Federal Communications Commission
Washington, D.C. 20554
November 25, 2011

InRep1yRferro:
1 800B3-BSH
David D. Oxenford, Esq.
Davis Wright Tremaine LLP
1919 Pennsylvania Avenue, N.W., Suite 800
Washington, D.C. 20006-3401
David D. Burns, Esq.
Latham & Watkins, LLP
555 Eleventh Street, N.W., Suite 1000
Washington, D.C. 20004
Charles L. Spencer, Esq.
Hebert, Spencer, Cusimano & Fry, LLP
701 Laurel Street
Baton Rouge, LA 70802
Joseph A Godles, Esq.
Go1dber Godles Wiener & Wright
1229 19 Street, N.W.
Washington, D.C. 20036
In re:

WBBK-FM, Blakely, Georgia
Facility ID No. 41207
File No. BALH-201 IO216AAB
WESP(FM), Dothan, Alabama
Facility ID No. 6891
File No. BALH-201 102 16AAC
WDBT(FM), Headland, Alabama
Facility ID No. 10666
File No. BALH-201 1O216AAD
WLDA(FM), Slocomb, Alabama
Facility ID No. 60591
File No. BALH-201 1O216AAE
WJRL-FM, Fort Rucker, Alabama
Facility ID No. 63945
File No. BALH-201 1O216AAF
WKMX(FM), Enterprise, Alabama
Facility ID No. 73179
File No. BALH-201 1O216AAG

WTVY-FM, Dothan, Alabama
Facility ID No. 73639
File No. BALH-201 1O216AAH
Applications for Assigmnent of
License
Petition to Deny
Dear Counsel:
We have before us the above-captioned applications seeking approval for the proposed assignment of
license for: (1) Station WBBK-FM, Blakely, Georgia, from Magic Broadcasting Alabama Licensing, LLC
("Magic") to Alabama Media Investments, LLC ("AMI"); (2) Stations WESP(FM), Dothan, Alabama, and
WDBT(FM), Headland, Alabama from Gulf South Communications, Inc. ("Gulf South") to Southeast
Alabama Broadcasters, LLC ("SAB"); (3) Stations WLDA(FM), Slocomb, Alabama, and WJRL-FM, Fort
Rucker, Alabama, from Magic to SAB; and (4) Stations WKMX(FM), Enterprise, Alabama, and WTVY-FM,
Dothan, Alabama, from Magic to Gulf South. These four simultaneously filed applications comprise one
proposed (related) transaction ("Assignment Applications" or "Proposed Transaction"). On March 25, 2011,
Leigh Simpson ("Simpson"), a resident of Dothan, Alabama, and an employee of Stations WOOF(AM) and
WOOF-FM, Dothan, Alabama, filed a Petition to Deny ("Petition") the Assignment Applications.1 For the
reasons stated below, we deny the Petition and grant the Assignment Applications, as conditioned.
Background. As explained in the Gulf South Opposition, Clay E. Holladay ("Holladay"),
President and majority shareholder of Gulf South was approached by a broker representing Magic and
was told that Magic wished to sell the above-captioned stations, all located in the Dothan, Alabama, radio
market, as a group because Magic planned to exit the radio broadcasting business.2 Gulf South is the
licensee of Stations WUSD(FM), Hartford, Alabama; WDJR(FM), Enterprise, Alabama; WESP(FM),
Dothan, Alabama; and WDBT(FM), Headland, Alabama, all in the Dothan, Alabama, radio market. The
Dothan, Alabama, radio market has 28 stations. In a market this size, a single entity may own, operate or
control up to six stations, no more than four in the same service.3 Thus, Gulf South currently owns the
maximum number of FM stations permissible in the Dothan, Alabama, radio market under the
Commission's multiple ownership rule.4 Gulf South proposes to acquire two of Magic's stations,
WKMX(FM) and WTVY-FM, with its acquisition of these stations contingent upon the assignment of
Stations WESP(FM) and WDBT(FM) to SAB, in order to comply with the multiple ownership rule.
Gulf South states that it also agreed to help Magic find other buyers for the remaining Magic
stations. Holladay approached Georgia Edminston ("Edminston"), a former business associate of his, and
Alisha K. Cummings ("Cummings"), about the possibility of acquiring certain of Magic's stations.
Cummings is the daughter of the station manager of radio stations in the Jackson, Mississippi, market
On April 7, 2011, separate Oppositions were filed by Magic and Gulf South. Also on April 7, 2011, AMI and SAB
filed a Joint Opposition. Simpson filed a Reply on April 19, 2011.
2

South Opposition at 2.

See 47 C.F.R. § 73.3555(a)(1)(iii). (Magic acquired its group of five FM stations under the Commission's prior
ownership rules, and has been able to retain that group because its ownership was grandfathered).
447 C.F.R. § 73.3555(a).

licensed to New South Radio, Inc., a company in which Holladay has a 20 percent interest and seryes as
president. Edminston decided, through her company SAB, to purchase WDBT(FM) and WESP(FM)
from Gulf South as well as WLDA(FM) and WJRL-FM from Magic. Cummings decided, through her
company AMI, to purchase WBBK-FM from Magic.5.
The Petition states that Simpson suspects that sale of the Magic stations to the proposed parties
"could result in an anti-competitive situation in the market."6 Simpson states the she is unable to obtain
"the information necessary to carry the burden" of supporting her suspicion that the Proposed Transaction
will have an improper anti-competitive effect.7 She notes that Edminston has had previous business
relationships with Holladay, and that Cummings is related to the station manager of stations licensed to
New South Radio, and asks the Commission to conduct an investigation to determine if there is evidence
that grant of the Assignment Applications will create an anti-competitive situation. Finally, Simpson
states that the failure by Magic to offer to sell any of its stations to Simpson or her employer "may violate
the Commission's obligation that there be no discrimination in the sale of broadcast stations."8 Simpson
does not allege that race, color, religion, national origin or sex played any part in Magic's selection of any
of the proposed assignees.9
Discussion. Section 309(d)(l) of the Communications Act of 1934, as amended (the "Act"),
requires a two-step analysis for judging the adequacy of Simpson's Petition. 10 We must first determine
whether Simpson has made specific allegations of fact that, if true, would demonstrate that grant of the
Assignment Application would be prima facie inconsistent with the public interest. These specific
allegations must be supported by the affidavit of a person with knowledge of the facts alleged, except for
those of which we may take official notice.11 If the specific allegations make a prima facie case, we next
examine and weigh the evidence presented, to determine "whether the totality of the evidence arouses a
sufficient doubt on the point that further inquiry is called for."12 We must also determine whether grant of
the Assignment Applications would serve the public interest.'3

Gulf South Opposition at 2-3.
6Petitjon at 2.
7I
8 Id. at 7.
47 C.F.R. § 73.2090.
1047 U.S.C. § 309(d)(1).
Id.
12 Citizens for Jazz on WRVR v. FCC,
775 F.2d 392, 395 (D.C. Cir. 1985). See also 47 U.S.C. § 309(d)(l) ("The
petition shall contain specific allegations of fact sufficient to show that. . . grant of the application would be prima
facie inconsistent with [Section 3 09(a)]. Such allegations of fact shall, except for those of which official notice may
be taken, be supported by affidavit of a person or persons with personal knowledge thereof."); 47 C.F.R. §
73.3584(b).
'3Astroline Communications Co. v. FCC, 857 F.2d 1556, 1561 (D.C. Cir. 1988). See also Rocky Mountain Radio
Co., LLP, Memorandum Opinion and Order, 15 FCC Rcd 7166, 7167 (1999).

We find that Simpson fails to provide the necessary specific allegations of fact required by
Section 309(d)(l) of the Act to make a prima facie case concerning any allegation.'4 Simpson provides
no evidence that Gulf South will have any interest in or influence over the stations that will be assigned to
AMI and SAB, or that the assignment of these stations will result in any anti-competitive behavior.
Moreover, Edminston, the Manager and sole member of SAB, declares that she is "not an officer,
director, employee or owner of any legal entity in which Clay Holladay has an interest," and that she has
not had any business interests with Holladay since 2003.15 Edminston further declares that she intends to
"operate the Stations as I may determine in my sole discretion and without direction, influence or other
involvement with Clay Holladay or any company or other legal entity in which he has an ownership
jnterest."16 Cummings, the Manager and Sole Member of AMI, declares that she is "not an officer,
director, employee or owner of any legal entity in which Clay Holladay has an interest." Cummings
further declares that she intends to "operate the Stations as I may determine in my sole discretion and
without direction, influence or other involvement with Clay Holladay or any company or other legal
entity in which he has an ownership interest."17
Based on the above, we find that Simpson fails to provide evidence that Gulf South will have any
interest in or influence over the stations that will be assigned to AMI and SAB. Furthermore, Simpson
provides no evidence of any anti-competitive behavior. In light of this conclusion, Simpson has failed to
present a substantial and material question of fact sufficient to demonstrate that grant of the Assignment
Applications would be inconsistent with the public interest.
Conclusion/Actions. Accordingly, we find that Simpson has not raised a substantial and material
question of fact warranting further inquiry. We further find that Alabama Media Investments, LLC is
qualified to hold the Station WBBK-FM license; that Southeast Alabama Broadcasters, LLC is qualified to
hold the Station WESP(FM), Station WDBT(FM), Station WLDA(FM) and Station WJRL-FM licenses; that
Gulf South Communications, Inc. is qualified to hold the Station WKMX(FM) and Station WTVY-FM
licenses; and that grant of the Assignment Applications is consistent with the public interest, convenience and
necessity. Accordingly, IT IS ORDERED, that the Petition to Deny filed by Leigh Simpson IS DENIED.

'

Concerning Simpson's suggestion that the sale may involve prohibited discrimination, we note that 47 C.F.R. §
73.2090 means that approval of any commercial broadcast transaction tainted by any type of discrimination within
the ambit of the rule - "race, color, religion, national origin or sex" - would be inconsistent with the public interest
pursuant to 47 U.S.C. § 309(d)(l). However, because Simpson does not allege that the Proposed Transaction is
tainted by such discrimination, we find that no substantial and material question of fact exists with respect to
compliance with the cited rule by the parties here. Simpson also notes that she was not offered an opportunity to
purchase any of the Magic stations. Petition at 7. However, 47 U.S.C. § 310(d) states that "the Commission may
not consider whether the public interest, convenience, and necessity might be served by the transfer, assignment, or
disposal of the permit or license to a person other than the proposed transferee or assignee" in evaluating assignment
and transfer applications. To the extent any party seeks to present anyone other than the proposed assignee as a
superior potential buyer of a station for any reason, we find that Section 3 10(d) prohibits the Bureau from
considering that issue.
15 Joint Opposition, Declaration of Georgia Edminston.
'61d.
17 Joint Opposition, Declaration of Alisha K. Cummings.

4

if IS FURTHER ORDERED That the application for approval to assign the license for Station
WBBK-FM, Blakely, Georgia (File No. BALH-201 1O216AAB) from Magic Broadcasting Alabama
Licensing, LLC to Alabama Media Investments, LLC IS GRANTED.
if IS FURTHER ORDERED That the application for approval to assign the licenses for Station
WESP(FM), Dothan, Alabama (File No. BALH-201 1O216AAC) and WDBT(FM), Headland, Alabama (File
No. BALH-201 102 16AAD) from Gulf South Communications, Inc. to Southeast Alabama Broadcasters, LLC
IS GRANTED.
if IS FURTHER ORDERED That the application for approval to assign the licenses for Station
WLDA(FM), Slocum, Alabama (File No. BALH-201 1O216AAE) and WJRL-FM, Fort Rucker, Alabama
(File No. BALH-201 1O216AAF) from Magic Broadcasting Alabama Licensing, Inc. to Southeast Alabama
Broadcasters, LLC IS GRANTED.
if IS FURTHER ORDERED That the application for approval to assign the licenses for Station
WKMX(FM), Enterprise, Alabama (File No. BALH-201 1O216AAG) and WI'VY-FM, Dothan, Alabama
(File No. BALH-201 1O216AAH) from Magic Broadcasting Alabama Licensing, Inc. to Gulf South
Communications, Inc. IS GRANTED, subject to the following condition:
Grant of this application is subject to the prior or concurrent consummation of the
transaction proposed in BALH-201 1021 6AAC.
if IS FURTHER ORDERED THAT, grant of each application is subject to the condition that the
transaction be consummated by December 1, 2011. If consummation does not occur prior to December 1,
2011, the transaction may not be consummated until after the license for the station has been renewed.

Sincerely,

Peter H. Doyle
Chief, Audio Division
Media Bureau

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