Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In re Application of             | * | Facility ID No. 47309        |
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| Nameloc, Inc.                    | ) | File No. BALH-20030319AEZ    |
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| (Assignor)                       | * |                              |
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| and                              | * |                              |
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| ABC, Inc.                        | ) |                              |
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| (Assignee)                       | * |                              |
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| for Assignment of License        | * |                              |
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| of Station KDIS-FM,              | ) |                              |
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| (formerly KYFX(FM)),             | * |                              |
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| Little Rock, Arkansas            | * |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted:** **September 24, 2008 Released: September 30, 2008**

By the Commission:

1.  The Commission has before it an Application for Review submitted by
    Nameloc, Inc. ("Nameloc"), an Application for Review submitted by
    Arkansas Regional Minority Supplier Development Council, *et al.*
    ("Arkansas"), a Petition for Reconsideration submitted by Dale
    Charles, *et al.* ("Charles"), and various other pleadings submitted
    by Nameloc, Arkansas, Charles, and ABC, Inc. ("ABC").[^1] Nameloc,
    Arkansas, and Charles seek to stay and reverse a staff decision
    issued on May 30, 2003 ("Staff Decision").[^2] That decision granted
    an application to assign the license of station KYFX(FM), Little
    Rock, Arkansas (the "Station") from Nameloc to ABC.[^3] For the
    reasons discussed below, we deny Nameloc's Application for Review,
    Arkansas's Application for Review, and Charles's Petition for
    Reconsideration, and dismiss as moot all of the related motions.[^4]

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I.  **BACKGROUND**

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2.  This case stems from an adjudicated contractual dispute between
    Nameloc, a minority-owned company, and ABC, concerning the sale of
    the Station. On March 25, 2002, Nameloc entered into an Asset
    Purchase and Sale Agreement ("Sale Agreement") with ABC, under which
    ABC would acquire the license of the Station, subject to approval by
    the Commission, as well as substantial tangible and intangible
    Station assets. Use of the KYFX call letters and trademarks held by
    Nameloc for "FOXY 99.5" was explicitly excluded from the assets
    being sold. Nameloc agreed to deliver the completed and signed
    seller's portion of an assignment application to ABC by April
    15, 2002. The transaction did not proceed as planned because a
    dispute developed concerning the conveyance of Nameloc's lease for
    the Station's transmission tower. On November 8, 2002, ABC sued
    Nameloc for breach of contract in the United States District Court
    for the Eastern District of Arkansas ("U.S. District Court"). On
    February 18, 2003, the U.S. District Court granted ABC's motion for
    summary judgment and held that ABC was entitled to specific
    performance for the sale of the Station.[^5] The U.S. District Court
    ordered Nameloc to execute an assignment application by March 17,
    2003.[^6] Nameloc filed a Motion for Stay. On March 18, 2003, upon
    denial of that motion by the U.S. Court of Appeals for the Eighth
    Circuit, Nameloc delivered the executed assignment application to
    ABC.[^7] ABC filed the assignment application with the Commission on
    March 19, 2003.

3.  On March 10, 2003, one week prior to delivering the assignment
    application to ABC, Nameloc filed a complaint with the Commission's
    Enforcement Bureau. Nameloc alleged that ABC had violated Section
    310(d) of the Act[^8] by engaging in an unauthorized transfer of
    control of the Station, and was thus not qualified to hold a
    Commission license. Specifically, Nameloc alleged that ABC, by
    posting job availability notices on the internet for "Radio Disney
    KYFX" before an assignment application was even filed, was
    identifying ABC as the owner of the Station with rights to the KYFX
    call sign. Nameloc's enforcement complaint also alleged that
    Nameloc's objection to ABC's use of the KYFX call sign was met by
    ABC's retaliation in not renewing a programming agreement for the
    Station to broadcast *The Tom Joyner Show* (*"Joyner Show"*).

4.  The Enforcement Bureau denied Nameloc's complaint.[^9] In the
    Enforcement Letter, the staff found that "the facts alleged by
    Nameloc do not create a basis for believing that an unauthorized
    transfer of control has occurred . . . ."[^10] The staff concluded
    that "Nameloc's allegations, if taken as true, do not suggest to us
    that Nameloc itself has not retained actual control of the basic
    policies concerning operation of the station, including its
    programming, personnel, and finances."[^11]

5.  On April 28, 2003, Arkansas filed a Petition to Deny the assignment
    application. Arkansas argued that the proposed assignment to ABC
    raised issues of market concentration, loss of minority ownership,
    and unauthorized transfer of control that should be investigated. As
    noted above, the staff granted the assignment on May 30, 2003. The
    Staff Decision explained that changes in Commission policies
    regarding market concentration and the promotion and retention of
    minority ownership would be appropriately addressed in the omnibus
    review of the broadcast ownership rules that was then ongoing.[^12]
    The staff concluded that the proposed transaction raised no market
    concentration concerns because ABC would not own any other stations
    in the Little Rock market. The assignment also complied with the
    local radio multiple ownership rules then (and still) in effect. The
    Staff Decision rejected Arkansas's attempts to re-argue private
    contractual matters between Nameloc and ABC.[^13] Finally, the Staff
    Decision noted that the transfer of control allegations had already
    been considered and rejected in the Enforcement Letter*.* The Media
    Bureau staff found that further consideration of the allegations was
    not warranted because Arkansas did not present any additional
    evidence. On July 10, 2003, Nameloc and ABC consummated the
    assignment of license to ABC. Nameloc, supported by Arkansas and
    Charles, now challenges the assignment's validity.

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II. **DISCUSSION**

    A.  **Unauthorized Transfer of Control**

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6.  Nameloc's and Arkansas's primary argument is that ABC is not
    qualified to be a Commission licensee because ABC prematurely
    assumed control of the Station.[^14] As stated previously, the
    alleged transfer of control is based solely on ABC's posting of job
    advertisements on the Internet for "Radio Disney KYFX" before the
    assignment application was filed with the Commission. We reject the
    argument that the Media Bureau staff erred by relying on the
    Enforcement Bureau's finding that there had not been an unauthorized
    transfer of control. The Media Bureau staff action was proper given
    that Arkansas merely repeated the same evidence that Nameloc had
    presented in its complaint to the Enforcement Bureau. The
    Enforcement Letter has long been final; neither Nameloc nor any
    other party appealed it. Nameloc and Arkansas are thus without legal
    basis to raise the issue anew.[^15]

7.  On our own motion, however, we have reviewed the Enforcement Letter
    and agree with it. To determine whether an unauthorized transfer of
    control has occurred, the Commission looks to whether a new entity
    has the right to determine the basic operating polices of the
    licensee or station, particularly with respect to programming,
    personnel, and finances.[^16] ABC's use of the Station's call sign
    in employment advertisements does not establish any ABC control of
    the station's programming, personnel, or finances.[^17] To the
    extent that Nameloc and Arkansas argue that the use of call sign
    KYFX in ABC's ads disrupted the station's operations, resulted in
    the loss of advertising revenues, and interfered with Nameloc's
    ability to retain staff, these are private contractual disputes. The
    Commission has consistently declined to intervene in such matters
    and we see no reason to deviate from that course here. Nameloc's
    President and sole shareholder stated that she "at all times served
    as the General Manager of the station, providing day-to-day
    supervision . . . ."[^18] Moreover, the U.S. District Court's
    *Summary Judgment* *Order* found that "ABC's use of the call letters
    in the job listing was for identification purposes only . . .
    ."[^19] There is no indication that ABC's employment advertisements
    on the internet were anything more than planning efforts to identify
    staff available to begin work at the Station immediately following
    Commission approval of the assignment application and consummation
    of the sale.[^20]

    A.  **Market Concentration**

8.  Nameloc and Arkansas assert that the Staff Decision failed to give
    full consideration to market concentration concerns. Arkansas
    contends that the staff did not address "specific evidence of market
    failure -- namely, that two firms \[Citadel Communications Corp. and
    Clear Channel Communications\] in the Little Rock market presently
    control 69.1 percent of the market's advertising revenue."[^21]
    Arkansas asserts that such market concentration rises to the
    standard of the "50/70 screen" then used by the staff to "flag"
    applications with possible concentration issues.[^22] Arkansas
    appears to conclude from these facts that a hearing is needed to
    determine whether anti-competitive market conditions and the loss of
    a female/minority-owned station warrant a denial of the assignment
    application. In opposition, ABC asserts that the 69.1 percent
    advertising revenue figure is irrelevant because it would not be
    affected by ABC's purchase of the Station.

9.  The staff correctly did not flag the Nameloc/ABC application.
    Arkansas previously acknowledged that at the time of the proposed
    transaction, KYFX garnered only 2.2 percent of the advertising
    revenues in the Arbitron-rated metropolitan area of Little Rock (the
    "Metro").[^23] The transaction would result in ABC owning only one
    radio station in the Metro, and ABC would not be one of the top two
    owners.[^24] The existence of two other large group owners in the
    Metro -- whose combined revenues in any event fell below the 70
    percent screen -- is irrelevant. Arkansas's and Nameloc's market
    concentration argument is frivolous.

    A.  **Anti-Competitive Practices**

10. Nameloc and Arkansas assert that the staff erred in failing to find
    that ABC engaged in anti-competitive practices. Specifically, they
    allege that ABC abused its national market power and unlawfully
    attempted to manipulate or coerce the sale of the Station to ABC by
    not renewing the programming agreement for KYFX to broadcast the
    *Joyner Show.* Arkansas asserts that ABC's award of the show to the
    Station's main competitor provides evidence that ABC was seeking to
    cause a devaluation of the Station to force the sale to ABC. In
    response, ABC states that it "simply opted not to renew the
    programming agreement \[for the *Joyner Show*,\] a right expressly
    granted to ABC by the \[programming\] Contract itself."[^25]
    According to ABC, this was a business decision related to the
    anticipated acquisition of KYFX and change in its format. ABC also
    asserts that the decision could not be an attempt to coerce the sale
    of the Station because Nameloc had already entered into the Sale
    Agreement eight months prior to non-renewal of the *Joyner Show*.

11. Adjudicated anti-competitive broadcast practices can be relevant to
    a licensee's character.[^26] In the present case, however, there has
    been no court finding of any anti-competitive violation by ABC. To
    the contrary, the U.S. District Court found that "ABC acted pursuant
    to the plain language of the \[programming\] contract in not
    renewing the agreement \[for the *Joyner Show*\]; the contract did
    not require either party to give cause for its non-renewal."[^27] We
    find that ABC's decision not to renew the programming agreement for
    the *Joyner Show* does not raise any character issues, nor is it
    indicative of any abuse cognizable under our current policies.[^28]

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III. **ORDERING CLAUSES**

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12. Accordingly, IT IS ORDERED, that the Application for Review filed on
    June 13, 2003, by Nameloc, Inc., the Application for Review filed on
    July 7, 2003, by Arkansas Regional Minority Supplier Development
    Council, *et al.*, and the Petition for Reconsideration filed on
    June 16, 2003, by Dale Charles, *et al.*, ARE DENIED.

13. IT IS FURTHER ORDERED, that the Motion for Stay filed on June 13,
    2003, by Nameloc, Inc., the Request for Emergency Relief and Motion
    to Dismiss filed on July 2, 2003, by Nameloc, Inc., the Emergency
    Motion for Stay filed on July 7, 2003, by Arkansas Regional Minority
    Supplier Development Council, *et al.*, and the Motion to Dismiss
    ABC, Inc.'s Opposition to Nameloc, Inc.'s Motion for Stay filed on
    July 1, 2003, by Dale Charles, *et al.* ARE DISMISSED AS MOOT.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

[^1]: Specifically, we have: (1) the Application for Review and (2) a
    Motion for Stay, both filed on June 13, 2003, by Nameloc; (3) a
    Request for Emergency Relief and Motion to Dismiss filed on July 2,
    2003, also by Nameloc; (4) the Application for Review and (5) an
    Emergency Motion for Stay, both filed on July 7, 2003, by Arkansas;
    (6) the Petition for Reconsideration filed on June 16, 2003, and (7)
    a Motion to Dismiss ABC's Opposition to Nameloc's Motion for Stay
    filed on July 1, 2003, both by Charles. ABC filed oppositions to all
    seven pleadings. Additionally, Charles filed a Reply to ABC's
    Opposition to Petition for Reconsideration. Because the issues
    raised in Charles's Petition for Reconsideration are related to
    those raised in the Nameloc and Arkansas Applications for Review,
    the staff has referred the Petition for Reconsideration to the
    Commission pursuant to 47 C.F.R. § 1.106(a)(1) and we address it
    herein. *See Manahawkin Communications Corp*., 17 FCC Rcd 342,
    342-43 (2001).

[^2]: *See* *Letter to Susan L. Fox, et al.*, Ref. No. 1800B3-BSH (MB
    May 30, 2003) ("Staff Decision").

[^3]: Following consummation of the assignment, the Station's call sign
    was changed to KDIS-FM. In this Order, however, we will refer to the
    Station by its former call sign, KYFX.

[^4]: The assignment has already been consummated. Nameloc in its Motion
    for Stay asks the Commission to stay the assignment of license until
    the Commission has acted upon Nameloc's Application for Review.
    Nameloc's stay request will be dismissed as moot, as will Charles's
    Motion to Dismiss ABC's Opposition to Nameloc's Motion for Stay.
    Similarly, we will dismiss as moot Nameloc's Request for Emergency
    Relief and Arkansas's Emergency Motion for Stay of the assignment
    grant (both of which cited to the "emergency" of the previously
    scheduled July 9, 2003, date for consummation of the KYFX sale).

[^5]: *See* ABC, Inc., v. Nameloc, Inc., No. 4:02-CV0714 GTE (E.D. Ark.
    Feb. 18, 2003) (order granting summary judgment) ("*Summary Judgment
    Order*") (copy submitted as Exhibit A to ABC's Opposition to
    Nameloc's Application for Review)), *aff'd,* 362 F.3d 449 (8^th^
    Cir. 2004).

[^6]: *See* ABC's Opposition to Nameloc's Application for Review at 4-5
    n.16 (citing ABC, Inc. v. Nameloc, Inc*.,* (E.D. Ark. Mar. 11,
    2003)).

[^7]: *Id.* at 5 n.17 (citing ABC, Inc. v. Nameloc, Inc., No. 03-1691 EA
    (8^th^ Cir. Mar. 18, 2003) (denying Nameloc's request for stay)).

[^8]: *See* 47 U.S.C. § 310(d).

[^9]: *See Letter to James L. Winston, Esq., et al.* (EB Apr. 18, 2003)
    ("Enforcement Letter").

[^10]: Enforcement Letter at 2.

[^11]: *Id.* at 2 (citing *WGPR, Inc*., 10 FCC Rcd 8140, 8141 (1995),
    *vacated on other grounds sub nom. Serafyn v. FCC*, 149 F.3d 1213
    (D.C. Cir. 1998)).

[^12]: The omnibus review was concluded on June 2, 2003. *See* *2002
    Biennial Regulatory Review -- Review of the Commission's Broadcast
    Ownership Rules and Other Rules Adopted Pursuant to Section 202 of
    the Telecommunications Act of 1996,* 18 FCC Rcd 13620 (2003)
    ("*Broadcast Ownership Order"*), *aff'd in part and remanded in
    part* *sub nom*. *Prometheus Radio Project v. F.C.C.,* 373 F.3d 372
    (2004).

[^13]: As noted by the staff, the Commission has consistently held that
    it is not the proper forum for the resolution of private contractual
    disputes. *See John R. Runner, Receiver (KBIF)*, 36 R.R. 773, 778
    (1976) and *Decatur Telecasting, Inc.*, 7 FCC Rcd 8622 (1992)
    (*cited in* Staff Decision at 5 n.18).

[^14]: In the instant pleadings, Nameloc and Arkansas, as well as
    Charles, also argue that the Staff Decision failed to consider
    pleadings that were filed in the initial stages of this proceeding.
    Arkansas seeks a reversal and remand of the Staff Decision to
    consider its June 2, 2003, reply. Arkansas also asserts that its due
    process rights were violated because: (1) the staff did not provide
    notice that its May 21, 2003, motion for an extension of time to
    file a late reply would be denied; and (2) it did not receive the
    two business days from denial to file pursuant to 47 C.F.R. §
    1.46(b). Ideally, of course, the staff would have been aware of the
    motion prior to issuing the Staff Decision and thus would have
    addressed the extension issue therein. We find, however, that
    Arkansas was not prejudiced under the circumstances. Section 1.46(b)
    which pertains to rulemaking proceedings is inapplicable here. The
    untimely reply was properly not considered in the Staff Decision.
    *See* 47 C.F.R. § 1.46(a) ("It is the policy of the Commission that
    extensions of time shall not be routinely granted."). We
    nevertheless address below Arkansas's assertion that the Staff
    Decision erroneously found that there were no market concentration
    concerns and ignored specific evidence of "market failure," *i.e*.,
    that two groups in the Little Rock market control 69.1 percent of
    the market's advertising revenue which warrants an investigation of
    the instant transaction. *See infra* ¶¶ 8-9. Charles states that his
    timely filed Petition to Deny was not considered by the staff. The
    Staff Decision did not directly address Charles's Petition to Deny,
    nor, as Nameloc points out, did the staff mention an objection filed
    by D.A. Lams, President of the Student Government Association of
    Philander Smith College. The staff did not timely receive a filing
    from Philander Smith College, which in any event, though captioned
    as a Petition to Deny, failed to satisfy the requirements of 47
    U.S.C. § 309(d)(1) and 47 C.F.R. § 73.3584. We have now reviewed
    both the Charles Petition to Deny and the Lams pleading. Charles's
    and Lams's primary concerns were about retaining and promoting
    minority broadcast ownership. The staff considered similar concerns
    raised by other petitioners, and hence, the absence of direct
    references to the Charles and Lams pleadings was not prejudicial.
    Charles also objected to "generic Radio Disney programming," but
    that objection is immaterial because the Commission does not
    regulate or scrutinize programming formats. *See* 47 U.S.C. § 326.
    *See also, e.g., Brawley Broadcasting Co.,* 13 FCC Rcd 21119, 21123
    (1998).

[^15]: *See* 47 C.F.R. § 1.103 (referencing 47 C.F.R. § 1.4(b)).

[^16]: *See, e.g., Stereo Broadcasters, Inc.*, 87 FCC 2d 87 (1981),
    *recon. denied*, 50 R.R.2d 1346 (1982); *WHDH, In*c., 17 FCC 2d 856,
    863 (1969), *aff'd sub nom. Greater Boston Television Corp. v. FCC*,
    444 F.2d 841 (D.C. Cir. 1970), *cert. denied*, 403 U.S. 923 (1971).

[^17]: *See North Idaho Broadcasting* *Co*., 8 FCC Rcd 1637, 1638 (1993)
    (allegations which "consist of ultimate, conclusory facts or more
    general allegations on information and belief, supported by general
    affidavits . . . are not sufficient" to establish a *prima facie*
    case) (quoting *Gencom v. FCC*, 823 F.2d 171 n.11 (D.C. Cir. 1987)).

[^18]: *See* Declaration of Ms. Loretta Lever House, President and sole
    shareholder of Nameloc, Enforcement Complaint, Exhibit 1.

[^19]: *Summary Judgment Order* at 24.

[^20]: *See, e.g., Secret Communications* *II*, *LLC*, 18 FCC Rcd 9139,
    9149 (2003) ("allegations based on internet website idiom are
    speculative and inadequate to raise a substantial and material
    question of fact concerning abdication of control") ("*Secret
    Communications*").

[^21]: Arkansas's Application for Review at 10-11 nn.25 & 27 (citing
    Declaration of Kofi A. Ofori, Esq., Ofori & Associates ("Ofori
    Declaration") (attached to Arkansas's Petition to Deny)). The Ofori
    Declaration (at 4 n.2) cites *Investing in Radio 2003, BIA Financial
    Network, Inc.*

[^22]: *See Rules and Policies Concerning Multiple Ownership of Radio
    Broadcast Stations in Local Markets,* 16 FCC Rcd 19861, 19870,
    19894-97 (2001) (adopting interim policy procedures for subjecting
    certain transactions to competition analysis); *AMFM, Inc.*, 15 FCC
    Rcd 16062, 16066 n.10 (2000).

[^23]: S*ee* Ofori Declaration at 4. Arkansas now erroneously states
    that it did not receive sufficient notice to file comments in the
    ownership proceeding that resulted in the *Broadcast Ownership
    Order* (*see supra* note 12) because the Staff Decision was issued
    on "June 2, 2003, more than four hours after the commissioners had
    voted to issue a decision in the rulemaking proceeding." Arkansas's
    Application for Review at 13. First, the Staff Decision was issued
    on May 30, 2003, prior to the Commission's June 2, 2003, adoption of
    the *Broadcast Ownership* *Order*. More importantly, the ownership
    proceeding was long pending and provided ample opportunity for the
    filing of comments. *See also FCC's Media Bureau Extends Comment
    Deadlines for 2002 Biennial Regulatory Review of Commission's Media
    Ownership Rules*, 17 FCC Rcd 22172 (MB 2002).

[^24]: In 2007, Citadel Communications Corp. acquired most of the radio
    stations operated by ABC, but the Station, along with all other
    radio stations operated as part of Radio Disney, was excluded from
    that transaction. *See Citadel Broadcasting Co.*, 22 FCC Rcd 7083,
    7105 n. 133 (2007). Accordingly, the Station remains ABC's sole
    radio station in the Little Rock, Arkansas market.

[^25]: ABC's Opposition to Arkansas's Application for Review at 7.

[^26]: *See Secret Communications*, 18 FCC Rcd at 9151 n.57.

[^27]: *Summary Judgment Order* at 25.

[^28]: *See Secret Communications*, 18 FCC Rcd at 9149-50 (rejecting as
    not properly supported petitioner's allegation that "Clear Channel
    uses its market power to bully and abuse its competitors and
    advertisers").