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 FCC  00-  387  Federal  Communications  Commission 
 1 
 Before  the 
 FEDERAL  COMMUNICATIONS  COMMISSION 
 Washington,  D.  C.  20554 


 In  re  Applications  of  )  MM  Docket  No.  97-  128 
 ) 
 Martin  W.  Hoffman,  Trustee-  in-  Bankruptcy.  ) 
 for  Astroline  Communications  Company  ) 
 Limited  Partnership  ) 
 ) 
 For  Renewal  of  License  of  )  File  No.  BRCT-  881201LG 
 Station  WHCT-  TV,  Hartford,  Connecticut  ) 
 ) 
 and  ) 
 ) 
 Shurberg  Broadcasting  of  Hartford  ) 
 ) 
 For  Construction  Permit  for  a  New  )  File  No.  BPCT-  831202KF 
 Television  Station  to  Operate  on  ) 
 Channel  18,  Hartford,  Connecticut  ) 


 MEMORANDUM  OPINION  AND  ORDER 
 Adopted:  October  26,  2000  ;  Released:  November  8,  2000 
 By  the  Commission:  Chairman  Kennard  not  participating. 
 1.  This  Memorandum  Opinion  and  Order  grants  a  Joint  Request  for  Approval  of 
 Settlement  Agreement,  filed  April  4,  2000  by  Martin  W.  Hoffman,  Trustee-  in-  Bankruptcy 
 (  Hoffman  or  Trustee)  for  Astroline  Communications  Company  Limited  Partnership 
 (  Astroline),  Two  If  By  Sea  Broadcasting  Corporation  (  TIBS),  and  Shurberg  Broadcasting  of 
 Hartford  (  Shurberg)  (collectively,  the  Joint  Parties).  Hoffman  is  the  licensee  of  Station 
 WHCT-  TV.  The  Joint  Request  contemplates  a  resolution  of  this  comparative  broadcast  renewal 
 proceeding  whereby  the  Trustees  application  for  renewal  of  license  for  WHCT-  TV  would  be 
 granted,  Shurbergs  mutually  exclusive  application  for  Channel  18  would  be  dismissed,  and  the 
 pending  application  for  the  assignment  of  license  for  WHCT-  TV  from  the  Trustee  to  TIBS,  as 
 amended  to  substitute  Entravision  Holdings,  LLC  (  Holdings),  a  non-  applicant  third  party,  for 
 TIBS  as  the  proposed  assignee,  would  be  granted. 


 2.  On  April  19,  2000,  the  Enforcement  Bureau  filed  comments  in  support  of  the 
 agreement.  1  Richard  P.  Ramirez,  the  former  controlling  general  partner  of  Astroline  and  a  party 


 1  Pursuant  to  a  recent  amendment  of  the  Commissions  rules,  the  newly  created  Enforcement 
 Bureau  now  serves  as  trial  staff  in  hearing  matters.  See  Establishment  of  the  Enforcement  (continued.) 
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 to  this  proceeding,  filed  an  opposition  to  the  Joint  Request  on  May  17,  2000.  2  And  on  July  26, 
 2000,  the  Bureau  filed  further  comments  in  support. 


 I.  BACKGROUND 
 3.  This  proceeding  grew  out  of  the  Commission's  approval  of  the  minority  distress  sale  of 
 Station  WHCT-  TV  to  Astroline  in  1984.  See  Faith  Center,  Inc.,  99  FCC  2d  1164  (1984).  The 
 Commissions  distress  sale  policy  permits  a  licensee  whose  license  has  been  designated  for  revocation 
 hearing,  or  whose  renewal  application  has  been  designated  for  hearing  on  basic  qualifications  issues,  to 
 assign  its  license  prior  to  commencement  of  the  hearing  to  a  minority  controlled  entity.  The  proposed 
 assignee  must  be  basically  qualified  and  meet  the  Commission's  definit  ion  of  a  minorit  y  cont  rolled 
 entity.  See  Commission  Policy  Regarding  the  Advancement  of  Minority  Ownership  in  Broadcasting, 
 92  FCC  2d  849,  855  (1982)  ("  1982  Minority  Ownership  Policy  Statement");  Statement  of  Policy  on 
 Minorit  y  Ownership  of  Broadcast  ing  Facilit  ies,  68  FCC  2d  979,  983  (1978)  ("  1978  Minority 
 Ownership  Policy  Statement").  Shurberg,  which  had  petitioned  to  deny  the  distress  sale  assignment, 
 appealed  the  Commissions  decision  to  federal  court.  The  Supreme  Court  ultimately  affirmed  the 
 Commissions  action  in  Metro  Broadcasting,  Inc.  v.  FCC,  497  U.  S.  547,  pet.  for  rehearing  denied,  497 
 U.  S.  1050  (1990). 


 4.  Meanwhile,  in  1988,  Astroline  filed  for  bankruptcy.  It  also  filed  for  renewal  of  license  in 
 December  1988.  In  1991,  the  Mass  Media  Bureau  granted  Astroline's  application  to  assign  the  license 
 of  WHCT-  TV  to  the  Bankruptcy  Court  approved  trustee,  Hoffman,  under  pro  forma  procedures  in 
 order  to  accommodate  federal  bankruptcy  policies.  In  1993,  Shurberg,  which  had  filed  a  competing 
 application  for  the  station  in  1983,  3  filed  a  petition  to  deny  the  pending  WHCT-  TV  renewal 
 application.  Shurberg  alleged  that  Astroline's  ongoing  representations  to  the  Commission  and  the 
 federal  courts  that  it  qualified  as  a  minority  controlled  entity  for  the  purpose  of  the  minority  distress 
 sale  policy  were  untrue.  Additionally  in  1993,  the  Trustee  filed  an  application  to  assign  the  license  of 
 WHCT-  TV  to  TIBS,  which  application  Shurberg  also  petitioned  to  deny. 


 5.  By  Memorandum  Opinion  and  Order  &  Hearing  Designation  Order,  12  FCC  Rcd  5224 
 (1997)  ("  HDO"),  the  Commission  designated  the  Trustee's  application  for  renewal  of  license  of 
 WHCT-  TV  for  hearing  on  issues  to  determine  whether  Astroline  misrepresented  facts  to  the 
 Commission  and  the  federal  courts  concerning  its  status  as  a  minority  controlled  entity,  and  in  light 


 (Continued  from  previous  page) 
 Bureau  and  the  Consumer  Information  Bureau,  14  FCC  Rcd  17924  (1999);  47  C.  F.  R.   
 0.111(  b).  It  replaces  the  Mass  Media  Bureau  as  a  party  to  this  proceeding. 


 2  Ramirez  was  granted  an  extension  of  time  to  respond  to  the  Joint  Request.  See  Order,  15  FCC 


 Rcd  7547  (OGC  2000). 
 3  Shurberg's  1983  application  initially  was  not  accepted  for  filing  pursuant  to  the  Commission's 


 policy  of  not  accepting  competing  applications  for  stations  in  hearing  status.  The  Mass  Media 
 Bureau  reinstated  Shurberg's  application  in  1991,  which  afforded  Shurberg  status  as  a 
 competing  applicant  against  Astroline's  1988  renewal  application.  Public  Notice,  Report  No. 
 14926,  released  February  8,  1991.  See  also    18,  infra. 
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 thereof,  whether  renewal  of  the  Trustee's  license  would  serve  the  public  interest.  In  an  Initial  Decision 
 ("  I.  D."),  FCC  99D-  1,  released  April  16,  1999,  Administrative  Law  Judge  John  M.  Frysiak  ("  ALJ") 
 held  that  Astroline  did  not  engage  in  misrepresentation  and  granted  the  Trustees  application  for 
 renewal  of  license.  Shurberg  filed  exceptions  to  this  conclusion  and  urged  reversal.  The  Mass  Media 
 Bureau  agreed  with  the  ALJ  that  Astroline  did  not  misrepresent  its  status. 


 6.  After  exceptions  were  filed,  the  parties  reached  an  agreement  to  settle  this  proceeding. 
 Before  turning  to  the  proposed  settlement,  we  address  briefly  the  qualifications  issue  involving 
 Ast  roline. 


 II.  DISCUSSION 
 A.  Astrolines  Qualifications 
 7.  As  indicated  above,  the  parties  to  this  proceeding  have  jointly  proposed  a  settlement  of  their 
 hearing  case.  Although  Shurberg  is  withdrawing  its  exceptions  to  the  I.  D.  s  favorable  resolution  of  the 
 misrepresentation  issue  against  Astroline  as  part  of  the  settlement  agreement  (see    10,  infra),  we  have 
 reviewed  the  record  under  this  issue.  See  Viacom  Inc.,  9  FCC  Rcd  1577  (1994)  (Commission  is 
 obligated  to  consider  merits  of  petition  to  deny  transfer  of  control  application,  regardless  of  subsequent 
 dismissal  of  petition);  Booth  American  Co.,  58  FCC  2d  553  (1976)  (withdrawal  of  petition  to  deny 
 renewal  application  does  not  dispose  of  issues  raised  in  petition). 


 8.  The  issue  is  whether  Astroline  misrepresented  its  status  as  a  minority  controlled  entity  to  the 
 Commission  and  the  federal  courts  in  connection  with  the  distress  sale  of  Station  WHCT-  TV.  In 
 defining  a  minorit  y  cont  rolled  ent  it  y  in  t  he  case  of  a  limited  part  nership  such  as  Ast  roline,  the 
 Commission  has  stated  that  there  is  sufficiently  "significant  minority  involvement"  where  the  minority 
 general  partner  owns  more  than  twenty  percent  of  the  partnership  and  has  "complete  managerial 
 control  over  the  station's  operations."  See  1982  Minority  Ownership  Policy  Statement,  92  FCC  2d  at 
 855.  In  assessing  where  control  resides,  the  Commission  generally  looks  to  det  ermine  who  has 
 authority  over  the  basic  operational  policies  of  the  station,  and  specifically  to  the  areas  of 
 programming,  personnel,  and  finances.  See  Southwest  Texas  Broadcasting  Council,  85  FCC  2d  713, 
 715  (1981);  Bennett  Gilbert  Gaines,  8  FCC  Rcd  1405  (Rev.  Bd.  1993),  rev.  denied,  9  FCC  Rcd  533 
 (1994). 


 9.  In  this  case,  Astroline  repeatedly  represented  that  Ramirez,  a  minority  and  a  general  partner 
 of  Astroline,  owned  twenty-  one  percent  of  Astroline  and  had  control  over  the  station's  affairs.  After 
 carefully  reviewing  the  hearing  record  in  this  proceeding,  we  agree  with  the  ALJ,  despite  the 
 contentions  in  Shurberg's  exceptions,  that  the  preponderance  of  the  evidence  readily  supports  the 
 validity  of  Astroline's  representations.  From  the  inception  of  the  partnership  and  at  all  relevant  times, 
 Ramirez  consistently  maintained  the  necessary  level  of  ownership  and  exercised  control  over  the 
 st  at  ions  finances,  programming,  and  personnel.  Ramirez  alone  had  managerial  cont  rol  over  t  he 
 st  at  ion's  day  to  day  operat  ions.  For  example,  he  acquired  programming  and  negot  iat  ed  wit  h  program 
 suppliers,  hired  the  station's  department  heads  and  senior  personnel,  and  decided  on  purchases  and 
 incurred  all  station  expenditures.  Moreover,  there  is  no  evidence  in  the  record  of  any  conduct 
 reflecting  an  intent  to  deceive  by  Astroline  regarding  its  ownership  and  control.  We  therefore  conclude 
 that  Astroline  did  not  make  statements  to  the  Commission  or  the  courts  that  misrepresented  its  status 
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 as  a  minority  controlled  entity.  See  Swan  Creek  Communications,  Inc.  v.  FCC,  39  F.  3d  1217,  1222 
 (D.  C.  Cir.  1994)  (intent  to  deceive  is  an  essential  element  of  a  misrepresentation  or  lack  of  candor 
 showing);  Fox  River  Broadcasting,  Inc.,  93  FCC  2d  127,  129  (1983)  (misrepresentation  involves  false 
 statements  of  fact  coupled  with  intent  to  deceive).  4  In  light  of  the  foregoing,  it  follows  that  the  Trustee 
 is  qualified  for  renewal  of  its  license. 


 B.  Settlement  Agreement 
 10.  The  settlement  agreement  provides  for:  (a)  dismissal  of  Shurbergs  competing  application 
 for  the  station  and  withdrawal  of  its  exceptions  to  the  I.  D.  and  petition  to  deny  the  Trustees 
 applications  for  renewal  of  license  and  assignment  of  license  to  TIBS;  (b)  renewal  of  the  license  for 
 WHCT-  TV;  (c)  grant  of  the  assignment  application  for  WHCT-  TV,  as  modified  to  provide  that 
 Holdings,  in  place  of  TIBS,  will  become  t  he  licensee  of  the  st  at  ion;  and  (d)  payment  by  Ent  ravision 
 Communications  Company,  L.  L.  C.  (  Entravision),  which  owns  99.999%  of  Holdings,  to  the  Trustee 
 of  $18  million,  of  which  sum  the  Trust  ee,  in  turn,  will  pay  $9.  52  million  t  o  TIBS  and  $7.  48  million  t  o 
 Shurberg,  and  ret  ain  $1  million.  5 


 11.  In  its  comments  in  support  of  the  agreement,  the  Bureau  submits  that  approval  of  the 
 settlement  would  be  consistent  with  the  public  interest  because  it  would  terminate  Commission 
 litigation  and  a  related  bankruptcy  proceeding.  In  this  regard,  the  Bureau  points  out  that  the  amount 
 available  t  o  t  he  Trust  ee  under  the  set  t  lement  ,  $1  million,  is  the  amount  previously  approved  by  the 
 Bankruptcy  Court  for  the  sale  of  WHCT-  TVs  assets.  The  Bureau  notes  that  there  are  arguable  public 
 interest  detriments  to  the  settlement  because  Shurberg  would  receive  compensation  of  more  than  $7 
 million  for  dismissing  its  const  ruct  ion  permit  applicat  ion,  cont  rary  to  t  he  payment  rest  rict  ions  cont  ained 
 in  47  C.  F.  R.    73.3523,  and  the  license  would  be  awarded  to  Holdings,  contrary  to  Commission  policy 
 generally  disfavoring  set  t  lement  s  involving  whit  e  knight  s,  i.  e.,  non-  applicant  third  part  ies.  In  this 
 case,  the  Bureau  maint  ains,  count  ervailing  public  int  erest  benefits  out  weigh  the  det  riment  s  and  warrant 
 waiver  of  the  respective  policies.  Finally,  because  the  assignment  application  is  subject  to  the 
 provisions  of  47  C.  F.  R.    73.3580  and  73.3584,  which  require  public  notice  of  the  filing  of  the 


 4  As  adverted  to  in  the  HDO,  12  FCC  Rcd  at  5227-  28,  substantial  and  material  questions  of  fact 
 have  also  been  raised  with  respect  to  the  qualifications  of  TIBS.  See  Two  If  By  Sea  Broadcasting 
 Corporation,  12  FCC  Rcd  2254  (1997).  But  in  light  of  the  substitution  of  Holdings  for  TIBS  as 
 the  proposed  licensee  of  WHCT-  TV,  there  is  no  need  to  address  those  matters  before  resolving 
 this  proceeding. 


 5  According  to  the  Joint  Parties,  TIBS  and  the  Trustee  have  also  agreed,  subject  to  the  approval 


 of  the  Bankruptcy  Court,  that  the  Trustee  will  retain  an  additional  $2.  6  million  from  TIBSs 
 portion  to  increase  the  Trustees  portion  to  $3.  6  million.  This  additional  payment,  however,  is 
 not  part  of  the  settlement  agreement  before  the  Commission.  In  this  regard,  the  agreement 
 provides  that  [  n]  othing  contained  in  this  Agreement  shall  preclude  TIBS  from  increasing  the 
 compensation  paid  to  the  Trustee,  provided  that  such  additional  compensation  is  paid  to  the 
 Trustee  in  accordance  with  applicable  laws  and  is  paid  solely  from  the  TIBS  Compensation. 
 See  Joint  Request,  Exh.  B,  p.  5;  see  also  Joint  Request,  Exh.  E  (Hoffman  Declaration). 
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 application  and  an  opportunity  for  the  filing  of  petitions  to  deny,  the  Bureau  urges  that  the  Commission 
 delay  final  approval  of  the  settlement  until  the  Mass  Media  Bureau  can  process  the  application  and 
 det  ermine  if  Holdings  is  qualified  to  hold  the  license. 


 12.  In  further  comments  filed  thereafter,  the  Bureau  reports  that  the  Mass  Media  Bureau  has 
 completed  its  assessment  of  the  qualifications  of  Holdings  and  has  concluded  that  the  proposed  licensee 
 is  qualified  to  operate  the  station.  Accordingly,  the  Bureau  supports  grant  of  the  Joint  Request. 


 13.  In  his  opposition,  Ramirez  submits  that  the  Commission  should  deny  the  Joint  Request  or, 
 at  a  minimum,  deny  the  payment  to  Shurberg  provided  for  in  the  agreement.  First,  Ramirez  asserts, 
 Shurberg  lacks  standing  to  be  a  party  to  the  settlement  agreement  because  Shurbergs  construction 
 permit  application  was  never  accepted  for  filing  by  the  Commission.  Second,  Ramirez  argues  t  hat  t  he 
 proposed  payment  to  Shurberg  violates  47  U.  S.  C.    311(  d)(  3),  which  precludes  the  filing  of  an 
 application  for  the  purpose  of  reaching  a  settlement,  because  Shurbergs  only  motivation  in  continuing 
 to  press  its  application  before  the  Commission,  even  after  an  unfavorable  Supreme  Court  ruling  in 
 1990,  was  to  receive  a  settlement  payment.  Ramirez  contends  that  the  agreement  would  unjustly 
 enrich  Shurberg  because  Shurbergs  challenge  to  Astrolines  qualifications  was  in  bad  faith.  Finally, 
 Ramirez  asserts  that  Shurberg  lacks  the  character  and  other  qualifications  required  to  be  a  Commission 
 licensee,  and  therefore  should  not  be  awarded  the  payment  proposed  in  the  Joint  Request. 


 14.  We  will  approve  the  set  t  lement  agreement  .  Approval  will  serve  the  public  int  erest  here  by 
 terminating  a  lengthy  Commission  proceeding,  avoiding  the  need  for  a  comparative  renewal  hearing  to 
 select  a  licensee  for  the  station,  6  and  allowing  for  termination  of  the  Astroline  bankruptcy  proceeding. 
 See  O.  D.  T.  International,  9  FCC  Rcd  2575,  2576  (1994),  citing  LaRose  v.  FCC,  494  F.  2d  1145  (D.  C. 
 Cir.  1974)  (Commission  generally  seeks  to  accommodate  federal  bankruptcy  policies).  As  the  parties 
 recognize,  however,  there  are  two  potential  impediments  to  approval,  inasmuch  as  Shurberg  will 
 receive  $7.48  million  under  the  agreement  ,  in  cont  ravent  ion  of  47  C.  F.  R.    73.  3523,  and  the  license 
 will  be  awarded  t  o  Holdings,  a  non-  applicant  third  part  y.  We  do  not  believe  that  eit  her  of  these  fact  ors 
 requires  denial  of  the  agreement  reached  in  this  case. 


 15.  First,  with  respect  to  the  proposed  reimbursement  to  Shurberg  under  the  agreement,  our 
 rules  provide  that,  in  renewal  cases,  a  competing  applicant  dismissing  its  application  is  entitled  to 
 reimbursement  only  of  its  legit  imat  e  and  prudent  expenses,  7  and  an  applicant  dismissing  its  application 
 prior  to  the  Initial  Decision  stage  of  the  hearing  on  its  application  is  not  entitled  to  any  payment  in 


 6  Section  309(  k)(  4)  of  the  Communications  Act,  47  U.  S.  C.    309(  k)(  4),  enacted  as  part  of  the 
 Telecommunications  Act  of  1996,  which  prospectively  bars  comparative  challenges  to  renewal 
 applications,  does  not  apply  to  the  WHCT-  TV  renewal  application,  which  was  filed  in  1988.  See 
 Implementation  of  Sections  204(  A)  and  204(  C)  of  the  Telecommunications  Act  of  1996 
 (Broadcast  License  Renewal  Procedures),  11  FCC  Rcd  6363,  6364  (1996)  ("[  A]  pplications  filed 
 on  or  before  May  1,  1995  will  be  subject  to  our  current  renewal  standards  and  procedures,  while 
 applications  filed  after  May  1,  1995  will  be  subject  to  the  new  renewal  provisions  adopted  in 
 Section  204  of  the  Telecom  Act.");  see  also  47  C.  F.  R.    73.3591(  d). 


 7  See  47  C.  F.  R.    73.3523(  c). 
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 consideration  of  its  withdrawal.  See  47  C.  F.  R.    73.3523(  b).  In  designating  the  Trustee's  application 
 for  hearing,  we  specified  that  the  hearing  would  not  address  the  merits  of  the  comparative  proceeding 
 involving  Shurberg,  and  we  therefore  held  Shurberg's  application  in  abeyance  pending  the  outcome  of 
 the  hearing.  HDO,  12  FCC  Rcd  at  5231  n.  11.  8  Consequently  47  C.  F.  R.    73.3523(  b)  on  its  face 
 would  disallow  the  proposed  payment. 


 16.  We  agree  with  the  Enforcement  Bureau,  however,  that  a  waiver  of  the  payment  restrictions 
 contained  in  47  C.  F.  R.    73.3523(  b)  would  serve  the  public  interest  in  this  case.  See  47  C.  F.  R.    1.3; 
 WAIT  Radio  v.  FCC,  418  F.  2d  1153,  1159  (D.  C.  Cir.  1969),  cert.  denied,  409  U.  S.  1027  (1972).  The 
 rule  rest  rict  ing  payment  s  is  primarily  int  ended  to  det  er  abuse  in  the  filing  of  compet  ing  applicat  ions. 
 Where  the  circumstances  establish  that  the  competing  applications  were  not  filed  for  speculative  or 
 ot  her  improper  purpose,  we  are  willing  to  waive  the  limitat  ions  on  payment  s  t  o  dismissing  applicant  s 
 in  comparative  renewal  proceedings  in  light  of  the  time-  consuming  and  expensive  nature  of  these 
 hearings.  See  Implementation  of  Section  309(  j)  of  the  Communications  Act  (First  Report  and  Order), 
 13  FCC  Rcd  15920,  16006    214  (1998). 


 17.  In  fact  the  Commission  has  had  occasion  to  waive  the  monetary  limits  in  the  comparat  ive 
 renewal  cont  ext  in  order  to  facilit  at  e  set  t  lement  s.  See  EZ  Communicat  ions,  Inc.  ,  12  FCC  Rcd  3307 
 (1997).  Consistent  with  our  announced  waiver  policy,  we  find  no  evidence  here  that  Shurberg  filed  its 
 application  in  1983  for  an  abusive  purpose.  Indeed,  as  indicated  below,  Shurberg  has  continued  to 
 prosecut  e  its  applicat  ion  diligent  ly  throughout  the  course  of  t  his  proceeding.  Furthermore,  we  have 
 also  held  that,  in  light  of  Section  309(  k)  of  the  Communications  Act,  47  U.  S.  C.    309(  k),  which 
 prospectively  disallows  comparative  challenges  to  renewal  applications,  strict  enforcement  of  the  rule  is 
 not  needed  to  deter  the  filing  of  abusive  applications  in  the  future.  See  EZ  Communications,  Inc.  12 
 FCC  Rcd  at  3308;  Trinity  Broadcasting  of  Florida,  Inc.,  14  FCC  Rcd  20518  (1999).  This  factor  lends 
 additional  support  to  our  decision  to  waive  the  limitat  ions  in  this  case. 


 18.  In  reaching  our  decision  to  waive  the  payment  restrictions  under  the  rule,  we  have 
 considered  the  objections  raised  by  Ramirez.  First,  we  disagree  with  Ramirez  that  Shurberg  lacks 
 standing  to  participate  in  the  settlement  because  its  application  was  not  accepted  for  filing.  As  not  ed 
 earlier,  although  Shurberg's  1983  application  was  not  accepted  for  filing  at  that  time  pursuant  to  the 
 Commission's  policy  of  not  accepting  competing  applications  for  stations  in  hearing  status,  the  Mass 
 Media  Bureau  subsequently  reinstated  Shurbergs  application  in  1991,  thereby  affording  Shurberg 
 status  as  a  competing  applicant  against  Astroline's  1988  renewal  application.  See  HDO,  12  FCC  Rcd 
 at  5225    2  and  n.  2,  5226    4.  In  addition,  as  noted  in  the  HDO,  Shurberg  took  steps  to  continue  to 
 assert  its  interest  in  prosecuting  its  1983  application,  including  subsequently  amending  its  application  to 


 8  At  the  time  the  hearing  was  designated,  comparative  renewal  proceedings  remained  frozen  in  the 
 wake  of  Bechtel  v.  FCC,  10  F.  3d  875  (D.  C.  Cir.  1993).  See  FCC  Freezes  Comparative  Proceedings, 
 9  FCC  Rcd  1055  (1994);  Modification  of  FCC  Comparative  Proceedings  Freeze  Policy,  9  FCC  Rcd 
 6689  (1994). 
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 certify  to  its  financial  qualifications.  See  id.  at  5230    13.  The  HDO  made  Shurberg  a  party  to  the 
 proceeding;  as  such,  Shurberg  may  participate  in  the  settlement.  9 


 19.  Second,  Ramirez  has  not  proffered  any  facts  to  substantiate  his  claim  that  Shurberg 
 challenged  Astrolines  application  only  in  order  to  ultimately  extract  a  sizable  payment  upon  settlement 
 in  violation  of  47  U.  S.  C.    311(  d)(  3).  Although,  for  the  reasons  given  earlier,  we  disagree  with  the 
 merits  of  Shurbergs  adversarial  position  under  the  Astroline  misrepresentation  issue,  Ramirez  has  not 
 shown  that  Shurberg  acted  in  bad  faith  in  opposing  Astrolines  application  during  the  course  of  this 
 proceeding.  Finally,  contrary  to  Ramirezs  unsupported  allegations  regarding  Shurbergs  lack  of 
 qualifications  as  a  licensee,  we  found  in  the  HDO  that  Shurberg  had  complied  with  all  pertinent 
 Commission  requirement  s  vis-  a-  vis  its  const  ruct  ion  permit  applicat  ion,  and  that  its  applicat  ion  would 
 be  grantable,  but  for  its  mutual  exclusivity  with  the  Trustees  renewal  application.  12  FCC  Rcd  at 
 5230    13.  In  any  event,  Shurbergs  qualifications  are  not  at  issue  here  because  it  would  not  receive 
 the  license  under  the  proposed  settlement.  See  Allegan  County  Broadcasters,  Inc.,  83  FCC  2d  371 
 (1980)  (dismissing  applicants  character  qualifications  not  relevant  to  approval  of  settlement). 


 20.  We  also  find  t  hat  t  he  award  of  t  he  license  to  Holdings  --  a  "whit  e  knight  "  --  will  serve  the 
 public  int  erest  in  this  case.  The  policy  generally  disfavoring  set  t  lement  s  involving  buy-  out  s  by  non-applicant 
 third  parties,  first  enunciated  in  Rebecca  Radio  of  Marco,  5  FCC  Rcd  937  (1990),  like  the 
 rule  limiting  set  t  lement  payment  s,  was  int  ended  to  det  er  the  filing  of  abusive  applicat  ions  in  the  fut  ure. 
 We  did  not  wish  to  create  an  economic  incentive  for  the  filing  of  sham  applications  by  individuals  who 
 had  no  serious  interest  in  operating  broadcast  stations.  See  5  FCC  Rcd  at  937-  38.  Here,  however,  as 
 explained  above,  we  have  found  no  evidence  of  abuse  in  the  filing  or  prosecution  of  Shurberg's 
 competing  application.  In  addition,  as  we  also  indicated,  the  need  to  deter  abusive  challenges  to  future 
 renewal  applicat  ions  has  been  eliminat  ed  as  a  consequence  of  the  enact  ment  of  47  U.  S.  C.    309(  k). 
 Accordingly,  waiver  of  the  policy  is  appropriate  in  these  circumstances.  See  also  ITFS  Mutually 
 Exclusive  Applications  -  Settlement  Period,  15  FCC  Rcd  5916  (2000)  (Commission  permits  "whit  e 
 knight"  settlements  involving  mutually  exclusive  ITFS  applications);  Implementation  of  Section  309(  j) 
 of  the  Communications  Act  (Notice  of  Proposed  Rulemaking),  12  FCC  Rcd  22363,  22374-  75    26 
 (1997)  (Commission  will  waive  policy  against  "white  knight"  settlements  to  foster  resolution  of  frozen 
 comparative  cases). 


 21.  The  Joint  Request  complies  with  the  requirements  of  47  U.  S.  C.    311(  d)  and,  except  for 
 t  he  limitat  ions  on  payment  s  to  dismissing  applicant  s,  which  we  have  waived,  it  complies  wit  h  t  he 
 pertinent  provisions  of  47  C.  F.  R.    73.3523(  b).  The  Joint  Parties  have  attached  to  the  Joint  Request 
 declarations  under  penalty  of  perjury  from  their  respective  principals.  Shurberg's  declaration  states  that 
 Shurberg's  application  was  not  filed  for  the  purpose  of  reaching  or  carrying  out  a  settlement.  The 
 declarations  filed  by  Shurberg  and  TIBS  also  reflect  that  approval  of  the  settlement  agreement  will 
 serve  the  public  interest  by  terminating  a  lengthy  Commission  proceeding  and  allowing  Holdings  to 
 provide  television  service  to  the  Hartford  community.  As  noted  earlier,  the  Mass  Media  Bureau  has 


 9  The  HDO  also  denied  a  petition  to  deny  Shurbergs  application,  filed  by  Astroline,  in  which 
 Astroline  similarly  argued  that  Shurberg  should  not  be  considered  a  competing  applicant  because 
 Shurberg  did  not  have  a  pending  application.  See  12  FCC  Rcd  at  5230    13,  5232    16. 
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 examined  the  qualifications  of  Holdings  and  determined  that  it  is  fully  qualified  to  be  the  licensee  of 
 WHCT-  TV. 


 22.  Finally,  we  also  address  comments  on  the  Joint  Request  filed  May  18,  2000  by  First 
 Millennium  Communications,  Inc.  (  First  Millennium).  10  First  Millennium  asserts  that,  pursuant 
 to  a  prior  understanding  it  has  with  Holdings  parent  company,  Entravision,  it  is  entitled  to 
 receive  a  ten  percent  ownership  interest  in  any  entity  formed  to  acquire  the  license  of  WHCT-  TV. 
 Accordingly,  First  Millennium  requests  that  we  defer  action  on  the  Joint  Request  until  such  time 
 as  the  assignment  application  is  further  amended  to  change  the  proposed  assignee  to  an  entity  that 
 includes  it. 


 23.  We  will  not  grant  First  Millenniums  request  that  we  defer  action  on  the  proposed 
 settlement.  The  matter  to  which  First  Millennium  refers  appears  to  involve  a  private  contractual 
 dispute  between  it  and  Entravision,  which  is  best  resolved  in  a  local  court  with  appropriate 
 jurisdiction.  See  Listeners  Guild,  Inc.  v.  FCC,  813  F.  2d  465,  469  (D.  C.  Cir.  1987)  (noting 
 longstanding  Commission  policy  of  refusing  to  adjudicate  private  contract  law  questions  for  which 
 a  forum  exists  in  state  court).  In  fact,  First  Millennium  informs  us  that  there  is  litigation  currently 
 pending  in  the  Superior  Court  for  the  District  of  Columbia  to  resolve  the  parties  various  claims 
 against  each  other.  Our  approval  of  the  settlement  agreement  is  without  prejudice  to  the  Superior 
 Courts  determination  of  the  parties  contractual  rights.  Accordingly,  we  see  no  reason  to  delay 
 action  on  the  Joint  Request,  particularly  where  the  settlement  serves  the  public  interest  by 
 resolving  a  lengthy  Commission  proceeding,  and  First  Millennium  has  not  raised  any  questions 
 bearing  upon  the  qualifications  of  the  parties  to  the  agreement  or  the  issues  before  us  that  need  to 
 be  addressed. 


 24.  ACCORDINGLY,  IT  IS  ORDERED,  That  the  Request  for  Oral  Argument  filed  June  28, 
 1999  by  Shurberg  Broadcasting  of  Hartford  and  the  Motion  for  Waiver  and  Application  for  Review 
 filed  September  25,  1997  by  Richard  P.  Ramirez  ARE  DISMISSED  as  moot;  and  that  Shurberg 
 Broadcasting  of  Hartford's  Petition  to  Dismiss  or  Deny  the  applications  for  renewal  of  license  and 
 for  assignment  of  license  IS  DENIED  insofar  as  it  pertains  to  the  qualifications  of  Astroline 
 Communications  Company  Limited  Partnership  and  IS  DISMISSED  in  all  other  respects  as  moot. 


 25.  IT  IS  FURTHER  ORDERED,  That  the  Joint  Request  for  Approval  of  Settlement 
 Agreement  filed  April  4,  2000  by  Martin  W.  Hoffman,  Trustee-  in-  Bankruptcy  for  Astroline 
 Communications  Company  Limited  Partnership,  Two  If  By  Sea  Broadcasting  Corporation,  and 
 Shurberg  Broadcasting  of  Hartford  IS  GRANTED  and  the  attached  settlement  agreement  IS 
 APPROVED;  that  Shurberg  Broadcasting  of  Hartford's  Consolidated  Exceptions  and  Brief  ARE 
 DISMISSED;  that  the  application  of  Shurberg  Broadcasting  of  Hartford  (File  No.  BPCT-831202KF) 
 IS  DISMISSED;  that  the  application  of  Martin  W.  Hoffman,  Trustee-  in-  Bankruptcy 
 for  Astroline  Communications  Company  Limited  Partnership  for  renewal  of  license  of  station 
 WHCT-  TV  (File  No.  BRCT-  881201LG)  IS  GRANTED  with  a  license  term  expiring  on  April  1, 


 10  Entravision  filed  a  response  to  First  Millenniums  comments  on  May  20,  2000,  and  First 
 Millennium  filed  a  reply  to  the  response  on  June  9,  2000. 
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 2007  11  ;  that  the  application  for  assignment  of  license  for  WHCT-  TV  from  Martin  W.  Hoffman, 
 Trustee-  in-  Bankruptcy  for  Astroline  Communications  Company  Limited  Partnership  to  Two  If 
 By  Sea  Broadcasting  Corporation  (File  No.  BALCT-  930922KE),  as  amended  April  4,  2000  to 
 substitute  Entravision  Holdings,  LLC  for  Two  If  By  Sea  Broadcasting  Corporation  as  the 
 proposed  assignee,  IS  GRANTED  and  the  amendment  IS  ACCEPTED;  and  that  this  proceeding 
 IS  TERMINATED. 


 FEDERAL  COMMUNICATIONS  COMMISSION 
 Magalie  Roman  Salas 
 Secretary 


 11  See  47  C.  F.  R.    73.1020(  a)(  16). 
9