FCC Record, Volume 5, No. 18, Pages 5329 to 5463, August 27 - September 7, 1990 Page: 5,425
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5 FCC Rcd No. 18
Federal Communications Commission Record
Federal Communications Commission
Washington, D.C. 20554
MM Docket No. 85-182
In re Applications of
File No. BPCT-850213KF
File No. BPCT-850215KL
File No. BPCT-850215KN
File No. BPCT-850215LA
File No. BPCT-850215LB
File No. BPCT-850215LG
File No. BPCT-850215LK
File No. BPCT-850215LL
File No. BPCT-850215LM
File No. BPCT-850215LN
For Construction Permit for a
New UHF Television Station at
MEMORANDUM OPINION AND ORDER
Adopted: August 27, 1990; Released: September 5, 1990
By the Commission: Commissioner Marshall not participating.
1. Nine applicants remaining in this proceeding are
being considered comparatively for a construction permit
for a new UHF television station to serve Tolleson, Arizona.1
The presiding administrative law judge concluded
that Aztec Broadcasting Corp. (Aztec) was the best qualified
because of its "quantitative integration enhancements."
Initial Decision (hereinafter I. D.), 2 FCC Rcd
6935. 6948 (ALJ 1987). The Review Board came to a
different conclusion in its decision on exceptions, holding
that Hector Garcia Salvatierra. Limited Partnership (HGS)
was the only applicant entitled to 100 per cent integration
credit, and it granted the HGS application. Decision,
(hereinafter R. B.), 3 FCC Rcd 6330, 6338 (Rev. Bd.
1988). Eight applicants have filed applications for review
of the Board's decision. In addition. LI-COM Limited
Partnership has filed a motion for leave to amend its
application, and other parties have filed procedural motions.2
We have considered all of the arguments advanced
by the parties, and we affirm the Board's decision except
as modified below.
Estrella and LI-COM
2. Estrella Communications Limited Partnership
(Estrella) and LI-COM Limited Partnership (LI-COM)
challenge the Board's decision not to treat their limited
partnership interests as passive investments. Estrella's two
attorneys of record in this case were limited partners in
Estrella until after the application was designated for
hearing. Although they withdrew as limited partners before
amended attribution rules adopted in Attribution Reconsideration
Order, 58 RR 2d 604 (1985), became
effective. 3 the Board based its decision on their role when
they were limited partners. 3 FCC Rcd at 6332 12.
LI-COM's limited partnership agreement allowed the
limited partners to terminate and dissolve the partnership
or sell the partnership's assets. The ALJ had found that
this did not sufficiently insulate the general partners from
influence or control by the limited partners. and the
Board agreed, citing Anax Broadcasting. Inc.. 87 FCC 2d
483 (1981). 3 FCC Rcd at 6333 17.
3. Estrella and LI-COM complain that the Board retroactively
applied a changed policy regarding attribution
of the interests of limited partners. Citing Attribution of
Ownership Interests, 97 FCC 2d 997. 1023 (1984)
(Attribution), they maintain that, when they were formed
and as of the "B" cut-off date. the Commission did not
attribute the interests of limited partners in a partnership
conforming to the insulation requirements of the Revised
Uniform Limited Partnership Act of 1976 (RULPA). They
maintain that their partnership agreements did conform
to that standard and that the Board improperly based its
decision on stricter standards that the Commission adopted
at a later time.
4. The Board correctly relied on Anax Broadcasting, 87
FCC 2d 483 (1981),'4 which was decided several years
before Estrella and LI-COM executed their partnership
agreements. The Commission held in Anax that the interests
of limited partners are not relevant to integration
credit if the limited partners are merely passive investors
without power to control the applicant. Id. at 488. Conversely.
the interests of nominally "limited" partners who,
in fact. are not mere passive investors must be factored
into the integration anaylsis. The analysis in Attribution
and the later reconsideration of that report are consistent
with the Anax standard. See Magdalene Gunden. 3 FCC 2d
7186. 7186 6 (1988). recon. denied. 5 FCC Rcd 2509
(1990). Nothing that the Commission said in Attribution
has changed the basic principle of Anax: only purely
passive interests are exempt from attribution in compara-
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United States. Federal Communications Commission. FCC Record, Volume 5, No. 18, Pages 5329 to 5463, August 27 - September 7, 1990, book, September 1990; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc1654/m1/110/: accessed October 23, 2018), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.