Petition for Writ of Certiorari — Edward R. Stolz, dba Royce International Broadcasting Company, Petitioner v. Federal Communications Commission

Supreme Court briefJun 18, 2018

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APPENDIX TABLE OF CONTENTS

Opinion of the District of Columbia Circuit

(February 16, 2018) ............................................ 1a

Memorandum Opinion of the Federal

Communications Commission

(September 8, 2017).......................................... 12a

Order of the Federal Communications Commission (March 16, 2017) ....................................... 26a

Memorandum Opinion and Order of the Federal

Communications Commission

(June 20, 2016) ................................................. 30a

Order on Reconsideration by the Federal

Communications Commission

(January 19, 2016)............................................ 37a

Memorandum Opinion and Order of the Federal

Communications Commission

(September 17, 2015)........................................ 45a

Order of the Federal Communications Commission on Petition for Reconsideration

(August 22, 2005) ............................................. 53a

Report and Order and Notice of Proposed

Rulemaking—Relevant Excerpts

(June 2, 2003) ................................................... 58a

FCC Consent to Assignment

(May 17, 2003) .................................................. 71a

APPENDIX TABLE OF CONTENTS (Cont.)

Letter from FCC Granting Application to Assign

License (May 12, 2003)..................................... 76a

Order Fixing the Sum of Undertaking and

Conditions for Stay (CCP 917.2)

(October 29, 2002) ............................................ 88a

Order of the Court of Appeal of the State of

California (June 28, 2002)................................ 93a

Interlocutory Judgment of the Superior Court of

California (April 30, 2002) ............................... 96a

Order of the District of Columbia Circuit

Denying Petition for Rehearing

(March 20, 2018) ............................................. 110a

Relevant Statutory and Regulatory Provisions ... 112a

App.1a

OPINION OF THE

DISTRICT OF COLUMBIA CIRCUIT

(FEBRUARY 16, 2018)

UNITED STATES COURT OF APPEALS,

DISTRICT OF COLUMBIA CIRCUIT

________________________

EDWARD R. STOLZ, II, D/B/A ROYCE

INTERNATIONAL BROADCASTING COMPANY,

Appellant,

FEDERAL COMMUNICATIONS COMMISSION,

Appellee,

ENTERCOM COMMUNICATIONS CORP.,

and ENTERCOM LICENSE, LLC,

Intervenors.

________________________

No. 16-1248

Before: MILLETT, Circuit Judge, and

EDWARDS and WILLIAMS, Senior Circuit Judges

Millett, Circuit Judge:

Edward Stolz agreed to sell a radio station he

owned to Entercom Communications Corporation and,

upon approval by the Federal Communications Commission (“FCC”), to transfer the station’s broadcast

license to Entercom. Implementation of the agreement

App.2a

soon broke down, and Stolz and Entercom have spent

the ensuing two decades clashing before the FCC and

state and federal courts. This long-running dispute

should draw closer to a conclusion today as we deny

Stolz’s appeal and dismiss as moot his central claim

challenging Entercom’s legal eligibility to acquire the

station.

Congress invested the FCC with exclusive

authority to grant, deny, and approve the transfer of

broadcast licenses to operate radio stations. 47 U.S.C.

§§ 301, 303, 307-310. As a result, when a broadcast

station owner wants to transfer ownership of a station

to a third party, the FCC must approve the assignment

of the station’s broadcast license to the new owner.

Id. § 310(d). The FCC may approve assignments only

“upon finding . . . that the public interest, convenience,

and necessity will be served thereby.” 47 U.S.C. § 310

(d). That public interest includes “promoting diversity of program and service viewpoints” and “preventing

undue concentration of economic power.” FCC v.

National Citizens Committee for Broadcasting, 436

U.S. 775, 780 (1978).

To that end, the FCC limits the number of radio

stations that a single entity can own within a local

market. 47 C.F.R. § 73.3555(a). As relevant here, in a

market with 45 or more radio stations, a single entity

can only be licensed to operate up to “8 commercial

radio stations in total and not more than 5 commercial

stations in the same service (AM or FM).” Id. § 73.

3555(a)(1)(i). In a market that contains 30 to 44 radio

App.3a

stations, a single entity may not hold licenses for

“more than 7 commercial radio stations in total and

not more than 4 commercial stations in the same

service (AM or FM).” Id. § 73.3555(a)(1)(ii).

In 2002, the FCC completed a comprehensive

review of its media ownership rules. See IN THE

MATTER OF 2002 BIENNIAL REGULATORY

REVIEW, REPORT AND ORDER, 18 FCC Rcd. 13620

(2003) (“2002 Order ”). Among other things, the 2002

Order retained the FCC’s prior numerical limits on

radio station ownership, but changed how the FCC

would determine the size of a local market, and thus

what ownership limits would apply to a given entity

within that market. Id. at 13724 ¶ 273-274. Those

same rules also apply to the assignment or transfer

of broadcast licenses. Id. at 13724 ¶ 273 n.572.

The 2002 Order included a grandfathering provision to prevent existing license holders from having

to “divest their current interests in stations . . . to

come into compliance with the new ownership rules.”

18 FCC Rcd. at 13808 ¶ 484. The grandfathering

provision also established “processing guidelines” to

“govern pending and new commercial broadcast applications for the assignment or transfer” of radio

licenses “as of the adoption date of this Order.” Id. at

13813 ¶ 498. Pending assignment applications that

had not yet been “act[ed] on” by the “Commission

prior to the adoption date of the Order ” were made

subject to the 2002 Order ’s new market definitions.

Id. at 13814 ¶ 498.

Appellant Edward R. Stolz, II, who does business

under the name Royce International Broadcasting

App.4a

Company, owned radio station KUDL (FM) in Sacramento, California and held an FCC broadcast license

for the station. This regulatory saga starts in February 1996 when Stolz signed a letter of intent to sell

the radio station’s assets and to transfer the FCC

license to Entercom.1 Business relations between the

two soured, however, before the sale and license transfer

were completed.

Entercom sued Royce International in California

state court seeking to enforce the agreement. In April

2002, the California Superior Court ordered specific

performance of the radio station’s sale and directed

Stolz to sign a license transfer application to be submitted to the FCC.

In November 2002, Entercom filed the necessary

license transfer application with the FCC. Stolz did

not sign it though. Instead, Stolz filed a petition with

the FCC asking it to deny the application. Stolz argued

that the FCC’s methodology for measuring the size of

the Sacramento local media market was flawed and

that, if an accurate standard were employed, market

concentration rules would bar Entercom from acquiring

any more radio stations in that market (including,

specifically, KUDL).

In May 2003, the FCC’s Media Bureau granted the

license application and assigned the KUDL (FM)

broadcast license to Entercom, finding that the transfer

was permissible and in the public interest. Letter to

Andrew S. Kersting, Esq., and Brian M. Madden, Esq.,

FCC File No. BALH-20021120ACE, Ref. 1800B3-BSH

1 Both Entercom Communications and its wholly owned subsidiary Entercom License are intervenors in this case. We refer to

the two entities collectively as “Entercom.”

App.5a

(May 12, 2003). Under FCC regulations, the Media

Bureau’s decision was not the last agency word. FCC

regulations allowed Stolz to seek review of the Bureau’s

decision by the FCC itself. See 47 C.F.R. § 1.115.

Within a month of the Media Bureau’s decision, the

FCC adopted the 2002 Order. The Order redefined the

Sacramento local market along the lines for which

Stolz had been arguing. As a result, if the 2002 Order

were applied to Entercom’s license application, the

transfer would have to be denied because Entercom

already held the maximum number of broadcast

licenses permitted within the Sacramento market. Stolz

promptly petitioned the Media Bureau for reconsideration, arguing that the transfer application was still

“pending” and thus subject to the 2002 Order ’s new

local-market definition. After a two-year delay, the

Bureau denied reconsideration.

Stolz then sought review by the full FCC. The

FCC inexplicably delayed ten years before finally

affirming the Bureau’s decision in September 2015.

Stolz sought reconsideration by the FCC, arguing that

this court’s intervening decision in Kidd Communications v. FCC, 427 F.3d 1 (D.C. Cir. 2005), rendered

the involuntary transfer unlawful. The full FCC

denied the petition for reconsideration, reasoning that

Stolz should have raised his arguments under Kidd

earlier by seeking to reopen briefing on his petition

to the full FCC.

We have exclusive jurisdiction over appeals from

FCC decisions granting or denying the assignment of

App.6a

a radio broadcast license. 47 U.S.C. § 402(b)(3) &

(b)(6). We dismiss Stolz’s appeal in part as moot and

deny it in part.

Stolz’s central argument on appeal is that the

FCC should have applied the 2002 Order ’s new localmarket definition to Entercom’s license transfer

application because this case was still pending within

the administrative process at the time the 2002 Order

took effect. The parties do not dispute that, had the

2002 Order ’s market definition been applied, Entercom’s application would have been denied because it

would at the time have owned too many radio stations

within the Sacramento market. Under the regulatory

scheme that predated the 2002 Order, by contrast,

Entercom could obtain the KUDL license without

exceeding the local-market ownership rule. See 47

C.F.R. § 73.3555(a)(1)(ii) (2001).

As events have unfolded, we need not untangle

the less-than-pellucid definition of “pending” administrative actions to determine whether the grandfather clause in the 2002 Order applies to this license

transfer application.2 That is because, during the

pendency of this case, Entercom relinquished its broad2 On the one hand, the 2002 Order ’s grandfather clause directs

that parties seeking license assignments must be in compliance

with the new rules at the time the assignment application is

“filed.” 18 FCC Rcd. at 13809 ¶ 487. But the 2002 Order elsewhere states that the new rules apply to applications that have

not yet been “act[ed] on” by the Commission by the date of the

2002 Order ’ s adoption. Id. at 13814 ¶ 498. Elsewhere the FCC has

said that the new rules do not apply to “a transaction” that was

“consummated” prior to the adoption of the 2002 Order. In the

Matter of Royce Int’l Broad. Co., Assignor and Entercom Commc’ns

Corp., Assignee, 30 FCC Rcd. 10556, 10557 ¶ 4 (Sept. 17, 2015)

(citing 2002 Order, 18 FCC Rcd. at 13808).

App.7a

cast license for and ceased to operate one of its

preexisting FM radio stations in the Sacramento

market. Entercom License, LLC, FCC 17M-09, 2017 WL

1088491, at *1 (March 16, 2017) (“On February 8, 2017,

Entercom forwarded the station license for KDND

(FM) . . . and other KDND instruments of authorization

to the Commission for cancellation[.]”). With that

license returned to the FCC, Entercom now only

operates four FM radio stations and one AM radio

station in the Sacramento market. Transcript of Oral

Argument at 8-9, Stolz v. FCC, No. 16-1248 (D.C. Cir.

argued Sept. 11, 2017). That means that even under

the 2002 Order ’s new local-market rule, Entercom is

eligible to acquire KUDL’s license without running

afoul of market concentration limitations. Both parties

conceded this point at oral argument. Id. at 9, 10, 19.

Accordingly, that portion of Stolz’s appeal is dismissed

as moot.

Stolz separately argues that the FCC’s approval

of the transfer is invalid under our decision in Kidd

Communications v. FCC, supra. Stolz reads that decision as broadly barring the involuntary transfers of

licenses that are an outgrowth of state-court litigation. While we disagree with Stolz’s reading of Kidd,

we are also unpersuaded by the FCC’s invocation of a

procedural bar to even addressing intervening circuit

precedent.

Our decision in Kidd—a precedential ruling that

Stolz believes proscribes the FCC’s decision in his

case—came down after briefing had been completed on

Stolz’s application for review to the FCC challenging

the Media Bureau’s decision. See 47 C.F.R. § 1.115(d).

App.8a

There of course was no possible way for Stolz to have

included an argument relying on Kidd before that

precedent actually intervened.

The FCC disputes none of that. Instead, the FCC

argues that Stolz’s argument about Kidd should have

been presented to the FCC through some supplemental

filing rather than waiting until after the decision

issued and then seeking reconsideration. Stolz’s failure

to do so, the FCC insists, forever forfeited his reliance

on intervening circuit precedent.

That is wrong. We have found no FCC rule permitting, let alone requiring, supplemental filings after

closure of the pleading cycle. The FCC cites no such

rule. Nor does anything in the FCC’s procedural regulations put claimants on fair notice that failure to file

a nowhere-mentioned-in-the-rules supplemental document will procedurally forfeit a claim. Worse still,

what the FCC’s regulations do say is that a petition

for reconsideration is exactly the place in which to

raise “events which have occurred or circumstances

which have changed since the last opportunity to present such matters to the Commissioner.” 47 C.F.R.

§ 1.106(b)(2)(i); see also 47 C.F.R. § 1.115(c) (“[N]ew

questions of fact or law may be presented to the

designated authority in a petition for reconsideration.”).

The FCC, for its part, cites to a couple of footnotes

in prior decisions and a 1979 order to demonstrate

that, on occasion, the FCC has entertained such supplemental filings. That misses the point. The issue

here is not whether the FCC could have entertained

such a filing if Stolz had thought to attempt it. Rather,

the issue is whether the FCC gave Stolz fair notice

that he had to plead for an exercise of discretion under

App.9a

an unwritten rule on pain of forfeiting a claim that

the written rules expressly say could be presented

later in a petition for reconsideration. If an agency

wants a procedural requirement to have the type of

claim-foreclosing consequence the FCC attached here,

it needs to be explicit about the rule and upfront

about consequences of noncompliance. The FCC may

not, like Nero, lay out its procedural requirements in

a way that makes them “harder to read and easier to

transgress.” Antonin Scalia, The Rule of Law as a

Law of Rules, 56 U. Chi. L. Rev. 1175, 1179 (1989);

see NetworkIP, LLC v. FCC, 548 F.3d 116, 122-123

(D.C. Cir. 2008) (“‘[T]raditional concepts of due process

* * * preclude an agency from penalizing a private

party for violating a rule without first providing

adequate notice of the substance of the rule.’”) (quoting

Satellite Broadcasting Co. v. FCC, 824 F.2d 1, 3 (D.C.

Cir. 1987)).

It also bears remembering that the reason Stolz

waited ten years to raise his Kidd argument is that it

inexplicably took the FCC ten years to issue its barely

four-page decision on Stolz’s application for review.

Of course Stolz could not file a petition for reconsideration until after the FCC first considered and

decided his application for review. In other words, this

is hardly the case for the FCC to be pointing a nonjurisdictional timeliness finger at others.

While Stolz wins that procedural battle, he loses

the war. His reliance on Kidd substantially overreads

that case. To be sure, in Kidd as in this case, a state

court ordered the involuntary filing with the FCC of

an application for assignment of a broadcast license.

Kidd, 427 F.3d at 3. But the similarities end there.

The problem in Kidd was that, once that application

App.10a

was filed, the FCC woodenly granted the assignment

application (i) without ensuring that transfer was in

the “public interest,” as federal law requires, 47

U.S.C. § 310(d), and (ii) notwithstanding that the transfer would enforce the very type of reversionary interest that FCC regulations expressly prohibit. Kidd, 427

F.3d at 5-6. We held that the FCC’s asserted desire

“to accommodate the [state] court [order]” for its own

sake was unlawful. “[T]he Commission is not obliged

to accommodate a state court’s decision that is contrary to Commission policy . . . [and] the public interest determinations [are left] to the Commission.” Id.

at 6.

Nothing like that happened here. Contrary to

Stolz’s argument (Br. 23), the dispute in this matter

did not involve a transfer that would have enforced a

reversionary interest prohibited by FCC regulations,

as was the case in Kidd. Furthermore, the California

Superior Court did not order the FCC to grant the

transfer application; the court only ordered Stolz to

sign the application with the FCC as his agreement

with Entercom required. The disposition of that

application was left within the exclusive province of

the FCC. Nor did the FCC ground its decision granting

the transfer application on the state court order, as it

had in Kidd, 427 F.3d at 6. Instead, just as Kidd

requires, the FCC rested its decision entirely on

federal law, determining that “the public interest,

convenience, and necessity will be served thereby.”

See 47 U.S.C. § 310(d). And in so doing, the FCC’s

decision did not contravene any established policy

like the ban on reversionary interests that the FCC

blinked away in Kidd.

App.11a

****

Because Stolz’s challenge to the FCC’s application

of the pre-2002 Order’ s local-market definition is

moot and his remaining challenge to the FCC decision

lacks merit, Stolz’s appeal is dismissed in part and

denied in part.

So ordered.

App.12a

MEMORANDUM OPINION OF THE FEDERAL

COMMUNICATIONS COMMISSION

(SEPTEMBER 8, 2017)

BEFORE THE FEDERAL COMMUNICATIONS

COMMISSION WASHINGTON, D.C. 20554

________________________

IN THE MATTER OF ENTERCOM LICENSE, LLC

for Renewal of License for Station KDND (FM),

Sacramento, California

________________________

MB Docket No. 16-357

Facility ID No. 65483

File Nos. BRH-20050728AUU and

BRH-20130730ANM

By the Commission:

Introduction

1. By this memorandum opinion and order, we

dismiss and, on an alternative and independent basis,

deny a Petition for Reconsideration (PFR) filed

November 28, 2016, by Edward R. Stolz II (Stolz), of

the Hearing Designation Order (HDO) in this proceeding, which declined to permit him to intervene as

a party.1 We also dismiss an Application for Review,

1 Hearing Designation Order and Notice of Opportunity for

Hearing, Entercom License, LLC, 31 FCC Rcd 12196 (2016). See

also Opposition of Entercom License, LLC to Petition for Reconsideration, filed December 8, 2016 (Opposition); Reply to “Oppo-

App.13a

filed April 17, 2017, by Stolz,2 seeking review of an

order by Chief Administrative Law Judge Richard L.

Sippel (ALJ) terminating this proceeding.3

II.

Background

2. Proceedings below. The Commission designated

this proceeding for hearing in response to allegations

that Station KDND (FM) held an on-air water drinking

contest called “Hold Your Wee for a Wii” on January

12, 2007, which resulted in the death of contestant

Jennifer Lea Strange from water intoxication (hyponatremia).4 The designated issues inquired into

whether Entercom was aware of the inherent dangers

of such a contest and whether Entercom increased those

dangers by changing the contest rules; whether

Entercom failed to warn contestants of and protect

contestants from these dangers; whether Entercom

prioritized entertainment over the welfare of the

contestants; and whether Entercom failed to train

staff and exercise appropriate supervision to ensure

safety. The Commission further inquired whether, in

light of the evidence adduced under the foregoing

issues, Entercom operated KDND (FM) in the public

sition of Entercom License, LLC to Petition for Reconsideration,” filed December 20, 2016, by Stolz (Reply).

2 See also Opposition of Entercom License, LLC to Application

for Review, filed May 2, 2017; Enforcement Bureau’s Opposition

to Stolz Application for Review, filed May 2, 2017; Consolidated

Reply to Oppositions to Application for Review, filed May 12,

2017, by Stolz.

3 Order, FCC 17M-09 (Mar. 16, 2017) (Termination Order).

4 HDO, 31 FCC Rcd at 12197-99, paras. 3-6. A California state

court found Entercom negligent based on these same facts and

awarded the Strange family $16.5 million. Id. at 12200, para. 10.

App.14a

interest during the most recent license term and

whether Entercom’s 2005 and 2013 license renewal

applications for KDND (FM) should be granted.5

3. The designated issues were based on allegations

raised in a petition to deny filed by Edward Stolz, a

separate petition to deny filed by his now deceased

mother Irene, a petition to deny filed jointly by the

Media Action Center (MAC) and Sue Wilson, and an

informal objection filed by Roger D. Smith.6 The

Commission treated Edward Stolz’s petition as an

informal objection and denied him party status, finding

that he was not a local resident or regular listener of

the station and thus lacked standing to participate

formally.7 Stolz seeks reconsideration of this ruling

in the PFR now before us.

4. The hearing in this proceeding did not take

place. Instead, on February 3, 2017, Entercom notified

the ALJ that it was discontinuing the operation of

KDND (FM), no longer prosecuting its renewal applications for the station, and tendering the station’s

license for cancellation. On February 22, 2017,

Entercom and MAC submitted a settlement agreement

calling for Entercom to reimburse MAC for its hearing

expenses.8

5 Id. at 12229-30, para. 83.

6 Id. at 12196, para. 1.

7 Id. at 12206, para. 23. Although Irene Stolz had died, her

petition was treated as a formal petition that survived her

death. Id.

8 Termination Order at 1-2.

App.15a

5. The ALJ approved the proposed settlement and

terminated the proceeding.9 The ALJ found that the

surrender of Entercom’s license for KDND (FM) made

a hearing on Entercom’s 2005 and 2013 renewal

applications for KDND (FM) unnecessary and held that

“Entercom has willingly accepted the severest penalty

of a renewal case by surrendering forever its license

to operate KDND (FM), Sacramento, California.”10 The

ALJ approved Entercom’s reimbursement of MAC’s

reasonable expenses. Stolz appeals the ALJ’s Termination Order in the Application for Review now before

us.

6. Stolz’s Petition for Reconsideration. In his

PFR, Stolz challenges the ruling in the HDO denying

his request to intervene as a party in this proceeding.

Stolz does not renew his argument that he qualifies

for standing as the owner of a residence within the

listening area of the station. Instead, he argues that

the HDO “overlooked” alternative bases for finding

that he has standing.11 Stolz observes that, as a

principal of Royce International Broadcasting Company

(Royce), he was formerly the licensee of KUDL (FM),

another station in the Sacramento market.12 The

Commission affirmed the Media Bureau’s grant of the

assignment of KUDL (FM) (then KOWD (FM)) from

Royce to Entercom, a transaction consummated in

9 Id. at 2-3.

10 Id. at 2.

11 PFR at 2.

12 Id. at 3.

App.16a

2003.13 Stolz has appealed the Commission’s grant to

the United States Court of Appeals for the District of

Columbia Circuit.14

7. Stolz contends that if he were to prevail in

court, he would reacquire the station license and be a

competitor of KDND (FM) with a cognizable interest

to intervene as a party.15 Alternatively, Stolz argues

that he has a cognizable stake in the KDND (FM)

proceeding because it might, pursuant to the Commission’s Character Policy Statement,16 have resulted in a decision disqualifying Entercom not only

as the licensee of KDND (FM) but of all the Entercom

stations in the Sacramento market, including KUDL

(FM).17 In that event, Stolz proposes that the KUDL

(FM) station license likewise would be restored to

Stolz.

13 See Royce International Broadcasting Co., 20 FCC Rcd 13720

(MB 2005) (denying reconsideration), rev. dismissed/denied, 30

FCC Rcd 10556 (2015), recon. dismissed, 31 FCC Rcd 214

(2016), rev. denied, 31 FCC Rcd 7439 (2016).

14 Stolz v. FCC, No. 16-1248 (D.C. Cir.).

15 PFR at 4-5, paras. 10-12.

16 Character Qualifications in Broadcast Licensing, 102 FCC

2d. 1179 (1986), recon granted in part and denied in part, 1

FCC Rcd 421 (1986), appeal dismissed sub nom, National Ass’n

for Better Broadcasting v. FCC, No. 86-1179 (D.C. Cir. 1987),

modified, 5 FCC Rcd 3252 (1990), modified, 7 FCC Rcd 6564

(1992).

17 PFR at 3-4, paras. 7-9. Entercom is the licensee of five stations

in Sacramento: KUDL (FM), KRXQ (FM), KSEG (FM), KKDO

(FM), and KIFM (AM). Applications for renewal of these stations

are currently pending.

App.17a

8. Entercom responds that the Commission did not

“overlook” Stolz’s asserted alternative bases for

standing. Entercom contends that Stolz, not the

Commission, had the burden of identifying any bases

for claiming standing and that Stolz should have

raised the additional asserted bases for standing in

his petition to deny instead of raising them for the

first time in his PFR.18 Further, Entercom asserts

that Stolz has failed to demonstrate the kind of current,

likely injury necessary to establish standing. Entercom

contends that the injury asserted by Stolz is too

contingent and speculative to be a basis for standing.19

9. Stolz’s Application for Review. Stolz’s Application for Review relies on three principal contentions. First, Stolz complains that, although Entercom

tendered the license for KDND (FM) for cancellation,

the Commission’s database still lists Entercom as the

licensee of the station. Second, Stolz asserts that the

ALJ erred in not proceeding to hear the issues

designated by the HDO and by not ruling on a

petition to enlarge issues filed by another party that

sought to raise issues as to whether Entercom is

qualified to hold its other licenses in the Sacramento

area. Third, Stolz argues that the ALJ should have

required Entercom to show the actual punitive effect

of surrendering the license to KDND (FM).

III. Discussion

10. Petition for Reconsideration. We dismiss

and, on an alternative and independent basis, deny

the PFR. As a procedural matter, we find that recon18 Opposition at 2-3.

19 Id. at 3-5.

App.18a

sideration is not warranted because Stolz failed to

raise the grounds on which he now claims party-ininterest status in a timely manner. Stolz’s petition to

deny claimed “listener standing” based on his ownership of a home in the station’s service area, but the

Commission determined that Stolz failed to establish

such standing.20 Stolz does not renew his claim of

listener standing in his PFR. Instead, Stolz asserts

that the Commission “overlooked” facts that would

have demonstrated alternative bases for standing (e.g.

status as a potential competitor).21 Irrespective of

what facts the petition to deny may contain, Stolz did

not rely on them as a basis for claiming standing

prior to seeking reconsideration of the HDO. Specifically, in his petition to deny, Stolz asserted only that

he had standing as a listener, and not as a potential

competitor. We agree with Entercom that we had no

obligation to mine Stolz’s petition to deny to search

for additional arguments that Stolz might have

made.22 Having failed to raise these arguments

20 HDO, 31 FCC Rcd at 12206, para. 23. See Petition to Deny,

filed November 1, 2013, by Stolz at 2, para. 2, and Exhibit A,

paras. 2-3 (Declaration of Edward R. Stolz II); Reply to Opposition to Petition to Deny, filed December 23, 2013, by Stolz, at 3,

para. 3.

21 He states: “While ‘listener standing’ . . . is a moving target,

granted or denied at the Commission’s whim and caprice, the

Commission overlooked other facts alleged in Stolz’ 2013

Petition to Deny against Entercom which accord Stolz economic

standing to be a party in interest [with] respect to the KDND

renewal application.” PFR at 2, para. 4.

22 See Tindal v. McHugh, 945 F. Supp. 2d 111, 130 (D.D.C.

2013) (an agency is not required to anticipate and address any

possible argument a party might have made); Tama Radio

Licenses of Tampa Florida, Inc., 25 FCC Rcd 7588, 7589, para. 2

App.19a

himself in a timely manner in his petition to deny, he

may not do so now for the first time in his PFR. A

petition for reconsideration may not rely on facts or

arguments known to the petitioner but not presented

at the last opportunity to address the matter.23 This

fact alone warrants dismissal of the petition for

reconsideration.

11. As an alternative and independent basis for

our decision, we find that even if Stolz’s arguments

on reconsideration for standing are considered on

their merits, they do not establish that Stolz is

entitled to intervene as a party in interest. To have

standing to file a petition to deny or to intervene in a

renewal proceeding, a person must qualify as a “party

in interest.24 That is, the petitioner must demonstrate

that a grant of the application would result in, or be

reasonably likely to result in, some injury of a direct,

tangible or substantial nature.25 We discern two

distinct arguments in Stolz’s PFR attempting to assert

such an interest. First, Stolz claims standing based

(2010) (“The Commission is not required to sift through an

applicant’s prior pleadings to supply the reasoning that our

rules require to be provided in the application for review.”).

23 5 CFR § 1.106(c). See, e.g., Barbour Co. Bd. of Education Ariton

Alabama, 12 FCC Rcd 11782, 11784, para. 5 (1997) (Commission will not grant a petition for reconsideration based on a

showing that could have been made earlier). As the following

paragraphs indicate, Stolz has shown no public interest reason

to make an exception to this principle under 47 C.F.R.

§ 1.106(c)(2).

24 See 47 U.S.C. § 309(d)(1) (petition to deny); 47 C.F.R. § 1.223(a)

(intervention).

25 See Pinelands, Inc., 7 FCC Rcd 6058, 6063, para. 18 & n.20

(1992).

App.20a

on economic injury from the renewal of KDND (FM)

that he would allegedly suffer as the potential future

licensee of competing Sacramento station KUDL

(FM).26 As set forth above, however, Stolz is not

currently the licensee of KUDL (FM), but has merely

appealed approval of the assignment of KUDL (FM)

from him to Entercom. Stolz’s claim of economic injury

as a competitor of KDND (FM) thus rests on the speculative assumption that Stolz will succeed in

persuading the D.C. Circuit to overturn the assignment,

not on any current status as a competitor. We find

that Stolz’s assertion of competitive injury, depending

as it does on his conjectural future acquisition of

KUDL (FM) does not qualify Stolz as a competitor of

KDND (FM)27 Interstate Broadcasting Co. v. U.S.,28

relied on by Stolz, is not to the contrary. The Interstate

petitioners showed likely injury in the event of a

particular outcome in that case, whereas Stolz is

26 P.F.R. at 4-5, paras. 10-11.

27 See Pinelands, Inc., supra note 25 n.20 (“Although [petitioner] competed for the Secaucus facility, it is not currently an

economic competitor entitled to standing. . . . ”); Irene M. Neely,

49 FCC 2d 311, 312 (1074) (“A mere applicant does not have

standing to protest because there is no certainty that it will

ever obtain the permit applied for.”); Kathleen Victory, Esq., 23

FCC Rcd 11910, 11911 n.18 (Aud. Serv. Div. MB 2008) (“Standing to file a petition to deny . . . as an aggrieved competitor,

assumes an actual state of competition. . . . ”). See also Verde

Systems, LLC., 25 FCC Rcd 9166, 9168 n.18 (Mob. Div. WTB

2010) (“We also reject the suggestion that the pendency of

pleadings filed by [petitioner] against affiliates of the applicants

with respect to Auctions Nos. 57 and 61 [in other markets]

confers standing on [petitioner] to challenge the applications

here.”)

28 286 F.2d 539 (D.C. Cir. 1960). See Stolz Reply at 4, para.8.

App.21a

trying to show likely injury in the event of a particular

outcome in an entirely different case.29

12. Second, Stolz argues that resolution of the

KDND (FM) proceeding could ultimately result in

findings that Entercom is unqualified to hold KUDL

(FM).30 In Stolz’s view, this would provide a basis to

set aside the assignment of KUDL (FM) to Entercom

and restore the station license to him.31 Stolz argues

that under the Commission’s Character Policy State29 In Interstate, a petitioner attempted to intervene in a

comparative proceeding based on the allegation that a grant of

either of two of the eight competing applications would interfere

with the petitioner’s station. The court rejected the Commission’s conclusion that petitioner’s injury was speculative

because there was no demonstration that the two interfering

applicants were likely to win the proceeding. The court found

that it was sufficient for the petitioner to show that likely injury

would result if one of them won. In other words, the Interstate

petitioner showed likely injury in the event of a particular

outcome of the case in which it sought to intervene, whereas

here Stolz is trying to show injury based on the possible

outcome of an entirely different case. Absent a favorable

outcome in the KUDL (FM) proceeding, no outcome of the

instant, KDND (FM) renewal proceeding could possibly cause

him economic injury as a competitor.

30 PFR at 3-4, paras. 7-9; Reply at 2-3 paras. 4-6. Stolz states:

“If they [Entercom] are disqualified from being a Commission

licensee of KDND, why would they not also be disqualified from

being a licensee of KUDL/KWOD?” P.F.R. at 4, para. 9. See also

Reply at 2, para. 4.

31 Stolz states: “If Entercom were disqualified as a Commission

licensee in Sacramento, File No. BALH-20021120ACE [the

assignment application] would have to be vacated or dismissed,

and KUDL/KWOD would have to be returned to Stolz.” P.F.R.

at 4, para. 9. See also Brief of Appellant, Stolz v. FCC, No. 161248 (Oct. 31, 2016) at 30-31 (asserting that the designation of

KDND (FM) should be considered in the assignment case).

App.22a

ment,32 the misconduct that occurred at KDND (FM)

was sufficiently egregious to warrant disqualifying

Entercom from holding stations in the Sacramento

market other than KDND (FM).33

13. We find no support for Stolz’s argument.

KDND (FM) is the only station at issue in the

designated proceeding. The HDO in this proceeding

specifically designates for hearing only the two abovecaptioned license renewal applications and delineates

the issue designated as “whether Entercom’s Applications for Renewal of License of KDND (FM)

. . . should be granted.”34 In this respect, the scope of

the designated issue is restricted by the Communications Act. As the Commission stated in designating

this case for hearing, the basis for designation is that

“we are unable to make the finding required by [47

U.S.C. § ] 309(k)(1)(A).”35 That section provides that

the Commission “shall grant the [renewal] application if it finds, with respect to that station, during

the preceding term of its license [that] the station

has served the public interest, convenience, and

necessity . . . .” (emphasis added.)36 Accordingly, no

32 Supra note 16.

33 Stolz cites the Character Policy Statement, 102 FCC 2d at

1205 n.60, for the proposition that egregious nonbroadcast

misconduct might disqualify a licensee.

34 HDO, 31 FCC Rcd at 12229-30, para. 83.

35 Id. at 12229, para. 82. See also Id. at 12199-200, para. 8.

36 47 U.S.C. § 309(k)(1)(A). In declining to designate a general

character issue against Entercom, the Commission noted that

section 309(K)(1)(A) limited the scope of issues relevant to a

renewal proceeding to those listed. HDO, 31 FCC Rcd at 1220910, para. 30 & n.122.

App.23a

action could be taken against other Entercom licenses

or applications, regardless of the Character Policy

Statement, without further action by the Commission initiating additional proceedings.

14. Moreover, even to the extent the Character

Policy Statement is relevant, it does not support the

designation of a character issue against Entercom.

Pursuant to the Character Policy Statement, if the

Commission considers the misconduct alleged at one

station to implicate other stations, it designates those

other stations for hearing at the same time.37 We did

not designate additional stations here, for example,

for revocation.38 This is consistent with the policy

reflected in the Character Policy Statement that

deterrence is an important element of the character

qualifications process and that the loss of a single

station is generally an adequate sanction.39

15. In view of the foregoing, we find that Stolz

has not demonstrated that he is a party in interest in

the above-captioned renewal proceeding. Elm City

Broadcasting Corp. v. U.S., relied on by Stolz, which

holds that the Commission does not have discretion

37 See Character Policy Statement, 102 FCC 2d at 1224, para. 93.

38 See HDO, 31 FCC Rcd at 12209-10, para. 30 & n.122 (noting

that under the circumstances it was not necessary to initiate a

revocation proceeding to examine Entercom’s character

qualifications).

39 See Character Policy Statement, 102 FCC 2d at 1228, para.

103.

App.24a

to deny intervention to a party in interest, is therefore

inapposite.40

16. Application for Review. Given our finding

that Stolz has not shown that he is a party in interest,

we need not reach the merits of his Application for

Review and thus we summarily dismiss it. As a nonparty, Stolz has no authority to appeal the ALJ’s

termination of the hearing proceeding. The pertinent

rule, 47 C.F.R. § 1.302, authorizes only parties to a

hearing proceeding to appeal an ALJ’s order terminating the proceeding. The rule that authorizes an

application for review by “any person aggrieved by

any action taken under delegated authority” does not

apply to ALJ’s rulings in hearing proceedings.41 Actions

by an ALJ in a hearing proceeding are not taken pursuant to delegated authority, but instead are taken by

virtue of the authority to control the course of a

hearing granted to an ALJ by the Administrative

Procedure Act.42 In any event, even if an application

for review were an appropriate vehicle for seeking

review, Stolz would not qualify as “aggrieved” by the

ALJ’s Termination Order for purposes of section 1.115

for essentially the same reasons, discussed above,

that he does not qualify as a party in interest for purposes of intervention in the proceeding. That is, the

ALJ’s termination of the proceeding did not foreclose

40 P.F.R. at 5, para. 2; Reply at 4, para. 7, citing Elm City

Broadcasting Corp. v. U.S., 235 F.2d 811 (D.C. Cir. 1956).

41 47 C.F.R. § 1.115.

42 See Stephen D. Tarkenton, 7 FCC Rcd 5973 (1992). The

Commission’s power to delegate authority derives from 47

U.S.C. § 155(c). The ALJ’s authority derives from a different

statutory provision (5 U.S.C. § 556(a), (c)).

App.25a

the consideration of questions relevant to Stolz’s

stated interest (whether he could reacquire KUDL

(FM)), which were not at issue in the proceeding before

the ALJ and which the ALJ could not have considered.

As discussed above, the Commission only designated

issues with respect to KDND (FM), and the ALJ

therefore could not have expanded the hearing proceeding to cover other stations.43

IV. Ordering Clauses

17. ACCORDINGLY, IT IS ORDERED, that the

Petition for Reconsideration, filed November 28, 2016,

by Edward R. Stolz II IS DISMISSED.

18. IT IS FURTHER ORDERED, that the Petition

for Reconsideration, filed November 28, 2016, by

Edward R. Stolz II IS, on an alternative and independent basis, DENIED.

19. IT IS FURTHER ORDERED, that Application

for Review, filed April 17, 2017, by Edward R. Stolz

II IS DISMISSED.

Federal Communications Commission

Marlene H. Dortch

Secretary

43 Supra paragraphs 11-13.

App.26a

ORDER OF THE FEDERAL

COMMUNICATIONS COMMISSION

(MARCH 16, 2017)

FEDERAL COMMUNICATIONS COMMISSION

(F.C.C.)

________________________

IN THE MATTER OF ENTERCOM LICENSE, LLC

Application for Renewal of License for Station KDND

(FM), Sacramento, California

________________________

MB Docket No. 16-357

10768

Facility ID No. 65483

File Nos. BRH-20050728AUU and

BRH-20130730ANM

FCC 17M-09

Before: Richard L. SIPPEL,

Chief Administrative Law Judge

On October 27, 2016, the Media Bureau released

In the Matter of Entercom License, LLC Application

for Renewal of License for Station KDND (FM),

Sacramento, California, Hearing Designation Order

and Notice of Opportunity for Hearing, 31 FCC Rcd

12186 (HDO ), in the above-captioned renewal proceeding. The HDO alleged that Station KDND (FM), a

radio station operated by Entercom License, LLC

(Entercom) in Sacramento, California, held a waterdrinking contest called “Hold Your Wee for a Wii” on

App.27a

January 12, 2007. Following the contest, contestant

Jennifer Lea Strange died from water intoxication

(hyponatremia). It was determined by a court that

her death was a result of the station’s negligence.

The HDO designated for hearing various legal and

factual issues related to the contest, including whether

Entercom knew that the contest was dangerous and

failed to warn the contestants; whether Entercom

operated Station KDND (FM) in the public interest;

and whether Entercom’s license for Station KDND (FM)

should be renewed. 31 FCC Rcd at 12229-30, para. 83.

On January 9, 2017, intervenor Sue Wilson and the

Media Action Center (collectively, MAC) filed a Petition

to Enlarge Issues (Petition). On January 18, 2017,

the Enforcement Bureau filed an Opposition to the

Petition. On January 19, 2017, Entercom filed its own

Opposition to the Petition. MAC filed a Reply to the

Enforcement Bureau on January 26, 2017, and a Reply

to Entercom on January 27, 2017. On February 1, 2017,

the Enforcement Bureau filed a Motion for Leave to

File a Surreply, along with the proposed Surreply.

Prior to any ruling on the Petition, Entercom

filed a Notice of Discontinuance with the Media Bureau

on February 3, 2017, notifying the Media Bureau that

it would “permanently discontinue operation of KDND

(FM) . . . on February 8, 2017.” On February 8, 2017,

Entercom “forward[ed] the station license for KDND

(FM) . . . and other KDND instruments of authorization

to the Commission for cancellation . . . .”

The same day, February 8, 2017, Entercom filed a

Motion to Dismiss Renewal Applications and Termin-

App.28a

ate Hearing.1 On February 10, 2017, MAC filed an

Opposition to Entercom’s Motion to Dismiss, as well

as a request to hold a settlement conference.

Thereafter, on February 22, 2017, Entercom and

MAC filed a Joint Motion for Approval of Settlement,

to which the Enforcement Bureau had no objection.

The settlement agreement only compensates MAC for

its legal fees and nothing else, and the fees appear to

be reasonable.

Rulings

Entercom has avoided the Commission hearing

process by surrendering its license for KDND (FM).

Entercom has also reached a settlement agreement with

MAC. Therefore, there is nothing further to be done

here beyond dismissal. The ultimate question in the

HDO was whether Entercom’s license for KDND (FM)

should be renewed, and that has now been rendered

moot by Entercom surrendering its license. Finally,

Entercom has willingly accepted the severest penalty

of a renewal case by surrendering forever its license

to operate KDND (FM), Sacramento, California.

Accordingly, IT IS ORDERED that:

1. MAC’s Petition to Enlarge and the Bureau’s

Motion for Leave to File a Surreply ARE DISMISSED

as moot.

2. Entercom and MAC’s Joint Motion for Approval

of Settlement IS GRANTED; and

1 The Prehearing Conference set for February 8, 2017 was

cancelled via email upon receipt of Entercom’s Motion to

Dismiss. See Order, FCC 17M-02 (rel. Feb. 6, 2017).

App.29a

3. Entercom’s Motion to Dismiss IS GRANTED,

and this proceeding IS TERMINATED, with prejudice.

SO ORDERED.

Federal Communications Commission2

Richard L. Sippel

Chief Administrative Law Judge

2 Courtesy copies of this Order will be sent via email to all

counsel of record on the date of issuance.

App.30a

MEMORANDUM OPINION AND ORDER OF THE

FEDERAL COMMUNICATIONS COMMISSION

(JUNE 20, 2016)

FEDERAL COMMUNICATIONS COMMISSION

(F.C.C.)

________________________

IN THE MATTER OF ROYCE INTERNATIONAL

BROADCASTING COMPANY,

Assignor,

and

ENTERCOM COMMUNICATIONS CORP.

Assignee.

________________________

File No. BALH-200021120ACE

Facility ID No. 57889

FCC 16-76

Application for Assignment of License of Station

KUDL (FM) (Formerly KWOD), Sacramento,

California

By the Commission:

1. We have before us a February 18, 2016, Application for Review (2016 AFR)1 filed by Royce Interna1 On March 1, 2016, Royce filed a Motion for Leave to File

Erratum to Application for Review to correct two typographical

errors in the 2016 AFR. On March 4, 2016, Entercom filed an

App.31a

tional Broadcasting Company (Royce), seeking review

of a Media Bureau (Bureau) decision2 that dismissed

as “plainly not warranting Commission consideration”

because the Royce “fail[ed] to identify any material

error, omission, or reason warranting reconsideration,” pursuant to Section 1.106(p)(1) of the FCC’s

Rules (Rules),3 Royce’s October 19, 2015, Petition for

Reconsideration (Petition). The Petition sought reconsideration of our Memorandum Opinion and Order 4

which dismissed in part and denied in part Royce’s

September 20, 2005, Application for Review (2005

AFR) seeking to overturn the Bureau’s grant of the

above-captioned application (Application) for Commission consent to the assignment of license of Station

KUDL (FM), Sacramento, California (Station), from

Royce to Entercom Communications Corp. (Entercom).5

For the reasons set forth below, we deny the 2016

AFR.

2. The sole issue presented for review is the

propriety of the Bureau’s action dismissing the Petition.

Royce claims that the Bureau Order was arbitrary,

capricious and contrary to law, and that the staff dis-

Opposition to the 2016 AFR, to which Royce replied on March

17, 2016.

2 See Royce International Broadcasting Company, Order on

Reconsideration, DA 16-62 (MB 2016) (Bureau Order ).

3 47 C.F.R. § 1.106(p)(1).

4 See Royce International Broadcasting Company, Letter Order,

20 FCC Rcd 13720 (MB 2005).

5 See Royce International Broadcasting Company, Letter Order,

20 FCC Rcd 13720 (MB 2005).

App.32a

missal pursuant to Section 1.106(p)(1)6 has frustrated its ability to seek judicial review. Substantively, Royce reiterates the following arguments that

were rejected in the Bureau Order : (1) the 2015

MO&O violated Section 155(d) of the Communications

Act of 1934, as amended,7 and Section 706 of the

Administrative Procedure Act8 because the Commission

took almost 10 years to act on the 2005 AFR; (2) this

application proceeding “is governed” by Kidd v. FCC, 9

a case decided after the pleading cycle for the 2005

AFR had closed; and (3) the 2015 MO&O improperly

rejected three Royce arguments as procedurally barred.

3. In Opposition, Entercom alleges that the 2016

AFR “merely rehashes (often verbatim) matters that

have repeatedly been addressed and resolved by the

Commission.”10 It argues that: (1) the Bureau properly

applied Section 1.106(p) in this case;11 (2) Royce continues to mischaracterize Section 155(d) of the Act

and 706 of the APA;12 (3) Royce also continues to

mischaracterize both Kidd, the appellate case on which

Royce relies and the facts of this case;13 and (4)

Royce’s claim that the Bureau “prevented [[it] from

6 47 C.F.R. § 1.106(p)(1).

7 47 U.S.C. § 155(d).

8 5 U.S.C. § 706.

9 Kidd Commc’ns v. FCC, 427 F.3d 1 (D.C. Cir 2005) (Kidd).

10 Opposition at 2.

11 Id. at 3.

12 Id. at 3-4.

13 Id. at 4-7.

App.33a

getting” a ruling on three arguments presented for

the first time in the 2005 AFR fails because that

contention was sufficiently addressed by the 2015

MO&O and the Bureau Order.14

4. Discussion. We affirm the dismissal of the

Petition. A petition for reconsideration of the Commission’s denial of an application for review will be

entertained only if: (1) the petition relies on facts

which relate to events which have occurred or

circumstances which have changed since the last

opportunity to present such matters, or (2) the petition

relies on facts unknown to petitioner until after his

last opportunity to present such matters which could

not, through the exercise of ordinary diligence, have

been learned prior to such opportunity.15 Petitions

failing to meet these narrow grounds are subject to

dismissal.16

5. The Petition did not meet the narrow grounds

for reconsideration of the 2015 MO&O. Initially, we

find that Royce could have raised its Section 155(d)

““undue delay” argument earlier in this proceeding

and therefore that this issue was impermissibly argued

for the first time in the Petition. Moreover, to the

extent that Royce believed that the Commission’s delay

14 Id. at 8.

15 47 C.F.R. § 1.106(b)(2)(i) and (ii); see also Fireside Media and

Jet Fuel Broadcasting, Memorandum Opinion and Order, 27 FCC

Rcd 10694, 10696, para. 4 (2012) (Sections 1.106(b)(2)(i) and (ii)

of the Commission’s rules set forth the conditions under which

the Commission will consider petitions for reconsideration of

Commission denial of an application for review).

16 See, e.g., 47 C.F.R. §§ 1.106(b)(3) and 1.106(p)(1), (2) and (3).

App.34a

in ruling on its 2005 AFR was prejudicial,17 it fails to

show how a different outcome would have been reached

if action had occurred sooner.18

6. We also agree with the Bureau’s rejection as

meritless Royce’s claim in the Petition that the October

2005 Kidd appellate decision is a new fact or changed

circumstance that occurred after Royce’s last opportunity to present such matters to the Commission,

warranting reconsideration of our 2015 MO&O. Royce

ignores the well-established flexibility accorded parties

by Commission procedures. Royce could have filed a

motion to accept a late-filed pleading with the Bureau

upon release of the Kidd decision or at any time

during the pendency of the 2005 AFR. The Commission historically has found that good cause exists for

acceptance of such pleadings.19 Royce filed no such

motion.

17 Reply at 4.

18 See Bureau Order at para. 7 (Royce “fundamentally mischaracterizes” Section 155(d) of the Act as mandating Commission

action within three months whereas this statutory provision

merely sets a non-mandatory objective; Royce “has not shown

prejudice by establishing that the result reached would likely

have been different if action had occurred sooner.”).

19 See, e.g., WSTE-TV, Inc., Memorandum Opinion and Order,

75 FCC 2d 52, 63 (1979) (good cause exists for acceptance of

additional pleadings inasmuch as they focus on the Commission’s most recent views concerning the use of translator stations,

a subject central to this proceeding upon remand); Amendment

of Section 73.202(B) Table of Allotments, FM Broadcast Stations

(Genoa, CO), Report and Order, 18 FCC Rcd 1465 n.2 (MB

2003) (“We will grant the motions and accept the late-filed pleadings . . . because they will facilitate resolution of this case based

upon a full and complete factual record.”); New Mexico Broadcasting, Inc., Memorandum Opinion and Order, 88 FCC 2d 1469

App.35a

7. Finally, regarding Royce’s contention in the

Petition and here that the Commission acted arbitrarily

in dismissing on procedural grounds three arguments

that Royce claims were “subsumed within” the primary

issue of whether the Bureau correctly processed the

Application in accordance with the Commission’s

multiple ownership rules,20 as we concluded in footnote

11 of the 2015 MO&O, Royce never presented any of

these specific arguments to the Bureau. Thus, they

were properly dismissed in the 2015 MO&O, pursuant

to Section 1.115(c) of the Rules.21 The Bureau properly

noted in the Bureau Order that it is the Commission’s

obligation to rule only on allegations actually made;

it is not the Commission’s obligation to flesh out or

embellish arguments inexpertly made by petitioners.22

Accordingly, we conclude that these arguments were

improperly raised for the first time before the Commission and therefore subject to dismissal pursuant to

Section 1.106(p)(2) of the Rules.

n.2 (1982) (Commission uses good cause standard to determine

acceptance of unauthorized pleadings).

20 2016 A.F.R. at 11.

21 47 C.F.R. § 1.115(c).

22 See, e.g., Tama Radio Licenses of Tampa, Florida, Inc., Memorandum Opinion and Order, 25 FCC Rcd 7588, 7589, para. 2 (2010)

(“The Commission is not required to sift through an applicant’s

prior pleadings to supply the reasoning that our rules require to

be provided in the application for review.”); Red Hot Radio, Inc.,

Memorandum Opinion and Order, 19 FCC Rcd 6737, 6745 n.63

(2004) (“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.”).

App.36a

8. Having found that each of the arguments raised

in the Petition is subject to dismissal for the reasons

stated above, we also conclude that the Bureau

appropriately concluded that the Petition was itself

subject to dismissal. Accordingly, we dismiss as moot

the argument that the staff dismissal of the Petition

pursuant to Section 1.106(p)(1) was arbitrary, capricious

and contrary to law. In 2015, we denied Royce’s 2005

AFR, concluding that Royce’s contentions that the

Bureau’s grant of the Application was improper were

without merit. Regarding Royce’s untimely and unsupported contention that it was somehow prejudiced by

the delay in our so affirming the Bureau, while that

delay is regrettable, it does not alter the fact that the

Bureau’s grant of the Application was appropriate.

9. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 5(c)(5) of the Communications Act of

1934, as amended, 47 U.S.C. § 155(c)(5), and Section

1.115(g) of the FCC’s Rules, 47 C.F.R. § 1.115(g), the

February 18, 2016, Application for Review filed by

Royce International Broadcasting Company, IS

DENIED.

Federal Communications Commission

Marlene H. Dortch

Secretary

App.37a

ORDER ON RECONSIDERATION BY THE

FEDERAL COMMUNICATIONS COMMISSION

(JANUARY 19, 2016)

FEDERAL COMMUNICATIONS COMMISSION

(F.C.C.)

________________________

IN THE MATTER OF ROYCE INTERNATIONAL

BROADCASTING COMPANY,

Assignor,

and

ENTERCOM COMMUNICATIONS CORP.

Assignee.

________________________

File No. BALH-200021120ACE

Facility ID No. 57889

DA. 16-62

Application for Assignment of License of Station

KUDL (FM) (Formerly KWOD), Sacramento,

California1

By the Chief, Media Bureau:

Introduction

1. We have before us a Petition for Reconsideration

(Petition) filed on October 19, 2015, by Royce

1 Formerly KWOD(FM).

App.38a

International Broadcasting Company (Royce).2 The

Petition seeks reconsideration of the Commission’s

September 17, 2015, Memorandum Opinion and Order,

which dismissed in part and denied in part Royce’s

Application for Review (AFR).3 In this Order on

Reconsideration, we dismiss the Petition pursuant to

Section 1.106(p)(1) of the Commission’s Rules (Rules).4

2. The AFR sought review of a Media Bureau

(Bureau) decision5 denying reconsideration of the

staff’s grant of the captioned application (Application)

for consent to the assignment of license of Station

KUDL (FM), Sacramento, California (Station), from

Royce to Entercom. In the Bureau Decision, the Bureau

held that: (1) the “grandfathering” provisions of the

2002 Ownership Order6 applied to this transaction

that was consummated prior to the adoption of the

2 Entercom Communications Corp. (Entercom) filed an Opposition to Petition for Reconsideration (Opposition) on November 3,

2015, to which Royce replied (Reply) on November 16, 2015.

3 Royce International Broadcasting Company, Memorandum

Opinion and Order, 30 FCC Rcd 10556 (2015) (MO&O).

4 47 C.F.R §§ 1.106(p)(1).

5 See Royce International Broadcasting Company, Letter Order,

20 FCC Rcd 13720 (MB 2005) (Bureau Decision).

6 See 2002 Biennial Regulatory Review—Review of the Com-

mission’s Broadcast Ownership Rules and Other Rules Adopted

Pursuant to Section 202 of the Telecommunications Act of 1996,

Report and Order and Notice of Proposed Rulemaking, 18 FCC

Rcd 13620, 13692, para. 187 (2003) (Ownership Order). On that

same day, June 2, 2003, the Commission announced by Public

Notice that certain “pending” applications would be processed

under the new rules. Media Bureau Announces Processing

Guidelines for Broadcast Station Applications, Public Notice, 18

FCC Rcd 11319, 11319 (2003).

App.39a

new rules; and (2) Royce’s reliance on Section 1.65 of

the Rules7 to support its allegation that the Application was still “pending” and should be processed under

the revised rules was “misplaced.” The MO&O affirmed

the Bureau Decision.8

3. In its Petition, Royce argues that: (1) The

MO&O ’s issuance violated Section 155(d) of the

Communications Act of 1934, as amended (Act), which

in turn violated Section 706 of the Administrative

Procedure Act (APA) because it took the Commission

almost 10 years to rule on the AFR;9 (2) the “entire

proceeding” underlying the MO&O should be governed

by Kidd v. FCC (Kidd )10 in which the Court of Appeals

for the District of Columbia Circuit ruled in 2005,

7 47 C.F.R. § 1.65. Section 1.65 of the Rules reads, in pertinent

part:

For purposes of this section, an application is “pending”

before the Commission from the time it is accepted

for filing by the Commission until a Commission

grant or denial of the application is no longer subject

to reconsideration by the Commission or to review by

any court. (emphasis supplied).

8 MO&O, 30 FCC Rcd at 10557, para. 4.

9 Id. at 1. Royce cites numerous cases in which federal appellate

courts have recognized the principle that “justice delayed is

justice denied.” See Gaur v. Gonzales, 124 Fed. Appx. 738, 743, para.

24 (3rd Cir. 2005); Rohr Industries, Inc. v. Washington Metropolitan

Area Transit Authority, 720 F.2d 1319, 1327, para. 21 (D.C. Cir.

1983); U.S. v. Hastings, 847 F.2d 923 (1st Cir. 1988); U.S. v.

Bert, 2015 WL 5254882, Slip Op. at 10 (2nd Cir. 2015); Willis v.

Sullivan, 931 F.2d 390, 404, para. 52 (6th Cir. 1991); SEC v.

First American Bank & Trust Co., 481 F.2d 673, 676 n.3 (8th

Cir. 1973). Petition at 5.

10 427 F.3d 1 (D.C. Cir. 2005).

App.40a

but after the AFR pleading cycle had closed, that the

Commission is not obliged to accommodate a state

court decision if it is contrary to Commission policy,

thus presenting a “similar situation” that Royce has

heretofore been “unable to argue”;11 and (3) in the

MO&O, the Commission erred in rejecting as procedurally barred three arguments regarding whether the

Bureau’s grant of the Application was in accordance

with the Commission’s multiple ownership rules.12

Royce argues that the grant of the Application should

be rescinded and vacated and that the Station’s license

be returned to Royce.13

4. In its Opposition, Entercom argues that: (1)

Section 155(d) of the Act, as well as Section 706 of

the APA, are inapplicable; Royce inaccurately characterizes these rule sections as mandates requiring Commission action in all circumstances by a date certain;14

(2) Kidd is inapposite because the Kidd transaction

11 Petition at 2-3, 6-7.

12 Id. at 8. In the AFR, Royce argued for the first time that: (1)

the Bureau “unlawfully” determined that the court’s stay of the

rules adopted in the Ownership Order applies in this case, see

Prometheus Radio Project, et al. v. F.C.C., No. 03-3388, slip op.

at 3 (3d Cir. Sept. 3, 2003) (per curiam); (2) the Bureau, by not

addressing Royce’s Section 1.65 “pending” argument, violated 5

U.S.C § 557(c) of the Administrative Procedure Act which requires that any ruling in an adjudicatory decision “show the

ruling on each finding, conclusion or exception presented”; and

(3) the Bureau, by failing to apply Section 1.65(a) as well as the

application processing guidelines established in the Ownership

Order, violated the fundamental tenet that the Commission

must follow its own rules.

13 Id. at 9.

14 Opposition at 2.

App.41a

implicated the Commission’s rule against a seller

retaining a reversionary interest in a license; (3)

Royce mischaracterizes the state court order at

issue;15 and (4) the MO&O correctly dismissed three

arguments raised for the first time in the AFR

because they could and should have been first presented

to the Bureau.16

5. In Reply, Royce argues that the Petition is

appropriate pursuant to Section 405(a)(2) of the Act

and Section 1.106(b)(2) of the Rules because Kidd

was decided after the end of the pleading cycle on

Royce’s AFR.17 In addition, Royce argues that Kidd

is applicable here because this case, like Kidd, involves

an order of a California state court ordering an FCC

licensee to, in effect, turn over its license to a party

that had brought suit.18

II.

Discussion

6. Commission rules prescribe limited circumstances under which a party may seek reconsideration of a Commission denial of an application for

review. Pursuant to Section 1.106(p)(1), the staff may

dismiss or deny any petition for reconsideration of a

Commission action that “plainly does not warrant

Commission consideration,” if such petition “[f]ail[s]

15 Id. at 5.

16 Id. at 6.

17 Reply at 2. See also 47 U.S.C. § 405(a)(2) and 47 C.F.R.

§ 1.106(b)(2).

18 Id.

App.42a

to identify any material error, omission, or reason

warranting reconsideration.”19

7. As an initial matter, Royce fundamentally

mischaracterizes Section 155(d) of the Act as mandating

Commission action within three months. The Commission has held that this statutory provision merely

sets a “non-mandatory” ““objective.”20 Further, Royce

“has not shown prejudice by establishing that the

result reached [in the MO&O ] would likely have been

different if action had occurred sooner,” nor has

Royce shown that the delay extinguished its appellate

rights.21 Accordingly, we dismiss this argument pursuant to Section 1.106(p)(1) of the Rules.

8. Next, we find that Kidd is inapposite to this

proceeding and that Royce badly mischaracterizes the

challenged state court order. Specifically, the Kidd

court vacated a license assignment grant because the

Commission had failed to explain how the transaction

complied with the rule prohibiting seller-retained

reversionary interests.22 In contrast, the challenged

Interlocutory Judgment merely ordered “the electronic

filing . . . of FCC Form 314 in accordance with applicable

19 47 C.F.R. §§ 1.106(p)(1). See also Amendment of Certain of

the Commission’s Part 1 Rules of Practice and Procedure and

Part 0 Rules of Commission Organization, Report and Order, 26

FCC Rcd 1594, 1606, para. 27 (2011).

20 See Pacific and Southern Company, Inc., Memorandum

Opinion and Order, 11 FCC Rcd 8503, 8506, para. 11 (1996)

(also noting that in the license renewal context compliance with

this “objective” “is an impossibility”).

21 Id. at 8507, para. 11.

22 See Kidd, 427 F.3d at 6, para. 16.

App.43a

FCC policies and rules.”23 The state court did not, as

Royce claims, “order the FCC to grant the . . . [A]pplication.”24 In any event, both the Bureau and the

Commission subsequently found that the Application

complied with all pertinent statutory and regulatory

requirements. We therefore also dismiss this argument

pursuant to Section 1.106(p)(1) of the Rules.25

9. Finally, regarding Royce’s contention that the

Commission acted arbitrarily in dismissing on procedural grounds three arguments that Royce claims were

“subsumed within” the primary issue of whether the

Bureau correctly processed the Application in accordance with the Commission’s multiple ownership rules,26

it is clear that Royce never presented any of these

23 See Application at Attachment 1 (Entercom Communications

Corp. v. Royce International Broadcasting Corporation, Royce

International Broadcasting Company, Edward R. Stoltz II, and

DOES 1-10, Case No. 99AS04202, Interlocutory Judgment

(without attachments) (Sup. Ct. Cal., Sacramento County) at 4)

(emphasis supplied).

24 Petition at 7.

25 Because we dismiss Royce’s Kidd argument pursuant to 47

C.F.R. § 1.106(p)(1), we need not reach the issue whether the

release of Kidd constituted a “new fact or changed circumstance” under 47 C.F.R. § 1.106(b)(2)(i). We note, however, that

the Bureau has previously concluded that dismissal pursuant to

Section 1.106(b)(3) is appropriate when the alleged new facts

are not material to the matters at issue in the application proceeding. See, e.g., Emmis Radio License, LLC, Order on Reconsideration, 29 FCC Rcd 9129, 9131, para. 4 (MB 2014) (Bureau

finds that petitioners’ citation to irrelevant Commission orders

failed to demonstrate changed circumstances warranting reconsideration of a Commission Memorandum Opinion and Order

pursuant to Section 1.106(b)(2)(i)).

26 Petition at 7.

App.44a

specific arguments to the Bureau. Thus, they were

properly dismissed pursuant to Section 1.115(c) of

the Rules.27 It is the Commission’s obligation to rule

only on allegations actually made; it is not the Commission’s obligation to flesh out or embellish arguments inexpertly made by petitioners.28 Accordingly,

we also dismiss this argument pursuant to Section

1.106(p)(1) of the Rules.

III. Ordering Clause

10. ACCORDINGLY, IT IS ORDERED that,

pursuant to authority contained in Section 1.106(p)

of the Commission’s Rules, the Petition for Reconsideration filed on October 19, 2015, by Royce International Broadcasting Company, IS DISMISSED.

Federal Communications Commission

William T. Lake

Chief, Media Bureau

27 47 C.F.R. § 1.115(c).

28 See, e.g., Tama Radio Licenses of Tampa, Florida, Inc., Memorandum Opinion and Order, 25 FCC Rcd 7588, 7589, para. 2

(2010) (“The Commission is not required to sift through an

applicant’s prior pleadings to supply the reasoning that our

rules require to be provided in the application for review.”); Red

Hot Radio, Inc., Memorandum Opinion and Order, 19 FCC Rcd

6737, 6745 n.63 (2004) (“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.”).

App.45a

MEMORANDUM OPINION AND ORDER OF THE

FEDERAL COMMUNICATIONS COMMISSION

(SEPTEMBER 17, 2015)

FEDERAL COMMUNICATIONS COMMISSION

(F.C.C.)

________________________

IN THE MATTER OF ROYCE INTERNATIONAL

BROADCASTING COMPANY,

Assignor,

and

ENTERCOM COMMUNICATIONS CORP.,

Assignee.

________________________

File No. BALH-200021120ACE

Facility ID No. 57889

FCC 15-126

Application for Assignment of License of Station

KUDL (FM) (Formerly KWOD), Sacramento,

California

By the Commission:

1. We have before us an Application for Review

(“AFR”) filed on September 20, 2005, by Royce International Broadcasting Company (“Royce”).29 Royce

29 On October 5, 2005, Entercom filed an Opposition, to which

Royce replied on October 19, 2005.

App.46a

seeks review of the Media Bureau’s (“Bureau”)

August 22, 2005, denial of Royce’s petition for reconsideration (“Petition”) seeking to overturn the Bureau’s

grant of an application (“Application”) for Commission consent to the assignment of license of Station

KUDL (FM), Sacramento, California (“Station”),30

from Royce to Entercom Communications Corp.

(“Entercom”).31 For the reasons set forth below, we

affirm the Bureau’s action below.

2. On May 12, 2003, the staff granted the Application finding, inter alia, that the Application

complied with the Commission’s local radio ownership

rules.32 Entercom consummated the acquisition on

May 19, 2003. On June 2, 2003, the Commission adopted new multiple ownership rules,33 and announced

30 Formerly Station KWOD (FM).

31 Royce International Broadcasting Company, Letter, 20 FCC

Rcd 13720, 13721 (MB 2005) (“Bureau Decision”).

32 See Letter to Andrew S. Kersting, Esq., and Brian M.

Madden, Esq., Ref. 1800B3-BSH (MB rel. May 14, 2003), p.5. In

this action, the Bureau also denied Royce’s petition to deny the

Application pending Royce’s appeal of the court order that required Royce to sign all documents necessary to effectuate the

Commission’s approval of the assignment of the Station’s

license to Entercom. See Entercom Communications Corp., v.

Royce International Broadcasting Corp., et al., California

Superior Court, Case No. 99AS04202.

33 See 2002 Biennial Regulatory Review—Review of the Com-

mission’s Broadcast Ownership Rules and Other Rules Adopted

Pursuant to Section 202 of the Telecommunications Act of 1996,

Report and Order and Notice of Proposed Rulemaking, 18 FCC

Rcd 13620 (2003) (“Ownership 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), stay modified on rehearing, No. 033388 (3d Cir. Sep. 3, 2004), cert. denied, 73 U.S.L.W. 3466 (U.S.

App.47a

that same day by Public Notice that “[a]pplications

that are still pending as of the effective date of the

new rules will be processed under the new rules.”34

On June 11, 2003, Royce filed its Petition, arguing

that, the Application was still “pending” at the time

the June Public Notice was released and therefore

that it should have been processed under the new

ownership rules. It relies on Section 1.65 of the Commission’s Rules (“Rules”), which reads, in pertinent

part:

For purposes of this section, an application

is “pending” before the Commission from

the time it is accepted for filing by the Commission until a Commission grant or denial

of the application is no longer subject to

reconsideration by the Commission or to

review by any court.35

The Bureau denied the Petition, finding that the

“grandfathering” provisions of the Ownership Order 36

were controlling, that the staff properly did not apply

the new rules to a transaction consummated prior to

the adoption of the new rules, and therefore that

Royce’s reliance on Section 1.65 was ““misplaced.”37

Jun. 13, 2005) (Nos. 04-1020, 04-1033, 04-1036, 04-1045, 041168 and 04-1177).

34 See Media Bureau Announces Processing Guidelines for

Broadcast Station Applications, Public Notice, 18 FCC Rcd

11319 (2003) (“June Public Notice”).

35 47 C.F.R. § 1.65(a) (emphasis supplied).

36 Ownership Order, 18 FCC Rcd at 13807-14 (Section VI(D)).

37 Bureau Decision at 13722.

App.48a

3. On review, Royce claims that the Bureau did

not address its argument that the Application was

“pending” when the local radio ownership rules were

adopted on June 2, 2003, pursuant to Section 1.65 of

the Rules.38 Royce also improperly raises several

arguments for the first time in the AFR, which we

hereby dismiss pursuant to Section 1.115(c) of the

Rules.39

4. We conclude that Royce has failed to

demonstrate that the Bureau erred when it determined

that the Application should not be re-processed under

the revised local ownership rules. The Ownership Order

explicitly grandfathered all “existing” broadcast

38 AFR at 5.

39 47 C.F.R. § 1.115(c). Royce argues for the first time that: (1)