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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In re Request of ) ) Gannett Co., Inc. ) ) For Conditional Waiver of the Duopoly Rule) MEMORANDUM OPINION AND ORDER Adopted: July 30, 1997 Released: August 4, 1997 By the Chief, Mass Media Bureau 1.The Commission, by the Chief, Mass Media Bureau, acting pursuant to delegated authority, has before it for consideration the above-captioned unopposed request for extension of divestiture period and for conditional waiver of the Commission's television duopoly rule. This request is related to Multimedia, Inc., 11 FCC Rcd 4883 (1995), in which the Commission approved the transfer of control of Multimedia, Inc. and its broadcast stations to Gannett Co., Inc. Because the Grade B contour of Multimedia's WMAZ-TV, Channel 13 (CBS), Macon, Georgia overlaps the Grade B contour of Gannett's WXIA-TV, Channel ll (NBC), Atlanta, Georgia, Gannett sought and was granted a temporary twelve-month waiver of the duopoly rule to divest WMAZ-TV. Since that time and within that twelve-month waiver period, the Commission has proposed changes to its television duopoly rule and adopted an interim waiver policy that would permit common ownership of WXIA-TV and WMAZ-TV. See Review of the Commission's Regulations Governing Television Broadcasting, Second Further Notice of Proposed Rule Making, FCC 96-438 (released November 7, 1996) (Television Ownership Second Further Notice). In light of that proposed rule making, Gannett requests extension of its divestiture period to permit a conditional duopoly waiver, to allow common ownership of WMAZ-TV and WXIA-TV, subject to the outcome of the Commission's local television ownership rulemaking proceeding. 2.Currently, the Commission is reexamining its broadcast television ownership policies, including the duopoly rule. In January 1995, the Commission proposed a new analytical framework within which to evaluate our broadcast television ownership rules. See Review of the Commission's Regulations Governing Television Broadcasting, Further Notice of Proposed Rule Making, 10 FCC Rcd 3524 (1995) (Television Ownership Further Notice). Subsequent to the release of that Television Ownership Further Notice, Congress directed the Commission to conduct a rulemaking proceeding to determine whether to retain, modify or eliminate existing limitations on the number of television stations that an entity may control within the same television market. See Section 202(c) of the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (Feb. 8, 1996) (Telecomm Act). In response to this Congressional directive in the Telecomm Act and to update the record, the Commission released the Review of the Commission's Regulations Governing Television Broadcasting, Second Further Notice of Proposed Rule Making, FCC 96-438 (released November 7, 1996) (Television Ownership Second Further Notice). In that Second Further Notice, the Commission tentatively concluded to authorize common ownership of television stations that are in separate Designated Market Areas (DMAs) and whose Grade A contours do not overlap. Television Ownership Second Further Notice at 57. 3.The Commission stated in the Television Ownership Second Further Notice that it will be inclined during the pendency of the television ownership proceeding to grant duopoly waivers involving stations in different DMAs with no overlapping Grade A contours, conditioned on coming into compliance with the outcome of the proceeding within six months of its conclusion. It also noted its tentative conclusion that the record in that proceeding "supports relaxation of the geographic scope of the duopoly rule from its current Grade B overlap standard to a standard based on DMAs supplemented with a Grade A overlap criterion." Id. at 57. The Commission further stated that "we do not believe granting waivers satisfying the proposed standard, and conditioning them on the outcome of this proceeding, will adversely affect our competition and diversity goals in the interim." Id. Additionally, the Commission gave the staff delegated authority to act on applications seeking waivers consistent with this interim policy. Id. 4.In Multimedia, Inc. the Commission determined that Gannett's request for temporary waiver of the duopoly rule to permit common ownership of WMAZ-TV and WXIA-TV was in the public interest. We based that determination on the proposal's consistency with the factors set out in our previous duopoly waiver cases. See, e.g., Iowa State University, 9 FCC Rcd at 487-88. Specifically, the Commission took into account the numerous other television stations and other broadcast services in the overlap area, as well as the distinctness of the markets served by the two stations. The Commission noted that WMAZ-TV is licensed to Macon, the 124th ranked DMA while WXIA-TV is licensed to Atlanta, which is ranked 10th. The Commission also looked at the extent of the overlap, which represented 21% of the service area and 21% of the population within the WMAZ- TV Grade B contour and 18% of the service area and 4% of the population with the WXIA-TV Grade B contour, and noted that although not de minimis, the overlap was not so large as to require a finding that the stations served substantially the same area. Accordingly, we granted the parties twelve months to divest station WMAZ-TV and to come into compliance with our rules. 5.With regard to the current request for conditional waiver, Gannett has submitted an engineering exhibit which shows that the predicted Grade A contours of stations WXIA-TV and WMAZ-TV do not overlap. Also, as stated in its original duopoly request, stations WXIA-TV and WMAZ-TV are located in the separate DMAs of Atlanta and Macon, respectively. See also Multimedia, Inc. 11 FCC Rcd at 4886. Pointing to KNSD License, Inc., DA 96-1848 (released November 7, 1996), Gannett argues that it would be "anomalous and unreasonable" to require divestiture here while the Commission has permitted similarly situated parties to obtain and hold the same type of common ownership pending resolution of the rulemaking proceeding. 6.Based on the Commission's interim ownership policy outlined in the Television Ownership Second Further Notice, we believe grant of conditional waiver of the duopoly rule, subject to the outcome of the pending ownership rulemaking, is justified. Because the two stations are in separate DMAs and the stations' Grade A contours do not overlap, the continued common ownership of WXIA-TV and WMAZ-TV is consistent with the interim policy set forth in the Television Ownership Second Further Notice. See also WHOA-TV, Inc., FCC 96-458 at  12-13; 27 (released December 10, 1996). Moreover, our examination of the record, including Gannett's original waiver request, reveals nothing suggesting that we should not follow the established interim policy in this case. Accordingly, we conclude that grant of temporary waiver, conditioned upon the resolution of the pending broadcast television ownership rulemaking, will serve the public interest, convenience and necessity. 7.Accordingly, IT IS ORDERED, That the request for a conditional waiver of the television duopoly rule, Section 73.3555(b) of the Commission's rules, to permit the common ownership by Gannett Co, Inc. of television stations WXIA-TV, Atlanta, Georgia and WMAZ-TV, Macon, Georgia IS GRANTED, subject to the outcome of the Commission's pending broadcast ownership rulemaking, (Second Further Notice of Proposed Rulemaking, in MM Docket No. 91-221 and 87-8). Should divestiture be required as a result of that proceeding, the licensee is directed to file, within six months from the release of the final order in MM Docket No. 91-221 and 87-8, an application for Commission consent to dispose of such station(s) as would be necessary for Gannett Co., Inc. to come into compliance with the rules as provided in the final order. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau