**DA 06*-*2086**

In Reply Refer to:

1800B3-LAS/JP

Released: October 25, 2006

Denise B. Moline, Esq.

1212 So. Naper Blvd, Suite 119-215

Naperville, IL 60540

In re: Lyle Robert Evans

(New), Escanaba, MI

Facility ID: 160560

File No. BNP-20050118AKH

(New), Houghton, MI

Facility ID: 160693

File No. BNP-20050118AKM

(New), Howard, WI

Facility ID: 161042

File No. BNP-20041019AFF

(New), Rhinelander, WI

Facility ID: 160855

File No. BNP-20041029AEJ

**Request for Leave to Amend**

**Applications for Construction Permit**

Dear Ms. Moline:

We have before us Jeffrey F. Jaekels's ("Jaekels") April 20, 2006,
Request for Leave to Amend the above-captioned applications (the
"Applications"). As Special Temporary Administrator for the Estate of
Lyle Robert Evans (the "Estate"), Jaekels seeks to substitute the
court-appointed representative of the Estate of Lyle Robert Evans,
Steven A. Roy ("Roy"), for Lyle Robert Evans ("Evans") as the
applicant.[^1] For the reasons discussed below, we grant the Request for
Leave to Amend the Applications.

**[Background.]{.underline}** On November 6, 2003, the Media Bureau and
the Wireless Telecommunications Bureau jointly released a Public Notice
announcing a January 26-30, 2004, AM auction filing window for
applications for new AM stations and major modifications to authorized
AM facilities.[^2] Six of the Form 175 applications that Evans had filed
during the AM auction filing window were determined to be non-mutually
exclusive.[^3] Evans thereafter timely filed six long form (Form 301)
applications, including the Applications.[^4] Subsequently, on March 6,
2006, Evans passed away.[^5] Jaekels was then appointed Special
Temporary Administrator of Evans's Estate on March 9, 2006. On May 22,
2006, Roy was appointed personal representative of Evans's Estate by
James R. Queoff, Court Commissioner for the Brown County, Wisconsin,
Circuit Court.[^6]

In his Request for Leave to Amend the pending applications, Jaekels
contends that: (1) amending the Applications is similar to an
involuntary assignment of a license or permit pursuant to Section
73.3541 of the Commission's Rules (the "Rules");[^7] (2) Commission
precedent recognizes a change in control resulting from the death of an
applicant as involuntary and permits amendment of the application,
instead of requiring dismissal of the application as a major change; (3)
allowing the Applications to be amended will not prejudice any other
party involved in AM Auction No. 84 because each of the Applications is
not mutually exclusive with any other proposal filed in the window; and
(4) amending the Applications is in the public interest because it will
avoid delay in deploying new service to the communities covered by the
applications.

**[Discussion.]{.underline}** The Commission has long recognized that an
involuntary assignment of license or permit to the personal
representative of a deceased licensee or permitee is in the public
interest, and provides a procedure to accommodate this process through
the filing of a *pro* *forma* Form 316 application pursuant to Section
73.3541 of the Rules. While there is no corresponding rule addressing
the related case of the death or legal disability of an individual
applicant or a controlling shareholder in a pending application, we find
that Commission precedent indicates that similar treatment is
appropriate.[^8]

Typically, a change in the controlling interest of an applicant would be
considered a major change.[^9] An amendment to a pending application
which would effect such a major change would not be accepted.[^10]
However, the death of either an individual applicant or an applicant's
controlling shareholder, necessitating the assignment to a personal
representative of the deceased, traditionally constituted good cause for
amendment in the context of comparative hearings.[^11] In cases
involving both individual[^12] and corporate applicants,[^13] the
Commission has treated such an amendment as minor, even where the
decedent had held a controlling interest in the applicant. More
recently, under a circumstance similar to that presented by Jaekels, an
auction applicant was allowed to amend its pending pre-auction Form 175
application upon the death of its sole shareholder, due to the
involuntary nature of the transfer of control.[^14]

We therefore, find it in the public interest to allow amendment of the
pending AM construction permit Applications to replace Lyle Robert Evans
with Steven A. Roy, as the court-appointed personal representative for
the Estate. In reaching this conclusion, we afford considerable weight
to the fact that no other party will be prejudiced by the amendment
because each of the Applications was determined to be non-mutually
exclusive. We also find it in the public interest to avoid delay in
implementing new service to these four communities and therefore grant
Jaekels's Request for Leave to Amend the Applications. Jaekels must file
the appropriate amendments through the Media Bureau's CDBS online
electronic forms system.

**[Conclusion/Actions]{.underline}**. For the above stated reasons,
Jaekels's Request for Leave to Amend the above captioned applications to
replace Lyle Robert Evans with Steven A. Roy, court-appointed
representative of the Estate of Lyle Robert Evans, as the applicant, is
GRANTED.

Sincerely,

Peter H. Doyle

Chief, Audio Division

Media Bureau

[^1]: The April 20, 2006, Request for Leave to Amend was supplemented on
    June 9, 2006.

[^2]: "AM New Station and Major Modification Auction Filing Window;
    Minor Modification Application Freeze," *Public Notice*, 18 FCC Rcd
    23016 (MB/WTB 2003).

[^3]: *See* "AM Auction No. 84 Singleton Applications," *Public Notice*,
    19 FCC Rcd 16655 (MB/WTB 2004); "AM Auction No. 84 Singleton
    Applications," *Public Notice*, 19 FCC Rcd 22569 (MB/WTB 2004).

[^4]: The other two applications are not at issue in this letter
    decision. One construction permit was granted before Evans's decease
    (Escanaba, Michigan, File No. BNP-20041029AEI), and the other
    application was dismissed at the request of Evans's Estate
    (Ashwaubenon, Wisconsin, File No. BNP-20050118AKU). Pursuant to an
    involuntary *pro forma* assignment application granted on June 14,
    2006, Roy was assigned the licenses of the two stations previously
    licensed to Evans: WRMO(FM), Millbridge, Maine (File No.
    BALH-20060605AAM) and KHAM(FM), Britt, Iowa (File No.
    BALH-20060605AAN).

[^5]: Pursuant to an involuntary *pro forma* assignment application
    granted on June 14, 2006, Roy was assigned the licenses of the two
    stations previously licensed to Evans: WRMO(FM), Millbridge, Maine
    (File No. BALH-20060605AAM) and KHAM(FM), Britt, Iowa (File No.
    BALH-20060605AAN).

[^6]: Domiciliary Letters, Form PR-1906, Case No. 06PR57, State of
    Wisconsin, Circuit Court, Brown County, May 22, 2006.

[^7]: 47 C.F.R. § 73.3541.

[^8]: *See, e.g., Rose Broadcasting Co*., 68 FCC 2d 1242, 1246-47
    (1978).

[^9]: *See* 47 C.F.R. § 73.3571(a)(1) (major change in ownership occurs
    when the original party or parties to the application do not retain
    more than 50 percent ownership interest in the application as
    originally filed).

[^10]: *See* 47 C.F.R. § 73.3571(b)(2). Prior to the adoption of
    competitive bidding rules, broadcast application processing rules
    provided that a new file number would be assigned to an application
    for a new station when it was amended prior to designation for
    hearing so as to result in a transfer of control, for which, in the
    case of an existing licensee or permitee, an application would have
    to be filed on a Form 315. Sections 73.3540 and 73.3541 of the Rules
    required that an application for transfer of a controlling interest
    in a licensee was to have been filed on a Form 315, except for pro
    forma or involuntary transfers of control, which are filed on a Form
    316. Thus, a transfer to a personal representative, being
    involuntary, was exempt from the rule requiring a new file number.
    *See, e.g*., 47 C.F.R § 73.3573(b) (1998). *See also* *Richardson
    Broadcasting Group*, 3 FCC Rcd 5453 (MMB 1988) (involuntary transfer
    of control due to death of original applicant does not require
    assignment of new file number to pending application).

[^11]: *See* *Rose Broadcasting Co*., 68 FCC 2d at 1247 (amendment
    transferring deceased stockholder's 51 percent interest in applicant
    to personal representative satisfies "good cause" test for
    acceptance); *Peoples Broadcasting Corp*., 92 FCC 2d 133, 144-45
    (Rev. Bd. 1983) (amendment substituting one stockholder for a
    deceased stockholder accepted for reporting purposes only under 47
    C.F.R. § 1.65); *Triple C Broadcasting Corp*., 12 FCC 2d 503, 504
    (Rev. Bd. 1968) (change in the composition of an applicant does not,
    of itself, preclude acceptance of the amendment, provided good cause
    is shown).

[^12]: *See* *Richardson Broadcasting Group*, 3 FCC Rcd at 5453 (wife
    and executrix of deceased applicant substituted for individual,
    deceased applicant on application for new FM station).

[^13]: *See* *Azalea Corp*., 38 FCC 2d 95 (Rev. Bd. 1972); *Creek County
    Broadcasting Co*., 31 FCC 2d 462 (Rev. Bd. 1971) (corporate
    applicant permitted to amend application after death of controlling
    stockholder).

[^14]: *Letter to Delaney M. DiStephano, Esq. from Margaret Wiener*, 19
    FCC Rcd 2691 (WTB 2004) (involuntary transfer of control due to
    death of an applicant's controlling interest does not constitute a
    major amendment).