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File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ***************************************************************** ******** For FCC Record Only: $// MO&O, MLGA Partners/ Evergree, Chicago, ILL, FCC 95-136 //$ $/ O.283 Authority Delegated (MMB) /$ $/ 73.3555 Multiple Ownership (temporary waiver) /$ Before the Federal Communications Commission Washington, D.C. 20554 FCC 95-136 In re Applications of ) ) MLGAL PARTNERS, L.P. ) (Transferor) ) ) and ) ) EVERGREEN MEDIA CORPORATION ) (Transferee) ) ) For Transfer of Control of ) ) BPI CHICAGO LICENSE SUBSIDIARY, INC. ) Licensee of WVAZ(FM), Oak Park, IL ) File No. BTCH-950201GH WEJM(AM), Chicago, IL ) BTC-950201GI WJPC-FM, Lansing, IL ) BTCH-950201GJ ) BPI CHARLOTTE LICENSE ) SUBSIDIARY, INC. ) Licensee of WBAV(AM), Charlotte, NC ) File No. BTC-950201GK WBAV-FM, Gastonia, NC ) BTCH-950201GL WPEG(FM), Concord, NC ) BTCH-950201GM ) BPI DALLAS LICENSE SUBSIDIARY, INC. ) Licensee of KSKY(AM), Balch Springs, TX ) File No. BTC-950201GN ) BPI NEW YORK LICENSE SUBSIDIARY, INC. ) File No. BTC-950201GO Licensee of WYNY-FM, Lake Success, NY ) ) BPI DETROIT LICENSE SUBSIDIARY, INC. ) File No. BTC-950201GP Licensee of WDOZ(AM), Dearborn, MI ) BTCH-950201GQ WNIC(FM), Dearborn, MI ) BTCH-950201GR WKQI(FM), Detroit, MI ) MEMORANDUM OPINION AND ORDER Adopted: March 30, 1995 Released: By the Commission: 1. The Commission has before it the above-captioned applications for a transfer of control affecting eleven radio licenses. The eleven licenses are held by separate subsidiaries of Broadcasting Partners, Inc., ("BPI"), which in turn is a subsidiary of MLGAL, L.P. ("MLGAL"). Evergreen Media Corporation ("Evergreen") and BPI have entered into a Plan of Reorganization and Merger whereby Evergreen will create a wholly-owned subsidiary, Evergreen Media Partners Corporation ("Evergreen Partners"), for the purpose of merging Evergreen Partners and BPI. A pleading styled a petition to deny the transfer of control was filed by David Naylor on March 2, 1995. Mr. Naylor has not submitted an affidavit in which he attests to his personal knowledge of the facts alleged in the pleading as required pursuant to Section 309(d)(1) of the Communications Act of 1934, as amended, 47 U.S.C.  309(d)(1). Accordingly, we find that Mr. Naylor lacks standing to petition to deny the application for transfer of control and we will treat his pleading as an informal objection in accordance with 47 C.F.R.  73.3587. An opposition to Mr. Naylor's pleading was filed by MLGAL and BPI on March 16, 1995. MULTIPLE OWNERSHIP MATTERS 2. Among other stations, Evergreen proposes through this merger to acquire WEJM(AM), Chicago, Illinois, WJPC-FM, Lansing, Illinois and WVAZ(FM), Oak Park, Illinois. Because Evergreen currently owns WMVP(AM), WLUP-FM and WRCX(FM), all licensed to Chicago, Illinois, a question of compliance with the local radio ownership rules is presented by the proposed acquisition of BPI's Chicago-area stations. Therefore, Evergreen has submitted a showing required by 47 C.F.R.  73.3555(a), the radio local ownership rules. That showing demonstrates that all of the principal community contours of the two AM and four FM stations named here are mutually overlapping. Thus, the six stations' principal community contours constitute one radio market for purposes of the radio local ownership rules. Additionally, Evergreen demonstrates that more than fifteen commercial radio stations have principal community contours which overlap the principal community contours of the stations it proposes to co-own and thus has submitted the required audience share data for the two AM and four FM stations. The data submitted demonstrate that the stations have a combined audience share of 15.2 percent, which complies with the 25 percent audience share cap imposed by the rules. Nevertheless, if this transaction is approved, Evergreen's ownership of the Chicago stations would violate the two AM/ two FM numerical ownership limitations set forth in 47 C.F.R.  73.3555(a)(1)(ii). 3. Under these circumstances, Evergreen requests a twelve month waiver of the radio local ownership rules in order to permit the post-merger divestiture of two of the subject FM stations. In support of a twelve month rule waiver, Evergreen asserts that such a waiver is consistent with Commission precedent and will allow it to integrate the operations of the stations it seeks to acquire here with stations it presently operates in Los Angeles, San Francisco, Chicago, Washington, Houston and Coral Gables. Evergreen therefore argues that the proposed merger will lead to economic efficiencies and cost savings that will ultimately benefit the public interest. Additionally, Evergreen argues that its ownership of the subject stations during the period of the temporary waiver will not have an adverse impact on diversity and competition in the Chicago market, which is served by an abundance of other media sources. Evergreen further pledges to use the twelve month waiver period to seek a qualified minority buyer for at least one of the two FM stations that will be divested. 4. We are persuaded that a temporary waiver of the local ownership rules for a one year period is justified. As Evergreen points out, the requested waiver affects only one radio market relevant to this multi-station transaction. The Commission has in the past waived provisions of the broadcast multiple ownership rules on a temporary basis in order to accommodate multi-station transactions. Our approval of a temporary waiver here is consistent with similar waivers we have granted that have allowed applicants to come into compliance with the rules in an orderly manner. See Viacom, Inc., 9 FCC Rcd 1577 (1994); Midwest Communications, Inc., 7 FCC Rcd 159 (1991); RKO General, Inc. (KRTH), 4 FCC Rcd 4089 (1989); TVX Broadcast Group, Inc., 2 FCC Rcd 1534 (1987). 5. As in the cited cases, we are convinced in the circumstances here a temporary twelve month waiver will not compromise the fundamental policies served by the radio local ownership rules. Evergreen's showing demonstrates that the area of mutual overlap among the stations it presently owns and the stations that it seeks to acquire in Chicago occurs within the Chicago radio metro market, as defined by Arbitron, Inc. Evergreen's showing also demonstrates that Chicago is the third largest radio metro market in the country, and is now served by 39 FM radio stations and 34 AM radio stations. Furthermore, 15 television stations are licensed to counties in the Chicago radio metro market. Evergreen also points out that Chicago is served by two major daily newspapers and operating cable systems. Additionally, the eighty-eight broadcast outlets licensed to the Chicago radio metro market will be owned and operated by 62 separate broadcast "voices" during the temporary waiver period. In the past, we have acknowledged that a temporary waiver of the local ownership rules may be supported by demonstrating that the relevant market is well served by other media outlets. See, e.g., Forward of Kansas (KVGB(AM)/KVGB-FM Great Bend, KS), FCC 95-99 (Mar. 9, 1995); Patteson Brothers , Inc., 8 FCC Rcd 7595 (1993). Given the abundance of other sources of mass media available in the relevant market, we find that allowing Evergreen to exceed the local ownership rule's numerical limits by owning two additional FM stations during the period of the temporary waiver will not adversely effect diversity and competition. We note moreover, that the subject stations' combined audience share is 15.2 percent, well below the 25 percent threshhold above which excessive concentration is presumed. 6. We also find that grant of the requested temporary waiver would be consistent with the Commission's interest in promoting minority ownership in broadcasting. Evergreen has pledged to take affirmative steps during the period of the temporary waiver to seek out a qualified minority buyer for at least one of the two stations to be divested. Thus, grant of the temporary waiver may advance diversity via increased minority ownership. See, e.g., Notice of Proposed Rulemaking in MM Docket No. 94-149 and 91-140, FCC 94-323 (Dec. 15, 1994). Evergreen would not be in a position to seek out minority buyers for the two radio stations if immediate divestiture were required, and we therefore find that the temporary waiver period will advance important public interest goals. Furthermore, the merger proposed will permit the parties involved to take advantage of cost savings and economies of scale that may ultimately lead to public interest benefits in the form of additional and improved programming on the stations. Given the demonstrated level of competition and diversity in the relevant market and Evergreen's pledge to seek a qualified minority buyer for at least one of the stations to be divested, we find that a temporary waiver is justified. 7. We further note that the Commission has delegated to the Chief, Mass Media Bureau the authority to act on petitions or requests for waiver of the Commission's rules, whether or not accompanied by an application, when such petitions or requests do not contain new or novel arguments not previously considered by the Commission, and do not present facts or arguments which appear to justify a change in Commission policy. See 47 C.F.R.  0.283(b)(4). Pursuant to this authority, the Commission hereby authorizes the staff to grant requests for temporary waivers of 47 C.F.R.  73.3555(a)(1) for periods not to exceed 12 months that do not present any new or novel issues. This interpretation we adopt today does not extend to requests for temporary waivers in excess of 12 months or requests for extensions of previously granted temporary waivers. EEO MATTERS 8. Mr. Naylor alleges that WYNY-FM has failed to meet "its numerical goals" with respect to hiring minorities. Further, Mr. Naylor accuses the station of hiring discrimination. In support thereof, Mr. Naylor attaches a copy of WYNY-FM's Annual Employment Report for 1993. He requests that we investigate the station's recruitment efforts, interview data and hiring practices during the current license term, and thereafter, deny the application for transfer of control. 9. Based on our review of the informal objection, we conclude that Mr. Naylor has not raised specific allegations of discrimination or a violation of our EEO Rule sufficient to show that a grant of the application for transfer of control would be prima facie inconsistent with the public interest, as required by 47 U.S.C.  309(d)(1). See Astroline Communications Co. v. FCC, 857 F.2d 1556 (D.C. Cir. 1988); Dubuque TV Limited Partnership, 4 FCC Rcd 1999 (1989). See also Heritage-Wisconsin Broadcasting, 8 FCC Rcd 5607 (1993). With respect to Mr. Naylor's allegations regarding WYNY-FM's EEO program, we find his arguments to be without merit. Mr. Naylor's allegations are entirely based on an employment report which predates the licensee's acquisition of the station on June 25, 1993. Thus, none of the allegations made by Mr. Naylor justify departure from our usual process of reviewing EEO complaints in the context of renewal. Metromedia, Inc., 98 FCC 2d 300, 302 n.2 (1984). WYNY-FM's license will expire on June 1, 1998. At that time, the renewal process will include an analysis of the station's employment profiles as reflected in its Annual Employment Reports for the years 1994 through 1998. The station recently moved its main studio from Queens, New York to Jersey City, New Jersey. We note that the labor forces of both Queens, New York and Jersey City, New Jersey contain significantly larger minority components than the labor force of Lake Success, New York, the station's community of license. Thus, at renewal time, the station's employment profiles will be compared to available labor force statistics for the New York, New York Metropolitan Statistical Area (MSA) for those years in which the studio was in Queens, and to labor force data for the Jersey City, New Jersey MSA beginning with the licensee's 1995 Annual Employment Report. See Miami, Florida, 5 FCC Rcd 4893, 4900 n.14; Michigan/Ohio, 3 FCC Rcd 6944, 6950 n.22 (1988). 10. Based on the foregoing, we find that grant of the transfer of control applications will serve the public interest, convenience, and necessity. Accordingly, IT IS ORDERED That the request of Evergreen Media Corporation for a temporary twelve month waiver of 47 C.F.R.  73.3555 to permit common ownership of WMVP(AM), Chicago, Illinois, WLUP- FM, Chicago, Illinois, WRCX(FM), Chicago, Illinois, WEJM(AM), Chicago, Illinois, WJPC-FM, Lansing, Illinois and WVAZ(FM), Oak Park, Illinois, IS HEREBY GRANTED, subject to the condition that within twelve months from the adoption date of this decision that Evergreen has filed an application for Commission consent to assign two of the following FM licenses to a new party: WLUP-FM, WRCX(FM), WJPC-FM, WVAZ(FM). Moreover, because Evergreen is otherwise qualified and the public interest would be served thereby, IT IS FURTHER ORDERED, That the applications to transfer control of MLGAL Partners, L.P. and its subsidiaries: BPI Chicago License Subsidiary, Inc., licensee of WVAZ(FM), Oak Park, Illinois, File No. BTCH-950201GH, WEJM(AM), Chicago, Illinois, File No. BTC-950201GI, and WJPC-FM, Lansing, Illinois, File No. BTCH-950201GJ; BPI Charlotte License Subsidiary, Inc., licensee of WBAV(AM), Charlotte, North Carolina, File No. BTC- 950201GK, WBAV-FM, Gastonia, North Carolina, File No. BTC-950201GL, and WPEG(FM), Concord, North Carolina, File No. BTC-950201GM; BPI Dallas License Subsidiary, Inc., licensee of KSKY(AM), Balch Springs, Texas, File No. BTC-950201GN; BPI New York License Subsidiary, the licensee of WYNY-FM, Lake Success, New York, File No. BTC-950201GO; BPI Detroit License Subsidiary, Inc., licensee of WDOZ(AM) and WNIC(FM), Dearborn, Michigan, File Nos. BTC-950201GP and BTCH-950201GQ and WKQI(FM), Detroit, Michigan, File No. BTCH-950201GR, to Evergreen Media Corporation, ARE HEREBY GRANTED to the extent indicated herein. IT IS FURTHER ORDERED That the informal objection filed March 2, 1995 by David Naylor IS HEREBY DISMISSED. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary