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A. a.(1)(a) i) a)DocumentgPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:K,K.K"1@m3"i~'^"(22TN"""28"2222222222888,\HBBH>8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""""2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""d<d<CCYYdCCddCYCdYzzzzCCCCqodYYYYYYYYYYY8888dddddddndddddddxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNdddCYQQddddddFddddFCChhd44ddzzdddvooChdF"dhd9dCCzCddoddCdYds]zUvdYYCCCCz~ozoY~NYdYC8YooYdYzsdzdd~YYzozzz~CdzYzzzzCCdddddddzCsdYC\   pxtll\tll@\@\`L2Ya@?@kJf /P["5@^*7DSS77S^*7*.SSSSSSSSSS..^^^Jxooxf]xx7Axfxx]xo]fxxxxf7.7NS7JSJSJ7SS..S.SSSS7A.SSxSSJP!PZ*7777CE7SSxJxJxJxJxJooJfJfJfJfJ7.7.7.7.xSxSxSxSxSxSxSxSxSxSxJxSxSxSxSxS]SxSxJxJoJoJoJfJfJfJxSxSxxSxSxSxSCS7S777SAxSf.fExSxSxSxo7oE]A]AN:*LS7JSSSSS.4}}S2S}277JJS77SS7J72t7[[[[^ee*C`^.wRSSn[Cfx`xWlRx[][ceIfIs`Wx[rriwge*7DSS77S^*7*.SSSSSSSSSS..^^^Jxooxf]xx7Axfxx]xo]fxxxxf7.7NS7JSJSJ7SS..S.SSSS7A.SSxSSJP!PZ7SJSS7]777JJ:S7A7xx*7SSSS!S7.S^7SC[227`L*724S}}}Jxxxxxxoffff7777xxxxxxx^xxxxxx]SJJJJJJoJJJJJ....SSSSSSS[SSSSSSSxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNdddCd]]ddddddFddddFCCddd88ddzzdddkddCddF"ddd9dCCzCdzdoddCdYds]zUvdYYCCCCzzzozoYzNoYdYC8YooYdYzzdzddoYoYzzozzzzzCdoozYzzzzCCddddzdddooozCsdYC\   pxtll\tll@\@\`L"5@^2Coddȧ8CCdr2C28ddddddddddCCrrrdzNdzoȐC8CtdCdoYoYCdo8Co8odooYNCodddYO,Oh2CC!CCPRCdodddddȐYYYYYN8N8N8N8oddddooooddoddddzodddYYYYYYddddooPoNoNCNodo8RoodȐYYoNoNNF2ldCddddddGGPPPPPP8]SSP8..GGP..PPffSSxSc]].GS8"xxSxPxxS刈0S88xfxxxxxxxxxx+SP]PxoSPPxJP`xlxxxxxxxxxxMxxxxxxofxGcxxxxxxxSxxxxxxxJxxxxJxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx1xxx1xxx1xxx1xxxxxxxxxxxxxff]f]oJiAoJSxJ8.xJo]]JoSJxfcSfSSrJxJof]fffi8PxxfJffffz++PPPPPPPxxxfP`SJ8Muu]daqqZZnn{{xu{{M{aZZ5M5M҅P?k2?~af bf ym`xTimes New RomanTimes New Roman BoldTimes New Roman ItalicCG TimesCG Times ItalicGaramond AntiquaGaramond HalbfettGaramond Kursiv",tB^ f ^88Qdd4??d888ddddddddddd88N||NHx|k?d?dd4]oUoYFkv;8o;vkooUHHvkkh`dddd4ddddd8ddddddddv;]]]]]U~Y~Y~Y~YN;N;N;N;vkkkkvvvvh]pkkhk~odddXXddX|d|dXdkkkkvvL;dvddNvsddo8PxdzQz;ppvdkXXdpLkHpLkdPDdvpvvpvhX`Xoxdvkddh8dd444WxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNddd8N``ddd]]dFodddF44]]d??ddzzdddvv4]dF"dhd9dCCz8ddoddddYds`zUvddd????zozoY~NYYYN8YooYdYz~dzddYYzozzz~NdzYzzzz88dddddddzdzdYC\   pxtll\tll@\@\`L",tB^ f ^00U``000`000d``````````00FsvdC?vo]x~0d0dd0]`HdH8U`;0d8o]]`N;?hh]YUYdY`4`````0``````d`d;]]]]]~JvJvJvJvJC;C;C;C;o]]]]hhhhY]d]]Y]o]xd`xdXX``xxXv`v`xXd``````D;`d``Cdk``dp8pHv`vCv8ddod`xLxL`dL];dL``pHp8x`hdhhdh`pL~UpLdv`o``x`dx0dd080WxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNd``4FQQ```YY`CYdd`C00QQ`;;``zzdddhdk0QdC"dYd9dCCz0d`o`d``Y`s]zUvdYY0000zsozoYvN~YdYC8YooYdYzodzddzYYzozzzvC`zYzzzz00```````z`sdYC\   pxtll\tll@\@\`L7jC:, Xj\  P6G;XPy.X80,IX\  P6G;P 7nC:,Xn4  pG;X W!@(#,9h@\  P6G;hP H5!,,5\  P6G;,P\ {,W80,%?W*f9 xr G;X\ 5hC:,%Xh*f9 xr G;XX8wC;,<=Xw PE37XP 6uC;,E^Xu&_ x7XXV"G($,<hG PE37hPl;xC4,UXxjp P7XP lu2d8+,Uc&djp P7P<zC8,fuTXzV p7X&;sC0,xtXs4@ x7XXlT$H(,UhHjp P7hP` `  @ a. ` 25q~D&6&EB"i~'K2^3::bb!$$:b:::::::::::xbx+b[HY`JG`e(+WHleeGeT:RbWv[WP$:$<3&8C!C!bC@@>.*(@<[<@85<5x::::::::::::<:C![3[3[3[3[3NY3L3L3L3L3(!(!(!(!fCf@f@f@f@b@b@b@b@W@[3`H:eC::R:W@H<<!!!WxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNWWW<::,33::o:::bb:(C<<:b(!!33:b!!xx::II[xmarkets after consummation of the proposed merger, Jacor has also submitted showings to  xdemonstrate its compliance with the limitations of our local radio ownership rules in those  X - xmarkets. $ m yO - xxЍ We require sales applications involving principal community contour overlaps between more than one radio  xstation in the same service to include an exhibit showing compliance with the local radio ownership rule, 47 C.F.R.  {O- x73.3555(a). Revision of Radio Rules and Policies, 7 FCC Rcd 2756, 2779 n.102 (1992), recon. granted in part and  {OK-denied in part, 7 FCC Rcd 6387 (1992).  These limitations, mandated by the Telecommunications Act of 1996, provide strictly  xnumerical restrictions on the number of radio stations in the same service and on the number of  xradio stations overall which may be commonly owned in any given market. The restrictions  X -vary based upon the total number of radio stations in the market.  m yO- xԍ Under the local radio ownership rules, as amended by the Telecommunications Act of 1996, in a radio market  xwith 45 or more commercial radio stations, a party may own up to eight commercial radio stations, not more than  xYfive of which are in the same service; in a market with 30 to 44 commercial radio stations, a single entity may own  xup to seven commercial radio stations, no more than 4 of which are in the same service; in a market with 15 to 29  xstations, a party may own up to six stations, not more than four of which are in the same service; and, in markets  xwith 14 or fewer stations, one owner may hold up to five stations, no more than three of which are in the same  {OH- xv service, except that no one entity may control more than 50% of the stations in a market. Implementation of Sections  {O- xL202(a) and 202(b)(1) of the Telecommunications Act of 1996, FCC 9690, released March 8, 1996; see also Telecommunications Act of 1996, Pub. L. No. 104104,  202 (b).   X - x= 4. Jacor bases its request for waiver of the onetoamarket rule on the casebycase waiver  X- xstandard adopted by the Commission in 1989. Amendment of Section 73.3555, 4 FCC Rcd 1741  X- x(Second Report and Order, reconsidered in part, 4 FCC Rcd 6489 (1989) (Second Report and  Xl- xOrder Recon.). Under this standard, we make a public interest determination on a casebycase  x]basis using the following five criteria: 1) the potential public service benefits of common  x[ownership of the facilities, such as the economies of scale, cost savings and programming and  xservice benefits; 2) the types of facilities involved; 3) the number of media outlets already owned  xby the applicant in the relevant market; 4) any financial difficulties involving the station(s); and  X- x5) issues pertaining to the level of diversity and competition within the affected market. See  X-Second Report and Order, 4 FCC Rcd at 175354.  X- x 5. With respect to the first criterion, Jacor claims that the waivers should be granted because",-(-(ZZ"  xthe proposed combinations would result in significant cost efficiencies and, consequently, in  ximproved service to the public According to the applicant, Jacor operates with distinct sales  xstaffs, individual station program directors and diverse program formats at its stations and thus  xcompetes with the other stations in the market, including other Jacor stations, for audience share  xNand advertising revenue. The applicant notes, however, that it intends to centralize and  xLconsolidate many of its functions, as well as the facilities of most of its stations and to engage  xin joint news gathering and reporting activities. Jacor predicts that such consolidation will result  xin approximately $1.47 million per year in savings for stations in the Tampa combination, and  x$874,000 per year for those in the Cincinnati combination. Most of these savings, states the  X1- x.applicant, will result from the consolidation of station functions and from a reduction in staff.7 1m yO - xԍ Specifically, Jacor anticipates that joint operation of the Tampa stations will result in an estimated yearly  x-savings of: $200,000 through joint purchasing of office supplies, Arbitron ratings, national representative fees,  xtelephone services, computers and computer software, and similar items, as well as through merged traffic, business  xand engineering staffs which will reduce salary expenses; $637,000 through consolidation of the studios of  xWXTB(FM) and WTBT(FM) with the colocated studios of WFLA(AM), WFLZFM and WDUV(FM) which will  xresult in savings in rent, utilities, supplies, equipment and the need for multiple receptionists; $170,000 through joint  xLnews gathering activities and the sharing by WTSP(TV) and Jacor's news and talk AM radio stations of some  xzservices and facilities, as well as through discounts for joint subscriptions to various news services, and the elimination of staff positions; and $160,000 through volume discounts for outdoor and other advertising.   xIn the Cincinnati market, Jacor anticipates that joint operations will result in annual savings of: $180,000  xythrough joint purchasing of office supplies, Arbitron ratings, national representative fees, telephone services,  x computers and computer software, and similar items; $162,000 by consolidation of functions and departments through  xmerged traffic, business and engineering staffs which will increase efficiencies and reduce salary expenses; $170,000  xhthrough joint news gathering activities and the sharing of some services and facilities by WKRCTV and Jacor's news  xand talk AM radio stations, as well as through discounts for joint subscriptions to various news services, and the elimination of staff positions; and $162,000 through volume discounts for outdoor and other advertising.7  xAdditionally, Jacor projects savings of over $2 million resulting from the consolidation of the  xLhome offices and home office functions of Jacor and Citicasters, at least $300,000 of which can  xbe allocated to the three Citicasters stations in the Tampa market, and $200,000 of which can be  X -allocated to the two Citicasters stations in the Cincinnati market.M m yO-ԍ These calculations exclude WKRQ(FM).M  X - xy 6. Not only will the combinations result in cost efficiencies, asserts Jacor, but they will also  xresult in public service and programming benefits. It argues that news coverage by the stations  xinvolved in the waiver requests will improve as a result of an increase in news staff, cooperation  x<between the stations' news departments, and the efficiencies of common ownership. Jacor claims  xLthat because the stations involved in the Tampa waiver request are licensed to seven different  xKcommunities, common ownership will enhance the community affairs programming of the stations  xby allowing one station to draw upon the expertise of the other stations in ascertaining issues of  ximportance to their entire service area. Similarly, Jacor states that the Cincinnati stations will  xenhance their community affairs programming by drawing upon the expertise of the other  xcommonly owned stations. With respect to the Cincinnati combination, the applicant states that  x.the meteorological services provided to the Cincinnati area will improve as a result of common",-(-(ZZ5"  xownership since WLW(AM) provides comprehensive meteorological services to all of the Jacor  xistations and WKRCTV operates a weather center, staffed with three professional meteorologists,  xwhich has won numerous awards for its weather forecasts and community service. Furthermore,  xthe applicant maintains that the opportunities for cross promotion resulting from common  xownership of the stations in both combinations will result in greater awareness of community  x{events and outreach programs sponsored by Jacor. Finally, the applicant states that the  xmefficiencies will allow it to increase licenseeproduced public service programming on  xWTSP(TV), St. Petersburg, Florida and WKRCTV, Cincinnati, Ohio. Specifically, Jacor pledges  xthat WTSP(TV) will air an additional onehalf hour of news and information programming  xbetween 6:00 and 8:30 a.m. on Sunday mornings when the WTSPproduced "Tampa Bay Life"  xairs, and WKRCTV will air an additional onehalf hour WKRCproduced public interest program  xon Saturdays between 6:00 and 6:30 a.m. which will feature current topics affecting the Cincinnati area.  x 7. Regarding the second criterion, Jacor asserts that the technical facilities that it owns or  xseeks to acquire in the Tampa market are comparable to those of other stations in the market.  xThe applicant notes that WTSP(TV) is a VHF station, which operates on Channel 10 with 316  xkW peak visual effective radiated power ("ERP") from a directional antenna with a height of 458  xmeters above average terrain ("HAAT"). According to Jacor, there are three other VHF stations  xlicensed in the television metro market. With respect to the radio stations involved in the waiver  xrequests, WFLA(AM) operates on 970 kHz with a power level of 5.0 kW both day and night  xusing different directional antenna systems. Ten other Class III AM stations are licensed in the  xzTampa metro market, as are 11 Class II and two Class IV AM stations. WFLZFM is a Class  xC station which operates on 93.3 MHz with 99 kW ERP and 414 meters HAAT. In addition to  xWFLZFM, three other Class C FM stations are licensed in the television metro market.  xWDUV(FM) holds a construction permit for a Class C station with a maximum ERP of 99 kW,  xto operate on 103.5 MHz from a height of 414 meters HAAT. WXTB(FM), which operates at  xL97.9 MHz with 100 kW ERP and 410 meters HAAT, is one of four commercial Class C1 stations  xlicensed in the metro market. WTBT(FM) is a Class A station operating on 105.5 MHz with a  xmaximum ERP of 6 kW and 87 meters HAAT. Three more commercial stations are either Class  xzC2 or Class A stations. Therefore, concludes Jacor, these facilities are comparable, or serve  xsmaller areas than other stations in the same service in the television metro market. Jacor also  xinotes that several other media owners serve the Tampa metro market. According to the applicant,  X - xMedia General owns both WFLATV and the Tampa Tribune; Clear Channel Radio Licenses,  xInc. owns two AM and two FM radio stations; Cox Broadcasting owns one AM and two FM;  xPaxson Broadcasting of Tampa owns three AM and one FM; and, Gannett Florida Broadcasting and Infinity Broadcasting Corporation each own one AM and one FM.  xj 8. Similarly, regarding the technical facilities in Cincinnati, the applicant maintains that these  xfacilities are comparable to others in the market. Specifically, Jacor notes that WKRCTV  xMoperates on Channel 12 at 316 kW ERP from a height of 305 meters HAAT. Two other VHF  xstations are licensed in the Cincinnati television metro market. WLW(AM), a Class IA clear  xchannel station, operates at a power level of 50 kW. In addition to WLW(AM), there is one  xkother Class I clear channel licensed in Cincinnati. WCKY(AM) is one of three Class III AM"%',-(-(ZZ%"  xstations licensed to the metro market. It operates at a power level of 5 kW during the day and  x1 kW at night. According to the applicant, four more powerful secondary clear channel Class  xkII AM stations are licensed to this market. Also, one Class IV AM station is licensed in the  xOCincinnati metro market. With respect to the FM stations, WEBN(FM), WOFX(FM),  xWKRQ(FM) and WWNKFM are all Class B stations. WEBN(FM) operates on 102.7 MHz with  xa maximum ERP of 16.5 kW from a height of 267 meters HAAT, WOFX(FM) operates on 92.5  xMHz with a maximum ERP of 16 kW from a height of 277 meters HAAT, WKRQ(FM) operates  xon 101.9 with a maximum ERP of 16 kW from a height of 267 meters HAAT, and WWNKFM  x]operates on 94.1 MHz with a maximum ERP of 32 kW from a height of 183 meters HAAT.  X1- xyAlso licensed in the television metro market are four other commercial Class B FM stations,J1m yO -ԍ One of the four stations is WKRQ.J as  xwell as nine other commercial FM stations of lower classes. Additionally, Jacor notes that there  xare three noncommercial Class B FM stations, four noncommercial Class A FM stations, and one  xnoncommercial Class C3 FM station licensed in the Cincinnati television metro market. Further,  x/Jacor states that several other media owners serve the Cincinnati market, including Scripps  X - xHoward which owns WCPOTV and the Cincinnati Post, Gannett Co. which owns WLWT(TV)  X - xand the Cincinnati Enquirer, Chancellor Broadcasting Corp. and Richard L. Plessinger which each  x.own an AM and two FM radio stations, and Radio Station WPFB, Inc. and Vernon R. Baldwin Inc., which each own one AM and one FM station.  x 9. Third, according to their waiver requests, other than the stations involved in this case,  xJacor has no attributable interest in other media outlets in the Cincinnati and Tampa metro areas.  xJacor concedes that the fourth criterion, concerning financial difficulties involving the stations,  xdoes not apply to any of the Tampa or the Cincinnati stations, with the possible exception of  xWTBT(FM), New Port Richey, Florida which experienced a pretax operating loss of $400,775  xin 1995. The applicant notes, however, that the Commission has previously indicated that "[n]ot  X- xKall of the factors mentioned will be relevant in every case." See Second Report and Order Recon.,  X- x4 FCC Rcd at 6491; see also Great American Television and Radio Co., 4 FCC Rcd 6347, 6349 (1989).  x   10. Finally, the fifth waiver factor considers the effects of the proposed combination on  x diversity and competition in the relevant markets. Jacor urges that, given the nature of the  xCincinnati and Tampa markets, grant of this waiver would not adversely affect either competition  xor diversity. The applicant notes that the Cincinnati market is the 29th largest market and,  xincluding WKRCTV, has nine commercial and noncommercial television stations, licensed to  xeight separate owners. Also, according to Jacor's August 8, 1996 amendment, including the  x0Citicasters and Jacor stations in the market, there are 10 AM and 24 FM commercial and  xnoncommercial radio stations licensed to the Cincinnati television metro market, which will be  xlicensed to 24 separate owners after consummation of the proposed transaction. Consequently,  xafter this transaction, there will be a total of 31 separate broadcast voices in the Cincinnati  x[market. There are also nine daily and 59 weekly newspapers, 58.9% cable penetration, and two  xMMultipoint Multichannel Distribution Service (MMDS) operators. Regarding the economic"p$X,-(-(ZZF#"  xsituation in Cincinnati, according to Jacor, WKRCTV garners a 21.5% share of the television  xadvertising market. After grant of the requested waivers, Jacor represents that the radio stations  X- xwill garner 39% of the radio advertising market,v m yOK-ԍ This number excludes the 6% radio share Jacor claims is received by WKRQ(FM).v and the radiotelevision station combination  X-will garner 29% Xm yO-ԍ This number excludes the 2% radiotelevision combined share Jacor claims is received by WKRQ(FM). of the combined televisionradio advertising market.  x  11. Jacor states that the Tampa market, the 15th largest in the country, has 14 commercial  x<and noncommercial television stations, including Citicaster's WTSP(TV), operated by 14 different  xowners. Including the Citicasters and Jacor stations, there are 25 AM and 19 FM radio stations  xlicensed in the Tampa television metro market which, after consummation of this transaction, will  x\be licensed to 32 separate owners. Thus, there will be a total of 45 separate commercial and  xknoncommercial broadcast voices in the Tampa metro market. Additionally, the market has 7  xdaily and 13 weekly newspapers, 68.8% cable penetration, and four MMDS operators. Both  xmarkets, states Jacor, already do or soon will receive Direct Broadcast Satellite (DBS), Digital  xAudio Radio Service (DARS) and Local Multichannel Distribution Services (LMDS) services;  x/in both markets direct mail advertisers compete for advertising dollars; and in both markets  xincreasing use of the Internet will soon revolutionize information sources and competition. With  xrespect to the economic situation in Tampa, Jacor states that WTSP(TV) currently garners a 20%  xadvertising share of the television market. After grant of the requested waivers, Jacor represents  x{that the radio combinations will garner 25% of the radio advertising share, and the radio xMtelevision station combination will garner 21% of the combined televisionradio advertising  xmarket. Jacor states that "following consummation of the proposed transaction, each television  xand radio station under Jacor control will continue to compete with all stations . . . in the market,  xincluding other Jacor stations, for audience share and advertising dollars." The applicant  xconcludes its requests by stating that the proposed combinations will enable it to compete in these markets and will result in substantial cost efficiencies which will benefit the public.  X- x\  12. Discussion. We turn first to Jacor's compliance with our local radio ownership rules.  xyJacor has submitted data as to the aggregate number of radio stations in the various markets in  xLwhich Jacor will control more than one station in the same service and has shown that, in each  xcase, its postmerger ownership structure complies with the numerical ownership restrictions  x[adopted in the Telecommunications Act of 1996 and incorporated in our rules. In addition, the  x=Department of Justice has entered into an agreement with Jacor and Citicasters which requires  xJacor to divest its prospective interest in WKRQ(FM), Cincinnati, but has otherwise determined  X - xnot to challenge Jacor's proposed merger with Citicasters on antitrust grounds. The required  x0divestiture of WKRQ(FM) will reduce Jacor's postmerger radio advertising share in the  xCincinnati market from approximately 56.9% to 49% and thus limits the increase in Jacor's  X -market share from the Citicasters merger to about 4.7%.  x  13. Further, we note that Jacor is obliged to severely limit its use of joint sales agreements"" ,-(-(ZZ!"  x(JSAs) as a means of controlling additional advertising inventory in the Cincinnati broadcast  X- xmarket. First, on May 3, 1995, the Mass Media Bureau granted applications assigning  xWPPT(FM) (now WOFX(FM)), Cincinnati, Ohio to Jacor and WSAI(AM), Cincinnati, Ohio,  X- xto CR Acquisition, Inc., an entity controlled by Charles E. Reynolds (Reynolds). m yO4- xԍ Letter from Roy J. Stewart, Chief, Mass Media Bureau to Jason L. Shrinsky, Esq. (May 2, 1995) (Re: File Nos. BALH-940323GE and BAL-940330EA). In connection  xwith these assignments, the Bureau relied upon representations by both parties that they would  x@limit the sale of advertising time by Jacor or any Jacor affiliate on Reynolds' stations.  xSpecifically, Jacor and Reynolds represented that neither Jacor nor any Jacor affiliate would sell  xany advertising inventory on stations WSAI(AM) or WAOZ(AM), or more than 30% of the  xavailable advertising inventory on WAQZ(FM), in combination with a station affiliated with  xiJacor. Our action today is premised on the assumption that Jacor has and will continue to comply  x with these limitations on its joint sales activity. Second, the settlement agreement with the  xDepartment of Justice expressly requires Jacor to notify the Department prior to entering into  x"any agreement or understanding that would allow Jacor to market or sell advertising time for  X - xany NonJacor Station" in Cincinnati. z m yO- x/ԍ DOJ Settlement Agreement, Section IX.A.(2). This provision does not apply under certain limited  xcircumstances, including cases where Jacor's right to sell another station's advertising time is "consideration for the  xsale by Jacor of proprietary news, weather or traffic programming to any such NonJacor Radio Station and would  xpermit Jacor to sell no more than 5 percent of that station' s advertising time for any day and no more than 20  xpercent of that station's advertising time for any hour segment, or . . . is consideration for Jacor's granting to such  xstation rebroadcast rights for a sports event to which Jacor has exclusive broadcast rights, and would permit Jacor  {OV-to sell no more than 15 percent of such station's advertising time for any day." Id.ĭ Finally, we will impose in this order a condition that,  x\with certain exceptions, prior to entering or implementing any JSA in the Cincinnati market,  xJacor must seek and obtain the Commission's consent. The effect of this condition will be to  xKrequire notice and consent by the Commission to any JSA activity by Jacor that would, under the  xterms of the settlement agreement with the Department of Justice, require notice to the  Xb-Department.U bb m {Ou-ԍ See n.27, infra and n.12, supra.U  x  14. In reaching our decision in this case, we also take account of a related financing restraint  ximposed in the Department of Justice's settlement agreement with Jacor. Specifically, the  xagreement obliges Jacor to notify the Department prior to acquiring "any assets of or any  xinterest, including any financial, security, loan, equity or management interest in, any NonJacor  X-Radio Station or any person affiliated with any such Station. . . ."a m yO}"-ԍ DOJ Settlement Agreement, as amended, Section IX.A.(1).a  X- x 15. We conclude that, under the circumstances of this case and based upon the foregoing  xconsiderations, the radio combinations which Jacor will control after consummation of the  xproposed transaction do not pose a bar to our grant of the subject applications. We note,  xhowever, that the constraints on Jacor's conduct imposed in this order and in the Department of"e ,-(-(ZZ" Justice settlement agreement are critical to this determination.  X- x 16. Our reliance on the determinations of the Department of Justice to inform our decision  xhere should not be taken to suggest that either our jurisdiction or our obligation with respect to  xcompetition in broadcast markets is coincident with that of the Department. Rather, our interests  xin this area are complementary. And, in the circumstances of this case, we conclude that the  xDepartment's antitrust determination is both relevant and highly probative evidence that Jacor's  xacquisition of Citicasters' stations, as modified by the Department's settlement agreement, will not pose unacceptable risks to competition in the relevant broadcast markets.  X - xM 17. As to Jacor's request for waiver of the onetoamarket rule in Tampa and Cincinnati,  xwe note, at the outset, that this is the first time the Commission has considered onetoamarket  xwaiver requests where the radio combinations involved were governed by the ownership standards  X - xadopted in the Telecommunications Act of 1996. See Implementation of Sections 202(a) and  X - x202(b)(1) of the Telecommunications Act of 1996, FCC 9690, released March 8, 1996. Under  x.these standards, broadcasters may now own as many as eight stations in a market, depending  X- xupon the total number of commercial stations in the market.  Id. Issues related to radiotelevision  xcombinations remain in the pending rulemaking proceeding concerning broadcast ownership,  xhowever. For this reason, we do not believe that an unconditional grant of Jacor's permanent  xwaiver requests is appropriate. We conclude that a temporary waiver of the onetoamarket rule  xpending our resolution of the onetoamarket issues raised in the broadcast ownership rulemaking  xproceeding is justified and will not, given its limited duration, unduly affect competition and diversity in the relevant markets.  x 18. Our view that a temporary waiver is warranted is based in part upon our analysis of  X- x]Jacor's fivefactor showing in support of its permanent waiver request.m yO@- xhԍ We express no view on the adequacy of Jacor's showing to support a permanent waiver of the onetoamarket rule. In the past, the  x[Commission has held that significant cost savings and economic efficiencies, the first criterion  xLwe examine in our casebycase analysis, are "precisely the type of public interest benefit from  xcommon station ownership which we envision as warranting a waiver of the one-to-a-market rule  Xk- x. . . ." Great American Television and Radio Co., 4 FCC Rcd at 6349. Jacor has demonstrated  xthat joint operation of the Cincinnati and Tampa stations will create efficiencies resulting in cost  x\savings and the potential for enhanced programming and service benefits. Specifically, the  xapplicant has shown that combined operation of the Cincinnati and Tampa stations will result in  xja projected cost savings of at least $874,000 and $1.47 million annually, respectively, with most  xof these savings resulting from the consolidation of station functions and from a reduction in  xstaff. Additionally, Jacor projects savings of over $2 million resulting from the consolidation of  xthe home offices of Jacor and Citicasters. The applicant states these cost savings will translate  xinto public service and programming benefits in the form of improved news coverage and  xenhanced community affairs programming by the stations involved in the waiver requests. Jacor  xnotes that benefits such as improved news and weather coverage which resulted from joint control"# ,-(-(ZZe""  X- xby Citicasters of WKRCTV, WKRQ(FM) and WWNKFM in Cincinnati, see Secret  X- xCommunications Limited Partnership, 10 FCC Rcd 6874, 6879 (1995), and WTSP(TV),  X- xWXTB(FM) and WTBT(FM) in the Tampa area, see Alta Gulf FM, Inc.,10 FCC Rcd 7750, 7750  x(1995), will now also benefit the Jacor stations. Additionally, Jacor will use the cost savings  xresulting from these efficiencies to air an additional onehalf hour of news and informational  xprogramming between 6:00 and 8:30 am on Sunday mornings on WTSP(TV), St. Petersburg and  xjonehalf hour of public interest programming between 6:00 and 6:30 a.m. on Saturday mornings on WKRCTV, Cincinnati.  X7- x 19. Regarding the second factor in our analysis, the types of facilities involved in the waiver  X - xrequest, in developing our casebycase test in the Second Report and Order we stated that "we  xKwill consider such factors as whether the proposed radioTV combination involves a UHF or VHF  xTV station or an AM or FM radio station, as well as the size or the class of the stations involved.  x4 FCC Rcd at 1753. Both the Tampa and Cincinnati television stations involved in the waiver  xjrequests are maximum facility VHF stations. With respect to the radio stations, in Tampa Jacor  X - xMwould own one maximum power Class BE& m {O(- xԍ In 1991, the Commission reclassified AM stations from Class I, II, III or IV to Class A, B, or Cs. Review  {O- xxof the Technical Assignment Criteria for the AM Broadcast Service in MM Docket No. 87-267, 6 FCC Rcd 6273,  {O- xx627982 (1991); see also 47 C.F.R. 73.21. We will therefore refer to the AM stations involved in these waiver requests using their current, letter classifications, rather than the Roman numeral classifications used by the applicant. E AM station (WFLA(AM)), three maximum power  xClass C FM stations (WXTB(FM), WDUV(FM) and WFLZ(FM)), the most powerful class of FM  xstations, and one maximum power Class A FM station (WTBT(FM)), the least powerful class of  Xj- xcommercial FM stations."jm yO- xiԍ Citicasters applied for Commission consent to slightly modify the facilities of WTBT(FM) in 1994. BPH {O- x940428ID. On July 12, 1996, it submitted an amendment to that application requesting, inter alia, reclassification  xof this station as a Class C1 station, and permission to increase power from 6 kW to 46 kW. That application remains pending. In Cincinnati, Jacor would own one Class A clear channel AM station  xj(WLW(AM)). Class A clear channel AM stations are the most powerful class of AM stations,  xand generally have service areas beyond those of any other AM or FM radio facility. For  x[example, the signal of WLW(AM) will reach a radius of approximately 250 miles during the day  xand approximately 700 miles at night. Additionally, in the Cincinnati market Jacor would own  xa maximum power Class B AM station (WCKY(AM)), as well as three maximum facility Class  xzB FM stations (WEBN(FM), WOFX(FM), and WWNKFM), the most powerful class of FM  xstations licensed in Zone I, the geographic designation that includes Cincinnati, Ohio, as well as a large portion of the midwestern and northeastern United States. 47 C.F.R. 73.205.  x 20. With respect to the third factor, Jacor affirms that it does not own any other media  x/outlets in either the Cincinnati or Tampa markets other than those involved in these waiver  x=requests. Fourth, regarding the economic status of the stations involved in the combinations,  xexcept for WTBT(FM), New Port Richey, Florida, which experienced a pretax operating loss  xof $400,775 in 1995, none of the stations involved in the waiver requests are experiencing  x.financial difficulties. As Jacor has noted, "[n]ot all of the factors mentioned will be relevant in" ,-(-(ZZ="  X- xZevery case." See Second Report and Order Recon., 4 FCC Rcd at 6491. Accordingly, the absence  X- xof financial difficulties has not precluded waiver of the onetoamarket rule. See, e.g., Alta Gulf  X- x FM, Inc.,  10 FCC Rcd 7750, 7751 (1995); Great American Television and Radio Co., 4 FCC Rcd at 6349.  xM 21. Finally, the last factor relates to the level of diversity and competition in the relevant  X|- xmarket.6\|m {O-Ѝ The relevant market for television is the DMA, see Media Communications Partners, L.P., 10 FCC Rcd  {O-8116, 811617 n.13 (1995) and for radio, the television metro market.  See Second Report and Order, 4 FCC Rcd at 1760, n.101. 6 Indicia of the level of diversity include the number of broadcast outlets, the number  xlof separately-owned and operated "voices" in the market, and the presence of cable and  xnon-broadcast media. With respect to the level of diversity in the affected markets, the  xTampa-St. Petersburg-Sarasota DMA is ranked 15th in the country and, according to our  xindependent analysis, the market has 58 broadcast voices, consisting of 25 AM and 19 FM radio  xstations (including seven noncommercial stations), and 14 television stations (including two  xnoncommercial stations), 45 of which are separately owned after consummation of the proposed  xztransaction. The Cincinnati market is the 29th largest market, and has four other commercial  xtelevision stations in addition to WKRCTV, and four noncommercial stations, licensed to eight  xseparate owners. Also licensed to the Cincinnati television metro market are 10 AM and 24 FM  xradio stations (including eight noncommercial stations), which will be licensed to 24 separate  xMradio owners after consummation of the proposed transaction. Consequently, our analysis  xconfirms that after this transaction a total of 31 separate broadcast voices, including both  xcommercial and noncommercial stations, will be licensed to the Cincinnati market. Additionally,  X:- xNboth markets have substantial cable penetration rates,t:m yO-ԍ In its showing Jacor did not indicate cable subscribership for these areas.t and numerous daily and weekly newspapers serve both markets, as well as MMDS.  xz 22. With respect to economic concentration and competition in the affected markets, our  xindependent economic analysis indicates that Jacor will have a substantial share of the radio and  x=television advertising revenue in both of these markets. In the Cincinnati market, Jacor's radio  xystations currently garner a 44.33% share of the radio advertising revenue. With the addition of  X- xthe Citicasters station, Jacor would have a 49.01% share of the radio advertising revenue.d|m yO-ԍ This figure excludes the 7.88% share we assign to WKRQ(FM).d This  xincludes the 23.4% share received by clear channel WLW(AM) and a 10.96% share received by  xWEBN(FM), the first and second highest advertising shares in the radio market. WKRCTV  XT- xigarners 21.54% of the television advertising revenue.)  T m yO$- xԍ These numbers differ from those presented by Jacor. Both Jacor and the staff used BIA Publications, Inc.,  x.MasterAccess Radio Analyzer database to ascertain advertising billings for the Cincinnati market. Using the  xinformation from the database, the staff calculated the radio advertising share by dividing the estimated 1995 revenue  xfor each station by the estimated 1995 gross market revenue for the Cincinnati and TampaSt. PetersburgClearwater  xArbitron radio markets, as defined by the database. The BIA Publications, Inc., MasterAccess Radio Analyzer"1',-(-(h'"  xKdatabase includes in its calculation of estimated 1995 gross market revenue the estimated media billings for radio  x stations licensed to communities in the Cincinnati Arbitron market, which is $81,200,000, and those in the TampaSt.  xYPetersburgClearwater Arbitron market, which is $83,400,000. While Jacor used the database to obtain the relevant  xadvertising billing information for each station, rather than use the database to calculate advertising revenue based  {O- xon stations licensed to communities in Cincinnati, the applicant used the billing information to do its own advertising  {Oz- xshare calculations of gross market revenue based on billings for all radio stations with ratings in the Cincinnati  xArbitron market, which is $103,200,000, and in the TampaSt. PetersburgClearwater market, which is $86,850,000.  xIn discussing the economic issues related to these waiver requests, we will use the estimated 1995 gross market  {O- xrevenue figures for radio stations licensed to communities in the Cincinnati Arbitron radio market. As we have stated  xin similar contexts in the past, we believe that relying on data sources regularly used in the radio industry is a valid  {Of - xmethod of gathering such market information. See, e.g., Capital Cities/ABC, Inc., 11 FCC Rcd 5841, 5872 (1996)  xJ(using stations licensed to communities in Arbitron's Los Angeles television market to ascertain share of advertising  {O - xrevenue received by KCALTV); see also Revision of Radio Rules and Policies in MM Docket No. 91140, 7 FCC Rcd 2755 (1992).) Together the television and radio stations"T ,-(-(ZZ"  xMreceive a combined television and radio advertising share of 32.03%. In Tampa, Jacor radio  xstations presently receive 15.94% of the radio advertising revenue. With the addition of the  xCiticasters' stations, Jacor would garner 26.13% of the radio advertising market. This percentage  xincludes WXTB(FM), which garners 8.99% of the radio advertising share, the third highest in  xthat market, and WFLA(AM) and WFLZFM, both of which garner a 6.89% radio advertising  xMshare, the sixth highest share in the TampaSt. PetersburgClearwater market. In the Tampa  xmarket Jacor will therefore have a 21.26% combined advertising share for radio and television.  XH- x 23. We conclude, based on the record, that for purposes of granting a temporary waiver, the  xkdetermination by the Department of Justice not to challenge the JacorCiticasters merger on  X - x-antitrust grounds, m yOU- xԍ As we have noted, this determination assumes, as we do, that Jacor will comply with the terms of its agreement with the Department of Justice to divest its interest in WKRQ(FM). the conditions we impose in this order with respect to JSAs in the Cincinnati  xzmarket, and Jacor's representation that it will maintain distinct, competitive sales staffs at its  X - xcommonly owned stations in Cincinnati and Tampa, m yO- xԍ Specifically, Jacor has stated that after consummation of the instant transaction it intends to continue operating  xeach of its Cincinnati stations involved in the waiver requests with distinct sales staffs and that these stations "will  x;continue to compete with all other broadcast stations . . . in the market, including other Jacor stations, for audience  xshare and advertising dollar." File Nos. BTC, BTCH, BTCCT960222IA through 960222IV, Ex. C (Amendment  {O-dated March 22, 1996 at 5). Jacor made similar representations with respect to its Tampa stations. See id. at 1. X` hp x (#%'0*,.8135@8:associated with succeeding to the place of Citicasters, we will grant Citicasters leave to amend its renewal  xapplications for these stations to substitute Jacor as the applicant. This procedure is consistent with the Commission's  {O- xJpolicy, recently reiterated in Stockholders of CBS Inc., that it will defer transfer applications in these circumstances  x,"only where issues of basic qualifications remained unresolved by the Commission." 11 FCC Rcd at 374750 (citing  {O-Pinelands, Inc., 7 FCC Rcd 6058, 6061 n.11 (1992)).  X- xL 25. Accordingly, IT IS ORDERED that the request for waiver of the Commission's onetoa xmarket rule, Section 73.3555(c), to permit common ownership of stations WTSP(TV) St.  x.Petersburg, and WFLA(AM) Tampa, WFLZFM Tampa, WDUV(FM) Bradenton, WXTB(FM)  xClearwater, and WTBT(FM) New Port Richey, in the TampaSt. PetersburgSarasota, Florida  xmarket, and of stations WKRCTV, WLW(AM), WCKY(AM), WEBN(FM), WOFX(FM), and  x]WWNKFM, in the Cincinnati, Ohio market, IS GRANTED subject to the outcome in the  X - xpending broadcast ownership rulemaking, (Further Notice of Proposed Rulemaking in MM  xDocket Nos. 91221 and 878), concerning these issues. Should divestiture be required as a  xresult of that proceeding, Jacor Communications, Inc. is directed to file an application for  xZCommission consent to sell the necessary stations within six months from the release of an Order." ,-(-(ZZ5"  x 26. IT IS FURTHER ORDERED that the request for a temporary waiver of the onetoa xmarket rule to permit common ownership of station WKRQ(FM), and stations WKRCTV, and  xWLW(AM), WCKY(AM), WEBN(FM), WOFX(FM), WKRQ(FM), WWNKFM in the  x Cincinnati market, IS GRANTED, but within six months of the consummation of the instant  xtransaction, Jacor Communications, Inc. is directed to file an application for Commission consent to assign the license of WKRQ(FM).  x 27. IT IS FURTHER ORDERED that the applications for consent to the transfer of control  xjof the Citicasters broadcast stations, BTC, BTCH, BTCCT 960222IA through 960222IV to Jacor  xCommunications, Inc., ARE GRANTED upon the condition that prior to entering or  ximplementing any agreement or understanding that would allow Jacor Communication, Inc. to  xmarket or sell advertising time for a NonJacor Radio station in the Cincinnati market, Jacor  X -Communications, Inc. seek and obtain the Commission's consent to such an arrangement. m  yO- xԍ This requirement that Jacor seek and obtain Commission consent excludes cases where Jacor's right to sell  xanother station's advertising time is either (1) consideration for the sale by Jacor of proprietary news, weather or  xtraffic programming to any NonJacor Radio Station and would permit Jacor to sell no more than 5 percent of that  xstation's advertising time for any day and no more than 20 percent of that station's advertising time for any hour  xsegment, or (2) consideration for Jacor's granting to a NonJacor station rebroadcast rights for a sports event to which  x.Jacor has exclusive broadcast rights and would permit Jacor to sell no more than 15 percent of such station's  xiadvertising time for any day. These exceptions are intended to exactly parallel those provided in the settlement  xagreement between the Department of Justice and Jacor concerning notice to the Department should Jacor seek to  {OV- x[sell the advertising time of a NonJacor radio station in Cincinnati. See DOJ Settlement Agreement, Section IX.A.(2).  x` `  hh@FEDERAL COMMUNICATIONS COMMISSION x` `  hh@William F. Caton x` `  hh@Acting Secretary  3!+J "* ,-(-(ZZt"  Y- 3!+J #XSi  PQ=XP#x` `  hh@hpp  September 17, 1996  Y-  Y-oSEPARATE STATEMENT KiOF kCOMMISSIONER SUSAN NESS  Y_-T T  Y1-TPRE: Shareholders of Citicasters, Inc. and Jacor Communications, Inc.  W -  Y -It is with some misgiving that I vote today to approve the transfer of control of Citicasters Co. to Jacor Communications. The transaction would increase Jacor's concentration in the radio advertising market and add a VHF television station to the lineup. Because of Jacor's dominant position in the Cincinnati market, the Department of Justice  Y-chose to review this transaction for compliance with the antitrust laws. In a settlement with the Department of Justice, Jacor is required to divest WKRQ(FM) within six months, at which time it is expected that Jacor's share of the Cincinnati radio advertising market will drop to just below 50 percent. To my knowledge, no other group owner has acquired such a high level of concentration in a radio market of this size or larger. Such market power is of concern for two reasons. First, there is a point at which wouldbe  Y-competitors shy away from a market due to overconcentration. Secondly, control or influence over so many strong broadcast facilities can lead to market distortions and a  Y-diminution of independent voices, potentially undermining diversity of programming. Big is not necessarily bad. However, the public is not well served if market power is coupled with anticompetitive behavior. Thus, I am troubled by Jacor's efforts to secure even greater market power by agreeing to finance a competitor's purchase of a nonJacor station in Cincinnati. Jacor entered into this transaction while its settlement with the Department of Justice was pending, apparently without informing the Department. In the proposed consent decree filed with the United States District Court for the Southern District of Ohio on August 5, 1996, Jacor had expressly agreed, among other things, to provide advance notification to the Department of Justice before acquiring any assets of or equity in any nonJacor station in the Cincinnati market. Jacor has now advised the Justice Department that it will no longer finance that acquisition and has agreed to modifications to the proposed consent decree. Jacor also has nonownership relationships with three other Cincinnati radio stations controlled by Charles E. Reynolds. In approving a prior transaction, the Commission accepted representations by Jacor that limit the joint sales of advertising time on those"%',-(-(ZZP(" facilities. Those restrictions will continue to apply.  3!+J  The FCC order today requires Jacor to seek prior Commission approval of any agreements or understandings that would allow Jacor to market or sell advertising time for any nonJacor station in Cincinnati, with certain limited exceptions. Under these circumstances, I approve this transaction.  3!+J "_,-(-(ZZ"  \- 3!+J x` `  hh@hpp#Xxjp P7 XP#September 17, 1996  # djp P7 c&P#ѐ ]-T# Xxjp P7 XP# T  ]-STATEMENT OF TP  COMMISSIONER RACHELLE B. CHONG  ]v-T  DISSENTING IN PART TP  \1-  \ -Re:XxShareholders of Citicasters, Inc., File Nos. BTC, BTCH, BTCCT 960222IA through 960222IV(#  \ -   xI respectfully dissent from the Commission's decision today insofar as it imposes a requirement on Jacor Communications, Inc., that it must seek and obtain Commission  \ -approval of any Joint Sales Agreement it may enter into in the Cincinnati market. To my mind, such a condition is unnecessary in light of the substantial oversight of this transaction by the Department of Justice. As we note in this decision, Jacor is specifically required to notify DOJ of any joint marketing agreement in the Cincinnati market. Presumably, if DOJ feels that any such agreement would create anticompetitive effects, it would take appropriate action. I see no reason for the Commission to duplicate these  \-efforts. xIn my view, such overregulation is contrary to the intent of Congress. In enacting the Telecommunications Act of 1996, Congress clearly instructed the FCC to loosen its  \-regulatory grip on radio transactions in markets with a substantial number of radio voices.J \:- xMԍ #Xxjp P7 XP#See Section 202(b) of the Telecommunications Act of 1996, directing the FCC to revise  x>its regulations to provide that a party may own, operate or control up to 8 commercial radio  x>stations in a single market, depending upon the size of the market. See also, Section 202(h)  x!which requires the FCC to review its broadcast ownership rules biennially and repeal or modify any regulation it determines is no longer in the public interest. J Jacor's radio station ownership fully complies with the numerical criteria established by  \-Congress. I see nothing in the circumstances of this case that should compel us to stray from the straightforward review intended by Congress and impose an additional layer of unnecessary regulation. Accordingly, I respectfully dissent from this portion of the item.  3!+J   \ -