FCC 94-127 Federal Communications Commission Record 9 FCC Red No. 13

combination of 2 AM and 2 FM stations in the same Before the market does not raise concerns of excessive local con Federal Communications Commission centration of control. On the other hand, if the combined Washington, D.C. 20554 audience share exceeds 259o, then there is a prima facie concern that the proposed transaction will lead to excessive local concentration. See 47 C.F.R. § 73.3555 (a) (1) (ii): In re Applications of Memorandum Opinion and Order, 7 FCC Red at 6393. 6397. Pursuant to the rule, a station's audience share is BTMI. INC.. File Nos. BAL-920921HM defined as: the average number of [listeners] to AM and FM stations in that radio metro market or a recognized RECEIVER (Assignor) equivalent, in which a majority of the overlap between the stations in question takes place. ... In situations where no and and metro market or recognized equivalent exists, the relevant audience share data is the data for all counties that are ASSOCIATED WOMP. BALH-920921HN within the principal community contours of the stations in INC. (Assignee) question, in whole or in part. 47 C.F.R. § 73.3555(a)(3)(iii) (1992) (emphasis added); Memorandum Opinion and Order, For Consent to the Assignment of 7 FCC Red at 6406. Licenses of Stations WOMP-AM-FM 4. It is undisputed that, with respect to the overlap area. 41.2% of it lies within the Steubenville-Weirton metro Bellaire. Ohio market. 33.6% lies within the Wheeling metro market, and the remaining 25.2% does not lie within any metro mar ket. The combined audience share of the four commonly- MEMORANDUM OPINION AND ORDER owned stations is 28.6% in the Steubenville-Weirton metro market and 16.8% in the Wheeling metro market. There Adopted: May 27, 1994; Released: June 24, 1994 are fourteen counties in the area comprising the relevant radio markets, and the combined audience share as weight By the Commission: Commissioners Ness and Chong not ed by population for these counties is 11.1%. See Memo participating. randum Opinion and Order, 1 FCC Red at 6398-6399. n.73. Based on the latter figure, the Bureau found that the 1. The Commission has under consideration the applica proposed combination of commonly-owned stations com tion for review filed on January 13. 1993 by McGraw plies with Section 73.3555(a). Therefore, the Bureau denied Broadcasting Corporation ("McGraw"). licensee of Stations McGraw's petition to deny and granted the applications for WEIR(AM), Weirton. West Virginia, and WWYS(FM). Ca consent to the assignment of the licenses for WOMP-AM- diz. Ohio. McGraw seeks review of the action of the Mass FM to Associated. Media Bureau denying its petition to deny and granting the 5. In its application for review. McGraw argues that the above-captioned applications for Commission consent to grant of the assignment applications should be reversed the assignment of licenses of Stations WOMP-AM-FM. Bel because the proposed combination will result "in excessive laire. Ohio, from assignor BTMI. Inc.. Receiver, to assignee market concentration" in the Steubenville-Weirton metro Associated WOMP. Inc. ("Associated"). See market, which McGraw insists is the relevant market. Al WOMP(AM)IWOMP-FM, 8 FCC Red 495 (MM Bur. 1993).' though McGraw concedes that there is no singular metro We deny the application for review for the reasons set forth market which comprises at least 50% of the overlap area, it below. stresses that the Steubenville-Weirton market comprises a 2. The assignee is a wholly-owned subsidiary of Asso plurality of the overlap area and that a substantial majority ciated Communications Corporation, as is WSTV. Inc., the (74.8%) of the overlap occurs within the combined Steu licensee of Stations WSTV(AM) and WRKY(FM). Steuben- benville-Weirton and the adjacent Wheeling metro markets. ville. Ohio. Because the principal community (3.16 mV/m) McGraw concludes that the use of weighted county data contours of WOMP-FM and WRKY(FM) overlap, the as has "skewjed] the outcome in a totally misleading fashion," signee must comply with the revised radio contour overlap resulting in a combined audience share of only 11.1%. rule. Section 73.3555(a). See Revision of Radio Rules and 6. First, we observe that the Bureau read the terms of Policies, Report and Order in MM Docket No. 91-140, 7 revised Section 73.3555(a) as calling for the application of FCC Red 2755 (1992). recon. granted in pan and denied in metro market data only where a majority of the overlap pan, 1 FCC Red 6387 (1992) ("Memorandum Opinion and occurs in a single metro market. In adopting this rule we Order"). The stations would serve an area already served by stated: at least fifteen commercial radio stations. 3. If the combined audience share of the stations that We will continue, with the exceptions described be Associated (together with its parent corporation) proposes low, to calculate audience share based on |Arbitron] to co-own is no greater than 25%. then the proposed metro market data where such data are available. . . .

1 Associated filed an opposition, and McGraw replied. In addi not submitted to the Secretary of the Commission and was not tion, on January 27, 1993, the Commission received a pleading, served upon the parties-applicant, as required by 47 C.F.R. § styled as an "Application for Review," filed by John A. Rees. 1.115(0(1). We will therefore dismiss this pleading as procedur- Rees seeks review of the Bureau's ruling in WOMP. which also ally defective. Nevertheless, we note that the substance of the dismissed as moot his informal objection lodged against the pleading replicates arguments which are set forth in McGraw's instant assignment applications. However, Rees' pleading was application for review and which are addressed below.

2856 9 FCC Red No. 13 Federal Communications Commission Record FCC 94-127

[because] it should generally reflect the relevant com found that an average of county-by-county audience share petitive market involved. We will require the use of data weighted by the population of each county was the either audience data for the metro market if the best readily available measure. Id.; see also 47 C.F.R. § contours of both stations at issue are mainly located 73.3555(a)(3)(iii) (1992). However, the Memorandum Opin within a single metro market, or audience data for the ion and Order did not specifically address the situation counties covered in whole or in part by the principal where a majority of the overlap area falls within, two or community contours of the stations at issue. The more metro markets but not within any single metro mar relevant audience share figures in such cases will ket. As a consequence, the literal wording of the pertinent include audience statistics either for the metro mar provision of the revised contour overlap rule. Section ket or from each county encompassed all or in part 73.3555(a)(3)(iii), is ambiguous in such circumstances. Spe by the area covered by the principal community cifically, in defining "audience share." that subsection ad contours of the stations proposing to merge. dresses only those situations either where there is a single radio metro market in which a majority of the overlap Memorandum Opinion and Order, 1 FCC Red at 6398 (em between the stations takes place or where no metro market phasis added; footnotes omitted). Thus, the Bureau applied exists. See supra f 3 (excerpt of rule). weighted county data, which indisputably results in the 9. It was our intention to use metro audience share data 11.1% figure for combined audience share. where metro areas comprise a majority (i.e., greater than 7. Nevertheless, we note McGraw's concern that, in re 50%) of the overlap area. However, in the situation at vising Section 73.3555, we did not specifically address the hand, where more than one metro area exists, we believe situation here, in which the majority of the overlap area that the best measure for purposes of identifying concentra falls within two or more metro markets, but no single tion problems through a combined audience share mea metro market contains a majority of the overlap. In this sure, from readily available sources, is a weighted average situation, the Bureau's use of county-by-county data may of the combined audience shares of the proposed com not have sufficiently addressed whether excessive market monly-owned stations over all metro markets in the over concentration will occur. For the following reasons, we lap area. Application of this measure will avoid the believe that a more accurate result is achieved by comput distortion that could occur either from treating a single ing a weighted audience share for the metro markets cover metro market as representative of the entire competitive ing the overlap area. situation or from ignoring the largely metropolitan focus of 8. In adopting the revised contour overlap rule, we relied the competition by relying on county data instead of metro on the marketplace reality that radio stations primarily market data. compete for audience and for advertising revenues within 10. Here, we note that the Bureau considered the fact their principal community contour, wherein the majority that 74.8% of the overlap area lies within the abutting of the population of their service area typically resides. Steubenville-Weirton and Wheeling metro markets and Therefore, we defined the relevant markets for analysis in verified the applicants' alternative calculation of a weighted terms of engineering data (station contours) instead of rat audience share (22.4%) for those metro markets. WOMP, 8 ings-service (e.g., Arbitron) defined markets. See Memoran FCC Red at 496.1 Because this weighted metro market dum Opinion and Order, 1 FCC Red at 6398. Markets audience share figure is less than 25%.J we affirm the defined in this manner generally reflect both the actual Bureau's conclusion that no excessive local concentration competitive situation facing stations and the diversity of of control will result from grant of the WOMP-AM-FM radio voices available to their listeners. We also found that assignment applications.4 where the majority of the overlap area falls within a single 11. One other matter warrants brief comment. In its "metro market." as defined by Arbitron or similar survey application for review, McGraw argues that the Bureau organization, the best readily available measure for pur erred in granting the assignment applications because in poses of safeguarding diversity through an audience share vestment adviser Mario J. Gabelli has an attributable own cap is the combined audience share in that metro market ership interest in the assignee's parent. Associated of the proposed commonly-owned stations. Likewise, where Communications Corporation. As the Bureau noted, on no "metro market" or recognized equivalent exists, we August 21, 1992, the Commission simultaneously released

2 Using data from the Spring, 1992 Arbitron report, the ap puted as: (28.6% X .474) + (16.8% X .526) = 13.6% + 8.8% = plicant states that the Steubenville-Weirton metro market con 22.4%. See Letter from Counsel for Applicants, dated October 5, tains the following three counties: Jefferson. Ohio (population 1992, at 3. See generally Memorandum Opinion and Order, 1 66.800); Brooke, West Virginia (pop. 22.700); and Hancock. West FCC Red at 6398-6399 nJ3. Virginia (pop. 29.800). Adding the population figures for these •' The Bureau correctly noted that McGraw's suggestion that three counties, the applicant computes the total population of the audience share for the Steubenville-Weirton metro market the Steubenville-Weirton metro market to be 119.300. Similarly, (28.6%) should simply be added to the corresponding share for the Wheeling metro market, which contains the three counties the Wheeling market (16.8%) -- to produce a sum of 45.4%. of Belmont, Ohio (pop. 58,900), Nfarshall, West Virginia (pop. which substantially exceeds the 25% benchmark — has no 31,000), and Ohio, West Virginia (pop. 42,400), has a total sound basis in statistics or logic. Also, given our decision here, population of 132,300. Therefore, the combined population of we need not address McGraw's contention that the Bureau the two metro markets is: 119,300 + 132,300 = 251.600. The exceeded its delegated authority in deciding this case. percentage of the combined population which resides in the J If the weighted metro market audience share had exceeded Steubenville-Weirton metro market is: (119.300 divided by 25%, we would be concerned that the proposed transaction 251.600) X 100 = 47.4%. The remaining 52.6% resides in the would cause undue local concentration. Wheeling metro market. Given that Steubenville-Weirton has an audience share of 28.6% and Wheeling has a 16.8% share, the weighted share for the combined metro markets is com

2857 FCC 94-127 Federal Communications Commission Record 9 FCC Red No. 13 two orders pertinent to Mr. Gabelli and Gabelli Funds, Inc. regarding their compliance with the multiple owner ship rules (47 C.F.R. §§ 73.3555 and 76.501(a)). Order to Show Cause, MM Docket No. 92-201, 7 FCC Red 5594 (1992). Although that order noted that Gabelli held an attributable 5.59% ownership interest in Associated Com munications Corporation, our principal focus of concern was Gabelli's myriad interests in television stations, cable television companies, and newspapers. Nevertheless, on the same date, we granted an application for consent to transfer control of the licensee of Station WWOR-TV, Secaucus, New Jersey, to BHC Communications. Inc.. a subsidiary of a company in which Mr. Gabelli was a cognizable shareholder. Pinelands, Inc.. 7 FCC Red 6058 (1992). ap peal dismissed sub nom. Garden State Broadcasting Limited Partnership v. FCC, No. 91-1043 (D.C. Cir. June 29. 1993). In that case, we explained that use of a bifurcated process to sever our evaluation of the transfer application from our investigation into whether Gabelli's investment interests violated our rules would both protect the innocent share holders who had not created the problem and best serve the public interest. Id. at 6067 (citing Corporate Ownership Reporting and Disclosure by Broadcast Licensees, 97 FCC 2d 997. 1033 (1984). recon.©granted. 58 RR 2d 604 (1985). further recon., 1 FCC Red 802 (1986)). For these same reasons, the bifurcation of the Gabelli matter from consid eration of the WOMP-AM-FM assignment applications is likewise appropriate.5 12. IT IS ORDERED. That the "Application for Review" which was filed by John A. Rees. and which was received by the Commission on January 27. 1993. IS DISMISSED, and the application for review filed on January 13. 1993 by McGraw Broadcasting Corporation IS DENIED.

FEDERAL COMMUNICATIONS COMMISSION

William F. Caton Acting Secretary

5 We note that the presiding Administrative Law Judge has 76.501, and they agreed to come into and remain in compliance approved a "Memorandum of Understanding" terminating the with the multiple ownership rules within eight months of the Gabelli investigation. Maria .1. Gabelli. FCC 92M-1067, released finality of the ALJ's ruling. Id. at paragraph 5 & Attachment December 4, 1992. Pursuant to the Memorandum of Under ("Memorandum of Understanding") at 4. standing, Mr. Gabelli and Gabelli Funds. Inc. acknowledged that "the relevant voting interests which they now or from time to time may hereafter hold are subject to" Sections 73.3555 and

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