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In re Petition for Reconsideration of JAMES E. MILLER, OKLAHOMA CITY, OKLA. For Authorization

To Operate Former Station KYFM, Oklahoma City, Okla.

FEDERAL COMMUNICATIONS COMMISSION

13 F.C.C.2d 761; 12 Rad. Reg. 2d (P & F) 1154

RELEASE-NUMBER: FCC 68-344

MARCH 27, 1968

ACTION:

PETITION

OPINION:

[*761] Mr. JAMES E. MILLER, Post Office Box 17598, Oklahoma City, Okla.

73117.

DEAR MR. MILLER: This refers to a petition for reconsideration and for other relief filed in your behalf on March 11, 1968, concerning the former station KYFM, Oklahoma City, Okla. Your petition requests (a) authorization from the Commission for you to resume broadcasting at the KYFM facility "on an interim basis", (b) that the Commission rescind its Broadcast Bureau's action of February 7, 1968, which dismissed the then pending renewal application and deleted the KYFM call letters, (c) reinstate the KYFM renewal application with leave for you to file an assignment application, and (d) alternatively, defer action on the pending application of Great Empire Corp. (BPH-5460) for a new FM facility in Oklahoma City on the frequency formerly occupied by KYFM, until such time as you and your group would be able to file a competing application.

You have alleged that beginning in December 1967, you and your group began making payments of Mr. Cleeta John Rodgers, sole shareholder of KYFM, Inc., and to his attorney, and you began purchasing equipment with a view toward acquiring the KYFM license and station. You allege that no application for assignment of the license or transfer of control of the station was filed with the Commission because of ignorance of the Communications Act and Commission rules and regulations. You state that your corporation, which is as yet unchartered by the State of Oklahoma, entered into an agreement with Rodgers, which "has not yet been finally drawn or executed", for the purpose of acquiring KYFM by assuming "up to $35,000" of the station's existing debts and by making an additional cash payment of $5,000 to Rodgers. You claim that your group has actually spent $22,067 thus far, including a $3,000 payment to Rodgers' attorney. KYFM was silent throughout the entire period under discussion.

We note that you are not petitioning the Commission in the capacity of a licensee, a party or an applicant.

[*762] We note also that the parties primarily affected by the February 7, 1968 dismissal Cleeta John Rodgers, sole shareholder of the licensee corporation, KYFM, Inc., and Odes and Vera Harwood, Rodgers' proposed transferees under his March 1967 transfer application, have not individually sought reconsideration of the Commission's dismissal, nor have they joined with you in seeking reconsideration.

Your petition does not address itself to the basis of the Commission action of February 7, 1968 in which we dismissed the KYFM renewal application and terminated the authority of that station to broadcast. No legal argument has been presented to justify the extraordinary relief you have requested, and no new facts have been pleaded which, had they been known at the time of the action, would have compelled a different course.

In June 1966, Great Empire Corp. filed an application for a new FM facility in Oklahoma City on a frequency of 98.9 mc, the frequency formerly occupied by KYFM. During the pendency of the KYFM renewal application, Great Empire's application was mutually exclusive with that of KYFM; since KYFM was deleted on February 7, 1968, Great Empire's application is the only one on file for that frequency. It should be pointed out that, at all times during the pendency of KYFM's renewal application, you or your group had the right to file a new application for the KYFM facilities. You had the opportunity to be a contestant for these same facilities along with Great Empire at least since June 1966, when Great Empire filed its competing and mutually exclusive application for the KYFM facilities. Your petition and the facts you have pleaded do not entitle you to any extraordinary right or protection in this regard.

For the reasons set forth above, your petition for reconsideration and other relief filed March 11, 1968 Is denied in all respects.

Commissioner Johnson concurred with this action. His concurring opinion is enclosed.

BY DIRECTION OF THE COMMISSION, BEN F. WAPLE, Secretary.

APPENDIX:

[Petition for Reconsideration of Mr. James R. Miller. * * *] CONCURRING OPINION OF COMMISSIONER NICHOLAS JOHNSON

STATION APPLICATION PROCEDURES

In this case the Commission has dismissed a petition to reconsider the action of the Broadcast Bureau on February 7, 1968 (acting on delegated authority), to declare forfeit the license of station KYFM (FM), Oklahoma City, Okla. I am disturbed somewhat by the basis for our action set forth in the Commission's letter informing the petitioner of our disposition of his petition. Therefore, I will state briefly my understanding of the nature and consequences of today's decision.

Petitioner here states that he was in the process of acquiring the broadcast properties of our ex-licensee, when we forfeited the KYFM license. Previous to that date, he had not informed the FCC of his interest in acquiring the station, as is required by section 310(b) of the Communications Act. According to his petition, however, he has advanced $22,000 in exchange for this currently defunct station. Petitioner states that he was ignorant of the relevance of the FCC to the transaction. He did not know that the license for which he was advancing dollars could only be transferred with Commission consent. He did not know that the Commission was considering the possibility of withdrawing altogether the right to hold the license from the people with whom he was doing business.

Finally, he did not know that since June 1966, the licensee was legally barred from transferring his license at all. At that time, a third party, Great Empire Corp., filed a mutually exclusive application for authority to operate on the frequency assigned to KYFM. Once that application was accepted, the licensee or any other party interested in the frequency could only receive Commission authorization to operate after a hearing in which their qualification to serve the public interest could be tested against Great Empire.

In effect, the petitioner is asking the Commission to rescue him from a predicament into which he has allegedly been placed by a combination of his own ignorance and another party's failure to disclose a material fact. He asks the Commission to restore the license, presumably so that his purchase can be processed, and he can realize the benefits of the sale for which he has allegedly advanced $22,000.

The FCC declines to reconsider and I concur. But I wish to emphasize that petitioner can seek the license he seeks by an alternate route, if he moves with alacrity. He can apply for a "new" license to operate on the frequency that has been made vacant by the forfeiture. I concur in the present denial because I presume that the present petitioner will have opportunity to file an application and to have his qualifications tested -- if necessary -- with the competing applicant that has expressed an interest in operating a station on the same frequency. Insofar as the petitioner has been a victim of deceptive practices, his remedy, if any, ought properly to lie in a court of law.