******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. 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 Application s of) ) MAINE RADIO AND TELEVISION ) COMPANY ) (Assignor) ) ) and ) File No. BALCT-971016IA ) PACIFIC AND SOUTHERN ) COMPANY, INC. ) (Assignee) ) ) For Consent to the Assignment of License ) of Station WCSH(TV), Portland, Maine ) ) and ) ) MAINE BROADCASTING COMPANY ) (Assignor) ) ) and ) File Nos. BALCT-971016IB-ID ) PACIFIC AND SOUTHERN ) COMPANY, INC. ) (Assignee) ) ) For Consent to the Assignment of License ) of Stations WLBZ(TV), Bangor, Maine; ) W04AK, Waterville, Maine; and W57AQ, ) Calais, Maine ) MEMORANDUM OPINION AND ORDER Adopted: December 30, 1997 Released: January 2, 1998 By the Chief, Mass Media Bureau: 1. The Commission, by the Chief, Mass Media Bureau, acting pursuant to delegated authority, has before it for consideration the above-captioned unopposed applications for assignment of the licenses of television station WCSH(TV) (NBC), Channel 6, Portland, Maine ( WCSH ), from Maine Radio and Television Company to Pacific and Southern Company, Inc. ( P&S ), and television station WLBZ(TV) (NBC), Channel 2, Bangor, Maine ( WLBZ ), and associated translator facilities from Maine Broadcasting Company to P&S. Because the Grade B contour of WCSH overlaps the Grade B contour of station WLBZ, P&S requests a waiver of the Commission s television duopoly rule (47 CFR  73.3555(b)) to allow common ownership of WCSH and WLBZ conditioned upon the outcome of the 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 ). 2. Duopoly Waiver Request. In support of its waiver request, P&S has submitted an engineering exhibit which shows that there is no Grade A contour overlap between WCSH and WLBZ. According to P&S, the Grade B overlap area of WCSH and WLBZ encompasses 69,010 individuals and 1,540 square kilometers, comprising approximately 4.42% of the population and 4.19% of the land area within WCSH s Grade B contour and 20.20% of the population and 7.53% of the land area within WLBZ s Grade B contour. P&S also asserts that the stations serve separate and distinct markets, as WCSH is located in the Portland-Auburn, Maine Designated Market Area ( DMA ), ranked 80th, whereas WLBZ is located in the Bangor, Maine DMA, ranked 155th. 3. P&S states that it will operate and program both stations separately and will maintain separate staffs at each station. Additionally, P&S contends that the stations target their marketing efforts to different parts of the state, with WCSH focusing on Portland and WLBZ focusing on Bangor. 4. Next, P&S maintains that the overlap area will remain well-served by numerous media voices. P&S s engineering exhibit states that five television stations (three commercial, two noncommercial educational) serve the WCSH/WLBZ overlap area, three of which serve the entire area. Additionally, according to P&S, the residents of the overlap area are served by 20 radio stations (6 AM, 14 FM), four daily newspapers, nine weekly newspapers, and 22 separate cable systems (owned by 12 different owners). P&S contends that the number of alternative media voices in the WCSH/WLBZ overlap area compares favorably to other cases in which the Commission has granted conditional waivers of the duopoly rule, citing Broadcasting Systems, Inc. DA 97-2076 (MMB, released September 26, 1997) and Sainte Limited, DA 97-484 (MMB, released March 6, 1997). P&S also notes that following consummation of the proposed assignment, it would not own any media-related properties in the overlap area other than WCSH and WLBZ. 5. 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 inappropriate. Multiple Ownership of Standard, FM and Television Broadcast Stations, 45 FCC 1476, 1479 n.12, recon. granted in part, 3 RR2d 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 station s 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. 6. 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 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. See Section 202(c) of the Telecommunications Act of 1996, Pub. L. No. 104- 104, 110 Stat. 56,111 (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. See supra. In that Second Further Notice, the Commission tentatively concluded to authorize common ownership of television stations that are in separate DMAs and whose Grade A contours do not overlap. Television Ownership Second Further Notice, 11 FCC Rcd at 21681,  57. 7. 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 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. 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 in the interim. Id. Additionally, the Commission gave the staff delegated authority to act on applications seeking waivers consistent with this interim policy. Id. 8. Based on the Commission's interim ownership policy outlined in the Television Ownership Second Further Notice and the specific showings made by the applicants in this case, we believe that grant of a conditional waiver of the duopoly rule, subject to the outcome of the pending ownership proceeding, is justified. The temporary common ownership of WCSH and WLBZ would be consistent with the interim policy set forth in the Television Ownership Second Further Notice, as the stations are in separate DMAs and there is no Grade A overlap between WCSH and WLBZ. 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 six-month period and would be closely scrutinized. Additionally, having found P&S to be qualified in all respects, we conclude that grant of the application for assignment of license would also serve the public interest. 9. Accordingly, IT IS ORDERED, That the request for conditional waiver of Section 73.3555(b) of the Commission s rules to permit the common ownership by P&S of television stations WCSH(TV), Portland, Maine, and WLBZ(TV), Bangor, Maine, 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 assignee 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 P&S to come into compliance with the rules as provided in the final order. 10. IT IS FURTHER ORDERED, That the applications for assignment of license of WCSH(TV), Portland, Maine, from Maine Radio and Television Company to Pacific and Southern Company, Inc. (BALCT-971016IA), and WLBZ(TV), Bangor, Maine, and associated translator facilities from Maine Broadcasting Company to Pacific and Southern Company, Inc. (BALCT-971016IB-ID) ARE GRANTED. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau