FCC 95-449 Federal Communications Commission Record 11 FCC Red No.7 community contour (3.16 mV/m) overlapped with that of Before the KSYN(FM), BMB submitted an exhibit demonstrating the Federal Communications Commission proposed combination's compliance with the Commission's Washington, D.C. 20554 multiple ownership rule, 47 C.F.R. § 7335556 In that exhibit, BMB stated that 15 or more stations' relevant contours overlapped the proposed combination's contours In re Application of and that the most recent Arbitron market report -- Spring 1994 -- showed that the combined audience share did not WILLIAM B. NEAL File No. BALH-950316GE exceed the Commission's 25% audience share cap.7 The Assignor Petitioners argued, however, that BMB did not use the most recent published audience survey data available at the time that it filed the subject application, as required by 47 and C.F.R. § 73.3555(a)(3)(iii).8 The Petitioners contended that BMB should have used, instead, the Fall 1994 Joplin BIG MACK BROADCASTING, L.L.C. AccuRatings9 report which was released prior to the filing Assignee of BMB's application but subsequent to the release of the Spring 1994 Arbitron report. The Petitioners stated that For Consent to Assignment of according to the Fall 1994 Joplin AccuRatings report, the Station KSYN(FM), proposed combination's audience share was in excess of the Commission's 25 percent share cap.'° Joplin, Missouri 3. The Bureau Letter disagreed with West, finding that BMB's reliance upon Arbitron's most recently released MEMORANDUM OPINION AND ORDER survey complied with 47 C.F.R. § 73.3555. The Bureau Letter stated that in order to challenge an applicant's show- ing Adopted: October 30, 1995; Released: March 18, 1996 which relies upon the most recently published au- dience survey data, whether from Arbitron or from another widely used and regularly published reliable in- By the Commission: dependent ratings service, a petitioner must demonstrate that the relied-upon ratings data are anomalous or 1. The Commission has before it an application for untrustworthy. The Bureau Letter noted that the Petitioner review filed by West Group Broadcasting, Ltd. ("West").' of had not provided any "significant evidence relating to the a June 27, 1995, action of the Chief, Audio Services Di- disparity between the Arbitron and AccuRatings data, or to vision, Mass Media Bureau ("Bureau Letter"). The Bureau the defects in the Spring 1994 Arbitron report, or to Letter denied a joint petition to deny filed by West and two Arbitron's sampling procedure which would indicate that other parties (the "Petitioners'),2 and granted the the subject Arbitron ratings data are anomalous or above-captioned assignment of license for KSYN(FM), untrustworthy." Joplin, Missouri,3 from William B. Neal ("Neal") to Big 4. In its application for review, West contends that the Mack Broadcasting, L.L.C. ("BMB").4 Opposition, reply staff's interpretation of the language in 47 C.F.R. and various supplemental pleadings and replies have been § 73.3555(a)(3)(iii) -- "most recent published audience share submitted.5 As set forth below, we affirm the above-cap- data available at the time that ani application is filed" -- tioned assignment grant. was erroneous. We disagree. We find that the Bureau Let- 2. On March 16, 1995, BMB filed the above-captioned ter's interpretation of 47 C.F.R. § 73.3555(a)(3)(iii), which application to acquire the license of station KSYN(FM), permits the use of data from the most recent ratings report Joplin, Missouri. Because BMB was already the licensee of from any widely used and regularly published reliable rat- KJKT(FM), Joplin, Missouri. a station whose principal ings service, is consistent with the language of the rule. West is the licensee of Missouri stations KFSB(AM), Joplin, public interest." KIXO(FM). Webb City, and KXDG(FM), Webb City. According to the Spring 1994 Joplin Arbitron report, the West had filed its original petition to deny jointly with combined audience share of KSYN(FM) and KJKT(FM) was Carthage Broadcasting Co., Inc., licensee of stations KDMO(AM) 15.5 percent. Arbitron surveys the Joplin market between and KMXL(FM), Carthage. Missouri, and TGS Communica- March and June of each year and publishes a Spring report tions, Inc., licensee of station KMOO(FM), Baxter Springs, Kan- annually. 8 sas. Section 73.3555(a)(3)(iii), as modified by Memorandum Opin- KSYN(FM) is a Class Cl station authorized to operate on ion and Order/Second Recon. Order, 9 FCC Rcd 7183 (1994), Channel 223 with 100 kW effective radiated power at 131 meters states in pertinent part that "[aludience share shall be calculated height above average terrain. by using the most recent published audience share data avail- The Bureau Letter also granted consent to the assignment of able at the time that the application is filed." 47 C.F.R. § license for station WMBH(AM), Joplin, Missouri, from BMB to 73.3555(a)(3)(iii). Neal. West's application for review does not contest this grant. West states that AccuRatings is an independent audience On June 29, 1995, West filed a motion for stay of the research firm that conducts four surveys per year in the Joplin KSYN(FM) assignment grant. The record reflects, however, that market. AccuRatings' Fall Joplin report is based on surveys the parties consummated the subject assignment on June 30, conducted between October and December. West also reports 1995. (We therefore dismiss West's motion for stay as moot. 6 that, as of April, 1995, AccuRatings conducted surveys in 46 In a market served by fifteen or more commercial radio markets. stations, 47 C.F.R.. § 73.3555(a)(l)(ii) states that "any application ' The Fall 1994 Joplin AccuRatings report showed the pro- Rhati will result in a combined audience share exceeding 25 posed combination's audience share to be 27.4 percent. percent will be considered prima facie inconsistent with the 3448 11 FCC Rcd No.7 Federal Communications Commission Record FCC 95-449 Furthermore, to employ West's reading of section 73.3555(a)(3)(iii) would impose an unfair burden upon an applicant by requiring, immediately prior to filing an ap- plication, a search among the different available ratings services in an effort to determine which survey was re- leased most recently. Moreover, we find that West's reading of section 73.3555(a)(3)(iii) would interject an unreason- able factor of uncertainty for an applicant who has negoti- ated a station purchase and has prepared an application based upon a conforming ratings service's most recently released data. Where, as here, the applicant has selected the most recent available ratings data from a widely used and regularly published ratings service and those data are rea- sonably current, the burdens and uncertainty of West's approach are unnecessary. 5. As we have noted elsewhere, the audience share com- ponent of our local radio ownership rules was intended to function as a "secondary screening mechanism after ap- plication of numerical station ownership limits, in markets of 15 or more stations." Franklin Communications Partners, L.P., 8 FCC Rcd 4909, 4911 (1993). In adopting this stan- dard, "we were concerned with preventing excessive con- centration, not with freezing audience shares at a prescribed level." Id. Thus, while we have considered evi- dence submitted by petitioners contesting an applicant's showing that its combined audience share was within the 25% criterion, we have not deemed such evidence to raise a substantial question disfavoring grant where the appli- cant's showing is reasonably grounded and the deviation from the 25% benchmark has been modest. Id. at 4912. Here, as in Franklin, the applicant's use of Arbitron data -- both current in nature and the most recent available from that source -- was reasonable. And, even accepting the petitioner's showing as accurate, the deviation from the 25% criterion -- 2.4% -- is modest. Under these circum- stances, there is no basis to reverse the Bureau's action denying the petition to deny and granting the subject as- signment application. 6. ACCORDINGLY, IT IS ORDERED, that the applica- tion for review filed on June 29, 1995. by West Group Broadcasting, Ltd. IS DENIED. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary 3449.