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A. 1. a.(1)(a) i) a) 1 .1 .1 .1 .1 .1 .1 .1 Technicala1DocumentgDocument Style Style\s0  zN8F I. ׃  2:Ha5TechnicalTechnical Document Style)WD (1) . a6TechnicalTechnical Document Style)D (a) . a2TechnicalTechnical Document Style<6  ?  A.   a3TechnicalTechnical Document Style9Wg  2  1.   2C u7a4TechnicalTechnical Document Style8bv{ 2  a.   a1TechnicalTechnical Document StyleF!<  ?  I.   a7TechnicalTechnical Document Style(@D i) . a8TechnicalTechnical Document Style(D a) . 2&3u !e%&Doc InitInitialize Document Stylez   0*0*0*  I. A. 1. a.(1)(a) i) a) I. 1. A. a.(1)(a) i) a)DocumentgPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:d<d<CCoodCCddCoCddzzzzzzzzzzCCCCozdddddddYYYYY8888dddddddndddddYd2I@ X- X   8\ X-  #XP\  P6Q DXP#Federal Communications Commission    FCC 96495  yxdddy 8 1. 1. 1. a.(1)(a) i) a) 1. 1. i.(1)(a)(i) 1) a)*J Before the x Federal Communications Commission  X-Washington, D.C. 20554 ă  X-X` hp x (#%'0*,.8135@8:merged entity complies with the numerical limitations of the radio local ownership rules; (6)   arguments raised by Spectrum concerning the standard used to evaluate onetoamarket waiver   requests; and (7) arguments raised by Spectrum and Serafyn/UCCA concerning the propriety of   granting the temporary and permanent waivers. Additionally, our consideration of the merger   will take into account divestiture of stations in Boston and Philadelphia that is required pursuant   -to Westinghouse's agreement with the Department of Justice settling a civil antitrust case related  X-to its proposed acquisition of Infinity's radio stations. (DOJ Settlement Agreement).v yO)-  ԍ Under the terms of the DOJ Settlement Agreement, Westinghouse is required to divest WMMR(FM),   Philadelphia, a station currently licensed to its subsidiary, Group W Broadcasting, L.P., and WBOS(FM), Boston,   a station currently controlled by Infinity that Westinghouse would control as a result of the subject merger.   Divestiture of the stations must be completed within six months of the filing of the Final Judgment in the civil   antitrust suit, or within five business days after notice of entry of the Final Judgment, whichever is later. If the   ;stations are not divested within the prescribed time, the Department, at its discretion, may ask the court to appoint   a trustee who shall have the power and authority to locate a purchaser or purchasers and to accomplish the sale of  yO-  the stations. Proposed Final Judgment in United States v. Westinghouse Electric Corporation, Case No. 96CV02563 (D.D.C., filed Nov.12,1996). v  Xb- 3. Westinghouse #XP\  P6Q DXP#is the indirect licensee of, or controls the licensee or permittee of,  XK-  fifteen fullservice television stations,K  X-  -#XP\  P6Q DXP#э #C\  P6QP#Westinghouse is the indirect licensee of: KPIXTV, San Francisco, licensed to Group W Broadcasting, Inc.   (Group W), a subsidiary of Westinghouse; KDKATV, Pittsburgh, WBZTV, Boston, and WJZTV, Baltimore,   licensed to Group W Broadcasting, L.P. (Group W, L.P.), whose sole general partner is Group W; and WCBSTV,   YNew York, KCBSTV, Los Angeles, WBBMTV, Chicago, WWJTV, Detroit, WCCOTV, Minneapolis, WFRVTV,   Green Bay, licensed to CBS Inc., a subsidiary of Westinghouse. In addition, Westinghouse controls the permit for   KUSG(TV), St. George, Utah, as well as the licenses of KYWTV, Philadelphia, WFORTV, Miami, KUTV(TV), Salt Lake City, and KCNCTV, Denver.  three television satellite stations,iXK yO%-  ԍ KCCOTV, Alexandria, Minnesota and KCCWTV, Walker, Minnesota operate as satellite stations of WCCO  TV, Minneapolis. WJMNTV, Escanaba, Minnesota is operated as a satellite station of WFRVTV, Green Bay, Wisconsin. All of these satellite televisions stations are licensed to CBS Inc. i and 39 radio stations.( K9 yO-#C\  P6QP#Ѝ CBS Inc., a whollyowned subsidiary of Westinghouse, is the licensee of: WCBS(AM) and WCBSFM, New York, New York; KNX(AM) and KCBSFM, Los Angeles, California; WBBM(AM) and WBBMFM, Chicago, Illinois; WWJ(AM) and WYST(FM), Detroit, Michigan; WCOO(AM), and WLTE(FM), Minneapolis, Minnesota; WPHT(AM) and WOGLFM, Philadelphia, Pennsylvania; KCBS(AM) and KLLC(FM), San Francisco, California; WODS(FM), Boston, Massachusetts; WARW(FM), Bethesda, Maryland; KTXQFM, Fort Worth, Texas and KRRW(FM), KRLD(AM), Dallas, Texas; KMOX(AM) and KLOU(FM), St. Louis, Missouri. Group W Broadcasting , Inc., also a wholly owned subsidiary of Westinghouse, is the licensee of : KPIX(AM) and KPIXFM, San Francisco; KTWV(FM), Los Angeles, California; WMAQ(AM), WSCR(AM) and WXRT(FM), all Chicago, Illinois. Group W Broadcasting, Inc., is also the sole general partner of Group W. Broadcasting, L.P., licensee of : KFWB(AM), Los Angeles; KIKK(AM), Pasadena, Texas, KIKKFM, KILT(AM) and KILTFM, all Houston, Texas; KDKA(AM), Pittsburgh, Pennsylvania; KYW(AM) and WMMR(FM), Philadelphia, Pennsylvania; WINS(AM) and WNEW(FM), New York, New York; WBZ(AM), Boston, Massachusetts; and WVMV(FM), Detroit, Michigan.  "K ,-(-(ZZ"   As a result of the merger, Westinghouse will acquire Infinity's 43 radio stations. Westinghouse   presently controls radio and television stations in nine of the markets where it proposes to   yacquire additional Infinity radio stations New York, Los Angeles, Chicago, Philadelphia, San   Francisco, Detroit, Boston, Baltimore, and Washington, D.C. In three of these markets Boston,   Baltimore and Washington, D.C Westinghouse controls permanent radiotelevision   combinations and requests conditional onetoamarket waivers in order to acquire and hold   Infinity radio stations for a period ending six months after the Commission issues its decision in   [the television ownership proceeding, in which the Commission is considering issues related to  XH-radiotelevision crossownership.WXH  yO-  ԍ See Review of the Commission's Regulations Governing Television Broadcast Ownership in MM Docket Nos.   ;91221 and 878, FCC 96438 (Nov. 7, 1996)(Second Further Notice of Proposed Rule Making); 10 FCC Rcd 3524 (1995)(Further Notice of Proposed Rule Making).W  X - O4. In the remaining six markets New York, Los Angeles, Chicago, Philadelphia, San   Francisco and Detroit Westinghouse was previously granted temporary twelvemonth onetoa X -  [market waivers for radiotelevision combinations that resulted from its acquisition of CBS. See  X -  Stockholders of CBS Inc., supra. Westinghouse now proposes, in its request for permanent   waivers, to convert the temporary waivers it received in these six markets to permanent waivers.   iThe Infinity/Westinghouse merger would result in Westinghouse's acquisition of additional radio   .stations in each of these six markets. Therefore, Westinghouse requests conditional onetoa  .market waivers in these six markets to permit it to acquire and hold these Infinity stations for a   period ending six months after the Commission issues its decision in the television ownership   proceeding. Westinghouse also seeks temporary sixmonth waivers of the onetoamarket rule   Nto permit it to divest of WMMR(FM), Philadelphia, and WBOS(FM), Boston, in the time permitted under its agreement with DOJ.  X- 5. The transfer of control of Infinity to Westinghouse will also result in the merged   entity's ownership of more than one sameservice radio station in twelve local radio markets.   Westinghouse has submitted showings to demonstrate its compliance with the radio local   <ownership rules' numerical restrictions in ten of these markets and has filed applications to divest",-(-(ZZ"   stations in the two remaining markets Chicago and Dallas/Fort Worth as a means of coming   linto compliance with the local ownership rules. Westinghouse has pledged to come into   compliance with the radio local ownership rules before consummating the merger transaction.   To ensure that it will do so, even if its pending applications to divest stations are not granted or   Zconsummated at the time that Westinghouse and Infinity are prepared to consummate the merger,   Westinghouse and Infinity have filed additional applications to assign stations in these radio   Nmarkets to trusts insulated in accordance with the Commission's rules and policies. The   assignment of these stations to trusts would eliminate the merged entity's attributable interests   kin a sufficient number of stations so that the merged entity would not exceed the radio local ownership rules' numerical limitations.  X - 6. For the reasons that follow, we find that Spectrum and Serafyn/UCCA have each failed   to raise a substantial and material question of fact that would preclude grant of the transfer of   control applications at issue here, and that Spectrum has failed to raise a substantial and material   question of fact that would preclude grant of the permanent waiver requests. We will also   dismiss the motion for stay filed by Serafyn/UCCA. We therefore will grant the permanent  X-  waiver requestsm yO -  ԍ The temporary waivers, which are now being converted to permanent waivers, were initially granted for a   period not to exceed twelve months from the date of consummation of the merger of Westinghouse and CBS. The   ymerger was consummated on November 24, 1995. On October 18, 1996, Westinghouse filed a request for an   extension of the temporary waivers. Westinghouse's request for an extension of the temporary waivers will be dismissed as moot in light of our decision granting the permanent waiver requests.m and will grant the transfer of control of Infinity to Westinghouse and the   ?temporary onetoamarket waivers requested in connection with the transfer of control,   =conditioned on the outcome of the television ownership proceeding. However, as discussed   /below, our actions will be conditioned on the divestiture of certain stations in Chicago and   Dallas/Fort Worth, either by assignment of those stations to new parties or by assignment of   stations in those markets to trusts prior to consummation of the merger. We will approve the   trusts for 6 month periods. The onetoamarket waivers also will be modified by conditions that   jreflect the divestiture of WMMR(FM), in Philadelphia, and WBOS(FM) in Boston, pursuant to Westinghouse's settlement agreement with the Department of Justice.  X-  QUALIFICATIONS ISSUES ă   X|- m7. Petition to Deny. Serafyn/UCCA's petition to deny primarily concerns the October   1994 broadcast of "The Ugly Face of Freedom," an episode of "60 Minutes," which allegedly   ]portrayed Ukrainians in an inaccurate and defamatory manner. Serafyn first raised news   <distortion allegations in connection with the "60 Minutes" broadcast when CBS acquired WGPR X -  TV.^ x yOI$-ԍ The call sign of WGPRTV has been changed to WWJTV.^ See WGPR, Inc., 10 FCC Rcd 8140, 814648 (1995), appeal pending sub nom. Alexander  X -  J. Serafyn v. FCC, No. 951385 (D.C. Cir.). The Commission, in the WGPRTV proceeding,   rejected Serafyn's news distortion allegations as well as his more general allegations that CBS's  X-  !programming is not in the public interest. 10 FCC Rcd at 814648. When Westinghouse" ,-(-(ZZ"   .subsequently sought to acquire CBS, Serafyn and the UCCA filed a joint petition to deny that   also concerned the 1994 "60 Minutes" broadcast. Serafyn and the UCCA alleged that CBS had   made misrepresentations concerning whether it had responded to complaints directed to a CBS   -affiliate that concerned the "60 Minutes" program. However, the Commission resolved the basic   qualifications issues in CBS's favor and denied the petition filed by Serafyn and the UCCA in  X-  the decision approving the merger of CBS and Westinghouse. Stockholders of CBS Inc., 11 FCC  Xv-  Rcd 3733 (1995), appeal pending sub nom. Alexander J. Serafyn v. FCC, No. 951385 (D.C. Cir.)  XH- A8. Nevertheless, Serafyn/UCCA continue to challenge Westinghouse's character   qualifications based on the "60 Minutes" broadcast. In their petition to deny the transfer of   control applications, Serafyn/UCCA point out that appeals of the Commission's decisions in  X -  =WGPR, Inc. and Stockholders of CBS Inc. have been consolidated and are presently pending.   Additionally, Serafyn/UCCA assert that they have asked CBS to either publicly apologize for   Kallegedly false statements made during the broadcast of "The Ugly Face of Freedom," or to prove   the truth of statements made in the broadcast. Furthermore, Serafyn/UCCA argue that   xWestinghouse's failure to vouch for the fairness and accuracy of this program is a sufficient basis on which to revoke all Westinghouse's authorizations to operate radio and television stations.  Xb- @9. The Commission has previously rejected, in WGPR, Inc. and Stockholders of CBS  XK-  Inc., the arguments that Serafyn/UCCA reassert here. Serafyn/UCCA have not presented any   basis for further consideration of these matters in connection with the Infinity/Westinghouse   Kmerger proposed in the transfer of control applications. Neither the Communications Act not any   Commission rule or policy mandates that the Commission maintain the status quo pending a  X-  judicial appeal of its decisions. Evans v. FCC, 113 F.2d 166, 169 (1940); Pinelands, Inc., 7 FCC   Rcd 6058, 6061 (1992). Thus, the pending appeals in the WGPRTV proceeding and the   CBS/Westinghouse merger proceeding do not alter our decisions in those proceedings or preclude   our reliance on our decisions while the appeals are pending. Furthermore, because the   ]Commission fully resolved all qualifications issues in favor of CBS in the WGPRTV and   CBS/Westinghouse merger proceeding, we need not defer action on the transfer of control and   Nthe related waiver requests at issue here. However, our action on the transfer of control   [applications does not prejudice Serafyn/UCCA or any other party with pending appeals of our  X7-  decisions in WGPR, Inc. and Stockholders of CBS Inc. Our grants of the WGPRTV application   and the CBS/Westinghouse merger are subject to Section 402(h) of the Communications Act.   That statutory provision provides that if the court issues a decision reversing the Commission's   order in a proceeding, it will remand the case to the Commission to carry out the court's  X-  =judgment. See 47 U.S.C. 402(h). Therefore, all applicants, including CBS and Westinghouse,   <bear the risk of consummating a transaction that is subject to an appeal and reversal by the Court  X!-  of Appeals. See Improvement Leasing Co., 73 FCC 2d 676, 684 (1979), aff'd sub nom.  X"-  ^Washington Association for Television and Children v. FCC, 665 F.2d 1264 (D.C. Cir.  X#-1981)(applicants on notice that they proceed at their own risk pending judicial review).   XQ%- } 10. Motion for Stay. The Motion for Stay requests that the Commission withhold   consideration of the transfer of control of Infinity to Westinghouse until the United States Court   of Appeals for the D.C. Circuit has decided a Petition for Writ of Mandamus, which was filed"#' ,-(-(ZZ%"   by Serafyn/UCCA with the court on July 3, 1996. Serafyn/UCCA filed the mandamus petition   Afollowing the Commission's action, on June 26, 1996, returning a pleading filed by   Serafyn/UCCA concerning the Infinity/Westinghouse merger. Serafyn/UCCA's pleading stated   their intent to file a petition to deny the Westinghouse/Infinity transaction, which, they argued,   should be considered restricted and subject to prohibitions against ex parte communications under   zthe Commission's rules. However, because the applications to transfer control of Infinity to   Westinghouse had not yet been filed, the Commission found that there was no proceeding that   triggered application of the ex parte rules and therefore returned Serafyn/UCCA's pleading as   premature. Letter from William E. Kennard, General Counsel to Arthur V. Belenduik, Esq. (Jun.  X1-  26, 1996). See 47 C.F.R.  1.1208(c)(1)(ii)(A), 1.1208(c)(1)(i)(B); 47 C.F.R.  73.3584,  X -73.3587. See also, 47 U.S.C.  309(d)(1).  X - O 11. In the mandamus petition filed with the court, Serafyn/UCCA contended that the   Commission had misapplied its own ex parte rules as well as provisions of the Administrative  X -  mProcedure Act, 5 U.S.C.  551 et seq., when it returned their pleading filed against the   Infinity/Westinghouse merger as premature. Serafyn/UCCA also alleged in the mandamus petition   ythat there had been impermissible ex parte contacts in proceedings involving the acquisition of   lbroadcast licenses by Westinghouse and CBS, including the WGPRTV proceeding, the   CBS/Westinghouse merger proceeding, Westinghouse's request for permanent waivers, and the   Westinghouse/Infinity merger, not yet on file. Serafyn/UCCA asked the court to order the   yCommission to comply with the ex parte rules in these proceedings and to require disclosure of any ex parte contacts that had been made by Westinghouse, CBS or Infinity.  X- 0 12. On September 13, 1996, the Court of Appeals for the D.C. Circuit denied the Petition  X-  lfor Writ of Mandamus. In re: Alexander J. Serafyn, No. 961232 (D.C. Cir. Sept. 13, 1996).   <Consequently, Serafyn/UCCA's motion for stay is moot and will be dismissed. However, we note   that the transfer of control of Infinity to Westinghouse has been a restricted proceeding, and   subject to ex parte prohibitions, since formal oppositions were filed by Serafyn/UCCA and   Spectrum on August 26, 1996. The WGPRTV proceeding and the CBS/Westinghouse   kproceeding, which are both the subject of pending court appeals, also remain restricted and  XN-  subject to prohibitions against ex parte communications.0 ` N yO-  ԍ We note that Spectrum filed a petition for reconsideration of the Commission's decision granting the   ,CBS/Westinghouse merger in which it raised for the first time allegations concerning ex parte rule violations. First,   Spectrum contended that Westinghouse or CBS engaged in impermissible ex parte discussions in a meeting with the   xCommission staff during the pendency of the appeal of the WGPRTV proceeding. Second, Spectrum argued that   Jit was impermissible for the Commission in the CBS/Westinghouse proceeding to treat issues pertaining to children's   Ktelevision and political broadcast obligations as nonrestricted but to treat all other aspects of the proceedings as   restricted based on the filing of formal oppositions. Spectrum did not reassert these matters in either its opposition   to Westinghouse's request for permanent waivers or in its petition to deny the transfer of control of Infinity.   hFurthermore, the Commission has dismissed Spectrum's petition for reconsideration on procedural grounds. In doing   so, the Commission concluded that Spectrum presented no new facts that warranted reconsideration and that no other   =public interest reasons existed to cause it to set aside its previous approval of the CBS/Westinghouse merger.  yO_&-Stockholders of CBS Inc., FCC 96478 (Dec. 17, 1996). 0 Serafyn/UCCA do not, in their   petition to deny or motion for stay, offer any evidence that Westinghouse, CBS or Infinity have"7 ,-(-(ZZ]"   Lengaged in impermissible ex parte contacts or have otherwise violated the ex parte rules in any   proceeding, including the permanent waiver request and the transfer of control of Infinity to   ZWestinghouse that are under consideration here. Thus, their allegations are unsubstantiated and  X-fail to raise a substantial and material question of fact concerning the ex parte rules. (  yO4-  zԍ Serafyn/UCCA filed a separate "Motion to Compel Service" in the Westinghouse permanent waiver   ]proceeding, in which they argued that their participation in the earlier WGPRTV proceeding and the   CBS/Westinghouse merger proceeding entitled them to be treated as parties to the permanent waiver proceeding from   March 8, 1996, the date that Westinghouse filed its request for the permanent waivers. Serafyn/UCCA further   asserted that because they were parties from the outset, Westinghouse violated the ex parte rules by failing to serve  yO -  them with pleadings related to the request for the permanent waivers. We have issued a separate Memorandum  yO -  Opinion and Order denying this motion. Westinghouse Electric Corporation, FCC 96365 (Sept. 24, 1996). In   denying the motion, we determined that the permanent waiver proceeding became restricted only when Spectrum   filed its formal opposition to the request for permanent waivers. We also rejected Serafyn/UCCA's claim to party   status because they failed to file an opposition to the request for permanent waivers. However, in light of   JSerafyn/UCCA's interest in being kept informed on matters affecting the permanent waiver proceeding, we directed   ,the Westinghouse and Spectrum to serve Serafyn/UCCA with copies of any future pleadings or documents filed with  yO-respect to the permanent waiver requests. Id.   X- 9 MULTIPLE OWNERSHIP MATTERS ă  X_-  Permanent OnetoaMarket Waiver Requests ă  X1-  13. Background. Because the stations involved are already controlled by Westinghouse   and because their ultimate ownership will affect our analysis of the merger, we will first consider   Westinghouse's request to make permanent the temporary onetoamarket waivers it received in   connection with its acquisition of CBS. The Commission previously granted Westinghouse   temporary onetoamarket waivers in connection with its acquisition of CBS for radiotelevision   >combinations in New York, Los Angeles, Chicago, Philadelphia, San Francisco and Detroit.  X -  Stockholders of CBS Inc., 11 FCC Rcd at 3772. In each of these markets, the   Westinghouse/CBS merger expanded existing radiotelevision combinations. Westinghouse   requests permanent onetoamarket waivers in order to permit the continued ownership of these radiotelevision combinations.  X6- | 14. Westinghouse states that at the time of its merger with CBS, it initially requested   only temporary onetoamarket waivers in order to facilitate expeditious consideration of the   overall merger transaction, but had also explicitly stated its intention to make its ownership of   =the radiotelevision combinations in these six markets permanent in the future. Westinghouse   also states that in each market, a radiotelevision combination had existed prior to the merger,   and that in five of the markets, it would own no more than two AM stations and two FM stations   =in each market, and thus would comply with the Commission's radio local ownership rules that   were in effect at the time that the merger was approved. Westinghouse states that in the sixth   Zmarket, Chicago, its proposed ownership of three AM and two FM stations in the radio television   combination complies with the numerical ownership restrictions that are now in place as a   #consequence of the revisions to the radio local ownership rules mandated by the"P ,-(-(ZZ|"   Telecommunications Act of 1996. Westinghouse contends that permitting it to retain the radio  =television combinations that resulted from its merger with CBS on a permanent basis would be   consistent with Commission precedent and would advance important public interest goals without in any way threatening diversity and competition.  X- 15. When the merger of CBS and Westinghouse was approved, the Commission   determined that Westinghouse's acquisition of CBS stations complied with the local radio   ownership rules in all relevant local radio markets except Chicago and Houston. Westinghouse's   acquisition of CBS stations exceeded the then applicable two AM/two FM numerical limitations,   .and Westinghouse was granted temporary twelvemonth waivers of the radio local ownership   [rules in order to hold a three AM/two FM station combination in Chicago and a two AM/three   FM station combination in Houston. 10 FCC Rcd at 3758. Westinghouse has filed an application   to assign the license of WSCR(AM), Chicago, which is now held by CBS, to Personal  X -  Achievement Radio of Illinois, Inc. See BAL960925EA. Therefore, Westinghouse now proposes   to own no more than two AM stations and two FM stations in any of the markets where it  X -  yrequests permanent onetoamarket waivers.O X  yO -  ԍ Westinghouse's ownership of stations in Houston is not at issue in connection with the permanent onetoa  market waiver requests. Its ownership of radio stations in this market is discussed in the local radio ownership section  yO-infra. O Additionally, its request for permanent waivers   implicates only the onetoamarket rule, and not the radio local ownership rules as amended by   \the Telecommunications Act of 1996. Specifically, in three of these markets, New York, Los   Angeles, and San Francisco, Westinghouse will control a television/two AM/two FM station   Lcombination. In Philadelphia, Westinghouse will control a television/two AM/one FM station  X4-  Lcombination. 4 yO-  ԍ This excludes WMMR(FM). Westinghouse has agreed to divest WMMR(FM), one of its FM stations in Philadelphia, within six months pursuant to the DOJ Settlement Agreement. In Chicago, following divestiture of the AM station, Westinghouse will control   La television/two AM/two FM station combination, and in Detroit, Westinghouse will control a television/one AM/two FM station combination.  X-Waiver Standard   X- 16. Section 73.3555(c) of the Commission's Rules, the onetoamarket rule, generally  X-  .proscribes common ownership of a television and radio station in the same market. In Second  X~-  Report and Order in MM Docket No. 877 (Second Report and Order), 4 FCC Rcd 1741, recon.  Xg-  granted in part (Second Report and Order Recon.), 4 FCC Rcd 6489 (1989), the Commission   /established three standards for waiver of the rule. Under these standards, the Commission   Zpresumptively favors waiver requests involving stations combinations serving the top 25 markets   jwhere there remain at least 30 separately owned, operated and controlled broadcast licenses or"" @ ,-(-(ZZ\"  X-  "voices" after the proposed combination is consummated ("top 25 markets/30 voices" standard).h yOy-  ԍ The Commission has been directed to "extend its [onetoamarket] waiver policy to any of the top 50  yOA-  markets, consistent with the public interest, convenience, and necessity." See Telecommunications Act of 1996, Pub.   <L. No. 104104,  202(d), 110 Stat. 56 (1996). A proposal to implement this extension of our waiver policy is  yO-  pending. Second Further Notice of Proposed Rule Making in MM Docket Nos. 91221 and 878, FCC 96438 (Nov. 7, 1996) at para.66.h  X-  Id at 175152. Second, under the "failed station" standard, the Commission presumes that the   jpublic interest will also be served in cases involving acquisition of "failed" broadcast stations,   that is, stations that have not been operating for a substantial period of time or that are in  X-  bankruptcy. Id at 175253. Third, waiver requests not eligible for consideration under either the   Z"top 25 markets/30 voices" standard or the "failed station" standard are evaluated under the more  Xv-rigorous "casebycase" standard, set forth in paragraph 17, infra.  XH- 17. The permanent rule waivers requested by Westinghouse all involve markets that are   <among the top ten television markets in the country. However, because Westinghouse proposes   ito control a television station and more than one sameservice radio station in each of the markets   where it requests onetoamarket rule waivers, it bases the waiver requests on the more rigorous  X -  casebycase waiver standard. See Memorandum Opinion and Order in MM Docket 91140, 7   FCC Rcd 6387, 6394 n.40 (1992)(consideration of onetoamarket waivers under casebycase   standard is appropriate when a transaction implicates the numerical limitations of the radio local   ownership rules, pending resolution of the television ownership proceeding, in which the   Commission is considering revision of the onetoamarket waiver rule). Under the casebycase   >waiver standard, the Commission makes a public interest determination using the following   Lcriteria: (1) the potential public service benefits of joint ownership of the facilities, such as the   <economies of scale, cost savings and programming and service benefits; (2) the types of facilities   involved; (3) the number of media outlets owned by the applicant in the relevant market; (4) any   financial difficulties involving the stations; (5) the nature of the relevant market in light of the  X-  =level of competition and diversity after the joint operation is implemented. Second Report and  X-  Order, 4 FCC Rcd at 175354. The Commission noted, in adopting the casebycase waiver   standard, that not all five of the casebycase factors must be satisfied as a precondition to grant  X-of a waiver. See Second Report and Order Recon., 4 FCC Rcd at 6491.  X- 18. Before turning to Westinghouse's showing under the applicable casebycase standard,   we must first address Spectrum's argument that the casebycase standard is unlawfully arbitrary   and capricious because it is composed of five subjective factors that are selectively applied.   -Spectrum further argues that because these five factors are not necessarily applied in every case,   the Commission routinely grants onetoamarket rule waivers to permit the common ownership   Zof radio and television stations in the same market, and thus has effectively gutted a rule that was   intended to prohibit the common ownership of radio and television stations in the same market.   In this regard, Spectrum claims that during the seven year period since the casebycase waiver   standard was implemented, the Commission has granted onetoamarket rule waivers in 33   reported cases, and has denied such waivers in only two cases. Spectrum asserts that this result   is contrary to the purpose of rule waivers, which are meant to function as a "safety valve" to"! x,-(-(ZZ " address situations that do not fit the intent of the rule and should be granted sparingly.  X- 19. Spectrum's argument overlooks the Commission's decision in the 1989 rulemaking   proceeding to relax the onetoamarket rule's prohibition against radiotelevision combinations   in order to permit common ownership of radio and television stations consistent with the  X-  maintenance of diversity and competition. Second Report and Order, 4 FCC Rcd 1741, 1746. The   Commission liberalized the radiotelevision crossownership prohibition by adopting waiver   standards that included allowing for waiver of the onetoamarket rule on a casebycase basis   -using the five factors set forth above. In doing so, the Commission articulated general standards   >for making exceptions to the rule prohibiting same market radiotelevision combinations, as   required by principles of administrative procedure that generally govern the Commission's  X -  authority to waive its rules. WAIT Radio v. FCC, 418 F. 2d 1153, 1159 (D.C. Cir.  X -  1969)(waivers must be founded on an "appropriate general standard"). See generally Northeast  X -  {Cellular Telephone Company, L.P. v. FCC, 897 F. 2d 1164, 1166 (D.C. Cir. 1990)(explaining   obligation to articulate standard on which rule may be waived). The five factors of the caseby  Lcase waiver standard were not challenged by Spectrum, or any other party, on reconsideration  X-  in the onetoamarket rulemaking proceeding. yO -  ԍ We note, however, that Spectrum has participated in the pending television ownership proceeding. Moreover,   -there is still an opportunity for Spectrum to raise its concerns about the onetoamarket rule in the rulemaking   context because the Commission has solicited further comment on proposals to modify or eliminate the onetoa yOa-  market rule in that ongoing rulemaking proceeding. See Second Further Notice of Proposed Rule Making in MM Docket Nos. 91221 and 878, FCC 96438 (Nov. 7, 1996).  In any event, Spectrum fails to demonstrate that   the casebycase standard adopted in that proceeding is arbitrary and capricious either generally   .or as applied. Spectrum's argument is solely based on a comparison of the number of cases in   which onetoamarket waivers have been granted with the number of cases in which waivers   were denied. Such a superficial showing, devoid of any analysis of the facts and circumstances   xpresent in the relevant decisions, falls well short of substantiating its contention that the caseby  \case standard has been arbitrarily applied. Consequently, we now turn to Westinghouse's   <showing, which address each of the five casebycase factors in support of the permanent waiver requests.   V-Waiver Showing  X-  X|-   20. Benefits of Joint Operation. Westinghouse asserts that grant of the requested   permanent rule waivers will lead to substantial cost savings and efficiencies. Specifically,   Westinghouse approximates total savings for 1997 for each of the radiotelevision combinations   in the six markets to be: New York, $7.65 million; Los Angeles, $6.8 million; Chicago, $3.82   million; Philadelphia, $1 million; San Francisco, $4 million; and Detroit, $850,000. For each   xmarket, Westinghouse has broken down its aggregate cost savings into estimated cost savings in   -four categories. These categories are: (1) centralized management, accounting, human resources   and other related functions; (2) centralized purchasing of goods and services; (3) centralized   telephone and communications services; and (4) centralized maintenance operations. In the first   category, centralized management and related functions, Westinghouse estimates the following"!x,-(-(ZZ "   nsavings: New York, $6.3 million; Los Angeles, $5.6 million; Chicago, $3.15 million;   !Philadelphia, $700,000; San Francisco, $2.8 million; and Detroit, $700,000. In the second   category, centralized purchasing, Westinghouse estimates the following savings: New York,   /$900,000; Los Angeles, $800,000; Chicago, $450,000; Philadelphia, $100,000; San Francisco,   /$400,000; and Detroit, $100,000. In the third category, centralized communications services,   Westinghouse estimates the following savings: New York, $180,000; Los Angeles, $160,000;   >Chicago, $90,000; Philadelphia, $20,000; San Francisco, $80,000; and Detroit, $20,000. In the   fourth category, centralized maintenance operations, Westinghouse estimates the following   savings: New York, $270,000; Los Angeles, $240,000; Chicago, $135,000; Philadelphia,   m$30,000; San Francisco, $120,000; and Detroit, $30,000. The cost savings specified for   LPhiladelphia and San Francisco also include an additional category, savings on real estate and   jrent that will be attributable to its plans to consolidate the studios and physical facilities of the   -radio and television stations in those markets. Westinghouse expects cost saving attributable to   facilities consolidation of $150,000 and $600,000 respectively, in Philadelphia and San Francisco.  X -  21. Westinghouse contends that these cost savings and operating efficiencies will yield   substantial public interest benefits, including programming and community service benefits. In   ithis regard, Westinghouse acknowledges that many of these public interest benefits have already   been realized in markets where it had radiotelevision combinations prior to its merger with CBS   yas well as in those markets in which CBS had existing radiotelevision combinations. However,   jWestinghouse asserts that the efficiencies that it achieves through permanent radiotelevision   kcombinations also will contribute to the ability of the CBS television network to continue to   provide a national program distribution service which enhances programming services of the   stations with which it is affiliated. Therefore, according to Westinghouse, permitting these   permanent radiotelevision combinations will in turn further enhance the overall ability of free   overtheair television and radio stations to meet their public service obligations in the  X-competitive mass media marketplace. V  X-  X|- o22. Westinghouse has presented news, public interest and community service   programming enhancements and improvements that the permanent waivers will yield in each   market. With regard to news programming, Westinghouse plans to continue combined operations   yof radio and television news services in Philadelphia, San Francisco, Los Angeles and Chicago   {and to implement combined news operations in New York and Detroit, the remaining two   markets where it seeks permanent waivers. Westinghouse plans to combine weather services for   jthe radio and television stations in all markets affected by the permanent waiver requests, as is   now being done in San Francisco, Boston and Philadelphia. Westinghouse further notes that many   of its radio stations in these six markets with music formats now have access to the allnews and   information capabilities of its allnews radio and television stations, and that access to these services will be extended to its other music stations.  Xh$- m23. The following list represents examples of public interest programming that will be   @provided in each market: in New York, "Good for New York" a series on people and   organizations working to make the city better; in Los Angeles, the KNX Roundtable specials   focusing on community issues; in Chicago, "Radio Health Journal;" In Philadelphia, "95 Forum,""#',-(-(ZZ%"   /interviews with community leaders; in San Francisco, "Mosaic," a discussion of social and   Lreligious issues; and in Detroit, "Staying in Touch," interviews with community organizations.  X-  LSee Westinghouse Request for Permanent Waivers at Exh. 1, pages 39; Exh. 2, pages 38, Exh.   z3, pages 38; Exh. 4, pages 38; Exh. 5, pages 48; Exh. 6, pages 36 for complete list of public interest programming.   Xv- /24. Additionally, Westinghouse is committed to providing on its radio stations a "Parent's   Guide to Children's Educational Programming," an onair radio program guide to television   programming on its television stations addressing the educational and informational needs of   children. The guide will provide parents with onair scheduling and content guides for the   educational children's programming airing on the television stations in the same market. The   Lguide, which will highlight the week's educational and informational programming, will air each   day, seven days a week, during rotating time periods. Westinghouse's radio stations began airing   these guides this fall. Additionally, Westinghouse intends to extend to its radio stations   programming that provides major presidential candidates with the opportunity to present unedited   ystatements on key issues, as was done on its television stations during the recently concluded   =campaign season. Westinghouse contends that its plan to extend the presidential candidates'   Mbroadcast messages to radio will ensure that the messages will gain access to an additional audience that can only be reached by radio.  X4- k25. Westinghouse also asserts that permitting it to retain the radiotelevision combinations   in each of these markets will enable Westinghouse to undertake more substantial public interest   campaigns and community service projects than would be possible on an individual basis,   \ensuring that greater and more diverse audiences are reached. Westinghouse provides the   yfollowing examples of community service projects currently being undertaken by its stations in   Lthe six markets and that it expects to continue if the permanent waiver requests are granted: in   New York, "Access for All," an accessibility guide for the handicapped produced in conjunction   with the city's department of public affairs; in Los Angeles, "To Protect Our Planet," a four year   kcampaign addressing environmental issues; in Chicago, "Thanks to Teachers," recognizing   excellence in teaching; in Philadelphia, "The Children's Miracle Network Telethon;" in San   Francisco, Asian Heritage Month; and in Detroit, AfricanAmerican History Month. Moreover,   in all of these markets, Westinghouse plans to combine the public service initiatives of its radio   and television stations, making it possible to devote greater resources to the promotion and  X -  execution of the projects and to reach a greater audience. See Westinghouse Request for   Permanent Waivers, Exh. 1 at pages 912; Exh. 2 at pages 911; Exh. 3 at pages 911, Exh. 4 at pages 911; Exh. 5 at pages 911; Exh. 6 at pages 78.  X!- 26. Westinghouse also argues that other public interest benefits will result if its requests   for permanent waivers are approved. Westinghouse states that the ongoing Equal Employment   Opportunity Programs of the radio and television stations will be augmented through the   increased human resources staff available when the radio and television stations are combined.   Each station will have access to the services of a fulltime professional Human Resources   Manager and support staff. The outreach resources and relationships of the stations will be   combined to ensure the maximum benefit of each station's outreach efforts. Additionally, all"#',-(-(ZZ%"   xstations will have access to the combined human resources expertise of the overall Westinghouse   organization, including the ability to participate in numerous national, regional and local minority and women's employment conferences and job fairs.  X- z27. Types of Facilities/Other Media Outlets. Westinghouse acknowledges that it proposes   to combine stations with substantial technical facilities in most of the markets. However,   Westinghouse asserts that there are numerous comparable AM, FM and television facilities owned   by other entities in each market. Specifically, Westinghouse states that there are at least six, and   as many as nine comparable AM stations, at least eight and as many as thirteen comparable FM   stations and at least four and as many as six comparable television stations in the markets where   <it seeks permanent rule waivers. Westinghouse also states that each market now has at least one   other radiotelevision combination, and that in some markets, the radiotelevision combinations   also include more than one sameservice radio station. Moreover, Westinghouse states that in   each market there are at least four other existing station combinations that include more than one   sameservice station. Under these circumstances, Westinghouse argues that the proposed station   combinations do not present issues of market domination inconsistent with the public interest.   Additionally, under the third factor, the number of media outlets owned in these markets,   LWestinghouse states that other than the stations enumerated here, it has no other attributable interests in media outlets in the six markets.   X4- }28. Westinghouse has described the facilities of all of the stations comprising the   zpermanent combinations. In New York, WCBSTV is a VHF station operating on Channel 2,   .both WCBS(AM), a Class A clearchannel station, and WINS(AM), a Class B station, operate   kat 50 kW, WNEW(FM), a Class B FM station, operates at 7.8 kW from a 1,220foot antenna,   and WCBSFM, also a Class B station, operates at 6.8 kW from a 1,353foot antenna. In Los   Angeles, KCBSTV is a VHF station operating on Channel 2, KNX(AM), a Class A clear   Lchannel station operates at 50kW, KFWB(AM), a Class B station operates at 5 kW, KCBSFM   operates at 54 kW from a 5,000foot antenna, and KTWV(FM) operates at 58 kW from a 2,835  foot antenna. Both Los Angeles FM stations are Class B stations. In Chicago, WBBMTV is   a VHF station operating on Channel 2, WBBM(AM) and WMAQ(AM), both Class A clear  ychannel stations, operate at 50 kW, and WSCR(AM), a Class D station, operates daytime only   at 5 kW. As to the FM stations in Chicago, WXRTFM, a Class B FM station, operates at 6.7   jkW from a 1,310foot antenna, and WBBMFM, also a Class B station, operates at 6.2 kW from   a 1,174foot antenna. In Philadelphia, KYWTV is a VHF station operating on Channel 3,   KYW(AM) and WPHT(AM) are both Class A clearchannel stations operating at 50 kW and   \WOGLFM, a Class B station, operates at 12.5 kW from a 1,000foot antenna. WMMRFM,   Philadelphia, which Westinghouse will divest within six months pursuant to the DOJ Settlement   \Agreement, is also Class B station that operates at 18 kW from an 827foot antenna. In San   Francisco, KPIXTV is a VHF station operating on channel 5, KCBS(AM), a Class B station,   koperates at 50 kW, and KPIX(AM), also a Class B station, operates at 10 kW. As to the San   NFrancisco FM stations, KLLCFM, a Class B station operates at 82 kW from a 1,014foot   antenna, and KPIX(FM), also a Class B station, operates at 6.9 kW from a 1,500foot antenna.   In Detroit, WWJTV is a UHF station operating on channel 62, WWJ(AM), a Class B station,   operates at 5 kW, WVMVFM, a Class B station, operates at 50 kW from a 462foot antenna,"#',-(-(ZZ%" and WYSTFM, also a Class B station, operates at 15 kW from an 890foot antenna.  X-  X-  29. Economic Status of the Stations. Westinghouse does not demonstrate that any of   these stations is in financial distress. However, Westinghouse asserts that the Commission has   =granted permanent onetoamarket waivers in other cases where financial difficulties were not   a consideration. Furthermore, Westinghouse states in these cases, the level of competition and   diversity did not approach the level of diversity and competition present in these topranked markets.  XH-  X1- M30. Competition and Diversity in the Markets. Westinghouse asserts that when temporary   Lonetoamarket waivers were granted in connection with its merger with CBS, the Commission   Mstated that "competition and diversity in the six markets involved here are, indeed, robust."  X -  =Stockholders of CBS Inc., 11 FCC Rcd at 3772. Additionally, Westinghouse contends that the   @level of competition in each of these markets significantly exceeds that required for a   jpresumptive waiver under the "top 25 markets/30 voices" test. In this regard, for each of these   imarkets, Westinghouse has provided data concerning the number of radio and television stations   jin each market, the number of separate owners of those facilities and the presence of cable and  Xy-other mass media outlets.y yO-  <ԍ Westinghouse acknowledges that the number of broadcast stations and the number of separately owned,   operated and controlled broadcast "voices" reported in the Infinity/Westinghouse merger application varies from   ,information submitted in its request for permanent waivers as well as in its 1995 applications for consent to acquire   JCBS. Westinghouse states that these variations are due to changes that have occurred in the ownership of broadcast   stations in these markets or are due to different methods used to count market stations and voices. Westinghouse   requests that the Commission rely on its amended showing, associated with the applications to transfer control of   Infinity for its determination of the number of broadcast stations and separately owned voices in each market. In   Ythis regard, Westinghouse states that this information is derived from "Broadcasting and Cable Yearbook 1996," the BIA Publications, Inc. database and ownership reports on file with the Commission.   XK- 031. In New York, the largest television market in the country, Westinghouse states that   ythere are 23 commercial and noncommercial television stations licensed to 21 separate owners.   Additionally, there are 134 commercial and noncommercial radio stations (48 AM and 86 FM)   {in the New York television metro market which are owned, operated and controlled by 96   separate individuals or entities. There are also 36 daily newspapers published in the market and  X-  =cable penetration is 67.9 percent. Westinghouse states that Los Angeles is the second largest   television market in the country, and has 25 commercial and noncommercial television stations,   licensed to 24 separate owners. Additionally, there are 87 commercial and noncommercial radio   stations (37 AM and 50 FM) in the Los Angeles television metro market which are owned,   Koperated and controlled by 63 separate individuals or entities. There are also 30 daily newspapers  Xe-  1published in the market and cable penetration is 61.4 percent. Chicago, according to   Westinghouse's showing, is the third largest television market in the country, and has 17   Zcommercial and noncommercial television stations, licensed to 17 separate owners. Additionally,   ythere are 125 commercial and noncommercial radio stations (47 AM and 78 FM) in the Chicago   television metro market which are owned, operated and controlled by 91 separate individuals or" ,-(-(ZZ"   entities. There are also 23 daily newspapers published in the market and cable penetration is 58.8   percent. Westinghouse states that Philadelphia is the fourth largest television market in the   country, and has 20 commercial and noncommercial television stations, licensed to 19 separate   owners. Additionally, there are 63 commercial and noncommercial radio stations (26 AM and   37 FM) in the Philadelphia television metro market which are owned, operated and controlled   by 49 separate individuals or entities. There are also 24 daily newspapers published in the  Xv-  /market and cable penetration is 74.8 percent. Westinghouse states that the San Francisco  !OaklandSan Jose market is the fifth largest television market in the country, and has 22   Zcommercial and noncommercial television stations, licensed to 22 separate owners. Additionally,   there are 54 commercial and noncommercial radio stations (18 AM and 36 FM) in the television   metro market which are owned, operated and controlled by 37 separate individuals or entities.   There are also 22 daily newspapers published in the market and cable penetration is 70.1 percent.   jFinally, Westinghouse asserts that Detroit is the ninth largest television market in the country,   and has nine commercial and noncommercial television stations, licensed to nine separate   owners. Additionally, there are 59 commercial and noncommercial radio stations (21 AM and   38 FM) in the Detroit television metro market which are owned, operated and controlled by 44   Lseparate individuals or entities. There are also eight daily newspapers published in the market   and cable penetration is 65.2 percent. Additionally, Westinghouse notes that each of the six   markets is served by "wireless cable" or Multipoint Multichannel Distribution Service (MMDS) facilities.  X4-  V- Opposition to Waiver  X-  X- l32. Spectrum makes a general argument that the requests for permanent onetoamarket   rule waivers should be denied. Spectrum first asserts that combining Westinghouse and CBS   broadcast stations in these markets will result in nothing more than the economies of scale that   would result from any merger. Spectrum also argues that all radio or television stations in the   markets where Westinghouse requests permanent waivers can offer extensive presentations on   programming service, and that the Commission "cannot lawfully attempt a judgment based on   ?a subjective evaluation of programming service," as Westinghouse requests. Spectrum   acknowledges that New York, Los Angeles, Chicago, Philadelphia, San Francisco, and Detroit   each have large numbers of radio and television stations and are served by other media of mass   communication. However, Spectrum contends that Westinghouse has not presented public   interest justifications for the unprecedented number and scope of the requested waivers sufficient   to meet the high hurdle that it faces in markets where it already has at least as many, if not more,   ybroadcast stations than any other group owner. Spectrum also asserts that there is no claim of financial difficulties for any of the stations at issue.  X"-  33. Spectrum further contends that minority owners, like itself, face limited opportunity   .to achieve parity with "establishment" owners like Westinghouse, especially in light of recent   changes in the Commission's multiple ownership rules, including the revisions of the broadcast   ownership rules that were mandated by the Telecommunications Act of 1996. Spectrum points   Lout that Congress did not eliminate the onetoamarket rule in the Telecommunications Act of   L1996, and argues that grant of the onetoamarket waivers requested by Westinghouse would"#',-(-(ZZ%"   zwiden the gulf between the "establishment" and minority owners. Serafyn/UCCA's petition incorporates by reference the arguments made by Spectrum concerning the permanent waivers.  X-  V- Discussion   X- !34. At the outset, we note that the pending television ownership proceeding, in which the   Commission is considering eliminating or modifying the onetoamarket rule, does not preclude   consideration of Westinghouse's request for permanent onetoamarket rule waivers. In the  XH-  =recently released Second Further Notice of Proposed Rule Making in the television ownership   proceeding, we stated that waiver requests submitted pending the resolution of the proceeding  X -  will be considered under the current criteria for evaluating such requests. See Review of The  X -  Commission's Regulations Governing Television Broadcast Ownership in MM Docket Nos. 91 X -  221 and 878, FCC 96438 (Nov. 7, 1996)(Second Further Notice of Proposed Rule Making).   Thus, the Second Further Notice of Proposed Rule Making contemplates approval of permanent,   /unconditional waivers to allow radiotelevision combinations that do not propose common   ownership of stations exceeding a combination of one television station, two AM stations and two   FM stations, as long as the requested waivers are clearly consistent with Commission precedent.  Xy-  Second Further Notice of Proposed Rule Making, slip op. at 35 and n.130. In each of these   markets except Chicago, Westinghouse's retention of stations that it acquired through its merger   with CBS would not exceed the common ownership of a television station, two FM stations and   Ztwo AM stations. In Chicago, Westinghouse would own a combination of one television station,   two FM stations and three AM stations. However, Westinghouse has already filed an application   lto sell WSCR(AM), one of the AM stations in this proposed combination, to a minority  controlled entity, which will bring Westinghouse's combination of Chicago stations in line with   radiotelevision combinations that are eligible for permanent, unconditional waivers pending the outcome of the television ownership proceeding.  X- n"35. In evaluating a request for a permanent waiver of the onetoamarket rule, the   Commission's goal is "to permit the public to benefit from such efficiencies of operation as may   ybe achieved through the use of common facilities and staff, consistent with the maintenance of  XN-  diversity and vigorous competition within the market areas involved." Second Report and Order  X7-  Recon  ., 4 FCC Rcd at 6491. In determining whether the public interest would be served by grant   of a permanent onetoamarket rule waiver, the Commission's paramount concern is to evaluate   and balance the five casebycase factors to facilitate combinational efficiencies while protecting  X-  its longstanding interest in promoting competition and promoting diversity. See Greater  X-  .Muskegon Broadcasters, Inc., FCC 96423 (Oct. 30, 1996). We find that each of the permanent   kwaivers requested by Westinghouse in New York, Los Angeles, Chicago, Philadelphia, San   -Francisco and Detroit meets our casebycase criteria and that permitting Westinghouse to retain   the radiotelevision combinations in these markets that resulted from its merger with CBS,   conditioned on divestiture of WSCR(AM), Chicago, would achieve significant economic and   program service benefits without unduly adversely affecting competition and diversity in the relevant markets.  X#'- #36. Under the first factor, the potential public service benefits of joint ownership of the"#',-(-(ZZ%"   stations proposed in each of the markets where Westinghouse proposes permanent radiotelevision   zcombinations, the Commission considers the public service benefits that will result from the   proposed radiotelevision combination, such as projected economies of scale, cost savings, and  X-  #programming and service benefits. Second Report and Order, 4 FCC Rcd at 1753.   iWestinghouse has demonstrated that in the six markets where it seeks permanent onetoamarket   Lrule waivers, joint operation of the radio and television stations that it proposes will permit the   continuation of operational efficiencies that have resulted and will result in the future in cost   savings. Westinghouse will use these cost savings to continue to provide enhanced programming   and service benefits that it has already initiated in these markets. Specifically, Westinghouse   estimates that during 1997, it will accrue total savings of $24,120,000 in the six markets where   it will have permanent radiotelevision combinations. Most of these savings will result from   ]consolidation of station functions, although a portion of these savings is attributable to   consolidation of physical station operations in Chicago, Philadelphia and San Francisco.   xWestinghouse has not amended its waiver request to account for the divestiture of WMMR(FM),   in Philadelphia, pursuant to the DOJ settlement agreement. However, even excluding cost   >savings attributable to WMMR(FM), the projected cost savings and economic efficiencies anticipated by Westinghouse are significant.   Xb- m$37. Moreover, these cost savings will allow Westinghouse to continue programming   benefits in the form of enhanced news programming now available in Philadelphia, San   Francisco, Chicago, and Los Angeles and to extend similar news programming enhancements to   New York and Detroit. In particular, we note that the combined operation of radio and television   in all of the markets will permit expanded, continuous and varied news coverage, and that the   radio stations will have access to the newsgathering and weather forecasting equipment and   ifacilities of the television stations. Additionally, Westinghouse will continue to provide extensive   public affairs programming in the six markets, and its combined station operations in these   markets will allow it to devote greater resources to the promotion and execution of community  X-  service projects. See Westinghouse Request for Permanent Waivers, Exh. 1 at pages 312; Exh.   2 at pages 311; Exh. 3 at pages 311, Exh. 4 at pages 311; Exh. 5 at pages 411; Exh. 6 at  Xe-pages 38.   X7- ?%38. Westinghouse has also made specific commitments to provide increased promotion   zof the children's television programming available on its television stations in these markets   through its "Parent's Guide to Children's Educational Programming." This program will air on   the radio stations in each market to provide parents with scheduling and content guides for the   educational children's television programming airing on the samemarket television stations.   Furthermore, Westinghouse has stated additional public service and programming benefits through   its intention to promote and broadcast on the radio stations in each market the statements by   major presidential candidates concerning key issues that are aired on its CBS network television stations during the presidential campaigns.  XQ%- ?&39. We reject Spectrum and Serafyn/UCCA's contention that our determination that the   permanent waiver requests are based on an unlawful "subjective evaluation" of programming   /service. Our conclusion that grant of the permanent waivers will benefit the public interest"#',-(-(ZZ%"   through programming and public service improvements is grounded in the Commission's  X-  conclusion, in the Second Report and Order, that combining radio and television operations will   /result in programming benefits. 4 FCC Rcd at 1748. Moreover, there is no requirement that   Westinghouse, under this casebycase factor, offer a particular category or program format for   these programming benefits. Rather, we find that Westinghouse has related the cost savings it   =will realize from the operational efficiencies it will achieve to explicit service benefits, including   the news, public affairs and community service programming and activities specifically set forth  X_-in paragraphs 2125 supra.  X1- '40. Westinghouse has also outlined other public interest benefits that will result from the   permanent waivers. In this regard, Westinghouse will augment its Equal Employment   !Opportunity Programs now in place at the radio and television stations in the proposed   combinations to increase the human resources staff and to expand its outreach efforts for  X -  [employing women and minorities. See Westinghouse Request for Permanent Waivers Exh. 1 at   {page 9, Exh. 2 at page 8, Exh. 3 at pages 89, Exh. 4 at page 9, Exh. 5 at pages 89, Exh. 6 at  X -  pages 67; paragraph 26, supra. Spectrum and Serafyn/UCCA make a general argument that grant   of the onetoamarket waivers requested by Westinghouse would decrease opportunities for   minorities, without addressing the specific commitments that Westinghouse has made with respect   yto minority ownership and employment in the markets affected by its temporary and permanent   waiver requests. In this regard, we note Westinghouse has filed an application to assign one of its Chicago stations to a minoritycontrolled entity.  X- (41. The second factor in our analysis concerns the types of facilities that Westinghouse   owns in each of the markets. In this regard, we must "consider such factors as whether the   proposed radiotelevision combination involves a UHF or VHF TV station or an AM or FM radio  X-  =station, as well as the size or class of the stations involved." Second Report and Order, 4 FCC   xRcd at 1753. In the station combinations related to the permanent waiver requests, Westinghouse   will combine a VHF television station with at least one clearchannel AM station in New York,   Los Angeles, Chicago, and Philadelphia. In Detroit, Westinghouse would have a UHF television   station and a less powerful Class B AM station. In San Francisco, Westinghouse would have a   LVHF station and two Class B AM stations. In all six of the markets, Westinghouse would also   have two Class B FM stations, the most powerful class of FM stations licensed in Zone I, the   Kgeographic designation that includes the six markets in which Westinghouse requests permanent  X -  onetoamarket waivers. See 47 C.F.R.  73.205. However, in Philadelphia, Westinghouse will   ibe required to divest one of these Class B stations, WMMR(FM), pursuant to the DOJ Settlement   Agreement. Of the remaining Class B stations that Westinghouse will control in these six   markets, the two Los Angeles stations, and one of the San Francisco stations FM stations operate   with the most powerful facilities of the FM stations in these markets. Additionally, one Washington, D.C. FM station operates at the maximum power for Class B facilities.  Xh$- )42. Thus, Westinghouse will combine stations with significant technical facilities.   MHowever, if there is robust competition and diversity in a market, there is less chance that a   .combination of facilities, even powerful ones, will permit the owner of those powerful facilities  X#'-  to dominate the market. As discussed at paragraphs 4446 infra, the level of competition and"#',-(-(ZZ%"   [diversity in these markets is of a level that convinces us that combining substantial stations in   these market will not have a detrimental effect on diversity and competition, nor pose any appreciable threat of market dominance by Westinghouse.   X- *43. With regard to the third factor, Westinghouse will not own any media outlets other   than those listed in its permanent waiver requests. Fourth, regarding the financial status of the   stations in the permanent combinations, we note, and Spectrum and Serafyn/UCCA point out, that   Lnone of the stations involved is experiencing financial difficulties. However, Westinghouse is   not required to demonstrate that the stations in these combinations are experiencing financial   difficulties as a precondition to grant of the permanent waiver requests. The Commission has  X -  previously granted onetoa market rule waivers in the absence of financial difficulties. See, e.g.,  X -  \S.E. Licensee G.P., FCC 96464 (Nov. 27, 1996); Shareholders of Citicasters, Inc., FCC 96380  X -  .(Sept. 17, 1996); Louis C. DeArias, Receiver, 11 FCC Rcd 3662 (1996); Henry Broadcasting Co.,  X -  C11 FCC Rcd 1175 (1995); Alta Gulf FM, Inc., 10 FCC Rcd 7750 (1995); Secret  X -Communications, Ltd., 10 FCC Rcd 6874 (1995).  X- +44. Finally, the fifth factor relates to the level of diversity and competition in the relevant  Xy-  market.y yO-  ԍ In order to determine the number of radio and television broadcast stations in the context of a onetoamarket   Ywaiver, the Commission considers "the relevant TV metro market for radio stations and the relevant ADI [Arbitron  yO-  Area of Dominant Influence] TV market for radio stations." Second Report and Order, 4 FCC Rcd at 1760 n.101.   However, because Arbitron no longer compiles television ADI data, we will accept instead Westinghouse's showing   using the Nielsen Designated Market Area (DMA) in determining the number of broadcast "voices" in the markets  yO-  at issue in the temporary and permanent onetoamarket waiver requests. See Media/Communications Partners L.P.,  yO-  10 FCC Rcd 8116, 8116117, n.3 (1995); see also Review of the Commission's Regulations Governing Television  yOj-  hBroadcast Ownership in MM Docket Nos. 91221 and 877, 10 FCC Rcd 3524, 3539 n.59 (1995)(Further Notice of Proposed Rule Making).  Indicia of the level of diversity include the number of broadcast outlets, the number   of separatelyowned and operated "voices" in the market, and the presence of cable and non  \broadcast media. We have previously recognized that in New York, Los Angeles, Chicago,   Philadelphia, San Francisco, the top five television markets in the country, and Detroit, the ninth  X-  Llargest television market, competition and diversity are "robust." Stockholders of CBS Inc., 11   FCC Rcd at 3772. We find no reason to alter this conclusion in light of Westinghouse's request   kfor permanent waivers in these markets. According to our independent analysis of the data   xsubmitted by Westinghouse, these markets will continue to be served by at least 54 radio stations  X-  and as many as 133 radio stations if the permanent waiver requests are granted.mX yO !-  ԍ Although Westinghouse claims that there are 134 radio stations in the relevant Nielsen television metro market   in New York, we determined that one of the stations counted by Westinghouse, WRKT(AM), in Cortland, New York, is located in a county that is outside the Nielsen television metro. m Additionally,   the number of television stations in these markets range from nine to 25. More importantly,   even if Westinghouse retains the radiotelevision combinations in these markets that it acquired   in its merger with CBS, these markets will still have a wide diversity of voices. Our independent   analysis of data submitted by Westinghouse confirms that there will be at least 51 separately"e ,-(-(ZZ"  X-  owned broadcast "voices" in these markets and as many as 112 separate broadcast voices.{X yOy-  iԍ Westinghouse's request for permanent waivers to permit it to retain stations it acquired from CBS does not   depend on our approval of the Infinity merger. Thus, we are here considering only the permanent waiver requests and are counting Infinity stations in each market as a separate, additional "voice." {   Additionally, the markets all have substantial cable penetration rates, the lowest of which is 58.8   percent. Additionally, numerous daily and weekly newspapers serve these markets, and all of the markets are served by MMDS facilities.  X- ,45. The radio and television stations together in each of these markets will receive   combined television and radio advertising revenue shares as follows: New York, 17.1 percent   for a television/two AM/two FM station combination; Los Angeles, 13.3 percent, for a   Mtelevision/two AM/two FM station combination; Chicago, 14.9 percent for a television/two   jAM/two FM station combination; Philadelphia, 18.06 percent for a television/two AM/one FM   station combination (excluding WMMR(FM), which Westinghouse must divest pursuant to the   KDOJ Settlement Agreement); San Francisco, 16.6 percent for a television/two AM/two FM station  X -  =combination; and Detroit, 4.5 percent for a television/one AM/ two FM station combination.  yO-  ԍ The source of the revenue data used in our decision is BIA Publications, Inc., which relies on reported 1995 market revenue.  X -  See also, n. 21 infra, explaining that the radio advertising shares of the permanent station combinations in these markets do not exceed 22 percent.  X- 0-46. We conclude, based on the record, that granting Westinghouse permanent waivers   in these six markets will not have an undue adverse effect on competition and diversity. In this   regard, we emphasize that these are among the top ten television markets in the country, and are   served by a multitude of radio and television broadcast stations. Westinghouse's ownership of   <these station combinations is consistent with other permanent radiotelevision combinations that  X-  the Commission has approved in the past. See, e.g., Brem Broadcasting, 9 FCC Rcd 1333  X-  (1994)(television/two AM/two FM station combination in Mobile/Pensacola); First Broadcasting  X-  Company, 10 FCC Rcd 2904 (1995)(television/two AM station combination in San Francisco);  X-  0Golden West Broadcasters, 10 FCC Rcd 2081 (1995)(television/two AM/one FM station  X-  combination in Los Angeles). See also Capital Cities/ABC, Inc., 11 FCC Rcd 5841  X-  (1996)(permitting continued ownership of radiotelevision combinations approved in First  X-  Broadcasting and Golden West in connection with the merger of Capital Cities/ABC, Inc. and   <The Walt Disney Company). Furthermore, we note that the combined radio/television advertising  Xe-  krevenue shares in the markets do not exceed 19 percent.}e@ yOV"-  ԍ Westinghouse's acquisition of CBS radio stations was previously approved when the Commission issued its   -decision granting the CBS/Westinghouse merger. Nevertheless, we have reviewed the radio advertising shares of   the radio station combinations that were previously approved. In this regard, the relevant radio advertising shares   do not exceed 22 percent, and thus are not so significant as to raise a concern that diversity and competition would be unduly affected by the approval of the permanent waiver requests. } Thus, we do not believe that the   advertising revenue shares in any of these markets is so significant as to raise a concern that   diversity and competition will be adversely affected by Westinghouse's retention of CBS stations."7 ,-(-(ZZ"  X-  See, e.g., S.E. Licensee G.P., FCC 96464 (Nov. 27, 1996)(postacquisition combined   Kradio/television advertising revenue share of 24.2 percent in Memphis, the 42nd largest television   Kmarket would not unduly affect competition and diversity during period of temporary, conditional  X-  waiver); Shareholders of Citicasters, Inc., FCC 96380 (Sept. 17, 1996)(postmerger combined   {radio/television advertising revenue share of 32.03 percent in Cincinnati, the 29th largest   television market and combined radio/television advertising revenue share of 21.26 percent in   Tampa, the 15th largest market would not pose an unacceptable short term risk to competition).   As to diversity, we find that even following the permanent radiotelevision combinations, the   affected markets will continue to enjoy a robust number and variety of broadcast speakers, with   Mno fewer than 51 independently owned and operated broadcast voices serving the relevant   [markets. Moreover, although Westinghouse's commonly owned facilities in these markets will   =be significant in technical terms, there are comparable competing facilities in all of the markets.  X - .47. We recognize, as Spectrum and Serafyn/UCCA point out, that waiver applicants who   own a number of media outlets in the relevant market will face a higher hurdle to justify a one X -  ytoamarket rule waiver than do applicants with fewer outlets. Second Report and Order, 4 FCC   yRcd at 1753. However, we find that Westinghouse has successfully cleared this hurdle in each   market where it seeks a permanent waiver, especially in light of the economic efficiencies and   !public interest benefits that will be gained by permitting permanent radio and television   -combinations in these markets. In particular, Westinghouse intends to provide meaningful public   jinterest benefits in these markets. These include improvements and enhancement of news and   local programming, including increased promotion of children's television programming and the   provision of time to major presidential candidates. Additionally, Westinghouse has demonstrated   a commitment to increasing its outreach to minorities and women through the Equal Employment   Opportunity programs of its station combinations. Furthermore, Westinghouse has already filed an application to assign one of the stations it will divest to a minoritycontrolled entity.  X- l/48. Spectrum and Serafyn/UCCA's generalized argument in opposition to the permanent   zwaiver requests contending in essence that Westinghouse will somehow control too may   ?broadcast outlets in the aggregate points to neither rules nor precedent to support its   contention. We recognize, of course, that Westinghouse already controls substantial broadcast   facilities and will significantly enhance its reach and influence as a multiple owner as a result   of the proposed merger. And, in granting the ownership waivers that Westinghouse has sought   =in connection with this transaction, we have carefully balanced the increased concentration in   media ownership that will result against the benefits that it may produce. We conclude that the   permanent waivers we grant are fully warranted based upon that balancing. Spectrum and   Serafyn/UCCA fail to challenge any of the specific and significant economic and public interest   benefits. Their argument is, in short, unpersuasive. Having approved Westinghouse's permanent waiver requests, we will turn our consideration to the Infinity/Westinghouse merger. "#,-(-(ZZG"" ` `  X- Radio Contour Overlap Rule  X-  V-Background ` `  X- ^049. The radio local ownership rules, as mandated by the Telecommunications Act of   =1996, impose numerical restrictions on the number of radio stations in the same service and on   the number of radio stations overall which may be commonly owned in any given local radio  XH-  [market.eH yO -ԍ Pub. L. No. 104104,  202(b), 110 Stat. 56 (1996). e A local radio market is defined by the area encompassed by the principal community  X1-  contours of the mutually overlapping stations proposed to be coowned. See Implementation of  X -  {Sections 202(a) and 202(b)(1) of the Telecommunications Act of 1996, FCC 9690 (Mar. 8,  X -  1996); Memorandum Opinion and Order in MM Docket No. 91140, 7 FCC Rcd 6387, 6395   (1992). Under the radio local ownership rules, as amended by the Telecommunications Act of   1996, in a radio market with 45 or more commercial radio stations, a party may own up to eight   commercial radio stations, no more than five of which are in the same service; in a market with   {30 to 44 commercial radio stations, a single entity may own up to seven commercial radio   =stations, no more than four of which are in the same service; in a market with 15 to 29 stations,   .a party may own up to six stations, no more than four of which are in the same service; and, in   markets with 14 or fewer stations, one owner may hold up to five stations, no more than three   [of which are in the same service, except that no one entity may control more than 50 percent of  X4-  the stations in a market. Implementation of Sections 202(a) and 202(b)(1) of the  X-  .Telecommunications Act of 1996, FCC 9690 (Mar. 8, 1996). See also Telecommunications Act of 1996, Section 202(b).  X- 150. Westinghouse, in the transfer of control applications relevant to its merger with   Infinity, has submitted showings concerning its compliance with the numerical ownership   restrictions adopted in the Telecommunications Act of 1996 and incorporated in our rules. These   showings assume that Westinghouse has been granted permanent onetoamarket rule waivers   in New York, Los Angeles, Chicago, Philadelphia, San Francisco and Detroit and thus retains   yits ownership interests in CBS radio stations in these markets. Westinghouse will add stations   to these radio combinations with its proposed acquisition of Infinity's radio stations in these six   markets. Additionally, as a result of its merger with Infinity, Westinghouse will control more   0than one sameservice radio station in local radio markets in Boston, Washington, D.C.,   Baltimore, Dallas/Fort Worth, Houston, and Atlanta. Westinghouse has demonstrated that in each   jcase except Chicago and Dallas/Fort Worth, its proposed ownership does not exceed the radio   local ownership rules' numerical restrictions. Because Westinghouse intends to come into   compliance with the radio ownership rules in both Chicago and Dallas/Fort Worth prior to   consummating its acquisition of Infinity, no radio local ownership rule waivers have been requested.  Vh$-"h$X,-(-(ZZF#" Chicago  X-  X- 251.      Westinghouse currently has ownership interests in the licenses of three AM and two   FM radio stations in Chicago and its surrounding communities. Infinity through its subsidiaries,   /is the indirect licensee of one AM and two FM stations in Chicago, and will acquire an FM  X-  station in Elmwood, Illinois and an FM station in Aurora, Illinois.j yO-  ԍ One of Infinity's subsidiaries, Infinity Holdings Corporation of Orlando, entered into an agreement to exchange   stations with Cox Radio, Inc. before the Infinity/Westinghouse merger was filed. Infinity proposed to acquire from   a Cox subsidiary two radio stations in the Chicago area and to assign to Cox three radio stations it now holds in   Orlando. Applications have been approved to assign Infinity's Orlando stations WHOO(AM), WHTQ(FM) and   .WMOOFM to Cox as have applications to assign Cox's Chicago stations, WYSY(FM), Aurora, Illinois, and  yO -  WCKG(FM), Elmwood Park, Illinois, to Infinity. See Infinity Holdings Corp. of Orlando, FCC 96494 (Dec. 26,   + 1996). The merger of Infinity and Westinghouse included contingent applications to transfer control of these stations   Yfrom Infinity to Westinghouse. Appropriate conditions will be imposed to require consummation of the assignment   of the Chicago stations from Cox to Infinity and to require consummation of the assignment of the Orlando stations  yO-from Infinity to Cox prior to consummation of the Infinity/Westinghouse merger. See paragraph 102 infra. j The principal community   icontours of these stations all mutually overlap. Consequently, upon consummation of the merger   and the acquisitions by Infinity's subsidiary, the merged entity would have an interest in ten   stations, four AM and six FM, in a single radio market. Westinghouse has submitted a showing   that demonstrates that there are more than 45 radio stations in the relevant local radio market   .defined by the principal community contours of these ten stations. The local radio ownership   Zrestrictions adopted in the Telecommunications Act of 1996 and incorporated in our rules provide   jthat in radio markets of more than 45 stations, a single entity may own, operate or control eight   radio stations, not more than five of which are in the same service. Therefore, Westinghouse's   control of ten radio stations, six of which are FM stations, would exceed the overall limit of eight   stations that may be owned in a market of this size as well as the applicable numerical limitations of five sameservice stations.  Xb-  352.  Proposed Chicago Divestitures. Westinghouse has pledged that two stations, at least   .one of which is an FM station, will be divested prior to or contemporaneously with the merger   jclosing in order to insure compliance with the radio local ownership rules' numerical limitations   Land to avoid the need to request a temporary waiver of the radio local ownership rules. In this   regard, Westinghouse, through its whollyowned subsidiary CBS, has filed an application to   assign the license of WSCR(AM) to Personal Achievement Radio of Illinois, Inc., which is  X-  controlled by N. John Douglas, a minority broadcaster. See BAL960925EA. Infinity has filed   yan application to assign the license of WYSY(FM), in Aurora, Illinois, to Spanish Broadcasting  X-  Systems, a minority controlled entity. See BAL960829GH. If these stations are assigned to the   <proposed buyers, the merged entity would control eight stations in the relevant radio market, five FM and three AM, and thus would comply with the radio local ownership rules.  XN- ^453. Chicago Trust Applications. Westinghouse has also filed applications to assign   MWSCR(AM), one of the Chicago stations that it plans to divest, and WXRT(FM) to a trust.   NWestinghouse states that the trust is a backup measure to facilitate the merged entity's" ` ,-(-(ZZ>"   compliance with the radio ownership rules in the event that Westinghouse and Infinity's proposed   divestiture of Chicago stations has not occurred at the time that the merger is consummated.   Specifically, Westinghouse contends that assignment of these stations to the trust would eliminate   Mattributable interests in one AM and one FM station in the Chicago radio market so that its   .acquisition of Infinity's Chicago stations would result in the merged entity having attributable   yinterests in eight stations, five FM and three AM, in compliance with the radio local ownership   rules. Westinghouse states that the trust's provisions fully comply with the Commission's   insulation criteria for such arrangements, including the requirement that the trustee who will   manage and operate WSCR(AM) and WXRT(FM), be independent and have no business or   familial relationship with Westinghouse or its affiliates. Additionally, Westinghouse describes   the trust as irrevocable, but states that the trust will remain in effect until such time as the   merged entity no longer holds attributable ownership interests, through the trust or otherwise, in   more than eight radio stations or more than five same service radio stations in the Chicago radio market.  X - Dallas/Fort Worth  X- ` `  X{- 554. Westinghouse currently has indirect ownership interests in two FM stations and one   AM station in the Dallas/Fort Worth area. Infinity has attributable interests in five FM stations   iand two AM stations in Dallas/Fort Worth. Infinity has also agreed to acquire a third AM station  X6-  in Dallas.x6 yO-  ԍ An application to assign the license and construction permit of KDFX(AM), Dallas, from Inspiration Media   wof Texas, Inc. to Infinity's subsidiary Infinity Broadcasting Corporation of Dallas was filed on October 7, 1996. File   No. BAPL961007FC. Additionally, a contingent application to transfer control of KDFX(AM) from Infinity to  yO-  Westinghouse was filed on November 1, 1996. File No. BTC961101EE. A separate pro forma application to assign  yO-  Jthe station to a voting trust has also been filed. File No. BAPL961108EF. This pro forma assignment would take   place if, at the time the merger is consummated, Infinity has acquired KDFX(AM) from Inspiration but the contingent application to transfer control of the station from Infinity to Westinghouse has not been approved. Moreover, Infinity has a nonattributable beneficial interest in an insulated trust   Mwhich holds the license of a sixth FM station. Westinghouse has submitted a showing that   demonstrates that the principal community contours of these stations are all mutually overlapping,   and thus constitute one market under the radio local ownership rules. Additionally,   jWestinghouse's showing indicates that there are more than 45 commercial radio stations in the   relevant local radio market. Consequently, upon consummation of the merger and the acquisition   of an AM station by Infinity, the merged entity would have attributable interests in eleven   stations, four AM and seven FM, in a single radio market and a nonattributable interest in a   12th station. Westinghouse's control of these stations in Dallas/Fort Worth would exceed both   kthe eight station limit for a local radio market of this size as well as the applicable cap of five sameservice stations by virtue of its ownership of seven FM stations.  X"- 655.  Proposed Divestiture of Dallas/Fort Worth Stations.  Westinghouse has pledged to   come into compliance with the radio local ownership rules' numerical limitations prior to or   Zcontemporaneously with the closing of the merger. Specifically, Westinghouse pledged to divest   two of its FM stations in this market and to that end Westinghouse's subsidiary, CBS, has filed",-(-(ZZ"   applications to assign the licenses of KTXQFM, Fort Worth and KRRW(FM), Dallas, to WHFS,  X-  .Inc., a subsidiary of SFX Broadcasting, Inc. See File Nos. BALH961017HA; BALH961017GL.  X-  iLikewise, Infinity has filed applications to divest one AM station and one FM station in this radio   market. Infinity has filed an application to assign KEWS(FM), Arlington, Texas to Inspiration  X-  Media of Texas, Inc. See File No. BALH961007GH. Additionally, Infinity has filed an  X-  application to assign KDMM(AM) to Marcos Rodriguez, Inc., a minority controlled entity. See   File No. BAL961018EB. Divestiture of these three FM stations and one AM station would bring   the merged entity's ownership of radio stations in this market to four FM stations and three AM   =stations, in compliance with the radio local ownership rules' applicable numerical limitations of   eight stations, no more than five of which are in the same service. Moreover, even were the trust   which now holds the additional FM license for Infinity's benefit to terminate, the merged entity's   attributable interest in a fifth FM station in the market would still comply with the radio local ownership rules' numerical limitations.  X - 756.  Dallas/Fort Worth Trust Applications. In addition to the applications to divest   stations, applications to assign certain other Infinity stations in the Dallas/Fort Worth radio   ymarkets to a trust have also been filed. Like the Chicago trust proposed by Westinghouse, this   \trust is fully insulated and is intended as a backup measure to facilitate the merged entity's   compliance with the radio ownership rules in the event that Westinghouse and Infinity's proposed   divestiture of stations in the Dallas/Fort Worth radio market has not occurred at the time that the   merger is consummated. Specifically, applications to assign KOAIFM, Fort Worth, KHVN(AM),  X-  Dallas, and KRBV(FM), Dallas, from Infinity to a trust have been filed. See File Nos. BAL  961011GJ, BALH961011GN, BALH961011GM. Westinghouse contends that assignment of   -these stations to the trust would eliminate Infinity's attributable interests in one AM and two FM   stations so that the merged entity would have five FMs and three AMs in the radio market, and   .thus comply with the radio ownership rules. Specifically, Westinghouse states that under the   jterms of the trust, KOAIFM, KHVN(AM) and KRBV(FM) would be operated and managed by   an independent trustee who has no business or familial relationship with Infinity or its affiliates.   Additionally, Westinghouse describes the trust as irrevocable, but states that the trust will remain   in effect until such time as the merged entity no longer holds attributable ownership interests,   jthrough the trust or otherwise, in more than eight radio stations or more than five same service radio stations in the Dallas/Fort Worth radio market.  V -ChicagoDallas/Fort Worth Discussion   X- 857.   We find that the merged entity would comply with the Commission's local radio   ownership rules in both the Chicago and Dallas/Fort Worth radio markets either through the   proposed divestiture of stations or through assigning the proposed stations to trusts. In this   \regard, the Commission has specifically found that trusts may be legitimately used to avoid  X#-  attribution of a broadcast interest under the Commission's multiple ownership rules. Attribution  Xh$-  of Ownership Interests, 97 FCC 2d 997, 1023 (1984), reconsideration granted in part, 58 RR 2d  XQ%-  L604 (1985), further reconsideration granted in part, 1 FCC Rcd 802 (1986)("Attribution"). Thus,   "trusts are occasionally established specifically to effect compliance with the Commission's rules  X#'-  for holdings which would violate the [multiple ownership] rules if held outright." Id. See e.g.,"#',-(-(ZZ%"  X-  kViacom Inc., 9 FCC Rcd 1577, 1578 (1994); Twentieth Holdings Corporation, 4 FCC Rcd 4052   (1989). Under the Commission's attribution criteria, the ownership interests of trustors or   beneficiaries will not be attributed to them if they are sufficiently insulated to prevent the   exercise of control or influence over the trustee. The trust agreements submitted by Infinity and  X-  xWestinghouse comply with the Attribution insulation standards, so that the stations to be held in   trust in Chicago and Dallas/Fort Worth would not be attributable to the merged entity.   Specifically, the trusts ensure that control of the stations to be placed in trust rests with, and must   be exercised solely by, the designated trustees. Additionally, in each trust, the trustee is an   independent individual with no familial or business relationships with the beneficiary or grantor.   Moreover, the trust instruments clearly state that there will be no communications with the trustee   regarding the management or operation of the stations subject to the trusts. The trusts terminate   if a sufficient number of stations are divested so that compliance with the radio local ownership   jrules is achieved by the merged entity holding no more than eight stations in either Chicago or   =Dallas/Fort Worth, no more than five of which are sameservice stations in either radio market.   However, the ability of Westinghouse or Infinity to revoke the trust by divesting of enough  X -  .stations to come into compliance with the radio local ownership rules is permissible. See, e.g.,  X-  Twentieth Holdings, 4 FCC Rcd at 4054. We are satisfied that the trusts conform to the  Xy-standards set out in Attribution.  XK- 958. However, we recognize that if the pledged divestiture of stations has not taken place   prior to consummation of the merger, and the trusts are implemented, the merged entity will hold   attributable interests in the maximum number of stations in both Chicago and Dallas/Fort Worth   Zat the same time that it is the beneficiary of insulated trusts which hold additional stations in each   market. Specifically, the merged entity will hold eight stations in Chicago, five of which are FM   stations and three of which are AM stations, and also have a beneficial interest in an additional   <AM station and an additional FM station. In Dallas/Fort Worth, the merged entity will hold eight   stations, five of which are FM stations, and three of which are AM stations, and also have a   [beneficial interest in three additional FM stations and one additional AM station. While these   trusts may be effective in avoiding the influence which would trigger attribution and our concern   [for diversity, we recognize that there could be an effect on competition in the relevant markets.   In this regard, we note that the stations held in trust, with the exception of WSCR(AM), are not   xbeing offered for sale to competitors who may otherwise choose to acquire those stations in order to compete more effectively with Westinghouse.  X- m:59. In this case, we are convinced, that we can approve this arrangement. Even if we   iwere to consider the market shares of the stations in trust as belonging to Westinghouse/Infinity,   ithe proposed, temporary ownership patterns created by these trusts do not pose an unacceptable   risk that Westinghouse will be able to impede competition in the relevant markets. We note that   =the postmerger radio advertising revenue share of the Chicago and Dallas/Fort Worth station   xcombinations, including stations held in trusts, is 37 percent and 44.3 percent respectively. These  Xh$-  ylevels are consistent with actions we have taken in the past. See S.E. Licensee G.P., FCC 96464  XQ%-  (Nov. 27, 1996); Shareholders of Citicasters, Inc., FCC 96380, (Sept. 17, 1996). Moreover, we   Znote that the Department of Justice has reviewed the Infinity/Westinghouse merger and although   the Department has required the divestiture of stations in Philadelphia and Boston, it has not"#',-(-(ZZ%"   raised antitrust challenges to Westinghouse's acquisition of Infinity radio stations in Chicago and   jDallas/Fort Worth. We believe that the Department's antitrust determinations in these markets   support our conclusion that Westinghouse's temporary ownership of stations in these markets will  X-  not pose unacceptable risks to competition. See Shareholders of Citicasters, Inc., FCC 96380, slip op. at 9.  Xv- ;60. Nevertheless, we emphasize that, we do not believe that trusts should be used as a   mechanism for warehousing stations in excess of statutory limits on radio ownership that could   Motherwise be sold to potential competitors. Therefore, we approve the trusts for the limited   Zpurpose of providing a means for the merger to proceed should the good faith and diligent efforts   of the parties to close the divesting transactions fail. Moreover, we believe that it is appropriate   <to ensure that the trusts which give Westinghouse beneficial interests in stations that exceed the   >numerical ownership limits are shortterm. Accordingly, we will approve the applications to   assign the proposed stations to trusts for a limited period of up to six months. This will allow   Westinghouse and Infinity a reasonable period of time to complete the pledged divestitures and to terminate the trust agreements.  Vy-  New York, Los Angeles, Philadelphia, San Francisco, Detroit, Boston, Washington, D.C.,  Vb-Baltimore, Houston, Atlanta  X4- <61. The merged entity will comply with the numerical ownership limitations of the local   Lradio ownership rules in New York, Los Angeles, Philadelphia, San Francisco, Detroit, Boston,   Washington, D.C., Baltimore, Houston, and Atlanta. With regard to the Philadelphia and Boston   radio markets, the Department of Justice has entered into an agreement with Westinghouse and   Infinity which requires Westinghouse to divest its interest in WMMR(FM), Philadelphia as well   .as its prospective interest in WBOS(FM), Boston. The required divestiture of the Boston and   NPhiladelphia stations will reduce Westinghouse's postmerger radio advertising share in   Philadelphia from 44.7 percent to 37 percent and in Boston from 40.6 percent to 36.5 percent.   Moreover, under the terms of the settlement agreement, Westinghouse and Infinity have agreed   /that the Philadelphia and Boston stations shall be maintained as separate and independent   [competitors to other Westinghouse and Infinity stations in these markets. Westinghouse and   Infinity have further agreed that they will not acquire any assets of or any financial or   management interest in any radio stations in Philadelphia or Boston without providing advance   notification to the Department. Specifically, the agreement obliges Westinghouse to notify the   Department prior to acquiring "any assets of or any interest, including any financial, security,   loan, equity or management interest in, any nonWestinghouse Radio Station or any person  X -  affiliated with any such Station..."   yO=#-  ;ԍ DOJ Settlement Agreement, Section X.A.1. This provision does not apply to transactions that are otherwise   subject to the reporting and waiting period requirements of the HartScottRodino Antitrust Improvements Act of   1976, as amended, 15 U.S.C.  18(a). Also, there is a limited exception that applies to the acquisition of equity interests of no more than five percent of a radio station in these markets.  Westinghouse and Infinity are also required to provide the   LDepartment advance notification before entering into joint sales agreements or local marketing"!,-(-(ZZ "  X-  agreements in Boston or Philadelphia.TX yOy-  ԍ DOJ Settlement Agreement, Section X.A.2. This provision also does not apply to transactions that are   otherwise subject to the reporting and waiting period requirements of the HartScottRodino Antitrust Improvements Act of 1976, as amended, 15 U.S.C.  18(a). T We have previously considered the Department's   antitrust determinations in connection with our inquiries concerning the broadcast ownership  X-  rules. Shareholders of Citicasters, Inc., FCC 96380, slip op. at 9. Here, we believe that the   LDepartment's antitrust determination is relevant and highly probative evidence concerning the effect of the merger in the relevant radio markets.   Xv- =62. In the remaining local radio markets where Westinghouse will acquire Infinity radio   xstations, the aggregate radio advertising revenue shares for the merged entity in the relevant local  XH-  =radio markets ranges from 17 percent to 36.5 percent.lXH yO -  ԍ Specifically, the postmerger radio advertising share for each radio market is: New York: 36.5 percent; Los   Angeles, 27.3 percent; San Francisco, 19.9 percent; Detroit, 31.3 percent; Washington, D.C., 17 percent; Baltimore, 18.5 percent; Houston, 17.2 percent; and Atlanta, 18 percent. l Under these circumstances, and based   yon the foregoing considerations, we find that the radio combinations which Westinghouse will   "ultimately control after consummation of the merger with Infinity, as modified by the   KDepartment's settlement agreement, do not pose unacceptable risks to competition in the relevant   radio markets. Thus, we conclude that, with respect to local radio ownership, nothing in the   Krecord in this case suggests that Westinghouse's acquisition of Infinity's radio stations would be  X -  inconsistent with the public interest. See, e.g., S.E. Licensee G.P., FCC 96464 (Nov. 27,   1996)(postacquisition radio advertising revenue share of 40.4 percent in Memphis, the 42nd   largest television market would not unduly affect competition and diversity during period of  Xy-  temporary, conditional waiver); Shareholders of Citicasters, Inc., FCC 96380 (Sept. 17,   1996)(postmerger radio advertising revenue share of 49 percent in Cincinnati, the 29th largest television market would not pose an unacceptable short term risk to competition).  X- ">63. However, our grant of the transfer of control of Infinity to Westinghouse will be   conditioned on compliance with the radio local ownership rules either by the divestiture of   stations in Chicago and Dallas/Fort Worth prior to consummation of the merger or transfer of the   Knamed stations in each market to the proposed trusts for a six month period while the divestitures   are completed. Moreover, given the magnitude of the holdings of Westinghouse in Dallas/Fort   Worth, Chicago, Philadelphia and Boston, we caution Westinghouse against involvement in any   significant financial investment, joint sales agreement or local marketing agreement with other stations in these markets.  XN-  Temporary OnetoaMarket Waiver Requests ă  X7- ` `  V -Background  X -  X- ] ?64.  Westinghouse has requested only temporary, conditional rule waivers for the radio  television combinations that will result from its merger with Infinity even though it believes that" ,-(-(ZZ"   permanent waivers would be permissible. In this regard, Westinghouse points out that in the   television ownership rulemaking proceeding, the Commission is considering revising the onetoa X-  market rule or eliminating the rule altogether. See Review of the Commission's Regulations  X-  Governing Television Broadcast Ownership in MM Docket Nos. 91221 and 878, FCC 96438   (Nov. 7, 1996)(Second Further Notice of Proposed Rule Making); 10 FCC Rcd 3524   Z(1995)(Further Notice of Proposed Rule Making). Westinghouse contends that in the Conference   Report that accompanied the Telecommunications Act of 1996, Congress specifically referred to   the television ownership proceeding and encouraged the Commission to consider the current   status of competition in the radio marketplace competition which led Congress to substantially   increase the numerical limits on local radio station ownership when considering whether to   Lpermit the ownership of television and radio stations in the same market. Telecommunications  X -  lAct of 1996, H.R. Rep. 104458, 104th Cong., 2d Sess., Joint Explanatory Statement of the  X -  Committee of Conference, Telecommunications Act of 1996, at 47, 163. Westinghouse argues   that the legislative history of the Telecommunications Act of 1996 thus indicates that the caseby  zcase standard for waiver of televisionradio crossownership restrictions should be liberally   applied. Westinghouse submits that extending the benefits of radiotelevision crossownership   is particularly appropriate in the markets where it proposes to add Infinity radio stations because   <those markets are the largest and most competitive in the nation. However, Westinghouse states   that it has requested temporary waivers in order to permit timely consummation of the merger   transaction and to avoid consideration of a request for permanent waiver of a rule that both the   Commission and Congress have indicated should be changed. Given the pendency of the   rulemaking, Westinghouse requests, with the exception of its acquisition of WBOS(FM), which   ?is subject to divestiture within six months under the DOJ Settlement agreement, that the   temporary waiver period extend for a period of six months following the conclusion of the television ownership rulemaking proceeding.  X- N@65. If Westinghouse's request for conditional onetoamarket waivers is granted, and it   acquires Infinity's radio stations subject to the outcome of the television ownership proceeding,   {Westinghouse will acquire additional radio stations in New York, Los Angeles, Chicago,   Philadelphia, San Francisco, Detroit, Boston, Washington, D.C. and Baltimore. In New York,   the merged entity will control a television/four AM/three FM station combination. In Los   Angeles and Detroit, the merged entity will control a television/two AM/four FM station  X -  jcombinations. In Chicago, it will control a television/three AM/five FM station combination.  yO-  iԍ This combination takes into account the required divestitures of an AM and an FM station. See paragraph  yOa -62 supra. ք   In Philadelphia, it will control a television/three AM/three FM station combination until after the   \divestiture of WMMR(FM), as required by the DOJ Settlement, and thereafter will control a   television/three AM/two FM station combination. In San Francisco, it will control a   television/three AM/four FM station combination. In Boston, Westinghouse has committed to   divest of WBOS(FM), one of the Boston FM stations it will acquire from Infinity, pursuant to   ythe DOJ Settlement Agreement. Thus, following the divestiture of WBOS(FM), Westinghouse   jwould control a television/one AM/four FM station combination. In Baltimore, Westinghouse"#! ,-(-(ZZe""   will control a television/two AM/ two FM station combination. Westinghouse's Baltimore   television station's Grade A contour also encompasses the entire community of license of an FM   Zstation in the Washington, D.C. market. Westinghouse was granted a permanent onetoamarket   waiver for this television/one FM station combination in Washington, D.C. when its merger with  X-  zCBS was approved. Stockholders of CBS Inc., 11 FCC Rcd 3767. Westinghouse will acquire   from Infinity an additional AM station and an additional FM station in the Washington, D.C.   market whose communities of license are also totally encompassed by its Baltimore television   xstation's Grade A contour. Thus, Westinghouse will control a television/one AM/two FM station combination in the Washington, D.C. market during the temporary waiver period.  X - A66. The conditional, temporary onetoamarket rule waivers requested by Westinghouse   involve markets that are among the top 25 television markets in the country. However, because   Westinghouse proposes to control a television station and more than one same service radio   station in each of the markets where it requests conditional onetoamarket rule waivers, it bases  X -  Zthe waiver requests on the more rigorous casebycase waiver standard. See paragraph 17, supra.  V-Waiver Showing  Xb- /B67. Benefits of Joint Operation. Westinghouse expects to realize substantial cost savings   in each of these markets based on its acquisition of Infinity radio stations on a temporary basis.   KThe total cost savings projected from the acquisition of Infinity stations in these markets is: New   York, $600,000; Los Angeles, $370,000; Chicago, $780,000; Philadelphia, $490,000; San   AFrancisco, $580,000; Detroit, $160,000; Boston, $170,000; and $335,000 for the two   radio/television combinations in Baltimore and Washington, D.C. Specifically, Westinghouse   anticipates cost savings attributable to centralized management, accounting, engineering, legal,   khuman resources and other functions in each market to be at least: New York, $300,000; Los   [Angeles, $120,000; Chicago, $180,000; Philadelphia, $120,000; San Francisco, $150,000; Detroit,   $150,000; Boston, $160,000; and $145,000 for the two radiotelevision combinations in Baltimore   and Washington, D.C. Westinghouse also anticipates additional cost savings in each market from   >combined purchasing power and promotional and other efficiencies, as follows: New York,   /$300,000; Los Angeles, $250,000; Chicago, $400,000; Philadelphia, $250,000; San Francisco,   $300,000; Detroit, $10,000; Boston, $10,000 and Baltimore and Washington, D.C., a combined   $10,000. In Chicago, Philadelphia, and San Francisco, Westinghouse expects cost savings from   consolidation of station facilities of $200,000, $120,000, and $130,000, respectively. The total   ]cost savings for Washington, D.C. and Baltimore also includes $180,000 in savings from   potential consolidation of facilities, including savings in rent, centralized telephone services and   Kmaintenance attributable to its plans to consolidate the studios and physical facilities of the radio and television stations in those markets.  X#- @C68. Westinghouse states that these cost savings will generate substantial economic   efficiencies from combined station operation, making possible a wide range of public interest   benefits in each market. In this regard, Westinghouse states that Infinity's radio stations will have   kaccess to the news and informational programming resources of its existing radiotelevision   combinations, bolstering the programming on Infinity stations, which have more typically"#'",-(-(ZZ%"   -employed formats based on personality/hosts and music. Westinghouse also states that Infinity   radio stations will have access to the substantial newsgathering and weather forecasting   mequipment, facilities and personnel of the Westinghouse/CBS stations. Furthermore,   Westinghouse asserts that combined television and radio station operations will enable its stations   to provide seamless coverage of important news and local events from the home to the car to the   workplace. Westinghouse also anticipates that the synergies resulting from the combined   Westinghouse/Infinity operations will yield substantial local programming and community service   benefits in each market. In this regard, Westinghouse states that its "Parent's Guide to Children's  XH-  [Educational Programming," described in paragraph 24 supra, will also be aired on Infinity radio   stations upon approval of the merger. Westinghouse also intends to broadcast the presidential  X -  candidate messages, described in paragraph 24 supra on the Infinity radio stations following the merger.  X - D69. Westinghouse states that the merger will permit additional public service   programming, including increased news, local programming and public affairs programming in   each market. The following, derived from Westinghouse's waiver showing, includes examples of   the local public affairs programming improvements that will be provided in each market. In New   [York, "Sunday Morning on the Fan," a local radio program focusing on community issues, will   be enhanced by sharing the news and public affairs resources of WCBSTV. In Los Angeles,   "Close Up," and in Chicago, "Chicago Close Up," both public affairs programs on Infinity radio   Mstations, will benefit from more indepth quality news and information production based on   iaccess to its coowned stations. In Philadelphia, "What You Should Know," a radio public affairs   yprogram, will be strengthened by sharing reporters and producers from its coowned television   and radio stations. In San Francisco, "Street Talk," will have access to reporters from its co  kowned television station. In Detroit, more indepth coverage of town meeting topics will be   -broadcast on Infinity station public affairs programming, such as "Metro Magazine." In Boston,   public affairs programs such as "Boston Sunday Review" will provide fuller coverage of more   issues. In Washington, D.C., and Baltimore, Westinghouse plans to coordinate public affairs   Lprogramming on its stations so that locally produced radio programs in these markets, such as  Xe-  "Basically Baltimore" and "AfricanAmerican Focus" will have greater depth and diversity. See   Exh. 2, Transfer of Control Application: Annex A at pages 35, 10; Annex B at pages 24, 9;   Annex C at pages 34, 9; Annex D at pages 35, 9; Annex E at pages 35, 10; Annex F at pages 34, 9; Annex G at pages 34, 9; Annex H at pages 34, 12.  X- E70. Westinghouse also specifically discusses community service programming and   /projects that will be enhanced by the combined ownership of its stations and Infinity radio   Lstations. For example, in New York, Westinghouse states that adding the combined reach and   -audience of Infinity stations to WCBSTV's "Family 2" campaign would extend the public service   benefits of this important campaign on family life. In Los Angeles, its television station's "Fight   [Hunger" day will benefit from support from its coowned Infinity radio stations, which will add   Znews stories and public service announcements on the campaign to collect food for regional food   .banks. In Chicago, Westinghouse will use WBBMTV to increase the reach of current Infinity   station promotions, such as the Children's Hospital campaign. In Philadelphia, Westinghouse   plans to add Infinity radio stations to the Black History Month campaign now jointly produced"#'#,-(-(ZZ%"   by KYWTV and KYW(AM). In San Francisco, Westinghouse states that public interest   campaigns for Children's Hospital, blood banks and food drives will be combined in order to   make the campaigns more comprehensive and to give the campaigns access to greater resources.   In Detroit, Infinity's current campaign supporting Ronald McDonald House will be added to   ?WWJTV's existing children's campaigns. In Boston, Westinghouse states that Infinity   community service projects like the sponsorship of an AIDS WalkAThon will be increased   through coordination with its coowned radio and television stations. In Washington, D.C. and   .Baltimore, Westinghouse states that the combined ownership and coordination of community   ]service outreach effort of its radio and television stations will expand the promotion and  X1-  {execution of such campaigns like "Black History Month." See Exh. 2, Transfer of Control   Application: Annex A at pages 56, 1; Annex B at pages 45, 10; Annex C at pages 45, 10;   Annex D at pages 56, 11; Annex E at pages 5, 11; Annex F at pages 45, 10; Annex G at pages 45, 10; Annex H at pages 5, 13.  X - F71. Westinghouse also states that the Equal Employment Opportunity Programs of   Infinity's radio stations will also benefit from increased human resources staff available from the   combined companies. Each station in a particular market will have access to the services of a   fulltime professional Human Resources Manager and supporting staff. The outreach resources   and relationships of the stations will be combined to ensure the maximum benefit of each  XK-station's outreach efforts. See paragraph 26 supra.  X- G72. Westinghouse presents an additional public interest benefit that will result from  X-  approval of the temporary waiver requests. In this regard, as discussed  supra at paragraphs 52   \and 55, three radio stations, two in the Chicago market, and one in the Dallas market, will be   sold to minoritycontrolled entities. Westinghouse thus contends that its pledge to increase   opportunities for minority ownership through these waiver requests will provide a public interest   benefit consistent with the Commission's commitment to enhancing minority ownership of broadcast stations.  Xe- >  H73.  Types of Facilities/Other Media Outlets In addition to the stations in Westinghouse's   permanent radiotelevision combinations, described in paragraph 28 above, Westinghouse also   describes the facilities of the Infinity radio stations which it proposes to acquire on a temporary   ?basis. In New York, WFAN(AM) is a Class A clearchannel station operating at 50 kW,   WZRC(AM), is Class B AM station operating at 5 kW, and WXRK(FM), is a Class B FM   station operating with 7.6 kW from a 1,220foot antenna. In Los Angeles, KRTH(FM), is a Class   B FM station operating at 51 kW from a 3,130foot antenna, and KROQ(FM), is a Class B FM   zstation operating at 5.6 kW with a 2,000foot antenna. In Chicago, WJJD(AM) is a Class B   Mstation, operating at 50 kW during the daytime and 5 kW at night, WUSN(FM), is a Class B   station operating at 8.3 kW with a 1,174foot antenna, WJMK(FM) is a Class B FM station   operating at 4.1 kW from a 1,575foot antenna, and WCKG(FM) is a Class B FM station"#$,-(-(ZZG""  X-  operating at 4.1 kW from a 1,581foot antenna. yOy-  Jԍ Westinghouse does not provide information concerning the facilities of WYSY(FM), an Infinity station that it would divest prior to consummation of the Westinghouse/Infinity merger. In Philadelphia, WIP(AM) is a Class B   station operating at 5 kW, and WYSP(FM) is a Class B FM station operating at 16 kW from a   ]900foot antenna. In San Francisco, KFRC(AM) is a Class B station operating at 5 kW,   KFRCFM is a Class B station operating at 50 kW from a 1,299 foot antenna, and KYCY(FM)   is a Class B station operating at 50 kW from a 492foot antenna. In Detroit, WXYT(AM) is   >a Class B station, operating at 5 kW, WOMC(FM) is a Class B station, operating at 190 kW   zfrom a 391foot antenna, and WYCD(FM), is also a Class B station, operating at 21 kW from a 755foot antenna.  X1- I74. In Boston, Westinghouse's WBZ(TV) is a VHF station operating on channel 4. Its   existing radio stations are: WBZ(AM), a Class A clearchannel station, operating at 50 kW; and   WODS(FM), a Class B FM station, operating at 16.5 kW from a 938foot antenna. The four FM   stations that Westinghouse proposes to acquire from Infinity on a temporary, conditional basis   [are all Class B stations. WBCN(FM) operates at 20.9 kW from a 771foot antenna. WZLX(FM)   operates at 21.5 kW from a 777foot antenna. WBOSFM, which will be divested pursuant to   >the DOJ Settlement Agreement, operates at 8.8 kW from a 1,100 foot antenna. WOAZ(FM)  X-  operates at 32 kW from a 600foot antenna. In the Washington, D.C. market, Westinghouse's   yWJZ(TV), Baltimore, a VHF station operating on channel 13, has a Grade A contour that totally   encompasses the communities of license of two radio stations that Westinghouse proposes to   acquire from Infinity on a temporary, conditional basis. Those two stations are: WPGC(AM),   ja Class B station operating with 50 kW during the daytime and with 270 watts at night; WPCG X-  FM, a Class B station operating with 50 kW from a 500foot antenna. Westinghouse's WJZ(TV)   also creates a radiotelevision combination with Infinity stations in Baltimore that Westinghouse   will acquire on a temporary basis. WXYV(FM) is a Class B FM station operating at 50 kW   from a 436foot antenna, WLIF(FM), is a Class B FM station operating at 13.5 kW from a 960  yfoot antenna, WCAO(AM) is a Class B station operating at 5 kW, and WJFK(AM) is a Class B station operating at 5 kW.   X|- J75. Westinghouse acknowledges that it proposes to combine stations with substantial   technical facilities in most of the markets. However, Westinghouse asserts that there are   ynumerous comparable AM, FM and television facilities owned by other entities in each market.   Furthermore, Westinghouse states that in all of these markets it will have to compete against   other established radio/television combinations as well as commonly owned radio station   combinations that have more than one sameservice radio station. Westinghouse also argues that   the number and types of facilities that comprise the radiotelevision combinations that it will own   on a conditional basis must be evaluated in light of the nature of competition and diversity in   these nine markets, all of which are large, highly diverse and competitive. Under these   circumstances, Westinghouse argues that the proposed temporary, conditional station combinations do not present issues of market domination inconsistent with the public interest. "#% ,-(-(ZZe""Ԍ X- K76. Additionally, other than the stations enumerated here, Westinghouse has other  X-  attributable interests in media outlets only in the Washington, D.C. market.\ yOb-  ԍ We note that Westinghouse's proposed acquisition of KOMEFM, San Jose, California, from Infinity is not   included in the temporary waiver request for the San Francisco market. According to Westinghouse's showing, the   JGrade A contour of KPIXTV, the television station that is part of the radiotelevision combination in this market,   does not totally encompass KOMEFM's community of license, nor does KOMEFM's 1mV/m contour totally   Zencompass San Francisco, the community of license of KPIXTV. Furthermore, although San Jose is included in   the Nielsen television DMA for the San Francisco market, it is located in a county that is outside the television metro   market, the relevant market for radio stations under the onetoamarket rule analysis. Consequently, KOMEFM   xdoes not constitute an additional San Francisco media outlet owned by Westinghouse under the third casebycase  yO -factor. \ In this regard, as  X-  discussed supra at paragraph 65, Westinghouse has a permanent radiotelevision combination,   iWJZ(TV) and WARW(FM), in Washington, D.C. Westinghouse will acquire another FM station   from Infinity, WJFK(FM), Manassas, Virginia, in the Washington, D.C. market that is not   iincluded in the temporary waiver request for that market. According to Westinghouse's showing,   the Grade A contour of WJZ(TV) does not totally encompass Manassas, nor does WJFK(FM)'s   1 mV/m contour encompass WJZ(TV)'s community of license. Therefore, Westinghouse's acquisition of WJFK(FM) does not implicate the onetoamarket rule.   X - L77.  Economic Status of the Stations. Westinghouse does not assert that any stations   involved in the temporary waiver requests are in financial distress. However, Westinghouse   -argues that financial considerations are of less importance because it has made a strong showing   that the public interest would be served by grant of the requested waivers. Additionally,   Westinghouse points out that the Commission does not require a waiver applicant to satisfy all   five factors relevant to the casebycase standard as a precondition to granting the requested one  toamarket waiver and cites recent precedent in which the Commission granted onetoamarket   waivers for station combinations that did not involve stations experiencing financial difficulties.  XK- M78. Competition and Diversity in the Markets. Westinghouse emphasizes that, except for   !Baltimore, the markets involved in the temporary waiver requests are among the top ten   xtelevision markets in the country. Westinghouse also notes that although Baltimore is not among   Mthe top ten markets, it ranks 23rd. Furthermore, Westinghouse argues that the Commission   ^previously found that competition and diversity in New York, Los Angeles, Chicago,   kPhiladelphia, San Francisco and Detroit is robust, and also argues that the same conclusion   japplies with equal force to Boston, Washington, D.C. and Baltimore, the other markets at issue   =here. Specifically, for each of these markets, Westinghouse has provided data concerning the   number of radio and television stations in each market, the number of separate owners of those  X|-  facilities and the presence of cable and other mass media outlets.d| yO#-  ԍ As discussed in footnote 16, supra, Westinghouse requests that the Commission rely on its amended   showing, associated with the applications to transfer control of Infinity for its determination of the number of   .broadcast stations and separately owned voices in each market. In this regard, Westinghouse states that this   information is derived from "Broadcasting and Cable Yearbook 1996," the BIA Publications, Inc. database and ownership reports on file with the Commission. d For the New York, Los"|&H ,-(-(ZZ"   Angeles, Chicago, Philadelphia, San Francisco and Detroit markets, the number of radio and television stations is set forth in paragraph 31 above.  X- N79. As to three remaining markets where it will acquire Infinity radio stations,   Westinghouse states that Boston is the sixth largest television market in the country, and has 17   Zcommercial and noncommercial television stations, licensed to 14 separate owners. Additionally,   there are 68 commercial and noncommercial radio stations (29 AM and 39 FM) in the Boston   television metro market which are owned, operated and controlled by 54 separate individuals or   entities. There are also 34 daily newspapers published in the market and cable penetration is   x76.8 percent. Westinghouse states that Washington, D.C. is the seventh largest television market   in the country, and has 17 commercial and noncommercial television stations, licensed to 15   separate owners. Additionally, there are 64 commercial and noncommercial radio stations (34   AM and 30 FM) in the Washington, D.C. television metro market which are owned, operated and   ycontrolled by 41 separate individuals or entities. There are also 17 daily newspapers published   in the market and cable penetration is 66.4 percent. Westinghouse states that Baltimore is the   ]twentythird largest television market in the country, and has eight commercial and non  commercial television stations licemsed to seven separate owners. Additionally, there are 38   commercial and noncommercial radio stations (18 AM and 20 FM) in the Baltimore television   metro market which are owned, operated and controlled by 31 separate individuals or entities.   -There are also six daily newspapers published in the market and cable penetration is 62.2 percent. Additionally, Westinghouse notes that each of these three markets is served by MMDS facilities.  X- O80. Westinghouse's request for conditional waivers to acquire additional Infinity radio   \stations in these markets assumed that its request for permanent waivers has been granted.   yTherefore, Westinghouse's showing indicates that the number of separately owned facilities in   these markets following the merger is: 111 separate broadcast voices in the New York market;   84 separate broadcast voices in the Los Angeles market; 104 separate broadcast voices in the   Chicago market; 64 separate broadcast voices in the Philadelphia market; 53 separate broadcast   voices in the San Francisco market; 50 separate broadcast voices in the Detroit market; 66   iseparate broadcast voices in the Boston market; 53 separate broadcast voices in the Washington, D.C. market and 31 separate broadcast voices in the Baltimore market.  V7-  V -Opposition to Waiver   X- P81. In its petition to deny the temporary, conditional onetoamarket waivers associated   Kwith Westinghouse's acquisition of Infinity, Spectrum reiterates the same arguments that it raised   against Westinghouse's request for permanent waivers and which have already been rejected  X!-  Labove. Additionally, Spectrum asserts that by virtue of its merger with Infinity, Westinghouse   kwill garner expanded market power. Specifically, Spectrum states that the merged entity will   \control the following percentage of radio advertising revenue in each market: New York, 36   percent; Los Angeles, 26 percent; Chicago, 32 percent; San Francisco, 19 percent; Philadelphia,   44 percent; Detroit, 30 percent; Boston, 39 percent; and Washington, D.C./Baltimore, 21 percent.   Serafyn/UCCA oppose Westinghouse's request for temporary, conditional onetoamarket waivers   by incorporating by reference the arguments made by Spectrum. Serafyn/UCCA also argue that"#'',-(-(ZZ%"   "approval of the requested onetoamarket waivers will diminish diversity and permit Westinghouse to broadcast more programming like "The Ugly Face of Freedom."  V-Discussion  X-  X- 1Q82. In evaluating the temporary waiver requests, we will be guided by the five factor   casebycase waiver standard. However, different weight may be given to those factors, and the   factors themselves may be evaluated in light of the limited duration of the proposed  XH-  [combinations. See Stockholders of CBS Inc., 11 FCC Rcd 3755, 3769. In this regard, temporary   ownership rule waivers may be incidental to the larger merger, and the Commission has   determined that a temporary waiver of the multiple ownership rules will, by facilitating the   merger and promoting commerce, encourage investment in the broadcast industry, and allow for   the free transfer of broadcast licenses. Thus, where mergers or transfers of multiple stations are   involved, the Commission has granted temporary rule waivers, including waivers of onetoa  jmarket rule, in order to give the parties a reasonable period of time to effectuate the merger and  X -  to come into compliance with the Commission's multiple ownership rules. See, e.g., Shareholders  X-  \of Citicasters, Inc., FCC 96380 (Sept. 17, 1996); Stockholders of CBS Inc., 11 FCC Rcd 3733;  Xy-Viacom Inc., 9 FCC Rcd 5165 (1994).   XK- R83. We find that permitting Westinghouse to acquire additional radio stations from   Infinity, conditioned on the outcome of the television ownership proceeding, will not unduly   affect competition and diversity in these markets, given the limited duration of these waivers.   In this regard, we note that the size of the markets involved and the nature of competition therein   reduces any threat that Westinghouse's stations combinations could dominate these markets in the   [short run. Moreover, the temporary waivers will facilitate Westinghouse's merger with Infinity   and the exigencies of acquiring Infinity's 43 radio stations located throughout the country. We   also find that the petitions filed by Spectrum and Serafyn/UCCA fail to raise substantial and   material questions of fact that would preclude grant of the temporary, conditional waiver requests.  Xe- $S84. Beyond facilitating the underlying merger transaction, Westinghouse has   demonstrated that it will realize specific cost savings from its acquisition of Infinity radio   stations. Westinghouse expects to achieve total additional savings of at least $3,485,000 in the   markets where it will acquire Infinity's radio stations. Of this total, $1,325,000 will come from   Zconsolidation of personnel and management and human resources functions. Another $1,530,000   is attributable to combined purchasing and promotion for the stations, with an additional   m$630,000 in savings from consolidation of station facilities in Chicago, San Francisco,   Philadelphia, Washington, D.C. and Baltimore. We note that Westinghouse has not amended its   waiver request to account for cost savings for WBOS(FM), which will be divested in accordance   with the DOJ settlement agreement. Nevertheless, the total cost savings based on Westinghouse's acquisition of Infinity stations is also significant.  XQ%- lT85. As a result of its merger with Infinity, Westinghouse will acquire an additional clear  channel Class A station in New York, but will acquire no other clearchannel Class A facilities   from Infinity in the other markets where temporary waivers are requested. Thus, in New York,"#'(,-(-(ZZ%"   Westinghouse would acquire a second, less powerful Class B AM station from Infinity, and   would acquire one Class B AM station in Chicago, Philadelphia, San Francisco, Detroit, and   Washington, D.C. and two Class B AM stations in Baltimore. With regard to the FM stations   that Westinghouse will acquire from Infinity on a temporary basis, all are Class B stations.   Westinghouse will divest of WBOS(FM), pursuant to the DOJ Settlement Agreement. Of the   remaining Class B FM stations, one FM in Los Angeles, one FM in San Francisco, and one FM   in Detroit operate with the most powerful facilities of the FM stations in these markets.   Additionally, one FM station in Washington, D.C. and one FM station Baltimore operate at maximum power.  X - U86. Thus, as Westinghouse acknowledges, its merger with Infinity will result in its   combined ownership of stations with substantial technical facilities. However, we will consider   the broadcast outlets to be commonly owned by Westinghouse as a result of the conditional   waivers, "against the backdrop of the fifth factor, the nature of the relevant market[s]"  X -  Stockholders of CBS Inc., 11 FCC Rcd at 3772. As discussed more fully at paragraph 88 infra,   Westinghouse's temporary station combinations affect markets that are among the largest in the   country, and are served by substantial numbers of competing stations that represent a plethora   kof independent broadcast "voices." Furthermore, although the facilities that Westinghouse   proposes to own on a temporary basis are significant, Westinghouse has also demonstrated that   [there comparable facilities in these markets. Thus, we conclude that Westinghouse will not be   \able to dominate the markets based on the nature of the facilities involved in its conditional waiver requests.  X- V87. With regard to the third factor, Westinghouse will own media outlets other than those   listed in its requests for temporary waivers in Washington, D.C., where it will own one additional   FM station that does not come within the onetoamarket rule's radiotelevision contour overlap  X-  provisions. See paragraph 76 supra. Fourth, regarding the financial status of the stations in the   temporary, conditional waiver combinations, none of the stations involved is experiencing   financial difficulties. However, Westinghouse is not required to demonstrate that the stations in   these combinations are experiencing financial difficulties as a precondition to grant of the   temporary and permanent waiver requests. The Commission has previously granted onetoa  X7-  kmarket rule waivers in the absence of financial difficulties. See, e.g., S.E. Licensee G.P., FCC  X -  96464 (Nov.27, 1996); Shareholders of Citicasters, Inc., FCC 96380 (Sept. 17, 1996); Louis C.  X -  DeArias, Receiver, 11 FCC Rcd 3662 (1996); Henry Broadcasting Co., 11 FCC Rcd 1175 (1995);  X-  Alta Gulf FM, Inc., 10 FCC Rcd 7750 (1995); Secret Communications, Ltd., 10 FCC Rcd 6874 (1995).  X!- lW88. Next, we turn to the fifth factor, competition and diversity based on Westinghouse's   Ltemporary waiver requests for the additional radio television combinations that will result from   its merger with Infinity. Eight of the nine markets affected by Westinghouse's temporary waiver   requests, New York, Los Angeles, Chicago, Philadelphia, Detroit, Boston, and Washington, D.C.   are among the top ten television markets in the country, and Baltimore, the ninth market affected   by the temporary waiver requests, is the 23rd largest. We find, as we did in the context of the   permanent onetoamarket waiver requests, that New York, Los Angeles, Chicago, Philadelphia,"#'),-(-(ZZ%"   iSan Francisco and Detroit enjoy robust competition and diversity, and will continue to do so after   Westinghouse adds Infinity radio stations in these markets on a temporary basis. This conclusion   Mapplies with equal force to Boston, Washington, D.C. and Baltimore. These markets will be   served by at least 38 radio stations and as many as 133 radio stations following the merger of   Infinity and Westinghouse. Additionally, the number of television stations in these markets will   yrange from eight stations to 25. Our independent analysis of data submitted by Westinghouse   confirms that there will be at least 30 separately owned broadcast "voices" in these markets and   as many as 111 separate broadcast voices in the markets affected by the temporary, conditional   Zwaiver requests. Additionally, the markets all have substantial cable penetration rates, the lowest   of which is 58.8 percent. Numerous daily and weekly newspapers also serve these markets, and all of the markets are served by MMDS facilities.  X - X89. With regard to economic concentration and competition in the markets affected by   the temporary waivers, Spectrum cites news articles concerning Westinghouse's potential radio   revenue shares based on its addition of Infinity stations to the permanent radiotelevision   -combinations that it proposes in these markets. However, Spectrum does not indicate the source   !of the revenue data contained in these articles. Our independent analysis indicates that   Westinghouse will have a substantial share of the combined radio and television advertising  Xb-  revenue in these markets.B Xb yO-  =ԍ We have already considered and found acceptable in terms of impact on competition the radio station  yO-  combinations which the merger will produce. See paragraphs 5763 supra and the revenue share data and discussion therein. B The television and radio stations together receive the following   combined television and radio advertising shares in each market: New York, 21 percent, Los   Angeles, 16.3 percent; Chicago, 19.4 percent; Philadelphia, 24.9 percent; San Francisco, 18.6  X-  percent; Detroit, 10.5 percent; Boston 23.9 percent; and Baltimore, 23.1 percent.v!X yO-  ԍ We note that no combined radio and television advertising revenues are available for the Washington, D.C.   radiotelevision combination, because the television station involved, WJZ(TV), is a Baltimore station and we cannot determine the portion of WJZ(TV)'s revenues attributable to Washington, DC. v These shares  X-  do not pose a threat to competition in these very diverse and competitive markets. See, e.g., S.E.  X-  Licensee G.P., FCC 96464 (Nov. 27, 1996); Shareholders of Citicasters, Inc., FCC 96380 (Sept. 17, 1996).  X- Y90. We conclude, based on the record, that given their limited duration, the temporary   <waivers requested by Westinghouse are warranted and will, on balance, serve the public interest.   Specifically, these temporary waivers, pending resolution of the television ownership rulemaking   proceeding, will facilitate the overall merger of Infinity and Westinghouse. The Commission has   <stated that the benefits of merger transactions, which involve multiple stations, support the grant  X7-  of a reasonable waiver period to effectuate the merger. See, e.g., Stockholders of CBS Inc., 11   FCC Rcd at 3755. Furthermore, a number of other factors support our conclusion. First, we note   xthat the levels of advertising revenues attributable to the temporary radiotelevision combinations   \are not so significant as to raise a concern that diversity and competition in these markets  X-  among the topranked in the country will be unduly affected for the waiver period. See, e.g.,"*!,-(-(ZZ"  X-  \S.E. Licensee G.P., FCC 96464 (Nov. 27, 1996); Shareholders of Citicasters, Inc., FCC 96380   (Sept. 17, 1996). Additionally, the Justice Department has entered into an agreement with   <Westinghouse and Infinity, which requires Westinghouse to divest of WMMRFM, Philadelphia   Zand its prospective interest in WBOSFM, Boston, but has otherwise determined not to challenge   the Infinity/Westinghouse merger on antitrust grounds. The Department's determination, coupled   with the conditions we will impose in this order with respect to joint sales agreements and local   marketing agreements in Philadelphia and Boston, adequately assure us that grant of the   temporary waivers will not have an undue adverse effect on competition in the relevant markets.   We furthermore believe that diversity in these markets will not be adversely affected during the   temporary waiver periods. As Westinghouse's showing suggests, and our own analysis confirms,   more than 30 independent voices will remain in these markets after the proposed merger. In this   regard, Serafyn/UCCA makes a general argument that grant of requested temporary waivers will   <diminish diversity and permit Westinghouse to broadcast more programming like "The Ugly Face   of Freedom" However, neither Serafyn/UCCA nor Spectrum has presented evidence that   !Westinghouse will dominate the markets in which the temporary waivers are requested.   Furthermore, we have rejected Serafyn's argument that the broadcast of "The Ugly Face of  X-  Freedom" affects Westinghouse's qualifications to be a Commission licensee. See paragraph 9,  Xy-supra.   XK- Z91. Thus, we find that given the overall benefits of the merger of Infinity and   Westinghouse, the temporary combinations will not adversely affect diversity and competition.   In this regard, although Westinghouse will control stations in these markets with significant   technical facilities, comparable facilities exist. Moreover, Westinghouse's temporary, conditional   waiver requests will result in significant economic efficiencies and public interest benefits. These   benefits include: improvements and enhancement of news and local programming, including   increased promotion of children's television programming and the provision of time to major   presidential candidates; a commitment to increasing outreach to minorities and women as well   Mas divestiture commitments that will increase minority ownership in markets affected by the   temporary waiver requests. We further find, as we did with respect to the permanent waiver   requests, that these public interest benefits outweigh any diminution in diversity that result from   /the totality of the temporary, conditional onetoamarket waivers requested. Spectrum and   /Serafyn/UCCA's generalized arguments in opposition to the temporary waiver requests are   yinsufficient to support a finding that these waiver requests should be denied. Westinghouse's   request for six month rule waivers following an Order issued in the pending television ownership   yproceeding is consistent with recent precedent, and accordingly will be granted for this period.  X-  See, e.g., S.E. Licensee G.P., FCC 96464 (Nov.27, 1996); Shareholders of Citicasters, Inc., FCC  X -96380 (Sept. 17, 1996); Broad Street Television, L.P., FCC 96106 (Mar. 12, 1996).  X#- G=CONCLUSION ă  XQ%- {[92. For the reasons stated above, we conclude that grant of Westinghouse's request for   Zpermanent onetoamarket waivers and grant of Westinghouse's request for temporary onetoa  market waivers for a period of six months from the issuance of an Order in our pending"#'+!,-(-(ZZ%"   Ztelevision ownership proceeding are warranted. Additionally, we find that the applicants are fully   qualified, that grant of the permanent waivers to permit Westinghouse to retain radiotelevision   ycombinations for which it was granted temporary twelvemonth onetoamarket rule waivers in  X-  Stockholders of CBS Inc., 11 FCC Rcd 3733 (1995), appeal pending sub nom. Alexander J.  X-  kSerafyn v. FCC, No. 951385 (D.C. Cir.) would serve the public interest, and that grant of the   transfer of control of the Infinity radio stations to Westinghouse would serve the public interest.  X_- \93. Accordingly, IT IS ORDERED, That the petition to deny filed by Spectrum Detroit,   Inc. against Westinghouse's request for permanent rule waivers IS HEREBY DENIED, the   ypetitions to deny the transfer of control of Infinity Broadcasting Corporation to Westinghouse   LElectric Corporation filed by Spectrum Detroit, Inc. and Alexander J. Serafyn and the Ukrainian   Congress Committee of America, Inc. ARE HEREBY DENIED, and the Motion for Stay Pending   Appellate Review filed by Alexander J. Serafyn and the Ukrainian Congress Committee of America, Inc. IS HEREBY DISMISSED as moot.  X - 1]94. IT IS FURTHER ORDERED, That permanent waivers of the onetoamarket rule,   Section 73.3555(c), to permit common ownership of the following combinations in the following   six markets ARE GRANTED: WCBSTV, WCBS(AM), WINS(AM), WCBSFM, and   yWNEW(FM), New York; KCBSTV, KNX(AM), KFWB(AM), KCBSFM, and KTWV(FM), Los   Angeles; WBBMTV, WBBM(AM), WMAQ(AM), and WBBMFM, and WXRT(FM), Chicago;   KYWTV, KYW(AM), WPHT(AM), and WOGLFM, Philadelphia; KPIXTV, KCBS(AM),   KPIX(AM), KLLCFM, and KPIX(FM), San Francisco; WWJTV, WWJ(AM), WVMVFM, and WYST(FM), Detroit.  X- ^95. IT IS FURTHER ORDERED, That the request for a temporary waiver of the oneto  lamarket rule to permit common ownership station WMMR(FM), and stations KYWTV,   jKYW(AM), WPHT(AM), and WOGLFM, Philadelphia, IS GRANTED, provided however, that   within six months of the consummation of the transfer of control of Infinity Broadcasting   Corporation to Westinghouse Electric Corporation, Westinghouse Electric Corporation SHALL   {FILE an application for Commission consent to assign the license of WMMR(FM) to an unrelated party.  X - _96. IT IS FURTHER ORDERED, That the Request for Grant of Permanent or For   yExtension of Temporary Waivers filed October 18, 1996 by Westinghouse Electric Corporation, insofar as it requests the extension of temporary waivers, IS HEREBY DISMISSED as moot.  X - 3`97. IT IS FURTHER ORDERED, That the request for temporary waivers of the   Commission's onetoamarket rule, Section 73.3555(c), to permit common ownership of the   following stations in the following nine markets: WCBSTV, WCBS(AM), WINS(AM), WCBS  FM, WNEW(FM), WXRK(FM), WFAN(AM), and WZRC(AM), New York; KCBSTV,   KNX(AM), KFWB(AM), KCBSFM, KTWV(FM), KROQFM, and KRTH(FM), Los Angeles;   jWBBMTV, WBBM(AM), WMAQ(AM), WBBMFM, WXRT(FM), WJJD(AM), WJMK(FM),   WUSN(FM), and WCKG(FM) Chicago; KYWTV, KYW(AM), WPHT(AM), WOGLFM,   WIP(AM) and WYSP(FM) Philadelphia; KPIXTV, KCBS(AM), KPIX(AM), KLLCFM, "#',!,-(-(ZZ%"   zKPIX(FM), KFRC(AM), KFRCFM, and KYCY(FM), San Francisco; WWJTV, WWJ(AM),   WVMVFM, WYST(FM), WXYT(AM), WOMC(FM) and WYCDFM, Detroit; WBZTV,   0WBZ(AM), WODSFM, WBCN(FM), WZLX(FM), and WOAZ(FM), Boston; WJZTV,   WARW(FM), WPGC(AM), WPGCFM, Washington, DC; and WJZTV, WJFK(AM), WLIFFM,   WCAO(AM), and WXYV(AM), Baltimore ARE GRANTED, subject to the outcome in the  X-  pending television ownership rulemaking, (Second Further Notice of Proposed Rulemaking in   jMM Docket Nos. 91221 and 878), concerning these issues. Should divestiture be required as   a result of that proceeding, Westinghouse Electric Corporation IS DIRECTED to file an   -application for Commission consent to sell the necessary stations to comply with that divestiture  X1-requirement within six months from the release of an Order in the rulemaking proceeding.  X - `a98. IT IS FURTHER ORDERED, That the request for a temporary waiver of the   .Commission's onetoamarket rule, Section 73.3555(c), to permit common ownership of WBZ  LTV, WBZ(AM), WODSFM, WBCN(FM), WZLX(FM), WOAZ(FM), and WBOS(FM), Boston   IS GRANTED, but within six months of the consummation of the transfer of control of Infinity   Broadcasting Corporation to Westinghouse Electric Corporation, Westinghouse Electric   Corporation SHALL FILE an application for Commission consent to assign the license of WBOS(FM) to an unrelated party.  XK- b99. IT IS FURTHER ORDERED, That the request for a temporary waiver of the   Commission's onetoamarket rule, Section 73.3555(c), to permit common ownership of KYW  TV, KYW(AM), WPHT(AM), WOGLFM, WIP(AM), and WMMR(FM), Philadelphia; IS   MGRANTED, but within six months of the consummation of the transfer of control of Infinity   Broadcasting Corporation to Westinghouse Electric Corporation, Westinghouse Electric   Corporation SHALL FILE an application for Commission consent to assign the license of WMMR(FM) to an unrelated party.  X- c100. IT IS FURTHER ORDERED, That the applications to assign the license of KOAI  yFM, Fort Worth, Texas, from Infinity KOAIFM Licensee Corporation to the DallasFort Worth   Stations Trust, Bill Clark, Trustee, File No. BALH961011GJ and the applications to assign the   Mlicenses of KHVN(AM), For Worth, Texas and KRBV(FM), Dallas, Texas, from Infinity Fort   Worth Licensee Corporation to the DallasFort Worth Stations Trust, Bill Clark, Trustee, File   Nos. BAL961011GM, BALH961011GN ARE HEREBY GRANTED for a temporary six month period.  X- d101. IT IS FURTHER ORDERED, That of the licenses of WSCR(AM) and WXRT(FM),   =Chicago, from Westinghouse Electric Corporation/Group W Broadcasting, Inc. to the Chicago   Stations Trust, Henry Rivera, Trustee, File Nos. BAL961011GC, BALH961011GL ARE HEREBY GRANTED for a temporary six month period.  Xh$- ^e102. IT IS FURTHER ORDERED, That the applications for consent to the transfer of   control of Infinity Broadcasting Corporation radio stations, BTC, BTCH, BTCFTB960722GE   zthrough 960722A4, ARE HEREBY GRANTED, upon the following conditions: (1) that prior   to consummation of the transaction, Westinghouse Electric Corporation and Infinity Broadcasting"#'-!,-(-(ZZ%"   Corporation have collectively divested themselves of sufficient stations, or consummated the   Zassignment of stations to the Chicago Stations Trust and the Dallas Fort Worth Stations Trust so   jthat the merger will result in Westinghouse Electric Corporation controlling no more than eight   stations, no more than five of which are in the same service, in Chicago and Dallas/Fort Worth;   k(2) that prior to consummation of the transaction, the transactions assigning the licenses of   WYSY(FM), Aurora, Illinois and WCKG(FM), Elmwood Park, Illinois from Cox Radio, Inc. to   jInfinity Broadcasting Corporation and assigning the licenses of WHOO(AM), WHTQFM and   WMMOFM, all Orlando, Florida, from Infinity Broadcasting Corporation to Cox Radio Inc. have   {been consummated; (3) that prior to consummation of the transaction, the assignment of   KDFX(AM), Dallas, Texas, from Inspiration Media of Texas, Inc. to Infinity Broadcasting   Corporation of Dallas has been consummated and the contingent application transferring control   Zof KDFX(AM) from Infinity Broadcasting Corporation to Westinghouse Electric Corporation, File  X -  LNo. BTC961101EE, has been consummated or the contingent pro forma application assigning   >the license of KDFX(AM) to Infinity Broadcasting Corporation of Dallas II, File No. BAPL  .961108EF has been consummated. Our action granting the transfer of control is taken without   prejudice to the Commission's future enforcement of 18 U.S.C.  1464 and the relevant provisions of the Communications Act relating to the broadcast of indecent programming. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary  X-  X-  X|-      X -