR, Kansas City, MO W33AY, Springfield, IL W39BH, Champaign, IL W64BM, Toledo, OH K35CY, Minneapolis, MN K41DD, Des Moines, IA

South Central LPTV, Inc., Licensee of K15DD, Wichita, KS K14IE, New Orleans, LA K67FD, Shreveport, LA K39CW, Tulsa, OK

Southeast LPTV, Inc.,Licensee of W24BF, St. Petersburg, FLW24AL, Atlanta, GAW56CM, Knoxville, TNW36AJ, Jacksonville, FLW58CD, Raleigh, NCW52BF, Mobile, ALW34BI, Birmingham, ALW31BB, Pensacola, FL

Northeast LPTV, Inc.,Licensee of W17BH, Huntington, WVW56CP, Roanoke, VAW56CS, Portsmouth, VA

West LPTV, Inc.,Licensee of K21CX, Tucson, AZK14IF, Spokane, WA

URBAN TELECOMMUNICATIONS CORP.(Assignor)

BTCCT-950913KP

BTCCT-950913KI

BTCTTL BTCTTL BTCTTL BTCTTL BTCTTL BTCTTL BTCTTL BTCTTL

-950913KR-950913KS-950913KT-950913KU-950913KV-950913KW-950913KX-950913KY

BTCTTL-950913KZ BTCTTL-950913LA BTCTTL-950913LB BTCTTL-950913LC

BTCTTL. BTCTTL- BTCTTL- BTCTTL- BTCTTL- BTCTTL- BTCTTL- BTCTTL-

950913LD 950913LE 950913LF 950913LG 950913LH 950913LI 950913LJ 950913LK

BTCTTL-950913LLBTCTTL-950913LMBTCTTL-950913LN

BTCTTL-950913LO BTCTTL-950913LP

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and

URBAN BROADCASTING CORPORATION(Assignee)

For Pro Forma Assignment of the Construction Permit for Television Station WTMW(TV), Channel 14, Arlington, Virginia

) File No. BAPCT-890418KF)))

JOVON BROADCASTING CORPORATION

For Petition for Declaratory Ruling Relating to Television Station WJYS-TV, Channel 62, Hammond, Indiana

MEMORANDUM OPINION AND ORDER

Adopted: August 18, 1998

By the Commission:

Released: September 11, 1998

1 . Before the Commission for consideration are two petitions for reconsideration of our decision permitting the transfer of control of Silver King Communications, Inc. (Silver King) from Roy M. Speer to Silver Management Company, Roy M. Speer, ii FCC Red 18393 (1996) (Speer III), 1 which were timely filed by: (i) Washington Area Citizens Coalition Interested in Viewers' Constitutional Rights, Jeffra Becknell and Kofi Ofori (WACCI-VCR); and (ii) by Jovon Broadcasting Corporation (Jovon), the licensee of WJYS(TV), Channel 62, Hammond, Indiana. Also before the Commission is a request by Urban Broadcasting Corporation (Urban), the permittee of WTMW(TV), Channel 14, Arlington, Virginia, seeking elimination or mitigation of a $25,000 forfeiture assessed against it for abdicating control of WTMW(TV) to Silver King.

2. On March 6, 1996, the Commission granted the transfer of control of Silver King to Silver Management Company. Roy M. Speer, 11 FCC Red 14147 (1996) (Speer I). Concurrently, however, the Commission issued an order staying the effectiveness of that action pending the investigation of allegations raised in an informal objection to the transfer filed by

1 Silver King Communications, Inc. is now USA Networks, Inc., and Silver Management Company is now BDTV Inc. For ease of reference in this document, we will refer to these entities by their former names.

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Urban which implicated Silver King's qualifications as the transferor. Roy M. Speer, 11 FCC Red 14684 (1996) (Speer II). Specifically, Urban alleged that Silver King had attempted to control Urban's station, WTMW(TV). Attribution of that station to Silver King, maintained Urban, would result in Silver King's ownership of 13 television stations, in excess of the then applicable national ownership cap of 12 stations. Procedurally, the Commission treated Urban's informal objection to Speer I as a petition for reconsideration of that decision. Id at 14687. Additionally, the Commission deemed as parties to the reconsideration proceeding WACCI-VCR, which had pending a petition for reconsideration of the staffs approval of Silver King's investment in Urban, Urban Telecommunications Corp., 7 FCC Red 3867 (1992), and Jovon, which had pending a request for declaratory ruling that Silver King's proposed acquisition of a 45% equity interest in Jovon would violate the Commission's cross-interest policy and, potentially, the multiple ownership rules. Due to the interrelated nature of these separate proceedings, we consolidated them. In Speer ///the Commission took several actions, including finding that there was an unauthorized transfer of control of Urban's WTMW(TV) during the three-year construction of that station, which began in 1990 and ended in 1993, and assessing a forfeiture of $25,000 against Urban for abdicating control of its station. That decision also limited the exercise of Silver King's option to acquire an equity interest in Jovon to one-third of Jovon's equity so as to be consistent with the cross-interest policy. The Commission then dissolved the stay and permitted the transfer of Silver King to Silver Management.

WACCI-VCR - Petition for Reconsideration and Request for Staff Directive

3. In 1989, Urban Telecommunications Corp. (UTC), whose sole stockholder was Theodore White, filed a pro forma Form 316 application to assign the WTMW(TV) construction permit from UTC to Urban. See File No. BAPCT-890418KF. According to the application, Urban was to be a new corporation with two stockholders, White and a subsidiary of Silver King. WSCT-TV, Inc., a competing applicant for Channel 14, filed an informal objection against UTC's application, alleging that loans from Silver King to Urban, provided to fund completion of the construction of WTMW(TV), gave rise to a question of de facto control. The staff denied WSCT-TV Inc.'s objection, see Letter to Michael H. Rosenbloom, Esquire, from Chief, Video Services Division (February 2, 1990), and the Commission subsequently denied its application for review in June 1992. Urban Telecommunications, 1 FCC Red 3867 (1992). 2 While the application for review remained pending, Urban submitted for placement in its ownership files executed copies of the loan agreement and other related agreements between it and Silver King, and supplemented its files in October 1992 and in July 1993 to reflect modifications to these agreements. On July 16, 1992, WACCI-VCR filed a petition for reconsideration of Urban Telecommunications, and on April 29 and July 5, 1994, WACCI-VCR supplemented the petition for reconsideration. In the April 29 supplement, WACCI-VCR claimed, inter alia, that Urban's failure to serve WACCI-VCR with copies of the agreements between it and Silver King violated

* On April 6, 1993, Urban filed an application for license to cover its construction permit for WTMW(TV), against which WAGCI-VCR filed a "petition to deny" a year later. That proceeding remains pending. See file No. BLCT-930406KF.

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the Commission's ex pane rules which piohibit presentation of information to the Commission without providing notice to other parties in a restricted proceeding. See 47 C.F.R. §§1.1202(b)( 1) and 1.1204(b)( 1).

4. Proceduraily. in Speer HI. we dismissed WACCI-VCR's petition for reconsideration of Urban Telecommunications after determining that the material upon which WACCI-VCR relied had been publicly available for more than two years prior to the Commission's decision in Urban Telecommunications, and that WACCI-VCR had failed to meet the 47 C.F.R. Section 1.106(b)(l) requirement that it show good reason why it was not possible to have participated earlier in that proceeding. Nevertheless, we addressed WACCI-VCR's allegations as part of our independent public interest analysis. Speer III, 11 FCC Red at 18413. Substantively, we rejected WACCI- VCR's contentions that WTMW(TV)'s agreements with Silver King effectively transferred control over WTMW(TV)'s programming, but did conclude that Silver King had assumed unauthorized control of WTMW(TV) during the three and one-half year construction of that station and that such assumption of control placed Silver King in violation of our television duopoly rule during that period. Id. at 18418, 18419, 18426. 3 Finally, we determined that, contrary to the contentions raised by WACCI-VCR in its March 25, 1996 Comments, Urban's submission of the agreements between it and Silver King in October 1992 and July 1993, and the filing of its March 6. 1996 informal objection without service upon WACCI-VCR, did not violate our ex parte rules. Id. at 18427-18428.

5. In its petition for reconsideration and request for staff directive, WACCI-VCR argues that in Speer ///the Commission erred in: (1) denying WACCI-VCR formal standing; (2) failing to act upon WACCI-VCR's April 21, 1994 Petition to Deny Urban's license application and request for program test authority; (3) failing to find a violation of the ex parte rules; and (4) failing to make grant of Speer III subject to the outcome of the national broadcast ownership rule making proceeding, Second Further Notice of Proposed Rule Making in MM Docket 87-8, 6 FCC Red 5010 (1991).4 Lastly, WACCI-VCR requests that, "[b]ecause of the Commission staffs . . . complicity in ex parte violations by failing to inform [WACCI-VCR] of presentations received which went to the merits of [its] Petition for Reconsideration," the Commission "issue a directive to staff declaring that citizen-petitioners are to be afforded a fair opportunity to be

3 While an argument had been raised by Urban that the attribution to Silver King of an interest in WTMW(TV) during that period also placed Silver King in violation of the former 12 television station national ownership limitation, we found that no violation had existed since one of Silver King's stations was, as a satellite station, exempt from consideration under the national numerical cap. Id. at 18419.

4 This proceeding was subsequently incorporated into our television ownership proceeding and remains pending, see Further Notice of Proposed Rule Making in MM Docket Nos. 91-221 and 87-8,10 FCC Red 3542,3569 (1995). We later released another notice in this proceeding. See Second Further Notice of Proposed Rule Making, 11 FCC Red 21655 (1996).

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heard in matters pertaining to broadcast license renewal and transfer. r.S

6. Regarding the issue of standing, WACCI-VCR claims that the Commission should have granted it formal standing in Speer HI. In support, WACCI-VCR contends that it demonstrated good reason for not participating in the WTMW(TV) pro forma assignment proceeding until after the Commission acted on the application for review in Urban Telecommunications. Specifically, WACCI-VCR asserts that the Commission's procedures regarding pro forma applications did not give it adequate notice to participate at an earlier stage in the proceeding. WACCI-VCR further claims that the Commission erred by not affording it formal standing by virtue of its July 16, 1992 petition for reconsideration of Urban Telecommunications, and the supplements to that petition which it filed on April 29, 1994 and July 5, 1994. Second, WACCI-VCR argues that the Commission acted improperly by not consolidating into Speer HI its April 21, 1994 Petition to Deny, which it had filed against Urban's application for a license to cover the constructed WTMW(TV) facility and its request for program test authority.

7. Third, WACCI-VCR argues that the Commission erred in deciding that none of the acts discussed by WACCI-VCR in its April 29, 1994 supplement and March 25, 1996 Comments demonstrated that Urban violated the ex pane rules. WACCI-VCR asserts, moreover, that the Commission erred by not addressing the matters raised in its July 5. 1994 supplement, entitled Supplement to Petition for Reconsideration and Petition to Deny. In these pleadings WACCI- VCR raised three ex pane allegations. In the April 29 supplement to its petition for reconsideration of Urban Telecommunications, WACCI-VCR claimed that Urban's failure to serve WACCI-VCR with copies of the agreements between it and Silver King violated the Commission's ex parte rules. See supra *\ 3. In its March 25, 1996 Comments, WACCI-VCR asserted that Urban's filing of its March 6, 1996 informal objection to the Silver King transfer, without service on WACCI-VCR, violated the ex parte rules. Id. at f 4. Finally, in its July 5 supplement to its petition for reconsideration of Urban Telecommunications and its April 21, 1994 petition to deny Urban's application for license to cover. WACCI-VCR alleged that because it had filed a petition to deny Urban's application for license to cover, Urban violated the ex parte rules by failing to serve on WACCI-VCR communications with the Commission regarding Urban's request for program test authority, including a copy of a letter dated June 6, 1994, from Urban's counsel to the Commission's Managing Director. That June 6 letter responded to a letter from the Managing Director to the Assistant Corporation Counsel of the District of Columbia (D.C. Counsel) concerning Urban's license application. WACCI-VCR received copies of these communications on June 27, 1994 from the D.C. Counsel. According to WACCI-VCR, in these communications, Urban mentioned that delay in grant of its application for license to cover left it in violation of its affiliation agreement with Silver King. WACCI-VCR concludes that because these communications had bearing on the merits of the argument it raised in its petition for reconsideration of Urban Telecommunications, Urban had an obligation to notify WACCI-VCR

5 Because we believe that the staff has acted in a manner consistent with the Communications Act and the Commission's Rules, we do not find it necessary to issue any directive to the staff.

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of them. Additionally, WACCI-VCR claims that this "pattern of ex pane violations" raises questions regarding Urban's character.

8. Fourth. WACCI-VCR argues that the Commission must reconsider its holding as to whether Silver King violated the national ownership limitation. That decision warrants reconsideration, WACCI-VCR maintains, because it failed to acknowledge a pending rule making which addresses the ownership limitation, and failed to take into account a pleading filed in that proceeding by WACCI-VCR and others on August 12, 1991, asking the Commission to count satellite stations in calculating compliance with the national ownership cap.

9. In response to WACCI-VCR's arguments, Urban asserts that, because WACCI-VCR lacked standing to file its original petition for reconsideration on July 16, 1992, it therefore had no standing to file either supplement two years later. Further, Urban maintains that the Commission did not err by failing to address WACCI-VCR's April 1994 Petition to Deny the WTMW(TV) license application, since the Commission did not consolidate that proceeding with the instant proceeding. See Speer II at 14687. Additionally, Urban maintains that it did not violate the ex pane rules by not serving its March 6, 1996 informal objection on WACCI-VCR since WACCI-VCR was not a party to the Silver King transfer of control proceeding. Concerning the ex pane allegations raised in WACCI-VCR's July 5, 1994 supplement, Urban argues that because the communications at issue involved its program test authority request, non- service of the letter on WACCI-VCR also did not contravene the ex pane rules. In its Reply, WACCI-VCR claims that the communications described in the July 5, 1994 supplement were not required by the Commission and, as elective communications, WACCI-VCR asserts, they were ex pane presentations.

10. Discussion: We do not believe that any of the four issues raised by WACCI-VCR warrant reconsideration of our decision in Speer III. First, regarding standing, WACCI-VCR's argument that it could not have learned about the nature of the pro forma transaction prior to release of Urban Telecommunications does not justify its failure to participate in the earlier stages of the pro forma proceeding under the "good reason" requirement of Section 1.106 of the Commission's Rules. We note, as we did in Speer III, that the filings at issue were publicly available well before our action in Urban Telecommunications. To the extent that WACCI-VCR asserts that, until publication of the grant of the pro forma application, the Commission had not provided adequate notice of the proceeding to parties wishing to participate,6 the fact that WSCT- TV, Inc. timely participated in that proceeding belies that argument.7

6 The Commission had, according to standard procedure, released a notice of the filing of the pro forma application and a notice of grant of that application.

7 Parties regularly participate in pro forma proceedings. See, e.g., Letter from Barbara A. Kreisman, Chief, Video Services Division, to Richard A. Lederer, President, Fisher & Lederer Investment Counsel, Inc. (July 16, 1993) (objection to pro forma transfer filed by competitor in market); UN Broadcasting Corp., DA 89-726 (released June 28, 1989) (objection to pro forma transfer); Metromedia, Inc., 98 FCC 2d 300 (1984) (objection filed against pro forma transfer by citizens group); A.H. Belo Corp., 43 FCC 2d 336 (1973) (petition for reconsideration of pro forma

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11. Additionally, we do not believe that the fact that WACCI-VCR's April 29 and July 5, 1994 supplements dealt with matters occurring subsequent to the filing of its petition for reconsideration gave it standing retroactively to have filed its original 1992 petition for reconsideration, especially since it did not have standing at the time it filed that petition. We also emphasize that, despite not granting it formal standing in Speer HI. we addressed the issues raised by WACCI-VCR as part of our independent public interest analysis and, notably, WACCI-VCR has not alleged that treating its petition in this manner prejudiced it.

12. Second, we disagree with WACCI-VCR's argument that all of the matters it raised in its Petition to Deny the WTMW(TV) license application should have been addressed and dealt with in Speer III. As earlier indicated, we made WACCI-VCR a party to the Silver King proceeding and consolidated the pro forma WTM W(TV) assignment proceeding herein because of the similarity of the issues WACCI-VCR had raised there relating to Silver King and its qualifications. Unlike the proceedings that we consolidated, the WTMW(TV) license application proceeding does not directly involve Silver King. Accordingly, we reject WACCI-VCR's assertion that we acted in an "arbitrary and capricious" manner. The WTMW(TV) license application and related requests for program test authority remain pending and will be fully addressed at a later date.

13. Third, for the reasons stated in Speer III, we uphold our decision with respect to those alleged ex pane violations raised by WACCI-VCR in its April 29, 1994 supplement and its March 25, 1996 Comments. See Speer HI at 18427-18428. As for the ex pane allegations raised in WACCI-VCR's July 5, 1994 supplement that related to the pending proceeding on the license application for WTMW(TV), we believe that those matters, as well as other similar allegations subsequently advanced in the context of that license proceeding, should be addressed there because they relate to the qualifications of Urban, not the applicant before us here.

14. Finally, the Commission did not err in not conditioning grant of Speer HI on the outcome of the national television broadcast ownership rule making proceeding. As we noted earlier, see supra n.2, in Speer HI we specifically concluded that no violation of the national ownership cap had occurred because during the period, beginning in 1990 and ending in 1993, in which Silver King assumed de facto control of Urban, the rule in effect at the time of the violation excluded satellites from the national cap calculation. Accordingly, we had no need in the instant transfer proceeding to comment on the fact that WACCI-VCR and others had filed a pleading in the national ownership rule making proceeding dealing with whether television satellite stations should no longer be exempted from consideration under our multiple ownership rules, or to condition grant of the transfer on resolution of the pending national ownership proceeding.

assignment filed by party that had filed objection against assignment).

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Jovon - Petition for Clarification and Reconsideration

15. In August 1990, Silver King entered into an agreement to lend Jovon, licensee of WJYS(TV), Channel 62, Hammond, Indiana, funds to construct and operate the station, and Jovon granted to Silver King an option to acquire a 45% nonvoting convertible stock interest in Jovon. In October 1994, Silver King notified Jovon of its election to exercise the option, but Jovon refused to consummate the option. On November 7, 1995, Jovon submitted a petition for declaratory ruling, requesting that the Commission declare that this option violates the Commission's cross-interest policy because Silver King controls WEHS-TV, Channel 60, Aurora. Illinois, a station in the same market as WJYS(TV). In Speer III, we noted that the Commission has not, in the context of the cross-interest policy, permitted a nonattributable equity interest in excess of 33%, citing Cleveland Television Corp., 91 FCC 2d 1129, 1133 (Rev. Bd. 1972), rev. denied, FCC 83-235 (May 18, 1983), ajfd732 F.2d 962 (D.C. Cir. 1984). We also determined that through a put/call agreement between Jovon and Silver King, Silver King already held a 45% financial interest in Jovon. We thus required that the put/call agreement be amended to delete references to full redemption of the option and to align it with the one-third equity interest limit. Speer III, 11 FCC Red at 18443-18444. Regarding the Option Agreement, we stated that Silver King may not exercise its option in full, but that it may "exercise the option so that it acquires no more than one-third of the equity of Jovon." Id. at 18443. We also noted that, should our pending review of the Commission's attribution rules and policies in MM Dockets 94-150, 92-51 and 87-154, 11 FCC Red 19895 (1996), eliminate the limits placed on common ownership of attributable and non-attributable equity interests in separate facilities serving the same markets, Silver King would be free to exercise its option in full. Speer III, at 18443 n.26.

16. In its Petition for Clarification and Reconsideration of Speer III, Jovon requests that the Commission clarify that it did not intend to reform the Option Agreement to create a 33% option or to require Jovon to sell a 33% interest to Silver King. Jovon maintains that the Commission lacks the authority to do so, and that doing so would run counter to the Commission's policy of not embroiling itself in private disputes. With respect to the Commission's statement that if it modifies the cross-interest policy Silver King may be able to exercise its option, Jovon contends that if the agreement was illegal when it was created, it cannot be revived by a subsequent change in the law. In response, Silver King argues that the Commission did not declare the Option Agreement illegal and, therefore, should the attribution policies change, Silver King may be able to hold a 45% interest in Jovon.

17. Discussion: In Speer III we did not determine that, after the parties amended the put/call agreement, the mere existence of the unexercised Option Agreement violated our policies. Nor did we intend to rewrite the agreement to provide for a 33% option, or to require Jovon to sell a 33% interest to Silver King. Rather, we simply intended to indicate that our precedent only allows Silver King to take up to a 33% interest in Jovon, so long as the Option Agreement, as written, allows it to do so. As Jovon notes, the Commission generally does not adjudicate disputes related to private contractual matters. See Christian Radio Communications, Inc., 8 FCC Red 3205, 3205 n.3 (1993). In reaching our decision, we assumed the validity of the Option Agreement, and ruled only on whether it comported with our regulations and policies. It is for

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another forum, such as the courts, to determine the effect, if any, of our decision on the validity of the Option Agreement given the various provisions contained therein. 8 Lastly, regarding the attribution rule making, because we did not declare that the unexercised Option Agreement violated our policy, the outcome of that rule making will dictate whether Silver King will be permitted to exercise its option in full under Commission regulations, again assuming the validity of the Option Agreement.

Urban - Response to Notice of Apparent Liability

18. In Urban"s response to Speer III, it requests that the fine against it not be imposed or, in the alternative, that it be substantially reduced. Specifically, Urban notes that the Communications Act states that no forfeiture penalty may be imposed on a "non-licensee" if the violations charged occurred more than one year from the date of the notice of apparent liability. See 47 U.S.C. § 503(b)(6)(B). 9 Urban then maintains that as a permittee it falls within the category of "non-licensee" category and is therefore subject to a one-year limitation period. 10 Because the Commission found that Silver King's unauthorized control of WTMW(TV) ended in August 1993, almost three years prior to our issuance of Speer 11L Urban asserts that the proposed forfeiture is time-barred. Even if the Commission finds that a forfeiture could be imposed, Urban argues, the fact that it voluntarily disclosed the alleged misconduct, despite the risks it faced in making such claims against Silver King, a much more powerful company to

8 By letter to the Chief, Mass Media Bureau, dated June 27, 1997, Silver King advises the Commission that it has attempted to tender payment and exercise its rights under the Option Agreement in a manner consistent with Speer III and the Commission's rules and policies. Because that attempt was rebuffed by Jovon, Silver King states that it has filed a complaint in a Florida state court seeking declaratory relief and specific performance in connection with the Option Agreement. According to Silver King, Jovon has likewise filed a complaint in the same Florida court, seeking declaratory relief and specific performance to require prepayment of a loan related to the Option Agreement. In Silver King's view, the Florida litigation should not dissuade the Commission from acting to resolve the instant proceeding.

On July 18, 1997, Jovon responded to HSN's June 27 letter, providing its recitation of the facts involved in Silver King's attempt to exercise the option, and reiterating the requests made in its Petition for Clarification and Reconsideration. In subsequently filed letters to the Chairman and other Commissioners dated March and April 1998, Silver King and Jovon largely repeated the same information as contained in their respective letters of June 27 and July 18, 1997, to the Chief, Mass Media Bureau.

' This section provides that: (b)(6) No forfeiture penalty shall be determined or imposed against any person under this subsection if -

(A) such person holds a broadcast station license issued under title III of this Act and if the violationcharged occurred -

(i) more than 1 year prior to the date of issuance of the required notice or notice of apparent liability; or (ii) prior to the date of commencement of the current term of such license, whichever is earlier; or

(B) such person does not hold a broadcast station license issued under title III of this Act and if the violation charged occurred more than 1 year prior to the date of issuance of the required notice or notice of apparent liability. 47 U.S.C. § 503(b)(6)(A)-(B).

10 Urban points out that in Speer 111 the Commission refers to Urban as "the permittee of record of WTMW(TV). See Speer III, 11 FCC Red at 18401 and n.4.

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whom it is contractually bound, supports either reducing, or eliminating the proposed forfeiture.

19. Discussion: Under Section 503(b)(l)(A), the Commission may assess a forfeiture against a person who has "failed to comply substantially with the terms and conditions of any license [or] permit . . . ." See 47 U.S.C. § 503(b)(l)(A). Section 503(b)(6)(A) disallows the assessment of forfeitures against a person "hold[ing] a broadcast license issued under title III of [the Communications] Act ... if the violation charged occurred (i) more than 1 year prior to the date of issuance of the required notice or notice of apparent liability; or (ii) prior to the date of commencement of the current term of such license, which ever is earlier." Id at § 503(b)(6)(A)(i)-(ii). Although the scope provision of Section 503(b)(l)(A) specifically mentions permits as well as licenses, the limitations provisions of Section 503(b)(6)(A) only specifically mentions licenses. In the absence of a clear reference to permit holders in the statutory language of that section, we conclude that it does not apply to a permittee. Rather. Section 503(b)(6)(B) applies to permit holders. Under that Section, a forfeiture cannot be imposed on a person not holding a broadcast station license "if the violation charged occurred more than 1 year prior to the date of issuance of the required notice." Since the violation committed by Urban, a permittee, ended in 1993, more than one year prior to the issuance of Speer III. we will grant Urban's petition for reconsideration and rescind the Notice of Apparent Liability."

CONCLUSION

20. In view of the foregoing, we conclude that no new facts have been presented that would cause us to reconsider our grant of the applications for transfer of control of Silver King Communications, Inc. from Roy M. Speer to Silver Management, and that no other public interest reasons exist to cause us to set aside that earlier action. Additionally, for the reasons stated above, the Notice of Apparent Liability for forfeiture issued to Urban Broadcasting Corporation will be rescinded.

21. Accordingly, IT IS ORDERED That the Petition for Partial Reconsideration and Request for Staff Directive filed by WACCI-VCR IS DENIED.

22. IT IS FURTHER ORDERED That the request for recision or mitigation of forfeiture filed by Urban Broadcasting Corporation IS GRANTED, and the Notice of Apparent Liability for forfeiture issued to Urban in Roy M. Speer, 11 FCC Red 18393 (1996) IS RESCINDED.

" Because we grant Urban's request to eliminate the forfeiture, we need not address its alternative argument concerning reduction of the forfeiture amount.

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23. IT IS FURTHER ORDERED That the Petition for Clarification and Reconsideration filed by Jovon Broadcasting Corporation IS GRANTED to the extent indicated herein, and IS DENIED in all other respects.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas Secretary

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