**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In re Applications of )

)

Rocky Mountain Radio Co., LLP, Assignor ) File Nos. BALH-980713GH

) BALH-980713GI

and ) BALH-980713GJ

) BALH-980713GK

AGM-Rocky Mountain Broadcasting I, LLC ) BALH-980713GL

Assignee ) BALH-980713GM

) BALH-980713GN

for Assignment of Licenses of Seven Colorado )

Radio Stations )

)

and )

)

Moss Entertainment ) File Nos. BALH-980729EB

Licensee, Inc., Assignor ) BALH-980729EC

) BALH-980729ED

and ) BALH-980729EG

) BALH-980729EI

Salisbury Broadcasting )

Colorado, LLP, Assignee )

)

For Assignment of Licenses of Five Colorado )

Radio Stations )

**MEMORANDUM OPINION AND ORDER**

**Adopted: September 28, 1999 Released: October 1, 1999**

**By the Commission:**

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level71. The Commission has before it an Application for Review
filed by Western Slope Communications, LLC (\"Western Slope\")[^1],
asking us to overturn the staff\'s consent to the sale of twelve radio
stations, all located in Colorado. The staff, over Western Slope\'s
objection, approved two transactions: (1) AGM-Rocky Mountain
Broadcasting\'s (\"AGM\") acquisition of seven stations from Rocky
Mountain Radio Company, and (2) Salisbury Broadcasting Colorado, LLC\'s
(\"Salisbury\") acquisition of five stations from Moss
Entertainment.[^2] Western Slope argues that the staff procedurally
erred in finding no [prima facie]{.underline} case that AGM and
Salisbury are commonly controlled and that their interests should
therefore be attributed to each other in determining whether the
transactions are consistent with our broadcast multiple ownership rules,
47 C.F.R. § 73.3555. It also argues that the staff erred procedurally in
declining to consider evidence it submitted at the petition for
reconsideration stage. We find no error, however, and accordingly shall
deny the Application for Review.[^3]

**Discussion**

2\. **Finding of No Prima Facie Case.** Section 309(d)(1) of the
Communications Act, as explained in [Astroline Communications v.
FCC]{.underline}, 857 F.2d 1556 (D.C. Cir. 1988), requires a two-step
analysis for judging the sufficiency of a petition to deny. First, we
determine whether the petition and its supporting affidavits contain
specific allegations of fact sufficient to show that a grant of the
application would be [prima facie]{.underline} inconsistent with the
public interest. During this first step, we assume that the specific
facts set forth by the complaining party are true, without reference to
contrary evidence. [Id.]{.underline} at 1561. These allegations of fact,
except for those of which official notice may be taken, must be
supported by the affidavit of a person with knowledge of the facts
alleged. 47 C.F.R. § 309 (d)(1). Allegations that consist of \"ultimate,
conclusory facts or more general affidavits . . . are not sufficient.\"
[Gencom, Inc. v. FCC]{.underline}, 832 F.2d 171, n. 11 (D.C. Cir. 1987).
Similarly, allegations that are not based on personal knowledge, but
rather on second-hand information, such as media reports, are
insufficient. [KRPL, Inc.]{.underline}, 5 FCC Rcd 2823, 2824 (1990). If
we determine that the petition satisfies the threshold standard to make
a [prima facie]{.underline} case, the inquiry proceeds to a second
phase. In that phase, the Commission determines whether, on the basis of
the application, the pleadings, and other matters which it may
officially notice, a substantial and material question of fact is
presented. If there are no substantial and material questions, and the
Commission is able to find that the application would be in the public
interest, the application is granted. If there are substantial and
material questions of fact, the application is designated for hearing,
pursuant to 47 U.S.C. § 309(e).

3\. According to Western Slope, the staff erred in the first stage by
failing to assume that all of its allegations were true. We find,
however, that Western Slope misreads the applicable standard, and that
the staff acted properly. The requirement that the staff consider all
allegations supported by an affiant\'s personal knowledge as true, does
not extend to allegations that are without such basic underlying
support. [See]{.underline} [KOLA, Inc.]{.underline}, 11 FCC Rcd 14297,
14305 (1996). Allegations that are second hand or speculative need not
be credited. [Id.]{.underline} [citing]{.underline} [Beaumont Branch of
NAACP v. FCC]{.underline}, 854 F.2d 501, 507 ( D.C. Cir. 1988); [Texas
RSA 1 Limited Partnership]{.underline}, 7 FCC Rcd 6584, 6585 (1992). To
require otherwise would result in numerous proceedings in which the
staff would need to consider in depth, and applicants would need to
defend against, completely unsubstantiated attacks on an applicant\'s
qualifications. In the present case, the staff noted that Western
Slope\'s original submission, although styled as a \"petition to deny\"
and supported by an affidavit from the company\'s president, could only
be treated as an informal objection because the facts alleged were not
based on personal knowledge. As support for its major premise, that AGM
controlled Salisbury, Western Slope provided only newspaper columns and
conclusions based on conversations with unnamed people. The staff
correctly credited only those facts that were based on Petitioner\'s
personal knowledge and/or which had independent support in the
Commission\'s records, and of which the staff therefore could take
official notice. The facts thus considered included AGM and Salisbury\'s
use of the same communications counsel and joint business interests in a
different region of the country. Based on the record before it, the
staff properly determined that there was no [prima facie]{.underline}
case of rule violation.

4\. **Consideration of New Evidence on Reconsideration.** Western Slope
also alleges that the staff did not properly consider new evidence that
it first presented at the reconsideration stage. Specifically, Western
Slope submitted an affidavit of Ms. Nathleen Rife, general manager of
two stations in Steamboat Springs, Colorado, that compete with a station
to be licensed to AGM and another to be licensed to Salisbury. Western
Slope maintains that Ms. Rife\'s affidavit provided support by someone
with first hand knowledge for Western Slope\'s earlier allegations. Ms.
Rife\'s affidavit related her observations concerning a move of offices
and telephone conversations with named Salisbury and AGM employees, from
which Rife concluded that AGM and Salisbury would consolidate some
personnel functions. The staff, citing the procedural requirements of 47
C.F.R. §1.106(c), considered the portion of the Rife affidavit relating
to the office move, as a newly occurring event which could not have been
reported earlier. It stated that the rest of the Rife affidavit was
filed too late, and without appropriate justification, as required when
new information is first submitted at the reconsideration stage. Western
Slope maintains that the staff should have considered the entire Rife
affidavit, and that had the staff done so, the staff would have had
[prima facie]{.underline} evidence that AGM will control Salisbury.

5\. Section 1.106(c) provides that a petition for reconsideration of a
staff action which relies on facts not previously presented will only be
granted if the facts (1) relate to new events or changed circumstances;
or (2) were unknown to petitioner and could not have been learned
through ordinary diligence; or (3) are determined by the decision maker
as required in the public interest. 47 C.F.R. § 1.106(c). The staff
properly applied these standards to Western Slope\'s petition for
reconsideration, which relied on an affidavit not previously presented.
Specifically, the staff considered the new information about the move
and correctly decided that there was no [prima facie]{.underline} case,
even with that information. It was also correct in declining to consider
the other information in the Rife affidavit because there was no
indication that the other alleged facts could not have been submitted
previously.

6\. Western Slope now argues that it could not, through diligent
efforts, have supplied the information in the Rife affidavit previously
because Ms. Rife, who it did not know previously, had unique first hand
information due to regular interactions between Ms. Rife, her staff, and
station personnel. Western Slope\'s attempt to establish Ms. Rife as
virtually the only person from which it could have obtained first hand
information about personnel matters is not persuasive. For example,
Western Slope\'s original \"petition\" alleged facts similar to those
alleged by Ms. Rife, and stated that it was based on discussions with
\"[various]{.underline} people who are familiar with the radio markets
in Aspen, Vail, and Steamboat Springs.\" Western Slope has not
demonstrated why it could not, through ordinary diligence, have
supported its allegations with first hand knowledge in a timely manner,
such as by submitting affidavits from some of these people of which it
was already aware or by seeking out others in a timely manner.[^4]
Accordingly, there is no reason to disturb the staff\'s decision.

7\. Accordingly, IT IS ORDERED that the Application for Review filed by
Western Slope Communications IS DENIED.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

[^1]:     ^?^ Western Slope is the licensee of stations KZKS(FM) and
    KRGS(AM), Rifle, Colorado, which, according to Western Slope,
    compete with some of the stations being acquired.

[^2]:     ^?^ [See]{.underline} Letter from Chief, Audio Services
    Division to Tom Davidson and Lewis Paper, Ref. 1800B-IB (MMB,
    November 30, 1998), [recon. denied]{.underline}, Letter from Chief,
    Audio Services Division to Tom Davidson and Lewis Paper, Ref.
    1800B-IB (MMB, February 26, 1999).

[^3]:     ^?^ Western Slope states that, if we find that the staff\'s
    action is consistent with Commission policy and rules, that we
    should change those rules and policies. The appropriate venue for
    consideration of such an argument would be in a rulemaking
    proceeding, not an individual adjudication such as the one before
    us.

[^4]:     ^?^ Western Slope states that it could not obtain an affidavit
    from anyone directly involved with the transaction, but does not
    indicate attempts to submit an affidavit from others.