**FEDERAL COMMUNICATIONS COMMISSION**

**445 12^th^ STREET, S.W.**

**WASHINGTON, DC 20554**

**May 09, 2005**

**DA 05-1292**

***In Reply Refer to:***

1800B3-JWR/NS

Forever of PA, LLC

and Forever Broadcasting, LLC

c/o Allan G. Moskowitz, Esq.

[K]{.smallcaps}aye Scholer LLC

901 15^th^ Street NW, Suite 1100

Washington, DC 20005

> **Re:** WFBG(AM), Altoona, PA Facility ID. No. 38269
>
> File No. BAL-20040712AAJ
>
> WFGY(FM), Altoona, PA Facility ID No. 38265
>
> File No. BALH-20040712 AAK
>
> WLTS(FM), State College, PA Facility ID No. 38271
>
> File No. BALH-20040712AAL
>
> WRKY-FM, Hollidaysburg, PA Facility ID No. 72316 File No.
> BAL-20040712AAM
>
> Applications for Assignment of Licenses

Dear Mr. Moskowitz:

We have before us the applications (the "Assignment Applications") to
assign the licenses of WFBG(AM) and WFGY(FM), Altoona, WLTS(FM), State
College and WRKY-FM, Hollidaysburg, all in Pennsylvania, from Forever of
PA, LLC ("Forever PA") to Forever Broadcasting, LLC ("Forever
Broadcasting"). Also before us is a request for waiver of the
Commission's local radio ownership rule, Section 73.3555(a)[^1] ("Waiver
Request"). For the reasons set forth below, we deny the Waiver Request
and dismiss the Assignment Applications.

Three of the four licenses proposed to be assigned are for stations in
Arbitron's Altoona, Pennsylvania Arbitron Metro Survey Area (the
"Altoona Metro").[^2] According to BIA, 14 commercial and noncommercial
radio stations are "home" to the Altoona Metro. Section
73.3555(a)(1)(iv) provides, in pertinent part, that:

> In a radio market with 14 or fewer full-power, commercial and
> noncommercial radio stations, \[a person or single entity (or entities
> under common control) may have a cognizable interest in\] not more
> than 5 commercial radio stations in total and not more than 3
> commercial stations in the same service (AM or FM); provided, however,
> that no person or single entity (or entities under common control) may
> have a cognizable interest in more than 50% of the full-power,
> commercial and noncommercial radio stations in such market unless the
> combination of stations comprises not more than one AM and one FM
> station.[^3]

The proposed assignee \-- Forever Broadcasting \-- is currently the
licensee of three other stations in the Altoona Metro: WVAM(AM) and
WWOT(FM) (formerly WPRR(FM)), both licensed to Altoona, and WALY(FM),
Bellwood, all in Pennsylvania. Grant of the Assignment Applications
would result in Forever Broadcasting controlling six commercial stations
\-- two AM and four FM stations \-- in the Altoona Metro, which would
violate section 73.3555(a)(1)(iv). Waiver of the rule is thus required
before we can approve the proposed transaction.

Forever PA explains in the Application that the assignments are being
sought in connection with a proposed "merger of Forever of PA, LLC into
Forever Broadcasting, LLC."[^4] In the Waiver Request, Forever PA
further explains that the "sole purpose of the application is . . . to
simplify the organizational structure of the individuals' ownership for
corporate and tax purposes."[^5] The same four individuals are
principals (the "Four Principals") of both the assignor and the
assignee.[^6] Referencing the Commission's Equity/Debt Plus ("EDP")
attribution rule,[^7] Forever PA provides the percentage of "total
assets" owned by each of these Four Principals in the assignor
pre-transaction and in the assignee post-transaction, and asserts that
the percentages remain exactly the same. Thus, Forever PA states, the
Four Principals already "own" the four subject stations. On this basis,
Forever PA argues that there will be no change in control if the
Assignment Applications are granted.[^8] We disagree.

For purposes of administering its multiple ownership rules, the
Commission focuses primarily on voting rights to assess the potential
for investors to influence day-to-day station operations.[^9] The voting
interests of each of the Four Principals will change substantially if
the proposed transaction is approved and consummated: Forever PA
acknowledges that more than 50 percent of the voting rights in the
assignee will be redistributed in connection with the assignment of the
licenses.[^10] This constitutes a change in control.[^11] Forever PA's
reliance on the EDP rule is misplaced. That rule is an additional tool
to determine whether certain traditionally non-attributable interests
\-- such as non-voting stock or debt \-- should nonetheless be treated
as attributable.[^12] Here, however, the attribution status of the Four
Principals is not in question. Each is acknowledged as an attributable
investor in both the assignor and the assignee. It is not appropriate to
analyze the nature of their ownership interests under the EDP rule for
purposes of determining compliance with Section 73.3555(a).

An applicant for waiver must "plead with particularity the facts and
circumstances which warrant such action" and has the burden to show that
the public interest would be served better by waiver than by strict
application of the rule.[^13] Forever PA has failed to sustain its
burden in this regard. Although Forever PA has submitted a pleading
styled as a request for a waiver, the pleading is limited to arguing
that there is actually no violation of Section 73.3555(a) because the
Four Principals allegedly already own the subject stations. Forever PA
does not put forth any public interest benefits that might result if we
were to permit this transaction, nor does it suggest any equitable
considerations that might weigh in favor of waiving the rule.
Essentially, Forever PA merely argues that no waiver is necessary -- an
argument that we reject, as discussed above.[^14] On the record before
us, we cannot find good cause to waive Section 73.3555(a).[^15]

For the foregoing reasons, the Waiver Request filed by Forever of PA,
LLC IS DENIED, and the applications for assignment of the licenses of
stations WFBG(AM) and WFGY(FM), Altoona, WLTS(FM), State College and
WRKY-FM, Hollidaysburg, all in Pennsylvania, from Forever of PA, LLC to
Forever Broadcasting, LLC, File Nos. BAL-20040712AAJ-AAM, ARE HEREBY
DISMISSED.

Sincerely,

Peter H. Doyle, Chief

Audio Division

Media Bureau

[^1]: 47 C.F.R. § 73.3555(a).

[^2]: The fourth station, WLTS(FM), is home to, and within the
    geographic boundary of, the State College, PA Metro. Staff analysis
    confirms that its ownership by Forever Broadcasting would comply
    with 47 C.F.R. Sec. 73.3555(a).

[^3]: 47 C.F.R. § 73.3555(a)(1)(iv).

[^4]: Application at Exhibit 11.

[^5]: Waiver Request at 3.

[^6]: Currently, the 100% owner and sole member of the assignor, Forever
    PA, is Forever of PA, Inc. In connection with the proposed
    transaction, certain non-voting interests held by the shareholders
    of Forever of PA, Inc. are to be converted to voting interests. The
    100% owner and sole member of the assignee, Forever Broadcasting, is
    currently Forever Licenses, LLC. Post-transaction, Forever of PA,
    Inc., as reorganized through the aforementioned stock conversion,
    would be the 10% member of Forever Broadcasting, and Forever
    Licenses would be the 90% member. *See* Application at Exhibit 11.
    *See also infra* note 10 and accompanying text.

[^7]: *See* Waiver Request at 3 (citing *Review of the Commission\'s
    Regulations Governing Attribution of Broadcast and Cable/MDS
    Interests*, 14 FCC Rcd 12559 (1999) ("*Attribution Review Order*")).

[^8]: On this same basis, Forever PA suggests that the 6-station
    combination in the Altoona Metro is "grandfathered." *See* Waiver
    Request at 3 (citation omitted).

[^9]: *See, e.g.,* 47 C.F.R. § 73.3555, Note 2; *Attribution Review
    Order,* 14 FCC Rcd at 12565-68.

[^10]: Forever PA provides the following percentages representing the
    pre-transaction voting control of the shareholders of Forever of PA,
    Inc., which is the sole member of Forever PA, the assignor: Carol B.
    Logan ("Logan"): 38.3%; Donald J. Alt, Trustee (combined voting
    control over interests held by Donald J. Alt Grantor Retained
    Annuity Trust and Judy S. Alt Irrevocable Trust) ("Alt"): 24.4%;
    Kerby E. Confer, Trustee (Kerby E. Confer Grantor Retained Annuity
    Trust) ("Confer"): 24.6%; and Lynn A. Deppen ("Deppen"): 12.7%.
    Post-transaction, the voting control of the Four Principals in
    Forever Broadcasting, the assignee (as reorganized), will be as
    follows: Logan: 15%;

    Alt: 40%; Confer: 40%; and Deppen: 5%. *See* Waiver Request at 1-3;
    Application at Exhibit 11. *See also supra* note 6.

[^11]: *See, e.g., Metromedia, Inc.,* 98 F.C.C.2d 300, 305 (1984).

[^12]: *See* 47 C.F.R. § 73.3555, Note 2(i); *Attribution Review Order,*
    14 FCC Rcd at 12578-91, *recon. granted in part*, 16 FCC Rcd 1097
    (2001) (clarifying EDP rule at 1098-1115).

[^13]: *WAIT Radio v. FCC*, 418 F.2d 1153, 1157 (D.C. Cir. 1969). *See
    also* 47 C.F.R. § 1.3 (the Commission may waive its rules for "good
    cause").

[^14]: Accordingly, we also reject the suggestion (*see supra* note 8)
    that the 6-station combination in the Altoona Metro already exists
    and is grandfathered pursuant to the ownership provisions adopted by
    the Commission in *2002 Biennial Regulatory Review, Report and Order
    and Notice of Proposed Rule Making,* 18 FCC Rcd 13620, 13807-09
    (2003)*, aff'd in part and remanded in part*, *Prometheus Radio
    Project, et al. v. FCC,* 373 F.3d 372 (2004), *stay modified on
    rehearing,* No. 03-3388 (3d Cir. Sept. 3, 2004).

[^15]: *See supra* note 13.