Federal Communications Commission Record 11 FCC Red No.7

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 and time that it filed the subject application, as required by 47 C.F.R. § 73.3555(a)(3)(iii).8 The Petitioners contended that BIG MACK BROADCASTING, L.L.C. BMB should have used, instead, the Fall 1994 Joplin 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 Joplin, Missouri Commission's 25 percent share cap.'° 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- Adopted: October 30, 1995; Released: March 18, 1996 ing which relies upon the most recently published audience survey data, whether from Arbitron or from By the Commission: another widely used and regularly published reliable independent ratings service, a petitioner must demonstrate that 1. The Commission has before it an application for the relied-upon ratings data are anomalous or review filed by West Group Broadcasting, Ltd. ("West").' of untrustworthy. The Bureau Letter noted that the Petitioner a June 27, 1995, action of the Chief, Audio Services Di- had not provided any "significant evidence relating to the vision, Mass Media Bureau ("Bureau Letter"). The Bureau disparity between the Arbitron and AccuRatings data, or to Letter denied a joint petition to deny filed by West and two the defects in the Spring 1994 Arbitron report, or to other Arbitron's sampling procedure which would indicate that parties (the "Petitioners'),2 and granted above-captioned assignment of license for KSYN(FM),the the subject Arbitron ratings data are anomalous or untrustworthy." Joplin, Missouri,3 from William B. Neal ("Neal") to Big Mack Broadcasting, L.L.C. ("BMB").4 Opposition, reply 4. In its application for review, West contends that the and various supplemental pleadings and replies have been staff's interpretation of the language in 47 C.F.R. submitted.5 As set forth below, we affirm the above-cap- 73.3555(a)(3)(iii) -- "most recent published audience share§ tioned assignment grant. data available at the time that ani application is filed" -- 2. On March 16, 1995, BMB filed the above-captioned was erroneous. We disagree. We find that the Bureau Let- application to acquire the license of station KSYN(FM), ter's interpretation of 47 C.F.R. § 73.3555(a)(3)(iii), which Joplin, Missouri. Because BMB was already the licensee of permits the use of data from the most recent ratings report KJKT(FM), Joplin, Missouri. a station whose principal from any widely used and regularly published reliable ratings service, is consistent with the language of the rule.

West is the licensee of Missouri stations KFSB(AM), Joplin, KIXO(FM). Webb City, and KXDG(FM), Webb City. public interest." West had filed its original petition to deny jointly with According to the Spring 1994 Joplin Arbitron report, the Carthage Broadcasting Co., Inc., licensee of stations KDMO(AM) combined audience share of KSYN(FM) and KJKT(FM) was and KMXL(FM), Carthage. Missouri, and TGS Communica- 15.5 percent. Arbitron surveys the Joplin market between tions, Inc., licensee of station KMOO(FM), Baxter Springs, Kan- March and June of each year and publishes a Spring report sas. annually. 8 Section 73.3555(a)(3)(iii), as modified by KSYN(FM) is a Class Cl station authorized to operate on Memorandum Opin- Channel 223 with 100 kW effective radiated power at 131 meters ion and Order/Second Recon. Order, 9 FCC Rcd 7183 (1994), height above average terrain. states in pertinent part that "[aludience share shall be calculated The Bureau Letter also granted consent to the assignment of by using the most recent published audience share data avail- license for station WMBH(AM), Joplin, Missouri, from BMB to able at the time that the application is filed." 47 C.F.R. Neal. West's application for review does not contest this grant. 73.3555(a)(3)(iii). § On June 29, 1995, West filed a motion for stay of the West states that AccuRatings is an independent audience KSYN(FM) assignment grant. The record reflects, however, that research firm that conducts four surveys per year in the Joplin the parties consummated the subject assignment on June 30, market. AccuRatings' Fall Joplin report is based on surveys 1995. (We therefore dismiss West's motion for stay as moot. conducted between October and December. West also reports 6 In a market served by fifteen or more commercial radio that, as of April, 1995, AccuRatings conducted surveys in 46 stations, 47 C.F.R.. § markets. 73.3555(a)(l)(ii) states that "any application ' Rhati will result in a combined audience share exceeding 25 The Fall 1994 Joplin AccuRatings report showed the pro- percent will be considered posed combination's audience share to be 27.4 percent. 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 application, a search among the different available ratings services in an effort to determine which survey was released 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 reasonably 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 application 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 evidence 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 applicant'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 assignment application. 6. ACCORDINGLY, IT IS ORDERED, that the application for review filed on June 29, 1995. by West Group Broadcasting, Ltd. IS DENIED.

FEDERAL COMMUNICATIONS COMMISSION

William F. Caton Acting Secretary

3449