*Pages 1--4 from  Microsoft Word - 60495.doc*
 Federal  Communications  Commission  Washington,  D.  C.  20554 
 October  25,  2006 
 DA  06-  2086  In  Reply  Refer  to: 
 1800B3-  LAS/  JP  Released:  October  25,  2006 


 Denise  B.  Moline,  Esq.  1212  So.  Naper  Blvd,  Suite  119-  215 
 Naperville,  IL  60540 
 In  re:  Lyle  Robert  Evans  (New),  Escanaba,  MI 
 Facility  ID:  160560  File  No.  BNP-  20050118AKH 


 (New),  Houghton,  MI  Facility  ID:  160693 
 File  No.  BNP-  20050118AKM 
 (New),  Howard,  WI  Facility  ID:  161042 
 File  No.  BNP-  20041019AFF 
 (New),  Rhinelander,  WI  Facility  ID:  160855 
 File  No.  BNP-  20041029AEJ 
 Request  for  Leave  to  Amend  Applications  for  Construction  Permit 


 Dear  Ms.  Moline: 
 We  have  before  us  Jeffrey  F.  Jaekelss  (  Jaekels)  April  20,  2006,  Request  for  Leave  to  Amend  the  above-  captioned  applications  (the  Applications).  As  Special  Temporary  Administrator  for  the 
 Estate  of  Lyle  Robert  Evans  (the  Estate),  Jaekels  seeks  to  substitute  the  court-  appointed  representative  of  the  Estate  of  Lyle  Robert  Evans,  Steven  A.  Roy  (  Roy),  for  Lyle  Robert  Evans  (  Evans)  as  the 
 applicant.  1  For  the  reasons  discussed  below,  we  grant  the  Request  for  Leave  to  Amend  the  Applications. 
 Background.  On  November  6,  2003,  the  Media  Bureau  and  the  Wireless  Telecommunications  Bureau  jointly  released  a  Public  Notice  announcing  a  January  26-  30,  2004,  AM  auction  filing  window  for 
 applications  for  new  AM  stations  and  major  modifications  to  authorized  AM  facilities.  2  Six  of  the  Form  175  applications  that  Evans  had  filed  during  the  AM  auction  filing  window  were  determined  to  be  non- 


 1  The  April  20,  2006,  Request  for  Leave  to  Amend  was  supplemented  on  June  9,  2006. 
 2  AM  New  Station  and  Major  Modification  Auction  Filing  Window;  Minor  Modification  Application  Freeze, 
 Public  Notice,  18  FCC  Rcd  23016  (MB/  WTB  2003). 
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 mutually  exclusive.  3  Evans  thereafter  timely  filed  six  long  form  (Form  301)  applications,  including  the  Applications.  4  Subsequently,  on  March  6,  2006,  Evans  passed  away.  5  Jaekels  was  then  appointed  Special 
 Temporary  Administrator  of  Evanss  Estate  on  March  9,  2006.  On  May  22,  2006,  Roy  was  appointed  personal  representative  of  Evanss  Estate  by  James  R.  Queoff,  Court  Commissioner  for  the  Brown 
 County,  Wisconsin,  Circuit  Court.  6 
 In  his  Request  for  Leave  to  Amend  the  pending  applications,  Jaekels  contends  that:  (1)  amending  the  Applications  is  similar  to  an  involuntary  assignment  of  a  license  or  permit  pursuant  to  Section 
 73.3541  of  the  Commissions  Rules  (the  Rules);  7  (2)  Commission  precedent  recognizes  a  change  in  control  resulting  from  the  death  of  an  applicant  as  involuntary  and  permits  amendment  of  the  application, 
 instead  of  requiring  dismissal  of  the  application  as  a  major  change;  (3)  allowing  the  Applications  to  be  amended  will  not  prejudice  any  other  party  involved  in  AM  Auction  No.  84  because  each  of  the 
 Applications  is  not  mutually  exclusive  with  any  other  proposal  filed  in  the  window;  and  (4)  amending  the  Applications  is  in  the  public  interest  because  it  will  avoid  delay  in  deploying  new  service  to  the 
 communities  covered  by  the  applications. 
 Discussion.  The  Commission  has  long  recognized  that  an  involuntary  assignment  of  license  or  permit  to  the  personal  representative  of  a  deceased  licensee  or  permitee  is  in  the  public  interest,  and 
 provides  a  procedure  to  accommodate  this  process  through  the  filing  of  a  pro  forma  Form  316  application  pursuant  to  Section  73.3541  of  the  Rules.  While  there  is  no  corresponding  rule  addressing  the  related 
 case  of  the  death  or  legal  disability  of  an  individual  applicant  or  a  controlling  shareholder  in  a  pending  application,  we  find  that  Commission  precedent  indicates  that  similar  treatment  is  appropriate.  8 


 Typically,  a  change  in  the  controlling  interest  of  an  applicant  would  be  considered  a  major  change.  9  An  amendment  to  a  pending  application  which  would  effect  such  a  major  change  would  not  be 
 accepted.  10  However,  the  death  of  either  an  individual  applicant  or  an  applicants  controlling  shareholder, 
 3  See  AM  Auction  No.  84  Singleton  Applications,  Public  Notice,  19  FCC  Rcd  16655  (MB/  WTB  2004);  AM 
 Auction  No.  84  Singleton  Applications,  Public  Notice,  19  FCC  Rcd  22569  (MB/  WTB  2004).  4 
 The  other  two  applications  are  not  at  issue  in  this  letter  decision.  One  construction  permit  was  granted  before  Evanss  decease  (Escanaba,  Michigan,  File  No.  BNP-  20041029AEI),  and  the  other  application  was  dismissed  at  the 


 request  of  Evanss  Estate  (Ashwaubenon,  Wisconsin,  File  No.  BNP-  20050118AKU).  Pursuant  to  an  involuntary  pro  forma  assignment  application  granted  on  June  14,  2006,  Roy  was  assigned  the  licenses  of  the  two  stations 
 previously  licensed  to  Evans:  WRMO(  FM),  Millbridge,  Maine  (File  No.  BALH-  20060605AAM)  and  KHAM(  FM),  Britt,  Iowa  (File  No.  BALH-  20060605AAN). 
 5  Pursuant  to  an  involuntary  pro  forma  assignment  application  granted  on  June  14,  2006,  Roy  was  assigned  the 
 licenses  of  the  two  stations  previously  licensed  to  Evans:  WRMO(  FM),  Millbridge,  Maine  (File  No.  BALH-20060605AAM)  and  KHAM(  FM),  Britt,  Iowa  (File  No.  BALH-  20060605AAN). 


 6  Domiciliary  Letters,  Form  PR-  1906,  Case  No.  06PR57,  State  of  Wisconsin,  Circuit  Court,  Brown  County,  May  22, 
 2006.  7 
 47  C.  F.  R.    73.3541.  8 
 See,  e.  g.,  Rose  Broadcasting  Co.,  68  FCC  2d  1242,  1246-  47  (1978).  9 
 See  47  C.  F.  R.    73.  3571(  a)(  1)  (major  change  in  ownership  occurs  when  the  original  party  or  parties  to  the  application  do  not  retain  more  than  50  percent  ownership  interest  in  the  application  as  originally  filed). 


 10  See  47  C.  F.  R.    73.  3571(  b)(  2).  Prior  to  the  adoption  of  competitive  bidding  rules,  broadcast  application 
 processing  rules  provided  that  a  new  file  number  would  be  assigned  to  an  application  for  a  new  station  when  it  was  amended  prior  to  designation  for  hearing  so  as  to  result  in  a  transfer  of  control,  for  which,  in  the  case  of  an  existing 
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 necessitating  the  assignment  to  a  personal  representative  of  the  deceased,  traditionally  constituted  good  cause  for  amendment  in  the  context  of  comparative  hearings.  11  In  cases  involving  both  individual  12  and 
 corporate  applicants,  13  the  Commission  has  treated  such  an  amendment  as  minor,  even  where  the  decedent  had  held  a  controlling  interest  in  the  applicant.  More  recently,  under  a  circumstance  similar  to 
 that  presented  by  Jaekels,  an  auction  applicant  was  allowed  to  amend  its  pending  pre-  auction  Form  175  application  upon  the  death  of  its  sole  shareholder,  due  to  the  involuntary  nature  of  the  transfer  of 
 control.  14 
 We  therefore,  find  it  in  the  public  interest  to  allow  amendment  of  the  pending  AM  construction  permit  Applications  to  replace  Lyle  Robert  Evans  with  Steven  A.  Roy,  as  the  court-  appointed  personal 
 representative  for  the  Estate.  In  reaching  this  conclusion,  we  afford  considerable  weight  to  the  fact  that  no  other  party  will  be  prejudiced  by  the  amendment  because  each  of  the  Applications  was  determined  to 
 be  non-  mutually  exclusive.  We  also  find  it  in  the  public  interest  to  avoid  delay  in  implementing  new  service  to  these  four  communities  and  therefore  grant  Jaekelss  Request  for  Leave  to  Amend  the 
 Applications.  Jaekels  must  file  the  appropriate  amendments  through  the  Media  Bureaus  CDBS  online  electronic  forms  system. 


 licensee  or  permitee,  an  application  would  have  to  be  filed  on  a  Form  315.  Sections  73.  3540  and  73.  3541  of  the  Rules  required  that  an  application  for  transfer  of  a  controlling  interest  in  a  licensee  was  to  have  been  filed  on  a  Form 
 315,  except  for  pro  forma  or  involuntary  transfers  of  control,  which  are  filed  on  a  Form  316.  Thus,  a  transfer  to  a  personal  representative,  being  involuntary,  was  exempt  from  the  rule  requiring  a  new  file  number.  See,  e.  g.,  47 
 C.  F.  R    73.  3573(  b)  (1998).  See  also  Richardson  Broadcasting  Group,  3  FCC  Rcd  5453  (MMB  1988)  (involuntary  transfer  of  control  due  to  death  of  original  applicant  does  not  require  assignment  of  new  file  number  to  pending 
 application).  11 
 See  Rose  Broadcasting  Co.,  68  FCC  2d  at  1247  (amendment  transferring  deceased  stockholders  51  percent  interest  in  applicant  to  personal  representative  satisfies  good  cause  test  for  acceptance);  Peoples  Broadcasting 


 Corp.,  92  FCC  2d  133,  144-  45  (Rev.  Bd.  1983)  (amendment  substituting  one  stockholder  for  a  deceased  stockholder  accepted  for  reporting  purposes  only  under  47  C.  F.  R.    1.65);  Triple  C  Broadcasting  Corp.,  12  FCC  2d  503,  504 
 (Rev.  Bd.  1968)  (change  in  the  composition  of  an  applicant  does  not,  of  itself,  preclude  acceptance  of  the  amendment,  provided  good  cause  is  shown). 
 12  See  Richardson  Broadcasting  Group,  3  FCC  Rcd  at  5453  (wife  and  executrix  of  deceased  applicant  substituted  for 
 individual,  deceased  applicant  on  application  for  new  FM  station).  13 
 See  Azalea  Corp.,  38  FCC  2d  95  (Rev.  Bd.  1972);  Creek  County  Broadcasting  Co.,  31  FCC  2d  462  (Rev.  Bd.  1971)  (corporate  applicant  permitted  to  amend  application  after  death  of  controlling  stockholder). 


 14  Letter  to  Delaney  M.  DiStephano,  Esq.  from  Margaret  Wiener,  19  FCC  Rcd  2691  (WTB  2004)  (involuntary 
 transfer  of  control  due  to  death  of  an  applicants  controlling  interest  does  not  constitute  a  major  amendment). 
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 Conclusion/  Actions.  For  the  above  stated  reasons,  Jaekelss  Request  for  Leave  to  Amend  the  above  captioned  applications  to  replace  Lyle  Robert  Evans  with  Steven  A.  Roy,  court-  appointed 
 representative  of  the  Estate  of  Lyle  Robert  Evans,  as  the  applicant,  is  GRANTED. 


 Sincerely, 


 Peter  H.  Doyle  Chief,  Audio  Division 
 Media  Bureau 
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