Lauren A. Colby, Esq.

10 E. Fourth Street

P.O. Box 113

Frederick, MD 21705-0113

Thomas L. Bookey, President/CEO

Heartland Communications Group, LLC

645 North Michigan Avenue, Suite 800

Chicago, IL 60611

Frank R. Jazzo, Esq.

Fletcher Heald & Hildreth, PLC

1300 North 17^th^ Street, 11^th^ Floor

Arlington, VA 22209-3801

> In re: **WHRY(AM), Hurley, Wisconsin**

Facility ID No. 5235

File No. BTC-20061115AAW

**WUPM(FM), Ironwood, Michigan**

Facility ID No. 5236

File No. BTCH-20061115AAX

> **Application for Transfer of Control**

**Petition to Deny**

Dear Counsel:

We have before us the above-referenced applications ("Transfer
Application") for consent to transfer control of Big G Little O Inc.,
licensee of Station WHRY(AM), Hurley, Wisconsin, and Station WUPM(FM),
Ironwood, Michigan (collectively, the "Stations"), from Charles H.
Gervasio, Rochelle M. Gervasio, James J. Gervasio, John C. Gervasio,
Judy Gervasio, and Norma T. Rigoni to Gerald J. Hackman ("Hackman") and
John J. Nix ("Nix") (collectively, "Transferees"). On December 19, 2006,
Heartland Communications Group, LLC ("Heartland") filed a Petition to
Deny the Transfer Application.[^1] For the reasons stated below, we deny
the Petition to Deny and grant the Transfer Application.

**Background.** On July 30, 2004, Hackman and Heartland entered into a
Non-Competition Agreement[^2] in connection with Hackman's sale of four
Wisconsin radio stations to Heartland. Under the terms of the
Non-Competition Agreement, Hackman, *inter alia*, agreed that, for a
period of four years, neither he nor his affiliates would engage in
competitive activities within a 35-mile radius of the radio stations
being sold.[^3]

**Discussion.** Heartland argues that grant of the Transfer Application
is inconsistent with the public interest because it would violate the
Non-Competition Agreement between itself and Hackman. Heartland's
Petition to Deny primarily relates to contractual claims between itself
and Hackman. The issues raised by Heartland constitute a private
controversy. The Commission has consistently held that it is not the
proper forum for the resolution of such private disputes, and that the
parties should seek redress for such matters in local courts of
competent jurisdiction.[^4] In this regard, we note that the
Non-Competition Agreement specifically vests either the Cook County,
Illinois courts or the Ashland County, Wisconsin courts with
jurisdiction for all disputes that may arise.[^5]

Heartland states that it intends to seek an injunction against the
proposed sale.[^6] Heartland, however, has not provided evidence of an
injunction or a stay issued by a local court against the proposed
sale.[^7] In the absence of such an order from the local court, the
Commission has routinely acted favorably on license assignment
applications. We note, however, that Commission grant of an assignment
or transfer of control application merely finds that the parties are
qualified under, and the proposed transaction does not violate, the
Communications Act of 1934, as amended, and the Commission\'s rules and
policies. As such, it is permissive only and does not prejudice any
relief to which the parties may ultimately be entitled.

Finally, the Petition to Deny states that "it is Heartland's
understanding that Mr. Hackman and Mr. Nix are significantly involved
not only in soliciting advertising, but also with dictating programming
and managing operations at these stations, raising questions of whether
a premature transfer of control has occurred."[^8] Heartland provides no
further information to support this allegation. The Opposition,
supported by the sworn Declaration of Hackman,[^9] states that Hackman
and Nix do not control programming or operations at the Stations, but
have only executed a written agreement, which is submitted with the
Opposition, that relates to sales commissions.[^10] Based on the above,
we find that Heartland has not raised a substantial and material
question of fact warranting further inquiry.

**Conclusion/Actions**. Accordingly, finding the Transferees qualified
and that grant of the Transfer Application would serve the public
interest, convenience and necessity, the Petition to Deny filed by
Heartland Communications Group, LLC IS DENIED, and that the application
for transfer of control of Big G Little O Inc., licensee of Station
WHRY(AM), Hurley, Wisconsin (File No. BTC-20061115AAW) and Station
WUPM(FM), Ironwood, Michigan (File No. BTCH-20061115AAX) from Charles H.
Gervasio,

Rochelle M. Gervasio, James J. Gervasio, John C. Gervasio, Judy
Gervasio, and Norma T. Rigoni to Gerald J. Hackman and John J. Nix IS
GRANTED.

Sincerely,

Peter H. Doyle

Chief, Audio Division

Media Bureau

[^1]: On April 9, 2007, the Transferees filed a Motion for Leave to File
    Opposition Out of Time and on April 12, 2007, the Transferees filed
    an Opposition to Petition to Deny.

[^2]: *See* Petition to Deny at 1-2; Attachment A.

[^3]: On April 23, 2004, the Commission granted the applications to
    assign the licenses of Stations WNXR(FM), Iron River, Wisconsin
    (File No. BALH-20040311ACC); WBSZ(FM), Ashland, Wisconsin (File No.
    BALH-20040311ACF); WJJH(FM), Ashland, Wisconsin (File No.
    BALH-20040311ACE); and WATW(AM), Ashland, Wisconsin (File No.
    BAL-20040311ACD), from Hackman to Heartland. The parties consummated
    the assignment transaction on August 2, 2004.

[^4]: *See John F. Runner, Receiver (KBIF)*, Memorandum Opinion and
    Order, 36 RR 2d 773, 778 (1976); *Decatur Telecasting, Inc.,*
    Memorandum Opinion and Order, 7 FCC Rcd 8622 (1992).

[^5]: *See* Non-Competition Agreement, §§ 2(c) and 7.

[^6]: Petition to Deny at 2.

[^7]: In the Opposition, Transferees indicate that, on November 21,
    2006, Heartland filed an action in the Circuit Court of Ashland
    County, Wisconsin, seeking enforcement of the Non-Competition
    Agreement. *See* Opposition at 2. Transferees also note that, on
    November 13, 2006, Hackman filed a "Verified Complaint for
    Declaratory Judgment and Breach of Contract" in the Circuit Court of
    Cook County, Illinois, Chancery Division, Case No. 06CH24484.

[^8]: Petition to Deny at 2.

[^9]: Opposition, Exhibit B.

[^10]: *Id.* at 3; Exhibit B.