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BTCCT, BTCH, BTC, BTCTTL  X-)pp 971211IB through 971211IN  X - SINCLAIR COMMUNICATIONS, INC. )pp&  X -(Transferee))pp&  Xr -)pp&  X[ -For Consent to the Transfer of Control of)pp&  XD -Stations)pp&  X--)pp&  X-KETKTV, Jacksonville, TX )pp&  X-KBSI(TV), Cape Girardeau, MO)pp&  X-WMMP(TV), Charleston, SC )pp&  X-WSYT(TV), Syracuse, NY )pp&  X-WFOGFM, Suffolk, VA )pp& WJMH(FM), Reidsville, NC ) WMQXFM, WinstonSalem, NC ) WNVZ(FM), Norfolk, VA ) WPTE(FM), Virginia Beach, VA ) WQMG(AM), Greensboro, NC ) WQMGFM, Greensboro, NC ) WWDEFM, Hampton, VA ) W16AX, Ithaca, NY ) ) )  X- SINCLAIR RADIO OF NORFOLK ) Ã  X-LICENSEE, INC. ) Ã  X- (Assignor)) )  Xa -and)File Nos. BAL/BALH980311GHGJ )  X3"- NORFOLK TRUST, RALPH E. ) Ã  X#-BECKER, TRUSTEE ) (Assignee)) ) For the Assignment of the Licenses of) ) WGH(AM), Newport News, Virginia) WGHFM, Newport News, Virginia) WVKL(FM), Norfolk, Virginia )"{),**qq#("Ԍ X-ԙ  X-)  MEMORANDUM OPINION AND ORDER d $ M   $ M   X-X` hp x (#%'0*,.8135@8:kilometers. This represents 0.6% of the population and 0.9% of the area within the Grade B  &contour of KDNLTV, and 3.1% of the population and 0.9% of the area within the Grade B  &contour of KBSI(TV). Sinclair contends that the extent of the Grade B overlap area, while not  Xb- &de minimis, is within the range that the Commission has permitted in previously approved  &Mwaivers. Finally, Sinclair maintains that the stations serve separate and distinct markets, as  &KBSI(TV) is located in the Paducah, KentuckyCape Girardeau, MissouriHarrisburgMount  &.Vernon, Illinois Designated Market Area ( DMA), ranked 79th, whereas KDNLTV is located in the St. Louis, Missouri DMA, ranked 21st.  X- (#l4. The overlap area is served by a multitude of media voices, according to Sinclair. Sinclair  &jstates that nine other television stations provide Grade B service to the overlap area, including  &Lfive which provide service to the entire area. According to an engineering report submitted as  &!an amendment, the overlap area is also served by a minimum of six and a maximum of 13",))qq"  &commercial radio stations, one daily newspaper and six weekly newspapers. There are also 13 cable systems (operated by six separate operators) serving portions of the overlap area.  X- (##5. Sinclair pledges that KBSI(TV) and KDNLTV will continue to operate separately  &following the transfer of control. The stations will maintain their own local sales, programming, news and office staffs.  X_- (#6. Additionally, Sinclair asserts that grant of the duopoly waiver request will not result in  &an undue concentration of economic power in the overlap area because KBSI(TV) and KDNLTV  &are nondominant UHF stations. Sinclair notes that Nielsen ratings data for the 1997 surveys (as  &reported in BIA's Television Yearbook 1997), indicate that KBSI(TV) trails the affiliates of ABC,  &CBS and NBC in average station shares during prime time and over the total day, and KDNLTV  &trails CBS, NBC, FOX and WBN in average station shares over the total day. In sum, asserts  &Sinclair, the proposed combination of KBSI(TV) and KDNLTV, while creating a minimal area  &zof prohibited Grade B overlap, will not impair competition due to the stations' nondominant position in the market.  X-  Xy- (#7. Discussion. In adopting the duopoly rule's fixed standard of prohibiting overlap of Grade  &B service contours, the Commission also acknowledged the need for "flexibility" in that rule's  &application, noting that waivers should be granted where rigid conformance to the rule would be  X6- &"inappropriate." Multiple Ownership of Standard, FM and Television Broadcast Stations, 45 FCC  X!- &2d 1476, 1479 n.12, recon. granted in part, 3 RR 2d 1554 (1964). To that end, the Commission  &Zhas developed a set of factors to be considered when evaluating an applicant's request for waiver  &of the duopoly rule, including the extent of the overlap, the number of media voices available in  &the overlap area, the distinctiveness of the respective markets, the independence of the stations'  X- &operations, and the concentration of economic power resulting from the combination. See Iowa  X- &State University Broadcasting Corporation, 9 FCC Rcd 481, 48788 (1993), aff'd sub nom.  X- &>Iowans for WOITV, Inc. v. FCC, 50 F.3d 1096 (D.C. Cir. 1995); H&C Communications, Inc.,  &9 FCC Rcd 144, 146 (1993). After weighing the factors, the Commission considers any public  &interest benefits proposed by the applicant to determine whether, in light of the overlap, the  XZ- &benefits outweigh any detriment which may occur from grant of the waiver. See, e.g., Iowa State  XE- &=University, 9 FCC Rcd at 48788. As with any waiver, it will only be granted if the Commission concludes that the waiver is in the public interest.  X- (#|8. Currently, the Commission is reexamining its broadcast television ownership policies,  &Nincluding the duopoly rule. In January 1995, the Commission proposed a new analytical  X - &framework within which to evaluate its broadcast television ownership rules. See Review of the  &Commission's Regulations Governing Television Broadcasting, Further Notice of Proposed Rule  X"- &Making, 10 FCC Rcd 3524 (1995) ("Television Ownership Further Notice"). Subsequent to the  X#- &release of the 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.  XP&- &>See Section 202(c) of the Telecommunications Act of 1996, Pub. L. No. 104104, 110 Stat. 56  &.(Feb. 8, 1996) ("Telecomm Act"). In response to this Congressional directive in the Telecomm  X$(- &Act and to update the record, the Commission released the Second Further Notice of Proposed"$(,))qq&"  X- &Rule Making in MM Docket Nos. 91221 and 878, Review of the Commission's Regulations  X- &Governing Television Broadcasting, 11 FCC Rcd 21655 (1996) ("Television Ownership Second  X-Further Notice").  X- (#9. 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 temporary duopoly  &waivers involving stations in different DMA's with no overlapping Grade A contours, conditioned  &on coming into compliance with the outcome of the proceeding within six months of its  XP- &yconclusion. Television Ownership Second Further Notice, 11 FCC Rcd at 21681. It also noted  &/there 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  X - &based on DMA's supplemented with a Grade A overlap criterion." Id.  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  X - &in the interim." Id. Additionally, the Commission gave the staff delegated authority to act on  X -applications seeking waivers consistent with this interim policy.   X- (#l 10. Given the clearly articulated policy in the Television Ownership Second Further Notice,  Xt- &we do not believe that an unconditional grant of Sinclair's duopoly waiver is appropriate.  See  X_- &WHOATV, Inc., 11 FCC Rcd 20041, 2004647, 20051 (1996). However, we believe that grant  &of a conditional waiver of the duopoly rule, subject to the outcome of the pending ownership  &Lproceeding, is justified. The temporary common ownership of KBSI(TV) and KDNLTV would  X- &be consistent with the interim policy set forth in the Television Ownership Second Further Notice,  &Las the stations are in separate DMA's and there is no Grade A overlap between KDNLTV and  &KBSI(TV). Moreover, our examination of the record presented here reveals nothing suggesting  &that we should not follow the established interim policy in this case. Accordingly, we conclude  &that grant of a temporary waiver, conditioned on the resolution of the pending broadcast  &television ownership rulemaking, will serve the public interest, convenience and necessity. Any  &requests to extend this conditional waiver should be filed at least 45 days prior to the end of the sixmonth period and would be closely scrutinized.  XO-J Local Radio Ownership Rules ă  X!- (# 11. The radio local ownership rules, as amended 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 local radio markets. 47  X - &C.F.R.  73.3555(a)(1). See Implementation of Section 202(a) and 202(b)(1) of the  &Telecommunications Act of 1996, 11 FCC Rcd 12368, 12370 (1996). A local radio market is  &defined by the area encompassed by the mutually overlapping principal community contours of the stations proposed to be coowned.  Xk%- (#m 12. Sinclair has submitted the required contour overlap showing which indicates that the  XT&- &[Norfolk radio market contains 39 radio stations. In such a market, i.e., with 30 to 44 commercial  &radio radio stations, a single entity may own, operate, or control up to seven commercial radio  &stations, not more than four of which are in the same service. 47 C.F.R.  73.3555(a)(1)(ii). "((,))qq&"  X- &jSinclair now indirectly controls one AM and two FM stations in the Norfolk radio market,-f yOy- (#ԍAs indicated previously, Sinclair controls the licensees of stations WGH(AM) and WGHFM, Newport  {OA-News, Virginia, and WVKL(FM), Norfolk, Virginia. See KKSN, Inc., DA 98223 (MMB, released Feb. 5, 1998).- and  &seeks to acquire the following four additional FM stations in the market: WFOGFM, Suffolk,  &Virginia, WNVZ(FM), Norfolk, Virginia, WPTE(FM), Virginia Beach, and WWDEFM,  &Hampton, Virginia. Sinclair's proposed acquisition of these four FM stations would give Sinclair  &control of six FM stations in the local radio market, exceeding the local radio ownership rules'  &numerical limitations. Sinclair has proposed to sell stations WFOGFM and WGHFM; however,  &it has not yet filed the applications for the sale of these stations. Sinclair recognizes that without  &the sale of these two FM stations, its proposed radio ownership in the Norfolk local radio market  &would not be permissible under the local radio ownership rules. Accordingly, in order to  &facilitate its ability to consummate the transfer of control transaction, Sinclair proposes to come  &xinto compliance with the rules by assigning to an insulated trust radio stations WGH(AM), WGH &FM and WVKL(FM) (collectively, the "Trust Stations"). Upon consummation of the assignment  &of these stations to the trust, Sinclair would have attributable interests in four FM stations in the  &Norfolk local radio market, plus beneficial interests in two FM stations and one AM station held in trust.  X- (#\ 13. The Commission previously has approved the use of properly insulated trust arrangements  &in certain circumstances as a legitimate means to avoid attribution of a broadcast interest under  Xb- &the local radio ownership rules.  Attribution of Ownership Interests, 97 FCC 2d 997, 1023 (1984),  XM- &recon. granted in part, 58 RR 2d 604 (1985), further recon. granted in part, 1 FCC Rcd 802  X8- &(1986) ("Attribution"). Thus, "trusts are occasionally established specifically to effect compliance  &with the Commission's rules for holdings which would violate the Commission's rules if held  X - &joutright." Id. See, e.g., Stockholders of Infinity Broadcasting Corporation, 12 FCC Rcd 5012,  X- &504041 (1996); Viacom Inc., 9 FCC Rcd 1577, 1578 (1994); Twentieth Holdings Corporation,  &k4 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. We have reviewed the trust  &jagreement submitted by Sinclair and find that it conforms in all respects with the Commission's  &insulation standards. Although the trust is not irrevocable because it is subject to prompt  &termination upon divestiture of a sufficient number of stations in the Norfolk local radio market,  &this provision does not affect compliance with the applicable requirements for insulation from  XA- &attribution.|A"f yO!- (#zԍUnder the trust agreement, one or more of the Trust Stations may be sold to new parties, but Sinclair also  &.has the option of selling other stations in order to come into compliance with our rules. If Sinclair divests a  &sufficient number of its other radio stations in the Norfolk market and comes into compliance with the local radio  &Kownership rules, the Trust Stations would be reassigned to Sinclair, with the Commission's prior approval. As the  {O4$- &Commission stated in Twentieth Holdings, "where occurrence of a contingency that triggers revocation of a trust also  {O$- &,removes the conflict with the multipleownership rule, the contingency is permissible." Twentieth Holdings, 4 FCC Rcd at 4054.  See, e.g., Stockholders of Infinity, 12 FCC Rcd at 5041; Twentieth Holdings, 4 FCC  &Rcd at 4054. Moreover, the trust agreement ensures that control of the Trust Stations rests with,  &and must be exercised solely by, the designated trustee. The trust instrument clearly states that"f ,))qq="  &ythere will be no communications with the trustee regarding the management or operation of the  & Trust Stations. In addition, Sinclair has represented that the trustee, Ralph E. Becker, is an  X-independent individual with no familial or business relationships with Sinclair.f yOK- (#lԍAccording to the assignment application seeking to place the three radio stations in trust, Mr. Becker controls the licensee of KMVT(TV), Twin Falls, Idaho.  X- (#? 14. We recognize that when the trust is implemented, Sinclair will hold attributable interests  &in the maximum number of sameservice radio stations in the Norfolk market at the same time  &that it holds the beneficial interest in two FM and one AM station in that market through the  &insulated trust. The Commission has previously indicated that, although this kind of trust  &yarrangement may be effective in avoiding the influence which would trigger attribution and our  &concern for diversity, such an arrangement does not entirely allay the Commission's concerns  &regarding competition in the affected market, given that the multiple station owner involved is  X - &also the beneficiary of the trust. See Stockholders of Infinity, 12 FCC Rcd at 5041. This is  &particularly true in the matter before us because, under the terms of the trust agreement, Sinclair  &may elect to sell stations other than the Trust Stations in order to comply with the local radio  &ownership rules, in which case the Trust Stations could be reassigned to Sinclair. Thus, the  &Lstations will not necessarily be offered for sale to competitors of Sinclair in the Norfolk market.  Xd- (#@15. While 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 otherwise be sold to potential  X6- &competitors. Id. at 5042. Where the trust is of short duration, facilitates a larger, multistation  &transaction and would not result in dominant market shares, we have approved their use. Our  &examination of the advertising revenue shares attributable to Sinclair in the market allays our  &concerns regarding the effect of the combination on competition. Even if we were to consider  &the market shares of the stations in trust as belonging to Sinclair, the proposed ownership patterns  &Ncreated by the trust do not pose an unacceptable risk that Sinclair will be able to impede  &competition in the relevant markets. We note in this regard that the postconsummation radio  &advertising revenue share of the proposed station combination, including stations held in trust,  X- &is 40.29%. This level is consistent with combinations we have approved in the past.   See  Xk- &=Stockholders of Infinity, 12 FCC Rcd at 5041 (37% and 44.3%); S.E. Licensee G.P., 11 FCC Rcd 16727, 1673132 (1996) (40.4%).  X(- (#!16. On balance, we are convinced that we can approve the trust arrangement for the limited  &purpose of facilitating the transfer of control. However, we believe that it is appropriate to place  &Ma time restriction on the trust, thereby providing an imminent certain end to an arrangement  &.which gives Sinclair beneficial interests in stations that exceed the numerical limitations of our  &<local radio ownership rules. Accordingly, we will approve the application to assign the proposed  &stations to a trust for a period of up to six months. This will allow Sinclair a reasonable period  &of time to come into compliance with our local radio ownership rules. We conclude that, with  &respect to local radio ownership, nothing in the record suggests other circumstances that would  &.preclude grant of Sinclair's proposed acquisition of four FM stations in the Norfolk local radio"p$ ,))qqF#"  X- &market. See, e.g., S.E. Licensee G.P., supra; Shareholders of Citicasters, Inc., 11 FCC Rcd 19135 (1996).  X-5? OnetoaMarket Waiver Request ă  X- (#17. Sinclair seeks a permanent waiver of the Commissions onetoamarket rule to permit its  &continued control of the licensee of station WTVZTV, Norfolk, Virginia following its acquisition  &of MMP's four Virginia radio stations. It bases this request on the waiver standards adopted in  XJ- &the Second Report and Order in MM Docket 877, 4 FCC Rcd 1741 (1989) ("Second Report and  X5- &Order"), recon. granted in part and denied in part, 4 FCC Rcd 6489 (1989) ("Second Report and  X - &Order Recon."). In accordance with these standards, the Commission presumptively favors  &=waiver requests involving: (a) stations serving the top 25 markets where at least 30 separately  &[owned, operated and controlled stations will remain following the proposed combination ("top  X - &25 market/30 voice standard"); or (b) "failed" stations, i.e., stations which have not been operating  X - &for a substantial period of time (four months or more) or are involved in bankruptcy proceedings.  &[Otherwise, waiver requests must be evaluated under the more rigorous casebycase standard.  X- &LSee 47 C.F.R.  73.3555(c), Note 7. Sinclair submits its waiver request pursuant to the caseby &xcase standad since neither WTVZTV nor any of the subject radio stations are failed stations, and  &the NorfolkPortsmouthNewport News DMA (the "Norfolk DMA") is not among the top 25 markets.  X)- (#18. Under the casebycase approach, the Commission makes a public interest determination  &by weighing five factors: (1) the potential public 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;  &y(4) the financial difficulties of the stations involved; and (5) the nature of the relevant market in  X- &light of the level of competition and diversity after the joint operation is implemented. See  X- &Second Report and Order, 4 FCC Rcd at 175354. Not all five factors are necessarily relevant  X- &in each case. Id. at 1761. Sinclair has submitted a showing which addresses each of these factors.  X`-  X2- (#19. Waiver Showing: Benefits of Joint Operation. Sinclair anticipates cost savings of  &approximately $300,000 as a result of its proposed common ownership and joint operation of  &LWTVZTV, WNVZ(FM), WWDEFM and WPTE(FM). Specifically, Sinclair estimates savings  &stemming from crosspromotion of the stations (approximately $200,000$300,000), and  &centralized communications and purchasing efficiencies (approximately $8,000$10,000). Sinclair  &asserts that these efficiencies will directly benefit the public interest as Sinclair will be able to  &reinvest the savings into improved programming on all of its television and radio stations in the  &Norfolk market. A portion of the cost savings derived from joint operation of the stations will  &Kbe used to explore with city officials the feasibility of implementing Internet partnerships between  &WTVZTV and city schools in Hampton, Norfolk and Virginia Beach. Sinclair reports that it has already succesffully implemented such an Internet partnership in Baltimore.  X (- (#20. Furthermore, Sinclair avers that as a result of the proposed combination, the radio stations" (,))qq&"  &will have access to audio feeds of WTVZTV's news and weather bulletins and live coverage of  &local emergencies. WTVZTV will also make its news programming, including coverage of local  &political candidate debates, available to the radio stations for simulcasting or rebroadcast.  &Similarly, the television station will have access to excerpts from a live daily morning program  &.aired by WWDEFM, which includes interviews with local leaders and residents. Conversely,  &says Sinclair, WNVZ(FM) (whose programming targets the 1834 audience) will share news and  &public affairs programming with the television station, thereby enabling the television station to  &better serve the area's military personnel, most of whom fall within that age bracket.  &Additionally, Sinclair states that the radio stations will provide live reports on beach conditions to WTVZTV, allowing the television to better serve the area's large summer beach community.  X - (#221. Types of Facilities. Sinclair notes that WTVZTV is a FOX affiliated UHF station  &operating on Channel 33 at an ERP of 5,000 kW. WTVZTV competes for viewership against  &three networkaffiliated VHF stations, three commercial UHF stations and four noncommercial  &!UHF stations, according to Sinclair. Referring to the Nielsen ratings published in BIA's  &Television Yearbook 1997, Sinclair asserts that WTVZTV trails the three VHF stations in terms  &jof average station shares over the total day. With respect to the radio stations involved in the  &onetoamarket waiver, Sinclair states that WNVZ(FM) is a Class B station operating at 49 kW;  &.WFOGFM is a Class B station operating at 50 kW; WWDEFM is a Class B station operating  &at 40 kW; and WPTE(FM) is a Class B station operating at 50 kW. Sinclair contends that these four FM stations compete against at least 39 other commercial radio stations in the market.  X- (#22. Other Media Outlets. As stated above, Sinclair reports that it controls WTVZTV,  &Norfolk, Virginia; WGH(AM) and WGHFM, Newport News, Virginia; and WVKL(FM), Norfolk, Virginia.  X- (#>23. Financial difficulties. Sinclair does not assert that any of the radio and television stations  &involved in this waiver request are in financial distress. However, it points out that the Commission has granted onetoamarket waivers in the absence of financial difficulties.  XT- (#024. Effect on diversity and competition. Sinclair contends that the Norfolk market is highly  &diverse and competitive. According to Sinclair, the television market, ranked 40th, is served by  &eight television stations (seven commercial, one noncommercial) owned by eight separate owners,  &yand the radio market is served by 44 radio stations (36 commercial, 8 noncommercial) owned by  &/26 separate owners. Taking into account the subject onetoamarket combination, Sinclair  &[calculates that 32 independent broadcast "voices" will serve the market after consummation of  &\the proposed transaction. Additionally, notes Sinclair, the DMA will be served by 25 cable  &zsystems operated by 13 separate owners, five daily newspapers and 13 weekly newspapers.  &Sinclair asserts that the Commission has previously approved onetoamarket waivers under  &similar market conditions. In light of this level of diversity and competition, Sinclair maintains  &{that waiver of the onetoamarket rule would not present issues of market concentration inconsistent with the public interest.  X+'-  X(- (#25. Discussion. Turning to the substance of Sinclair's onetoamarket waiver request, we will"( ,))qq&"  &follow the policy established in recent onetoamarket waiver cases where the radio component  &of a proposed combination exceeds those permitted prior to the adoption of the  X- &Telecommunications Act of 1996. See Triathlon Broadcasting of Little Rock Licensee, Inc., 12  X- &FCC Rcd 13907 (1997); S.E. Licensee G.P., 11 FCC Rcd at 1673233; Shareholders of  X- &LCiticasters, Inc., 11 FCC Rcd 19135, 19143 (1996). In such cases, the Commission has declined  & to grant permanent waivers of the onetoamarket rule, and instead has granted temporary  &Nwaivers conditioned on the outcome of related issues raised in the television ownership  Xe- &rulemaking proceeding. Television Ownership Second Further Notice, 11 FCC Rcd at 21689.  &Similarly, we conclude that a permanent, unconditional waiver would not be appropriate here,  &but that Sinclair has justified grant of a temporary waiver conditioned on the outcome of the rulemaking proceeding.  X - (##26. As to the first element of our fivefactor waiver analysis, we find that Sinclair has  &\demonstrated significant economies of scale resulting from consolidation of administrative,  &joperating and technical expenses into a single operation. In particular, Sinclair asserts that the  &Mproposed common ownership of WTVZTV, WNVZ(FM), WWDEFM and WPTE(FM) will  &allow the stations to engage in crosspromotion at a savings of at least $200,000 and as much as  &$300,000. The Commission has recognized crosspromotions as "one of the most significant  Xj- &benefits of joint ownership of radio and television stations in the same market." Second Report  XU- &.and Order, 4 FCC Rcd at 1747 (footnote omitted). According to Sinclair, additional savings of  &!as much as $10,000 will be realized through centralized communications and purchasing  &efficiencies. Additionally, Sinclair states that joint operation of the television and radio stations  &will allow for the sharing of programming resources. For example, the radio stations will have  &\access to audio feeds of WTVZTV's news and weather bulletins and live coverage of local  &iemergencies, as well as access to the television station's local news programming for simulcasting  & or rebroadcast. The community served by the television station will also benefit from joint  &operation, as WTVZTV will have access to the radio stations' news and public affairs  &programming, including a daily morning radio program focussing on local news and public opinion, and the radio stations' live reports on beach conditions.  XZ- (#27. The second factor in our analysis concerns the types of facilities involved in the onetoa &market waiver. In this regard, we must "consider such factors as whether the proposed radio &television combination involves a UHF or VHF TV station or an AM or FM radio station, as well  X- &as the size or class of the stations involved." Second Report and Order, 4 FCC Rcd at 1753.  &The Commission's concern with the strength of the technical facilities of the stations at issue  &reflects a continuing concern regarding the potential impact the proposed combination may have  X - &on diversity and competition in the affected market. See, e.g., Louis C. DeArias, Receiver, 11  &FCC Rcd 3662, 3666 (1996). Our independent analysis of the onetoamarket waiver before us  &confirms that Sinclair proposes to acquire three Class B FM stations operating at 50 kW and one  X#- &Class B FM station operating at 49 kW. #f yO&-ԍSinclair's showing erroneously states that WWDEFM operates at an ERP of 40 kW. Although these stations are significant in technical  &zterms, we have independently determined that there are at least four other Class B FM radio  &stations in the Norfolk television metro market (excluding the Trust Stations) which also operate"a% X ,))qq'$"  &at 50 kW, as well as two powerful Class C and Class C1 stations which operate at 100 kW. As  &Lto the subject television station, WTVZTV is a FOXaffiliated UHF station which competes in  &lthe DMA with three VHF stations affiliated with ABC, NBC and CBS. WTVZTV, which  &operates at 5,000 kW, also faces competition from an equallypowerful UHF station affiliated  &-with Warner Brothers. Thus, while the technical facilities of the stations involved are significant,  &the existence of substantial competing facilities in the Norfolk market allays our concern that the proposed combination will have an adverse effect on competition and diversity.  XH- (#28. The third factor requires consideration of Sinclair's other ownership interests in the  X1- &ymarket. 1f yO - (#>#X\  P6G;vP#эIn order to determine the number of radio and television broadcast stations in the context of a onetoa &market waiver, the Commission considers "the relevant TV metro market for radio stations and the relevant ADI  {O: - &[Arbitron Area of Dominant Influence] TV market for television stations." Second Report and Order, 4 FCC Rcd  &at 1760 n.101. The NorfolkPortsmouthNewport News television metro market (the "Norfolk television metro  &market") consists of Gloucester, James, York, Newport News, Suffolk, Norfolk, Portsmouth, Chesapeake, Virginia  &jBeach and Hampton. Since Arbitron no longer compiles television ADI data, we will accept instead Sinclair's  {O\- &,showing using the Nielsen DMA in determining the number of broadcast "voices" in the market at issue. See Media  {O&- &Communications Partners L.P., 10 FCC Rcd 8116, 811617, n.3 (1995); see also Television Ownership Further  {O-Notice, 10 FCC Rcd at 3539 n.59.#Xj\  P6G;xXP# As discussed above, Sinclair presently controls one UHF television station, one AM  &ystation and two FM stations in the Norfolk market, and proposes to acquire four additional FM  &stations. However, Sinclair seeks to assign the three radio stations which it currently owns to an  &insulated trust controlled by a trustee unaffiliated with Sinclair. Moreover, Sinclair proposes to  &sell two FM stations in the market to a third party. Given these circumstances, we do not believe  &that Sinclair's other broadcast interests in the Norfolk market present issues of market dominance inconsistent with our core competition and diversity concerns.  Xy- (#"29. The fourth factor in our waiver analysis concerns the financial status of the stations  &-involved in the radiotelevision combination. Sinclair states that none of the stations it proposes  &zto combine is in financial distress. However, Sinclair is not required to demonstrate that the  &stations are experiencing financial difficulties as a precondition to grant of its waiver request.  &The Commission has previously granted onetoamarket waivers in the absence of financial  X-difficulties. See, e.g., S.E. Licensee G.P., 11 FCC Rcd at 1673334.  X- (#^30. The final factor relates to the level of diversity and competition in the market. Indicia  &<of the level of diversity include the number of broadcast outlets, the number of separatelyowned  &xand operated "voices" in the market, and the presence of cable and nonbroadcast media. Norfolk  &is the 39th largest television market in the country and will continue to enjoy robust competition  &after Sinclair acquires additional radio stations as a result of the subject transfer of control. We  &have independently verified that there are seven commercial television stations (3 VHF, 4 UHF)  &and one noncommercial UHF station in the Norfolk DMA; there are 39 radio stations (15 AM  &-and 15 FM, plus nine noncommercial educational stations) in the Norfolk television metro market,"9  ,))qq]"  X- &zincluding the radio stations which are the subject of the requested onetoamarket waiver. f yOy- (#ԍOur independent analysis of Sinclair's showing, based on Commission records and information contained  &;in the BIA Publications, Inc. MasterAccess Radio Analyzer database, demonstrates that Sinclair incorrectly included  &radio stations WROXFM, Cape Charles, Virginia (located in Northampton County), WKGM(AM), Smithfield,  &-Virginia (located on the Isle of Wight), and WSVY(FM), Windsor, Virginia (located on the Isle of Wight), all of  &which are outside the Norfolk television metro market. We also note that WSVV(FM), Moyock, North Carolina,  &incorrectly identified by Sinclair as "WMYK(FM), Moyock, Virginia," is not located in the Norfolk metro market  &-area. Additionally, we have excluded WLPM(AM), Suffolk, Virginia, from our station count because the license  &has been cancelled. Nonoperational stations and dark stations are not included in determining the number of stations  {O-in a market. Second Report and Order, 4 FCC Rcd at 1751, n.86.   &Taking into account the proposed televisionradio combination, we find that 29 independent  &"voices" will continue to serve the Norfolk market after consummation of the proposed  X- &<transaction, even if we do not count the trustee as a separate "voice."F Xf yO - (#.ԍOur count of the broadcast voices takes into account the common ownership of noncommercial educational  &Jstations WHROTV, HamptonNorfolk, Virginia and WHROFM, Norfolk, Virginia by Hampton Roads Educational Telecommunications Association, Inc. F There are also numerous  &other media outlets available in this market, including cable (75% penetration) and several daily  &and weekly newspapers. Grant of a temporary, conditional waiver under these circumstances is  Xv- &\clearly within the Commission's onetoamarket precedent. See, e.g., S.E. Licensee G.P., 11  &FCC Rcd at 16734 (waiver granted where market was served by 34 radio stations and eight  &xtelevision stations, representing 27 separate broadcast "voices," with cable penetration of 58.1%).  X - (#k31. With respect to economic concentration and competition, our independent analysis reveals  &that the four FM stations to be acquired by Sinclair, plus the radio stations to be held in trust,  &>garner 40.29% of radio advertising revenues in the market, while station WTVZTV garners  &[15.17% of television advertising revenue. Together, the television and radio stations receive a  &ycombined television and radio advertising share of 23.38%. This level of combined advertising  &revenue is consistent with revenue levels approved in other temporary, conditional onetoa X- &{market waivers. See, e.g., S.E. Licensee, 11 FCC Rcd at 16734 (40.4% of radio advertising  X}- &revenue and 24.2% of combined television and radio advertising revenue); Triathlon  Xh- &0Broadcasting, 12 FCC Rcd at 13913 (44.02% of radio advertising revenue and 24.97% of  &?combined television and radio advertising revenue). We find that the level of economic  &concentration resulting from the proposed televisionradio combination, while not insubstantial, does not pose a significant risk to competition in the market.  X- (#32. We conclude, based on the record, that approval of a temporary, conditional waiver of the  &onetoamarket rule is appropriate. A significant number of independent broadcast voices serve  &the market, and the stations to be commonly owned compete with technically comparable  &yfacilities. Moreover, grant of the waiver will result in cost savings and enhanced service to the  &communities served by the stations. On balance, we are persuaded that the public benefits to be  &derived from common ownership of stations WTVZTV, WNVZ(FM), WPTE(FM), WWDEFM  &and WFOGFM in the Norfolk market would outweigh any negative effect on competition and  &[diversity, and therefore conclude that grant of a temporary, conditional waiver of the onetoamarket rule is justified."? ,))qq{"Ԍ $ M   X-($ M 33.( Conclusion ă  X- (# 33. Having determined that the applicants are qualified in all respects, we find that grant of the transfer of control applications will serve the public interest, convenience and necessity.  Xv- (##Xj\  P6G;xXP#!34. Accordingly, IT IS ORDERED, That the request for permanent waiver of the television  &duopoly rule, Section 73.3555(b) of the Commission's Rules, to permit the common ownership  &of television stations KBSI(TV), Cape Girardeau, and KDNLTV, St. Louis, Missouri, IS  & DENIED; however, a conditional waiver of Section 73.3555(b) IS GRANTED, subject to the  &outcome of the Commission's pending broadcast television ownership rulemaking proceeding in  &MM Docket Nos. 91221 and 878. Should divestiture be required as a result of that proceeding,  &Sinclair is directed to file, within six months from the release of the final order in MM Docket  &<Nos. 91221 and 878, an application for Commission consent to dispose of such station as would be necessary for it to come into compliance with the rules as provided in the final order.  X- (#"35. IT IS FURTHER ORDERED, That the request for waiver of the Commission's onetoa &market rule, 47 C.F.R.  73.3555(c) to permit common ownership of WTVZTV, Norfolk,  &Virginia; WNVZ(FM), Norfolk, Virginia; WWDEFM, Hampton, Virginia; WFOGFM, Suffolk,  &\Virginia; and WPTE(FM), Virginia Beach, Virginia, IS GRANTED, subject to the outcome of  &-the Commission's pending broadcast television ownership rulemaking proceeding in MM Docket  &Nos. 91221 and 878. Should divestiture be required as a result of that proceeding, Sinclair is  &=directed to file, within six months from the release of the final order in MM Docket Nos. 91221  &/and 878, an application for Commission consent to dispose of such station(s) as would be necessary for it to come into compliance with the rules as provided in the final order.  X- (##36. IT IS FURTHER ORDERED, that the applications to assign the licenses of WGH(AM)  &Land WGHFM, Newport News, Virginia, and WVKL(FM), Norfolk, Virginia, from Sinclair Radio  &of Norfolk Licensee, Inc. to the Norfolk Trust, Ralph E. Becker, Trustee (File Nos. BALCT &2980311GHGJ), ARE GRANTED for a temporary sixmonth period from the date of consummation.  X - (#$37. IT IS FURTHER ORDERED, That the applications for transfer of control of Max Media  &=Properties LLC's aforementioned radio, television and low power television stations to Sinclair  &Communications, Inc. (File Nos. BTCCT/BTCH/BTC/BTCTTL971211IBIN), ARE GRANTED,  &subject to the condition that concurrently with consummation of the transaction, Sinclair  &Communications, Inc. has divested itself of sufficient stations, or consummated the assignment of stations to the Norfolk Trust, Ralph E. Becker, Trustee (File Nos. BALCT980311GHGJ), so "! ,))qq "  &that the subject transfer of control will result in Sinclair Communications, Inc. controlling no  &more than seven radio stations, no more than four of which are in the same service, in the Norfolk radio market. X` hp x (#%'0*,.8135@8: