10 FCC Red No. 7 Federal Communications Commission Record DA 95-493 stations have principal community contours which overlap Before the with the proposed acquisition, WIIZ(FM), Schurz provides Federal Communications Commission a list of the 11 other commercial radio stations that have Washington, D.C. 20554 principal community contours which overlap with the three subject stations." Accordingly, Schurz concludes that the subject stations are located in a market with 14 or LETTER fewer stations, and asserts that its ownership of a third February 27,1995 station in the market conforms with 47 C.F.R. § 73.3555(a)(l).s Petitioners allege that the proposed assignment is prima Released: March 20,1995 facie inconsistent with 47 C.F.R. § 73.3555. Specifically, Petitioners contend that Schurz fails to include two addi Lee W. Shubert, Esq. In reply refer to: tional stations, WBAA-FM, Lafayette, IN, and WMRS(FM), Susan H. Rosenau, Esq. 1800B3-BCD Monticello, IN, whose principal community contours over Haley, Bader & Potts lap with the subject stations. Petitioners contend that even though WBAA-FM is a noncommercial station, it should 4350 North Fairfax Drive, Suite 900 be included in the relevant market because it operates on Arlington, VA 22203-1633 an unreserved frequency and can be converted into a com mercial station or sold to a commercial entity at any time. Shelley Sadowsky, Esq. As for WMRS(FM), Petitioners assert that it should be Rosenman & Colin included in the relevant market because, based on field N.W., Suite 200 strength tests of the actual 70 dBu contours, as well as the 1300 19th Street predicted contours, WMRS(FM) and WKOA(FM)©s con Washington, D.C. 20036 tours are subject to overlap. Petitioners further allege that if WKOA(FM) were to increase the height of its tower to Re: WIIZ(FM), Battle Ground, IN the maximum height permitted for a Class B facility, the File No. BALH-940516GI relevant market would increase to "at least" 18 stations. Application for Assignment of Station License Petitioners argue that the inclusion of WBAA-FM and WMRS(FM) creates a market of 15 or more stations. Based Dear Counsel: upon the relevant audience share from the 1993 Fall Arbitron Market report, Petitioners allege that the pro 32.4 We have on file the above-captioned application to assign posed combination©s audience share would total station WIIZ(FM), Battle Ground, Indiana, from Wizard percent. Petitioners argue that the subject application Broadcasting, Inc. ("Wizard") to Schurz Communications, therefore violates 47 C.F.R. § 73.3S55.6 Inc. ("Schurz"). 1 Also on file are University Broadcasting Patrick contends that grant of the subject application Company, L.P. ("University") and KGB Broadcasting©s would allow Schurz to "monopolize the Lafayette radio ("RGB") (collectively, "Petitioners") timely filed Joint Peti market." Specifically, Patrick alleges that, according to tion to Deny and various opposition and reply pleadings.2 Arbitron data published in a local newspaper, WASK(AM), Also on file is a July 26, 1994 letter filed by Bruce A. WKOA(FM) and WIIZ(FM)©s combined audience shares Patrick ("Patrick") objecting to the application.3 As set total 32.4%. Given this audience share, Patrick states that a forth below, we deny both Petitioners© Joint Petition to grant of the subject assignment would not be in the public Deny and Patrick©s objection, and grant the subject applica interest, or in the interest of the Lafayette radio market. tion. Schurz responds that Petitioners are incorrect with re Background. Schurz reports that its wholly-owned subsid spect to WBAA-FM, WMRS(FM) and WKOA(FM).7 Schurz iary, WASK, Inc., is the licensee of WKOA(FM) argues that WBAA-FM should not be included when cal (previously WASK-FM) and WASK(AM). Because these culating the relevant market because it is licensed as a noncommercial educational station, and that the "Commis- 1 WHZ (FM) is a Class A station authorized to operate on [i]n radio markets with 14 or fewer commercial radio Channel 254 with 4.4 kW effective radiated power ("ERP") at stations, a party may own up to 3 commercial radio 119 meters height above average terrain. Since June 3, 1994, stations, no more than 2 of which are in trie same service WIIZ(FM) has remained silent pursuant to special temporary (AM or FM), provided that the owned stations... repre authority. sent less than 50 percent of the stations in the market. 47 2 University and KGB are licensees of radio stations licensed to the same communities or serving the same market as WIIZ(FM) C.F.R. § 73.3555. and thus have standing to file their Joint Petition to Deny. See 6 Section 73.3555(a)(l) states in pertinent part that: FCC v. Sanders Brothers Radio Station, 309 U.S. 470 (1940). [i|n radio markets with 15 or more commercial radio 3 Pursuant to 47 C.F.R. § 73.3587, we will treat Patrick©s letter stations, a party may own up to 2 AM and 2 FM com as an informal objection to the instant application. mercial radio stations, provided, however, that evidence 4 The 11 stations are: WCFY(AM), Lafayette, IN; WKHY(FM), grant of any application will result in a combined Lafayette, IN; WAZY(FM), Lafayette, IN; WGLM(FM), West that Lafayette, IN; WBAA(AM), West Lafayette, IN; WILO(AM), audience share exceeding 25 percent will be considered Frankfort, IN; WSHW(FM), Frankfort, IN; WNJY(FM), Delphi, prima facie inconsistent with the public interest. 47 IN; WGBD(FM), Attica, IN (previously WBQR(FM)); C.F.R. § 73.3555. WEZV(FM), Brookston, IN and WIMC(FM), Crawfordsville, IN. 7 Schurz©s opposition also amends it original calculation of the 5 Section 73.3555(a)(l) states in pertinent part that: relevant market to include a total of 10, rather than 11, stations 3159 DA 95-493 Federal Communications Commission Record 10 FCC Red No. 7 sion©s intent to exclude such stations is unmistakable." required showing that would allow the supplemental use of With respect to WMRS(FM), Schurz asserts that Petition Tech Note 101. Petitioners respond that Tech Note 101 ers© use of actual field strength measurements is does not constitute new matter. They argue that Tech Note "unavailing." Schurz argues that Section 73.3555(a) 101 merely augments their original assertion that "unambiguously" calls for the use of predicted rather than WKOA(FM) and WMRS(FM)©s predicted community con actual community contours when calculating the number tours overlap. of FM stations in a market. Schurz maintains that Discussion. Petitioners© contention that the relevant mar WMRS(FM)©s principal community contour, when predict ket contains more than 15 stations is without merit. ed in accordance with 47 C.F.R. § 73.313, "while coming Although located within the commercial band, close," does not overlap with that of WKOA(FM).8 Regard WBAA(AM) and WBAA-FM, owned by Purdue University, ing Petitioners© allegation that WKOA(FM)©s potential for are licensed as noncommercial educational stations. 13 The increased facilities creates a larger market than stated in Commission has clearly indicated that noncommercial sta the instant application, Schurz contends that the Commis tions are excluded from the relevant market: "[tlhe number sion has never indicated that stations operating at less than of stations in a radio market, is the number of commercial full tower height permitted for a respective station class stations whose principal community contours overlap, in should be treated any differently for the purposes of the whole or in part, with the principal community contours multiple ownership rules. of the stations in question." 47 C.F.R. § 73.3555(a)(3)(ii) Petitioners reply that WBAA-FM and WBAA(AM) (emphasis added); see also Revision of Radio Rules, Memo should be included in the relevant market because they randum Opinion and Order/First Recon. Order ("MO&O"), 1 both operate on unreserved channels and, as such, might FCC Red 6387 at 6395 (1992) (relevant market excludes convert to commercial operations at any time.9 Petitioners noncommercial stations since they do not compete for further argue that the plain language of Section 73.3555 commercial advertising, and are generally not included in does not limit the relevant market to "commercially-op reported ratings surveys). Petitioners© argument that erated" radio stations, but instead includes all stations in WBAA(AM) and WBAA-FM could switch "at anytime" to the commercial band, whether or not they operate com commercial service is unavailing, as such action would mercially. In response to Schurz©s contention that require prior Commission approval. Equally unavailing is WMRS(FM) and WKOA(FM)©s predicted principal com Petitioners© assertion that the relevant market should in munity contours are merely proximate but not overlap clude additional stations because WKOA(FM) could poten ping, Petitioners assert that Schurz bases its predictions tially increase its tower height to the maximum height for upon outdated data. Specifically, Petitioners contend that a Class B facility. For the purposes of determining compli Schurz©s engineer has predicted WMRS(FM)©s contour ance with our multiple ownership rules, we decline to based upon an ERP of 2.5 kW rather than its authorized speculate on whether a licensee might, in the future, re 4.4 kW ERP. 10 Petitioners further assert that WMRS(FM) quest modifications that would result in noncompliance and WKOA(FM)©s contours overlap when predicted utiliz with our Rules. ing an NBS Technical Note 101 ("Tech Note 101") study. We also find that Petitioners© contention that the relevant Petitioners contend that the Tech Note 101 study also market consists of 19 stations, when WKOA(FM)©s contour reveals that WKOA(FM)©s contour overlaps with four addi is predicted using Tech Note 101, to be without merit.