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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 Applications of ) ) US BROADCAST GROUP ) LICENSEE, L.P.I. ) (Assignor) ) ) and ) File No. BALCT-970807KE ) CENTRAL NY NEWS, INC. ) (Assignee) ) ) For Consent to the Assignment of the ) License for Station WIVT(TV), ) Binghamton, New York ) ) and ) File No. BPCT-970807KK ) CENTRAL NY NEWS, INC. ) ) For Modification of Facilities of ) Station WIVT(TV), Binghamton, New York) MEMORANDUM OPINION AND ORDER Adopted: July 29, 1998 Released: July 29, 1998 By the Chief, Video Services Division: 1. The Commission, by the Chief, Video Services Division, acting pursuant to delegated authority, has before it for consideration the above-captioned applications seeking consent: (1) to modify the facilities of WIVT(TV) (ABC, Channel 34), Binghamton, New York; and (2) to assign the license of WIVT(TV), from US Broadcast Group Licensee, L.P.I. (US Broadcast) to Central NY News, Inc., a wholly-owned subsidiary of The Ackerley Group (The Ackerley Group and its subsidiaries will hereinafter be referred to as Ackerley). Ackerley also wholly- owns the licensee of WIXT(TV) (ABC, Channel 9), Syracuse, New York. Because the Grade B contours of WIVT(TV) and WIXT(TV) overlap, Ackerley requests a permanent waiver of Section 73.3555(b), the Commission's duopoly rule, 47 C.F.R. Section 73.3555(b), to permit its common ownership of the two stations. In the alternative, Ackerley requests a waiver of Section 73.3555(b) conditioned upon the outcome of the Commission's pending broadcast television ownership rulemaking concerning the duopoly and other multiple ownership rules. See Review of the Commission's Regulations Governing Television Broadcasting, Second Further Notice of Proposed Rule Making, 11 FCC Rcd 21655 (1996) (Television Ownership Second Further Notice). Ackerley asserts that grant of the requested duopoly waiver would be consistent with Commission precedent and would serve the public interest. Smith Television of New York, Inc. (Smith TV), the licensee of WKTV(TV) (NBC, Channel 2), Utica, New York and WETM-TV (NBC, Channel 18), Elmira, New York, filed a petition to deny the modification and assignment applications, to which Ackerley responded. MODIFICATION APPLICATION 2. In its pending modification application, Ackerley proposes to increase WIVT(TV)'s effective radiated power from 1,480 kW to 2,825 KW, and to replace the station's omnidirectional antenna with a directional antenna. Ackerley maintains that, operating as proposed, WIVT(TV) will provide a new Grade B service to 40,750 people, 510 of whom will receive their first over-the-air television service of any kind, 2,146 of whom will receive their first Grade B ABC television service and 38,968 of whom will receive their second ABC television service. Although 40,071 people will lose WIVT(TV)'s Grade B signal and ABC network service on that station, they will continue to receive Grade B or better ABC service from WIXT(TV) and/or WENY-TV, Elmira, New York (Channel 36). In addition, at least 12 stations cover some portion of the 559 square kilometers which will lose WIVT(TV)'s Grade B service, and 97 percent of that "lost" area is already served by at least six other Grade B signals. Finally, Ackerley notes, the proposed modifications will reduce the size of the Grade B overlap and eliminate a small Grade A overlap between WIXT(TV) and WIVT(TV)'s currently authorized facilities. 3. Smith TV's Petition. Smith TV challenges the instant modification application, claiming that it represents an attempt by Ackerley to evade the Commission's multiple ownership limits. Preliminarily, Smith TV maintains that the modification application violates established Commission policy by depriving viewers of established service without providing off-setting or countervailing public interest benefits. Smith TV asserts that, in this regard, the proposed modifications will reduce the total area WIVT(TV) serves by 559 kilometers, will deprive 40,071 people of an existing broadcast service and will cause another 14,841 people to lose their only Grade A service from any ABC affiliate. Such a degradation in service, Smith TV argues, is reason enough to dismiss the modification application. Smith TV further contends that the proposed modifications, though eliminating a white area consisting of 510 people, only minimally increase the net number of people who receive service, and thereby fail to justify the resultant loss of service. In this regard, Smith TV remarks, the Commission has previously stated that the loss of an existing service weighs more heavily than the mere extension of service to new viewers. 4. Ackerley's Opposition. In response, Ackerley contends that Smith TV's allegations regarding the modification application ignore the controlling authority in this case, the Commission's decision in Stockholders of Renaissance Communications, Corp., 12 FCC Rcd 11866 (1997) (Stockholders of Renaissance). There, Ackerley states, the Commission approved the transfer of control of Renaissance Communications Corporation (Renaissance), licensee of WPMT(TV) (Fox, Channel 43), York, Pennsylvania, to the Tribune Company (Tribune), the corporate parent of the licensee of WPHL-TV (WBN, Channel 17), Philadelphia, Pennsylvania. In that same case, the Commission also granted an application to modify WPMT(TV)'s facilities, which eliminated a small Grade A overlap between that station and WPHL-TV. Though the modification caused a loss of Grade B service to 379,200 people and the loss of Grade A service to 38,754, all of whom continued to receive Fox network service from at least one other station, it also resulted in a gain of Grade B service to 683,433 people, and the provision of a first Fox network service to approximately 32,000 people. 5. As in Stockholders of Renaissance, Ackerley asserts, grant of the proposed modification here will eliminate the Grade A overlap between WIVT(TV) and WIXT(TV). While 40,071 people will lose WIVT(TV)'s Grade B service, all will continue to receive Grade B or better ABC network service from at least one other ABC network affiliate, and at least six other Grade B signals already serve 97 percent of the loss area. According to Ackerley, moreover, Smith TV's own engineering demonstrates that all of the 14,841 people losing WIVT(TV)'s Grade A service will continue to receive Grade B service from that station. With respect to gains in service, Ackerley avers that 2,146 people will receive their first Grade B ABC network service, and 510 people will receive a first television service of any kind. In this vein, Ackerley notes, the Commission has previously stated that service to white areas is of paramount importance in licensing television stations. Ackerley further maintains that, while acknowledging its concerns about the possible evasion of the multiple ownership rules, the Commission in Stockholders of Renaissance approved the subject modification application, finding a significant public interest benefit in the provision of new service to viewers without the loss of service to existing viewers. Since the proposed modifications to WIVT(TV) will likewise provide a new service to viewers without the loss of service to existing viewers, Ackerley concludes that the instant case is consistent with Stockholders of Renaissance. 6. Smith TV's Reply. Smith TV claims, in turn, that Ackerley misplaces its reliance on Stockholders of Renaissance because grant of the requested modification in that case increased the coverage area of the modified station and created a "huge" increase in the number of persons served. A huge net gain in the number of people served, Smith TV posits, is a "necessary predicate for grant of any modification application designed to avoid the multiple ownership rules." In contrast, Smith TV argues that the proposed modifications to WIVT(TV) produce only a de minimis increase in the number of people served, which does not provide a sufficient enough public interest benefit to grant the modification application and enable Ackerley to evade the duopoly rule. According to Smith TV, moreover, the net loss of service resulting from the proposed modification also demonstrates that, contrary to Commission precedent, the station will not be making maximum use of its facilities. 7. Discussion. As a preliminary matter, we note that Ackerley disputes Smith TV's standing to file the petition to deny. Without deciding whether Smith TV has standing, we will instead consider its petition to deny on the merits as an informal objection. Such consideration is particularly appropriate with respect to the modification application because, under Section 309 of the Communications Act and Section 73.3584(a) of the Commission's rules, petitions to deny do not lie against minor modifications, like those proposed here for WIVT(TV). See, e.g., Weigel Broadcasting Co., 11 FCC Rcd 17202 (1996). Even when considered on the merits, we will deny, for the following reasons, Smith TV's informal objection as it relates to the modification application. 8. First, we disagree with Smith TV's conclusion that the WIVT(TV) modification application fails both to meet the Commission's standards and to serve the public interest. As Ackerley correctly points out, the Commission has previously considered in Stockholders of Renaissance, see supra  4, a situation similar to that before us. In that case, the Commission approved the transfer of control of WPMT(TV) from Renaissance to Tribune, as well as a modification application which, inter alia, eliminated the Grade A overlap between that station and Tribune's WPHL-TV. More recently, in WVIT Inc., 12 FCC Rcd 18172 (MMB 1997), the Commission granted applications to modify the facilities of WVIT(TV), New Britain, Connecticut, and to assign that station from WVIT, Inc. to Outlet Broadcasting, Inc. (Outlet). Like the grant of the modification application in Stockholders of Renaissance, grant of the WVIT(TV) modification application eliminated the Grade A overlap between WVIT(TV) and Outlet's WJAR(TV), Providence, Rhode Island. In both cases, the Commission's long-standing concern regarding proposed modifications which, if granted, would result in less than maximum use of the facilities, or the loss of service to the presently served population was acknowledged. Stockholders of Renaissance, 12 FCC Rcd at 11876; WVIT Inc., 12 FCC Rcd 18174. In each case, however, the modification application was approved upon a finding that it served the public interest by providing a new television service to viewers without the loss of service to existing viewers who would continue to receive that network program service from other stations. 9. Smith TV fails to show that grant of the WIVT(TV) modification application would be inconsistent with the decisions reached in Stockholders of Renaissance and WVIT Inc. As in those cases, Ackerley demonstrates here that the proposed modifications to WIVT(TV)'s facilities will result in service gains that do not come at the expense of a loss of service to existing viewers. Specifically, WIVT(TV) will provide 510 people with their first television service of any kind, 2,146 people with their first ABC television service and over 38,000 people with their second ABC television service. In fact, Smith TV concedes that WIVT(TV) will realize a gain in service, but merely contends that the gain is de minimis compared to that achieved by WPMT(TV) in Stockholders of Renaissance. Smith TV cites no authority, however, supporting its proposition that the net gain in service must be "huge" in order to justify the grant of a modification application which also eliminates a Grade A overlap. In this regard, it appears that Smith TV fails to consider the relative size and population of WIVT(TV)'s market vis-a-vis that of WPMT(TV), which would account for the difference in the size of the gain in each case. WPMT(TV) is located in the Harrisburg, Pennsylvania Designated Market Area (DMA), the 45th largest television market, and WVIT(TV), the station involved in WVIT Inc., is located in the Hartford-New Haven, Connecticut DMA, the 27th largest television market. In contrast, WIVT(TV) is located in the Binghamton DMA, ranked the 154th television market. Therefore, though WPMT(TV) and WVIT(TV) experienced larger gains than WIVT(TV) is expected to achieve, they are also located in much larger, more highly populated television markets. Given all of these considerations, we disagree with Smith TV that elimination of the white area containing 510 people and the provision of a first ABC service to 2,146 additional people do not present off-setting or countervailing public interest benefits substantial enough to justify grant of the proposed modification. 10. Furthermore, all of the viewers no longer receiving WIVT(TV)'s service will continue to receive ABC network service from at least one other station. Smith TV makes no allegation to the contrary, though it does contend that 14,841 people will no longer receive WIVT(TV)'s Grade A signal. Those 14,841 people, however, will continue to receive WIVT(TV)'s Grade B service. We note, moreover, that while the replacement of Grade A service is a factor to be considered in evaluating a modification application, we do not find that factor compelling here. Rather, we find that, on balance, the provision of a first over-the-air television service and a new Grade B network service to additional viewers, without the loss of such service to existing viewers, constitutes a significant public interest benefit. For all of these reasons, we conclude that grant of WIVT(TV)'s minor change modification application is consistent with Commission precedent and would serve the public interest, convenience and necessity. DUOPOLY WAIVER 11. Waiver Showing. Because the predicted Grade B contours of WIVT(TV), as modified, and WIXT(TV) overlap, Ackerley requests waiver of the Commission's duopoly rule. In support, Ackerley submits an engineering exhibit which shows that no Grade A overlap exists between WIVT(TV), as modified, which is located in the Binghamton, New York DMA, ranked 154th in size, and WIXT(TV), which is located in the Syracuse DMA, ranked 72nd in size. Ackerley describes the predicted Grade B contour overlap between WIVT(TV) and WIXT(TV) as encompassing 3,865 square kilometers and 157,612 people. This represents 25.1 percent of the area and 22.8 percent of the population within WIVT(TV)'s predicted Grade B contour, and 14.8 percent of the area and 11.3 percent of the population within WIXT(TV)'s Grade B contour. Ackerley contends that, though not de minimis, this degree of overlap falls well within the range of previous duopoly waiver cases approved by the Commission. 12. As for the number of media voices in the overlap area, Ackerley claims that, excluding WIVT(TV) and WIXT(TV), at least nine full-service, commercial television stations and two full-service, non-commercial television stations serve the overlap area with a Grade B or better signal. Of these 11 stations, states Ackerley, eight cover 50 percent or more, and five cover 99 percent or more, of the overlap area. At least 15 radio stations are licensed to the "Binghamton Nielsen Metro Market" and at least 16 radio stations are licensed to the "Syracuse Nielsen Metro Market." According to Ackerley, alternative sources of video programming abound in the overlap area. For example, the Binghamton and Syracuse DMAs have cable penetration rates of 73.8 percent and 73.9 percent, respectively, and cable penetration ranges from at least 52 percent to as high as 82 percent in the eight counties comprising the overlap area. Ackerley also refers to the presence of other media, and states that 14 non-national newspapers serve the Binghamton and/or Syracuse DMAs, three of which circulate seven days a week, eight of which circulate every day but Sunday, and three of which only circulate on Sunday. 13. Next, Ackerley contends that the stations serve separate and distinct markets. To wit, Ackerley asserts that Syracuse's population of 163,860 is not only more than three times larger than Binghamton's population of 53,008, but it is also more ethnically diverse. By way of comparison, Ackerley maintains that Syracuse has a 25 percent minority population, primarily African American, whereas Binghamton's minority population falls below eight percent. Also, whereas 21.8 percent of Syracuse's population speaks Spanish, only 5.9 percent of Binghamton's population is Spanish-speaking. 14. With respect to the concentration of economic power resulting from the combination, Ackerley argues that the common ownership of WIVT(TV) and WIXT(TV) will not result in the anticompetitive concentration of economic power because neither station dominates its respective market. In support, Ackerley maintains that WIVT(TV) ranks third overall in the Binghamton market, earning a share of seven. Though WIXT(TV) ranks first overall in the Syracuse market, earning a share of 19, Ackerley notes that two other stations, WSTM-TV and WTVH(TV), received shares of 18 and 15, respectively. Given the shares received by WSTM-TV and WTVH(TV), Ackerley asserts that WIXT(TV)'s "ranking does not constitute a significant lead or indicate that it dominates the television market." Based on this analysis of the Binghamton and Syracuse DMAs, Ackerley concludes that the common ownership of WIVT(TV) and WIXT(TV) will not unduly concentrate the economic power in either market or the overlap area. As added assurance, Ackerley states that WIVT(TV) and WIXT(TV) will each have its own general manager and will be run autonomously, each manager making separate local news and programming decisions. 15. Lastly, Ackerley identifies the public interest benefits which would result from a grant of the requested duopoly waiver. Specifically, Ackerley asserts that its acquisition of WIVT(TV) will create the economic base sufficient to at least double the amount of news programming broadcast on that station from its present one hour to at least two hours per day each weekday. 16. Discussion. In adopting the duopoly rule's fixed standard of a prohibited 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 "inappropriate." Multiple Ownership of Standard, FM and Television Broadcast Stations, 45 FCC 2d 1476, 1479 n.12, recon. granted in part, 3 RR 2d 1554 (1964). To that end, the Commission has 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' operations, and the concentration of economic power resulting from the combination. See Iowa State University Broadcasting Corporation, 9 FCC Rcd 481, 487-88 (1993), aff'd sub nom. Iowans for WOI-TV, 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 benefits outweigh any detriment which may occur from grant of the waiver. See, e.g., Iowa State University, 9 FCC Rcd at 487-88. As with any waiver, it will only be granted if the Commission concludes that the waiver is in the public interest. 17. 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 its 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 Television Ownership Second Further Notice. 18. 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 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 based on DMAs supplemented with a Grade A overlap criterion." Television Ownership Second Further Notice, 11 FCC Rcd at 21681. 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. 19. Given the clearly articulated policy in the Television Ownership Second Further Notice, we do not believe that an unconditional grant of Ackerley's duopoly waiver request is appropriate. See WHOA-TV, Inc., 11 FCC Rcd 20041, 20046-47, 20051 (1996). However, we believe that grant of a conditional waiver of the duopoly rule, subject to the outcome of the pending ownership proceeding, is justified. Because the two stations are in separate DMAs and the stations' Grade A contours do not overlap, the temporary common ownership of WIVT(TV) and WIXT(TV) would be consistent with the interim policy set forth in the Television Ownership Second Further Notice. 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 applicant coming into compliance with the outcome of the pending television ownership rulemaking proceeding within six months of its conclusion, will serve the public interest, convenience and necessity. Any request to extend the conditional waiver should be filed at least 45 days prior to the end of the six-month period and will be closely scrutinized. OTHER MATTERS 20. Smith TV's Objection to the WVIT Assignment. In essence, Smith TV's objections to the WIVT(TV) assignment are twofold. First, Smith TV asserts that only 11 television stations are licensed to the Syracuse, Binghamton and Utica DMAs, and that, if the WVIT(TV) assignment application is granted, Ackerley will own or have operational control of three of those stations, WIVT(TV), WIXT(TV) and WUTR(TV) (ABC, Channel 20), Utica, New York. Smith TV includes WUTR(TV) as one of those three stations, pointing to a local marketing agreement (LMA) and option agreement which have been executed between WUTR(TV)'s licensee, Utica Television Partners, L.L.C. (Utica TV) and Ackerley. Smith TV maintains, too, that the proposed modifications to WIVT(TV) will also eliminate the Grade B overlap between that station and WUTR(TV). Second, Smith TV argues that the Bureau should not grant the assignment application without conducting a fact-finding investigation of the arrangements between Ackerley and Utica TV with respect to WUTR(TV). In particular, Smith TV refers to the LMA, option and loan guaranty agreements between Utica TV and Ackerley, and contends that an examination of the substance of these arrangements "demonstrates that, in fact, Ackerley may have already acquired the station under relevant Commission precedent and practice." To this end, Smith TV maintains that Utica TV has been stripped of any incentive to exercise its responsibilities as a licensee because, as consideration for the LMA, Ackerley will operate WUTR(TV) on a 24-hour basis, provide programming, sell advertising, receive all revenues and reimburse Utica TV for operation costs. Further, in exchange for acting as the guarantor of $7,855,000 in loans made to Utica TV by First Union Nation Bank (First Union), Ackerley holds an option to purchase WUTR(TV), and an unexecuted asset purchase agreement (APA) stipulates a purchase price of $7,852,000 if the option is exercised in its first year and that year is profitable. Smith TV contends that, given the loan guaranty and the terms of the option and the APA, Utica TV already receives the proceeds of the sale of WUTR(TV) and, therefore, has no real economic interest in the operations of that station. 21. Ackerley's Opposition. Ackerley responds, contending that the Commission approved the assignment of WUTR(TV) to Utica TV after having reviewed the transactional documents described by Smith TV. It was in that assignment proceeding, Ackerley further argues, that Smith TV should have raised its WUTR(TV) allegations and had an opportunity to do so, but did not. Notwithstanding its procedural challenge to Smith TV's WUTR(TV) allegations, Ackerley defends its LMA, option and loan guaranty, claiming that they comply with the Commission's LMA policy and resulted from arm's-length negotiations with Utica TV. 22. In addition, Ackerley disputes Smith TV's arguments regarding the control of WUTR(TV). Principally, Ackerley maintains that Smith TV cites no evidence in support of its claim that Utica TV does not control WUTR(TV). Further, Ackerley argues, because the purchase price for WUTR(TV) is tied to the profitability of that station at the time of sale, Smith TV has no basis for its allegation that Utica TV has no real economic interest in the operation of the station. As for the somewhat related assertion that it will have ownership or have operational control of three of the 11 television stations licensed to the Syracuse, Binghamton and Utica DMAs, Ackerley notes that Smith TV is the licensee of television stations WKTV(TV) in Utica and WETM-TV in Elmira, and also currently operates WBGH-LP, Binghamton, pursuant to an LMA. 23. Smith TV's Reply. Regarding its failure to file a petition to deny the WUTR(TV) assignment application, Smith TV professes to have been unaware of Ackerley's involvement with that station because public notice of LMAs and options is not required. Smith TV acknowledges that the Commission has already passed on the assignment of WUTR(TV) to Utica TV, but maintains that such approval should not insulate Ackerley from a more searching inquiry when it seeks to acquire WIVT(TV). In furtherance of its allegation that Utica TV has no meaningful interest in WUTR(TV), Smith TV again challenges the purchase price arrangement for the station, asserting that it undervalues the transaction. This is so, according to Smith TV, because the acquisition price during the first year of the option is identical to Utica TV's own purchase price, plus $102,500 if the station is profitable. In fact, Smith TV claims, Utica TV has already received the purchase price for WUTR(TV) from Ackerley because, when the option is exercised, Utica TV will retain the purchase price less the then current loan balance. 24. Finally, Smith TV alleges that George Kriste and Michael Williams, who formed Utica TV in March 1997, are "straw men" for Ackerley. In support of its argument, Smith TV asserts that the Operating Agreement for Utica TV omits material information for determining the real parties in interest, the capital contributions by each individual. Smith TV also points to "other significant dealings" between Kriste, Williams and Ackerley, stating that Kriste and Williams are: (1) officers and directors of Century Management Inc., which controls a partnership in which an Ackerley subsidiary has an interest; and (2) members of the operating board of New Century of Arizona, L.L.C. (New Century Arizona), in which Ackerley holds a 14.4 percent equity interest. All of the foregoing circumstances, Smith TV concludes, mandate that the Commission commence an investigation of these facts and relationships. 25. Discussion. Initially, we view Smith TV's allegations concerning Ackerley's relationship to WUTR(TV) as a belated attempt to seek reconsideration of our decision approving the assignment of that station from Media General Broadcasting, Inc. to Utica TV. Pursuant to Section 405 of the Communications Act, 47 U.S.C.  405, petitions for reconsideration "must be filed within thirty days from the date upon which public notice is given of the order, decision, report, or action complained of." On June 23, 1997, we issued a public notice of our action granting the WUTR(TV) assignment application. Public Notice - Broadcast Actions Report No. 44018, Mimeo 74798. However, Smith TV's allegations regarding the WUTR(TV) assignment were filed on September 19, 1997, as part of its informal objection to the WIVT(TV) applications and more than 30 days after public notice of our action granting the WUTR(TV) assignment application was issued. Therefore, Smith TV's allegations as they relate to WUTR(TV) are untimely, and we are not persuaded by Smith TV's attempt to explain away its tardiness. 26. Smith TV had an opportunity to file a petition to deny the WUTR(TV) assignment application, which was placed on public notice as accepted for filing on March 28, 1997, but neglected to do so. Smith TV claims that it had no notice of Ackerley's involvement with WUTR(TV) because public notice of LMAs and options is not required under the Commission's rules. However, we find this claim disingenuous. Smith TV's expressed concern, here, regarding the concentration of ownership of the television stations licensed to the Syracuse, Utica and Binghamton DMAs is incongruous with its failure to examine the application to assign WUTR(TV), a station located in the same market as its own station, WKTV(TV). Had Smith TV examined the assignment application, it would have discovered Ackerley's relationships with WUTR(TV) as a programmer, option holder and guarantor of a loan made to the station's licensee, Utica TV. The fact that Smith TV failed to investigate the assignment, and thereby learn of Ackerley's involvement with WUTR(TV), neither justifies nor compels reconsideration of our decision in that case, which was reached following a thorough review of Ackerley's relationships to that station. 27. Should we consider Smith TV's arguments, we would deny its objection on the merits as it relates to WUTR(TV). Smith TV fails to present a substantial and material question of fact that the assignment of WIVT(TV) to Ackerley would be prima facie inconsistent with the public interest, or that Ackerley lacks the qualifications to be a Commission licensee. In particular, Smith TV offers no facts in support of its bare allegation that Utica TV's principals, Kriste and Williams, are "straw men" for Ackerley. Though Utica TV did not specify in its Operating Agreement the capital contributions of each of its principals, Smith TV fails to show us how such an "omission" is material, or raises a real party in interest issue. That information is not requested by the Commission's rules or in the assignment application, where, more importantly, Utica TV did list its principals, disclose that each principal has a 50 percent ownership interest and indicate that the station would be purchased pursuant to a loan guaranteed by Ackerley. Smith TV's recitations of the "other significant dealings" between Kriste, Williams and Ackerley, i.e., New Century Seattle and New Century Arizona, likewise lend no support to its real party in interest allegation. Again, those dealings were disclosed by Utica TV and considered in our evaluation of the WUTR(TV) assignment application. Furthermore, because those dealings do not violate any Commission rule or policy, they presented no impediment to grant of the WUTR(TV) assignment application. 28. Smith TV likewise fails to support its assertion that Utica TV may have relinquished control of WUTR(TV). Essentially, Smith TV bases this allegation on Ackerley's relationships with WUTR(TV), namely the LMA and option agreement, as well as the purchase price for the station. We note, however, that a licensee's participation in an LMA is permissible so long as the licensee retains ultimate control of the station, i.e., mandates basic policies pertaining to the fundamental station operations of programming, personnel and finances. See, e.g., WGPR, Inc., 10 FCC Rcd 8140, 8141-8142 (1995). Smith TV proffers no showing that the LMA between Utica TV and Ackerley fails to comply with the Commission's rules and policies, or that Utica TV has surrendered control of its station to Ackerley. Rather, in making its allegations concerning control, which include a claim that Utica TV has no meaningful interest in its station, Smith TV relies on information which was before us, and thoroughly considered, at the time we granted the WUTR(TV) assignment application. For this reason, and because Smith TV presents no new information which would cause us to revisit Ackerley's relationships with Utica TV, we need not address its allegations any further. CONCLUSION 29. In conclusion, we have reviewed the proposed assignment and the related pleadings and find the applicants to be qualified in all respects. We also find that the modification of the facilities of WIVT(TV) and the assignment of that station from US Broadcast Group Licensee, L.P.I. to Central NY News, Inc. will serve the public interest, convenience and necessity. 30. Accordingly, IT IS ORDERED, That the petition to deny filed by Smith Television of New York, Inc. against File Nos. BPCT-970807KK and BALCT-970807KE IS DISMISSED as discussed herein, and when considered as an informal objection IS DENIED. 31. IT IS FURTHER ORDERED, That the application for modification of the facilities of WIVT(TV), File No. BPCT-970807KK, IS GRANTED. 32. IT IS FURTHER ORDERED, That the request for a permanent waiver of the television duopoly rule, Section 73.3555(b) of the Commission's rules, to permit the common ownership of television stations WIVT(TV), Binghamton, New York and WIXT(TV), Syracuse, New York IS DENIED. 33. IT IS FURTHER 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 The Ackerley Group of television stations WIVT(TV), Binghamton, New York and WIXT(TV), Syracuse, New York IS GRANTED, subject to the outcome of the Commission's pending broadcast ownership rulemaking in MM Docket Nos. 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 Nos. 91-221 and 87-8, an application for Commission consent to dispose of such station as would be necessary for The Ackerley Group to come into compliance with the rules as provided in the final order. 34. IT IS FURTHER ORDERED, That the application for consent to assignment of license of WIVT(TV), Binghamton, New York, from US Broadcast Group Licensee, L.P.I. to Central NY News, Inc., File No. BALCT-970807KE, IS GRANTED. FEDERAL COMMUNICATIONS COMMISSION Barbara A. Kreisman Chief, Video Services Division Mass Media Bureau