**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In re Applications of            | *  | File No. BAL-20010724AAW     |
|                                  | *) |                              |
| Kidd Communications              | ** | File No. BAL-20010808AAR     |
|                                  |    |                              |
| (Assignor)                       | *  |                              |
|                                  | *) |                              |
| and                              | ** |                              |
|                                  |    |                              |
| Alan Slater, Trustee, Chief      | *  |                              |
| Executive Officer/Clerk of the   | *) |                              |
| Superior Court of the            | ** |                              |
|                                  |    |                              |
| State of California              | *  |                              |
|                                  | *) |                              |
| (Assignee)                       | ** |                              |
|                                  |    |                              |
| For Involuntary Assignment of    | *  |                              |
| License of                       | *) |                              |
|                                  | ** |                              |
| Station KTHO(AM), South Lake     |    |                              |
| Tahoe, California                | *  |                              |
|                                  | *) |                              |
| And                              | ** |                              |
|                                  |    |                              |
| Alan Slater, Trustee, Chief      | *  |                              |
| Executive Officer/Clerk of the   | *) |                              |
| Superior Court of the            | ** |                              |
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| State of California              | *  |                              |
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| (Assignor)                       | ** |                              |
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| and                              | *  |                              |
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| Paradise Broadcasting, Inc.      | ** |                              |
|                                  |    |                              |
| (Assignee)                       | *  |                              |
|                                  | *) |                              |
| For Assignment of License of     | ** |                              |
|                                  |    |                              |
| Station KTHO(AM), South Lake     | *  |                              |
| Tahoe, California                | *) |                              |
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+----------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted: July 13, 2004 Released: July 16, 2004**

By the Commission:

1\. The Commission has under consideration an Application for Review
filed by Chris Kidd d/b/a Kidd Communications ("Kidd") and related
pleadings regarding station KTHO(AM), South Lake Tahoe, California.[^1]
Kidd requests review of an October 17, 2001, Mass Media Bureau decision
("Staff Decision")[^2] that affirmed the August 1, 2001, grant of the
captioned application for the involuntarily assignment of the license
from Kidd to Alan Slater, Trustee, Chief Executive Officer/Clerk of the
Superior Court of the State of California ("Trustee"). The Staff
Decision also granted the assignment of the KTHO(AM) license from the
Trustee to Paradise Broadcasting, Inc. ("PBI"). In contesting both
assignments, Kidd raised a single issue: whether the subject assignment
applications were filed to effectuate a reversionary interest in the
station's license in violation of Section 73.1150 of the Commission's
rules.[^3] We find no error in the Staff Decision and deny the
Application for Review.

2\. **Background.** On July 10, 1995, the Commission granted an
assignment of license of KTHO(AM) from PBI to Kidd.[^4] As consideration
for the sale of the station, Kidd had executed a promissory note
("Original Note") which stated that, as security, Kidd "pledges all of
the station assets, including but not limited to broadcasting and office
equipment, goodwill, and receivables." That Note further stated that the
"assets to be secured will not include any FCC licenses." Kidd failed to
make payments on the Original Note and PBI sued Kidd in California
Superior Court (Orange County) ("Orange County Superior Court").[^5] To
settle the litigation, Kidd executed a new promissory note on July 15,
1997 ("New Note"). The New Note contained the following language at
issue here:

> In the event of a default which is not cured, both parties agree to
> act reasonably
>
> and in good faith to effect an orderly turnover of the station to
> Paradise.

3\. Kidd defaulted on the New Note as well, and PBI initiated
foreclosure proceedings.[^6] Extensive litigation followed, including
the filing of three Chapter 13 bankruptcy petitions by Kidd, which PBI
alleges were tactics to delay disposition in the foreclosure
proceedings.[^7] In December 1999, pursuant to the foreclosure
proceedings, a public auction was held to dispose of the station's real
property: the transmission facilities, towers and the land which they
occupy.[^8] PBI, the successful bidder at auction, acquired title to the
real property, but Kidd refused to surrender it. PBI commenced an
unlawful detainer action in California Superior Court (El Dorado
County).[^9] While the unlawful detainer case was pending, on January
25, 2000, PBI commenced another action in Orange County Superior
Court[^10] for breach of contract and specific performance to recover
the personal property, *e.g.,* studio equipment, furnishings, etc., and
to enforce the New Note provision to "act reasonably and in good faith
to effect an orderly turnover of the station" to PBI.

4\. The El Dorado County Superior Court acted first: PBI prevailed in
the unlawful detainer action,[^11] and, on October 16, 2000, took
possession of the land together with the towers and transmitter for
KTHO(AM). As counsel for Kidd reported, the station then went silent,
effective October 17, 2000.[^12] On January 25, 2001, the Orange County
Superior Court issued a Tentative Decision finding Kidd in default and
awarding possession of the KTHO(AM) personal property to PBI ("First
Tentative Decision"). The First Tentative Decision denied, however,
PBI's request that Kidd sign an application "requesting the FCC to
assign the radio license."[^13] On May 18, 2001, pursuant to PBI's
motion to reopen the trial on the issue of assignment of the station
license, the Orange County Superior Court issued the Tentative Decision
After Reopening of Trial on the Issue of the Award, Transfer or
Assignment of Station License ("Second Tentative Decision").[^14] In the
Second Tentative Decision, which became the final court decision on this
matter, the court ordered Kidd to sign an application seeking the
Commission's consent to assign the license to PBI. Kidd refused to do
so. The court then appointed its Clerk, Alan Slater, as Trustee for the
purpose of executing an assignment application on Kidd's behalf.[^15]

5\. As noted above, the staff granted the assignment to the Trustee and,
subsequently, from the Trustee to PBI.[^16] Although Kidd had willingly
executed the New Note, Kidd argued to the Commission that the
default-remedy clause in question violates Section 73.1150 of our rules.
In support of this claim, Kidd relied primarily on two cases in which
the Commission found such a violation.[^17] Kidd largely reiterates its
same arguments on review and asserts that both grants of the
above-captioned assignment applications contravene Section 73.1150.

6\. **Discussion.** We do not agree with Kidd that the New Note
provision at issue violates the reversionary interest rule. Section
73.1150, titled "Transferring a station," states in relevant part:

> \(a\) *In transferring a broadcast station*, the licensee may retain
> no right of reversion of the license, no right to reassignment of the
> license in the future, and may not reserve the right to use the
> facilities of the station for any period whatsoever.
>
> \(b\) No license, renewal of license, assignment of license or
> transfer of control of a corporate licensee will be granted or
> authorized if there is a contract, arrangement or understanding,
> express or implied, pursuant to which, as consideration or partial
> consideration for the assignment or transfer, such rights, as stated
> in paragraph (a) of this section, are retained.[^18]

7\. On its face, Section 73.1150 applies exclusively to contracts
executed in conjunction with the transfer of a station. Thus, to
implicate Section 73.1150, a licensee must retain or reserve one of the
rule's delineated rights in conjunction with the transfer of control of
a station or an assignment of license. Once the parties have consummated
a Commission-approved sale, we consider the transfer completed and
Section 73.1150 no longer applicable. Of course, if an agreement raising
a reversionary interest issue were to come to our attention
subsequently, having been executed either prior to or in connection with
the sale's consummation, we would evaluate it under Section
73.1150.[^19] That, however, is not the case here.

8\. There is nothing in the history of the rule to indicate that the
Commission ever intended Section 73.1150 to apply to a contract executed
two years after the transfer of a station, in the context of litigation,
as was the case with the New Note. In its 1949 adoption of the precursor
to the current rule,[^20] the Commission emphasized that a station
licensee is fully responsible for the conduct of the station and its
operation in the public interest, and that such responsibility cannot be
delegated by contract or otherwise.[^21] Licensees were inclined to
reserve programming time on the stations they were selling, and buyers
were accommodating these reservations as consideration for the
sale.[^22] This practice led the Commission to adopt rules restricting
reservation-of-time contracts to safeguard licensee control. Notably,
the rules were titled "Special Rules Relating to Contracts Providing for
Reservation of Time *Upon Sale* of a Station" (emphasis added). The
rules were clearly intended to apply to a sale, and not to subsequent
developments. The Commission stated that "it is not in the public
interest and inconsistent with the nature of the rights conferred by a
licensee . . . and duties for owners of radio stations as part of *the
consideration for the transfer of such stations\[ \]* to reserve the
right of use of radio time on the station being sold, to attempt to
obtain a right of reverter of license, or to obtain other rights which
under the Communications Act can be exercised only by licensees."[^23]
Present-day Section 73.1150 emerged pursuant to a 1979 *Order*[^24] and
consolidated separate rules for the AM, FM, and television
services.[^25] New Section 73.1150 was retitled "Transferring a
station." The new title was intended to reflect the rule's reference to
more than the reservation of time, as "the text refers also to rights of
reversion and reassignment of license."[^26] It remained explicit,
however, about the rule's scope, limited to arrangements made in
connection with a station sale. By its history, title and terms, Section
73.1150 has pertained to the context of a station transfer, and not to
later arrangements.[^27]

9\. The Original Note was contained within the 1995 PBI-to-Kidd
assignment of license application. As it had been executed in
conjunction with the 1995 station transfer, the staff appropriately
evaluated it in light of the provisions of Section 73.1150. The staff
correctly determined that the assignment application complied with
Commission rules. In particular, the Original Note explicitly excluded
the license as a secured asset. We are not bound by the finding of the
Orange County Superior Court which later resolved a different issue on a
different record. Moreover, Kidd has not alleged that the Original Note
was problematic under our rules or the statute. The New Note was neither
executed nor filed in association with an assignment of the license of
KTHO(AM) to Kidd. Rather, PBI and Kidd negotiated the New Note two years
later to cure a breach of contract and resolve then-pending civil
litigation.[^28] Accordingly, whatever consideration was conveyed to
*former* licensee PBI by the New Note, such consideration cannot
implicate Section 73.1150. The New Note simply falls beyond the rule's
scope. The major cases cited by Kidd in which the Commission found a
reversionary interest \-- *Radio KDAN* and *Merkley*[^29] \-- are
factually distinguishable from the instant matter. Both cases involved
contracts executed in connection with the assignment of license or
transfer of control of a station, either prior to or at closing.[^30] In
sum, we reject Kidd's argument that the New Note conferred a
reversionary interest to PBI in violation of Section 73.1150.

10\. We also find that accommodation of the Orange County Superior
Court's decision is appropriate. PBI contends that the Commission has
approved arrangements similar to those at issue here and cites
specifically to *Arecibo Radio Corp.* ("*Arecibo*").[^31] Kidd asserts
that *Arecibo* is inapposite because the parties did not raise
particular contractual provisions alleged to violate Section 73.1150. We
disagree with Kidd. Following a transfer of control of the licensee, the
new shareholders \-- who had agreed to installment payments \-- were
sued by the former shareholders. Finding in favor of the former
shareholders, the court ordered that the assets be sold at public
auction, and the former shareholders were the successful bidders. In
further judicial proceedings, however, the court determined that the
value of the station assets without the licenses was incomplete,[^32]
and that the Commission should have an opportunity to consider whether
the station license should be assigned to the party which had obtained
the station's physical assets at auction.[^33] The court therefore
ordered the new shareholders \-- who held the licenses \-- to sign the
necessary Commission applications to assign the licenses back to the
former shareholders.[^34] The Commission granted that assignment of the
licenses to the seller. In so doing, the Commission stated that the
court's action had not interfered with the new shareholders' "right to
assert before the Commission any argument regarding the assignment
applications, and the court specifically left to the Commission the
determination of all public interest issues which might be raised by the
applications."[^35] The Commission also noted the public benefit of
granting assignment of the license to the party that was in a position
to resume operations and to provide service to the public.[^36]
Recognizing that "\[a station's\] operating authorization must usually
accompany \[its\] physical assets," the Commission found "no reason to
depart from that principle" on the facts of *Arecibo.*[^37]

11\. Although *Arecibo* did not present an issue under Section 73.1150,
it is directly relevant to our analysis because it illustrates the
Commission's long-standing policy to accommodate court decrees unless a
public interest determination under the Act compels a different
result.[^38] The Commission normally defers to judicial determinations
regarding private contractual disputes and the interpretation and
enforcement of contracts for the sale of a broadcast station,[^39] while
the Commission retains exclusive authority to license broadcast
stations.[^40] Often we must reach a fair accommodation between our
licensing jurisdiction and the power of state and local courts to
adjudicate contractual disputes.[^41] Indeed, the U.S. Supreme Court has
stated that "the principle of fair accommodation between State and
federal authority . . . *should* be observed" if the state's laws "can
be effectively respected while at the same time reasonable opportunity
is afforded for the protection of that public interest" which underlies
licensing decisions.[^42]

12\. Accommodation of the court's decision to compel Kidd to sign an
application seeking assignment of the license to the Trustee and then to
PBI contravenes neither the Act nor our rules. In its pursuit of a
remedy for Kidd's default, and as a result of Kidd's various other
actions, PBI had to engage in protracted litigation in two separate
courts. In the exercise of its jurisdiction, the Orange County Superior
Court determined that Kidd had breached its contract with PBI. As noted
above, PBI returned to the court seeking to persuade it that Kidd should
cooperate in an assignment application for return of the license to PBI.
Initially, PBI failed in that effort: based on its review of the
relevant documents, the court concluded that there was no evidence that
the station property subject to the New Note included the license.[^43]
It was only after the court reopened the case on PBI's motion and PBI
returned to present additional witness testimony that the Orange County
Superior Court reversed itself. By then, more than a year had passed
since PBI had been awarded title to the station's transmission
equipment, towers and land. The court eventually fashioned a remedy that
directed Kidd to sign an assignment application to fully cure PBI's
injury. The court properly reserved to the Commission the resolution of
all public interest issues concerning the assignment applications.
Kidd's ability to advance any argument while the applications were
pending before the Commission was in no way impaired by the court's
order. In these respects, the court's remedy was indistinguishable from
the remedy approved by the Commission in *Arecibo.*[^44]

13\. Furthermore, as in *Arecibo*, we find that accommodation of the
court's order in this case best serves the public interest. Grant of the
subject applications returned KTHO(AM) to broadcast operations after
almost a year of discontinued service. If the station had not resumed
operations by October 18, 2001, the KTHO(AM) license would have been
forfeited by operation of law.[^45] Hence, as a practical matter,
severance of the licensed facilities from the license would have
"disable\[d\] the Commission from protecting the public interest
committed to its charge,"[^46] as listeners would have been deprived of
the broadcast service provided by KTHO(AM) for a more prolonged period
\-- and possibly indefinitely. Kidd never indicated to the Commission
that it would have been able to return the station to the air prior to
forfeiture of the license. Instead, Kidd pursued a course that
jeopardized the license, hindering measures that would allow for
compensation to the party injured by Kidd's adjudicated breach of
contract and unlawful detention of the station's real property. In sum,
we find that the New Note does not violate Section 73.1150 and that the
public interest is served by grant of the subject applications to PBI,
whom we find fully qualified to be a Commission licensee.

14\. Accordingly, IT IS ORDERED that the November 16, 2001, Application
for Review filed by Kidd Communications IS HEREBY DENIED.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

[^1]: The Application for Review was filed on November 16, 2001.
    Paradise Broadcasting, Inc. and Alan Slater, Trustee, Chief
    Executive Officer/Clerk of the Superior Court of the State of
    California, filed a Joint Opposition on December 3, 2001. Kidd filed
    a Reply on December 10, 2001.

[^2]: *Letter to Dan J. Alpert, Esq. and Erwin G. Krasnow, Esq.*, Ref.
    No. 1800B3-BSH (MMB, Oct. 17, 2001).

[^3]: 47 C.F.R. § 73.1150.

[^4]: File No. BAL-19950526EA.

[^5]: Orange County Superior Court, Central Dist., Case No. 768532.

[^6]: *See* Joint Opposition to Application for Review at 6.

[^7]: *Id.* at 6-7.

[^8]: *Id.* at 6.

[^9]: South Lake Tahoe Superior Court Case No. SVU 2888.

[^10]: Orange County Superior Court, Central Dist., Case No. 00 CC0
    1383.

[^11]: *See* Joint Opposition to Application for Review at 6.

[^12]: KTHO(AM) remained silent until the station resumed operations on
    October 16, 2001. *See Letter from Erwin G. Krasnow, Esq.* (Oct. 19,
    2001). *See also infra* ¶ 13.

[^13]: *See* September 28, 2001, Consolidated Reply to Joint Opposition
    to Petition to Deny and Opposition to Petition for Reconsideration
    ("Consolidated Reply"), Attachment 3 (Orange County Superior Court,
    Central Dist., Case No. 00 CC0 1383, Minute Order, Jan. 25, 2001).

[^14]: *See* Consolidated Reply, Attachment 6 (Orange County Superior
    Court, Central Dist., Case No. 00 CC0 1383, Minute Order, May 18,
    2001).

[^15]: *See* Consolidated Reply, Attachment 2. The court also enjoined
    Kidd from assigning the KTHO(AM) license to any entity other than
    PBI. *See id.*

[^16]: *See supra* ¶ 1.

[^17]: The two cases are: *Radio KDAN, Inc.*, 11 F.C.C.2d 934 (1968),
    *recon. denied*, 13 R.R.2d 100 (1968), *aff'd on procedural grounds
    sub nom., W.H. Hansen v. FCC*, 413 F.2d 374 (D.C. Cir. 1969)
    ("*Radio KDAN*"); and *Kirk Merkley, Receiver*, 94 F.C.C.2d 829, 837
    (1983), *recon. denied*, 56 R.R.2d 413 (1984), *aff'd sub nom.
    Merkley v. FCC*, 776 F.2d 365 (D.C. Cir. 1985) (*"Merkley")*.

[^18]: 47 C.F.R. § 73.1150(a), (b) (emphasis added).

[^19]: *See, e.g., Radio KDAN, supra* note 17.

[^20]: The original rule appeared in three separate sections of our
    rules, applying respectively to AM, FM and television services: 47
    C.F.R. §§ 3.109, 3.241, and 3.641 (1949).

[^21]: *See Promulgation of Sections 3.109, 3.241 and 3.641 Containing
    Special Rules Relating to Contracts Providing for Reservation of
    Time Upon Sale of a Station*, 43 F.C.C. 405, 406 (1949) ("*Time
    Reservation Rules")*, *recon. denied*, 43 F.C.C. 409 (1949).

[^22]: *See, e.g., James A. Noe*, 14 F.C.C. 146 (1949).

[^23]: *Time Reservation Rules,* 43 F.C.C. at 406 (emphasis added).

[^24]: *Reregulation and Rules Oversight of Radio and TV Broadcasting,*
    FCC 79-610, 44 Fed. Reg. 58719 (1979). Following its occasional
    practice, the Commission published only a summary of the adopted
    *Order* which stated, in part: "In radio and TV b/cing reregulation
    program, Part 73 of Rules amended to clarify and rewrite the 'sale
    of a station' rule (Sec. 73.1150) . . . ." 73 F.C.C.2d 828 (1979).

[^25]: By 1979, the original rule sections (*see supra* note 20) had
    been moved to the following sections: 47 C.F.R. §§ 73.139, 73.241,
    and 73.659 (1979).

[^26]: 44 Fed. Reg. at 58719.

[^27]: Notably, under current Commission rules, a former licensee would
    not be prohibited from entering into various contractual
    arrangements subsequent to the sale of the station, such as an
    option to purchase the station at a future time, or a time brokerage
    agreement ("TBA," also known as a local marketing agreement). A
    prospective purchaser is also permitted under our rules to enter
    into a TBA with the seller, providing programming to the station
    while the sales application is pending. In the event such
    arrangements could vest control in a party other than the current
    licensee, a petitioner or complainant may raise these concerns in
    the context of, *inter alia*, the assignment application, the
    station's license renewal application, or a formal complaint to the
    Commission's Enforcement Bureau.

[^28]: *See supra* ¶ 2.

[^29]: *See supra* note 17.

[^30]: For the first time on review, Kidd also introduces an unpublished
    staff decision that found a facial violation of Section 73.1150.
    *See Letter to Veronica D. McLaughlin, Esq. and David L. Hill,
    Esq.,* Ref. No. 1800B3-MFW (MMB, Apr. 9, 1999). There also, however,
    the contract had been executed at consummation of the sale.
    Moreover, an unpublished decision has no precedential value for
    unrelated parties. *See* 47 C.F.R. § 0.445(e)*.*

[^31]: 101 F.C.C.2d 545 (1985).

[^32]: *Id.* at 547.

[^33]: *Id.* at 549.

[^34]: Ultimately, the court ordered its Marshall to sign the
    application on behalf of the new shareholders who, like Kidd, had
    defied the court's order.

[^35]: *Arecibo*, 101 F.C.C.2d at 549.

[^36]: *Id.* at 550-51.

[^37]: *Id.* at 550 (citing *Merkley*, 94 F.C.C.2d at 829).

[^38]: *Arecibo* also demonstrates that, even without any particular
    default-remedy clause in the parties' contract, courts may
    reasonably find it necessary to have the station licenses accompany
    the tangible assets in order to make the breached party whole. *See
    also O.D.T. International*, 9 FCC Rcd 2575, 2576 (1994); *LaRose v.
    FCC*, 494 F. 2d 1145 (D.C. Cir. 1974).

[^39]: *Arecibo*, 101 F.C.C.2d at 545; *John R. Runner, Receiver
    (KBIF)*, 36 RR 2d 773, 778 (1976); *Decatur Telecasting, Inc.*, 7
    FCC Rcd 8622 (1992).

[^40]: *See* 47 U.S.C. §§ 301, 304, 309(h), 310(d). Accordingly, the
    interpretation and enforcement of the Commission's rule prohibiting
    reversionary interests in a broadcast license is a matter within the
    Commission's jurisdiction. 47 C.F.R. § 73.1150.

[^41]: *See Radio Station WOW, Inc. v. Johnson*, 326 U.S. 120, 131-32
    (1945) ("*Radio WOW*"). *See also O.D.T. International*, 9 FCC Rcd
    at 2576 (Commission must reconcile its rules and policies with
    federal and state court mandates designed to protect creditors).

[^42]: *Radio Wow*, 326 U.S. at 132 (emphasis added).

[^43]: *See supra* ¶ 4.

[^44]: *See Arecibo,* 101 F.C.C.2d at 550.

[^45]: *See* 47 U.S.C. § 312(g); 47 C.F.R. § 73.1740(c) (if a
    broadcasting station fails to transmit broadcast signals for any
    consecutive 12-month period, the station license expires at the end
    of that period).

[^46]: *Radio WOW*, 326 U.S. at 132.