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@K"5@^!)22SN!!28!2222222222888,\HCCH=8HH!'H=YHH8HC8=HH^HH=!!/2!,2,2,!222N2222!'22H22,006!!!!()!22H,H,H,H,H,YCC,=,=,=,=,!!!!H2H2H2H2H2H2H2H2H2H2H,H2H2H2H2H282H2H,H,C,C,C,=,=,=,H2H2HH2H2H2H2(2!2!!!2'H2==)H2H2H2YHC!C)8'8'N#-2!,22222KK2LL2K!!,,2d!!22bd!,d!t!77778c<w   OnetoaMarket Waiver Showing/Petition to Deny l  SX'3. Clear Channel bases its onetoamarket rule waiver request on the waiver standards  S0'adopted in the Second Report and Order in MM Docket 877, 4 FCC Rcd 1741 (1989) ("Second  S 'Report and Order"), recon. granted in part and denied in part, 4 FCC Rcd 6489 (1989) ("Second  S'Report and Order Recon."). Under these criteria, the Commission presumptively favors waiver requests involving station combinations serving the top 25 markets where there are at least 30 separately owned, operated, and controlled broadcast licenses or "voices" after the proposed  Sn'combination ("top 25 market/30 voice standard").Fn0 a yO>'#C\  P6Q P#э Pursuant to the statutory directive "to extend its [onetoamarket] waiver policy to any of the top 50 markets, consistent with the public interest, convenience and necessity," under the Telecommunications Act of 1996, Pub. L. No. 104104,  202(d), 110 Stat. 56 (1996), the Commission is considering a proposal to  {O!'implement extension of the waiver policy in the Second Further Notice of Proposed Rulemaking, MM Docket Nos. 91221 and 878, 11 FCC Rcd 21655, 21685 (1996).F The Commission also favors requests involving "failed" broadcast stations, that is, stations that have not been operating for a substantial period of time  S'or are involved in bankruptcy proceedings. Id. Otherwise, the requests must be evaluated under a  S'more rigorous, casebycase approach. See 47 C.F.R.  73.3555 n. 7."0*%%JJG"Ԍ4. We shall review Clear Channel's waiver request under the casebycase standard because Little RockPine Bluff is the 57th largest Designated Market Area ("DMA") according to Nielsen, and none of the stations involved are "failed" stations. Moreover, evaluation of the waiver requests under the casebycase standard is appropriate because the proposed transactions involve the common  S`'ownership of more than one sameservice radio station with a television station. See Memorandum  S:'Opinion and Order, MM Docket 91140, 7 FCC Rcd 6387, 6394 n. 40 (1992). Under the casebycase standard, the Commission makes a public interest determination based upon the following five criteria: 1) the potential public service benefits of joint operation of the facilities, such as 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) the financial difficulties of the stations involved; and 5) the nature of the relevant market in light of the level of competition and  SL 'diversity after the joint operation is implemented. Second Report and Order, 4 FCC Rcd at 175354. In enunciating the five factors to be considered under the casebycase standard, the Commission noted that not all five factors must be satisfied in each case, but rather the overall consideration of these  S 'factors must weigh in favor of granting the waiver request. Second Report and Order Recon., 4 FCC  S 'Rcd at 6491. In support of its waiver request, Clear Channel submits a showing which addresses each of the five factors. 5. GHB's Petition to Deny challenges Clear Channel's waiver showing on each point, but, as  S'noted above, GHB has now requested to withdraw its Petition. A petitioner which seeks to withdraw its petition to deny as part of an agreement with the applicant may do so upon Commission approval.  S'See 47 C.F.R.  73.3588. To obtain such approval, the petitioner, as well as the applicant, must submit affidavits stating that no consideration in excess of legitimate and prudent expenses has been  Sr'paid in exchange for dismissal of the petition. Id. at  73.3588(a). Here, GHB and Clear Channel have submitted the required affidavits attesting to the absence of consideration paid or received in exchange for withdrawal of GHB's Petition to Deny and, therefore, the Joint Petition complies with Section 73.3588. Furthermore, we have reviewed the Petition to Deny and find that it presents no substantial and material questions of fact warranting further inquiry. Accordingly, we shall grant the Joint Petition and dismiss the Petition to Deny.  S'  S\'6. Benefits of Joint Operation. Clear Channel estimates that the proposed combination will  S6'realize savings of approximately $268,000 annually in personnel, rent and equipment costs.^X6a yO'#C\  P6Q P#э Specifically, Clear Channel estimates $193,000 in personnel cost savings ($100,000 in general management, $45,000 in engineering, $30,000 in business management, and $18,000 in reception costs), $40,000 in savings on rent, and $35,000 in equipment cost savings annually.^ It states that with those savings it will hire a public affairs specialist to manage the stations' local community involvement. Clear Channel also asserts that the proposed combination will enable the newlyacquired radio stations to enhance their public interest programming through access to KLRTTV's news and public affairs department. Finally, Clear Channel states that it expects to realize efficiencies through crosspromotion, joint sponsorship of community events and combined public service campaigns.  S '7. Other Media Outlets/Types of Facilities. Clear Channel currently owns two FM stations (KDDK and KMJX) and one UHF station (KLRTTV) in the Little RockPine Bluff DMA, and" 0*%%JJ" proposes to acquire three more FM stations (KMVK, KOLL, and KSSN). In describing the types of facilities involved, Clear Channel states that: (1) KDDK is a 44.2 kW (Class C1) FM station operating on 100.3 mHz from a 1369foot antenna; (2) KMJX is an 81 kW (Class C1) FM station operating on 105.1 mHz from a 1053foot antenna; (3) KLRTTV operates on UHF Channel 16 with an authorized power of 5000 kW maximum visual effective radiated power ("ERP") and 500 kW maximum aural ERP; (4) KSSN is a 100 kW (Class C) FM station operating on 95.7 mHz from a 1663foot antenna; (5) KMVK is a 16 kW (Class C2) FM station operating on 106.7 mHz from an 866foot antenna; and (6) KOLL is a 100 kW (Class C) FM station operating on 94.9 mHz from an 1843foot antenna. Clear Channel owns no other media outlets in the Little RockPine Bluff DMA. As noted earlier, however, it does have an LMA with UHF Channel 38 station KASN. 8. Clear Channel asserts that the facilities of the stations in its proposed combination are comparable to those of other stations in the relevant market. Specifically, Clear Channel contends that in addition to KLRTTV there are six VHF and four UHF television stations in the Little RockPine Bluff DMA, and that three of the UHF stations (including KASN) have power equal or comparable to that of KLRTTV. Clear Channel also identifies six Class C and Class C1 FM stations in the Little Rock TV metropolitan market, none of which will be under Clear Channel's control, with power equal or comparable to the Class C and C1 stations in Clear Channel's proposed combination.  S'9. Financial Condition. Clear Channel states that none of the broadcast stations at issue is in financial distress.  S'10. Competition and Diversity. Clear Channel asserts that the proposed combination will have no significant effect on either the diversity of available media outlets or the distribution of economic power in the relevant market. Based on the 1996 Broadcasting and Cable Yearbook, Clear Channel states that the Little RockPine Bluff DMA is the 58th largest DMA, with 472,630 television  S'households.a yO\'#C\  P6Q P#э As noted above, the Little RockPine Bluff DMA is now the 57th ranked market according to Nielsen. It submits a revised study in support of its Opposition indicating that if the proposed transaction is consummated, there will be a total of 51 broadcast stations 17 AM, 23 FM, and 11 television stations licensed to 34 separate owners in the relevant market. Additionally, Clear Channel states that the Little RockPine Bluff DMA is served by 37 cable operators, reaching 61 percent of the total households, as well as 14 daily newspapers, 27 weekly publications, and 33 low power television stations.  S' 11. Clear Channel also has submitted a July 18, 1997 Federal Trade Commission ("FTC") letter announcing FTC's early termination of the HartScottRodino Act, 15 U.S.C.  18a, premerger  S'waiting period. Furthermore, Clear Channel contends that its postmerger market revenue shares of 41.27 percent of radio advertising and 24.2 percent of combined radio and television advertising are  S<'consistent with Commission precedent, citing S.E. Licensee G.P., 11 FCC Rcd 16727, 16734 (1996). Furthermore, Clear Channel has provided audience share data in support of its waiver request, indicating that KLRTTV has a television audience share of "7" and KASN a share of only "3," that three other television stations in the Little RockPine Bluff DMA not owned or operated by Clear Channel have substantially higher audience shares of "23," "15," and "16," respectively, and that the""X0*%%JJ]!" 1996 individual audience shares of the FM stations in Clear Channel's proposed combination are as follows: KDDK, 6.2; KMJX, 8.7; KSSN, 12.6; KMVK, 3; and KOLL, 4.4.  Q'Z  Discussion    S8'l12. Radio Ownership Rules. We turn first to Clear Channel's compliance with our local radio ownership rules. 47 C.F.R.  73.3555(a)(1). Our analyis of the data submitted by Clear Channel indicates that the radio market formed by the mutually overlapping contours of its proposed commonly owned radio stations consists of 65 commercial radio stations. Under our rules, in a radio market with 45 or more commercial radio stations a party may own, operate, or control up to eight commercial radio stations, not more than five of which are in the same service (AM or FM). Clear Channel's proposed ownership of five commercial FM radio stations in this market complies with the numerical local ownership cap for radio stations. Moreover, our review of the record in this case reveals no  S 'other circumstances that would preclude grant of the applications under the radio ownership rules. See  S 'infra,  1819. We conclude that, with respect to local radio ownership, Clear Channel's acquisition of KSSN, KMVK and KOLL would serve the public interest.  S^'13. Local Marketing Agreement. Before considering Clear Channel's request for a waiver of the onetoamarket rule, we must determine what weight, if any, we should accord Clear Channel's existing LMA with KASN in assessing that request. Currently, television LMAs are not attributable to the brokering station, nor, taken alone, are they considered a "meaningful" relationship within the scope of the crossinterest policy. At present, therefore, we will not accord significance to Clear Channel's existing television LMA in evaluating its waiver request. We note, however, that we have proposed to attribute television LMAs to the brokering station where the stations involved are in the same market and the brokerage arrangement includes more than 15 percent of the brokered station's  S 'weekly broadcast hours. Further Notice of Proposed Rulemaking, MM Docket Nos. 94150, 9251 and 87154, 11 FCC Rcd 19895, 1990809 (1996). Further, we have proposed that any LMA which would be attributable for duopoly rule purposes under this approach "would also count in applying our other ownership rules, including, for example . . . the onetoamarket rule (or radiotelevision cross S'ownership rule)." Id. (footnotes omitted). And, while we have proposed to grandfather those LMAs such as the LMA here that were entered into prior to the November 5, 1996 adoption date of the  S4'Second Further Notice of Proposed Rulemaking, MM Docket Nos. 91221 and 878, 11 FCC Rcd  S'21655 (1996) ("Second Further NPR"), we have also indicated that we would "reserve the right . . . to invalidate an otherwise grandfathered LMA in circumstances that raise particular competition and  S'diversity concerns, such as those that might be presented in very small markets." Id. at 2169394.  S'Our decision here in no way prejudges the resolution of LMA attribution in our pending ownership and attribution proceedings. Thus, if we establish final rules for attributing and grandfathering LMAs, we would also assess whether the class of transactions involving radio, television and LMA interests, such as those involved in this case, should be permitted to continue. Consistent with our treatment of transactions raising similar issues, we will condition the onetoamarket waiver we grant here on the  S!'outcome of these rulemakings. See REP WWBB G.P., 11 FCC Rcd 19689, 1969394 (1996); S.E.  S"'Licensee, G.P., 11 FCC Rcd at 16732.  S^$'14. OnetoaMarket Waiver. Turning to the substance of Clear Channel's onetoamarket"^$0*%%JJ"" waiver request, we will follow the policy established in recent onetoamarket waiver cases where the radio component to a proposed combination exceeds those permitted prior to the adoption of the  S'Telecommunications Act of 1996. See Maximum Media, Inc., 12 FCC Rcd 3391, 339596 (1997); see  S'also S.E. Licensee G.P., 11 FCC Rcd at 1673233; Shareholders of Citicasters, Inc., 11 FCC Rcd 19135, 19143 (1996). In such cases, the Commission declined to grant permanent waivers of the onetoamarket rule, and instead granted temporary waivers conditioned on the outcome of related issues  S'raised in the television ownership rulemaking proceeding. Second Further NPR, 11 FCC Rcd at 21655. Similarly, we conclude that a permanent, unconditional waiver would not be appropriate here, but that Clear Channel has justified grant of a temporary waiver conditioned on the outcome of the rulemaking proceeding. 15. As to the first criterion, the potential public service benefits of joint ownership, the Commission considers the public service benefits that could result from the proposed radiotelevision combination, such as projected economies of scale, cost savings and program and service benefits.  S 'Second Report and Order, 4 FCC Rcd at 1753. Clear Channel has shown that there will be significant economies of scale resulting from consolidation of administrative, operating and technical expenses into a single operation. In particular, Clear Channel estimates a total annual savings of approximately $268,000 in personnel, rent and equipment costs. Clear Channel also has promised that these cost savings will result in significant benefits to the public through programming improvements, an enhanced local presence, and communitybased outreach. In addition, Clear Channel states that the newlyacquired stations will undertake crosspromotions, which we have recognized as "one of the most significant benefits of joint ownership of radio and television stations in the same market."  S'Second Report and Order, 4 FCC Rcd at 1747 (footnote omitted). 16. The Commission's "concern with the types of facilities merging under the authority of a onetoamarket waiver reflects our interest in assessing the potential impact of a proposed combination of stations in a given market in order that we might predict and avoid any significant  S'adverse effect on diversity or competition from too powerful a combination." Great American  S'Television and Radio Co., Inc., 4 FCC Rcd 6347, 634950 (1989). The combination for which the instant waiver is requested involves a Foxaffiliated UHF station, KLRTTV, which competes in the  S^'Little RockPine Bluff DMA with six VHF and four UHF television stations, two of which (excluding UPNaffiliated KASN, with which Clear Channel has an LMA) have power equal or comparable to that of KLRTTV. Our independent analysis shows that there are three networkaffiliated VHF stations not controlled by Clear Channel with greater shares of DMA television advertising revenue than KLRTTV's 15 percent share. We have also independently confirmed that, although four FM stations in Clear Channel's proposed combination are authorized to operate at 100 kW, there are six FM stations in the Little Rock TV metro market with equal authorized power that will not be under Clear Channel's control. The fifth FM station in Clear Channel's proposed combination is a Class C2 station; there are two other Class C2 stations in the market. We also find that Clear Channel has demonstrated that due to the number of "voices" in the relevant market, the level of competition and  S!'diversity will remain high. See infra,  1819. Thus, while the technical facilities of the stations involved are significant, given the substantial competing facilities in the Little Rock market we find  S#'that the proposed combination does not present issues of market dominance inconsistent with the public interest."X$0*%%JJ""Ԍ17. Although Clear Channel states that none of the broadcast stations at issue is in financial distress, we have previously indicated that not all five factors need be present to justify grant of a  S'waiver. See Second Report and Order Recon., 4 FCC Rcd at 6491; Great American Television and  S'Radio Co., Inc., 4 FCC Rcd at 6349. We have also granted a number of onetoamarket waivers  Sd'where there was no finding that any of the stations were in financial distress. See, e.g., Louis C.  S>'DeArias, 11 FCC Rcd 3662, 3667 (1996); Atla Gulf FM, Inc., 10 FCC Rcd 7750, 7751 (1995); Secret  S'Communications, L.P., 10 FCC Rcd 6874, 6877 (1995). 18. Finally, Clear Channel has shown that the proposed combination will not create any  S'undue concentration of ownership or control of the broadcast media in the Little Rock market. a yO '#C\  P6Q P#э As to the market definition within which to count the number of broadcast stations in the context of a onetoamarket waiver, the Commission considers "the relevant TV metro market for radio stations and the relevant  {O 'ADI [Arbitron Area of Dominant Influence] TV market for TV stations." Second Report and Order, 4 FCC Rcd at 1760 n. 101. However, since Arbitron no longer compiles ADI data, we now accept showings using the  {O, 'Nielsen DMA. See Media/Communications Partners L.P., 10 FCC Rcd 8116 n. 3 (1995); see also Further  {O 'Notice of Proposed Rulemaking, MM Docket Nos. 91221 and 878, 10 FCC Rcd 3524, 3539 n. 59 (1995). We have independently verified that there are at least 40 radio stations in the Little Rock TV metro market, of which 28 would be separately owned after the proposed transaction. There are also 11 television stations (including KLRTTV) in the Little RockPine Bluff DMA, of which seven are separately owned. After the proposed transaction, these 51 stations would be licensed to 34 separate broadcast owners. Additionally, Clear Channel states that there are several other media outlets in the market, including 37 cable operators serving 61 percent of households, 33 low power television stations, 14 daily newspapers, and 27 weekly publications. This level of diversity is consistent with  Sb'the levels we have approved in previous waiver requests. See, e.g., Louis C. DeArias, 11 FCC Rcd at 3665 (onetoamarket waiver granted in 78th ranked market with 31 separate voices, 2 daily newspapers and 57.9 percent cable penetration). 19. With respect to economic concentration and competition, our independent analysis indicates that KLRTTV garners 15.12 percent of television advertising revenue in the Little RockPine Bluff DMA, and the FM stations in Clear Channel's proposed combination garner 44.02 percent of radio advertising revenues in the market. Together, the stations in the proposed combination have a combined television and radio advertising revenue share of 24.97 percent, a figure consistent with  S'temporary, conditional onetoamarket waiver requests previously approved. See, e.g., S.E. Licensee,  S'G.P., 11 FCC Rcd at 16734 (40.4 percent of radio advertising revenue and 24.2 percent of combined television and radio advertising in 42nd ranked market). The FTC granted Clear Channel's request for early termination of the HartScottRodino premerger waiting period, indicating that it will conduct no further antitrust review under the Guidelines and that the proposed transaction may proceed from its perspective. In the circumstances of this case, we conclude that the FTC's antitrust determination is both relevant and highly probative evidence that the proposed transaction will not pose unacceptable  S'risks to competition in the relevant market. See Shareholders of Citicasters, Inc., 11 FCC Rcd 19135, 19143 (1996) (relying on Department of Justice antitrust determination to inform decision on onetoa"F 0*%%JJ"ԫ S'market rule waiver requests).T &a yOh'#C\  P6Q P#э We note that, while the Commission's concern for promoting diversity and competition is complementary  {O0'to, and includes consideration of, the antitrust laws, it is not limited in scope to antitrust issues. See NewCity  {O'Communications of Massachusetts, Inc., 10 FCC Rcd 4985, 4990 (1995) (showing that proposed merger would  {O'have de minimis antitrust impact not sufficient, in and of itself, to support grant of a onetomarket rule waiver).T 20. We conclude that a temporary, conditional waiver is warranted. The Little Rock market is both diverse and highly competitive, and this transaction involves a nondominant UHF television station. Although Clear Channel's commonlyowned facilities are technically significant, competing facilities do exist. Moreover, the economic efficiencies and program service benefits that would result from the consummation of the proposed transaction support grant of a temporary, conditional waiver.  Q'WOrdering Clauses l 21. Accordingly, IT IS ORDERED, that the parties' Joint Petition for Approval of Settlement Agreement IS GRANTED, and GHB of Little Rock, Inc.'s Petition to Deny filed June 9, 1997 IS HEREBY DISMISSED. 22. IT IS FURTHER ORDERED, that the request for a permanent waiver of the Commission's onetoamarket rule, 47 C.F.R.  73.3555(c), to permit common ownership of Stations KLRTTV and KSSN(FM), Little Rock, Arkansas, KDDK(FM), Jacksonville, Arkansas, KMJX(FM), Conway, Arkansas, KMVK(FM), Benton, Arkansas, and KOLL(FM), Maumelle, Arkansas, IS HEREBY DENIED. 23. IT IS FURTHER ORDERED, that a temporary waiver to permit common ownership of Stations KLRTTV, KSSN, KDDK, KMJX, KMVK, and KOLL IS HEREBY GRANTED, subject to  S'the outcome in the pending television ownership rulemaking proceeding, Second Further Notice of  Sj'Proposed Rulemaking, MM Docket Nos. 91221 and 878, 11 FCC Rcd 21655 (1996), and in the  SD'pending broadcast attribution proceeding, Further Notice of Proposed Rulemaking, MM Docket Nos. 94150, 9251 & 87154, 11 FCC Rcd 19895 (1996). Should divestiture be required as a result of those proceedings, the Licensee is directed to file an application for Commission consent to sell the necessary station(s) within six months from the release of the Orders in those proceedings. Should the Licensee find it necessary to request an extension for any reason, it must make any such request no less than 45 days before the end of the divestiture period.  ,#r  "  0*%%JJ"Ԍ ,#r ԙ24. IT IS FURTHER ORDERED, That, having found the applicants fully qualified and that grant of the applications would serve the public interest, the applications to assign the licenses of KSSN (File No. BALH970428GE), KMVK (File No. BALH970428GF), and KOLL (File No. BALH970428GG) from Triathlon Broadcasting of Little Rock, Inc. to Clear Channel Radio Licenses, ,#r   ,#r Inc. ARE HEREBY GRANTED. ` `  Ghh}FEDERAL COMMUNICATIONS COMMISSION ` `  Ghh}Roy J. Stewart  SH '` `  Ghh}Chief, Mass Media Bureau