S

Federal Communications Commission
Washington, D.C. 20554
December 3, 2013
In Reply Refer to:
1 800B 3-MM

Mr. Thomas Imber
523 Old Course
Friendswood, TX 77546
Lauren Lynch Flick, Esq.
Pillsbury Winthrop Shaw Pittman LLP
2300 N Street, N.W.
Washington, DC 20037-1128
In re:

KBSO(FM), Corpus Christi, TX
Reina Broadcasting, Inc.
File No. BRH-20130401ANY
Facility ID No. 55679
License Renewal Application; Informal
Objection

Dear Mr. Imber and Ms. Flick:
The Media Bureau ("Bureau") has before it: (1) the license renewal application ("Application")
of Reina Broadcasting, Inc. ("Licensee") for radio station KBSO(FM), Corpus Christi, TX ("Station");
and (2) the Informal Objection ("Objection") to the Application filed by Thomas Imber on July 8, 2013.
For the reasons set forth below, we deny the Objection.
Background. Licensee timely filed the Application on April 1, 2013. In a July 8, 2013,
Objection, Imber argues that the Application should be denied due to the "unfair business practices" of
Manuel Davila, who is 50 percent owner of Licensee. Imber reports that in 2010, he entered into a local
marketing agreement ("LMA") with Davila, who is 50 percent owner of Licensee.1 Imber alleges that,
after he spent three years building the "Badlands Radio" brand, Davila "spread rumors" that he was
"taking over" management of the Station.2 As a result, Imber claims that advertisers shied away, costing
him significant revenue. Imber states that, by June of 2013, "rumors of the takeover" were so rampant
that Imber, his customers, and employees all believed they were true, and he notes that Davila hired a
Program and Music Director for the Station over his objections.3 He states that, when Davila apparently
terminated the contract by not taking Imber's payment, he concluded that Davila sought to take advantage
of the contracts, successful brand, and momentum that Imber had developed.4 Imber adds that he is filing
a lawsuit against Davila, seeking "an immediate and temporary injunction to stop this station from
'Objection at 2. Imber acknowledges that he has "always been behind on [his] lease payment," but states that
Davila "never had any issues" with this history of payments. Id. at 1.
2 Id Imber cites as an example of the "take over" the hiring of Easton Santos as Program Director over Imber's
objections. Id.
31d ati.
41d at3.

He asks the Commission
broadcasting on 94.7 or at the very least, force them to change their format. . .
to investigate whether, in light of these allegations, Davila is worthy of having a radio license.6
Discussion. Informal objections to license renewal applications must provide properly supported
allegations of fact that, if true, would establish a substantial and material question of fact that grant of the
application would be prima facie inconsistent with Section 309(k) of the Communications Act of 1934, as
amended ("Act").7 We have examined the Objection and find that it does not raise a substantial and
material question of fact calling for further inquiry.
The Commission's character assessments, with regard to non-broadcast misconduct, focus on
whether the alleged conduct demonstrates the licensee's or applicant's proclivity to deal truthfully with
the Commission and to comply with its rules or policies.8 However, the Commission has stated that it
will not take into account non-FCC misconduct "involving. . . alleged criminal activity and antitrust or
anticompetitive misconduct. . . unless it is adjudicated."9 Here, Imber has provided no evidence that
Davila's actions either violated the Act or the Commission's rules or policies or have resulted in a finding
of adjudicated misconduct. Thus, none of those matters fit within the categories of misconduct that the
Commission has said would be relevant to determining an applicant's character qualifications. Rather, it
is more accurate to characterize Imber's "unfair business practices" allegation as a claim that Davila
breached the LMA contract he had with Imber. To that extent, the Commission has consistentl,' held that
parties should seek redress for private contractual disputes in courts of competent jurisdiction,' as Imber
states that he intends to do.
Finally, with respect to the allegations that Davila "spread rumors" that he was "taking over"
management of the station, we note that the existence of the LMA does not absolve Licensee of the
responsibility to control the station's personnel, programming and finances. Licensees may delegate the
day-to-day operation of the station, but not its ultimate control." To the extent that imber complains that
Davila was "taking over" the station by, for example, hiring people over Imber's objections, we observe
that the license for the Station is held by Licensee, which is controlled by its two stockholders, officers,
and directors, Manuel and Rebecca Davila. Imber's allegations show that the Licensee complied with the
Act by controlling the operation of the Station, including its programming, personnel and finances.'2
Objection at 3. Imber believes that Davila's choice to broadcast country music, as did Imber, is further evidence
that Davila is taking advantage of Imber's gains in securing listeners and advertisers.
6Jd at3.
747 U.S.C. § 309(e). See, e.g., WWOR-TV, Inc., Memorandum Opinion and Order, 6 FCC Rcd 193, 197 n. 10
(1990), aff'd sub nom. Garden State Broadcasting L.P. v. FCC, 996 F.2d 386 (D.C. Cir. 1993), rehearing denied
(Sep. 10, 1993); Area Christian Television, Inc., Memorandum Opinion and Order, 60 RR 2d 862, 864 (1989)
(informal objection must contain adequate and specific factual allegations sufficient to warrant the relief requested).
See Policy Regarding Character Qualifications in Broadcast Licensing, Report, Order and Policy Statement, 102
FCC 2d 1179, 1196-98 ¶ 37 (1986), ("1986 Character Order") recons. denied, 1 FCC Rcd 421 (1986), modfled, 5
FCC Rcd 3252, 32525 (1990), 6 FCC Rcd 3448 (1991), and7 FCC Rcd 6564 (1992).
1986 Character Order, 102 FCC 2d at 1205.
'° See John F. Runner, Receiver (KBIF), Memorandum Opinion and Order, 36 RR 2d 773, 778 (1976); Decatur
Telecasting, Inc., Memorandum Opinion and Order, 7 FCC Rcd 8622 (1992).
"See WGPR, Inc., Memorandum Opinion and Order, 10 FCC Rcd 8140, 8142-46 (2005), vacated on other grounds
sub nom. Seraj5rn v. FCC, 149 F.3d 1213 (D.C. Cir. 1998); Choctaw Broadcasting Corporation, Memorandum
Opinion and Order, 12 FCC Rcd 8534, 8538-39 (1997).

'2See 47 U.S.C. § 310(d); Clear Channel Broadcasting Licenses, inc., Memorandum Opinion and Order and Notice
of Apparent Liability for Forfeiture, 24 FCC Rcd 14078, 14094-95 (MB 2009).

2

Accordingly, Imber has not raised a substantial and material question of fact calling for further inquiry
regarding the Station's operation during the license term.
Conclusions/Actions. Accordingly, IT IS ORDERED that the Informal Objection filed on July 8, 2013,
by Thomas Imber is DENIED.

Sincerely,

M

Doyle
Peter
Chief, Audio Division
Media Bureau