Scott Fybush scott@fybush.com
Thu May 12 17:14:02 EDT 2005

>> But the question still remains - on what grounds would it have been
> challenged?
>> "People in Taunton" don't hold the WPEP license. Anastos Broadcasting
> does.
> Taunton community leaders and oficials (Mayor, etc), could make a case for
> consideration, due to the fact that two "out of town" operators negotiated
> to take away their radio service.

As Garrett has pointed out, as far as the FCC is concerned, Taunton will
continue to have radio service. What's programmed on that service is not
the FCC's concern so long as it's not obscene or indecent (at least before
10 PM) and as long as the legal ID is read once hourly.

Like it or not, the deal between Anastos and WNSH is legal. There is no
precedent and no authority for the FCC to do what it's suggesting you do.
It would literally take Congressional action to change the FCC's rules to
allow them to stop the deal at this point. Not gonna happen.

>> (Look at what happened - can it
>> already be more than a decade ago? - with WLIB and WOWO.)
> But this was the same owner of both stations, wasn't it?
> Secondly, WOWO didn't dissappear, it simply altered it's pattern.

The WLIB/WOWO situation was nearly identical to this one where ownership
is concerned - WLIB's owner, Inner City Broadcasting, bought WOWO and then
immediately sold it to Federated Media with a condition that the buyer
pursue the downgrade application in Fort Wayne. Likewise, Willow Farm
owned WNSH and WPEP, then sold WPEP with a condition that the buyer agree
to the WNSH upgrade and the deletion of WPEP. Willing seller, willing

There are other examples of stations being taken dark to facilitate
upgrades at other stations. ABC bought WFRO (900) in Fremont, Ohio and
took it silent to enable WFDF (910) to move from Flint, Michigan to the
Detroit suburbs. Infinity bought the 1540 signal in Aptos, California to
enable an upgrade of KYCY (1550) in San Francisco. WWRL (1600) in New York
bought and silenced WQQW (1590 Waterbury CT), WLNG (1600 Sag Harbor NY)
and WERA (1590 Plainfield NJ) to improve its signal. WERA was the only
licensed service to Plainfield. The FCC nevertheless approved the
arrangement. For it to reverse this much precedent would, as noted above,
require a Congressional mandate.

>> "People in Taunton" had several opportunities to buy WPEP over the
>> years.
> Did they?  My guess is the majority of Taunton didn't even know it was for
> sale.  (Never mind that it was part of a Beverly application to shut it
> down.)

I'm talking about the two prior sales, from the Colajezzis to Willow Farm
and the sale to the Colajezzis prior to that.

It's not incumbent upon a privately-owned radio station to publicize that
it's for sale. That said, the station was listed with brokers on both of
those occasions. It may not have been as blatant as a big "For Sale" sign
outside the studios on Taunton Green, but again, it's a private business.
If I want to sell my car, it's up to me to decide how and if to advertise
it and what offer, if any, to accept. In this case, anyone sufficiently
interested in owning a radio station could have found out easily enough
that WPEP was on the market.

In any case, the sale of a radio station requires public notice. There
would have been announcements on WPEP's airwaves and in the paper at the
time the FCC was considering each sale, and THAT would have been the time
to object (though I'm still not sure there would have been any legal
grounds for doing so.)

> WSNE is an higher powered FM station which serves a much larger
> audience/area.
> No amount of WSNE programming originates from Taunton.

Garrett has already answered this point. From the FCC's perspective, WSNE
and WPEP are equivalent services for Taunton.

>> The FCC takes the window process very seriously. Every applicant could
> come
>> up with some sort of "special circumstances"; the use of windows keeps
>> everything on a reasonably even keel nationwide.
> Good lawyers can make the case for just about anything.
> You can indict a ham sandwich.
> You can sue *anybody* for just about *anything*.
> A good comm lawyer can petition the FCC for just about anything.
> Again, it would not need a 'window' for a new license.
> Just a petition to deny the facilities upgrade.
> (Which, no doubt, should've been done long ago, had inetested parties been
> aware of the deal.)

What is it that you're suggesting should happen here? Are we talking about
simply stopping the WNSH upgrade or about finding new facilities for WPEP?

In the case of the former, there was a time to file a petition to deny,
and IIRC there were in fact several such petitions. But if the application
is technically sound, which it was, and otherwise legal, which it is, and
if both parties to the application give their consent, which they did,
then those petitions won't get very far, which they didn't.

In the case of the latter, it would indeed require a window for a new
license (since the current licensee of WPEP has no interest in continuing
the operation, and even if that were somehow possible it would require a
major change, for which no window is open.) A "good comm lawyer" would
tell you that you're banging your head against a very thick wall if you
file an application at a time when no window is open. No amount of filings
or petitions can change that.

The FCC's procedures may seem arbitrary, but in reality they're not.
Follow the rules to the letter and you'll get what you want. The trick is
knowing what the rules are, and THAT's where you need a good comm lawyer.

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