Sec.  21.39   Considerations involving transfer or assignment applications.

   

   (a) A Multipoint Distribution Service conditional license may not be
   assigned or transferred prior to the completion of construction of the
   facility and the timely filing of the certification of completion of
   construction. However, consent to the assignment or transfer of
   control of a Multipoint Distribution Service conditional license may
   be given prior to the completion of construction and the timely filing
   of the certification of completion of construction where:

   (1) The assignment or transfer does not involve a substantial change
   in ownership or control of the authorized Multipoint Distribution
   Service facilities; or

   (2) The assignment or transfer of control is involuntary due to the
   licensee's bankruptcy, death, or legal disability.

   (b) The Commission will review a proposed transaction to determine if
   the circumstances indicate "trafficking" in licenses whenever
   applications (except those involving pro forma assignment or transfer
   of control) for consent to assignment of a license, or for transfer of
   control of a licensee, involve facilities that were:

   (1) Authorized following a comparative hearing and have been operated
   less than one year, or;

   (2) Involve facilities that have not been constructed, or;

   (3) Involve facilities that were authorized following a random
   selection proceeding in which the successful applicant received
   preference and that have been operated for less than one year.

   At its discretion, the Commission may require the submission of an
   affirmative, factual showing (supported by affidavits of a person or
   persons with personal knowledge thereof) to demonstrate that the
   proposed assignor or transferor has not acquired an authorization or
   operated a station for the principal purpose of profitable sale rather
   than public service. This showing may include, for example, a
   demonstration that the proposed assignment or transfer is due to
   changed circumstances (described in detail) affecting the licensee
   subsequent to the acquisition of the license, or that the proposed
   transfer of radio facilities is incidental to a sale of other
   facilities or merger of interests.

   (c) If a proposed transfer of radio facilities is incidental to a sale
   of other facilities or merger of interests, any showing requested
   under paragraph (a) of this section shall include an additional
   exhibit which:

   (1) Discloses complete details as to the sale of facilities or merger
   of interests;

   (2) Segregates clearly by an itemized accounting, the amount of
   consideration involved in the sale of facilities or merger of
   interests; and

   (3) Demonstrates that the amount of consideration assignable to the
   facilities or business interests involved represents their fair market
   value at the time of the transaction.

   (d) For the purposes of this section, the one year period is
   calculated using the following dates (as appropriate):

   (1) The initial date of grant of the license, excluding subsequent
   modifications;

   (2) The date of consummation of an assignment or transfer, if the
   station is acquired as the result of an assignment of license, or
   transfer of control of corporate licensee; or

   (3) The median date of the applicable commencement dates (determined
   pursuant to paragraphs (c) (1) and (2) of this section) if the
   transaction involves two or more stations. (The median date is that
   date so selected such that fifty percent of the commencement dates of
   the total number of stations, when arranged in chronological order,
   lie below it and fifty percent lie above it. When the number of
   stations is an even number, the median date will be a value half way
   between the two dates closest to the theoretical median).

   [ 44 FR 60534 , Oct. 19, 1979, as amended at  48 FR 33900 , July 26, 1983;
    50 FR 5994 , Feb. 13, 1985;  52 FR 27554 , July 22, 1987. Redesignated
   and amended at  52 FR 37780 , Oct. 9, 1987;  58 FR 11798 , Mar. 1, 1993;
    61 FR 26674 , May 28, 1996]