FCC Record, Volume 2, No. 1, Pages 1 to 409, January 5 - January 16, 1987 Page: 42
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Federal Communications Commission Record
6. TTP argues that the replacement of Dilday by Gooch
as a general partner was not an impermissible transfer of
control. TTP observes that notwithstanding the change,
TTP's other remaining general partner always retained a
veto in general partner votes because TTP's limited partnership
agreement specifically provides that each of the
general partners has an equal voice in the affairs and
business of the partnership. Additionally, TTP asserts that
in votes concerning extraordinary partnership matters.
not involving day to day management decisions of the
proposed station, Carney the limited partner, has always
had control and still does. Hence, TTP asserts, there has
been no substantial change of either ownership or control.
7. TTP also contends that the AL and Board lacked the
authority to dismiss its application after the Bureau did
not dismiss it in the Designation Order. In TTP's view,
only the Commission has the power to countermand a
designation order. Additionally, TTP urges that equitable
grounds exist for not dismissing its application. TTP disputes
that it was responsible for any confusion as to its
ownership and maintains that it described its ownership
with reasonable clarity, especially in light of the U.L.P.A.
The other parties support the Board's action.
8. We will grant review, modify the Board's action. and
give TTP an opportunity to file a corrective amendment.
Although we agree with the Board that the January 16
amendment calls into play Section 73.3572(b) of the
Commission's Rules, we disagree with the Board's evaluation
of the equities of this case.
9. Like the Board, we agree that TTP's amendment
clearly warranted assigning a new file number to the
application as required by Section 73.3572(b) of the Commission's
Rules. Under that Rule, a new file number
must be assigned when, as a result of an amendment, "the
original party or parties to the application do not retain
more than 50% ownership in the application as originally
filed .. ." [emphasis added]. Although the current version
of the Rule modifies the former law in some respects, it
remains true that only voting interests are cognizable
under the Rule. 7 Thus, in a limited partnership, when
general partners holding 50% of the voting rights are
replaced, as was the case here, a new file number is
assigned. Because we are concerned with the operation
and management of the broadcast station, a limited partner's
right to vote with respect to extraordinary matters
not involving operation and management is irrelevant.
10. We also reject TTP's argument that the ALJ and the
Board lacked authority to act inconsistently with the
designation order. The Commission has held that an ALJ
may not countermand a designation order issued under
delegated authority as to matters already considered by
the delegating authority. 8 Here, however, the Hearing
Designation Order contains no indication that the Bureau
considered TTP's amendment. The AL and the Board
were therefore free to consider the matter de novo.
11. Our disagreement with the Board relates to its
attempt to distinguish the instant case from our holding
in Redwood, supra. Redwood involved the filing of an
application which specified only 30% of the applicant's
corporate ownership. Subsequently, the applicant filed an
amendment describing 100% of its corporate ownership.
The Broadcast Bureau, mistakenly believing that the
amendment represented the applicant's only true ownership
structure, rejected allegations that the amendment
constituted a substantial change in ownership requiring
the assignment of a new file number. However, after
testimony had been taken in the case, it became clear that
the amendment did involve such a change. After concluding
that a strict application of the Rules warranted dismissal
of the application, the Commission found equitable
reasons for not taking this step. The Commission noted
that: (1) the amendment had been on file for over a year,
during which time the Bureau had raised no question as
to the applicant's ownership and (2) the Bureau had
erred in the designation order in rejecting the other
parties' objections to the amendment, thereby allowing
the applicant to proceed in the erroneous belief that there
were no serious objections concerning its ownership. The
Commission also noted that, if the Bureau had recognized
the significance of the change earlier, it would have given
the applicant an opportunity to withdraw the amendment.
Therefore, the Commission gave the applicant the option
of amending its application to reflect the retention of
control in the hands of the original parties.
12. The Board attempts to distinguish this case from
Redwood on the basis that the Bureau here made no
error in processing TTP's application and that any shortcomings
are wholly attributable to TTP, because the
information it submitted contains ambiguities about how
control would be exercised. Our own examination of the
record, however, persuades us otherwise.
13. Our primary focus is on the application and
amendment themselves, since these documents were before
the Bureau when it designated TTP's application for
hearing. We therefore depart from the Board's approach,
which relies on material submitted after designation. The
application clearly states that TTP is a limited partnership
organized pursuant to the U.L.P.A. in which each general
partner has an "equal" voice.9 Such an arrangement of
equal control over partnership business by the general
partners is fully consistent with the U.L.P.A. The
U.L.P.A. provides that the general partners, unless otherwise
agreed: "have equal rights in the management and
conduct of the partnership business:" and that "any difference
arising about ordinary matters connected with the
partnership business may be decided by a majority of the
[general] partners." 10 By contrast, a limited partner may
not take part in the control of the business." In view of
the foregoing, we believe that TTP's application as
originally filed adequately described how control of the
limited partnership would be exercised.
14. This, then brings us to the January 16 amendment
in which TTP reported a change in ownership. As previously
mentioned, that amendment deleted Dilday as a
general partner and substituted Gooch in his place. The
new general partner (Gooch) was listed as a 2.5% owner
rather than a 10% owner as previously held by Dilday,
with the difference being assumed by the limited partner
(Carney), which resulted in an increase of his ownership
interest from 87.5% to 95%. More importantly, however,
that amendment clearly states that TTP's application remains
unchanged in all other respects'2 and, as heretofore
observed, that application as originally filed makes clear
that the two general partners of TTP would have an equal
voice in the business of the partnership. Hence, it is clear
to us that the January 16 amendment did in fact transfer
control of 50% of TTP and, consequently, a new file
number should have been assigned to that application.
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United States. Federal Communications Commission. FCC Record, Volume 2, No. 1, Pages 1 to 409, January 5 - January 16, 1987, book, January 1987; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc1597/m1/49/: accessed June 23, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.