FCC 95-331 Federal Communications Commission Record 10 FCC Red No. 19 73.3555 note 6. The Times-Gazette is published five days Before the per week (Monday through Friday), is published in Eng Federal Communications Commission lish, and is circulated generally in Shelbyville and Bedford Washington, D.C. 20554 County. Daily circulation is 8,504 copies, and the Times- Gazette, according to Shelbyville Publishing, is an impor tant source of local news and, information. Furthermore, In re Application of the 2 rnV/m signal of WLIJ encompasses the entire com munity of Shelbyville, and approximately 70 percent of HOPKINS HALL BROADCASTING, INC. Bedford County. (Assignor) 3. The Commission contemplates permanent and tem porary waivers of the daily newspaper cross-ownership rule in four instances: (1) where there is an inability to dispose and File No. BAL-950123EB of an interest in order to conform to the rules; (2) where the only sale possible is at an artificially depressed price; SHELBYVILLE PUBLISHING CO., INC. (3) where separate ownership and operation of the news (Assignee) paper and station cannot be supported in the locality; and (4) where, for whatever reason, the purposes of the rule For Assignment of License of would be disserved by divestiture. Fox Television Stations, WLIJ(AM), Shelbyville, Tennessee Inc., 8 FCC Red 5341, 5348 (1993), aff©d sub nom. Metro politan Council of NAACP Branches v. FCC, 46 F.3d 1154 (D.C. Cir. 1995) ("Fox"); Multiple Ownership of Standard, MEMORANDUM OPINION AND ORDER FM, and Television Broadcast Stations, Second Report and Order, 50 FCC 2d 1046, 1085 (1975) ("Second Report and Adopted: July 31,1995; Released: September 5,1995 Order"), recon., 53 FCC 2d 589 (1975) ("Second Report and Order Recon."), aff©d sub nom. Federal Communications Commission v. National Citizens Committee for Broadcast By the Commission: Commissioner Quello concurring, ing, 436 U.S. 775 (1978). These waiver standards were issuing a separate statement. originally designed to govern divestiture of combinations formed prior to implementation of the rule, but they have 1. The Commission has under consideration the above- also been applied to "new" combinations such as the one captioned application for voluntary assignment of the li proposed here. Fox, 8 FCC Red at 5348 n.19. cense of WLIJ(AM), Shelbyville, Tennessee from Hopkins 4. Shelbyville Publishing requests a permanent waiver of Hall Broadcasting, Inc. ("Hopkins Hall") to Shelbyville the Commission©s rule, which entails a "considerably Publishing Co. ("Shelbyville Publishing"). Shelbyville Pub heavier" burden of justification than a temporary waiver. lishing owns and operates the Shelbyville Times-Gazette See Fox, 8 FCC Red at 5348 (citing News America Publish ("Times-Gazette"), a daily newspaper serving Shelbyville ing, Inc. v. FCC, 844 F.2d 800, 803 (D.C. Cir. 1988); Health and surrounding Bedford County, Tennessee. Since the 2 and Medicine Policy Research Group v. FCC, 807 F.2d 1038, mV/m contour of WLIJ encompasses the entire community 1042-43 (D.C. Cir. 1986)). The Commission has only grant in which the Times-Gazette is published, Shelbyville Pub ed permanent waivers of the rule in two instances, both lishing requests a permanent waiver of the Commission©s involving television stations. In each case, one of the cross- daily newspaper cross-ownership rule to permit common owned media properties faced substantial financial ownership of WLIJ and the Times-Gazette. A petition to difficulties and the Commission was acting to preserve a deny the assignment application was filed by the Cromwell media "voice." The Commission granted a permanent Group ("Cromwell") on March 1, 1995. Cromwell is the waiver to allow Field Enterprises, Inc., publisher of two licensee of Shelbyville©s only other AM station, WHAL, as daily newspapers in Chicago, to reacquire control of well as WYCQ, Shelbyville©s only FM station. Cromwell WFLD-TV, Chicago. Field Communications Corp., 65 FCC argues that Shelbyville Publishing has not provided suffi 2d 959, 961 (1977) ("Field"). The Commission held that cient justification for a permanent waiver of the daily Field©s reacquisition of the financially troubled station did newspaper cross-ownership rule. After consideration of all not constitute a new ownership pattern, and thus was pleadings in this matter, we find it is in the public interest similar to ownership patterns grandfathered under the daily to deny the waiver request and to deny the above-captioned newspaper cross-ownership rule. Id. The only other perma assignment application. nent waiver of the rule was granted to allow Rupert 2. Section 73.3555(d)(l) of the Commission©s rules pro Murdoch to continue to control the licensee of WNYW, vides that no license for an AM broadcast station will be New York, New York, after acquisition of the failing New granted to any party who owns, operates or controls a daily York Post. There was evidence that Murdoch©s ownership newspaper if the grant of such license would result in the might be "pivotal to the newspaper©s survival." Fox, 8 FCC predicted or measured 2 mV/m contour of the AM station Red at 5350. As in Field, Murdoch had previously con encompassing the entire community in which such news trolled the entity to be acquired, and had a continuing paper is published. A "daily" newspaper is published four financial interest in the property. See Fox, 8 FCC Red at or more days per week, in English, and is circulated gen 5342; Field, 65 FCC 2d at 961. erally in the community of publication. 47 C.F.R. Section 1 Cf. Larry Ellis Reed, 73 RR 2d 502 (MMB 1993) (finding that nity©s media mix and was at best a secondary source of local a publication with a circulation of 160 was not circulated gen information, emphasizing community affairs rather than local erally because it was not an important fraction of the commu news). 9764 10 FCC Red No. 19 Federal Communications Commission Record FCC 95-331 5. Shelbyville Publishing requests a permanent waiver apply changes in, or to begin or continue a reexamination under the fourth category. A waiver is warranted under of the daily newspaper cross-ownership rule, except to this so-called "catch-all" provision when it can be shown amend policies with respect to waivers concerning cross- "for whatever reason," that the purposes of the rule would ownership of a daily newspaper and an AM or FM broad be better served by the proposed ownership pattern. Fox, 8 cast station. In introducing the exception for radio stations FCC Red at 5348. This waiver category countenances a in Fiscal Year 1994 legislation, (Pub. L. No. 103-121, 107 myriad of arguments pertinent to the exigencies of a par STAT. 1153, 1167 (1993)), Congress stated that in light of ticular situation, and we will consider all "special cir the Commission©s finding that circumstances in the radio cumstances" that applicants believe have a bearing on the market had changed significantly, the Commission would appropriateness of granting a waiver. Id.; Second Report be permitted to establish a more liberal policy concerning and Order, 50 FCC 2d at 1085 n.47. However, we have waivers allowing cross-ownership of newspaper and radio stated that we would not be favorably inclined to grant any stations in the top 25 markets where at least 30 individual request premised on views rejected when the rule was broadcast voices remain after the transfer is completed. adopted, as we do not intend to relitigate resolved issues. H.R. Conf. Rep. No. 293, 103d Cong., 1st Sess. 40 (1993). Second Report and Order, 50 FCC Red at 1085. See Fox, 8 Congress stated that the Commission retains the discretion FCC Red at 5348; Second Report and Order Recon., 53 FCC to examine requests for other waivers of the radio-news 2d at 593-94. paper cross-ownership rule on a case-by-case basis upon a 6. In support of its waiver request, Shelbyville Publishing showing that such a waiver would have "unique public© raises three main points: (1) combined ownership of WLIJ benefits." Id. and the Times-Gazette will result in the "unique public 8. Finally, Shelbyville Publishing claims that media di benefit" of improving WLIJ©s local news and public affairs versity will not be adversely affected in Shelbyville (and programming; (2) Congress has authorized the Commission surrounding Bedford County), which is located approxi to change its policies concerning newspaper and broadcast mately 50 miles southeast of Nashville, is in the Nashville station cross-ownership; and (3) the combined ownership area of dominant influence (ADI), and receives a wide of WLIJ and the Times-Gazette will not result in any variety of media from diverse sources. significant decrease in media diversity. Shelbyville Publish 9. In its petition to deny, Cromwell notes that its AM ing claims that WLIJ, a small, stand-alone AM station with station, WHAL, which is also licensed to Shelbyville, pro limited resources,2 cannot afford to provide local news vides local news and public affairs coverage without the coverage on its own, but that under co-ownership with the need for co-ownership with a local newspaper. Although Times-Gazette, WLIJ will be able to provide in-depth cov WHAL is owned in common with WYCQ, an FM station erage of local news and public affairs. Shelbyville Publish licensed to Shelbyville, Cromwell points out that AM-FM ing submits data showing that a team of local news combinations are permitted under the Commission©s rules, reporters and editors comparable to that of the Times- whereas broadcast-newspaper combinations are prohibited. Gazette would cost in excess of $200,000 per year.3 Cromwell asserts that if the Commission were to grant Shelbyville Publishing also submits data showing that 1994 Shelbyville Publishing©s request, it would "open the revenues for WLIJ totaled slightly more than $165,000, floodgates" for every newspaper in the country to acquire a which it claims would make it impossible for the station to radio station.