Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In the Matter of the             | * | File Nos.                    |
| Applications of                  | * | BAL/BALH-20000728ACY-ADT     |
|                                  | ) |                              |
| Cumulus Licensing, Corp.         | * |                              |
|                                  | * |                              |
| (Assignor)                       |   |                              |
|                                  | * |                              |
| and                              | * |                              |
|                                  | ) |                              |
| Clear Channel Broadcasting       | * |                              |
| Licenses, Inc.                   | * |                              |
|                                  |   |                              |
| (Assignee)                       | * |                              |
|                                  | * |                              |
| For Consent to Assignment of     | ) |                              |
| WGBF(AM), Evansville, IN,        | * |                              |
| WGBF-FM, Henderson, KY, WTRI-FM, | * |                              |
| Mount Carmel, IL, WYNG-FM,       |   |                              |
| Evansville, IN, KNSG(FM),        | * |                              |
| Springfield, MN, KNUJ(AM), New   | * |                              |
| Ulm, MN, KNUJ-FM, Sleepy Eye,    | ) |                              |
| MN, KXLP(FM), New Ulm, MN,       | * |                              |
| KYSM(AM), Mankato, MN, KYSM-FM,  | * |                              |
| Mankato, MN, KCHA(AM), Charles   |   |                              |
| City, IA, KCHA-FM, Charles City, | * |                              |
| IA, KCZE(FM), New Hampton, IA,   | * |                              |
| KGLO(AM), Mason City, IA,        | ) |                              |
| KIAI(FM), Mason City, IA,        | * |                              |
| KLKK(FM), Clear Lake, IA,        | * |                              |
| KWMM(FM), Osage, IA, KMFX(AM),   |   |                              |
| Wabasha, MN, KMFX-FM, Lake City, | * |                              |
| MN, KNFX(AM), Austin, MN,        | * |                              |
| KRCH(FM), Rochester, MN, and     | ) |                              |
| KWEB(AM), Rochester, MN          | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | \ |                              |
|                                  | ) |                              |
|                                  | \ |                              |
|                                  | ) |                              |
|                                  | \ |                              |
|                                  | ) |                              |
|                                  | \ |                              |
|                                  | ) |                              |
|                                  | \ |                              |
|                                  | ) |                              |
|                                  | \ |                              |
|                                  | ) |                              |
|                                  | \ |                              |
|                                  | ) |                              |
|                                  | \ |                              |
|                                  | ) |                              |
|                                  | \ |                              |
|                                  | ) |                              |
|                                  | \ |                              |
|                                  | ) |                              |
|                                  | \ |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
+----------------------------------+---+------------------------------+

**ORDER**

**Adopted: October 27, 2000; Released: January 17, 2001**

By the Commission: Chairman Kennard and Commissioner Tristani issuing
separate statements.

1.  Before the Commission is a September 29, 2000 Emergency Petition for
    Stay filed by Davis Broadcasting, Inc. of Columbus ("Davis") of the
    Mass Media Bureau's ("the Bureau") grant of the assignment of
    licenses of 22 radio stations ("the Midwest applications") from
    Cumulus Licensing Corp. ("Cumulus") to Clear Channel Broadcasting
    Licenses, Inc. ("Clear Channel").[^1] *See September 25, 2000,
    letter from Linda Blair, Chief, Audio Services Division, Mass Media
    Bureau to John Griffith Johnson, Jr., Esq., et. al.* (1800B3-MG)
    ("Midwest letter"). Also before the Commission is an October 5, 2000
    letter filed by the Rainbow/PUSH Coalition in support of Davis'
    Emergency Petition. Rainbow/PUSH believes that the Midwest letter
    "ruled in the Columbus proceeding" which is a related, but separate
    matter. *See* ¶ 2, *infra.* While certain allegations raised in the
    Columbus proceeding and elsewhere were resolved in the Midwest
    letter \-- specifically whether substantial and material questions
    of fact existed as to Cumulus' basic qualifications \-- that
    proceeding itself, including the proposed sales in Columbus and
    their impact on economic concentration in that market, remains
    pending. [^2] For the reasons stated herein we deny the Emergency
    Petition for Stay.

    **I. Background**

2.  On July 28, 2000, Cumulus filed applications to assign to Clear
    Channel the Midwest stations and an existing six-station combination
    in Columbus, GA ("the Columbus applications").[^3] Davis' informal
    objection opposing the assignment of the Midwest applications
    incorporated by reference allegations Davis made in two petitions to
    deny other Cumulus transactions pending before the Commission.
    First, it incorporated Davis' allegations in a petition to deny an
    application for Cumulus to acquire two additional stations in
    Columbus, GA from Solar Broadcasting ("the Solar applications").[^4]
    Second, it incorporated Davis' allegations in a petition to deny the
    assignment of the six station combination in Columbus from Cumulus
    to Clear Channel. The Columbus applications are contractually
    related to the Midwest applications. Specifically, the Cumulus/Clear
    Channel agreement concerning the Midwest stations provides that, if
    at the time of closing the sale of the Midwest stations the
    Commission has not approved the assignment of the six Columbus
    stations from Cumulus to Clear Channel, then: (1) Clear Channel and
    Cumulus will enter into a local marketing agreement ("LMA") pursuant
    to which Clear Channel will, *inter alia*, begin programming
    Cumulus' six Columbus stations ("Columbus LMA"); (2) Cumulus will
    assign to Clear Channel its rights under an existing LMA with Solar
    to program Solar's two Columbus stations ("Solar LMA"); and (3)
    Cumulus will assign to Clear Channel an option to acquire a
    construction permit for a station in Cusseta, Georgia, which is
    located near Columbus.

3.  In the Midwest letter, which granted the assignment of the Midwest
    applications and denied Davis' informal objection, the Bureau stated
    that it had reviewed the allegations made in the informal objection,
    as well as the allegations made in the petitions to deny the Solar
    and Columbus applications, and found there were no substantial and
    material questions of fact sufficient to warrant Cumulus'
    disqualification as a Commission licensee. Thus, the Bureau found
    that the informal objection and the petitions did not prohibit a
    grant of the Midwest applications.[^5] In addition, the Midwest
    letter stated that in granting the Midwest applications, the Bureau
    did not reach any of the allegations raised in the pleadings other
    than whether they presented disqualifying issues warranting further
    inquiry. Rather, the Bureau explained that it would address those
    allegations in the context of acting on the Solar and Columbus
    applications, which remain pending.

4.  The parties consummated the sale of the Midwest stations on October
    2, 2000. However, at the request of the Bureau, and with the
    knowledge and agreement of Davis and Solar, Cumulus and Clear
    Channel agreed to "suspend performance" until October 27, 2000 of
    those terms of the Midwest agreement concerning the stations in the
    Columbus market. Specifically, the parties agreed not to implement
    the Columbus LMA, the assignment of the Solar LMA to Clear Channel,
    or the assignment to Clear Channel of Cumulus' option to acquire the
    Cusseta, GA construction permit. The Bureau requested this temporary
    delay and maintenance of the *status quo* in Columbus, GA in order
    to permit the Commission adequate time to consider the Emergency
    Petition for Stay.

    **II. Emergency Petition for Stay**

5.  To be successful on a request for a stay, Davis must demonstrate
    that (1) it has a substantial likelihood of succeeding on the
    merits; (2) it would suffer irreparable harm absent a stay; (3)
    grant of a stay would not substantially harm others; and (4) the
    stay would be in the public interest. *See Washington Metropolitan
    Area Transit Comm. v. Holiday Tours, Inc.,* 559 F.2d 841, 842-43
    (D.C. Cir. 1977). Davis has fallen short of justifying a stay under
    this standard. Indeed for the most part, Davis fails to address the
    four-part test, and instead generally argues that the Commission has
    denied Davis' "due process rights."[^6]

    **a. Irreparable Injury**

6.  Whether before a court or the Commission, a showing of irreparable
    injury and inadequacy of legal remedies are critical elements in
    justifying a request for stay of an agency order. *See Wisconsin Gas
    Co. v. FERC,* 758 F.2d 669, 674 (D.C. Cir. 1985), quoting
    *Sampson v. Murray*, 415 U.S. 61, 88 (1974). *See also Buffalo-Forge
    Co. v. Ampco Pittsburgh Corp.*, 638 F.2d 568, 569 (2d Cir. 1981)
    ("Irreparable harm is the "*sine qua non* for the grant of such
    equitable relief"). Davis' showing of irreparable injury is
    unpersuasive. It claims "irreparable" loss of due process rights,
    premised on the charge that the Midwest letter failed to adequately
    justify the dismissal of Davis' informal objection and failed to
    properly resolve allegations concerning disqualifying conduct
    previously raised in its petitions to deny. It also relies on the
    fact that the Midwest applications were granted more quickly than
    other applications pending before the Commission and before Davis
    had an opportunity to file a reply pleading in the proceeding.[^7]

7.  As to the applications to assign stations in Columbus, Georgia,
    where Davis is a competitor in the market, they remain pending. Any
    decision by the Commission in those proceedings would address Davis'
    concerns, as raised in its petitions to deny, and be subject to
    appeal by Davis pursuant to its statutory rights as a party in those
    cases. As to the contractual provisions that permit Clear Channel to
    LMA the six Columbus stations and the two Solar stations, we note
    that, while the LMA provisions were incorporated in the Midwest
    agreement in this instance, the parties were not required to seek
    prior Commission consent before entering into the LMAs and a stay of
    the grant of the Midwest applications would not necessarily stay the
    implementation of the LMA provisions.

    **b. Adverse Impact of a Stay on other Parties and Public Interest
    Considerations**

8.  Though Davis claims that other parties would not be harmed by grant
    of a stay, Cumulus argues to the contrary. Specifically, Cumulus
    notes that the parties have closed the Midwest transaction and
    Cumulus has used the proceeds of the sale (over \$55 million) to
    simultaneously close a multi-market transaction involving 36 radio
    stations in 10 markets. It states that real property and other
    assets have already been transferred from Cumulus to Clear Channel
    and that station personnel, operations and management of the
    stations are now under the control of Clear Channel. To "unravel"
    the transaction, Cumulus believes, would cause undue hardship.

9.  We note at the outset that the parties' decision to finalize the
    Midwest transactions prior to the resolution of the stay request and
    prior to the decision becoming final under the Commission rules is
    at their own peril. 47 C.F.R. §47 C.F.R. §§ 1.102, 1.117; *see also*
    ¶ 8 *supra*. However, the practice of closing a transaction such as
    the one at issue here prior to finality is permissible and not
    uncommon. And we agree with Cumulus that to "unravel" the Midwest
    transaction at this point would, absent a compelling reason,
    unnecessarily unsettle a complex multi-million dollar business
    transaction and the professional lives of the employees of the 22
    Midwest stations, who are already adjusting to a new employer.
    Moreover, there would be a significant effect for Cumulus if it were
    ordered to return funds to Clear Channel, as it has already used
    those funds to pay for 36 stations it previously contracted to buy.
    We see this financial issue having a potential spill-over effect on
    both the employees and listening audience of the 36 stations---if
    not on all of Cumulus' licensed stations. As to the question of
    whether the public interest favors grant of a stay, we believe for
    these same reasons that it does not.

    **c. Likelihood of Success on the Merits**

10. The necessary showing to establish a likelihood of success on the
    merits is governed by the "balance of equities as revealed through
    examination of the other three factors." *Holiday Tours*, 559 F.2d
    at 844. It is clear from the "balancing of the equities" analysis of
    *Holiday Tours* that when the three remaining factors do not favor
    grant of a stay, as is the case here, Davis must make a very
    compelling showing that it is likely to succeed on the merits of its
    petitions. Davis has failed to do so.

11. Davis' showing that it will likely prevail on the merits is, like
    its showing under the other factors, based on the charge that the
    staff failed to engage in reasoned decision making and that this
    failure, coupled with other violations, resulted in a loss of due
    process rights. *See ¶* 6, *supra.* As we explain in greater detail
    here, the staff's conclusion that Davis did not raise a substantial
    and material question of fact regarding Cumulus' basic
    qualifications to be a Commission licensee was well founded. We
    conclude, therefore, that Davis would not likely prevail on the
    merits of its argument to the contrary.

12. In the Emergency Petition, Davis, as noted, incorporates by
    reference prior pleadings where it argued that Cumulus has engaged
    in a pattern of misconduct that renders it disqualified to be a
    Commission licensee. Specifically, Davis argues that (a) there has
    been a disqualifying transfer of control of the Solar stations to
    Cumulus under the terms of the Solar LMA, (b) the proposed Columbus
    LMA will also result in a disqualifying transfer of control from
    Cumulus to Clear Channel, (c) Cumulus misrepresented facts in the
    Solar applications with regard to the Cusseta construction permit,
    and (d) Cumulus misrepresented advertising revenue to the Commission
    in a separate proceeding involving stations in Topeka, Kansas.

13. *Transfer of control allegations.* Regarding the Solar/Cumulus LMA,
    Davis specifically alleges that (1) the 15-year term of the LMA is
    "unreasonably lengthy," (2) up-front payments to Solar and Cumulus'
    reimbursement of Solar's operating expenses are in reality advanced
    payments under the Asset Purchase Agreement pursuant to which
    Cumulus will purchase those stations outright, and (3) Cumulus'
    right to assign its interest in the LMA to any party that is
    qualified to be a broadcast licensee without the licensee's prior
    consent is "illegal."

14. Even if we were to assume that the provisions of this LMA overreach
    and that an unauthorized transfer of control could have occurred, we
    do not believe, in the circumstances of this case and on the state
    of the law as it exists today, that this conclusion would raise a
    substantial question as to basic qualifications of either Cumulus or
    Clear Channel to be a Commission licensee. There is no evidence that
    Cumulus *intended* to violate the Commission's rules. *See Roy M.
    Speer*, 11 FCC Rcd 18393, 18422-23 (1996) (declining to disqualify
    licensee in the absence of record evidence that the licensee
    intended to violate the Commission's rules. First, the Solar LMA
    contains an express retention by Solar of ultimate authority over
    programming, finances, and personnel, as our cases require. *See
    Roy R. Russo, Esq.*, 5 FCC Rcd 7586 (1990).[^8] Thus, absent
    evidence to the contrary, Solar retains authority to discharge its
    obligations as licensee. Lump-sum payments have not been considered
    to demonstrate, by themselves, that an unauthorized transfer of
    control has taken place. *WGPR, Inc.,* 10 FCC Rcd 8140, 8142 (1995)
    (no unauthorized transfer of control under an LMA that provided for
    annual payments of \$1 million over two years, renewable for two
    more years); *Choctaw Broadcasting Corporation*, 12 FCC Rcd 8534,
    8543 (1997); *Southwest Texas Public Broadcasting Council*, 85 FCC
    2d 713, 715 (1981). And, the mere fact that Cumulus' brokerage fee
    and reimbursement of expenses may be the only income to Solar from
    its Columbus stations will not, in itself, support a finding that
    Solar has abdicated its control over finances. *WGPR, Inc*., 10 FCC
    Rcd at 8145. Further, while Davis contends that 15 years is an
    atypically lengthy term for an LMA, it overstates the effect of such
    a term. While the Commission has indicated that it "may" question a
    licensee's control of a station subject to an "unreasonably lengthy"
    LMA, Revision *of Radio Rules and Policies*, 7 FCC Rcd 6387, 6402
    (1992), the term of an LMA is not *per se* indicative of a transfer
    of control. *See Letter to Brian M. Madden, Esq.*, 6 FCC Rcd 1871
    (Mass Media Bur. 1991) (approving time brokerage agreement of ten
    years' duration with year-to-year renewal options thereafter).
    Again, we will address the acceptability of the specific term in
    disposing of the Columbus applications. Finally, as for the
    provision in the Solar LMA giving Cumulus the ability to assign its
    rights under the LMA to any party that is qualified to be a
    broadcast licensee without the licensee's prior approval, Davis
    cites a staff decision for the proposition that it is "illegal."
    *See letter from Clay C. Pendarvis, Chief, Television Branch, Video
    Services Div., Mass Media Bur. to Glencairn, Ltd.,* March 15, 1999
    (1800E1-LS) (similar provision is "objectionable" because it
    "appear\[s\] to deprive the licensee of control over programming by
    taking from the licensee the ultimate power to decide who will
    program the stations . . . .").

15. The Midwest letter determined only that this provision, by itself,
    is insufficient to disqualify Cumulus as a licensee, a determination
    with which we agree. This decision is without prejudice, however, to
    any further action the Bureau deems necessary with regard to this
    provision of the LMA.[^9]

16. Concerning the Columbus LMA, Davis bases its unauthorized transfer
    of control argument on LMA terms which provide that Clear
    Channel (1) will buy from Cumulus non-licensed assets, including
    broadcast equipment and real estate and will obtain the right to
    receive the revenues generated from advertising broadcast on
    stations during programming supplied to the stations by Clear
    Channel, (2) will lease-back to Cumulus the operating assets
    necessary to operate the stations, (3) will make an up-front payment
    to Cumulus of a substantial portion of the purchase price for the
    radio stations, and (4) will pay Cumulus reimbursements of expenses
    only.

17. As with the Solar LMA, even were we to conclude that an unauthorized
    transfer of control had occurred in Columbus, that conclusion would
    not provide a basis for disqualifying Cumulus or Clear Channel in
    the circumstances of this case. The Commission has previously held
    that acquisition of a substantial amount of a station's assets does
    not constitute a premature transfer of control, as long as the
    licensee has a legal right to use the assets to operate the station.
    *See American Music Radio, 10 FCC Rcd 876, 8772-73 (1995)*
    (unauthorized transfer of control has not occurred when a broker,
    pursuant to an LMA, buys station equipment or a site from which to
    operate the station, as long as the licensee has a legal right of
    access to equipment and site). *See also Syracuse Channel 62, Inc.,*
    60 RR 2d 1161, 1166 (1986) ("The fact that another entity holds
    actual title to the equipment being utilized by the station is
    neither noteworthy nor significant.") Here, Cumulus has the right to
    use the assets to operate the station under the terms of its
    contract with Clear Channel. Nor is the financial arrangement at
    issue *per se* impermissible. *WGPR, Inc.*, 10 FCC Rcd 8140,
    8145 (1995) (reimbursement of expenses to the licensee as the sole
    source of funding pursuant to terms of an LMA is a contractual
    arrangement and does not necessarily abdicate the licensee's control
    over finances). Moreover, as with the Solar LMA, under the Columbus
    LMA, Cumulus expressly retains ultimate authority over programming,
    finances, and personnel at its stations. *See Roy R. Russo*, 5 FCC
    Rcd at 7587.

18. *Allegations of lack of candor and misrepresentation.* In the
    petition to deny the Columbus applications, which Davis incorporates
    in its informal objection, Davis argues that Cumulus is unqualified
    to be a Commission licensee because it misrepresented facts and
    lacked candor in not disclosing to the Commission in the Solar
    applications that it had an option to acquire a construction permit
    for an unbuilt FM station in Cusseta, Georgia. The facts alleged by
    Davis do not establish a *prima facie* case on that issue. First, we
    note that our long standing practice suggests that Cumulus in fact
    had no obligation to disclose an un-exercised option to purchase a
    construction permit in answering question 4(g) of the assignment
    application.[^10] However, even assuming arguendo that Cumulus
    incorrectly answered the application question, Davis has "failed to
    make the requisite *prima facie* demonstration of deception and of a
    desire, motive or logical reason to mislead" that is the crux of
    misrepresentation. *See Fox Broadcasting*, 93 FCC 2d 127, 129
    (1983); *Garrett, Andrews, & Letizia, Inc.*, 86 FCC 2d 1172, 1180
    (Rev. Bd. 1981) mod. on other grounds, 88 FCC 2d 620 (1981) (burden
    on petitioner to demonstrate motive to deceive or conceal because
    Commission will not infer improper motive from application errors,
    inconsistencies or omissions accompanied by speculation that lacks
    factual support ). *See also Greater Muskegon Broadcasters, Inc.*,
    11 FCC Rcd 15464 (1996). If Cumulus exercises the option to purchase
    the construction permit, it will have to submit an application for
    Commission approval of the transaction. We think it is unlikely that
    Cumulus would have seen any advantage in concealing from the
    Commission now the existence of an option to purchase an
    authorization that it cannot consummate without first obtaining our
    consent.

19. Davis likewise fails to make a *prima facie* case that Cumulus
    misrepresented facts in an unrelated, pending transaction where it
    proposes to acquire two radio stations in the Topeka, KS area. (File
    Nos. BALH-990713GM-GN). In that case, the parties to the transaction
    are in dispute over the accurate local advertising revenue figures
    for the Topeka radio market. The dispute centers on the discrepancy
    between "estimated figures" reported in BIA Publications, Inc.'s
    Media Access Database and lower "actual revenue figures" submitted
    to the Commission by Cumulus. We note that the "estimated" figures
    reported by BIA are just that: estimates. Therefore, it is not
    uncommon for parties in a pending sales transaction to submit
    "actual revenue figures" for the Commission to review, in addition
    to the figures reported by BIA. Furthermore, in this case the lower
    "actual revenue figures" are supported by detailed and thorough
    documentation. Given those facts, the staff correctly determined in
    the Midwest letter that the issue presented no substantial and
    material question of fact as to Cumulus' qualifications to be a
    licensee.

    **III. Conclusion**

20. We have reviewed the emergency petition for stay and oppositions
    filed in the matter and find that Davis has failed to meet the
    burden necessary to justify grant of a stay under the four-part
    test. Davis failed to show that (1) it has a substantial likelihood
    of succeeding on the merits; (2) it would suffer irreparable harm
    absent a stay; (3) grant of a stay would not harm others; or (4) the
    stay would be in the public interest.

21. ACCORDINGLY, IT IS ORDERED, That the Emergency Petition for Stay
    filed by Davis Broadcasting Inc., of Columbus IS DENIED.

    FEDERAL COMMUNICATIONS COMMISSION

    Magalie Roman Salas

    Secretary

STATEMENT OF CHAIRMAN WILLIAM E. KENNARD

*In the Matter of the Applications of Cumulus Licensing Corp. (Assignor)
and Clear Channel Broadcasting Licenses, Inc. (Assignee),* FCC 00-391

While I vote to affirm the Mass Media Bureau's decision in this case, I
do so because the issue presented for our review is very narrow. That
is: have the petitioners raised a substantial and material question of
fact as to the basic qualifications of Cumulus Licensing Corporation,
the seller of the 22 stations that are being transferred by our grant of
the captioned applications. I do not believe they have done so.

At the same time, I am troubled by the provisions of the Local Marketing
Agreements in the Columbus, Georgia transactionsraised by Davis
Broadcasting as a basis for its opposition. I believe that the rights
and entitlements contained in these agreements, taken together with the
fact that the broker is the prospective buyer of the brokered station,
present a significant risk that an unauthorized transfer of control of
the brokered station may occur.

These are matters, however, that are best addressed in the context of
our consideration of the pending Columbus applications, including the
Petition to Deny those applications filed by Davis Broadcasting.

Statement of Commissioner Gloria Tristani

Re: *In the Matter of the Applications of Cumulus Licensing Corp.
(Assignor) and Clear Channel Broadcasting Licenses, Inc. (Assignee),*
FCC No. 00-391

I write separately to express the narrowness of my concurrence and to
discuss two points. First, I am increasingly concerned about the use of
Local Marketing Agreements (LMA's) to possibly skirt the dictates of 47
U.S.C. §310(d).[^11] Second, that our standards for issuing a stay of
our own Orders are too tightly drawn. At a minimum, the Communications
Act suggests this Commission subject requests for stays that contend the
action sought to be stayed violates the public interest on a lesser
standard than "irreparable harm."[^12] For these reasons, I limit my
concurrence to the result only.

It is well settled that this Commission reviews requests that it stay
its own Orders upon the same standard that is generally required for a
private party seeking interlocutory equitable relief from an Article III
court.[^13] The underlying authority for this approach is set forth in
cases wherein an Article III court was asked to enjoin executive agency
action upon a request by an aggrieved party.[^14] The general standards
for preliminary injunctive relief from a federal court are well known. A
party must demonstrate:

> (1)it has a substantial likelihood of success on the merits; (2) it
> would suffer irreparable harm absent a stay; (3) grant of a stay would
> not substantially harm others; and (4) the stay would be in the public
> interest.

It has long been recognized that The Communications Act of 1934 did not
create new private rights.[^15] Its overarching purpose was to serve the
public interest in communications. Even the grant of a right of appeal
to persons \"aggrieved or whose interests are adversely affected\" by
Commission action set forth in § 402(b)(2) has been determined to vest
standing in private litigants in the first instance as representatives
of the public interest*.*[^16] Broadcast licenses are not private
property,[^17] and the enforcement of public rights rather than the
interests of private property calls for standards that do not unduly
burden this Agency's power to protect such interests. If we err, we
should err on the side of the public interest rather than expediency.

The use of the preliminary injunction standard for granting a stay may
also unnecessarily conflict with our rules which provide the Commission
may stay most types of administrative actions taken on delegated
authority "on its own motion" or "may in its discretion stay the effect
of its action pending disposition of the petition for
reconsideration."[^18] In addition, 5 U.S.C. § 705 confers permissive
authority on this Commission to grant stays of its own Orders pending
judicial review: "When an agency finds that justice so requires, it may
postpone the effective date of action taken by it, pending judicial
review."

Rule 62 of the Federal Rules of Civil Procedure commits stay requests to
the sound discretion of the trial judge and permits it to stay
enforcement of its own orders on several grounds, none of which
explicitly require the strict factual showings that control requests for
preliminary injunctions.[^19] Finally, in other statutory contexts
wherein the government requests mandatory injunctive relief based on
statutory provisions designed to protect the public interest, or
preserve the status quo, it generally need not make the same factual
showing on the second and fourth elements of the test.[^20] Meaningful
allegations that the public interest is not served by Commission action
should cause a lightening of the burden on the petitioner similar to the
lesser burden on government agencies seeking injunctions to protect the
public interest.[^21]

It is also well settled that, \"Courts of equity may, and frequently do,
go much farther both to give and withhold relief in furtherance of the
public interest than they are accustomed to go when only private
interests are involved\".[^22] Speaking directly to the question of
equity jurisdiction involving statutes designed to protect the public
interest, the Supreme Court has said: "For the standards of the public
interest, not the requirements of private litigation, measure the
propriety and need for injunctive relief in these cases."[^23] The
Commission's approach to equity should be no less flexible. Requests for
stays that are rooted in the public interest should not face the
evidentiary hurdle that the public interest be "irreparably harmed" to
obtain a stay. Nor should beneficiaries of Commission action defeat stay
requests based on a wooden application of the "public interest" prong by
merely restating a benefit to the prevailing party as a benefit to the
public.

[^1]: Cumulus filed an opposition to the Emergency Stay Request on
    October 6, 2000.

[^2]: On the basis of its mistaken belief that the Midwest letter
    purports to resolve the Columbus proceeding and because it
    participated in that proceeding, Rainbow/PUSH complains that it
    should have been served with a copy of the Midwest letter. It also
    generally alleges "second class treatment" of "civil rights
    litigants" at the Commission, an allegation that we believe is
    misplaced, but that, in any event, is beyond the scope of this
    adjudicatory proceeding.

[^3]: The six stations in Columbus, GA are WAGH (FM), Fort Mitchell, AL,
    WBFA (FM), Smiths, AL, WGSY (FM), Phenix City, AL, WMLF (AM),
    Columbus, GA, WPNX (AM), Phenix City/Columbus, GA, and WVRK (FM),
    Columbus, GA. (File Nos. BAL/BALH-20000728ACS-ACX).

[^4]: The two Solar stations are WDAK (AM), Columbus, GA and WSTH-FM,
    Alexander City, GA. (File Nos. BAL/BALH-990204EB-EC).

[^5]: In assessing the merits of a petition to deny or informal
    objection, the Commission follows a two-step analysis. First, we
    determine whether the pleading makes specific allegations of fact
    which, if true, would demonstrate that grant of the application
    would be *prima facie* inconsistent with the public interest. If so,
    then we proceed to examine and weigh all of the material before us,
    to determine whether there is a substantial and material question of
    fact requiring resolution in a hearing. *See generally*, 47 U.S.C.
    Sections 309(d)(1) and (2), as explained in *Astroline
    Communications Co. v. FCC*, 857 F.2d 1556 (D.C. Cir. 1988).

[^6]: Davis asserts in its request for stay that it had standing to file
    a petition to deny the Midwest applications. We disagree. Davis did
    not have standing to file a petition to deny because Davis did not
    claim to be a listener or a competitor in any of the markets where
    the Midwest stations are located. It did, of course, have standing
    to file petitions to deny the Solar sale to Cumulus and the Cumulus
    sale to Clear Channel, and it did so, raising various issues that
    the Bureau reviewed to determine whether they affected Cumulus'
    basic qualifications.

[^7]: Davis also states that the decision "must be the product of *ex
    parte* communications." We note in this regard that any *ex parte*
    communications between the Commission and the applicants were
    permissible in the Midwest proceeding until September 11, 2000, when
    Davis filed its informal objection and served it on the applicants.
    *See* 47 C.F.R. § 1.1208, Note 1 Examples. In any event, Davis has
    pointed to no communication that would have been improper under the
    *ex parte* rules, and we are aware of none.

[^8]: *See, e.g.*, Solar LMA, ¶¶ 3, 5.1, and Appendix A.

[^9]: We expect the parties to remove or reform any provision that they
    have reason to believe would be unacceptable to the Commission when
    considered in the context of their particular case.

[^10]: The question on former Form 314 (August 1995 ed.), the form at
    issue here, asks whether the applicant has "other existing
    attributable interest in any broadcast station, including the nature
    and size of such interest." An option is not considered an
    attributable interest under the Commission's rules. 47 C.F.R. §
    73.3555, n.2(f), ("options should not be attributed unless and until
    conversion is effected"), and the staff has not, therefore, required
    that they be reported as "broadcast interests" on application forms.
    While question 15 of Section II requires disclosure of "future
    ownership rights," including "options," that question is only
    relevant to interests in the stations being assigned.

[^11]: In this case the Local Marketing Agreements in the Columbus,
    Georgia transactions contain rights and entitlements that, taken
    together with the fact that the broker is the prospective buyer of
    the brokered station, present a significant risk that an
    unauthorized transfer of control of the brokered station may occur.

[^12]: 47 U.S.C. §§ 309(a) and 310(d)(mandating approval must serve
    \"the public interest, convenience, and necessity.\"); *In re
    Application of Roy M. Speer and Silver Management*, 11 FCC 14684
    (1996)(*sua sponte* stay necessary to ensure allegations of licensee
    misconduct are fully vetted before finalizing transfer)

[^13]: *See e.g. In the Matter of Applications of Cambridge Partners,
    Inc.,* DA 00-1397 (rel. June 23, 2000, Wireless Bureau)*; Price Cap
    Performance Review for Local Exchange Carriers*, 10 FCC Rcd 11991,
    11997 (1995)*; Expanded Interconnection of Local Company
    Facilities,* 8 FCC Rcd 123 (1992).

[^14]: *See e.g. Wisconsin Gas Co. v. FERC*, 758 F.2d 669, 674 (D.C.
    Cir. 1985), quoting *Sampson v. Murray*, 415 U.S. 61, 88 (1974);
    *see also Washington Metropolitan Area Transit Comm. v. Holiday
    Tours, Inc*., 559 F.2d 841, 842-43 (D.C. Cir. 1977)(affirming trial
    court's stay of its own permanent injunction as proper exercise of
    discretion)

[^15]: *See Federal Communications Commission v. Sanders Bros. Radio
    Station*, 309 U.S. 470, 477 (1940); *see* also Benno C. Schmidt,
    Jr*. Freedom of the Press v. Public Access* (New York: Praeger,
    1977) *pp. 157-58*

[^16]: 309 U.S. at 477*.*

[^17]: 309 U.S. at 475 (\"The policy of the Act is clear that no person
    is to have anything in the nature of a property right as a result of
    the granting of a license.\")

[^18]: 47 CFR §1.102

[^19]: *See Fed.R.Civ.Pro. 62.*

[^20]: *See e.g. SEC v. Unifund Sal,* 910 F.2d 1028, 1036, 1039 (2d Cir.
    1990)*; United States v. Siemens Corp.,* 621 F.2d 499 , 505-06 (2d.
    Cir. 1980)

[^21]: This conclusion is bolstered by our rule on "informal
    objections", 47 C.F.R. §73.3587, which plainly authorizes non-party
    submissions to ensure the widest possible opportunity to gather
    facts to protect the public interest. Those filing "informal
    objections" function similarly to \"private attorneys general\"
    under other federal statutory regimes. The role of \"private
    attorneys general\" is not uncommon in modern legislative programs
    and is generally designed to support the protection of the public
    interest. *Trafficante v. Metropolitan Life Ins. Co*., 409 U.S. 205,
    210-211*; see also Newman v. Piggie Park Enterprises*, 390 U.S. 400,
    402 (1968); *Allen v. State Board of Elections*, 393 U.S. 544, 556
    (1969); *Perkins v. Matthews*, 400 U.S. 379, 396 (1971); *J. I. Case
    Co. v. Borak*, 377 U.S. 426, 432 (1964).

[^22]: *Virginian Ry. Co. v. System Federation*, 300 U.S. 515, 552
    (1937); *United States v. San Francisco*, 310 U.S. 16, 30-31
    (1940)(authorizing issuance of injunction at Government\'s request
    without balancing of the equities); *see also* 11 C. Wright, A.
    Miller, & M. Kane § 2948 (2d ed. 1995); 7A. J. Moore & J. Lucas,
    *Moore\'s Federal Practice* ¶ 65.04\[1\] (1983).

[^23]: *Hecht Co. v. Bowles*, 321 U.S. 321, 331 (1944)