CULVER CITY, CALIF. — Here, in the city that is home to Sony Pictures Studios and cult Tex-Mex eatery Tito’s Tacos, an AM radio station on a long-vacant frequency was to be built. Thanks to a FCC auction of 22 Construction Permits for new kHz-based facilities, the Commission revealed in May 2014 that The Levine/Schwab Partnership had emerged as a winning bidder of a new AM at 1500 on the dial.
Nearly eight years later, there is no AM station, but the man at the helm of the partnership has been arguing that he’s simply needed more time. Now, time may definitively be up, thanks to a D.C. Federal Court of Appeals decision issued March 3 that all but ends the likelihood KWIF-AM will ever sign on the air.
In the fall of 1982, the 1500 kHz signal serving Southern California was put in peril. At that time, the FCC denied the license renewal of what was KROQ-AM, home to a brokered Spanish-language format. With sibling KROQ-FM soaring in the ratings under programmer Rick Carroll, the company that owned the stations at the time — George Cameron Jr. Communications, a subsidiary of Burbank Broadcasting — eventually lost control.
The KROQ-FM license famously ended up with Ken Roberts, while the FCC moved forward with granting an application for the creation of new AM radio station at 1500 kHz. The party getting that application? Royce International Broadcasting Co., the company led by Ed Stolz — today at the center of his own legal fight to keep ownership of his three FMs.
Regarding the former KROQ-AM, Royce never built a new AM at 1500 kHz. Enter Schwab Multimedia LLC, which won the right to build what was originally “KRCK-AM” in that 2014 auction. The Levine/Schwab Partnership paid $409,000 to the Commission for the rights to construct the facility. Later, it developed a plan to use an FM translator at 105.5 MHz in the San Fernando Valley, too.
The FM translator plan was nixed by the FCC’s Media Bureau in early 2020. But, William J. Schwab II, a.k.a. Don Elliot, still had an opportunity to build the new AM, with the call letters KWIF, with Culver City, Calif., as its home. It was to have 25kw during daylight hours, and 1kw at night.
That hasn’t happened yet, and the FCC says it never will. Elliot protested, but now that fight has likely reached its ultimate conclusion.
The quest to bring another AM radio station to 1500 kHz, the home of “Super 15” KBLA during the golden age of rock ‘n’ roll, began for Schwab Multimedia in 2004. There was a challenge from an Inland Empire broadcaster, claiming possible first-adjacency interference concerns.
While there were parties in opposition of the creation of KWIF, Elliot never moved forward. That’s key to understanding the main matter the D.C. Circuit Court heard on appeal from the FCC — tolling. Schwab wanted more time to build KWIF, and sought tolling from the Commission. It then lost its original tower site, and offered a new solution. But, the FCC declined, asserting that the window to construct the station was closed. Even with a pandemic-fueled reason for the delay, along with California wildfires impeding tower construction and maintenance companies, the Commission said enough was enough. The KWIF call letters were deleted.
This led the U.S. Court of Appeals for the District of Columbia Circuit to hear arguments in Levine/Schwab Partnership v FCC. That case, decided on Friday (3/3), saw Wilkinson Barker Knauer LLP represent Levine/Schwab.
And, it was a seven-page succinct deduction of the facts: Schwab Multimedia had three years to build KWIF; the FCC’s construction permit comes with a time limit.
And, while the FCC granted Schwab’s first three requests for more time, it refused to grant a fourth delay request.
What does the D.C. Federal Appeals Court say on the matter? “Schwab appealed the FCC’s decision, claiming that it was arbitrary and capricious. Because the agency’s decision was reasonable and reasonably explained, we affirm.”
The court then explains that the FCC denied Schwab’s Application for Review “because site loss is not a legitimate reason for tolling under the FCC’s rules. It also refused to grant Schwab a waiver of the FCC’s three-year deadline on construction permits. Those decisions were not arbitrary and capricious.”
With the affirmation of the FCC Order, Elliot released a statement through WBK legal counsel Davina Sashkin expressing his dismay over the decision.
“We are extremely disappointed with the opinion of the court,” Elliot said. In effect, the court has granted the FCC carte blanche to make rulings not based in fact or in conformance with agency precedent. We were granted tolling in the spring of 2020 for COVID-19 Pandemic-related construction delays — just like dozens of other stations facing that unprecedented scenario. We then sought extension of that tolling in September of 2020 because the pandemic and its impacts on broadcast construction crew availability continued apace — after all, that was a mere six months from the official emergency declaration of the Pandemic. The Audio Division inexplicably denied this request on a procedural technicality. When we challenged the denial, the Media Bureau claimed, without evidence, that the ‘true’ reason for the failure to construct KWIF was site loss – which, contrary to the FCC’s claims, has been found at times to be a basis for tolling of a construction permit. The absurdity is heightened by the fact that the court actually had the lease in evidence.”
In upholding the FCC ‘s decision, Elliot added, “The court has made clear that the bedrock standard that a federal agency may not rule in an arbitrary and capricious manner is hollow. We undertook tireless efforts to build what might have been the very last new AM station ever constructed and overcame many hurdles, including baseless challenges from a competitor that consumed precious time with the clock running on tolling, and a once-a-century global pandemic. But, in the end, a court too willing to defer to an agency moving goal posts rather than doing what it should to promote the public interest will preclude KWIF from serving the people of the L.A. Basin.”
