Timothy K. Brady, Esq. Mark N. Lipp, Esq.

P.O. Box 71309 Vinson & Elkins, L.L.P.

Newnan, GA 30271-1309 1455 Pennsylvania Avenue, N.W.

Washington, D.C. 20004-1008

Gary S. Smithwick, Esq. Dan J. Alpert, Esq.

Smithwick & Belendiuk, P.C. The Office of Dan J. Alpert

5028 Wisconsin Avenue, N.W., Suite 301 2120 N. 21^st^ Road

Washington, D.C. 20016 Arlington, VA 22201

John F. Garziglia Stephen T. Yelverton, Esq.

Womble Carlyle Sandridge & Rice, P.L.L.C. Yelverton Law Firm, P.L.L.C.

1401 Eye Street, N.W., 7^th^ Floor 601 Pennsylvania Avenue, N.W.,
Washington, D.C. 20554 Suite 900

Washington, D.C. 20004

Re: Liberty Productions, a Limited Partnership

WOXL-FM, Biltmore Forest, NC

Facility ID No. 37242

File No. BAPH-20040116ACT

Application for Consent to Assignment

Dear Counsel:

We have before us the above-captioned application ("Assignment
Application") of Saga Communications of North Carolina, LLC ("Saga"), to
acquire the permit of station WOXL-FM, Biltmore Forest, North Carolina,
from Liberty Productions, a Limited Partnership ("Liberty").[^1]

We also have before us the Petition to Deny ("Sutton Petition to Deny")
filed by Sutton Radiocasting Corporation ("Sutton") on February 20,
2004, and the Petition to Deny and Revoke Permit ("Willsyr Petition")
filed by Willsyr Communications, Limited Partnership ("Willsyr") on
February 23, 2004.[^2] Willsyr also filed an Objection on March 22, 2004
("Willsyr Objection"), which reiterates the arguments in its
Petition.[^3] After reviewing the record,[^4] we find that grant of the
Assignment Application is consistent with the public interest.

**Background.** Liberty was the high bidder in Closed Broadcast Auction
No. 25 for the FM construction permit at Biltmore Forest ("Biltmore
Forest Auction").[^5] Willsyr was a mutually exclusive applicant and
qualified bidder in the auction for the Biltmore Forest permit.[^6] On
May 25, 2001, in its post-auction decision ("*Liberty Order*"),[^7] the
Commission determined that Liberty was fully qualified, accepted its
November 10, 1999, amendment[^8] and, subject to full payment of
Liberty's final bid and timely compliance with all payment procedures,
granted Liberty's application, as amended. The Commission also dismissed
the competing applications.[^9] Subsequently, in a "ready to grant"
public notice released on June 14, 2001, the Mass Media Bureau
("Bureau") announced that the balance of Liberty's winning bid payment
was due by June 19, 2001, and that upon timely payment, the
authorization would be issued.[^10] On July 9, 2001, having received
such payment timely on June 19, 2001, the Commission issued a permit to
Liberty to construct a new FM station on Channel 243C3 at Biltmore
Forest, North Carolina. On August 7, 2001, the Commission released a
Public Notice of the grant of Liberty's construction permit.[^11] As
noted above, the station is now built and licensed; it is on the air
using the call letters WOXL-FM.

Sutton is the licensee of WNCC-FM, Franklin, North Carolina.[^12] In its
Petition to Deny, Sutton requests that the Commission withhold action on
the Assignment Application pending resolution of a June 13, 2001,
Petition for Reconsideration and/or Clarification filed by Sutton and a
September 5, 2001, Petition for Reconsideration filed by Sorenson
Southeast Radio, LLC ("Sorenson").

Willsyr raises various arguments in its pleadings.[^13] First, Willsyr
claims that certain recent statements made by Liberty regarding its
ownership structure are inconsistent with representations made while it
was prosecuting its construction permit application. Second, Willsyr
argues that Ashville Radio Partners, LLC ("Ashville") is the real party
in interest and has *de facto* control of WOXL-FM. Finally, Willsyr
contends that Liberty failed to include with the Assignment Application
agreements and documents material to the sale of WOXL-FM. Liberty and
Saga each filed an Opposition responding to Willsyr's allegations and
asserting that Willsyr does not have standing to petition against the
Assignment Application.[^14] David T. Murray, a limited partner of
Liberty, separately filed an Opposition to Willsyr's Petition.[^15] In
addition, Ashville filed an Opposition responding to Willsyr's
allegations against it.[^16]

**[Sutton Petition to Deny]{.underline}**

In its Petition to Deny, as noted above, Sutton requests that the
Commission withhold action on the Assignment Application pending a final
resolution of a June 13, 2001, Petition for Reconsideration and/or
Clarification filed by Sutton and a September 5, 2001, Petition for
Reconsideration filed by Sorenson. Both pleadings address the
Commission's grant of Liberty's application to construct a new FM
station on Channel 243C3 at Biltmore Forest, North Carolina.[^17] By a
staff letter decision dated December 3, 2004, the Sutton June 13, 2001,
Petition for Reconsideration and/or Clarification was dismissed and the
Sorenson September 5, 2001, Petition for Reconsideration was
denied.[^18] Accordingly, the Sutton Petition to Deny the Assignment
Application is now moot.

**[Willsyr Petition to Deny Assignment and Revoke Permit]{.underline}**

***Standing***. Liberty and Saga argue that Willsyr has not met the
statutory standard for standing set forth in Section 309(d) of the
Communications Act of 1934, as amended (the "Act").[^19] Section
309(d)(1) of the Act restricts to "parties in interest" the universe of
entities that may file a petition to deny a proposed assignment.[^20]
Under this provision of the Act, a party in interest must essentially
meet the same requirements as those required for standing to appeal a
Commission decision to a federal court.[^21] Thus, an entity claiming
standing must allege and prove three elements: (1) personal injury; (2)
the injury is "fairly traceable" to the challenged action; and (3) there
is a substantial likelihood that the relief requested will redress the
injury claimed.[^22]

Nearly four years after grant of the Biltmore Forest FM construction
permit to Liberty, Willsyr asserts standing to petition against the
Assignment Application based on its status as a competitor for the
permit and particularly as a "disappointed bidder" in Closed Broadcast
Auction No. 25 for that permit.[^23] There is no legal basis for this
assertion. Willsyr attempts to bootstrap its standing by relying on
court cases concerning unsuccessful bidders in Commission auctions.[^24]
None of the cases cited by Willsyr involves an unsuccessful bidder
subsequently challenging a sales application.[^25] As such, they are
inapposite. Notably, while Willsyr filed motions to enlarge the issues
against Liberty in the Biltmore Forest construction permit proceeding,
it did not seek timely reconsideration of the *Liberty Order* in which
the Commission granted the permit to Liberty.[^26] Willsyr appealed the
*Liberty Order* directly to the United States Court of Appeals for the
District of Columbia, but the court dismissed the appeal on procedural
grounds.[^27] Willsyr did not challenge that dismissal. The proceeding
concerning the Biltmore Forest construction permit award was concluded
with a final order by the court on March 7, 2003.[^28]

Willsyr also states that its challenge to the Assignment Application is
"based upon its request to *revoke* the permit under review."[^29]
Section 312 of the Act provides the Commission with the discretion to
institute revocation proceedings on its own motion, but does not
specifically create rights in third parties, such as Willsyr, to file
petitions to revoke licenses or permits.[^30] The Commission has
traditionally treated petitions to revoke as informal requests for
Commission action pursuant to Section 1.41 of the Commission's
rules.[^31] Filing a petition to revoke does not enhance Willsyr's
argument that it has standing in the instant proceeding. Moreover, we
find that Willsyr's request for revocation contains no allegations which
raise public interest concerns meriting further consideration.

With respect to the three-pronged standing requirement, traditionally,
in a sales context, injury has been asserted in three ways: (1)
petitioner is a competitor in the market suffering signal interference;
(2) petitioner is a competitor in the market suffering economic harm; or
(3) petitioner is a resident of the station's service area.[^32] Willsyr
does not claim to be a competitor or a resident in the WOXL-FM market.
Further, it does not allege injury based on any competitive harm it
would incur by grant of the Assignment Application. Willsyr claims it
would be "injured" by grant of the Assignment Application because such
action would "impair its right to seek vindication as to the alleged
illegalities in the Biltmore Forest Auction in which it was a bidder, to
seek the revocation of the permit, and to seek a new auction for the
permit."[^33] Willsyr states that it is ready to participate in a new
auction should the Commission deny the Assignment Application *and*
revoke Liberty's permit.[^34]

Willsyr neither demonstrates injury-in-fact nor explains how any alleged
injury is linked to the Assignment Application. Nor does Willsyr show
that any alleged injury would be redressed by a decision not to grant
the Assignment Application. A revocation proceeding under Section 312
would not be precluded by a grant of the Assignment Application. As
noted above, the authority to revoke licenses and permits given to the
Commission pursuant to Section 312 is discretionary and can be initiated
on the Commission's own motion at any time. Even if the Commission were
to initiate a revocation proceeding, Willsyr does not demonstrate how
such action is likely to redress its claimed injury. As Willsyr is
aware, auctioning of the then-pending mutually exclusive Biltmore Forest
construction permit applications, which were filed prior to July 1,
1997, was governed by Section 309(l) of the Act.[^35] In all previous
Auction No. 25 cases involving winning bidder default or
disqualification of applicants subject to Section 309(l), the Commission
has offered the construction permit to the next highest bidder,
concluding that this best comports with statutory requirements.[^36]
Given that Willsyr was the fourth highest bidder for the Biltmore Forest
construction permit, disqualification of Liberty -- entailing revocation
of Liberty's authorization -- is not substantially likely to provide the
remedy Willsyr seeks.

For the foregoing reasons, we conclude that Willsyr does not have
standing to file a petition to deny the Assignment Application.
Nonetheless, we will treat Willsyr's Petition as an informal objection
and consider its arguments in making our determination.[^37]

***Ownership Structure***. Willsyr claims that recent statements made by
Liberty in a state court proceeding regarding its ownership structure
are inconsistent with representations it made while prosecuting its
construction permit application.[^38] Willsyr bases its allegations on
public records obtained in an ongoing civil suit between Liberty's
limited partner, Murray, and its general partner, Valerie Klemmer Watts
("Watts").[^39] Willsyr claims that Watts represented to the North
Carolina state court that Murray "ceased being a 65 percent equity owner
of Liberty beginning in 1990"[^40] and did not report this change to the
Commission. Willsyr argues that where such inconsistent representations
are made, substantial and material questions as to misrepresentation and
lack of candor are raised. As Liberty points out, this issue was
previously addressed and the arguments were rejected by the
Commission.[^41] On December 13, 1999, in the Biltmore Forest
construction permit proceeding, Willsyr had filed a Second Motion to
Enlarge. Therein, Willsyr sought consideration of whether Liberty had
misrepresented its ownership structure, questioning, *inter alia*,
Murray's equity contributions.[^42] The Commission found Willsyr's
motion without merit.[^43]

We find that the claimed new facts proffered by Willsyr and contained in
Watts' Answer and Interrogatory Response to the North Carolina state
court[^44] provide no additional information beyond that which was
available to the Commission during the Biltmore Forest construction
permit proceeding. The issues regarding Liberty's ownership were
resolved by the Commission and are no longer subject to
reconsideration.[^45] Moreover, to the extent that other issues may be
raised in the litigation, the Commission refrains from making decisions
based on mere allegations of misconduct, where those allegations are in
the process of being adjudicated by another agency or court.[^46] The
ongoing civil dispute between Liberty's principals is best addressed by
the state court and not within the scope of this proceeding.[^47]

***Real Party In Interest***. Willsyr contends that the sales documents
provide "newly discovered evidence" that Liberty was not the real party
behind its auction bid for the WOXL-FM permit and thus the Biltmore
Forest Auction was "irreparably tainted."[^48] In addition, Willsyr
claims that Liberty continues to have no control over the station.[^49]
As support for its argument, Willsyr first alleges that Ashville paid
the amount bid at auction and that it will receive most of the profits
from the sale of the station to Saga.[^50] Second, Willsyr argues that,
as the time broker of WOXL-FM, Ashville sub-brokered its time brokerage
agreement to Saga without Liberty's involvement.[^51]

Willsyr's contention that documents submitted in the instant sales
proceeding demonstrate that Liberty was not the real party in interest
behind the auction bid for the Biltmore Forest construction permit is
without merit.[^52] Arguments that Liberty was not the real party in
interest behind its auction application were previously raised.[^53] At
that time, losing bidders for the Biltmore Forest construction permit
argued that Liberty was fronting for Cumulus Broadcasting, Inc. The
Commission considered and rejected these allegations.[^54] Now Willsyr
asserts that the sales documentation demonstrates that Ashville was the
real party in interest behind Liberty's bid because Ashville allegedly
paid "the auction bid price of some two million dollars."[^55] Willsyr
has provided no credible evidence to support such a claim. The
provisions serving as the primary basis for Willsyr's argument are
extracted from the Amended and Restated Term Loan Agreement ("ARTLA"),
executed by Liberty and Ashville on August 21, 2001,[^56] well after
Closed Broadcast Auction No. 25 had concluded and the WOXL-FM permit had
been issued.[^57] Liberty argues that, therefore, Ashville could not
have participated in the auction nor been "behind" Liberty's auction
bid.[^58] Liberty also states that it is fully liable under obligations
created by the loan documents, including the ARTLA.[^59] We find that
Willsyr has not supported its claim that a party other than Liberty was
behind its Biltmore Forest auction bid.

We also find that Willsyr has not substantiated its claim that documents
concerning the distribution of the profits from the sale of WOXL-FM
demonstrate that Ashville has *de facto* control of the station.[^60]
Willsyr cites, for example, the Option Agreement, dated August 21, 2001,
between Liberty and Ashville, giving Ashville the right to purchase
WOXL-FM on certain terms ("Option Agreement"). Commission records
indicate that the Option Agreement was filed with the Commission on
September 19, 2001.[^61] Thus, Willsyr's depiction of this agreement as
"new" evidence is wrong. Pursuant to the Option Agreement, Ashville
exercised its option to purchase the station, then entered into an Asset
Purchase Agreement with Liberty on January 13, 2004 ("APA"). On this
same day, Ashville entered into an Assignment and Assumption Agreement
with Saga, conveying all of its rights, title, and interest in the APA
to Saga. Willsyr offers no evidence that the APA restricted Ashville's
ability to do so. Liberty notes that Ashville, having exercised a valid
option to purchase, was afterward entitled to not only assign its right
to purchase the station, but to dictate the terms of any assumption
agreement.[^62] Ashville's assignment of its right to purchase, and any
profit received thereto, is unrelated to the issue of station control.
In addition, Ashville asserts that the actual consideration due Liberty
at closing is indicative that Liberty remains in control of the
station.[^63] Moreover, Willsyr makes no showing, nor do we find
evidence, that anyone other than Liberty ultimately controls the
station\'s finances, personnel, or programming.[^64]

Willsyr also cites the sub-time brokerage agreement between Ashville and
Saga to assert that Ashville is in control of WOXL-FM, not Liberty.[^65]
Liberty entered into a time brokerage agreement with Ashville on
February 21, 2002 ("Liberty TBA"). Ashville then negotiated a Sub-Time
Brokerage Agreement with Saga, dated November 1, 2002 ("sub-TBA"),
whereby Saga would operate WOXL-FM in conjunction with WISE(AM).[^66]
Willsyr claims the financial benefits under the sub-TBA inure to
Ashville, not Liberty.[^67] Furthermore, according to Willsyr, the
sub-TBA was not filed with the Commission until the submission of the
instant Assignment Application, which demonstrates Liberty's lack of
candor.[^68]

The Commission has expressly found that "TBA arrangements, properly
conditioned, do not by themselves establish that a transfer of control
has taken place."[^69] Willsyr presents no evidence that the terms of
the sub-TBA are not properly conditioned. In addition, Willsyr presents
no evidence that Liberty's actions demonstrate a relinquishment of
control. To the contrary, the record demonstrates that Liberty's consent
was required as a condition to the sub-TBA and that Liberty's written
consent accompanied the filing of the sub-TBA.[^70] Furthermore,
contrary to Willsyr's claim, a copy of the sub-TBA was filed by Liberty
with the Commission on November 26, 2002, and the terms are consistent
with Commission rules and policies.[^71] The evidence presented by
Willsyr does not establish that Liberty has abdicated control of
WOXL-FM, and we find no other basis on which to so find.

***Failure to Submit Relevant Documents***. In its Petition, Willsyr
alleges that Liberty failed to submit documents relevant to the
Commission's review of the sales application and failed to disclose the
total consideration it will receive from the sale of WOXL-FM. On July 9,
2004, the Division sent Liberty an *LOI* seeking information and
documents germane to the assignment of license of WOXL-FM.[^72] Liberty
submitted a response to the *LOI* on July 19, 2004.[^73] Liberty's
response included a "Request for Confidential Treatment of Documents
Under Sections 0.457 and 0.459 of the Rules" concerning the documents
specifically requested by the Division. The Division found that
Liberty's request for confidential treatment of the subject materials
failed to comply with the standards set forth in Section 0.459 of our
rules.[^74] Accordingly, pursuant to Section 0.459(c), on November 9,
2004, we denied Liberty's July 19, 2004, Request for Confidential
Treatment of Documents.[^75] Pursuant to the Commission's 1998 decision,
*Confidential Treatment of Documents*, once the Liberty documents became
publicly available, interested parties had 30 days to file a petition to
deny or supplement a petition currently on file.[^76] Willsyr
supplemented its Petition on December 3, 2004.[^77] Contrary to
Willsyr's allegations, we find that the documents Liberty submitted in
response to the *LOI* are consistent with the Commission's rules and
policies. The record moreover is sufficient now to allow us to perform
our public interest review and determine that grant of the Assignment
Application is consistent with the public interest.

***Conclusion**.* Based on the evidence before us, we find no
substantial and material questions of fact that warrant further inquiry.
In addition, we have reviewed the Assignment Application and find that
Saga is qualified to be the licensee of WOXL-FM and that grant of this
transaction is consistent with the public interest, convenience and
necessity. Accordingly, IT IS ORDERED, that the Petition to Deny
Assignment and Revoke Permit filed by Willsyr Communications, Limited
Partnership IS DISMISSED, and when treated as an Informal Objection to
the Assignment Application and as an informal request to revoke the
permit, IS DENIED. IT IS FURTHER ORDERED, that the Objection filed by
Willsyr Communications, Limited Partnership IS DENIED. IT IS FURTHER
ORDERED, that the Petition to Deny filed by Sutton Radiocasting
Corporation is DISMISSED. IT IS FURTHER ORDERED, that the Assignment
Application[^78] for station WOXL-FM, Biltmore Forest, North Carolina,
from Liberty Productions, a Limited Partnership, to Saga Communications
of North Carolina, LLC IS GRANTED.

Sincerely,

Peter H. Doyle, Chief

Audio Division

Media Bureau

[^1]: On February 20, 2002, after Liberty had filed the Assignment
    Application to assign the WOXL-FM construction permit, Liberty filed
    an application for a license to cover the construction permit (File
    No. BLH-20020220AAL). This license application was granted December
    8, 2004. We are therefore treating the Assignment Application as one
    that proposes assignment of the license.

[^2]: Willsyr filed a Petition for Reconsideration and to Reopen the
    Record on December 30, 2004, in response to a December 3, 2004,
    staff decision (*Letter to Timothy K. Brady*, Ref. No. 1800B3-CNZ
    (MB Dec. 3, 2004)) regarding applications for a construction permit
    (File No. BPH-19870831MI) and license (File No. BLH-20020220AAL)
    ("Petition for Reconsideration"). That proceeding remains pending.
    Although Willsyr did not file its Petition for Reconsideration in
    the instant proceeding, Willsyr requests therein that it be
    "considered in conjunction with" the Willsyr Petition in the instant
    proceeding. We decline to do so.

[^3]: Additional pleadings have been filed in the instant proceeding.
    Liberty filed a Response to Objection on April 2, 2004. Saga filed
    an Opposition to Objection on April 6, 2004. Willsyr filed a
    Consolidated Reply to Oppositions to Objection on April 16, 2004.
    Willsyr filed a Supplement to Objection on July 6, 2004. Liberty
    filed an Opposition to Supplement to Objection on July 19, 2004.
    Saga filed an Opposition to Supplement to Objection on July 21,
    2004. Willsyr filed a Consolidated Reply to Oppositions to
    Supplement on August 2, 2004. Willsyr filed a Further Supplement to
    Objection on August 30, 2004. Liberty and Saga filed a Joint
    Opposition to Further Supplement to Objection on September 21, 2004.
    Willsyr filed a Reply to Joint Opposition on October 1, 2004.
    Willsyr also filed a Statement for the Record on October 20, 2004.
    Liberty filed a Reply to Statement for the Record on October 29,
    2004. Willsyr filed a Reply to Response of Liberty on November 5,
    2004.

[^4]: On July 9, 2004, the Audio Division staff ("Division") sent
    Liberty a letter of inquiry ("*LOI*") seeking information and
    documents germane to the WOXL-FM Assignment Application. Liberty's
    July 19, 2004, submission of the documents specifically requested by
    the Division included a "Request for Confidential Treatment of
    Documents Under Sections 0.457 and 0.459 of the Rules." As discussed
    *infra*, the Division denied Liberty's request for confidentiality.
    Once the documents were made public, Willsyr supplemented its
    Petition on December 3, 2004 ("Willsyr Supplement").

[^5]: *See* "Closed Broadcast Auction No. 25 Closes, 91 Winning Bidders
    in the Auction of 118 Broadcast Construction Permits," *Public
    Notice*, 14 FCC Rcd 17186 (Oct. 12, 1999).

[^6]: *See* File No. BPH-19870831MJ. The other mutually exclusive
    applicants that qualified as bidders to compete in the Biltmore
    Forest Auction were Biltmore Forest Broadcasting FM, Inc., File No.
    BPH-19870831MK ("BF Broadcasting"); Skyland Broadcasting Co., File
    No. BPH-19870831ML; and Orion Communications Limited, File No.
    BPH-19870901MI ("Orion").

[^7]: *Liberty Productions, L.P.*, 16 FCC Rcd 12061 (2001).

[^8]: Liberty's amendment consisted, in part, of minor changes to its
    technical proposal, including a new transmitter site and an upgrade
    from a Class A to a Class C3 facility.

[^9]: *Liberty Order*, 16 FCC Rcd at 12095.

[^10]: "FCC Announces It Is Prepared to Grant FM Broadcast Construction
    Permit for Biltmore Forest, North Carolina After Final Payment Is
    Made," *Public Notice*, 16 FCC Rcd 11884 (June 5, 2001) (corrected
    by a Correction Public Notice released June 14, 2005, to specify
    that the deadline for submission of Liberty\'s lump sum final
    payment would be June 19, 2001).

[^11]: *See* "Broadcast Actions," *Public Notice*, Report No. 45043
    (Aug. 7, 2001).

[^12]: Sutton argues that the WOXL-FM authorization for Channel 243C3 is
    in conflict with a minor modification application for Station
    WNCC-FM filed by Sorenson Southeast Radio, LLC, the former station
    licensee. *See* File No. BPH-20010301ABB.

[^13]: We consider all arguments raised in the Willsyr Petition, Willsyr
    Objection, and Willsyr Supplement.

[^14]: *See* Opposition to Petition to Deny Assignment and to Revoke
    Permit filed by Liberty on March 18, 2004 ("Liberty Opposition");
    Opposition to Petition to Deny Assignment and Revoke Permit filed by
    Saga on March 19, 2004 ("Saga Opposition").

[^15]: *See* Opposition to Petition to Deny and to Revoke Permit filed
    by David T. Murray ("Murray") on March 18, 2004 ("Murray
    Opposition").

[^16]: Opposition to Petition to Deny filed by Ashville on March 8, 2004
    ("Ashville Opposition").

[^17]: *See* FCC File No. BPH-19870831MI. Sutton also filed an Informal
    Objection on May 10, 2002, objecting to the grant of the WOXL-FM
    license application. *See* File No. BLH-20020220AAL.

[^18]: In addition, in that same decision, the WNCC-FM modification
    application, File No. BPH-20010301ABB, was dismissed and the Sutton
    Informal Objection was denied. On January 7, 2005, Sutton filed an
    Application for Review of the staff decision, and it remains
    pending.

[^19]: 47 U.S.C. § 309(d)(1). *See* Liberty Opposition at 1-3; Saga
    Opposition at 3-6.

[^20]: 47 U.S.C. § 309(d)(1). *See also* 47 C.F.R. § 73.3584(a); *MCI
    Communications Corp.*, 12 FCC Rcd 7790, 7794 (1997).

[^21]: *See* 47 U.S.C. § 402(b). *See also MCI Communications Corp.*, 12
    FCC Rcd at 7794; *Standards for Determining the Standing of a Party
    to Petition to Deny a Broadcast Application*, 82 F.C.C.2d 89, 95-96
    (1980); *Office of Communications of the United Church of Christ v.
    FCC*, 359 F.2d 994 (1966).

[^22]: *See, e.g., Lujan v. Defenders of Wildlife*, 504 U.S. 555 (1992);
    *MCI Communications Corp.*, 12 FCC Rcd at 7794; *Conn-2 RSA
    Partnership*, 9 FCC Rcd 3295, 3297 (1994). In an assignment of
    license proceeding, petitioner must allege and prove: (1) it has
    suffered or will suffer injury-in-fact; (2) there is a causal link
    between the proposed assignment and the injury-in-fact; and (3)
    redressability, meaning that not granting the assignment would
    remedy the injury-in-fact.

[^23]: Willsyr Petition at 5-7. In addition, Willsyr asserts that the
    Commission's decision in the *1998 Biennial Regulatory Review*
    confers standing. Willsyr Consolidated Reply to Oppositions filed
    March 30, 2004 at 4 ("Willsyr Reply") (citing *1998 Biennial
    Regulatory Review - Streamlining of Mass Media Applications, Rules,
    and Processes*, 13 FCC Rcd 23056, 23075, 23078, 23084-85 (1998)). We
    reject that assertion. That decision does not discuss standing
    requirements. Instead, the portions of the item cited by Willsyr
    address public access to applications.

[^24]: Willsyr Petition at 7 (citing *High Plains Wireless, LP v. FCC*,
    276 F.3d 599 (2002) ("*High Plains*") (finding that appellant had
    standing to appeal the award of the block licenses for which it had
    bid); *US Airwaves, Inc. v. FCC*, 232 F.3d 227 (2000) (finding that
    appellant had standing to challenge rules subsequently adopted by
    the Commission, but only where the rules represented post-auction
    revisions to the financing options available to the high bidders in
    the auction in which the appellant had participated); *DirectTV,
    Inc. v. FCC*, 110 F.3d 816 (1997) (finding that appellant had
    standing to challenge an auction rule that had placed the appellant
    at a substantial competitive disadvantage vis-à-vis other bidders)).

[^25]: For example, in *High Plains*, the appellant complained that it
    was injured because the Commission awarded the block license for
    certain broadband personal communications services (PCS) to Mercury,
    which had violated the anti-collusion rule, instead of holding a new
    auction. The court found that appellant, as an unsuccessful bidder,
    had standing to appeal the award of the block licenses for which it
    had bid. The court found that the appellant lacked standing to
    challenge the award to the successful bidder of other licenses for
    which it did not compete. *See High Plains*, 276 F.3d at 605.

[^26]: *See Liberty Order*, 16 FCC Rcd 12061 (2001)*.* Requests for stay
    of the *Liberty Order* were filed by unsuccessful bidders BF
    Broadcasting and Orion, but were denied by the Commission in
    *Order*, FCC 01-276 (rel. Oct. 26, 2001).

[^27]: Willsyr's pleadings were dismissed as prematurely filed. *See*
    *Orion Communications Limited v. FCC*, 2002 WL 335537 (D.C. Cir.
    Jan. 7. 2002) (finding that Willsyr lacked standing to bring a
    motion to dismiss because it was not a party to the case).

[^28]: *See* *Biltmore Forest Broadcasting FM, Inc. v. FCC*, 321 F.3d
    155 (D.C. Cir. 2003), *cert denied*, 540 U.S. 981 (2003) (affirming
    the *Liberty Order*, finding that the substantive arguments raised
    in timely appeals of the *Liberty Order* by BF Broadcasting and
    Orion lacked merit). *See also Radio Para La Raza*, 40 F.C.C.2d 1102
    (1973) (citing *Greater Boston Television Corp. v. FCC*, 463 F.2d
    268 (1971) (noting that the courts have a strong policy in favor of
    administrative finality, and have held that proceedings that have
    become final will not be reopened unless there has been fraud on the
    agency's or the court's processes)).

[^29]: Willsyr Reply at 8.

[^30]: 47 U.S.C § 312. *See also Manning Telecasting, Inc.*, 1986 WL
    292657 (Feb. 14, 1986); *Conn-2 RSA Partnership*, 9 FCC Rcd at 3298,
    n.7 (citing *City of Kerrville v. Dugosh Flying Service, Inc*., 99
    F.C.C.2d 124, 126 (1984); *Puerto Rican Media Action and Educational
    Council, Inc. v. Educational Broadcasting Corp.*, 51 F.C.C.2d 1178
    (1975)).

[^31]: 47 C.F.R. § 1.41. *See Conn-2 RSA Partnership*, 9 FCC Rcd at
    3298, n.7.

[^32]: *See Office of Communications of the United Church of Christ v.
    FCC*, 359 F.2d 994 (1966); *FCC v. Sanders Brothers Radio Station*,
    309 US 470 (1940).

[^33]: Willsyr Reply at 9.

[^34]: *Id.* at 6-7. *See High Plains*, 276 F.3d at 605.

[^35]: 47 U.S.C § 309(l).

[^36]: *See, e.g., Delta Radio, Inc.*, 18 FCC Rcd 16889 (2003), *aff'd*,
    387 F.3d 897 (D.C. Cir. 2004). *See* *also* *Implementation of
    Section 309(j) of the Communications Act -- Competitive Bidding for
    Commercial Broadcast and Instructional Television Fixed Service
    Licenses*, 13 FCC Rcd 15920, 15952-53 (1998).

[^37]: 47 C.F.R. § 73.3587.

[^38]: Willsyr Petition at 7-12.

[^39]: *See Murray v. Watts*, Case Number CVS 03-978, Superior Court,
    Buncombe County, North Carolina (selected portions of record
    provided with Willsyr Petition at Exhibits 2-3).

[^40]: Willsyr Petition at 8.

[^41]: Liberty Opposition at 4-10 (citing *Liberty Order*, 16 FCC Rcd at
    12075-77, 81-84).

[^42]: *See Liberty Order*, 16 FCC Rcd at 12075-76.

[^43]: *Id.* at 12075.

[^44]: *See* Willsyr Petition at Exhibits 1-3.

[^45]: We further note that in his Opposition, Murray expressly states
    that he is a limited partner with a 65 percent equity interest in
    Liberty. Murray Opposition at 2.

[^46]: *See Policy Regarding Character Qualifications in Broadcast
    Licensing*, 5 FCC Rcd 3252, 3252-53 (1990), *recon. granted in
    part*, 6 FCC Rcd 3448 (1991) (citing *Policy Regarding Character
    Qualifications in Broadcast Licensing*, 102 F.C.C.2d 1179, 1204-05
    (1986)).

[^47]: The Commission defers to courts of competent jurisdiction
    regarding private contractual disputes and the interpretation and
    enforcement of contracts for the sale of a broadcast station. *See,
    e.g., Kidd Communications*, 19 FCC Rcd 13584, 13589 (2004).

[^48]: Willsyr Reply at 8; Willsyr Supplement at 6.

[^49]: Willsyr Reply at 8.

[^50]: *Id.* at 34.

[^51]: Willsyr Petition at 15.

[^52]: Willsyr Supplement at 5-6.

[^53]: *Liberty Order*, 16 FCC Rcd at 12074-75.

[^54]: *Id.*

[^55]: Willsyr Supplement at 5.

[^56]: Willsyr contends that the ARTLA was entered into on June 19,
    2001. Willsyr Supplement at 6. Liberty explains that Willsyr's error
    in this regard is understandable because of a typographical error in
    the Renewed and Extended Promissory Note at Section (a). Liberty
    Opposition to Supplement at 2. The copy of the ARTLA submitted to
    the Commission is dated August 21, 2001.

[^57]: *See supra* notes 5 and 10.

[^58]: Liberty Opposition to Supplement at 4-6. As noted above, the
    *Liberty Order* was released on May 25, 2001, and the WOXL-FM permit
    was issued on July 9, 2001.

[^59]: Liberty Opposition to Supplement at 2. Ashville also adds that
    Willsyr's contention that Liberty "fronted" for Ashville in the
    auction cannot possibly be correct given that Ashville did not exist
    until after the auction concluded. Ashville Opposition at 3.

[^60]: Willsyr Petition at 17; Willsyr Reply at 34.

[^61]: Willsyr Petition at 14.

[^62]: Liberty Opposition at 12.

[^63]: Ashville Opposition at 4.

[^64]: *See, e.g., WGPR, Inc.*, 10 FCC Rcd 8140, 8145 (1995).

[^65]: Willsyr Petition at 15.

[^66]: Ashville also separately entered into a TBA with Saga whereby
    Saga would provide programming to WISE(AM). The application to
    assign the license for station WISE(AM) from Ashville to Saga was
    granted on November 1, 2004 (File No. BALH-20040116ADC). The parties
    consummated the transaction on January 10, 2005.

[^67]: Willsyr Petition at 15.

[^68]: *Id.* at 16.

[^69]: *Secret Communications II, LLC*, 18 FCC Rcd 9139, 9145 (2003)
    (citing *Solar Broadcasting Company, Inc.*, 17 FCC Rcd 5467, 5486
    (2002) (licensee's participation in LMA does not *per se* constitute
    a premature transfer of control).

[^70]: Ashville Opposition at 3-4. The Declaration of John Melko states
    that Liberty's consent was required as a condition of the sub-TBA.
    *See id.* at Exhibit B.

[^71]: *See* Sub-Time Brokerage Agreement for WOXL-FM, Biltmore Forest,
    North Carolina between Ashville and Saga, dated November 1, 2002,
    submitted on November 25, 2002 by Liberty pursuant to 47 C.F.R. §
    73.3613.

[^72]: *See supra* note 4.

[^73]: *Letter from Timothy K. Brady, Esq.*, filed on July 19, 2004
    ("Response").

[^74]: 47 C.F.R. § 0.459.

[^75]: *See Letter to Timothy K. Brady, Esq., et al.*, Ref. No.
    1800B3-CNZ (Nov. 9, 2004).

[^76]: *See Confidential Treatment of Documents*, 13 FCC Rcd 24816
    (1998).

[^77]: Liberty filed an Opposition to Supplement to Petition to Deny on
    December 20, 2004. Willsyr filed a reply on December 30, 2004. In
    its Supplement, Willsyr again asserts that the documents submitted
    in response to the *LOI* demonstrate that Liberty has never assumed
    financial risk for WOXL-FM. As discussed above, we have concluded
    otherwise. Willsyr raises no issue with respect to the consideration
    Liberty will receive from the sale.

[^78]: *See supra* note 1.