53694 Federal Register / Vol. 61, No. 200 / Tuesday, October 15, 1996 / Proposed Rules

Dated: September 23, 1996. New Mexico Environment Department, ADDRESSES: Federal Communications John P. DeVillars, Air Monitoring and Control Strategy Commission, 1919 M Street, N.W., Regional Administrator Region I. Bureau, 1190 St. Francis Drive, Room Washington, D.C. 20554. [FR Doc. 96–26198 Filed 10–11–96; 8:45 am] So. 2100, Santa Fe, New Mexico FOR FURTHER INFORMATION CONTACT: BILLING CODE 6560±50±P 87503. Roger Holberg, Mass Media Bureau, Louisiana Department of Environmental Policy and Rules Division (202) 418– Quality, Office of Air Quality, 7290 2134. 40 CFR Parts 52 and 81 Bluebonnet Boulevard, Baton Rouge, SUPPLEMENTARY INFORMATION: This is a Louisiana 70810. [NM±23±1±7101b, FRL±5612±9] synopsis of the Commission’s Notice of Anyone wishing to review this Inquiry in MM Docket No. 96–197, FCC Approval and Promulgation of State petition at the Region 6 EPA office 96–381, adopted May 9, 1996, and Implementation Plans (SIP); Prevention should contact the person below to released May 20, 1996. The complete of Significant Deterioration; Louisiana schedule an appointment 24 hours in text of this NOI is available for and New Mexico advance. inspection and copying during normal FOR FURTHER INFORMATION CONTACT: Mr. business hours in the FCC Reference AGENCY: Environmental Protection Samuel R. Mitz, Air Permits Section Center (Room 239), 1919 M Street, N.W., Agency (EPA). (6PD–R), EPA Region 6, telephone (214) Washington, D.C., and also may be ACTION: Proposed rule. 665–8370. purchased from the Commission’s copy SUPPLEMENTARY INFORMATION: See the contractor, International Transcription SUMMARY: The EPA proposes to approve information provided in the Direct Final Service, (202) 857–3800, 2100 M Street, revisions to the Louisiana and New rule which is located in the Rules N.W., Suite 140, Washington, DC 20037. Mexico SIPs addressing Prevention of Section of this Federal Register. Significant Deterioration (PSD) Synopsis of Notice of Inquiry permitting regulations. The purpose of List of Subjects 1. Introduction. In 1975, the these revisions is to replace the total 40 CFR Part 52 Commission adopted its rule (47 CFR suspended particulate PSD increments 73.3555(d)) prohibiting the common with increments for PM–10 (particulate Environmental protection, Air ownership of commercial broadcast matter 10 micrometers or less in pollution control, Incorporation by stations and newspapers in the same diameter). In the final rules section of reference, Particulate matter, Reporting community.1 Although divestiture of this Federal Register, EPA is approving and recordkeeping requirements, existing local newspaper/broadcast the States’ SIP revisions as direct final Volatile organic compounds. combinations was not required except rule without prior proposal because the 40 CFR Part 81 in ‘‘egregious’’ cases, the Commission Agency views this as a noncontroversial Air pollution control, National parks, did intend the rule to prevent the revision amendment and anticipates no Wilderness areas. creation of new combinations, including adverse comments. A detailed rationale those created by the sale of a for the approval is set forth in the direct Authority: 42 U.S.C. 7401–7671q. ‘‘grandfathered’’ newspaper-broadcast final rule. If no adverse comments are Dated: August 27, 1996. combination to the same party.2 received in response to this proposed Jerry Clifford, 2. Like all of our multiple ownership rule, no further activity is contemplated Acting Regional Administrator (6RA–D). rules, the newspaper/broadcast cross- in relation to this rule. If EPA receives [FR Doc. 96–26205 Filed 10–11–96; 8:45 am] ownership rule rests on the twin goals adverse comments, the direct final rule BILLING CODE 6560±50±P of promoting diversity of viewpoint and will be withdrawn, and all public economic competition.3 Of these two comments received will be addressed in goals, the Commission made it clear a subsequent final rule based on this FEDERAL COMMUNICATIONS when adopting the rule that fostering proposed rule. The EPA will not COMMISSION diverse viewpoints from antagonistic institute a second comment period on sources is at the heart of its licensing this action. Any parties interested in 47 CFR Ch. I responsibility. It determined that, as a commenting on this action should do so [MM Docket No. 96±197; FCC 96±381] general rule, granting a broadcast at this time. license to an entity in the same DATES: Comments on this proposed rule Waiver of the Newspaper/Broadcast community as that in which the entity must be postmarked by November 14, Cross-Ownership Restriction also publishes a newspaper would harm 1996. local diversity.4 The Commission AGENCY: Federal Communications nonetheless noted its expectation that ADDRESSES: Comments should be Commission. mailed to Jole C. Luehrs, Chief, Air there could be meritorious waiver ACTION: Notice of inquiry. 5 Permits Section (6PD–R), EPA Region 6, requests. Accordingly, it set forth the 1445 Ross Avenue, Dallas, Texas 75202– SUMMARY: The Commission seeks 1 Multiple Ownership of Standard, FM, and 2733. Copies of the State’s petition and comment on the adoption of a new Television Broadcast Stations, Second Report and other information relevant to this action policy under which it will consider Order, 40 FR 6449, 50 FCC 2d 1046 (1975) (‘‘Second are available for inspection during requests for waiver of the newspaper/ Report and Order’’), recon., 40 FR 24729, 53 FCC normal hours at the following locations: broadcast cross-ownership restriction 2d 589 (1975) (‘‘Recon. Order’’), aff’d sub nom. Federal Communications Commission v. National Environmental Protection Agency, with respect to proposed newspaper/ Citizens Committee for Broadcasting, 436 U.S. 775 Region 6, Air Permits Section (6PD– radio combinations. The intended effect (1978). The provisions of 47 CFR 73.3555 do not R), 1445 Ross Avenue, Suite 700, is to provide more clarity and certainty apply to noncommercial educational FM and TV to Commission policy with respect to stations. See 47 CFR 73.3555(f). Dallas, Texas 75202–2733. 2 such combinations. Second Report and Order, supra at 1076. Air and Radiation Docket and 3 Id. at 1074. Information Center, Environmental DATES: Comments are due by December 4 Id. at 1075. Protection Agency, 401 M Street, 9, 1996, and reply comments are due by 5 Although the waiver standards were discussed S.W., Washington, D.C. 20460. January 8, 1997. in the Second Report and Order, supra, in Federal Register / Vol. 61, No. 200 / Tuesday, October 15, 1996 / Proposed Rules 53695 grounds that it would consider pertinent (1977), Field Communications Corp. diversity which would result from the to such requests. First, the Commission (‘‘Field’’) published two daily waiver.’’ 16 stated that inability to sell the station newspapers in Chicago. As a result of 5. The legislative history also would constitute a basis for a waiver.6 the proposed transaction, a subsidiary of indicates that Congress intended the Refusal to grant a waiver under such Field would reacquire ownership of a Commission to examine, on a case-by- conditions would work a forfeiture, a Chicago television station in which case basis, requests for waivers in other result contrary to the Commission’s Field had previously sold a majority circumstances upon a showing of intent. Second, the Commission stated interest to the instant assignor. The only ‘‘unique public benefits.’’ 17 As we noted that it would waive the rule upon a other permanent waiver of the in Capital Cities/ABC, Inc., supra, this showing that the only sale possible newspaper/broadcast cross-ownership was not a directive requiring the would be at an artificially depressed rule involved the reacquisition of the Commission to grant waivers in such price.7 Third, the Commission New York Post newspaper by NYP ‘‘top 25/30 voice’’ situations or contemplated waiving the rule if it Acquisition Corp., a subsidiary of The otherwise to modify our waiver policy.18 could be shown that the separate News Corporation Limited (‘‘News Instead, it reflected congressional intent ownership and operation of the Corp.’’). In granting the waiver, the that, if we modified our waiver policy newspaper and the broadcast station Commission relied on ‘‘special for newspaper/radio combinations, we could not be supported in the locality.8 circumstances,’’ considered in tandem (1) require a showing that the proposed Finally, the Commission indicated that with an evaluation of the diversity and combination met the ‘‘top 25/30 voice’’ it would waive the rule if it could be competitiveness of the New York standard, and (2) make ‘‘a separate shown, for whatever reason, that the market.13 affirmative determination’’ in each case purposes of the rule would be disserved 4. For several years Congress that ‘‘the specified benefits’’ to the 9 by its application. In this regard, the precluded the Commission from public would offset ‘‘the reduction in Commission stated that while it would spending authorized funds ‘‘to repeal, diversity.’’ This second element consider the specifics of any particular retroactively apply changes in, or to suggests that Congress did not intend situation, it would not relitigate in the begin or continue a reexamination of the that the Commission routinely grant guise of a waiver request issues that it rules and the policies established to waiver requests because the first had previously considered and rejected administer’’ the newspaper/broadcast 14 element is established but, instead, that in adopting the rule. The Supreme Court cross-ownership restriction. In the we require a showing of specific public in upholding the rule specifically noted Commission’s 1994 appropriation, interest benefits flowing from a waiver. the availability of waivers of the rule, however, Congress provided that the In any event, the ‘‘top 25/30 voice’’ particularly where the station and Commission could ‘‘amend policies language was not included by Congress newspaper could not survive under with respect to waivers’’ of the in either the text of our 1995 or 1996 separate ownership, as underscoring the broadcast-newspaper cross-ownership 10 15 appropriations acts or their reasonableness of the rule. rule. In the legislative history of the accompanying conference reports, and 3. The Commission has stated that 1994 Appropriations Act, Congress the proscription against spending funds ‘‘the broadcast-newspaper cross- clarified its intent and set forth to reevaluate policies related to the rule ownership rule will be waived only in guidelines for Commission has been eliminated.19 Subsequently, on cases where application of the rule consideration of waiver requests February 8, 1996, President Clinton would be ‘unduly’ harsh.’’ 11 Moreover, involving daily newspapers and radio signed into law the requests for permanent waiver of the stations. The legislative history of that Telecommunications Act of 1996, rule have a ‘‘considerably heavier’’ Act indicates a congressional intent that omnibus legislation which, inter alia, burden than do requests for its such ‘‘new policy allow such waivers to removed national radio station temporary waiver.12 The Commission be granted only in the top 25 markets ownership caps but imposed a has granted only two permanent [with] at least 30 [remaining] legislative ceiling on the number of newspaper/broadcast waivers. Both independent broadcast voices’’ provided stations that could be commonly owned involved television stations. In Field that the Commission make ‘‘a separate in a local market. The Communications Corp., 65 FCC 2d 959 affirmative determination that [the Telecommunications Act of 1996 transaction] is otherwise in the public addresses other cross-ownership issues, conjunction with the ‘‘egregious’’ cases in which interest, based upon the applicants’ and the legislative history of that Act divestiture was required, they are the standards that showing that there are specified benefits have subsequently been applied in virtually all reveals that the House of to the service provided to the public newspaper/broadcast cross-ownership waiver cases. Representatives explicitly considered 6 Id. at 1085. sufficient to offset the reduction in and rejected changes to the newspaper/ 7 Id. at 1084; see also Hopkins Hall Broadcasting, broadcast cross ownership rules.20 Thus, Inc., 10 FCC Rcd 9764 (1995) 13 Fox Television Stations Inc., 8 FCC Rcd 5341, 8 Second Report and Order, supra at 1085. 5349 (1993); aff’d sub nom. Metropolitan Council of while the Commission now clearly has 9 Id. NAACP Branches v. FCC, 46 F.3d 1154 (D.C. Cir. the authority to reevaluate its waiver 10 FCC v. National Citizens Committee for 1995). policy for newspaper-broadcast Broadcasting, supra at 802 n. 20. 14 See, e.g., Department of Justice and Related combinations it is without specific 11 NewCity Communications of Massachusetts, Agencies, Appropriations Act, 1993, Pub. L. 102– Inc., 10 FCC Rcd 4985, 4986 n. 8 (1995). (In 395, 106 Stat. 1828 (1992). These appropriations 16 NewCity we dismissed the applicant’s application restrictions were continued in effect through Id. at 2–3. on other grounds and did not reach the issue of subsequent appropriations legislation and 17 Id. at 3. whether to grant a waiver of the newspaper/ continuing resolutions that funded the agency until 18 Capital Cities/ABC, Inc., supra at 5889. broadcast cross-ownership restriction.) See also April 26, 1996, when a budget was enacted. See 19 See Department of Justice and Related Second Report and Order, supra at 1077. Departments of Commerce, State, Justice, the Agencies, Appropriations Act, 1995 Pub. L. No. 12 Judiciary and Related Agencies for FY ’96, Pub. L. News America Publishing Inc. v. FCC, 844 F.2d 103–317, 108 Stat. 1724, 1737–38 (1994); H. Rep. 800, 803 (D.C. Cir. 1988); see also Hopkins Hall 104–134, 110 Stat. 1321. The restriction on 103–708, filed August 16, 1994; see also Broadcasting, supra at 9764; Capital Cities/ABC, repealing, retroactively applying or reexamining the Inc., 11 FCC Rcd 5841 (1996). See also, Owosso newspaper/broadcast cross-ownership rule is no Departments of Commerce, State, Justice, the Broadcasting Co. (Stay Request), 60 RR 2d 99 (1986) longer contained in this Agency’s appropriation Judiciary and Related Agencies for FY ’96, Pub. L. (grant of temporary waiver in which to divest in legislation. No. 104–134, 110 Stat. 1321; H. Rep. 104–537, filed ‘‘egregious’’ case). 15 107 Stat. 1167 (1993). April 25, 1996. 20 141 Cong. Rec. E–1571 (August 1, 1995). 53696 Federal Register / Vol. 61, No. 200 / Tuesday, October 15, 1996 / Proposed Rules guidance on whether or how that ownership from other cross-ownership concern.’’ 27 Does this lead to the authority should be exercised. situations. conclusion that they should be counted 7. Therefore, we are soliciting differently in assessing the number of Discussion comment on what changes, if any, may independent voices that would remain 6. We are issuing this NOI in order to be desirable in our waiver policy with after a waiver? Should we give equal solicit comment on what, if any, respect to newspaper/radio cross- consideration to waiver requests changes we should make in our ownership situations and whether we irrespective of the strength of the newspaper/broadcast cross-ownership should adopt objective criteria for particular media outlets involved or waiver policy with respect to evaluating waiver requests. For should we, for example, give different newspaper/radio combinations. Since example, should we adopt a waiver consideration to requests depending on 1975 when the newspaper/broadcast policy in which a transaction is in the whether the newspaper involved is a cross-ownership rule was adopted, the public interest if it is in a market of major paper or the radio station number of radio stations licensed has specified numerical rank or larger and a involved has a certain level of market increased from 8,265 21 to 12,076,22 a 46 specified number of independently penetration, has a certain level of percent increase. Meanwhile, since the owned voices would remain? authorized power, or is of a particular rule’s adoption the number of English Alternatively, should a waiver test turn class of station? Should we favor language daily newspapers has shrunk on whether a specified minimum newspaper/radio combinations only if from 1,756 23 to approximately 1,556,24 number of voices remains after the the proposed purchaser would hold no an 11 percent drop. However, during transaction without reference to market more than a specified number of radio that same period, radio ownership rank? Should such a waiver test only stations in the market after the limitations have been amended from apply where the applicant owns no transaction and a specified minimum allowing common ownership of only a more than, for instance, a single station level of independent voices remains? single AM and single FM radio station in each broadcast service in the 9. Two separate but related matters in the same market to the current community? What public interest concern which radio stations to count in regulatory regime in which, depending benefits might be sufficient to overcome assessing the number of independent on the number of voices in a market, as any detrimental effects from a reduction voices and whether to count non- many as eight radio stations (no more in diversity of voices? 26 broadcast media. When we count the than five of which may be in the same 8. If we adopt an objective test based number of radio stations in a radio service) may be commonly owned. This on number of voices and market size, a market for purposes of the radio allows far more concentration of radio number of questions arise. One general duopoly rule, we count only ownership on the local level than was set of questions concerns what other commercial radio stations. For purposes available when the newspaper/ media outlets in the local market we of the one-to-a-market waiver standard broadcast cross-ownership restrictions should consider in computing the we count both commercial and were adopted. Nevertheless, there may number of independent voices, and how noncommercial radio and television be markets in which allowing waiver of we should assess those outlets in stations. Should we count both the cross-ownership restriction would evaluating waiver requests. For commercial and noncommercial stations be healthy for the maintenance of purposes of a newspaper/radio cross- when determining the number of diversity. This could occur, for example, ownership waiver standard, if we adopt independent voices for purposes of in markets where a newspaper is failing an objective test for favorable waiver newspaper/radio cross-ownership and the only prospective purchaser is consideration, should we count both waivers? Are there other media that the owner of a local radio station. There radio and television voices and, if so, should also be included in calculating may also be cases where cross- should we count them equally? We have the number of independent voices that ownership, while not necessary to the previously determined that a television would remain after the waiver? For viability of one or both outlets, could station is, relatively speaking, more a example, should we also count other lead to benefits such as increased source of news than is a radio station. independently owned daily newspapers dissemination of news and information In adopting the rule at issue, we stated, published in the radio station’s in the relevant local market and have ‘‘[r]ealistically, a radio station cannot be community if our determination that only a negligible effect on ownership considered the equal of either the paper they are more a source of discussion diversity and competition.25 On the or the television station in any sense, concerning local issues than are radio other hand, we recognize the powerful least of all in terms of being a source for stations remains valid? 28 Should we market presence that many newspapers news or for being the medium turned to count the presence of cable or other have in their local markets and we ask for discussion of matters of local video delivery services? At first blush, for comment concerning whether this we do not believe that most such non- distinguishes newspaper/radio cross- 26 A market rank/independent voice test would be broadcast video services should be similar to one of the tests contained in Section counted in any waiver standard because 73.3555, Note 7, of our Rules for favorable 21 Broadcasting and Cable Yearbook—1995 at B– Commission consideration of one-to-a-market rule the newspaper/radio rule is particularly 655. waivers. In one-to-a-market waiver cases, the bound up with issues of local diversity, 22 See FCC News Release, ‘‘Broadcast Station Commission ‘‘looks favorably’’ upon waiver and many alternative video delivery Totals as of May 31, 1996,’’ (June 6, 1996). applications (1) in top 25 markets where there will 23 services do not provide programming on Information Please Almanac - 1980, Simon and remain 30 independent voices after grant of the Schuster, 643 (1979). (Source: Editor and Publisher waiver, or (2) where a failing station is involved. local issues. However, there are some Yearbook, 1979.) The Commission also will consider on a case-by- cable systems that carry local cable 24 Information Please Almanac - 1995, Houghton case basis waiver requests founded on other news channels. Additionally, many Mifflin Company, 315 (1995). (Source: Editor and grounds. In Section 202(d) of the Publisher International Yearbook, 1994.) This figure Telecommunications Act of 1996 Congress cable systems have public, educational is as of February 1, 1994. instructed the Commission to replace the ‘‘top 25 and governmental access channels 25 For a more complete discussion of the markets’’ provision of the waiver standard with a which cover local government and local Commission’s diversity concerns, new approaches ‘‘top 50 markets’’ standard, ‘‘consistent with the schools and serve as forums for the to diversity and other diversity related issues, see public interest, convenience, and necessity.’’ Further Notice of Proposed Rule Making in MM Should we consider a ‘‘top 50 market/30 voice’’ Docket Nos. 91–221 and 87–8, 60 FR 6490, 10 FCC waiver standard for combinations of no more than 27 Second Report and Order, supra at 1083. Rcd 3524, 3546–59 (1995). one FM, one AM, and a newspaper as well? 28 Id. Federal Register / Vol. 61, No. 200 / Tuesday, October 15, 1996 / Proposed Rules 53697 discussion of issues of local concern. and a newspaper expressly focused on not entirely resolve the issue. Should Should the presence of such a channel the urban centers could have much we count stations as being in the on a local cable system count as an greater impact on viewpoint diversity relevant market only if they completely independent voice? 29 than a simple count of voices might encompass the market with a certain 10. Another set of questions concerns suggest. Should those major quality signal contour; or should media to what local markets any waiver should metropolitan media outlets be counted outlets be counted as voices in the apply, and whether or not we should in the same way as voices located in and relevant market if a certain quality redefine how we measure the serving the neighboring market where signal contour overlaps any portion of appropriate geographic scope of the the overlap is of the neighboring the relevant market? If the latter, should market. Is there some standard other market? we establish a certain portion of the than a top 25 markets/30 voices, or top Alternatively, should different criteria relevant market, either in terms of area 50 markets/30 voices formulations for be developed? If so, what criteria should or population, that they must overlap in the rank of the market or number of be used? There are a number of voices that should be used? Indeed, definitions of the geographic ‘‘market’’ order to counted as voices in that should we consider market rank at all that the Commission has utilized in market? What level of overlapping or, instead, simply rely on the number various contexts. Our one-to-a-market signal contour would be the appropriate of independent voices that would waiver standard considers ‘‘television measure in order to capture accurately remain after the waiver. licensees in the relevant ADI television those media outlets that should be 11. We also seek comment on defining market and radio licensees in the counted in assessing the diversity and the geographic market for purposes of relevant television metropolitan competition effects of waiving the assessing diversity and competition in market.’’ 30 While this provision may be newspaper/radio cross-ownership rule waiving the rule. Under our existing appropriate in the one-to-a-market in a local market? cases, the geographic area to be context, in which television stations are 16. Are there other objective criteria considered in evaluating a radio/ involved, is it also usable in the radio/ besides the number of independent newspaper cross-ownership waiver is newspaper context, where ownership of voices and market size that we should the area of overlap between the defining television stations is not involved? We specify that should warrant a waiver, signal contour of the radio station (1 note in this regard that television such as saving a failing station or mV/m for FM and 2 mV/m for AM) and stations do appear to compete with newspaper, reacquisition of a media the area of significant circulation of the newspapers in the adverstising market property by a former owner so that the newspaper. In Capital Cities/ABC, Inc., and do function as a significant source waiver would not truly be creating a supra, we rejected Disney’s argument of news and information. new combination in the market, etc.? In that we consider all stations licensed to 13. In implementing provisions of the the Detroit DMA to determine whether Telecommunications Act of 1996,31 we situations meeting whatever objective Disney could commonly own a Detroit noted that we would continue to define criteria we may adopt should we also station and a newspaper published in the relevant radio market for purposes require a showing of special Pontiac. Should this standard continue of the radio contour overlap rules ‘‘as circumstances? What salient factors to guide our consideration of waiver the area encompassed by the principal should the Commission weigh in requests involving newspaper/radio community contours (i.e., predicted or determining whether the specific public cross-ownership and, if so, should it be measured 5 mV/m for AM stations and benefits flowing from the proposed revised in any way? Should the predicted 3.16 mV/m for FM stations) of radio/newspaper combination overcome Commission take into account the the mutually overlapping stations the reduction in diversity of voices? possibility that even major outlets proposing to have common Should applicants seeking a waiver of serving a metropolitan market may ownership.’’ 32 Does this market the newspaper/radio cross-ownership underserve suburban communities in definition provide useful guidance for rule be required to demonstrate that the metro region, leaving smaller evaulating requests for waiver of the diversity will not be diminished, and newspapers and broadcast outlets radio/newspaper cross-ownership rule? the public interest will be served, by concentrating on the suburbs as the only 14. Finally, we request comments on grant of the waiver? For example, to outlets of any consequence for the whether the radio metro market, as address the issues potentially raised in suburban resident? In this regard, we designated by a nationally recognized suburban communities, should the seek comment on the extent to which ratings service, may be a viable parties involved be required to describe metropolitan outlets concentrate on big alternative. In this regard, we ask specific plans or efforts to enhance city issues and elections with little, if commenters to address the question of coverage of events in a smaller any, coverage of suburban issues and whether broadcast outlets licensed to community within the metropolitan candidates. It could be argued that other communities in the radio metro region? How can we properly evaluate common ownership of a radio station market can be counted on to provide whether the proposed acquisition will programming on local issues in the serve the people in such neighboring 29 We have previously tentatively concluded in station’s community of license or the our television ownership proceeding (MM Docket municipalities and whether it will No. 91–221) that we would consider cable systems newspaper’s community of publication increase content diversity in such as contributing to diversity under some or area of circulation? places? We seek comment on these circumstances, and to some extent, and invited 15. Resolving how to define the issues. comment. Further Notice of Proposed Rule Making boundaries of the relevant market does in MM Docket Nos. 91–221 and 87–8, 10 FCC Rcd 17. Finally, as we indicated above, the 3524, 3556 (1995). We concluded that other video newspaper/radio cross-ownership rule suppliers could not be included because they are 30 Section 73.3555 Note 7(1) of the Commission’s neither as ubiquitous as cable nor do they have the Rules. stands on another foundation in capability for local origination that cable has. Id. at 31 Pub. L. 104–104, 110 Stat. 56 (1996). addition to diversity, that of 3557. Finally, we tentatively concluded that neither 32 Order, Implementation of Sections 202(a) and competition. As we stated in the Second a radio station nor a newspaper were the equivalent 202(b)(1) of the Telecommunications Act of 1996, Report and Order, ‘‘Daily newspapers of a broadcast television station for diversity FCC 96–90, 61 F.R. 10689 (released March 8, 1996) purposes and are not fungible for diversity purposes at para 4. (Footnotes omitted.) See also 47 C.F.R. tend to be much larger enterprises than on a ‘‘one-for-one’’ basis. Id. at 3557–58. § 73.3555(a)(3)(ii). television stations. Radio stations are 53698 Federal Register / Vol. 61, No. 200 / Tuesday, October 15, 1996 / Proposed Rules significantly smaller than either.’’ 33 media outlets involved also have on our operation on the higher powered Accordingly, any move toward diversity analysis? channel. Petitioner also requests the loosening the waiver requirements in deletion of vacant Channel 267C3 at Administrative Matters this context must also be assessed in Tiptonville, Tennessee. Channel 267C3 terms of competition. A waiver that I. Pursuant to applicable procedures can be allotted to Martin in compliance might be acceptable in terms of its set forth in Sections 1.415 and 1.419 of with the Commission’s minimum impact upon diversity might create such the Commission’s Rules, 47 CFR 1.415 distance separation requirements with a market power in a single entity that it and 1.419, interested parties may file site restriction of 14.1 kilometers (8.8 would not be tolerable in terms of comments on or before December 9, miles) northwest to accommodate competition. In this regard, we note that 1996, and reply comments on or before Thunderbolt’s desired site. The in 1995, local newspapers captured 49% January 8, 1997. To file formally in this coordinates for Channel 267C3 at of local advertising expenditures (20.1% proceeding, you must file an original Martin, Tennessee, are 36–26–09 and of all advertising) as against a total of plus six copies of all comments, reply 88–57–30. The coordinates for Channel 13.3% of local advertising (5.5% of all comments, and supporting comments. If 267C3 at Tiptonville, Tennessee, are 36– advertising) captured by radio you want each Commissioner to receive 22–42 and 89–28–30. stations.34 And the 49% share is usually a personal copy of your comments, you captured by a single newspaper while must file an original plus eleven copies. DATES: Comments must be filed on or the 13.3% radio share is typically You should send comments and reply before November 25, 1996, and reply divided among a number of radio comments to Office of the Secretary, comments on or before December 10, stations. In considering newspaper/ Federal Communications Commission, 1996. radio waiver requests, should we 1919 M Street, N.W., Washington, D.C. ADDRESSES: Federal Communications consider from a competition standpoint 20554. Comments and reply comments Commission, Washington, DC 20554. In the size of the newspaper involved? will be available for public inspection addition to filing comments with the That is, should we view a proposed during regular business hours in the FCC, interested parties should serve the newspaper/radio combination FCC Reference Center (Room 239), 1919 petitioner, or its counsel or consultant, differently if it involves a large major M Street, N.W., Washington, D.C. 20554. as follows: John R. Garziglia, Pepper & daily newspaper rather than a small, but II. This is a non-restricted notice and Corazzini, L.L.P., 1776 K Street, NW., not failing, local daily? If so, what test comment rulemaking proceeding. Ex Suite 200, Washington, DC 20006 should we use to measure the size or parte presentations are permitted, (Counsel for petitioner). competitive power of the newspaper except during the Sunshine Agenda involved in a waiver request? Should period, provided they are disclosed as FOR FURTHER INFORMATION CONTACT: Pam we require information on the provided in the Commission Rules. See Blumenthal, Mass Media Bureau, (202) percentage of local advertising dollars generally 47 CFR 1.1202, 1.1203, and 418–2180. that the newspaper commands? 1.1206(a). SUPPLEMENTARY INFORMATION: This is a Alternatively, should we look at the Ordering Clause synopsis of the Commission’s Notice of percentage of such dollars that would be Proposed Rule Making, MM Docket No. commanded by the proposed III. Accordingly, it is ordered that 35 96–204, adopted September 27, 1996, newspaper/radio combination? How pursuant to the authority contained in and released October 4, 1996. The full should we determine whether the Sections 4 and 303 of the text of this Commission decision is proposed newspaper/radio combination Communications Act of 1934, as available for inspection and copying will possess market power? If we amended, 47 U.S.C. Sections 154 and during normal business hours in the establish a test based on the proportion 303, this Notice of Inquiry is adopted. FCC’s Reference Center (Room 239), of local advertising dollars that the 1919 M Street, NW., Washington, DC. proposed combination would command, Federal Communications Commission. The complete text of this decision may should we establish an objective, bright William F. Caton, also be purchased from the line benchmark and, if so, what should Acting Secretary. Commission’s copy contractor, ITS, Inc., that level be? What other objective test [FR Doc. 96–26313 Filed 10–11–96; 8:45 am] (202) 857–3800, 2100 M Street, NW., might we use to determine whether a BILLING CODE 6712±01±P Suite 140, Washington, DC 20037. proposed local newspaper/radio combination would possess such market Provisions of the Regulatory power that our competition concerns 47 CFR Part 73 Flexibility Act of 1980 do not apply to this proceeding. would be undermined by grant of a [MM Docket No.96±204; RM±8876] waiver? Will entry barriers for Members of the public should note prospective radio broadcasters or Radio Broadcasting Services; Martin that from the time a Notice of Proposed newspaper owners be increased by and Tiptonville, TN Rule Making is issued until the matter relaxation of our waiver policy? What is no longer subject to Commission impact, if any, should the size of the AGENCY: Federal Communications consideration or court review, all ex Commission. parte contacts are prohibited in 33 Second Report and Order, supra at 1057. ACTION: Proposed rule. Commission proceedings, such as this 34 McCann-Ericson, U.S. Advertising Volume, one, which involve channel allotments. Advertising Age (May 20, 1996). SUMMARY: The Commission requests See 47 CFR 1.1204(b) for rules 35 Given the present ability of an entity or comments on a petition by Thunderbolt governing permissible ex parte contacts. individual to obtain attributable ownership Broadcasting Company, licensee of interests in up to eight radio stations in a single For information regarding proper market (depending on the number of stations in the Station WCMT(FM), Channel 269A, market) a different case might be presented by a Martin, Tennessee, requesting the filing procedures for comments, see 47 situation in which the licensee of several stations substitution of Channel 267C3 for CFR 1.415 and 1.420. in a market purchases, or is purchased by, a major daily newspaper in that market than would be Channel 269A at Martin, Tennessee, and List of Subjects in 47 CFR Part 73 presented if a single station/newspaper the modification of Station combination was proposed. WCMT(FM)’s license to specify Radio broadcasting.