CBS sold its West Palm Beach radio cluster to Palm Beach Radio, but what is now 104.3 MHz WAXY-FM wasn’t formally part of the deal due to local cap considerations. It eventually was passed through to Lincoln Financial and moved to Miramar/Miami, but Clear Channel objected.
Part of the reason the parties in the CBS/PBB/Lincoln dealings were confident they could work out arrangements including the move of the station was the fact that another company, Alex Media, planned to move its FM CP earmarked for Islamorada FL from 104.5 MHz to 93.5 MHz to satisfy FAA concerns.
The problem, from Clear Channel’s standpoint, was that it too had designs on that portion of FM spectrum – what’s more, its plan to construct a drop-in FM on the frequency would be preferential if compared to the Miramar plan.
Clear Channel argued first that the whole thing was improper because CBS prematurely ceded control of the station; further, since the CP to move to Miramar was filed while CBS was still ostensibly in control of the station, and CBS had no possible future interest in benefitting from such a move, it was the “fruit of a poisoned tree” and should have been dismissed by the FCC. But the FCC said there was nothing wrong with the LMA and that the parties demonstrated CBS was still at the helm when it needed to be.
Clear Channel also objected to the fact that parts of the deal were filed apart from one another; in particular, there was no coordination between the move of WAXY and the move of the Alex Media CP.
CBS and PBB said there was no coordination between them and Alex quite simply because it didn’t exist. They proposed the move to Miramar after Alex had filed to move to a new frequency, so there was nothing to report.
Clear Channel did get some traction as far as arguing that the principles of contingent processing did not apply here – the FCC agreed that it was not something the applicants could have relied upon – but the FCC further stated that it determined a waiver was appropriate in this case, as it set up a preferential use of FM frequencies in the region.
The FCC cautioned that it would not be granting similar waivers as a matter of common practice, and specifically warned against requesting then in conjunction with upcoming FCC Auction 94.