When Citadel acquired ABC’s Radio Division, it had to meet the FCC’s new market definitions under the ownership rules, so it placed some of its stations in the Last Bastion Station Trust, administered by broker Elliott Evers. Most of those stations are being sold off, but Citadel stands to get back WMGL-FM in the Charleston, SC market, once WNKT-FM completes a city of license change that will move it from the Charleston, SC market to the Columbia, SC market. So far, so good.
But then someone noticed that this move-out left a big spectrum hole in Charleston. So Citadel then proposed that its rim-shot WMGL move from 101.7 down the dial to 107.3, plugging the hole with an upgrade that would give it another full market Charleston signal.
Meanwhile, WMCD-FM, Claxton, GA, belonging to Georgia Eagle Broadcasting, also filed to move into Charleston and fill the hole vacated by Citadel. WMCD filed its application the very day that Citadel’s WNKT Charleston-to-Columbia application was granted. Georgia Eagle contends that because Citadel didn’t file the WNKT and WMGL applications simultaneously, the WMCD application has to be considered by the FCC staff as mutually exclusive with the WMGL application – and that under the FCC rules the WMCD move-in wins on public interest merit. Citadel’s attorneys, as you have probably guessed, don’t agree, and insist that Georgia Eagle has no right to apply for the slot, since the WNKT move-out was contingent on the WMGL upgrade being granted, and visa versa, regardless of the filing dates.
So now the ball is back in the hands of the FCC, with Georgia Eagle appealing and Citadel/Last Bastion defending the linked grants.
Said Georgia Eagle Attorney Dan Alpert: "The contingent application rule is an extremely straight-forward rule — contingent applications are prohibited unless both inter-related applications are filed both on the SAME day, i.e., simultaneously. Citadel apparently only realized three months too late that one of its stations (WMGL) ‘could have’ been moved to a new frequency in conjunction with and in concert with its WNKT application. Since the WMGL proposal was not filed on the same day as the original WNKT proposal, its amendment doesn’t even come close to complying with the rule, and cannot be treated as ‘back-dated’ to the original WNKT filing date. The WNKT application was properly filed, and properly granted. However, since the WMGL and WNKT station applications were not filed together, the WMGL application was defective and should have been viewed as ‘dead on arrival’ at the FCC when filed in April.
Because it was not filed on the same day as the WNKT application, under the FCC’s rules the earliest the WMGL application could have properly been filed was the date the WNKT application was granted – July 5, 2007. That was the day Georgia Eagle filed its application to provide first local service to Sullivan’s Island. The WMGL application is a blatant attempt to boot-strap the application to the filing date of another application (in a way the rules do not allow), artificially giving itself an earlier filing date than it deserves. Under the rules, it never should have been accepted for filing, or granted by the Bureau. Since, in contrast to the Last Bastion application, Georgia Eagle was able to wait and file a valid application, Georgia Eagle is confident this processing error will be fixed on review."
Citadel attorney Nancy Ory, of Leventhal Senter & Lerman, told RBR that the statements from the Georgia Eagle side "are inaccurate and/or misleading" and noted that Citadel’s ownership of WNKT is compliant with the FCC multiple ownership rules in both the Charleston and Columbia, SC markets. She also provided a copy of the opposition to Georgia Eagle’s petition for reconsideration, filed by attorney Andrew Kersting of Dickstein Shapiro for the Last Bastion Station Trust. It claims that Georgia Eagle’s petition is procedurally defective and should be dismissed. However, if the petition is ruled valid, the opposition filing insists that Georgia Eagle’s legal argument is wrong, and that Citadel/Last Bastion followed FCC procedures when the WNKT application was amended to be contingent on the newly-filed application for WMGL.