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WYLER, SR. FOUNDATIONR)hpp  xx (Transferor)R) R)  X -and R)hFile Nos.BTC970319IX  X -R)hppBTCH970319IY  Xr -COMCORP OF EL PASO, INC.R)hR)hppBTCCT970319IZ 0  X[ -(Transferee)R)hpp  XD -R)hpp For Consent to the Transfer of Control of R) TriState Broadcasting Co., Inc., Licensee of R) KTSMTV, KTSMFM and KTSM(AM),R) El Paso, TexasR) T  X-  MEMORANDUM OPINION AND ORDER TP  Xu-X` hp x (#%'0*,.8135@8:operated for 35 years. So that it may continue the common ownership and operation of the  xtelevision and radio stations, ComCorp El Paso requests a permanent waiver of 47 C.F.R.  x 73.3555(c), the Commission's onetoamarket rule, which generally proscribes the common  X- xownership of television and radio stations in the same market.G yO- xyԍ Section 73.3555(c) of the Commission's Rules prohibits the common ownership of radio and television  xstations in the same market if the 2 mV/m contour of an AM station or the 1 mV/m contour of an FM station  xencompasses the entire community of license of a television station or, conversely, if the Grade A contour of a  yOu- xtelevision station encompasses the entire community of license of an AM or FM station. See 47 C.F.R.  73.3555(c). G Though no new onetoamarket  xcombination will be created here, the contemplated transfer of control of KTSMTV, KTSMFM  xand KTSM(AM) to ComCorp El Paso requires a renewed onetoamarket showing based on  xcurrent market conditions. For the reasons discussed below, we will grant the transfer of control  XH-and the pro forma assignment applications, all of which are unopposed.  REQUEST FOR WAIVER OF THE ONETOAMARKET RULE   ?x3. ComCorp El Paso bases its waiver request on the onetoamarket standards adopted  X - xin the Second Report and Order in MM Docket No. 877, 4 FCC Rcd 1741 (1988) (Second  X - xzReport and Order), recon. denied in part and granted in part, 4 FCC Rcd 6489 (1989) (Second  X - xReport and Order Recon.). In accordance with these standards, the Commission presumptively  xfavors requests involving: (1) stations serving the top 25 markets where at least 30 separately  xowned, operated and controlled stations will remain following the proposed combination; or (2)  Xb- x"failed" stations, i.e., stations which have not been operating for a substantial period of time or  xiare involved in bankruptcy proceedings. Otherwise, waiver requests must be evaluated under the  xmore rigorous casebycase standard. 47 C.F.R.  73.3555(c), n.7. ComCorp El Paso submits  xits waiver request pursuant to the casebycase standard because El Paso is the 99th largest  xlDesignated Market Area (DMA) in the country and because KTSMTV, KTSMFM and KTSM(AM) are not failed stations.   >x4. Under the casebycase standard, the Commission makes a public interest determination  xby weighing five factors: (1) the potential public benefits of joint operation of the facilities, such  xas economies of scale, cost savings, and programming and service benefits; (2) the types of  x-facilities involved; (3) the number of media outlets owned by the applicant in the relevant market;  xy(4) the financial difficulties of the stations involved; and (5) the nature of the relevant market in  XN- xthe light of the level of competition and diversity after the joint operation is implemented. See  X7-Second Report and Order, 4 FCC Rcd at 1753.  X -  x5. Benefits of Joint Operation. ComCorp El Paso asserts that KTSMTV, KTSMFM and  xKTSM(AM) have been jointly owned and operated for 35 years, resulting in operating  xefficiencies which have permitted enhanced programming for local residents. In particular,  xComCorp El Paso claims that the common ownership of KTSMTV and KTSM(AM) has enabled  x[KTSM(AM) to broadcast an allnews/talk format, the only one of its kind in the El Paso market"!x,-(-(ZZ "  xother than that of a sports talk station. This format, ComCorp El Paso maintains, depends on  xKTSMTV's news department, which supplies news and news personnel to KTSM(AM) and  xzprovides the AM station with access to news gathering, production and editing equipment.  xKTSMTV's news anchors and/or news reporters, moreover, air daily news broadcasts on  xKTSM(AM), including five local news reports each morning, four news updates each afternoon,  xa fiveminute news, weather and sports update, and an evening news simulcast each evening.  xjComCorp El Paso also states that KTSMTV broadcasts weather and news updates on KTSM x-FM, and routinely simulcasts local breaking news stories, in lieu of regular programming, on both radio stations for the benefit of motorists in their cars.   Ox6. According to ComCorp El Paso, separation of the television station from the radio  xZstations would generate substantial cost increases, which in turn would "seriously undermine the  xyability to continue the allnews/talk format on the AM facility." These asserted cost increases,  xresulting from the discontinuation of the stations' common ownership and operation, would total  xat least $170,000 per year from the separate expenses of leasing or purchasing tower space  x($20,000), operational costs such as personnel, power/electricity and phone systems ($50,000  x$100,000) and increasing the radio staff by at least five people ($100,000 $150,000). ComCorp  xEl Paso estimates additional costs of at least $250,000 for the acquisition or leasing of new  xstudios, plus remodeling ($200,000), the reconfiguration of studio/transmitter links ($25,000) and  xthe purchase of news gathering, production and editing equipment ($25,000 $50,000).  x>ComCorp El Paso contends that, without connection to a local television news department,  xKTSM(AM) could neither afford to gather, produce, edit and broadcast its own local El Paso  xnews and weather, nor economically justify the acquisition of sophisticated news gathering,  xyproduction and editing equipment typically found in television news departments. In addition,  xyComCorp El Paso claims that, without common ownership, KTSM(AM) and KTSM(FM) would  xKbe unable to broadcast continuous live newscasts to their listeners during emergencies and other  xevents as they do by simulcasting such newscasts produced by, and aired on, KTSMTV. The  xLcontinued combination of the three stations "will permit improved coverage of news and other  x0stories of interest to the FM audience." ComCorp El Paso also states that it will use the combination to improve the news and public affairs programming on KTSMFM.  X7-  x7. Other Media Outlets/Types of Facilities. ComCorp El Paso asserts that it presently  xowns no media outlets in the El Paso market. In describing the types of facilities involved,  xComCorp El Paso states that KTSMTV operates on Channel 9 at an Effective Radiated Power  x(ERP) of 316 kW, and an antenna height above average terrain (HAAT) of 582 meters.  xAccording to ComCorp El Paso, for viewership KTSMTV competes with 12 other television  x/stations in the El Paso DMA, five of which have comparable facilities to that of KTSMTV.  xKTSMFM is a Class C FM station operating on Channel 260 (99.9 MHz), with an ERP of 100  xkW and an HAAT of 555 meters. KTSM(AM) is a Class B station which operates on 1380 kHz,  x5 kilowatts power, unlimited hours. ComCorp El Paso claims that KTSMFM competes for  Xh$- x>listeners with 27 other FM radio stations and that KTSM(AM) competes with 24 other AM"h$,-(-(ZZ(#"  X- xstations in the market.E yOy- xYԍ In determining the number of broadcast stations in a market for the purposes of a onetoamarket waiver, the  xiCommission considers "the relevant TV metro market for radio stations and the relevant ADI [Arbitron Area of  yO - xDominant Influence] TV market for TV stations." Second Report and Order, 4 FCC Rcd at 1760 n.101. Since  xArbitron no longer compiles ADI data, the Commission accepts onetoamarket showings using the Nielsen DMA  yO- x;statistics. See Media/Communications Parners L.P., 10 FCC Rcd 8116, 8116 n.3 (1995); see also Further Notice of  yOa- xProposed Rule Making, Review of the Commission's Regulations Governing Television Broadcasting, 10 FCC Rcd  x3524, 3539 n.59 (1995). With respect to the onetoamarket waiver request here, ComCorp El Paso's showing is  xioverinclusive, having considered all licensed radio stations in the El Paso DMA as well as Mexican television and  xradio stations whose signals are receivable in the DMA. Accordingly, we have conducted our own analysis using  yO -the proper standard, infra  12 and 14. E In addition, ComCorp El Paso contends that of the 27 rival FM stations,  x[14 have facilities comparable to that of KTSMFM, while of the 24 rival AM stations, five have  xsuperior and five have comparable facilities to that of KTSM(AM). ComCorp El Paso thereby  x.concludes that, from a facilities perspective, KTSMTV, KTSMFM and KTSM(AM) are not a dominant combination.  Xv-  x8. Financial Difficulties. Regarding financial difficulties of the stations, ComCorp El  x/Paso claims that, following the death in 1990 of Karl Wyler, the majority stockholder of Tri xState, the finances of the stations suffered. However, ComCorp El Paso neither specifies the  x>previous financial difficulties experienced by the stations, nor asserts any present financial difficulties.  X -  @x9. Effect on Diversity and Competition. The final factor ComCorp El Paso addresses  X - xconcerns the nature of the relevant market visavis the Commission's concerns about diversity  xjand competition. As an initial matter, ComCorp El Paso contends that the proposed transfer of  xcontrol will have no effect on diversity or competition in the El Paso market since KTSMTV,  xyKTSMFM and KTSM(AM) have been commonly owned and operated for 35 years. ComCorp  xEl Paso further argues that the El Paso market "currently contains, and will continue to contain,  x0a remarkably diverse array of media outlets." In support, ComCorp El Paso asserts that,  xincluding KTSMTV, KTSMFM and KTSM(AM), a total of 25 AM radio stations (11 domestic  xand 14 Mexican stations), 28 FM stations (20 domestic and eight Mexican stations) and 13  xjtelevision stations (10 domestic and three Mexican stations) are licensed to the El Paso market.  xjOf the 41 domestic stations in the market, ComCorp of El Paso maintains that there are, and will  xremain after consummation of the proposed transfer of control, 26 independent voices. According  xto ComCorp of El Paso, LPTV/television translator and FM translator stations licensed to the El  xPaso market also contribute to diversity and competition in the market, as do the services  xprovided by DirecttoHome satellite dish and DBS operators and a wireless cable system.  xyComCorp of El Paso further represents that the El Paso market has a 61% cable penetration and  X|- xis served by three daily newspapers, the El Paso Times, the HeraldPost and the Las Cruces Sun  Xe- xjNews, and at least four weekly newspapers published in the market. Moreover, ComCorp cites to three daily newspapers published in Mexico which also serve the El Paso market.  X -  Nx10. Discussion. The Commission's goal in evaluating a casebycase request for waiver" ` ,-(-(ZZ>"  xof the onetoamarket rule is "to permit the public to benefit from such efficiencies of operation  xas may be achieved through the use of common facilities and staff, consistent with the  X- x[maintenance of diversity and vigorous competition within the market areas involved." Second  X- xReport and Order Recon., 4 FCC Rcd at 6491. We conclude that, on balance, ComCorp El  xZPaso's showing in support of its request for waiver of the onetoamarket rule meets our caseby xcase criteria, that a waiver in this instance is in the public interest, and that the waiver would not adversely affect competition and diversity in the El Paso market.   x11. As to the first criterion, the potential public service benefits of joint ownership, the  xCommission considers the public service benefits that will result from the proposed radio xtelevision combination, such as projected economies of scale, cost savings, and programming and  X - xservice benefits. Second Report and Order, 4 FCC Rcd at 1753. ComCorp El Paso has shown  x[that the substantial cost efficiencies derived from the joint operation of KTSMTV, KTSMFM  xand KTSM(AM) will continue under ComCorp El Paso's common ownership of the stations. In  xparticular, ComCorp El Paso anticipates annual cost savings amounting to at least $170,000 from  xthe continued consolidation of leasing tower space and operational costs such as personnel,  xpower/electricity and phone systems, and further savings of at least $250,000 from the onetime  xkcosts of acquiring new studios, reconfiguring studio/transmitter links and purchasing news  xLgathering, production and editing equipment. According to ComCorp El Paso, continued joint  xownership will ensure the continuation of the distinctive allnews/talk format on KTSMAM,  x which depends on the news gathering staff and equipment of KTSMTV, "the number one  x\television news station in the market." KTSMFM likewise relies on KTSMTV for its radio  xjbroadcast of weather and news updates and routine simulcasts of local breaking news stories.  xAdditionally, ComCorp El Paso pledges to use the combination to improve the news and public affairs programming on KTSMFM.   x12. With respect to the types of facilities involved, the Commission endeavors to predict  x]and avoid any significant adverse effect on diversity or competition from too powerful a  X|- xcombination. Second Report and Order Recon., 4 FCC Rcd at 6349. We note, first, that the  xfacilities of KTSMTV and KTSMFM are the maximum and near maximum permitted for a full xservice VHF station and Class C FM station, respectively. While KTSM(AM)'s facilities are less  xLthan the maximum permitted for a Class B station, they are not insubstantial. Nevertheless, we  x-find that given the significant competition in the El Paso market, continuation of this TV/FM/AM  X - xcombination does not present issues of market dominance inconsistent with the public interest.X  yO - xԍ Recently, we found that the continuation of an existing TV/FM/AM combination licensed to El Paso, Texas  yOJ!- xwould not unduly compromise the Commission's concerns regarding competition and diversity in that market. Paso  yO"-del Norte Broadcasting Corporation, DA 971147 (released June 2, 1997).  xzOur analysis indicates that KTSMTV, a VHF station and NBC affiliate, competes with three  xVHF stations (two commercial and one noncommercial), and six UHF stations (four commercial  xand two noncommercial) in its DMA. Our analysis also reveals that two of the commercial VHF  xstations are affiliated with ABC and CBS, and that two of the commercial UHF stations are  xaffiliated with Fox and the Warner Brothers Network. In addition, ComCorp El Paso has shown"",-(-(ZZ!"  xthat KTSMFM and KTSM(AM) compete against comparable and/or superior facilities in the El  x>Paso television metropolitan market. KTSMFM, a Class C station, experiences substantial  x?competition from 12 other FM stations, nine of which are Class C and eight of which are  xcommercial stations. KTSM(AM), a Class B station, competes with eight other AM stations, six of which are also Class B stations.   x13. As for financial difficulties, in its review the Commission "will consider information  X_- xkrelated to whether a station has long been offered for sale, to no avail." Second Report and  XH- x Order, 4 FCC Rcd at 1753. The Commission has advised applicants relying on this factor to  xsubmit "appropriate documentation, including a history of the station's past financial losses and  X - x=predictions of projected losses for the next several years." Id. at 1760 n.103. Notwithstanding  xits undocumented reference to the stations' past financial suffering, ComCorp El Paso has not  x.shown that KTSMTV, KTSMFM and KTSM(AM) presently experience financial difficulties.  xHowever, the Commission has acknowledged that not all of the casebycase factors are relevant  X -in every case. See Second Report and Order Recon., 4 FCC Rcd at 6491.   x14. Finally, ComCorp El Paso has demonstrated that its proposed joint ownership and  x[operation of KTSMTV, KTSMFM and KTSM(AM) will not diminish competition or diversity  x\in El Paso, the 99th television market. ComCorp El Paso presently owns no other broadcast  xstations in the El Paso market and its acquisition of KTSMTV, KTSMFM and KTSM(AM) will  xcontinue in effect a common ownership pattern that has operated in the El Paso market for 35  xyears. Moreover, there are substantial numbers of competing broadcast and other media voices  xin this market. According to our analysis, upon grant of the proposed transfer of control and  xexclusive of the stations considered therein, El Paso will continue to be served by eight AM  xstations, 12 FM stations, three VHF television stations and six UHF television stations. Of these  x29 broadcast stations, we find that the El Paso market is served by 20 separatelyowned and  x-operated broadcast "voices." Several cable systems having a collective 61% penetration rate and  xthree domestically published daily newspapers, along with other services, also contribute to the  x\media diversity in the El Paso market. For the foregoing reasons, we are persuaded that the  xpublic interest benefit of ComCorp El Paso's common ownership and operation of KTSMTV, KTSMFM and KTSM(AM) warrants a waiver of the onetoamarket rule. h,CONCLUSION   lx15. Having determined that the applicants are qualified in all respects, we find that grant  X- xof the transfer of control and pro forma assignment applications will serve the public interest, convenience and necessity.   Px16. Accordingly, IT IS ORDERED, That the request for a permanent waiver of the  xCommission's onetoamarket rule, 47 C.F.R.  73.3555(c), to allow ComCorp El Paso's  xcommon ownership and operation of stations KTSMTV, KTSMFM and KTSM(AM) IS GRANTED.   !x17. IT IS FURTHER ORDERED, That the abovecaptioned applications for the transfer"#',-(-(ZZ%"  xof control of TriState Broadcasting Co., Inc., licensee of television station KTSMTV and radio  xstations KTSMFM and KTSM(AM) from The Glyn Wyler and Karl O. Wyler, Sr. Foundation  xto ComCorp of El Paso, Inc. (File Nos. BTC970319IX, BTCH970319IY and BTCCT x970319IZ) ARE GRANTED, subject to the condition that the parties may not consummate the  x<transfer of control transaction until such time as the Commission has granted the pending license renewal applications for stations KTSMFM and KTSM(AM), El Paso, Texas.  X_-  ^x18. IT IS FURTHER ORDERED, That the applications for the pro forma assignments  xof licenses of stations KTSMTV, KTSMFM and KTSM(AM) from TriState Broadcasting Co.,  x|Inc. to ComCorp El Paso, Inc. (File Nos. BALCT970321IC, BALH970321IB and BAL970321IA) ARE GRANTED.  X -  ^x19. IT IS FURTHER ORDERED, That the applications for the pro forma assignments  xof licenses of stations KTSMTV, KTSMFM and KTSM(AM) from ComCorp El Paso, Inc. to  x!ComCorp El Paso Licensee, Inc. (File Nos. BALCT970321IF, BALH970321IE and BAL970321ID) ARE GRANTED.  x` `  hh FEDERAL COMMUNICATIONS COMMISSION x` `  hh Roy J. Stewart  X-x` `  hh Chief, Mass Media Bureau      Đ