WPC 2BJZ Courier3|j >^x6X@`7X@HP LaserJet 5Si rm 314 LPT2HPLAS5SI.PRSx  @\ LX@2/6KF ZD3|j "i~'^09CSS999S]+9+/SSSSSSSSSS//]]]Ixnnxg]xx9?xgxx]xn]gxxxxg9/9MS9ISISI9SS//S/SSSS9?/SSxSSIP!PZ9+ZM999+999999S9S/xIxIxIxIxIlnIgIgIgIgI9/9/9/9/xSxSxSxSxSxSxSxSxSxSxIxSxRxSxSxS]SxIxIxInInInZnIxigIgIgIgIxSxSxSxZxSxZxS9/9S999Su]ZZxSg/gCg9g9g/xSbxSxSxSxSxn9n9n9]?]?]?]ZgFg/gMxSxSxSxSxSxSxxZgIgIgIxSg9xS]?g9xSi+SS88WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""2"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""market. See Second Report and Order, 4 FCC Rcd at 175354. We also note that not all five  X- xof the factors mentioned are necessarily relevant in each case. See Second Report and Order  Xv- xRecon., 4 FCC Rcd at 6491. In support of its request for a onetomarket waiver permitting  x>common ownership of seven radio stations with WFTV(TV), Cox submits a showing which  xaddresses each of the five casebycase factors. At this time, we will consider only those  xportions of Cox's waiver showing that are relevant to its ownership of the three Infinity/Orlando stations.  X -xQ'Waiver Showingă x  X -  x9. Benefits of Joint Operation. Cox asserts that numerous cost savings and operating  x.efficiencies will result from its ownership of WFTV(TV) and the radio stations, and that public  xservice benefits will be generated by that ownership. Cox estimates at least $423,000 in savings  xannually from common ownership of WFTV and all seven radio stations. Common ownership  xof WFTV and the radio stations will account for $187,000 in annual savings, while $236,000 is  xattributable to consolidation of radio station operations. Cox anticipates that it will be able to  xiderive significant operational and cost efficiencies from centralizing the administration and certain  xsales, news and programming functions of the radio stations. In addition, Cox expects to obtain  xdiscounts on purchases ranging from major capital items to small supplies for WFTV and the  xradio stations, as well as group discounts on direct mail and outdoor advertising, promotional  xymerchandise and audience research services. Cox states that WFTV and the radio stations will  x[also be able to share technical expertise and to coordinate tower maintenance and inspections, as well as the use of consultants on issues such as tower load capacities.  X~-  x 10. Cox projects that in the area of programming, common ownership of WFTV and the  xradio stations will permit enhanced news coverage and public affairs programming at reduced  xcosts. For example, WFTV would be in a position to simulcast major events such as town  x1meetings, sporting events and political debates on one or more of the radio stations.  xAdditionally, all stations would be able to share the product of radio and television news  xresources such as stringers, wire services and other news providers. Common ownership of the  xLtelevision and radio stations will also permit enhanced nonbroadcast public service activities,  xaccording to Cox. Such activities include promoting charitable efforts and disseminating  xconsumer information to the wide range of audiences attracted to the radio stations' differing formats. x  X#-  x 11. Cox further asserts that common ownership will enable the stations to engage in joint  x=recruitment of minority and female employees, and that common ownership could facilitate the  xdevelopment of a joint radio/television web site on the Internet. Cox claims that common  xownership would also facilitate improvement of the technical facilities of AM station WHOO  x(presently licensed to Infinity) because of Cox's financial resources and technical expertise. Cox"%' ,-(-(ZZ%"  xreports that the station's facilities are in need of substantial repairs and that WHOO is currently operating at variance from its authorized parameters pursuant to special temporary authority. x  X-  0x 12. Other Media Outlets/Types of Facilities. Cox states that the facilities it proposes to  xown are comparable to many other stations in the Orlando market. VHF television station  xWFTV, an ABC affiliate, is one of 14 television stations (including three noncommercial stations)  Xv- xlicensed to the OrlandoDaytona BeachMelbourne DMA.vxr yO-ԍxConstruction permits are outstanding for two additional commercial television stations. The station operates on Channel 9,  xwith 316 kW authorized power, from an antenna height above average terrain (HAAT) of 1570  xfeet. There are two other network VHF stations in this DMA, and Cox states that parts of the  xmarket receive Grade B service from five other commercial VHF stations. Cox has an LMA  X -with the permittee of WZWY(TV), Orlando, which is an unbuilt facility. See supra note  REECE7 .  X -  mx 13. WHOO is a Class B AM station operating at authorized power of 50 kW. WHTQ  xis a Class C FM station, operating at authorized power of 100 kW from an antenna 487 meters  xzHAAT. WMMO is a Class C2 FM station, operating at authorized power of 38 kW, from an  xantenna 134 meters HAAT. According to Cox, there are a total of 38 AM radio stations with  xjprincipal community contours that overlap those of the radio stations Cox proposes to coown  x<(including the NewCity stations that are the subject of separate applications), and WHOO is only  x\one of 33 Class B AM stations in this market, including two other 50 kW AM stations. Cox  x[asserts that there are a total of 23 FM stations in the same market, including nine other Class C  xstations, four Class C1 stations and three other Class C2 stations. Cox adds that the Orlando  xDMA is highly competitive and diverse, and that it would be competing against other media  xgroup owners, including Paxson Communications, Clear Channel Communications, Press Broadcasting Co., Chancellor Broadcasting Co. and Pulitzer Broadcasting.  X-  x 14. In addition to WFTV, Cox owns a cable system serving Ocala, Florida and has a  x<noncontrolling stock interest in a newspaper serving Daytona Beach. Cox's cable system serves  x[Ocala and portions of Marion County, Florida. Cox states that Ocala is located on the "fringe"  xof the Orlando DMA, outside WFTV's Grade B contour, in compliance with 47 C.F.R. Section  x76.501. According to an engineering map supplied by Cox, Ocala is located approximately 60  xmiles northwest of Orlando. As evidence that Ocala media do not compete directly with Orlando  xmedia, Cox points out that while television station WOGXTV, Ocala, is physically located in  xthe Orlando DMA, Nielsen assigns it to the Gainesville DMA for reporting purposes. Cox  xreports that its Ocala cable system serves less than 5% of all cable subscribers in the Orlando  xDMA. Cox notes further that some of the largest cable group owners are present in the Orlando DMA, including Cablevision Industries, TCI Cablevision and Time Warner.  X!-  x15. Cox owns a 47.5% interest in NewsJournal Corp., which publishes a daily newspaper  X"- x?in Daytona Beach, the Daytona Beach NewsJournal. Cox maintains that this interest in  xinonattributable under the Commission's ownership rules because a majority of the stock of News Xh$- xJournal Corp. is held by a single shareholder. See 47 C.F.R. Section 73.3555 note 2(b). Cox"h$X,-(-(ZZF#"  xalso asserts that this interest was reviewed and approved by the staff as not violating the  X- xCommission's crossinterest policy in connection with Cox's acquisition of WFTV in 1985.xxr yOb-  ԍxFile No. BALCT850712KF, authorization granted August 29, 1985. Cox submitted a showing in 1985  x-which indicated that a majority (52.5%) of the stock of NewsJournal Corp. would be held by a single entity and  xKvoted by one individual. Additionally, Cox provided data to indicate that the Daytona Beach newspaper and the  xOrlando television station did not compete for the same advertising revenue: in 1984, only 2.1% of WFTV's  yO- xadvertising revenue was attributable to Daytona Beach/Volusia County advertisers, while 88.83% of the News yOJ- xJournal's advertising revenue came from Daytona Beach/Volusia County advertisers, and less than 1% of the newspaper's circulation was outside Volusia and Flagler counties. Orlando is in Orange County. Cox  x.states further that because it is only a minority owner of NewsJournal Corp., it has no control  X- xover the Daytona Beach NewsJournal's operations. As evidence that the newspaper does not  X- xcompete directly with Orlando media, Cox cites to Circulation 96, which reports no circulation  X- xfor the Daytona Beach NewsJournal in Orange County, Florida (Orlando), while the Orlando  Xv-Sentinel has a circulation there of 120,245.  XH-  x16. Economic Status. Cox reports that neither WFTV nor the radio stations are in a state  xLof financial distress. Cox notes again, however, that AM station WHOO's facilities are in poor  xcondition and will require extensive repairs so that the station can return to its authorized  xoperations. Cox states that its acquisition of WHOO will permit substantially improved operations.  X -  x17. Competition and Diversity in the Market. Cox asserts that the OrlandoDaytona  x[BeachMelbourne DMA, which is the 22nd largest DMA in the country, is characterized by an  xunusually high degree of diversity. Cox states that the DMA includes 14 television stations  x-(including three noncommercial stations), and that 21 outofmarket television stations (including  xsix noncommercial stations) provide Grade B service to portions of the OrlandoDaytona Beach  xDMA. Additionally, 22 low power television stations are licensed to communities in the DMA.  xThe Orlando Television Metro Market includes 76 radio stations, which Cox discusses in four  xsubmarkets: (1) the Daytona Beach Metro Market, which will have 18 radio stations licensed  xto 16 separate entities; (2) the MelbourneTitusvilleCocoa Metro Market, which will have 23  xradio stations licensed to 19 separate entities; (3) the Orlando Metro Market, which will have 28  xyradio stations licensed to 13 separate entities; and (4) the Lake County Market, which will have  xseven radio stations licensed to seven different entities. Cox notes that there are 55 cable systems  xin the OrlandoDaytona Beach DMA operated by 26 different owners. Cable penetration in the  xDMA is 77%. Additionally, Cox states that there are 14 Multichannel Multipoint Distribution  xServices operated by nine owners in the OrlandoDaytona Beach DMA. Cox asserts that the  x-DMA is served by seven daily newspapers and 17 weekly newspapers, and that major magazines enjoy a significant circulation within the DMA.  X -x56Discussionă x  X-  x18. Radio Ownership Orlando. We turn first to Cox's compliance with our local radio  xownership rules. Cox has submitted the required contour overlap showing which indicates that",-(-(ZZ"  x/the relevant radio market contains 68 stations. Under our rules, in a radio market with 45 or  xmore commercial radio stations, a party may own, operate, or control up to 8 commercial radio  X- xstations, not more than 5 of which are in the same service. See 47 C.F.R. Section  X- x73.3555(a)(1)(i), as amended by Broadcast Radio Ownership, FCC 9690 (released March 8,  X- xk1996).xr yO-  ԍxThis order implemented the new local radio ownership limits adopted by Congress in the  yO-Telecommunications Act of 1996, Pub. L. No. 104104, 110 Stat. 56 (1996). By the instant proposal, Cox proposes to own, operate, or control three commercial  xradio stations, only two of which are in the same service. Accordingly, the proposed transaction  xcomplies with the numerical local radio ownership limits. In addition, staff analysis indicates that  xthe three radio stations combined garner 10.9% of radio advertising revenues in the market. This  xlevel does not raise a concern that Cox will be able to impede radio competition in the Orlando  X1- xradio market. See infra, at paragraph ORLCOMP25, discussion of competition and diversity in the Orlando  X - xmarket following consummation of these proposed transactions. See also S.E. Licensee G.P.,  X - xFCC 96464 (released November 27, 1996); Shareholders of Citicasters, Inc., FCC 96380  X - x(released September 17, 1996). We conclude that, with respect to local radio ownership, nothing  xin the record suggests that Cox's acquisition of WHOO(AM), WMMO(FM) and WHTQ(FM) would be inconsistent with the public interest.  X -x ` `  X-  x19. Television LMA. Before considering Cox's request for a waiver of the onetoa xLmarket rule, we must determine what weight, if any, we should accord Cox's existing LMA with  Xb- xjWZWY(TV) in assessing that request.b xr yO3-  ԍxThere will be no immediate impact on competition or diversity associated with Cox's LMA with permittee station WZWY(TV) because, as stated above, the station has not yet been constructed. Currently, television LMAs are not attributable to the  x.brokering station, nor, taken alone, are they considered a "meaningful" relationship within the  xscope of the crossinterest policy. At present, therefore, we will not accord significance to Cox's  xexisting television LMA in evaluating its ownership waiver request. Our decision here in no way  xprejudges the issues in our ownership and attribution proceedings. We have proposed to attribute  x[television LMAs to the brokering station where, as in Orlando, the stations involved are in the  xsame market and the brokerage arrangement includes more than 15 percent of the brokered  X- xystation's weekly broadcast hours. Further Notice of Proposed Rulemaking in MM Docket Nos.  X- x94150, 9251 and 87154, FCC 96436 (released November 7, 1996) (Attribution Further  X- x=Notice), at para. 27. Further, we have proposed that any LMA which would be attributable for  xduopoly rule purposes under this approach "would also count in applying our other ownership  xrules, including, for example . . . the onetoamarket rule (or radiotelevision crossownership  XN- xKrule)." Id. (footnotes omitted). And, while we have proposed to grandfather those LMAs such  xas the LMA here that were entered into prior to November 5, 1996, the adoption date of the  X - xSecond Further Notice of Proposed Rulemaking in MM Docket Nos. 91221 and 878, FCC 96 x438 (Television Ownership proceeding), (released November 7, 1996), we have also indicated  x|that we would "reserve the right . . . to invalidate an otherwise grandfathered LMA in  xcircumstances that raise particular competition and diversity concerns, such as those that might  X - x0be presented in very small markets." Id. at para. 88. Thus, if we establish final rules for  x=attributing and grandfathering LMAs, we would also assess whether the class of transactions"! x,-(-(ZZ "  xinvolving radio, television and LMA interests such as those involved in this case should be  xpermitted to continue. Because this is a pending issue, we will condition the onetoamarket  xwaiver we grant here on the ultimate result reached in the pending rulemaking proceedings in  x>attribution and television ownership concerning the significance and the grandfathering of  X- xtelevision LMAs. See S.E. Licensee G.P., FCC 96464 (released November 27, 1996), para. 12;  X-REP WWBB G.P., FCC 96463 (released November 27, 1996), para. 11.  X_-  x20. OnetoaMarket Waiver. Cox has demonstrated that common ownership of the  xOrlando stations will create efficiencies resulting in cost savings and the potential for enhanced  x\programming and service benefits. Specifically, Cox has shown that combined operation of  x-WFTV and the seven radio stations it proposes to own (including the four NewCity stations) will  xresult in a projected cost savings of at least $423,000 per year. While a significantly smaller sum  xis attributable to common ownership of WFTV and the three Infinity/Orlando stations and Cox  x[does not specify what that smaller sum is it is reasonable to assume that some portion of the  xprojected total savings will result from combined ownership of WFTV and the three radio  xstations, and that such portion is sufficient to warrant consideration of this factor in connection  xwith Cox's waiver request. Cox states that these cost savings will translate into public service  xand programming benefits in the form of improved newsgathering capabilities of the radio  xstations, as well as more widespread traffic and weather reporting. Cox has shown that common  xownership will enable the stations to engage in joint recruitment of minority and female  xemployees, and that it will facilitate improvement of the technical facilities of AM station WHOO as a result of Cox's financial resources and technical expertise. x  X-  x21. Regarding the second factor in our analysis, the types of facilities involved in the  X- xwaiver request, we stated in the Second Report and Order that "we will consider such factors as  xwhether the proposed radioTV combination involves a UHF or VHF TV station or an AM or  xFM radio station, as well as the size or class of the stations involved." 4 FCC Rcd at 1753.  xTelevision station WFTV (VHF), is an ABC affiliate, competing with 14 other television stations  X|- x(including three noncommercial stations) licensed to the Orlando DMA.|xr yO-ԍxConstruction permits are outstanding for two additional commercial television stations. The station operates  xat 316 kW authorized power and competes against two other network VHF stations in the  x.Orlando DMA. WHTQ is a Class C FM station, authorized to operate at 100 kW and WMMO  xis a Class C2 FM station, authorized to operate at 38 kW. These FM stations are only two of  X - x\27 FM stations in the OrlandoDaytona Beach Radio Market,  Xxr yO)!-  NԍxFor the purposes of establishing that its proposed coowned stations will compete against comparable  xfacilities, Cox has compared its facilities to those in the market defined in accordance with Section 73.3555(a)(3)(ii)  xof the Commission's Rules, the radio contour overlap rule. Most of those facilities are licensed to communities located within the Orlando Television Metro Market. including nine other Class C  xMstations, four Class C1 stations and three other Class C2 stations. WHOO is a Class B AM  xstation operating at authorized power of 50 kW. This AM station is only one of 41 AM stations  x0in the same market, 33 of which are also Class B AM stations, including two 50 kW AM  xKstations. Although the facilities are significant that Cox proposes to own in Orlando, we find that" @,-(-(ZZ"  xjcomparable facilities do exist and that there is little danger that Cox will be able to dominate the  X- xMmarket based on the nature of its facilities. See Stockholders of CBS Inc., 11 FCC Rcd 3733,  x]3772 (1995) (stating that the type and nature of facilities to be commonly owned must be evaluated against the backdrop of the nature of the relevant market).  X-  Ox22. With respect to the third factor, Cox already owns a cable system and has a non x<attributable 47.5% stock interest in a newspaper in the OrlandoDaytona BeachMelbourne DMA  xin addition to the broadcast facilities it is proposing to coown. Cox has shown that its cable  x\system serves less than 5% of all cable subscribers in the DMA, and that this cable system  xcompetes against major cable group owners. Furthermore, this cable system serves Ocala, which  xis located approximately 60 miles northwest of Orlando and approximately 60 miles west of  xLDaytona Beach. Cox has indicated that WFTV's Grade B contour does not overlap the service  X - xarea of its Ocala cable system.  xr yOe -  ԍxSee 47 C.F.R. Section 76.501(a) ("No cable television system (including all parties under common control)  xshall carry the signal of any television broadcast station if such system directly or indirectly owns, operates, controls,  xxor has an interest in a TV broadcast station whose predicted Grade B contour . . . overlaps in whole or in part the service area of such system."). Likewise, Cox's noncognizable minority interest in the Daytona  X - xBeach NewsJournal does not violate any of our crossownership rules when considered with  X - xCox's other proposed ownership interests,k xr yO-ԍxSee 47 C.F.R. Section 73.3555 note 2(b).k nor does application of our crossinterest policy  X - xLprohibit combined ownership of the Daytona Beach NewsJournal and the three Orlando radio  xNstations for a temporary period pending release of an order in our attribution rulemaking  Xy- x/proceeding (which includes a reexamination of the need for the crossinterest policy). See  Xb- xNotice of Proposed Rule Making in MM Docket Nos. 94150, 9251 & 87154, 10 FCC Rcd  XK-3606, 3642 (1995) ("Attribution Notice").  X-  {x23. The crossinterest policy prevents individuals from having "meaningful" interests in  xtwo broadcast stations, or a daily newspaper and a broadcast station, or a television station and  X- xa cable television system, when both outlets serve "substantially the same area." See id. Non xiattributable equity interests, including a minority interest in a corporation having a single majority  X- xshareholder, have been viewed as constituting a "meaningful" interest subject to the policy. Id.  X- x/at 364345. See also Roy M. Speer, FCC 96258 (released June 14, 1996) (limiting exercise of  xSilver King Communications, Inc.'s option to acquire an equity interest in a competing broadcast  xlicensee to onethird (33%) of the competitor's equity where both Silver King and the competitor  Xe- x-owned television stations in the Chicago market). Cox has shown that the Daytona Beach News XN- xJournal is not widely circulated in Orlando, the community of license of WFTV and the three  xyradio stations that Cox proposes to coown. However, one of those stations, WHTQ(FM), has  xa 1 mV/m contour that encompasses Daytona Beach. While it is true that the staff approved  xyCox's 1985 purchase of WFTV, whose Grade A signal encompasses Daytona Beach, our recent"  @,-(-(ZZ="  X- xydecisions to reexamine the crossinterest policy and to make changes in our attribution ruleskxr yOy-  ԍxFor example, under our "Equity or Debt Plus" proposal in the Attribution Further Notice, Cox's interest in  yOA- xthe Daytona Beach NewsJournal would become an attributable interest if the chosen benchmark for attribution of  yO - xsamemarket media properties were 47.5% of equity or lower. The Attribution Further Notice proposes a benchmark  yO- xhof 33%. See Attribution Further Notice at para. 23. Such attribution, in the absence of an applicable grandfathering  xprovision, would result in a violation of the radionewspaper crossownership rule with respect to WHTQ(FM), whose  yOa-1 mV/m contour encompasses Daytona Beach. See 47 C.F.R. Section 73.3555(d).k  xmake it appropriate to refrain from consenting here to this radionewspaper crossownership on  xa permanent basis. Therefore, we believe that the most prudent course would be to condition  xNCox's newspaper and radio ownership interests on compliance with any rules or policies  X-developed in the attribution rulemaking proceeding.A @xr yO -  ԍxShould the attribution proceeding render Cox's newspaperradio interests a violation of the ownership rules,  xKwe note that our pending radionewspaper crossownership waiver policy proceeding may afford Cox a potential  yO% - xavenue of relief for that violation. See Notice of Inquiry in MM Docket No. 96197, FCC 96381 (released October  yO -1, 1996). Nothing here, of course, would preclude Cox from seeking such relief in the future.A x  Xv-  x24. Fourth, regarding the economic status of the stations involved in the proposed  xcombination, none of the stations is experiencing financial difficulties. However, as we have  XH- xpreviously indicated, not all five factors need be present to justify grant of a waiver. See Second  X1- x.Report and Order Recon., 4 FCC Rcd at 6491; Great American Television and Radio Co., 4 FCC  x[Rcd 6347, 6349 (1989). We have also granted a number of onetoamarket waivers where there  X - xwas no finding that any of the stations were in financial distress. See, e.g., Louis C. DeArias,  X - xReceiver, 11 FCC Rcd 3662 (1996); Henry Broadcasting Co., 11 FCC Rcd 1175 (1995); Atlantic  X - x0Morris Broadcasting, Inc., 10 FCC Rcd 9495 (1995); Alta Gulf FM, Inc., 10 FCC Rcd 7750  X -(1995); Secret Communications, Ltd., 10 FCC Rcd 6874 (1995). x  X-  x25. ORLCOMP  Finally, the fifth factor relates to the level of diversity and competition in the relevant  Xy- xmarket.}Xy( xr yOR-  MԍxThe relevant market for television is the DMA. See Media Communications Partners, L.P., 10 FCC Rcd  yO- x;8116, 811617 n.13 (1995). The relevant market for radio is the television metro market. See Second Report and  yO-Order, 4 FCC Rcd at 1760 n.101.} Indicia of the level of diversity include the number of broadcast outlets, the number  xof separatelyowned and operated "voices" in the market, and the presence of cable and non xbroadcast media. The OrlandoDaytona BeachMelbourne DMA is ranked 22nd in the country  x[and, according to our independent analysis, the market will have 67 radio stations including 37  xAM and 30 FM radio stations (Orlando Television Metro Market), and 14 television stations,  xlicensed to 60 independent owners (including NewCity) in the Orlando DMA. Additionally, the DMA has substantial cable penetration, and numerous daily and weekly newspapers.  X-  ?x26. With respect to economic concentration and competition, our independent analysis  x<indicates that Cox's three radio stations will garner a 10.9% share of the radio advertising revenue" H ,-(-(ZZ4"  X- x?in the Orlando market,ZXxr yOy-  MԍxFigures based on data supplied by BIA Publications, Inc. Reported 1995 radio market revenue in Orlando  xis $64.2 million. Revenues attributed to waiverrelated stations total $7.0 million: (1) WHOO $800,000; (2) WHTQ $2.1 million; and (3) WMMO $4.1 million.Z while WFTV garners 28.5% of television advertising revenue.xr yO-  ԍxReported 1995 television market revenue in Orlando is $191.5 million. Revenue attributed to Coxowned WFTV is $54.6 million.  xjTogether, the television and radio stations receive a combined television and radio advertising  X- xshare of 24%.dX@xr yO -  ԍxCombined share of television and radio advertising reflects the percentage of the total market revenues  x(television = $191.5 million and radio = $64.2 million) captured by the three radio stations and television station that Cox proposes to coown in Orlando ($61.6 million).d Given the limited duration of the waiver, we do not believe that these figures  xyare so significant as to raise a concern that diversity and competition in Orlando will be unduly affected for the waiver period. x  Xv-  !x27. We conclude, based on the record, that granting a conditional, temporary waiver of  xthe onetoamarket rule to permit common ownership of Stations WFTV(TV), WHOO(AM),  xWMMO(FM), and WHTQ(FM), Orlando, Florida, will not unduly affect competition or diversity  X1- x!in the Orlando market. See S.E. Licensee G.P., FCC 96464 (released November 27, 1996)  x](granting a conditional, temporary waiver of the onetoamarket rule to Clear Channel in  x-Memphis for a period of six months from issuance of Orders in pending television ownership and  X - x=attribution proceedings); Shareholders of Citicasters, Inc., FCC 96380 (released September 17,  xL1996) (granting temporary waivers of onetoamarket rule to Jacor in Cincinnati and Tampa for  x[a period of six months from issuance of an Order in pending television ownership proceeding).  xyWhile Cox will have substantial ownership interests in the OrlandoDaytona BeachMelbourne  xDMA, it has shown that the market is highly competitive and diverse, and that its stations would  xbe competing against other media group owners, including Paxson Communications, Clear  xChannel Communications, Press Broadcasting Co., Chancellor Broadcasting Co. and Pulitzer  x[Broadcasting. Based on this and other factors, we do not believe that diversity in Orlando will  x[be so adversely affected in the short run as to require denial of Cox's waiver request. As Cox's  xshowing suggests and our own analysis confirms, many more than 30 independent broadcast  xvoices will remain in Orlando after the proposed transactions. And, while Cox's commonly  xowned facilities will be significant in technical terms, comparable competing facilities do exist.  xkMoreover, there are economic efficiencies and program service benefits to be gained by the  xLproposed transactions that support grant of a temporary waiver. Finally, granting a temporary  xwaiver will facilitate our consideration of the request for consent to the transfer of control of  xInfinity to Westinghouse. Accordingly, we grant to Cox a waiver of the onetoamarket rule in  xOrlando during the pendency of and subject to the outcome in our ongoing rulemaking  xproceedings involving television ownership and the attribution of broadcast interests. We also  xKgrant the assignment applications for the three Infinity/Orlando radio stations conditioned on the  xoutcome of our attribution rulemaking. As stated above, we will address Cox Radio's request for  xa permanent waiver of the onetoamarket rule in connection with its proposed ownership of the"  ` ,-(-(ZZ\"  x{four additional radio stations in Orlando/Daytona Beach that it proposes to acquire from  xNewCity, as well as the Press petition addressed to ownership of all seven radio stations, at the time we consider the application to transfer control of NewCity to Cox Radio. x  X-  x28. Radio Ownership Chicago. Finally, we turn to Infinity's compliance with our local  xradio ownership rules. Infinity is the licensee of one AM station and two FM stations in  xChicago: WJJD(AM), WJMKFM and WUSN(FM). Following the proposed likekind exchange  x.of assets with Cox, Infinity will also be the licensee of WCKG(FM), Elmwood Park, Illinois and  xWYSYFM, Aurora, Illinois, with a total of four FM stations and one AM station with  x[overlapping contours in the Chicago area. Infinity has submitted the required contour overlap  xshowing which indicates that the relevant radio market contains at least 17 stations. Under our  X - xrules, a party may own, operate, or control up to 6 commercial radio stations, not more than 4  X - xkof which are in the same service, if the market includes 1529 commercial radio stations. See  X - x47 C.F.R. Section 73.3555(a)(1)(iii), as amended by Broadcast Radio Ownership, FCC 9690  X - x=(released March 8, 1996). xr yO7-  ԍxThis order implemented the new local radio ownership limits adopted by Congress in the  yO-Telecommunications Act of 1996, Pub. L. No. 104104, 110 Stat. 56 (1996). Infinity proposes to own, operate, or control five commercial radio  xzstations, only four of which are in the same service. Accordingly, the proposed transaction  xcomplies with the numerical local radio ownership limits. In addition, staff analysis indicates that  Xy- x<the five radio stations combined garner 17.2% of radio advertising revenues in the market. y xr yOJ-  MԍxFigures based on data supplied by BIA Publications, Inc. Reported 1995 radio market revenue in Chicago  xis $328.3 million. Revenues attributed to stations Infinity will own total $56.4 million: (1) WCKG(FM) $10.5  xmillion; (2) WJJD(AM) $2.5 million; (3) WJMKFM $15 million; (4) WUSN(FM) $23.1 million; and (5) WYSYFM $5.3 million. This  x.level does not raise a concern that Cox will be able to impede radio competition in the Chicago  XK- xradio market. See S.E. Licensee G.P., FCC 96464 (released November 27, 1996); Shareholders  X4- xof Citicasters, Inc., FCC 96380 (released September 17, 1996). We conclude that, with respect  x<to local radio ownership, nothing in the record suggests that Infinity's acquisition of WCKG(FM) and WYSYFM would be inconsistent with the public interest. x  X-  ORDERING CLAUSES ă  X-  x29. Accordingly, IT IS ORDERED, That the Petition to Hold Applications in Abeyance  xfiled by Press Broadcasting Co. on September 19, 1996, when considered as an informal  x.objection, IS HEREBY DENIED to the extent that it relates to the grant of the abovecaptioned  x=assignment applications of three radio stations from Infinity Holdings Corp. of Orlando to Cox  xRadio, Inc., and IS HEREBY DEFERRED to the extent that it relates to the grant of pending  xtransfer of control applications for four radio stations from NewCity Communications, Inc. to Cox Radio, Inc.  X -x` `   X-  "x30. IT IS FURTHER ORDERED, That the request for a waiver of the onetoamarket  xrule, 47 C.F.R. Section 73.3555(c), to permit common ownership of Stations WFTV(TV),",-(-(ZZ"  xlWHOO(AM), WMMO(FM), and WHTQ(FM), Orlando, Florida, IS HEREBY GRANTED,  X- xzsubject to the outcome in the pending television ownership rulemaking proceeding, Second  X- xFurther Notice of Proposed Rulemaking in MM Docket Nos. 91221 & 878, FCC 96438  X- x<(released November 7, 1996), and in the pending broadcast attribution proceeding, Further Notice  X- xof Proposed Rulemaking in MM Docket Nos. 94150, 9251 and 87154, FCC 96436 (released  xNovember 7, 1996). Should divestiture be required as a result of those proceedings, Cox is  xdirected to file an application for Commission consent to sell the necessary station(s) within six months from the release of the final Orders in those proceedings.  X1-  x31. IT IS FURTHER ORDERED, That, having found the applicants fully qualified, 1xr yO -  ԍxIn the pending Westinghouse/Infinity merger, referenced above, issues were raised concerning Infinity's  x-qualifications to be a Commission licensee. With respect to alleged violations of federal law governing indecent  xbroadcasts, the Commission has previously determined that Infinity's apparent misconduct with respect to indecent  yO - xprogramming in the past does not disqualify it as a Commission licensee. KLUV(FM), 10 FCC Rcd 4517, 4519  yO - x(1995); KRTH(FM), 9 FCC Rcd 7112 (1994), recon. denied 10 FCC Rcd 9504 (1995). Additionally, under the terms  xKof an agreement settling enforcement proceedings relating to broadcasts aired by Infinity and its subsidiaries, the  xwCommission agreed to expunge past determinations that resulted in the issuance of Notices of Apparent Liability for  xindecent programming and complaints pending as of September 5, 1995, from Infinity's record for all purposes,  xKincluding any future qualifications issue or future licensing proceeding or future transfer of control or assignment  yO- x-of license or permit. See also Sagittarius Broadcasting Corp., 10 FCC Rcd 12245, 12250 (1995). We also note,  xhowever, that indecency complaints are currently pending against Infinity that are not within the scope of the  xsettlement. Our preliminary review of these complaints indicates that they raise no substantial and material question  xof fact concerning Infinity's qualifications to be a Commission licensee. Our action here, however, is without  x<prejudice to whatever further action, if any, the Commission may deem appropriate with respect to the pending  xindecency complaints. A separate issue regarding Infinity's qualifications raised by Alexander J. Serafyn and the  xYUkrainian Congress Committee of America, Inc., concerns alleged ex parte contacts made by Infinity in connection  xwith the pending Westinghouse/Infinity merger. We have thoroughly reviewed the matter and find that their  xxallegations are unsubstantiated and fail to raise a substantial and material question of fact concerning the ex parte rules. the  x@abovecaptioned applications to assign the licenses of WHOO(AM), WHTQ(FM) &  xyWMMO(FM), Orlando, Florida from Infinity Holdings Corp. of Orlando to Cox Radio, Inc. ARE  X - xGRANTED, subject to the outcome in the pending broadcast attribution proceeding, Further  X - xNotice of Proposed Rulemaking in MM Docket Nos. 94150, 9251 and 87154, FCC 96436  xy(released November 7, 1996). Should divestiture be required as a result of that proceeding, Cox  xis directed to file an application for Commission consent to sell the necessary  X-station(s)/newspaper within six months from the release of the final Order in that proceeding. x` `  Xb-  |x32. IT IS FURTHER ORDERED, That, having found the applicants fully qualified, the  xabovecaptioned application to assign the license of WYSYFM, Aurora, Illinois from Cox Radio,  xInc. to Infinity Holdings Corp. of Orlando IS GRANTED, and the abovecaptioned application  xzto assign the license of WCKG(FM), Elmwood Park, Illinois IS GRANTED without prejudice  xto whatever further action the Commission may deem appropriate with respect to pending"h,-(-(ZZt"  X-indecency complaints concerning material broadcast on WCKG(FM).xr yOy-  ԍxThere are pending indecency complaints against Cox as the licensee of WCKG(FM) involving material  xxbroadcast on August 7, 1996. Our preliminary review of these complaints indicates that they raise no substantial  xand material question of fact concerning Cox's qualifications to be a Commission licensee. Our action here, however,  xis without prejudice to whatever enforcement action the Commission may deem necessary with respect to the pending complaints concerning material aired on WCKG(FM) on August 7, 1996, during the Howard Stern Show. x` ` x` `  hh@FEDERAL COMMUNICATIONS COMMISSION x` `  hh@William F. Caton x` ` hh@Acting Secretary