**DA 06-1552**

In reply refer to:

1800B3-CLR

Released: July 31, 2006

Philip J. Plank

P.O. Box 1708

Calipatria, CA 92233

Lazer Broadcasting Corporation

200 South A Street, 4^th^ Floor

Oxnard, CA 93030

Broadcast Company of the Americas, LLC

c/o John M. Pelkey, Esq.

Garvey Schubert & Barer

1000 Potomac Street, 5^th^ Floor

Washington, DC 20007

In re: Philip J. Plank

KSSB(FM), Calipatria, CA

> Facility ID No. 52469
>
> File No. BALH-20051208ADX

Gentlemen:

This is in regard to the above-referenced application (the
"Application") to assign the license of KSSB(FM), Calipatria,
California, from Philip J. Plank to Lazer Broadcasting Corporation
("Lazer"). Broadcast Company of the Americas, LLC ("BCA") filed a
Petition to Deny (the "Petition") the application on January 13,
2006.[^1] For the reasons stated below, we deny the Petition and grant
the Application.

In its Petition, BCA states that it is in the business of providing
programming over Mexican stations pursuant to Section 325 of the
Communications Act of 1934, as amended (the "Act").[^2] It contends that
Lazer and another entity, Emmis Communications Corporation
("Emmis"),[^3] abused Commission processes in a proceeding involving
Section 325 applications filed by BCA to deliver programming to the
Class B and Class C1 facilities of station XHBCE-FM, located in
Matamoros Jaramillo, Baja California, Mexico, and Municipio de Tecate,
Baja California, Mexico, respectively. BCA alleges "willful
misrepresentation, lack of candor and abuse of the Commission's process"
by Lazer in opposing BCA's applications, which renders Lazer unqualified
to be a Commission licensee.

In the petition to deny BCA's Section 325 applications, Lazer alleged
that the licensee of XHBCE-FM had constructed facilities that had not
been coordinated with the United States and that XHBCE-FM's Class B
facility was not constructed at the appropriate location. That petition
further stated that the antenna of XHBCE-FM's Class C1 facility was
improperly pointed to place its major lobe to the northwest, that it was
operating when it should not have been, and that it was causing
interference to Lazer's station KXRS(FM), Hemet, California.

BCA claims, however, that Lazer's pleadings in the Section 325
proceeding were "rife with misrepresentations" and motivated by a desire
to inflict "as much injury as it could" upon BCA, which "outbid Lazer
for the rights to provide programming over XHBCE-FM." Although BCA
admits that XHBCE-FM's Class B facility was constructed "a few hundred
feet" from the authorized site, it asserts that Lazer sought to mislead
the Commission into believing that it was constructed more than 2.5
kilometers away by "playing games" with the name for the Class B
site.[^4] BCA also argues that Lazer sought to mislead the Commission
when it claimed that XHBCE-FM had commenced operations prematurely at
its Class C1 facility and that the station's antenna was improperly
oriented. Therefore, BCA argues that the Application should be
dismissed.[^5]

Lazer responds that it raised legitimate questions about the location
and construction of the station's facilities based on the photos of its
own and BCA's consultants, as well as the drawings of the antenna's
manufacturer. It also stands by its assertion that a consultant detected
unauthorized operations. Finally, Lazer denies that it bid against BCA
for the program rights on XHBCE-FM.

We will not address any of the factual issues related to the Section 325
proceeding. Those were resolved by the International Bureau, which
issued BCA an authorization to deliver programming to the Class C1
facility of XHBCE-FM.[^6] The only issue before us is whether Lazer's
actions in the Section 325 proceeding constitute an abuse of process and
whether, therefore, Lazer lacks the requisite character to be a
Commission licensee in connection with its proposed acquisition of KSSB.

In its Order on *Character Qualifications*, the Commission defined
"abuse of process" as "serious willful misconduct that directly
threatens the integrity of the Commission's licensing processes."[^7] An
example of such misconduct is the filing of a "strike petition," which
is the essence of what BCA has alleged that Lazer did in the Section 325
proceeding. In determining whether a pleading is a strike petition, the
Commission considers several factors: (1) statements by the
petitioner\'s principals or officers admitting the obstructive purpose;
(2) the withholding of information relevant to disposition of the issues
raised; (3) the absence of any reasonable basis for the allegations
raised in the petition; (4) economic motivation indicating a delaying
purpose; and (5) other conduct by the petitioner.[^8] In this case,
these factors have not been demonstrated. In fact, BCA has admitted that
Lazer's allegation that the XHBCE-FM Class B facility transmitter was
not constructed at the appropriate location was true. Furthermore, all
of the statements made by Lazer that BCA claims are either false or
misleading appear, based on the record in this proceeding, to have been
the subject of legitimate dispute. Accordingly, we find that BCA has not
demonstrated in this proceeding that Lazer has abused the Commission's
processes or that it lacks the requisite character to be a Commission
licensee, and we accordingly deny BCA's Petition. Furthermore, we find
that grant of the Application would be in the public interest**.**

ACCORDINGLY, IT IS ORDERED THAT the Petition to Deny filed by Broadcast
Company of the Americas, LLC IS DENIED. FURTHERMORE, the application to
assign the license of KSSB(FM), Calipatria, California, File No.
BALH-20051208ADX, from Philip J. Plank to Lazer Broadcasting Corporation
is GRANTED.

Sincerely,

Peter H. Doyle

Chief, Audio Division

Media Bureau

[^1]: Lazer filed an Opposition to Petition to Deny on January 20, 2006,
    and BCA filed a Reply to Opposition to Petition to Deny on February
    1, 2006.

[^2]: 47 U.S.C. § 325. Section 325(c) of the Act states:

    > No person shall be permtted to locate, use, or maintain a radio
    > broadcast studio or other place or apparatus from which or whereby
    > sound waves are converted into electrical energy, or mechanical or
    > physical reproduction of sound waves produced, and caused to be
    > transmitted or delivered to a radio station in a foreign country
    > for the purpose of being broadcast from any radio station there
    > having power output of sufficient intensity and/or being so
    > located geographically that its emissions may be received
    > consistently in the United States, without first obtaining a
    > permit from the Commission upon proper application therefore.

    Section 325 applications are handled by the Commission's
    International Bureau. This letter does not represent a ruling or
    comment on the merits of BCA's Section 325 applications.

[^3]: Emmis is not a party to this proceeding.

[^4]: BCA states that the Mexican name for the location of the station's
    facilities is different than the name used by the Commission.

[^5]: Lazer argues that BCA lacks standing to file the Petition. BCA has
    not made a showing that it has standing, but instead has only
    alleged that it is an "aggrieved party" because of Lazer's role in
    the Section 325 proceeding. However, because the allegations in
    BCA's petition go to the issue of Lazer's character and its basic
    qualifications to be a licensee, we have considered the matters
    raised in its pleadings.

[^6]: *See* *Broadcast Company of the Americas, LLC*, Order and
    Authorization, 37 Communications Reg. (P & F) 1144 (IB 2006) (DA
    06-473). The Order also dismissed as moot BCA's request to deliver
    programming to the Class B facility of XHBCE-FM.

[^7]: *Policy Regarding Character Qualifications in Broadcast
    Licensing*, 102 FCC 2d 1179, 1211 (1986).

[^8]: *See R**adio Carrollton*, 69 FCC 2d 1138, 1150 (1978),
    *clarified*, 69 FCC 2d 424 (1978), *recon. denied*, 72 FCC 2d 264
    (1979), *aff\'d sub nom.*, *Faulkner Radio, Inc. v. FCC*, No.
    79-1749 (D.C. Cir. October 15, 1980), *cert. denied*, 450 U.S. 1041
    (1981).