WPC[ 2BJZ Courier3|w:Wx6X@`7X@HP LaserJet 5Si LPT2:l)RM 700HPLAS5SI.PRSx  @\z$^X@26 ZFv@3|wHP LaserJet 5Si LPT2:l)RM 700HPLAS5SI.PRSXj\  P6G;\z$^XP X- I. A. 1. a.(1)(a) i) a) 1. 1. 1. a.(1)(a) i) a)#X\  P6G;ɒP#X01Í ÍX01Í Í#Xj\  P6G;ynXP#a8DocumentgDocument Style StyleXX` `  ` 2pkXk.a4DocumentgDocument Style Style . a6DocumentgDocument Style Style GX  a5DocumentgDocument Style Style }X(# a2DocumentgDocument Style Style<o   ?  A.  2,vt{ a7DocumentgDocument Style StyleyXX` ` (#` BibliogrphyBibliography:X (# a1Right ParRight-Aligned Paragraph Numbers:`S@ I.  X(# a2Right ParRight-Aligned Paragraph Numbers C @` A. ` ` (#` 2% ^   f a3DocumentgDocument Style Style B b  ?  1.  a3Right ParRight-Aligned Paragraph Numbers L! ` ` @P 1. ` `  (# a4Right ParRight-Aligned Paragraph Numbers Uj` `  @ a. ` (# a5Right ParRight-Aligned Paragraph Numbers _o` `  @h(1)  hh#(#h 2W    a6Right ParRight-Aligned Paragraph Numbersh` `  hh#@$(a) hh#((# a7Right ParRight-Aligned Paragraph NumberspfJ` `  hh#(@*i) (h-(# a8Right ParRight-Aligned Paragraph NumbersyW"3!` `  hh#(-@p/a) -pp2(#p Tech InitInitialize Technical Style. k I. A. 1. a.(1)(a) i) a) 1 .1 .1 .1 .1 .1 .1 .1 Technical2Qa1DocumentgDocument Style Style\s0  zN8F I. ׃  a5TechnicalTechnical Document Style)WD (1) . a6TechnicalTechnical Document Style)D (a) . a2TechnicalTechnical Document Style<6  ?  A.   2M_a3TechnicalTechnical Document Style9Wg  2  1.   a4TechnicalTechnical Document Style8bv{ 2  a.   a1TechnicalTechnical Document StyleF!<  ?  I.   a7TechnicalTechnical Document Style(@D i) . 238e<a8TechnicalTechnical Document Style(D a) . Doc InitInitialize Document Stylez   0*0*0*  I. A. 1. a.(1)(a) i) a) I. 1. A. a.(1)(a) i) a)DocumentgPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""2"2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""><q*"xxxxWWxxxWWkkxxxZ ,-(-(ZZ"  Y-  realize a gain in service, but merely contends that the gain is de minimis compared to that  Y-  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  Y-  hthat Smith TV fails to consider the relative size and population of WIVT(TV)'s market visavis   that of WPMT(TV), which would account for the difference in the size of the gain in each case.   ZWPMT(TV) is located in the Harrisburg, Pennsylvania Designated Market Area (DMA), the  Ye-  Y45th largest television market, and WVIT(TV), the station involved in WVIT Inc., is located in   the HartfordNew Haven, Connecticut DMA, the 27th largest television market. In contrast,   hWIVT(TV) is located in the Binghamton DMA, ranked the 154th television market. Therefore,   Kthough WPMT(TV) and WVIT(TV) experienced larger gains than WIVT(TV) is expected to   wachieve, 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 offsetting or countervailing public interest benefits substantial enough to justify grant  Y -of the proposed modification.*  d {O(-  ԍ We note that one of the cases to which Smith TV cites in support of its argument is Triangle Publications,  {O-  -Inc., 37 FCC 307 (1964), where the Commission denied a proposed modification which would have resulted in a  {O-  net gain in service to 500 people. Though the Commission found such a net gain de minimis, it did so because the   modification would have also created a white area consisting of 37,912 people, and a gray area consisting of 5,448   Jpeople. In comparison, we believe that the anticipated gains in service, here, are substantial in view of the fact that no loss in service will result, and no white or gray areas will be created.*  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 overtheair   television service and a new Grade B network service to additional viewers, without the loss of  Y-  xsuch service to existing viewers, constitutes a significant public interest benefit. ~Fd {O-  ԍ See John McCutcheon d/b/a MCC Communications, 4 FCC Rcd 2079, 2082 (1989) (applications to modify   ,both existing facilities of station and authorized facilities of unbuilt station granted where nearly 30,000 people not   within predicted Grade B contour of NBC service would for first time be within predicted Grade B contour of NBC  {O!-  =affiliate); Citadel Communications Company, Ltd., 10 FCC Rcd 11910, 11921 (1995), aff'd sub nom. Busse  {O!-  Broadcasting Corp. v. FCC, 87 F.3d 1456 (D.C. Cir. 1996) (applications to modify facilities of television station   and to construct new station granted where grant of both would result in total service gain of 217,932, while only 236 people were predicted to lose ABC service). For all of   Ythese reasons, we conclude that grant of WIVT(TV)'s minor change modification application is  Y-  Zconsistent with Commission precedent and would serve the public interest, convenience and necessity. "m ,-(-(ZZN"ԌU-DUOPOLY WAIVER  Y- 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  Y-  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  Y -  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 fullservice, commercial television stations   and two fullservice, noncommercial television stations serve the overlap area with a Grade B   wor 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   h"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 nonnational   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   wAfrican 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 Spanishspeaking.  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, WSTMTV and WTVH(TV),   [received shares of 18 and 15, respectively. Given the shares received by WSTMTV and"'' ,-(-(ZZP("   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.  M15. 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.  Y - z16. 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   I that rule's application, noting that waivers should be granted where rigid conformance to the rule  Y{-  would be "inappropriate." Multiple Ownership of Standard, FM and Television Broadcast  Yf-  xStations, 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  Y-  resulting from the combination. See Iowa State University Broadcasting Corporation, 9 FCC  Y-  hRcd 481, 48788 (1993), aff'd sub nom. Iowans for WOITV, Inc. v. FCC, 50 F.3d 1096 (D.C.  Y-  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  Y-  from grant of the waiver. See, e.g., Iowa State 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.  Y.-  17. Currently, the Commission is reexamining its broadcast television ownership   policies, including the duopoly rule. In January 1995, the Commission proposed a new  Y-  analytical framework within which to evaluate its broadcast television ownership rules. See   Review of the Commission's Regulations Governing Television Broadcasting, Further Notice of  Y -  Proposed Rule Making, 10 FCC Rcd 3524 (1995) (Television Ownership Further Notice).  Y!-  Subsequent to the release of that Television Ownership Further Notice, Congress directed the  Y"-  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  Y|$-  Ywithin the same television market.  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 Act and to update the record, the Commission released  Y9'-the Television Ownership Second Further Notice.  "9' ,-(-(ZZP("Ԍ Y- ԙ18. 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   v 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."  Ya-  JTelevision 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  Y -  diversity goals in the interim." Id. Additionally, the Commission gave the staff delegated  Y -authority to act on applications seeking waivers consistent with this interim policy.   Y -  19. Given the clearly articulated policy in the Television Ownership Second Further  Y -  ,Notice, we do not believe that an unconditional grant of Ackerley's duopoly waiver request is  Y -  appropriate. See WHOATV, Inc., 11 FCC Rcd 20041, 2004647, 20051 (1996). However, we   Zbelieve 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)  YW-  I and WIXT(TV) would be consistent with the interim policy set forth in the Television Ownership  YB-  Second Further Notice. Moreover, our examination of the record presented here reveals nothing  Y--  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   Ksix months of its conclusion, will serve the public interest, convenience and necessity. Any   Jrequest to extend the conditional waiver should be filed at least 45 days prior to the end of the sixmonth period and will be closely scrutinized. 4OTHER MATTERS  Y^- 20. Smith TV's Objection to the WVIT Assignment. In essence, Smith TV's objections   yto 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   Ylicensee, Utica Television Partners, L.L.C. (Utica TV) and Ackerley. Smith TV maintains, too,   Jthat the proposed modifications to WIVT(TV) will also eliminate the Grade B overlap between   Kthat station and WUTR(TV). Second, Smith TV argues that the Bureau should not grant the   assignment application without conducting a factfinding investigation of the arrangements   Ybetween 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"5' ,-(-(ZZP("   ,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 24hour basis, provide programming, sell advertising, receive all revenues and   Zreimburse Utica TV for operation costs. Further, in exchange for acting as the guarantor of  Y-  $7,855,000 in loans made to Utica TV by First Union Nation Bank (First Union), zd yO-  <ԍ Smith TV claims that Utica TV violated Section  73.3613(b)(5) of the Commission's rules, 47 C.F.R.   - 73.3613, by failing to file its loan agreement with First Union and its loan guaranty agreement with Ackerley.   We see no reason to resolve this matter as it bears no decisional significance on our disposition of the WIVT(TV)   modification and assignment applications under consideration here. Nevertheless, we note that Section 73.3613(b)(5)   Ydoes not require the filing of all loan agreements, only those containing provisions restricting the licensee's freedom   of operation, and Smith TV merely speculates as to the terms of the loan agreement executed between First Union  {O -and Utica TV. In addition, no provision of Section 73.3613 requires the filing of a loan guaranty agreement. 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   Ythe 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.  Y - 21. Ackerley's Opposition. Ackerley responds, contending that the Commission   xapproved 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)   xallegations, Ackerley defends its LMA, option and loan guaranty, claiming that they comply with the Commission's LMA policy and resulted from arm'slength negotiations with Utica TV.  22. In addition, Ackerley disputes Smith TV's arguments regarding the control of   JWUTR(TV). Principally, Ackerley maintains that Smith TV cites no evidence in support of its   jclaim 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)  Y~-  in Utica and WETMTV in Elmira, ~ d yO9"-ԍ WETMTV is located in the Elmira DMA, which is adjacent to the Syracuse and Binghamton DMAs. and also currently operates WBGHLP, Binghamton, pursuant to an LMA.   Y9- 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"   ,-(-(ZZ"   acknowledges that the Commission has already passed on the assignment of WUTR(TV) to Utica   yTV, 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   Lthe option is exercised, Utica TV will retain the purchase price less the then current loan  Y1-balance.1d yO -  ԍ According to Smith TV, a further indication that Utica TV has no meaningful interest in the station is its   failure to respond, after having been served with the petition to deny, to the WUTR(TV) allegations. We disagree.   KSmith TV's petition to deny was filed against the WIVT(TV) modification and assignment applications to which   Utica TV is not a party. Further, we see no reason to view Utica TV's decision not to respond here to the   JWUTR(TV) allegations which were raised outside the proper procedural channels as an acknowledgement that it has  {O-no meaningful interest in its station, see infra  25.  >24. Finally, Smith TV alleges that George Kriste and Michael Williams, who formed   JUtica 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   zWilliams are: (1) officers and directors of Century Management Inc., which controls a  Yy-  hpartnershipyBd yOl-  iԍ That partnership, New Century Seattle License Partnership (New Century Seattle), is the licensee of radio stations in Seattle, Washington. in which an Ackerley subsidiary has an interest; and (2) members of the operating  Yb-  board of New Century of Arizona, L.L.C. (New Century Arizona),bd yO-  ԍ New Century Arizona is the general partner of New Century Arizona License Partnership, the licensee of radio stations in Globe, Glendale and Sun City, 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.  Y- 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  Y-  of the order, decision, report, or action complained of." d yO8%-ԍ Section 1.106(f) of the Commission's rules, 47 C.F.R.  1.106(f), implements this statutory mandate. On June 23, 1997, we issued a  Y~-  public notice of our action granting the WUTR(TV) assignment application. Public Notice  Yi-  Broadcast Actions Report No. 44018, Mimeo 74798. However, Smith TV's allegations"i ,-(-(ZZl"   wregarding 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   hgranting 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,   I 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   yWUTR(TV) as a programmer, option holder and guarantor of a loan made to the station's   xlicensee, 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  YK-relationships to that station.O4 Kd yO-  hԍ The number and type of relationships Ackerley has with WUTR(TV), namely the LMA, option and guaranty,   comply with the Commission's interim policy for processing applications proposing LMAs, which was articulated  {OT-  in Public Notice Report No. 54161 (Rel. June 1, 1995). See, e.g., Paramount Stations Group of Kerrville, Inc., 12   hFCC Rcd 6135 (1997) (LMA, option and guaranty comply with Commission's LMA policy). We believe that Smith   ;TV's allegations concerning Ackerley's ownership interests and other relationships in the Binghamton, Syracuse and   xUtica DMAs, inasmuch as they relate to the number of media interests held by a licensee in a smaller market, are   more appropriate for consideration in a rulemaking proceeding, such as those underway which deal with various  {O>-  relationships by broadcasters in the same market, including television time brokerage agreements. See Priscilla A.  {O-  Schwier, FCC 97313 (rel. Sept. 22, 1997); see also Further Notice of Proposed Rulemaking, MM Docket No. 94 {O-  ;150, et al., 11 FCC Rcd 19895 (1996); Television Ownership Second Further Notice, 11 FCC Rcd 21655. We note,  {O-  too, the Commission's statement in the Television Ownership Second Further Notice, that it would "reserve the right   w. . . to invalidate an otherwise grandfathered LMA [local marketing agreement] in circumstances that raise particular  {O.-competition and diversity concerns, such as those that might be presented in very small markets." Id. at 21694.O  27. Should we consider Smith TV's arguments, we would deny its objection on the   wmerits as it relates to WUTR(TV). Smith TV fails to present a substantial and material question  Y-  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   Yparticular, Smith TV offers no facts in support of its bare allegation that Utica TV's principals,   ZKriste and Williams, are "straw men" for Ackerley. Though Utica TV did not specify in its   wOperating Agreement the capital contributions of each of its principals, Smith TV fails to show   Yus 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"P ,-(-(ZZ/"   : ownership interest and indicate that the station would be purchased pursuant to a loan guaranteed  Y-  by Ackerley. Smith TV's recitations of the "other significant dealings" between Kriste,  Y-  YWilliams and Ackerley, i.e., New Century Seattle and New Century Arizona, likewise lend no  Y-  support to its real party in interest allegation. Again, those dealings were disclosed by Utica TV  Y-  Kand considered in our evaluation of the WUTR(TV) assignment application.sd yO-  ԍ Though New Century Seattle and New Century Arizona have attributable broadcast radio interests in  {O-  Washington and Seattle, respectively, see supra nn.15 & 16, they have no attributable interest in WUTR(TV). As   for Utica TV and Ackerley, neither entity has an attributable interest in the other. Therefore, neither Ackerley's   acquisition of WIVT(TV), nor grant of the WIVT(TV) modification application raises any present multiple ownership  {OA -concerns visavis WUTR(TV).s 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   Jcontrol of WUTR(TV). Essentially, Smith TV bases this allegation on Ackerley's relationships   hwith 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  Y -  the licensee retains ultimate control of the station, i.e., mandates basic policies pertaining to the  Y -  fundamental station operations of programming, personnel and finances. See, e.g., WGPR, Inc.,   10 FCC Rcd 8140, 81418142 (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. BPCT970807KK and BALCT970807KE 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. BPCT970807KK, IS GRANTED.  32. IT IS FURTHER ORDERED, That the request for a permanent waiver of the"! |,-(-(ZZ""   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   Nand WIXT(TV), Syracuse, New York IS GRANTED, subject to the outcome of the  YH-  Commission's pending broadcast ownership rulemaking in MM Docket Nos. 91221 and 878.   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. 91221 and 878, 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. BALCT970807KE, IS GRANTED.  h FEDERAL COMMUNICATIONS COMMISSION Barbara A. Kreisman$IRoy J. Stewart Chief,  $I Video Services Division $IVMass Media Bureau  h