Federal Communications Commission FCC 99-155 Before the · Federal Communications Commission Washington, D.C. 20554 In re Application of ) ) WPNT. INC. ) (Assignor) ) ) and ) File No. BALH-980915GL ) SinClair Radio of St. Louis ) Licensee, L.L.C. ) (Assignee) ) ) For Assignment of License of ) KXOK-FM. Florissant. Missouri ) MEMORANDUM OPINION AND ORDER Adopted: June 30, 1999 Released: July 1, 1999 By the Commission: Commissioner Tristani dissenting and issuing a statement. I. The Commission has before it: (I) the above-captioned application for assignment of the license of KXOK-FM, Florissant. Missouri from WPNT, Inc. ("WPNT'') to Sinclair Radio of St. Louis Licensee, L.L.C., a subsidiary of Sinclair Broadcast Group, Inc., ("Sinclair"); 1 and (2) a related request for a temporary, conditional waiver of 47 C.F.R. § 73.3555(c), the Commission's one-to-a-market rule, which restricts common radio and television station ownership in the same market.2 The application and waiver requests are unopposed. For the reasons set forth below, we grant the assignment application and a temporary. conditional waiver of our one-to-a-market rule. ·· 2. Sinclair controls through its subsidiaries UHF television station KDNL-TV (ABC affiliate), St. Louis. Missouri: KPNT(FM), Ste. Genevieve, Missouri; WVRV(FM), East St. Louis. Illinois; an~ "-IHT(FM), WIL-FM and WRTH(AM), all St. Louis, Missouri. In 1997, Sinclair was granted a permanent one-to-a-market waiver to acquire KDNL-TV, WVRV(FM), and K.PNT(FM). See River Ci(v License Partnership. 12 FCC Red 4993 (MMB 1997). Subsequently, in 1998, Sinclair \Vas granted a temporary, conditional waiver to add WRTH(AM), WIL-FM, KIHT(FM) to this radio/television combination. See KKSN. Inc .. 13 FCC Red 2679 (MMB 1998). 3. Grant of the instant assignment application would create a new radio-television station combination because the Grade A contour of KDNL-TV encompasses the entire community of license of KXOK-FM. in Florissant. Missouri. See 47 C.F.R. § 73.3555(c). Sinclair's proposed acquisition of 1 Sinclair also seeks assignment of KXOK-FMI, an FM booster license, associated with KXOK-FM. File . number BALFTB-98091 SEA. ~ Section 73. 3555(c) of the Commission's Rules prohibits the cbmmon ownership of radio and television stations in the same market if the 2 mV/m contour of an AM station or the I niV/m contour of an FM station encompasses the em ire community of license of a television station or, conversely; if the Grade A contour of a television station encompasses the entire community of license of an AM or FM station. 11291 Federal Communications Commission FCC 99-155 KXOK-FM also implicates the local radio ownership rules. See 41 C.F.R. § 73.3SSS(a)( l ). Consequently, Sinclair has submitted a showing to demonstrate that its acquisition ofKXOK-FM complies with the local radio ownership rules and has requested a temporary, conditional waiver of the one-to-a-market rule to permit common ownership of one UHF-TV, one AM, and five FM stations in the St. Louis OMA. the 21st largest. Local Radio Ownership Rule Showing 4. Sinclair has submitted a showing in order to demonstrate compliance with the Commission's local radio ownership rule. 47 C.F.R. § 73.3555(a)(l). Sinclair indicates that the principal community contour of KXOK-FM overlaps the mutually overlapping principal community contours of Sinclair's existing one AM and four FM radio stations. Sinclair also indicates that there are 48 commercial radio stations in the radio market formed by the mutually overlapping contours of its proposed commonly owned radio stations. According to Sinclair, its proposal to own one AM and five FM stations in this 48 station market is consistent with our rules, which in markets of 45 or more commercial stations. permit a party to control up to 8 radio stations, not more than five of which are in the same service (AM or FM). Request for Waiver of the One-to-a-Market Rule 5. Sinclair bases its request for a one-to-a-market rule waiver on the standards adopted in the Second Report and Order in MM Docket 87-7, 4 FCC Red 1741 (1989) ("Second Report and Order"). rec:cm. granted in part and denied in part. 4 FCC Red 6489 ( 1989) ("Second Report and Order Recon. "). Under these criteria. the Commission presumptively favors waiver requests involving station combinations serving the top 25 markets where there are at least 30 separately owned, operated, and controlled broadcast licenses or "voices" after the proposed combination ("top 25 market/30 voice standard").3 The Commission also favors requests involving "failed" broadcast stations, that is, stations that have not been operating for a substantial period of time or are involved in bankruptcy proceedings. Id. Otherwise, the request must be evaluated under the case-by-case approach. See 41 C.F.R. § 73.3555, note 7. 6. Although the St. Louis OMA is the 21st largest in the country, we will consider the subject waiver request under the case-by-case standard because the proposed transaction involves the common ownership of more than one same-service radio station with a television station. See Memorandum Opinion and Order in MM Docket 91-140, 7 FCC Red 6387, 6394 n.40 (1992): see also Moosey Communications. Inc., 8 FCC Red 5247 (1993) (consideration of one-to-a-market waivers under the case­ by-case standard still appropriate where new radio-TV combinations are created. pending the possible revision of the one-to-a-market rule in the outstanding TV ownership proceeding in MM Docket No. 91- 221 ). Under the case-by-case standard, the Commission makes a public interest determination based upon the following five criteria: I) the potential public service benefits of joint operation of the facilities, such as economies of scale. cost savings, and programming and service benefits~ 2) the types of facilities involved: 3) the number of media outlets owned by the applicant in the relevant market: 4) the financial difficulties of the stations involved; and 5) the nature of the relevant market in light of the level of competition and diversity after the joint operation is implemented. Second Report a11d Order. 4 FCC Red · at 1753-54. In enunciating the five factors to be considered under tfie case-by-case standard, the Commission noted that not all five factors must be satisfied in each case. but rather the overall Pursuant to a provision o.f the Telecommunications Act of 1996, Pub. L. No. 104-104, § 202(d), 110 Stat. 56 (1996), "to extend its [one-to-a-market] waiver policy to any of the top SO markets, consistent with the public interest, convenience and necessity," the Commission is considering a proposal to implement such an extension·of the waiver policy. Second Further NPRM. 11 FCC Red at 21685. 11292 Federal Communications Commission FCC 99-155 consideration of these factors must weigh in favor of granting the waiver request. Second Report and Order Recon .• 4 FCC Red at 6491. In support of its waiver request, Sinclair submits a showing which addresses each of the five factors. 7. Benefits of Joint Operation. Sinclair asserts that common ownership of its proposed radio­ television combination in the St. Louis market will result in substantial cost savings that will. in turn, result in increased local programming in the market through the use of shared resources and cross­ promotions. In addition, Sinclair states that joint ownership of its existing radio-television combination in St. Louis has already achieved significant cost savings, and estimates that its acquisition.of KXOK-FM will result in additional total annual cost savings of approximately $125,000, consisting of approximately $75.000 in saved promotional expenses and approximately $50,000 in purchasing efficiencies. With these anticipated cost savings, Sinclair states that it will be able to expand local news programming through joint operation of the TV and radio stations. Specifically, Sinclair states that KXOK-FM will have access to audio feeds of KDNL-TV's news and weather bulletins, as well as access to KDNL-TV's news programming which will be made available to KXOK-FM for simulcasting or rebroadcast. Similarly, KXOK-FM will provide KDNL-TV with access to excerpts from its local news, commentary programs, and public service campaigns, including the station's anti-drug abuse and stay in school campaigns, according to Sinclair. Additionally, Sinclair states that charity drives and fund raising events sponsored by KXOK-FM will be cross promoted on KXOK-FM and KDNL-TV and that there are plans for the two stations to co-sponsor a job fair that will also be cross promoted. Sinclair also plans to use a portion of the cost savings derived from the joint operation of KDNL-TV and KXOK-FM to explore with city officials the feasibility of implementing Internet partnerships between KDNL-TV and city schools in the St. Louis area. The Internet partnerships will be based on Sinclair's established Internet partnerships in Baltimqre, Maryland, where Sinclair's owned TV stations have worked in partnership with local school -boards to provide educational content over the Internet that complements and enhances the approved core curricula of Baltimore County schools. 8. Other Media Outlets/Types of Facilities. In the St. Louis market, Sinclair. through its subsidiaries, already controls the combination of KDNL-TV, St. Louis, Missouri: KPNT(FM), Ste. Genevieve. Missouri: WVRV(FM), East St. Louis, Illinois; KIHT(FM),St. Louis, Missouri; WIL-FM, St. Louis. Missouri: and WRTH(AM), St. Louis, Missouri. Sinclair states that KDNL-TV is an ABC­ affiliated UHF station operating on Channel 30 with an effective radiated power ("ERP") of 2.190 kW from an antenna height above average terrain ("HAAT") of 335 meters.