**DA 06-1546**

In Reply Refer To:

1800B3-LD

Released: July 31, 2006

Mr. Steven Wendell

17 Knightsbridge Court

Nanuet, NYS 10954

In re: Long Island Multimedia, LLC

WLIE(AM), Islip, New York

Facility ID: 37805

File No. BAL-20060410ABY

Dear Mr. Wendell:

We have before us an application ("Application") to assign the license
of Station WLIE(AM), Islip, New York,[^1] from Long Island Multimedia,
LLC ("LIM"), to NYStar, Inc. Steven Wendell ("Wendell") filed an
Informal Objection ("Objection") to the Application on May 12, 2006.
Counsel for LIM and NYStar filed an Opposition to the Informal Objection
("Opposition") on May 30, 2006. For the reasons set forth below, we deny
the Objection and grant the Application.

**Background*.*** Wendell is the permittee of new unbuilt Station
WXNH(AM), Jaffrey, New Hampshire.[^2] Wendell submitted to the
Commission on April 17, 2006, an application for minor modification of
the WXNH(AM) construction permit.[^3] On April 28, 2006, LIM submitted
an informal objection to Wendell's application for minor modification,
alleging that the proposed WXNH(AM) facilities violate Section 73.37(a)
of the Commission's Rules (the "Rules")[^4] and would receive prohibited
contour overlap from WLIE(AM). In his Objection to the Application,
Wendell indicates that the WXNH(AM) construction permit "does not have a
prohibited overlap to the WLIE licensed facilities and that the WLIE
licensed facilities ... and its construction permit ... have been
incorrectly granted due to inconsistencies with the WLIE engineering
information submitted to the FCC." Wendell suggests that the Commission
should withhold making a decision on the Application "until the LIM
informal objection and all other issues of the informal objection are
resolved by the FCC."

**Discussion*.*** *Procedural Matter.* In the Opposition, LIM and NYStar
claim that the Objection was not timely because it was served after it
had been filed and contained no proof of service.[^5] Under Section
1.47(b) of the Rules, "service shall be made ... on or before the day on
which the document is filed."[^6] The Objection was filed with the
Commission on May 12, 2006. LIM was served the Objection via mail on May
20, 2006,[^7] and received it on May 22, 2006. Though the Objection
should have been served on or before May 12, 2006, neither LIM nor
NYStar was harmed by Wendell's tardy service. LIM and NYStar did receive
the Objection, and we are considering their Opposition to that pleading.
Accordingly, no further action on this claim is warranted. Similarly,
even though no proof of service accompanied the Objection, Section
1.47(g) of the Rules states that "failure to make proof of service will
not affect the validity of the service."

**Informal Objection***.* Informal objections must contain adequate and
specific factual allegations sufficient to warrant the relief
requested.[^8] Wendell's Objection is unrelated to the WLIE(AM)
Application. The only issues raised in the Objection concern the
acceptability of the WXNH(AM) modification application. With respect to
Wendell's allegation that WLIE(AM)'s license (BL‑20040212ABX) and
subsequent modification application (BP-20041105ABM) were "incorrectly
granted," the grants of both are long since final.[^9] We reject
Wendell's untimely and collateral attempt to challenge those
actions.[^10]

**Strike Petition***.* LIM and NYStar also refer to the Objection as a
"strike petition that warrants at least admonishment,"[^11] claiming
that the Objection was "obviously filed for the purpose of 'blocking,
impeding, or delaying the grant of an application.'"[^12] The
Commission's strike petition policy aims to curb abuses of the
Commission's processes.[^13] Before the issue of a strike petition can
be raised, the party requesting such issue must make a strong threshold
showing that the primary and substantial purpose behind the licensee's
action is delay.[^14] LIM and NYStar do not meet that threshold here,
claiming only that there was an absence of any reasonable basis for
Wendell's allegations. They also speculate that the

filing of the Objection was economically motivated.[^15] While those are
factors to be taken into account when determining if a strike petition
exists, those bare allegations are insufficient to meet the threshold
showing needed, and no further action on this claim is warranted.[^16]

**Conclusion/Actions*.*** We find that Wendell's Objection contains
neither adequate nor specific factual allegations sufficient to warrant
further inquiry regarding the assignment of WLIE(AM). Accordingly, the
May 12, 2006, Informal Objection from Steven Wendell IS DENIED and the
application (File No. BAL-20060410ABY) of Long Island Multimedia, Inc.,
and NYStar, Inc., for consent to assignment of license for Station
WLIE(AM), Islip, New York, IS GRANTED.

[]{.mark}

[]{.mark}

Sincerely,

Peter H. Doyle

Chief, Audio Division

Media Bureau

cc: Long Island Multimedia, LLC

NYStar, Inc.

Denise B. Moline, Esq.

Peter Tannenwald, Esq.

[^1]: File No. BAL-20060410ABY.

[^2]: File No. BNP-20001023ACT.

[^3]: File No. BMP-20060417AAA.

[^4]: 47 C.F.R. § 73.37(a).

[^5]: 47 C.F.R. § 1.47(g) lists the requirements for valid proof of
    service.

[^6]: 47 C.F.R. § 1.47(b).

[^7]: The Objection was postmarked May 20, 2006. 47 C.F.R. § 1.47(f)
    states that "service by mail is complete upon mailing."

[^8]: *See Area Christian Television, Inc.*, 60 RR 2d 862 (1986).

[^9]: The license and modification applications were granted on May 11,
    2004, and March 18, 2005, respectively.

[^10]: *See*, e.g., *Letter to Jerrold Miller, Esq.*, 21 FCC Rcd 2200
    (MB 2006) (declined to consider untimely collateral challenge to
    grant of assignment application since no fraud on Commission's
    processes and challenged result not unconscionable); *In the Matter
    of Applications of Morningstar Educational Network*, 18 FCC Rcd
    19249 (2003) (challenge to grant of protected service area rejected
    as untimely because raised nearly two years later).

[^11]: *Opposition* at 1.

[^12]: *Id.* at 3.

[^13]: *See* *Radio Carrollton*, 69 FCC 2d 1138, 1146 (1978).

[^14]: *Id.* at 1147.

[^15]: *Id.* at 1146. (The factors the Commission take into account to
    determine if a licensee's actions constitute a strike petition are:
    statements by the licensee's principals or officers admitting the
    obstructive purpose, withholding information relevant to disposition
    of the requested issues, the absence of any reasonable basis for the
    adverse allegations in the petition, economic motivation indicating
    a delaying purpose, and other conduct of the licensee. LIM and
    NYStar provide no evidence regarding any of these -- or any other
    pertinent -- factors.)

[^16]: *See* *In the Matter of Application of Hispanic Information and
    Telecommunications Network, Inc.*, 19 FCC Rcd 2829 (Feb. 19, 2004)
    (for allegations of a strike pleading to be considered, there must
    be a demonstrable showing of abuse of the Commission's processes);
    *In re Application of American Mobilphone, Inc., and RAM
    Technologies, Inc.*, 10 FCC Rcd 12,297 (July 21, 1995) ("Although
    Capitol has failed to raise a substantial and material question of
    fact, we find that its petition is not so frivolous as to constitute
    a 'strike' pleading"); *In re Applications of Utica Telephone
    Company, Memorandum Opinion and Order*, 5 FCC Rcd. 2791 (April 20,
    1990) (an economic motivation to delay the proceeding, on its own,
    would not establish a prima facie case of having filed the pleadings
    with the sole purpose of delaying the proceeding).