**DA 08-409** *In Reply Refer To:*

1800B3-MJW

Released: February 19, 2008

Dennis J. Kelly, Esq.

Post Office Box 41177

Washington, DC 20018

Gregory L. Masters, Esq.

Wiley Rein LLP

1776 K Street, NW

Washington, DC 20036

Re: KFCD(AM) Farmersville, TX

Facility ID No. 43757 File No. BAL-20060117ACU

KHSE(AM), Wylie, TX

Facility ID No. 133464

File No. BAP-20060117ACV

**Applications for Assignment of License**

**Petition for Reconsideration**

Dear Counsel:

We have before us a Petition for Reconsideration ("Petition")[^1] filed
by David A. Schum *et al.* ("Petitioners")[^2] seeking reconsideration
of the Audio Division's letter decision[^3] of December 28, 2006, which
denied Petitioners' Petition to Deny the captioned assignment
applications. We also have before us an Opposition to Petition for
Reconsideration ("Opposition")[^4] filed by Bernard Dallas, LLC
("Bernard") and a Reply to Opposition to Petition for Reconsideration
("Reply")[^5] filed by Petitioners. For the reasons stated below, we
deny the Petition.

**Background.** The *Decision*, *inter alia*: (1) rejected Petitioners'
unsupported claim that Bernard failed to disclose foreign ownership
interests in its principal equity owner, D. B. Zwirn Special
Opportunities Fund, L.P. ("DBZ"), thereby violating Section 310 of the
Communications Act of 1934, as amended;[^6] (2) found that Petitioners
had not established a *prima facie* case that DBZ engaged in an
unauthorized transfer of control of KHSE(AM); and (3) granted the
applications to assign the license of Station KFCD(AM), Farmersville,
TX, and the construction permit of Station KHSE(AM), Wylie, TX, from DFW
Radio License, LLC to Bernard.[^7]

On reconsideration, Petitioners allege that there is new evidence of
Bernard's non-compliance with Section 310, *i.e.,* a Bloomberg.com
article stating: (1) that a DBZ-associated hedge fund had withdrawn its
registration with the Securities and Exchange Commission ("SEC");[^8]
(2) that a "key employee in the Zwirn organization plead (sic) guilty to
federal criminal charges . . . during a prior employment at
Citigroup;"[^9] and (3) that Connecticut's Attorney General told a
reporter that hedge funds should be subjected to greater scrutiny
because of their "aura of secrecy."[^10]

**Discussion.** Under Section 1.106(c) of the Commission's rules (the
"Rules"),[^11] reconsideration is warranted only if a petitioner
presents relevant facts that could not, with diligence, have been
presented to the Commission in earlier filings. Petitioners submit that
the Bloomberg.com article satisfies the Section 1.106 timeliness
requirement because the information in the article was not available
during the pleading cycle associated with their Petition to Deny,[^12]
and because the article contains information relevant to the alleged
Section 310 violation.

We need not decide whether the Petition is timely because we find the
information therein irrelevant[^13] to DBZ's compliance with the
provisions of Section 310. Petitioners imply that D.B. Zwirn and Co.
withdrew its SEC registration because it was concerned that the
registration would disclose foreign ownership interests in DBZ. We
cannot draw such a speculative inference, especially in view of the
statement in the Bloomberg.com article that over one-hundred other
companies also withdrew their registrations when a court invalidated an
SEC regulation that had previously required these companies to register.
The Connecticut Attorney General's views about disclosures by hedge
funds are unconnected to Commission intent in identifying foreign
ownership interests in those funds. Petitioners have not established
that D.B. Zwirn's former employee's criminal conviction is relevant to a
Section 310 violation. As in the *Decision,* we find nothing here that
refutes the sworn statement by a DBZ executive that "\[t\]here is no
direct or indirect foreign equity ownership in Bernard Dallas LLC."[^14]

Petitioners also seek to "incorporate by reference their factual showing
and legal arguments made in their Petition to Deny,"[^15] concerning
alleged unauthorized transfer of control, alleged abuse of process when
Bernard's Texas counsel threatened to take legal action against Mr.
Schum,[^16] and Bernard's alleged retention of a prohibited reversionary
interest.[^17] We agree with Bernard[^18] that using incorporation by
reference to reprise arguments already made and rejected is
improper.[^19] The Commission will not grant reconsideration "merely for
the purpose of again debating matters on which the tribunal has once
deliberated and spoken."[^20] We therefore decline to reconsider
Petitioners' repetitive arguments and their request for an evidentiary
hearing.[^21]

**Decision.** Accordingly, IT IS ORDERED that the Petition for
Reconsideration filed January 29, 2007 by David A. Schum, J. Michael
Lloyd, Frank D. Timmons, Carol D. Kratville, Brian M. Brown, Robert E.
Howard, Edwin E. Wodka, John W. Saunders and Richard J. Drendel IS
DENIED.

Sincerely,

Peter H. Doyle

Chief, Audio Division

Media Bureau

[^1]: The Petition was filed on January 27, 2007.

[^2]: In addition to Mr. Schum, Petitioners include J. Michael Lloyd,
    Frank D. Timmons, Carol D. Kratville, Brian M. Brown, Robert E.
    Howard, Edwin E. Wodka, John W. Saunders and Richard J. Drendel. The
    Petition was filed Jan. 29, 2007. Petitioners are equity owners of
    The Watch, the parent company of DFW Radio, a former licensee of
    KFCD(AM) and former permittee of KHSE(AM). *See DFW Radio Licensee,
    LLC and Bernard Dallas LLC*, Letter, 21 FCC Rcd 14996 (MB 2006)
    ("*Decision*").

[^3]: *Id.*

[^4]: The Opposition was filed on February 12, 2007.

[^5]: The Reply was filed on February 23, 2007.

[^6]: 47 U.S.C. § 310 ("Section 310").

[^7]: The *Decision* established that Bernard's payment of KHSE
    construction costs did not make out a *prima facie* case that an
    unauthorized transfer of control had occurred. *Id.* at 15001-15002.

[^8]: *See* Petition at 3 and Appendix A. Although Petitioners discuss
    only the Bloomberg.com article, Appendix A also contains a similar
    article from the New York Post.

[^9]: The articles, *supra* n.Error: Reference source not found, also
    report that D.B. Zwirn & Co. discharged the employee in 2004 after
    learning of his plea to the criminal charges.

[^10]: *See* Petition at 3.

[^11]: 47 C.F.R. § 1.106(c).

[^12]: *See* Petition at 3.

[^13]: *Cf. Letter to Joseph Isabel,* 22 FCC Rcd. 18630, 18361 (MB 2007)
    ("The Commission has consistently held that newspaper articles are
    the equivalent of hearsay . . .."), *citing Heidi Damsky*,
    Memorandum Opinion and Order, 13 FCC Rcd. 16352 (1998) and *Pikes
    Peak Broadcasting Co.*, Memorandum Opinion and Order, 12 FCC Rcd
    4626 (1997).

[^14]: *See Decision*, 21 FCC Rcd at 15003.

[^15]: Petition at 8.

[^16]: *See* *id.* at 12.

[^17]: *Id.*

[^18]: *See* Opposition at 2-3, *citing* *WWIZ, Inc.*, 37 FCC 685, 686
    (1964), *aff\'d sub nom. Lorain Journal Company v. FCC*, 351 F.2d
    824 (D.C. Cir. 1965), *cert. denied*, 383 U.S. 967, *rehearing
    denied*, 384 U.S. 947, *petition to reopen denied*, 4 FCC 2d 608
    (1966) ("WWIZ"); *WAIT Radio,* 46 RR 2d 1556 (1980).

[^19]: In analogous circumstances, the Commission stated: "Such
    incorporation by reference is not allowed under our rules. Our rules
    do not allow for a 'kitchen sink' approach to an application for
    review, rather the burden is on the Applicant to set forth fully its
    argument and all underlying relevant facts in the application for
    review." *Red Hot Radio*, Memorandum Opinion and Order*,* 9 FCC Rcd
    6737, 6745 n.63 (2004).

[^20]: *WWIZ, Inc.*, 37 FCC at 686.

[^21]: *See* Petition at 12-13*. See also, Citizens for Jazz on WRVR
    Inc. v. FCC*, 775 F.2d 392, 395 (D.C. Cir. 1985). (A hearing is
    required only if "the totality of the evidence arouses a sufficient
    doubt on the point that further inquiry is called for.")