NOTICE ********************************************************* NOTICE ********************************************************* This document was originally prepared in Word Perfect. If the original document contained-- * Footnotes * Boldface & Italics --this information is missing in this version The document format (spacing, margins, tabs, etc.) is changed too. If you need the complete document, download the Word Perfect version. For information about downloading documents (FTP) see file pnmc5021. File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ***************************************************************** ******** $// Infinity Broadcasting Corp. of Dallas, Dallas, Texas, FCC $/ 47 U.S.C.  309(d)(1) Action Upon Applications $/ 47 C.F.R.  73.3584 Procedure For Filing Petitions to Deny FEDERAL COMMUNICATIONS COMMISSION DA 95-904 WASHINGTON, D.C. 20554 In Reply Refer To: 1800B3-KDY Ernest T. Sanchez, Esquire Baker & McKenzie 815 Connecticut Avenue, N.W. Washington, D.C. 20006-4078 In re: KLUV(FM), Dallas, Texas BTCH-940919GI Transfer of Control of Station License BALH-940919GH Assignment of Station License Dear Mr. Sanchez: We have on file: (1) the above-referenced application to transfer control of TK Communications, Inc. ("TK") from Robert K. Weary, James P. Sunderland and Robert Sunderland, et al. to John F. Tenaglia (File No. BTCH-940919GI); and (2) the above- referenced application to assign KLUV(FM) from TK to Infinity Broadcasting Corporation of Dallas ("Infinity") (BALH- 940919GH). Also on file is a pleading styled "Petition to Deny Application and to Designate Application for a Hearing" filed by Americans for Responsible Television ("ART") and various opposition and reply pleadings. As set forth below, we grant the subject applications. Background. ART states that it is a not-for-profit organization founded in Michigan and made up of some "400,000 supporters." In asserting standing, ART attaches two affidavits to its pleading. Marinall H. Turnage ("Turnage"), in an affidavit dated November 1, 1994, states that she is a Dallas resident, a member of ART, that she is "one of the signers of the Anti-Howard Stern Petition prepared by [ART] for submission to the Attorney General of the United States," and that "[a]s one of the signers of [that] petition, I have personal knowledge of the indecency violations broadcast on the Howard Stern Show which form the basis of the petition to deny." In the second affidavit, dated November 3, 1993, Terry Rakolta ("Rakolta") states that she is the founder of ART, that ART "speaks upon behalf of a group of Dallas listeners supporting ART," that "[Turnage] has personal knowledge of the allegations of fact," and that the facts set forth in the ART pleading "are true and correct to the best of my knowledge, information and belief." ART contends that the Commission should designate the subject assignment application for hearing because Infinity "is an unfit licensee." ART states that the "Commission has determined that on at least twenty-one occasions Infinity violated indecency standards over the last seven years." ART also argues that Infinity "defiantly continues to broadcast indecent material." In support, ART references three 1994 complaints filed with the Commission against Stern broadcasts: (1) a March 4, 1994 complaint against WWKB(AM), Buffalo, New York (the "WWKB Complaint"); (2) a March 17, 1994 complaint against WBCN(FM), Boston, Massachusetts (the "WBCN Complaint"); and (3) a September 2, 1994 complaint against WRNO(FM), New Orleans, Louisiana (the "WRNO Complaint"). ART requests that, in view of Infinity's "continued disregard for the law and the Commission's enforcement measures," the Commission should designate the subject assignment application for hearing. Infinity argues that the Commission must dismiss ART's petition to deny as procedurally defective for failing to supply an affidavit of an individual with "personal knowledge" of the facts contained in the Petition. Infinity also contends that the Commission must dismiss ART's pleading for being a "strike" pleading, as its primary purpose is to "delay and obstruct the sale of KLUV-FM." In support, Infinity attaches an undated, four-page message from Rakolta to the ART membership (the "ART Message"). The ART Message outlined ART's opposition to the Commission's grant of the assignment of two Maryland stations to Infinity and requested donations to enable ART to file a petition for reconsideration of that decision. The ART Message also stated that the Commission's decision to grant that assignment was wrong in light of Infinity's continued airing of "the pornopgraphic, hate-mongering Howard Stern Show." Rakolta additionally noted that ART's previous opposition to Infinity's purchase of a California station had "cost Infinity millions" and had "delayed" that acquisition. Infinity, citing Radio Carrollton, 45 R.R.2d 1273 (1979), states that the ART Message indicates ART's "purpose in filing petitions against Infinity applications is designed primarily to delay or obstruct Commission action." Regarding the merits, Infinity first states that ART has "distorted" the factual record and Infinity's record as a Commission licensee. Specifically, Infinity argues that the "sole forfeiture" ever levied against Infinity is a $6,000 forfeiture imposed for a December 1988 broadcast. Other than that forfeiture and four pending "non-final" Notices of Apparent Liability ("NALs") against Infinity for Stern program broadcasts, Infinity states that it is "unaware of any notice of apparent liability directed to an Infinity station during its twenty-one year history as a Commission licensee." Infinity also argues that of the 1994 programming excerpts referenced by ART as evidence of Infinity's continued disregard of Commission authority, all except two have already been considered by the Commission in other contexts and either found non-actionable or addressed and disposed of in an NAL. Infinity contends that recent assignment and renewal grants to Infinity indicate that the Commission has correctly found Infinity to be a fully qualified licensee despite the outstanding NAL's and that the remaining two excerpts are non-actionable. Discussion. We find that ART's pleading is procedurally defective as a petition to deny. Section 309(d)(1) of the Communications Act of 1934, as amended ("Act"), and Section 73.3584 of the Commission's Rules, require that petitions to deny be supported by affidavits or declarations under penalty of perjury from persons with personal knowledge of the facts set forth in the petition. See Columbia Broadcasting System, Inc., 46 FCC 2d 903 (1974). For a national organization such as ART to establish standing, we "require an affidavit by a person entitled to standing, indicating that the organization did, in fact, represent a resident or residents of the station's service area and that the petition is filed on their behalf." North Alabama Broadcasters, Inc. ("North Alabama"), 74 FCC 2d 347, 348 (1979) (emphasis added) (citing Sierra Club v. Morton, 405 U.S. 727 (1972). Turnage and Rakolta's affidavits - standing alone or in combination - are inadequate to establish ART's standing. Although Turnage's affidavit appears to satisfy part of the North Alabama standard by confirming that Turnage is a member of ART and a Dallas resident, her affidavit fails to establish that she is entitled to standing because it fails to establish that she has personal knowledge of the facts set forth in the Petition. Turnage identifies herself as "one of the signers of the Anti-Howard Stern Petition prepared by [ART] for submission to the Attorney General of the United States . . ." and states that "[a]s one of the signers of [that] petition, I have personal knowledge of the indecency violations broadcast on the [Stern] show which form the basis of the petition to deny the referenced sale." However, Turnage does not state how the facts in the earlier petition relate to the instant Petition, nor does she allege that she has personal knowledge of the program excerpts submitted with the Petition. Furthermore, we cannot ascertain that Turnage even reviewed the Petition, as she signed her affidavit on November 1, 1994, three days before the date appearing on the Petition. Accordingly, we conclude that Turnage has not established standing for herself and therefore cannot establish the requisite standing for ART. Rakolta's affidavit is also insufficient, as it does not state that she is a Dallas resident or listener of KLUV(FM). See United Church of Christ v. FCC, 359 F.2d 994 (D.C. Cir. 1966). Even if Rakolta had stated that she was a local resident, her assertion that the facts are true and correct "to the best of my knowledge, information and belief" is inadequate. See Columbia Broadcasting System, 46 FCC 2d at 905 (affidavits insufficient where verification is not based upon affiant's personal knowledge). However, despite the fact that the Turnage and Rakolta affidavits are facially defective, we will treat ART's pleading as an informal objection pursuant to 47 C.F.R.  73.3587. See Community Television of Southern California, 46 R.R.2d 1103 (1987) (petition to deny properly treated as informal objection where affiant lacked personal knowledge of the fact alleged). On a separate procedural point raised by Infinity, we do not find that ART's pleading constitutes a "strike" pleading pursuant to the test set forth in Radio Carrollton, 69 FCC 2d 1139 (1978). Under that case, the crucial question is whether a petition is filed for the primary and substantial purpose of delay. Id. at 1150. Although the ART Message references that a previously filed opposition did delay an Infinity acquisition, "delay" is not identified as the primary intent of ART's filing. Rather, it is described as an incidental effect. Clearly, ART's stated purpose then, as now, is to raise a legitimate challenge to Infinity's character qualfications, in light of the fines assessed in the pending NALs and the licensee's continued airing of the Stern program. With respect to the subject informal objection, we find that there is no evidence that ART has withheld any relevant information, that the informal objection lacks a reasonable basis, that economic motivation is present, or that any other conduct of ART evidences a primary intent to delay the subject application. Thus, we conclude that the primary and substantial purpose of ART's informal objection is to raise genuine issues relating to character qualifications and that Infinity fails to support its contention that ART has filed a "strike" pleading. Turning to the merits raised by the informal objection, we disagree with ART that the allegations presented require that we designate the subject assignment application for hearing on the issue of Infinity's fitness to be a licensee. With respect to the cited NAL's, our previous decisions approving the sale of stations to Infinity express our determination that, although Infinity's conduct has warranted the imposition of monetary forfeitures, Infinity remains qualified to be a Commission licensee. Nor do the three 1994 complaints discussed by ART require a contrary result. The staff has determined that the WWKB Complaint and the WRNO Complaint involve material not actionably indecent. The WBCN complaint was recently dismissed because it failed to demonstrate that the material complained of was aired outside the safe harbor period. Having fully considered the allegations presented in the subject informal objection, we find that no substantial and material question of fact has been raised with respect to Infinity's qualification to be or remain a Commission licensee and that Infinity is otherwise qualified. Conclusion. The petition to deny filed by Americans for Responsible Television IS DISMISSED, and when considered as an informal objection, IS DENIED. The application to transfer control of the station license of KLUV(FM), Dallas, Texas from TK Communications, Inc. from Robert K. Weary, James P. Sunderland and Robert Sunderland, et al. to John F. Tenaglia (File No. BTCH- 940919GI) IS GRANTED and the application to assign the station license of KLUV(FM), Dallas, Texas from TK Communications, Inc. to Infinity Broadcasting Corporation of Dallas ("Infinity") (BALH-940919GH) IS GRANTED. Roy J. Stewart, Chief Mass Media Bureau cc: Steven A. Lerman, Esquire Thomas J. Hutton, Esquire