> **DA 05-1306**

***In Reply Refer to:***

1800B3-CLR

MBC Grand Broadcasting, Inc.

c/o J. Geoffrey Bentley, Esq.

Bentley Law Office

2700 Copper Creek Road

Herndon, VA 20171

Leggett Broadcasting, Inc.

c/o Mr. Brad Leggett

2808 North Avenue

Grand Junction, CO 81501

Western Slope Communications, LLC

c/o Tom W. Davidson, Esq.

Akin Gump Strauss Hauer & Feld LLP

1333 New Hampshire Avenue, NW

Washington, DC 20036

**Re:** KSTR-FM, Montrose, CO

Facility ID No. 21629

File No. BALH-20040715ABL

Application for Assignment of License

Gentlemen:

We have before us the above-captioned application (the "Application") of
MBC Grand Broadcasting, Inc. ("MBC Grand"), by which the company seeks
consent to assignment of the license of broadcast station KSTR-FM,
Montrose, Colorado, from Leggett Broadcasting, Inc. ("Leggett"). We also
have before us the September 30, 2004, Petition to Deny (the "Petition")
filed by Western Slope Communications, LLC ("Western Slope") and related
pleadings.[^1] After reviewing the record, we find that the proposed
transaction is consistent with the public interest. Accordingly, we deny
the Petition and grant the Application.

MBC Grand is the licensee of AM broadcast stations KNZZ and KTMM, Grand
Junction, Colorado, and FM broadcast stations KJYE, KMGJ, and KMOZ-FM,
Grand Junction, Colorado.[^2] All five stations are listed by BIA as
"home" to Arbitron's Grand Junction, Colorado Metro Survey Area (the
"Grand Junction Metro"), as is KSTR-FM.

Leggett and MBC Grand filed the Application during the period in which
the United States Court of Appeals for the Third Circuit (the "Third
Circuit") had stayed the effectiveness of the new local radio ownership
rule adopted by the Commission on June 2, 2003.[^3] The public notice
announcing the acceptance for filing of the Application invited comment
on the level of concentration in the Grand Junction Metro.[^4]

Western Slope responded to this notice, asserting in its Petition that
MBC Grand's acquisition of KSTR-FM would contravene Section 310(d) of
the Communications Act of 1934, as amended, by further consolidating an
already highly concentrated market.[^5] Salazar likewise opposes the
transaction on grounds of market concentration.[^6] Western Slope
further alleges that stations licensed to United Ministries should be
attributed to MBC Grand. In support, it points to the original terms for
financing the sale of KDTA to United Ministries,[^7] the collocation of
technical facilities of MBC Grand and United Ministries stations, and
the presence of certain links between the companies' websites as
evidence of a less than arms-length relationship that, it contends,
would result in a violation of the Commission's local radio ownership
rule.[^8]

In response to the Commission's petition for rehearing of the
*Prometheus Remand Order*, on September 3, 2004, the Third Circuit
partially lifted its stay such that the new local radio ownership rule,
as set forth in the *Ownership Report and Order*, took effect, including
use of the Arbitron-based market definition where Arbitron data (as
reported by BIA) are available.[^9] In the *Ownership Report and Order*,
the Commission stated that "\[b\]y applying the numerical limits of the
local radio ownership rule to a more rational market definition, we
believe that, *in virtually all cases*, the rule will protect against
excessive concentration levels in local radio markets that might
otherwise threaten the public interest."[^10] Western Slope and Salazar
cite no evidence, nor do we find any, to suggest that the new radio
ownership rule is inadequate in this case to protect against competitive
harm. Accordingly, we analyze this transaction using the Grand Junction
Metro as the relevant radio market.

BIA reports 21 commercial and noncommercial educational radio stations
as "home" to the Grand Junction Metro. Thus, a single entity may own up
to six stations, no more than four of which are in the same
service.[^11] Staff analysis confirms that, upon consummation of the
proposed transaction, MBC Grand will control four FM and two AM stations
in compliance with the Commission's rules.

We also find that Western Slope's remaining allegations are without
merit. They neither articulate any ground for attributing to MBC Grand
stations licensed to United Ministries, nor call into question United
Ministries' ultimate control over its stations' personnel, programming,
and finances.[^12] Although, as Western Slope notes, United Ministries
originally planned to finance its acquisition of KDTA in part by
executing a promissory note for approximately 37.5% of the purchase
price in favor of MBC Grand, the amended Asset Purchase Agreement
provided that the entire purchase price be paid in cash at closing,
eliminating any debtor-creditor relationship between the companies.[^13]
As for the collocation of MBC Grand and United Ministries stations, the
Commission has long recognized the sharing of technical facilities as
generally beneficial.[^14] Finally, we find wholly unpersuasive Western
Slope's contention that certain minimal website links between the
companies evidence an improper relationship.[^15]

Based on the evidence presented in the record and available through the
BIA database, we find that Western Slope has not raised a substantial
and material question of fact warranting further inquiry. We further
find that MBC Grand is qualified as the assignee and that grant of the
Application is consistent with the public interest, convenience and
necessity. Accordingly, IT IS ORDERED, that the Petition to Deny filed
by Western Slope Communications, LLC and the informal objection filed by
Mr. Roberto Salazar ARE DENIED. IT IS FURTHER ORDERED, that the
application to assign the license of station KSTR-FM, Montrose, Colorado
(File No. BALH-20040715ABL) from Leggett Broadcasting, Inc. to MBC Grand
Broadcasting, Inc. IS GRANTED.

Sincerely,

Peter H. Doyle, Chief

> Audio Division
>
> Media Bureau

cc: Mr. Roberto Salazar

[^1]: MBC Grand filed an Opposition to Petition to Deny on October 15,
    2004. Western Slope filed a Reply on November 1, 2004. MBC Grand
    filed a Supplement to Opposition to Petition to Deny on January 7,
    2005.

    Mr. Roberto Salazar ("Salazar") also submitted a letter dated April
    14, 2005, opposing the transaction (the "Salazar Letter"). Petitions
    to deny the Application were due on October 1, 2004. 47 C.F.R. §
    73.3584(a). The Salazar Letter thus fails to meet the requirements
    of a petition to deny. In addition, as of the release of this
    decision the staff has not received a copy through official
    Commission channels and learned of it only through MBC Grand's
    counsel. Nonetheless, we will treat the Salazar Letter as an
    informal objection, pursuant to Section 73.3587 of the Commission's
    rules. 47 C.F.R. § 73.3587.

[^2]: At the time it filed the Application, MBC Grand was also the
    licensee of AM broadcast station KDTA, Delta, Colorado. It has since
    assigned the station's license to United Ministries, pursuant to the
    Commission consent granted in File No. BAL-20040813AAR. Our records
    indicate that the parties consummated the KDTA assignment on
    November 16, 2004.

[^3]: *See 2002 Biennial Regulatory Review -- Review of the Commission's
    Broadcast Ownership Rules and Other Rules Adopted Pursuant to
    Section 202 of the Telecommunications Act of 1996*, 18 FCC Rcd 13620
    (2003) ("*Ownership Report and Order*"), *aff'd in part and remanded
    in part*, *Prometheus Radio Project, et al. v. F.C.C.*, 373 F.3d 372
    (3d Cir. 2004) ("*Prometheus Remand Order*"), *stay modified on
    reh'g*, No. 03-3388 (3d Cir. Sept. 3, 2004) ("*Prometheus Rehearing
    Order*").

[^4]: *See Public Notice*, "Broadcast Applications," Report No. 25811
    (rel. Sept. 1, 2004).

[^5]: Petition at 5-7.

[^6]: Salazar Letter at 2.

[^7]: *See supra* note 2.

[^8]: Petition at 3-5.

[^9]: *Prometheus Rehearing Order*, *supra* note 3.

[^10]: *Ownership Report and Order*, 18 FCC Rcd at 13813 (emphasis
    added).

[^11]: 47 C.F.R. § 73.3555(a).

[^12]: *See, e.g., WGPR, Inc.*, 10 FCC Rcd 8140 (1995).

[^13]: Opposition at 9-11 and Exhibit D (Declaration of Ken Andrews,
    Vice President of United Ministries).

[^14]: *See* *Revision of Radio Rules and Policies*, 7 FCC Rcd 2755,
    2787 (1992) (subsequent history omitted).

[^15]: *See Secret Communications II, LLC*, 18 FCC Rcd 9139, 9149 (2003)
    (recommending attentiveness to "website depictions" but declaring
    "speculative" claims that links between the websites of a licensee's
    stations and the websites of stations for which the licensee sold
    advertising time pursuant to a Joint Sales Agreement ("JSA")
    evidenced an abdication of control by the licensee of the JSA
    stations).