> **DA 08-2251**

*In Reply Refer to:*

1800B3-MJW

> Released: October 8, 2008

Finger Lakes Alliance for Independent Media

c/o Barry D. Wood, Esq.

Wood, Maines and Nolan, Chtd.

1827 Jefferson Pl., NW

Washington, DC 20036

Citadel Broadcasting Co.

c/o Nancy Ory, Esq.

Leventhal, Senter & Lerman, PLLC

2000 K Street, NW, Suite 600

Washington, DC 20006

Saga Communications of New England, LLC

c/o Gary Smithwick, Esq.

Smithwick and Belendiuck, PC

5028 Wisconsin Ave., NW, Suite 301

Washington, DC 20016

> In re. **Citadel Broadcasting Co**.
>
> **Saga Communications of New England, LLC**
>
> WKRT(AM), Cortland, New York
>
> Facility ID No. 9428
>
> File No. BAL-20061101ACS
>
> WIII(FM) Cortland, New York
>
> Facility ID No. 9427
>
> File No. BALH-20061101ACT
>
> **Applications for Assignment of Licenses**
>
> **Petition for Reconsideration**

Dear Counsel:

We have before us a Petition for Reconsideration (the "Petition"), filed
by the Finger Lakes Alliance for Independent Media ("FLAIM"),[^1]
seeking rescission of the Commission's grant of the referenced
applications (the "Applications"). For the reasons set out below, we
dismiss the Petition.

**Background**. On December 27, 2006, the Commission conditionally[^2]
granted the Applications for assignment of the licenses of Stations
WKRT(AM) and WIII(FM) (the "Cortland Stations") from Citadel to Saga.
The parties consummated the assignment on September 1, 2007. FLAIM
requests the Commission to reconsider its grant of the Applications and
rescind its consent to the assignments.[^3]

FLAIM describes itself as an unincorporated association of individuals
who reside and work in the Ithaca, New York, market.[^4] The essence of
FLAIM's Petition is that -- although Saga complies with the station
limits in Section 73.3555(a)(1) of the Commission's Rules[^5] (the
"Local Radio Ownership Rule") -- Saga's operation of five stations in
the Ithaca market would result in an undue concentration of
ownership[^6] that will impede viewpoint diversity,[^7] particularly
with respect to news coverage.[^8]

FLAIM argues that the Commission's staff inappropriately evaluated the
Applications by applying the "bright line" test for multiple ownership
analysis established in the Commission's *Definition of Radio Markets*
order.[^9] There, the Commission specified that Arbitron-defined
"Metros" constitute the presumptive markets for multiple ownership
analysis.[^10] FLAIM, however, claims that the presumption is overcome
in the case of Ithaca because some stations attributed to the Arbitron
Ithaca Metro Survey Area (the "Ithaca Metro") do not actually provide
meaningful service there. For example, FLAIM contends that Arbitron
unjustifiably included in the Ithaca Metro, stations that do not
advertise in the local Yellow Pages, or compete for advertising revenue,
or have measurable audience share in the market.[^11] FLAIM also claims
that Saga's existing stations have a "stranglehold" on local news
coverage because few other stations in the Ithaca Metro cover local
news.[^12]

FLAIM made identical arguments in its earlier Petition to Deny filed
against Saga's acquisition of its fourth station in the Ithaca market
from Eagle Broadcasting Corp. The staff found those arguments meritless
and denied the Petition to Deny.[^13] FLAIM then filed an Application
for Review which -- subsequent to the filing of FLAIM's Petition -- the
Commission also denied,[^14] finding that FLAIM had failed to show that
the staff's use of the Ithaca Metro in its multiple ownership analysis
was inconsistent with the public interest.[^15]

Both Saga and Citadel oppose acceptance of the instant FLAIM Petition
because it is untimely. They point out that FLAIM had the opportunity to
file a Petition to Deny the Applications within thirty days after they
appeared on public notice, but failed to do so. Instead, FLAIM waited
more than three months after the Petition to Deny deadline -- and after
the Applications had been granted -- to attempt to oppose the
Applications by means of a Petition for Reconsideration.[^16]

Citadel and Saga assert that the holding in *Moody Bible Institute of
Chicago, Inc*. illustrates why FLAIM's late-filed Petition should be
dismissed.[^17] In *Moody*, the Commission did not credit the
petitioner's excuse that it failed to file a Petition to Deny because it
thought the Commission was going to dismiss the underlying application.
FLAIM, however, claims that *Moody* is inapposite and distinguishable on
its facts. Here, FLAIM argues, it was not anticipating, as did the
*Moody* petitioner, that the Commission would [dismiss]{.underline} the
Applications. Instead, FLAIM expected that the Commission would not
[process]{.underline} the Applications until it ruled on FLAIM's
Application for Review of the earlier transaction whereby Saga acquired
a fourth station in the Ithaca Metro.[^18] FLAIM claims it was "shocked"
when the Applications were granted with the Application for Review still
pending.[^19] Moreover, FLAIM claims that it was unnecessary for it to
timely challenge the Applications, *e.g.,* by a Petition to Deny,
because the Commission should have deduced from FLAIM's earlier
arguments, about the addition of a fourth Saga station to the Ithaca
Metro, that FLAIM also opposed a fifth Saga station there.[^20] Finally,
FLAIM claims that it should be excused from not earlier challenging
grant of the Applications because it lacked the resources to do so.[^21]

**Discussion.** We find *Moody* is relevant precedent here. The
divergence of factual settings -- the *Moody* petitioner's assumption
that an application would be dismissed *vs*. FLAIM's assumption that the
Applications would not be processed -- is a distinction lacking any
legally significant difference. We note that the decision in *Moody*
rested, in part, on *Colorado Radio Corp. v. FCC,*[^22] a case that
addresses untimely filings more universally:

> \[We\] cannot allow the appellant to sit back and hope that a decision
> will be in its favor, and then, when it isn\'t, to parry with an offer
> of more evidence. No judging process in any branch of government could
> operate efficiently or accurately if such a procedure were allowed.

"Sitting back" is precisely what FLAIM has done here. In so doing, and
not filing a timely Petition to Deny, it assumed the risk that -- as
eventually occurred -- the Commission would grant the Applications in
the normal course and deny FLAIM's Application for Review of the earlier
transaction.

FLAIM cannot use its untimely Petition to resurrect its foregone
opportunity to protest the Applications by means of a Petition to Deny.
Section 1.106(b)(1) of the Rules[^23] precludes acceptance of Petitions
for Reconsideration unless a non-party petitioner can "show good reason
why it was not possible for \[it\] to participate in earlier stages of
the proceeding." It was possible for FLAIM to file a timely Petition to
Deny the Applications. It elected, instead, to "sit back" while the
Commission considered its Application for Review. That -- as *Moody* and
*Colorado Radio* establish -- was not a "good reason" for FLAIM not "to
participate in earlier stages of the proceeding."

FLAIM's claim that it lacked the resources to file a timely Petition to
Deny is unsupported and, in any event, belied by its having the
resources to file the instant Petition and an abundant number of other
pleadings related to Saga's acquisition of stations in the Ithaca
Metro.[^24] Moreover, there is no merit to FLAIM's argument that it was
relieved of filing a Petition to Deny because the Commission already was
fully informed of FLAIM's opposition to Saga's acquiring additional
stations in the Ithaca Metro.

Section 1.106(c)(2) of the Rules[^25] affords us the discretion to
accept untimely Petitions for Reconsideration if we "determine that
consideration of the facts relied on is required in the public
interest." Exercise of that discretion is unwarranted here because FLAIM
has adduced no relevant facts that bear on the public interest. Indeed,
the only supported facts in the Petition appear in the declaration of
Curt Dunnam who attests that an Ithaca [television]{.underline} station
is not broadcasting and apparently has no main studio or personnel.[^26]
The status of the television station has no nexus with the Local Radio
Ownership Rule -- radio and television are separate broadcast services.

FLAIM is mistaken that its Petition is acceptable -- under what it calls
a "worst case scenario" -- because FLAIM could have filed a post-grant
Informal Objection pursuant to Section 73.3587 of the Rules.[^27]
Informal Objections, however, are acceptable only
"[\[b\]efore]{.underline} FCC action on any application for an
instrument of authorization."[^28] Thus, even were we to treat FLAIM's
Petition as the equivalent of an Informal Objection, we would dismiss it
because it was filed after the Applications were granted. Indeed, even
were we to reach FLAIM's Petition on the merits, we would deny it for
the same reason the Commission denied FLAIM's Application for Review:
FLAIM fails to demonstrate, *prima facie,* the existence of a "a
substantial and material question of fact warranting further inquiry"
into whether grant of the Applications was in the public interest.[^29]

**Decision/Action.** Both Rule and precedent bar acceptance of FLAIM's
Petition. We are not persuaded by FLAIM's arguments to the contrary. The
Petition will be dismissed.

Accordingly, IT IS ORDERED, that the Petition for Reconsideration filed
by the Finger Lakes Alliance for Independent Media, IS DISMISSED.

> Sincerely,
>
> Peter H. Doyle
>
> Chief, Audio Division
>
> Media Bureau

[^1]: The assignor, Citadel Broadcasting Co. ("Citadel"), filed an
    Opposition to Petition for Reconsideration (the "Citadel
    Opposition"), the assignee, Saga Communications of New England, LLC
    ("Saga") also filed an Opposition to Petition for Reconsideration
    (the "Saga Opposition"). FLAIM filed a Consolidated Reply to
    Oppositions to Reconsideration (the "Reply").

[^2]: Commission consent to the assignment was conditioned on Saga's
    divestiture of Station WKRT(AM). That divestiture was approved on
    December 21, 2006, and consummated on Sept. 12, 2007. The current
    call sign for the station is WYBY(AM). *See* BAL-20061106ABZ.

[^3]: Petition at 2.

[^4]: The Cortland Stations' community of license, Cortland, New York,
    is approximately 40 kilometers northeast of Ithaca, New York.

[^5]: 47 C.F.R. § 73.3555.

[^6]: *See* Petition at 1-2.

[^7]: *See* *id.* at 3.

[^8]: *See* *id.* at 3-4.

[^9]: *2002 Biennial Regulatory Review of the Commission's Broadcast
    Ownership Rules and Other Rules Adopted Pursuant to Section 202 of
    the Telecommunications Act of 1966; Cross Ownership of Broadcast
    Stations and Newspapers, Rules and Policies Concerning Multiple
    Ownership of Radio Broadcast Stations in Local Markets; Definition
    of Radio Markets, Definition of Radio Markets for Areas not located
    in an Arbitron Survey Area*, Report and Order and Notice of Proposed
    Rulemaking*,* 18 FCC Rcd 13620, 13718 (2003), *aff'd in part and
    remanded in part sub nom. Prometheus Radio Project v. FCC,* 373 F.3d
    372 (2004), *cert. denied,* 545 U.S. 1123 (2005) (*"Definition of
    Radio Markets"*).

[^10]: In *Definition of Radio Markets*, the Commission explained that
    "\[w\]here a commercially accepted and recognized definition of a
    radio market exists, it seems sensible to us to rely on that market
    definition for purposes of applying the local radio ownership rule.
    Arbitron, as the principal radio rating service in the country, has
    defined radio markets for most of the more populated urban areas of
    the country. \* \* \* The record shows that Arbitron\'s market
    definitions are an industry standard and represent a reasonable
    geographic market delineation within which radio stations compete.
    Indeed, the DOJ consistently has treated Arbitron Metros as the
    relevant geographic market for antitrust purposes. \* \* \* Given
    the long-standing industry recognition of the value of Arbitron\'s
    service, we believe there is strong reason to adopt a local radio
    market definition that is based on this established industry
    standard." *Definition of Radio Markets* at 13724 (footnotes
    omitted).

[^11]: See Petition at 7. We note that FLAIM does not propose an
    alternative market definition.

[^12]: *See* *id.* at 8. FLAIM also claims that Saga stations have 70
    percent of the local radio audience, and slightly less than 70
    percent of the local radio advertising revenues. *Id.* at 9.
    Application of the Herfindahl-Hirschmann Index, FLAIM claims,
    discloses that the Ithaca market is currently "highly concentrated"
    and that approval of the instant transactions would only further
    increase concentration. *Id.*

[^13]: *See* *Eagle Broadcasting Corp.*, Letter, 20 FCC Rcd 8753 (MB
    2075).

[^14]: *Eagle Broadcasting Corp.*, Memorandum Opinion and Order, \_\_\_
    FCC Rcd \_\_\_ (2008) (FCC 08-266, released Oct. \_\_\_ (2008)
    ("*Eagle Broadcasting MO&O"*))*.*

[^15]: *Id.* at ¶ 9. ("Although we agree that FLAIM is a party in
    interest, we find that it failed to establish a *prima facie* case
    that grant of the application would be inconsistent with the public
    interest or to raise a substantial and material question of fact
    warranting designation of the application for hearing.")

[^16]: *See* Citadel Opposition at 3; Saga Opposition at 3.

[^17]: *See* *id.* (citing *Moody Bible Institute of Chicago, Inc*.,
    Memorandum Opinion and Order, 66 FCC 2d 629 (1977) ("*Moody*")).

[^18]: Reply at 3 ("with respect to the instant proposed transaction,
    *no decision at all* would be forthcoming from the FCC unless and
    until it acted on the pending Application for Review").

[^19]: *See* Petition at 4-5.

[^20]: *See* Reply at 2.

[^21]: *See id.* FLAIM also urges that, even if its Petition is found
    procedurally defective, the Commission should still "take note of
    the widespread local resistance among Ithaca's civic leaders to
    Saga's continued expansion of market power." FLAIM submits that,
    even "in a worst case scenario," *i.e.*, denial of FLAIM's
    Application for Review, a timely Petition to Deny was unnecessary
    because FLAIM could oppose the grant of the Applications by filing
    an Informal Objection. *Id.* at 3. FLAIM also asks the Commission to
    exercise its discretion and rescind the grants of the Applications
    pending action on FLAIM's Application for Review. *Id.* at 3. The
    Application for Review, however, has been denied, thus rendering
    FLAIM's request for delay moot.

[^22]: *Colorado Radio Corp. v. FCC,* 118 F.2d 24, 26 (D.C. Cir. 1941)
    (*"Colorado Radio"*). *Moody* also relied on *Springfield Television
    Broadcasting Corporation v. FCC*, 328 F.2d 186 (D.C. Cir. 1964).
    (Expectation that Commission will dismiss an application deemed
    inadequate justification for failing to file a pre-grant Petition to
    Deny.)

[^23]: 47 C.F.R. § 1.106(b)(1).

[^24]: In connection with Saga's acquisition of its fourth Ithaca Metro
    station, FLAIM filed, *inter alia*, a Petition to Deny, a Reply to
    Opposition, a Motion for Extension of Time, a Further Motion for
    Extension of Time; a Reply to Joint Opposition (to further extension
    of time), an Application for Review, a Supplement to Application for
    Review, an Opposition to Joint Motion to Strike (the supplement) and
    a Reply to Opposition to the Application for Review.

[^25]: 47 C.F.R. § 1.106(c)(2).

[^26]: Petition, Exhibit A.

[^27]: *See* *supra* n.Error: Reference source not found.

[^28]: 47 C.F.R. § 73.3587.

[^29]: *See* *Eagle Broadcasting MO&O*, \_\_ FCC Rcd at \_\_ , ¶13.