Before the

Federal Communications Commission

**Washington, D.C. 20554**

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| In the Matter of the             | * | File Nos. BTCCT-19991116ABA, |
| Applications of                  | * | *et al.*                     |
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| Shareholders of CBS Corporation, | * |                              |
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| (Transferor)                     |   |                              |
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| and                              | * |                              |
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| Viacom, Inc.,                    | * |                              |
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| (Transferee)                     |   |                              |
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| For Transfer of Control of CBS   | * |                              |
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| Corporation and Certain          | * |                              |
| Subsidiaries, Licensees          | * |                              |
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| Of KCBS-TV, Los Angeles, CA, *et | * |                              |
| al.*                             | * |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted:** May 3, 2000 **Released:** May 3, 2000

Before the Commission: Commissioner Furchtgott-Roth concurring in part,
dissenting in part and issuing a separate statement; Commissioner
Tristani approving in part, dissenting in part and issuing a separate
statement.

1.  The Commission has before it for consideration the applications to
    transfer control of the CBS Corporation ("CBS") and its various
    licensee subsidiaries to Viacom, Inc. ("Viacom").[^1] Petitions to
    deny the applications were filed by the American Cable Association
    ("ACA"), the National Black Media Coalition ("NBMC"), the WEYS
    Television Corporation ("WEYS"), and a group of petitioners
    objecting to certain broadcasts made by Howard Stern ("the Stern
    Petitioners").[^2] In addition, the A.H. Belo Corporation ("Belo")
    filed a letter opposing the applications after the petition to deny
    period had expired.[^3] We will exercise our discretion pursuant to
    §1.41 and treat the letter as an informal objection. For the reasons
    stated below, we deny the petitions and informal objection and grant
    the applications subject to conditions to ensure compliance with our
    multiple ownership and cross-ownership rules.[^4]

# Introduction

2.  On November 16, 1999, CBS and Viacom filed applications seeking
    Commission consent to the transfer of control of CBS and its
    subsidiary companies which are the licensees or permittees of
    numerous broadcast stations. CBS and its subsidiaries hold the
    licenses or construction permits of 20 television stations and 162
    radio stations, in addition to various broadcast translator and
    auxiliary licenses. Viacom is the direct and indirect licensee or
    permittee of 18 television stations and several translator
    stations.[^5] Viacom is a publicly traded corporation that is
    currently controlled by National Amusements, Inc. ("NAI"), a single
    majority shareholder. Sumner Redstone controls NAI through the
    Sumner M. Redstone Trust.[^6]

3.  The applicants have made showings to support their contention that
    the proposed merger will fully comply with our radio and television
    duopoly rules. They have also made showings regarding those markets
    where the combined entity would own radio and television stations in
    excess of the permissible limits set out by our cross-ownership
    rule. In those markets, the applicants have requested time to come
    into compliance with that rule. Because the merger would result in
    violations of our Dual Network Rule and the national television
    ownership limit, the applicants have also requested time to bring
    the combined entity into compliance with those rules. Finally, the
    applicants have sought continued satellite waivers for certain
    television stations. The petitioners to deny oppose allowing the
    applicants time to come into compliance with our Dual Network Rule
    and the national ownership cap. NBMC makes additional allegations
    regarding EEO and news distortion violations by CBS. The Stern
    Petitioners allege that certain broadcasts of the Howard Stern
    program violated the laws governing indecent or obscene broadcasts.

    **II. The Transaction**

4.  Viacom currently has two classes of publicly traded common stock,
    Class A (voting) and Class B (non-voting). The merger agreement
    calls for CBS shareholders to receive 1.085 shares of Viacom Class B
    stock for each share of CBS common stock. There will be no change in
    the ownership of Viacom Class A stock and ultimate control of Viacom
    will remain with Mr. Redstone.

5.  Currently, Viacom has a ten-member board of directors. Eight new
    directors, drawn from CBS' current board, will be added to the
    Viacom board after closing. For a period of three years, there can
    be no change in the size of the Viacom board or any removal of a CBS
    director without a supermajority vote of the board members. During
    that same period, directors from the CBS group will appoint
    replacements of the CBS directors. Likewise, directors from the
    Viacom group will appoint replacements for the Viacom directors. At
    the end of the three years, all directors will be elected by
    plurality vote of the Class A shareholders, whose votes are under
    Mr. Redstone's control.

6.  Following the merger, Mr. Redstone will remain chairman and chief
    executive officer of Viacom. Mel Karmazin, the current president and
    chief executive officer of CBS, will become president and chief
    operating officer of Viacom.

    **III. The Dual Network Rule**

7.  CBS is the owner of the CBS television network, one of the nation's
    four largest broadcast networks. Viacom owns UPN, the United
    Paramount Network, a relatively new national broadcast network.[^7]
    Section 73.658(g)(1) of our rules prohibits any entity from owning
    two or more television "networks." That rule defines a network as an
    entity "...which offers an interconnected program service on a
    regular basis for 15 or more hours per week to at least 25
    affiliated television licensees in 10 or more states...."[^8] CBS,
    with its nationwide coverage, provides programming well in excess of
    15 hours per week to over 25 affiliates and, therefore, is covered
    by this definition. While UPN does not fit within this network
    definition, the Dual Network Rule prohibits the common ownership of
    a network defined under (g)(1) with:

    "...an English-language program distribution service that, on
    February 8, 1996, provided four or more hours of programming per
    week on a national basis pursuant to network affiliation
    arrangements with the local television broadcast stations in markets
    reaching more than 75 percent of television homes..."[^9]

    Viacom argues that UPN did not have the requisite audience reach on
    February 8, 1996 to be covered by (g)(2). In its petition, WEYS
    challenges the contention that UPN would not be covered by the Dual
    Network Rule. Viacom also argues that, should the Commission find
    that UPN is covered by (g)(2) and that the combined entity violates
    the Dual Network Rule, it should be allowed twenty-four months to
    come into compliance because of the unique circumstances of this
    transaction.[^10] ACA, WEYS, NBMC and Belo argue that the requested
    twenty-four months is without precedent, against the public
    interest, potentially anti-competitive and should be denied.

8.  Viacom concedes that UPN provided four or more hours of programming
    per week on a national basis pursuant to network affiliation
    arrangements with local broadcast stations. However, Viacom claims
    that UPN's national audience reach on February 8, 1996 was only
    72.4% of television homes, based on a count of stations with which
    UPN held a primary affiliation agreement.[^11] In making this claim,
    Viacom excludes from its count any stations with which UPN held a
    secondary affiliation agreement. The stations that had a secondary
    affiliation agreement with UPN reached an additional 18.6% of
    television households, giving a total of 91% of television
    households that UPN reached either through primary or secondary
    affiliates.

9.  Viacom argues that secondary affiliation agreements are "license
    agreements" which are, in effect, syndication agreements. These
    license agreements permit programs to be aired "out of pattern" at
    times negotiated by the station. For example, rather than run a UPN
    program during its regularly scheduled network time, a secondary
    affiliate might run that program on the weekend or in late night.
    Also, Viacom states that secondary affiliates are not required to
    identify and promote their connection with UPN, denying the network
    the benefit of "branding" with those stations. Finally, secondary
    affiliates receive a separate feed from the primary affiliates,
    which does not include network promotions or programs containing the
    UPN logo at the bottom of the screen. Viacom also argues that the
    plain language of neither § 73.658(g) nor the underlying statute
    specifically states that the Dual Network Rule is to apply to UPN.

10. Though Viacom may call its "arrangements" with its secondary
    affiliates "license agreements," it still considers those stations
    as UPN affiliates and not merely as stations to which a Viacom
    subsidiary sells programming. Both the statute and the rule refer to
    network affiliation "arrangements" and do not make any distinction
    between primary and secondary affiliates. There is no evidence that
    Congress intended for such a distinction to be made. Indeed, if
    Viacom's argument is accepted, then § 202(e) of the
    Telecommunications Act of 1996 does not apply to anyone and Congress
    has enacted a law with no meaning or purpose. It is a basic rule of
    statutory construction that a statute is presumed to have some
    meaning and application.[^12] Furthermore, Viacom's argument that
    the Dual Network Rule does not refer to UPN by name and should not
    automatically be considered to include UPN directly contradicts the
    legislative history of the provision, which refers by name to the
    two "emerging networks, (WBTN, UPN)" in describing the networks to
    which the prohibition applies.[^13] Therefore, it appears clear that
    Congress intended the Dual Network Rule to apply to UPN. Recognizing
    that Congress intended the Dual Network Rule to apply to UPN and
    crafted it to so apply, we are persuaded that all network
    affiliation agreements, primary and secondary, should be counted
    towards determining a network's national audience reach. We conclude
    that § 73.658(g)(2) includes UPN within its prohibition on dual
    network ownership.

11. In support of their alternative request for twenty-four months to
    come into compliance with the Dual Network Rule, the applicants
    argue that requiring the merged entity to sell a national broadcast
    network, with the concomitant effects on the financial standing of
    the network, its affiliates and its program suppliers, is without
    precedent. The applicants state that (1) UPN, its affiliate stations
    and its program suppliers are all financially inter-dependent; (2)
    UPN is not financially self-supporting; (3) an independent purchaser
    is unlikely to assume the financial burden that Viacom has been
    carrying due to the high cost of maintaining UPN; (4) the challenges
    presented by any divestiture are without precedent; and (5) it would
    serve the public interest to allow the parties a reasonable
    opportunity to come into compliance in such a way as to preserve
    UPN's unique services. The applicants also point out that UPN relies
    extensively on UHF stations and in some cases LPTV stations to reach
    its audience. As noted above, in some cases UPN does not have a
    primary network affiliation agreement with these stations. The
    applicants claim that carriage under these circumstances is
    undesirable and will hurt any efforts to sell UPN. The applicants
    further assert that no party has come forward to express any serious
    interest in buying UPN. Finally, the applicants argue that, should
    no buyer be found and they be forced to shut down UPN, this would
    reduce program diversity. They argue that this loss would be even
    more serious in light of UPN's history of presenting programming
    targeted to minorities and of creating opportunities for minorities
    to participate in the creation, production, writing and on-air
    presentation of programming. Therefore, the parties ask for a
    twenty-four month period to come into compliance with the Dual
    Network Rule in order to avoid creating a situation where it would
    be necessary to simply shut down the network.

12. ACA, WEYS, NBMC and Belo all oppose a twenty-four month period to
    come into compliance as excessive and assert that it would provide
    no public interest benefit. ACA in particular asserts that the
    ownership of two networks will lead to abuses in the granting of
    retransmission consent, abuses to which small cable operators are
    especially vulnerable. ACA also asserts that CBS/Viacom will use the
    Dual Network Rule to subsidize UPN, again by possibly manipulating
    the terms of retransmission consent agreements. Belo points out that
    there will be markets where CBS or UPN owned and operated affiliates
    will be competing against independent affiliates of the one of the
    networks owned by CBS/Viacom, which could lead to unfair treatment
    of the independent affiliates.[^14]

13. On March 27, 2000, the applicants filed an amendment ("Amendment")
    to reflect Viacom's acquisition of the remaining interest in UPN and
    to make certain representations regarding the operations of UPN
    during any period prior to coming into compliance with the Dual
    Network Rule. In the Amendment, the parties pledged:

    Subject to Viacom' right to terminate UPN, Viacom will preserve UPN
    as a viable, independent voice distinct from that of the CBS
    Television Network during the period of time granted by the
    Commission for Viacom to come into compliance with the dual network
    rule.

    To this end, the executives in charge of programming at UPN will be
    responsible solely for advancing the interests of that network. As
    they do today, the two networks will continue to strive for diverse
    audiences consistent with their separate programming strategies.
    Although the UPN television programming executives may participate
    in incentive compensation plans related to the performance of Viacom
    as a whole, such executives' compensation will not be otherwise
    directly related to the performance of the CBS Television Network.

14. We will deny the requested twenty-four month period, but will grant
    the parties twelve months for the combined CBS/Viacom to come into
    compliance with the Dual Network Rule. Before entering into this
    transaction, the applicants were aware that it could violate the
    Dual Network Rule. They cannot claim any surprise that compliance
    with the law is required. We recognize that there are
    inter-dependent relationships between program suppliers, affiliates
    and UPN, but we do not believe those relationships are an impediment
    to bringing the merged entity into compliance with the rule. Indeed,
    those very relationships are part of the value of UPN. Viacom
    initially argued that sale of UPN would be especially complex given
    that the network was, in part, owned by Chris-Craft. Viacom,
    however, exercised a buy/sell option with its former co-owner
    Chris-Craft. The exercise of this option gave Chris-Craft the
    opportunity to buy out Viacom's interest in UPN for \$5 million.
    Chris Craft declined to make this purchase. Viacom states that
    Chris-Craft "reportedly attempted but failed to line up additional
    partners interested in investing" in UPN. Viacom also states that
    "notwithstanding wide public knowledge of the potential divestiture
    of UPN, Viacom received no *bona fide* proposals to purchase its 50
    percent interest in the network."

15. Although Congress clearly intended the Dual Network Rule to apply to
    UPN, there is no evidence that Congress intended for UPN or any
    other network to be sold at a "fire sale." The Commission has long
    granted parties a reasonable time to come into compliance with our
    rules.[^15] In the cases of station divestitures we have generally
    allowed a period of six to twelve months to come into compliance,
    and, consistent with those decisions, we find that a period of
    twelve months would be appropriate here.

16. Although we recognize the concerns of the petitioners regarding the
    potential for abuse of market power by the applicants during the
    period prior to coming into compliance, there is no evidence that
    such conduct will actually occur, or that such potential abuses
    should be addressed by the Commission as opposed to anti-trust
    authorities. Furthermore, we believe the pledges made by the
    applicants regarding the separate operations of the two networks and
    the relatively limited period allowed for coming into compliance
    minimize our concerns in this area. If the combined CBS/Viacom
    entity does violate our rules, we can take appropriate action
    against such misconduct at that time.

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IV. **The National Ownership Cap**

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17. In their application, the parties state that the merged CBS/Viacom
    would control 38 television stations (including one construction
    permit), provide programming to two additional stations pursuant to
    local marketing agreements and have an ownership attributable
    interest in one additional television station.[^16] These stations
    are licensed to 32 DMA's[^17] and reach slightly more than 41
    percent of all national television households.[^18]

18. The Telecommunications Act of 1996 and the Commission's rules
    prohibit the grant, transfer or assignment of any television license
    to any entity if it would result in that entity having a cognizable
    interest in television stations with an aggregate national audience
    reach exceeding 35 percent.[^19] Because the aggregate national
    reach of the stations owned by the combined CBS/Viacom would be over
    6% in excess of the permitted level, the parties have asked for 24
    months to come into compliance with the statute and rule. ACA, WEYS,
    NBMC and Belo oppose granting the requested 24 months because there
    is no precedent so to do and because it would not be in the public
    interest.

19. The parties have intertwined their arguments in support of a
    24-month period to come into compliance with the national ownership
    cap with their arguments for the same amount of time to come into
    compliance with the Dual Network Rule. They repeatedly state that
    the interests of UPN, of the various stations they refer to as owned
    and operated and of the independently owned UPN affiliates are
    complex and interdependent. The parties claim their situation is
    different from other Commission proceedings requiring divestiture
    because as many as 16 television stations may have to be sold to
    come into compliance with the national ownership cap. They also cite
    to Commission proceedings involving divestiture requirements under
    the newspaper/television cross-ownership rule and the
    cable/television cross ownership rule where the Commission has
    allowed up to 24 months to come into compliance.[^20] The parties do
    not cite to any case that only involved the divestiture of
    television stations where the Commission has permitted more than 6
    months to come into compliance with the multiple ownership rules.

20. First, there is no evidence that the applicants have to sell 16
    stations to come into compliance with the national ownership cap. As
    Belo points out, they could sell fewer stations in larger markets to
    come into compliance with the rule. We will not dictate which
    stations the applicants must sell to come into compliance with the
    national ownership cap, but we note that the combined entity could
    sell a single television station, rather than 16 spread around the
    country, and come into compliance.[^21]

21. Second, all of the cases that the applicants cite in support of a
    divestiture period longer than 12 months dealt with proceedings
    where parties needed to comply with either the newspaper/television
    cross-ownership rule or the cable/television cross-ownership rule.
    In those cases, the Commission permitted the longer divestiture
    period because the relevant market factors associated with the sale
    of newspapers or cable systems, such as the possible lack of demand
    for a newspaper or the limited number of potential buyers, were
    different from those affecting broadcast stations. This is
    especially true over the last several years where the number of
    sales of broadcast stations have increased significantly. In other
    words, the Commission specifically distinguished those proceedings
    from broadcast station proceedings. There are no cases involving
    only broadcast properties in which the Commission has permitted more
    than 12 months for the requisite divestitures to come into
    compliance with our rules.

22. The Commission has historically held, in multiple station
    transactions, that the overall benefits of allowing time for an
    orderly divestiture of broadcast properties outweighs the impact on
    diversity and competition from common ownership during a reasonable
    period following the grant of the application. However, the
    Commission has never found that a period greater than 12 months was
    appropriate to accomplish the needed divestitures in a transaction
    where only television stations were involved. No arguments or
    evidence have been presented in this proceeding to convince us that
    we should give the parties twice the longest amount of time we have
    granted in the same type of transactions. Therefore, we deny the
    request for 24 months to come into compliance with the national
    ownership cap and instead give the applicants twelve months to
    comply.

# Multiple Ownership Issues

A.  **A. Local Television Ownership Rule**

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23. *Background and Standard.* The merger of Viacom with CBS will result
    in the common ownership of two television stations in the same
    Nielsen DMA in the following six markets: Philadelphia, Boston,
    Dallas-Fort Worth, Detroit, Miami, and Pittsburgh. With regard to
    the television duopoly rule, in the *Television Ownership
    Order*,[^22] we modified our rules to allow common ownership of two
    stations in the same DMA, if eight independently owned and operating
    commercial and noncommercial television stations will remain in the
    DMA post-merger, and at least one of the stations is not among the
    top four-ranked stations in the market. As detailed below, Viacom
    has submitted a showing representing that each of these newly
    created television duopolies will comply with our modified
    television duopoly rule.[^23]

24. *Showing of Compliance*. First, in Philadelphia, the fourth ranked
    DMA, Viacom controls the license of WPSG(TV), Channel 57 and CBS
    controls the license of KYW-TV, Channel 3. Station WPSG(TV) has the
    sixth largest audience share and KYW-TV has the third largest
    audience share in the market. At least seventeen independently owned
    and operating television stations will remain in the Philadelphia
    DMA post-merger. In Boston, the sixth ranked DMA, Viacom controls
    the license of WSBK-TV, Channel 38 and CBS controls WBZ-TV,
    Channel 4. Station WSBK-TV has the sixth largest audience share and
    WBZ-TV has the third largest audience share in the market. At least
    15 independently owned and operating television stations will remain
    in the Boston DMA post-merger. Next, in the seventh ranked
    Dallas-Fort Worth DMA, Viacom controls KTXA(TV), Channel 21, and CBS
    controls KTVT(TV), Channel 11. Station KTXA(TV) has the fifth
    largest audience share and KTVT(TV) has the fourth largest audience
    share in the market. At least 14 independently owned and operating
    television stations will remain in the Dallas-Fort Worth DMA.
    Detroit, the eighth ranked DMA, is host to Viacom's WKBD(TV),
    Channel 50, which has the fifth largest audience share in the market
    and CBS's WWJ-TV, Channel 62, which has the fourth largest audience
    share. The Detroit market will have at least eight independently
    owned and operating television stations remaining in the DMA post
    merger. In Miami, the 16th ranked DMA, Viacom controls WBFS-TV,
    Channel 33, and CBS controls WFOR-TV, Channel 4. With regard to
    audience share, the stations are ranked fourth and fifth,
    respectively. After the proposed merger, at least 13 independently
    owned and operating television stations will remain in the Miami
    DMA. Finally, Pittsburgh, the 20th ranked DMA, is host to Viacom's
    WNPA(TV), Channel 19, and CBS's KDKA-TV, Channel 2. Station WNPA(TV)
    has the seventh largest audience share and KDKA-TV is ranked number
    one, with the largest audience share in the market. Following the
    proposed merger, at least 8 independently owned and operating
    television stations will remain in the Pittsburgh DMA.

25. *Discussion*. Having reviewed the showing submitted by the parties,
    we find that the television duopolies created by the Viacom-CBS
    merger in the Philadelphia, Boston, Dallas-Fort Worth, Detroit,
    Miami, and Pittsburgh DMAs, will be in compliance with the
    Commission's modified television duopoly rule. Each of the affected
    markets is served by a minimum of eight independently owned and
    operating television stations. Additionally, in each market at least
    one of the two commonly owned television stations is not among the
    top four-ranked stations. Accordingly, the proposed station
    combinations meet the new standards of our television duopoly rule,
    and we believe our core concerns regarding competition and diversity
    will continue to be protected upon consummation of the proposed
    merger.

    **B. Radio-Television Cross-Ownership Rule**

26. *Background and Standard*. Currently, CBS controls radio and
    television station combinations in twelve markets: Boston,
    Minneapolis, Chicago, Detroit, New York, Pittsburgh, Baltimore, Los
    Angeles, Philadelphia, San Francisco, Austin and Dallas/Fort
    Worth.[^24] The proposed Viacom-CBS merger will result in radio and
    television station combinations in an additional eight markets:
    Atlanta, Houston, Seattle, Tampa, Sacramento, Columbus, West Palm
    Beach and Washington, D.C. Thus, in total, Viacom will control
    radio-television combinations in 20 U.S. television markets. In the
    *Television Ownership Order*, we relaxed the radio-television
    cross-ownership rule "to permit same market joint ownership of radio
    and television facilities up to a level that permits broadcasters
    and the public to realize the benefits of common ownership while not
    undermining our competition and diversity concerns."[^25] There are
    three elements to the revised rule. First, a party may own up to two
    television stations (provided this is permitted under our revised
    duopoly rule or television LMA grandfathering policy) and up to six
    radio stations in any market where at least 20 independently owned
    media voices remain in the market.[^26] In those markets where the
    voice count component of our revised duopoly rule and
    radio-television cross-ownership rule would allow a two
    television/six radio station combination, it may be in the form of
    one television station and seven radio stations.[^27] Second, we
    will permit common ownership of up to two television stations
    (provided this is permitted under our revised duopoly rule or
    television LMA grandfathering policy) and up to four radio stations
    in any market where at least ten independently owned media voices
    remain in the market. Third, we will permit common ownership of up
    to two television stations (provided this is permissible under our
    revised duopoly rule or television LMA grandfathering policy) and
    one radio station regardless of the number of independent voices in
    the market.[^28] We note that, in accordance with the *Television
    Ownership Order*, where a merger involves stations in different
    radio metro markets, the voice count requirement must be satisfied
    in each of those radio metropolitan markets ("radio metro markets")
    to qualify under our voice count criteria. As detailed below, Viacom
    has submitted an exhibit, which purports to show that Viacom's
    television-radio station combinations will be in compliance in 15 of
    the 20 markets. In the remaining five markets, Viacom requests a
    period of six months to divest the requisite number of its radio
    stations in order to comply with the revised radio-television
    cross-ownership rule. According to Viacom's showing, the merged
    entity will comply with the numerical ownership/voice dependent
    limitations of the radio-television cross-ownership rule in the
    markets of Tampa-St Petersburg, Fort Pierce-West Palm Beach,
    Atlanta, Boston, Detroit, Columbus, Philadelphia, Pittsburgh,
    Houston, San Francisco, Seattle-Tacoma, Minneapolis, New York,
    Washington, D.C., and Austin.

    **1. Tampa-St. Petersburg, New York, Philadelphia, Detroit, Boston,
    Seattle-Tacoma**

27. *Discussion*. Based on the number of stations in the radio and
    television station combinations to be held by Viacom in Tampa-St.
    Petersburg, New York, Philadelphia, Detroit, Boston, and
    Seattle-Tacoma, at least 20 independently owned media voices must
    remain in these markets post-merger.[^29] Viacom's showing
    represents that, in compliance with our revised radio-television
    cross-ownership rule, at least 20 voices will remain within each of
    these markets after the proposed merger. The station combinations
    for each of the DMAs will be as follows: one television/six radio
    stations in Tampa-St. Petersburg; one television/six radio stations
    in New York; two television/five radio stations in Philadelphia; two
    television/six radio stations in Detroit; two television/five radio
    stations in Boston; and one television/five radio stations in
    Seattle-Tacoma. We believe Viacom has sufficiently shown that there
    will be at least 20 independent media voices for each station in
    each of these markets post merger, as consistent with the numerical
    ownership limitations of such combinations in the first prong of our
    revised radio-television cross-ownership rule, and that common
    ownership of two television stations in the Philadelphia, Detroit,
    and Boston DMAs will not violate our revised duopoly rule or
    television LMA grandfathering policy.

    **2. Fort Pierce-West Palm Beach, Atlanta, Columbus, Pittsburgh,
    Houston, Minneapolis, Austin**

28. *Discussion*. In order to comply with our revised radio-television
    cross-ownership rule, the number of stations in the radio and
    television station combinations to be held by Viacom in the markets
    of Fort Pierce-West Palm Beach, Atlanta, Columbus, Pittsburgh,
    Houston, Minneapolis, Washington, D.C., and Austin, require at least
    10 independently owned media voices to remain in the market
    post-merger.[^30] As to the station combinations, there will be a
    one television/two radio station combination in West Palm Beach, a
    one television/three radio station combination in Atlanta, a one
    television/two radio station combination in Columbus, a two
    television/four radio station combination in Pittsburgh, a one
    television/four radio station combination in Houston, a one
    television/four radio station combination in Minneapolis, and a one
    television/four radio station combination in Austin. We have
    reviewed Viacom's showing of compliance and find that the proposed
    station combinations will comply with the numerical ownership/voice
    count limitations of our radio-television cross-ownership rule after
    consummation of the proposed merger. As required by the second prong
    of our radio-television cross-ownership rule, we find that at least
    10 independently owned media voices will remain in the market for
    each of the stations licensed to these DMAs post-merger, and that
    common ownership of two television stations in the Pittsburgh DMA
    will not violate our revised duopoly rule or television LMA
    grandfathering policy.

    **3. Baltimore, Washington, D.C., Sacramento, San Francisco**

29. In the Baltimore DMA and radio metro market, CBS controls one
    television station and eight radio stations. CBS also controls the
    licenses of six radio stations licensed to communities in the
    Washington, D.C. radio metro market, which is in the Washington,
    D.C. DMA. The communities of license are encompassed by the CBS
    Baltimore television station's Grade A contour, although they are in
    a separate DMA and a separate radio market from the television
    station.[^31] Because Viacom currently controls a television station
    in the Washington, D.C. DMA, the merged entity would have a one
    television/six radio station combination in the Washington, D.C.
    market

30. A similar situation exists in the Sacramento market. There CBS
    currently controls seven radio stations licensed to the Sacramento
    radio metro market and Viacom controls one television station in the
    Sacramento DMA. CBS also controls one television station and seven
    radio stations in the San Francisco DMA and radio metro market. The
    2mV/m contour of one of CBS's radio stations licensed to the San
    Francisco DMA and radio metro market encompasses Sacramento. The
    parties argue that prior Commission precedent and market place
    realities dictate that the relevant market for the three Washington,
    D.C. and one San Francisco radio stations, should be the DMA in
    which the stations are located.

31. CBS commonly owns its radio and television station combinations in
    the Baltimore and Washington markets, pursuant to conditional
    waivers of the Commission's former radio-television cross-ownership
    rule.[^32] When evaluating these waiver requests, the Commission
    focused its review on the market where the stations were located. In
    granting these waivers, the Commission treated the Washington
    stations and the Baltimore stations as being located in separate
    markets. We have continued to follow this policy with
    similarly-situated radio-television cross-ownership combinations.
    For example, we found New York to be the relevant market for New
    York radio stations that fell within the Grade A contour of a
    commonly-owned television station located in the Hartford-New Haven
    DMA, for purposes of our radio-television cross-ownership rule.[^33]
    In the circumstances of this case, therefore, as consistent with
    precedent, we find that when applying the revised radio-television
    cross-ownership rule in the Baltimore and Washington markets, the
    relevant market for a station is the market in which that station is
    located. Further, when determining compliance under the three prongs
    of our revised rule in the Baltimore and Washington markets, if a
    radio station in a combination is located in a separate radio metro
    market and DMA from a commonly-owned television station, that radio
    station will not count toward the number of stations that an entity
    may control. Accordingly, in analyzing the Baltimore DMA, we will
    not count the three CBS radio stations located in the Washington,
    D.C. DMA as part of the Baltimore market, even though those stations
    are within the Grade A contour of CBS' Baltimore television station.
    In addition to being consistent with precedent, we believe our
    decision here reflects the Commission's rationale for modification
    of our radio-television cross-ownership rule, "to balance our
    traditional diversity and competition concerns with our desire to
    permit broadcasters and the public to realize the benefits of radio
    and television common ownership."

32. With respect to the Sacramento combination, CBS's San Francisco
    radio station KFRC(AM) triggers the radio-television cross-ownership
    rule because its 2mV/m contour completely encompasses Sacramento.
    Viacom claims that the relevant market for KFRC(AM) should be San
    Francisco, the DMA in which the station is located. Encompassment by
    the relevant signal contour (in this case, 2mV/m ), and not the DMA,
    determines whether we will count radio station towards the number of
    stations an entity may control in one market.[^34] Consequently,
    Viacom will control a one television/eight radio station combination
    in the Sacramento market, which they acknowledge will violate our
    radio-television cross-ownership rule. We will provide Viacom six
    months to file the application necessary to bring it into compliance
    with the radio-television cross-ownership rule in the Sacramento
    market.

33. We shall now evaluate Viacom's showing in the markets of Washington,
    D.C., Baltimore, and San Francisco based on our decisions in the two
    paragraphs above. In the Washington, D.C. DMA, Viacom will control a
    one television/six radio station combination. Since 20 media voices
    will remain in the relevant market post-merger, this combination
    comports with our radio-television cross-ownership rule. However, in
    the Baltimore DMA, Viacom will control a one television/eight radio
    station combination. Since Viacom does not meet the voice count
    component of the revised duopoly rule, this combination will violate
    the radio-television cross-ownership rule. Viacom, therefore, has
    pledged to divest two Baltimore radio stations, which will result in
    the DMA containing a one television/six radio station combination in
    a market where 20 media voices will remain post-merger. We find,
    therefore, that the proposed station combinations in the market of
    Washington, D.C. will comply with the numerical ownership/voice
    count limitations of our radio-television cross-ownership rule
    post-merger, and that the proposed combination in the Baltimore
    market will comply with the numerical ownership/voice count
    limitations of our radio-television cross-ownership rule following
    divestiture of two radio stations. As detailed below, Viacom has
    requested a six-month waiver in order to come into compliance in the
    Baltimore market. Finally, in the San Francisco market, Viacom will
    control a one television/seven radio station combination. At least
    20 media voices will remain in the San Francisco market post-merger,
    at least eight of which are independently owned and operating
    television stations in the San Francisco DMA. We find, therefore,
    that the proposed combination in the San Francisco market will
    comply with the numerical ownership/voice count limitations set
    forth in the first prong of our radio-television cross-ownership
    rule.

    **4. Los Angeles, Chicago, and Dallas-Fort Worth**

34. *Waiver Request*. In addition to the Baltimore and Sacramento
    markets, the merger of Viacom and CBS would not comply with the
    radio-television cross-ownership rule in Los Angeles, Chicago, and
    Dallas-Fort Worth.[^35] With regard to the Los Angeles and Chicago
    DMAs, Viacom will control a one television station/eight radio
    station combination post merger in each of these markets. Viacom has
    pledged to divest one Los Angeles radio station and one Chicago
    radio station, which will result in each DMA containing a one
    television/seven radio station combination. In markets where the
    voice count component of our revised duopoly rule and
    radio-television cross-ownership rule would permit a party to own
    two television and six radio stations, for a total of eight outlets,
    we also permit that party to own the same number of outlets in the
    form of one television and seven radio stations.[^36] Consequently,
    a one television/seven radio station combination will be permissible
    in these markets if they meet the voice count restrictions for both
    our revised duopoly rule and radio-television cross-ownership rule.
    Each relevant market, therefore, must contain at least 20
    independently owned media voices post-merger, and each DMA must
    contain eight independently owned and operating commercial and
    noncommercial television stations. A one television/seven radio
    station combination will meet the numerical ownership/voice count
    limitations of our new radio-television cross-ownership rule in both
    the Los Angeles and Chicago markets. As for the Dallas-Fort Worth
    DMA, Viacom will control a two television/eight radio station
    combination post merger. Here, Viacom has pledged to divest two
    radio stations in order to come into compliance with our revised
    radio-television cross-ownership rule. This two television/six radio
    station combination also requires at least 20 independently owned
    media voices remaining in the Dallas-Fort Worth market, and must
    meet our revised duopoly rule and television LMA grandfathering
    policy.

35. Viacom asks the Commission for a six-month period of time from
    consummation to file applications to divest the radio stations in
    the Baltimore, Los Angeles, Chicago, and Dallas-Ft. Worth markets.
    According to Viacom, the Commission has long held that allowing
    those entities proposing mergers or transfers of multiple stations a
    reasonable period of time to come into compliance with our rules is
    supported by the benefits derived from such transactions. Citing
    *Stockholders of CBS, Inc*., Viacom further contends that we allow
    such relief where the conflicts are incidental to the much larger
    merger, will promote commerce, encourage investment in the broadcast
    industry, and allow for the free transferability of broadcast
    licenses. In addition, Viacom contends the Commission has stated
    that a forced, immediate sale could impose severe economic hardship
    on applicants without offsetting public interest benefits, restrict
    the value of the assets and artificially limit the range of
    potential purchasers.[^37] Viacom also argues that this six-month
    period of time would have no appreciable impact on diversity or
    competition. All of the markets requiring divestiture are among the
    25 largest media markets in the country. The Commission has
    previously allowed common ownership by CBS in Los Angeles, Chicago
    and Baltimore of one television/eight radio station combinations, at
    least on a temporary basis due, in "substantial part" to the level
    of diversity and competition in these markets. Finally, Viacom
    points out that under the modified ownership rules, these
    television/radio combinations would have been grandfathered, and CBS
    afforded the opportunity to demonstrate that permanent retention of
    these stations would serve the public interest.[^38]

36. *Discussion*. As Viacom has noted, several of our past decisions did
    find temporary waiver of our multiple ownership rules appropriate to
    facilitate multi-station transactions, especially when such waiver
    was incidental to the larger transaction.[^39] Since that time, we
    have released our *Television Ownership Order,* which substantially
    relaxes our radio-television cross-ownership rule, and allows
    broadcasters the opportunity to take advantage of common ownership
    of a greater number of television and radio stations in a given
    market. We continue, however, to weigh our decisions against our
    underlying goals of diversity and competition in the broadcast
    market place. After reviewing the record, we do not believe that the
    public interest will be disserved by allowing Viacom six months to
    divest the necessary number of radio stations to come into
    compliance with our rules. The stations to be divested make up a
    small portion of an extremely large merger involving two networks
    and multiple broadcast stations. Additionally, the markets involved
    are among the largest in the country, each served by a plethora of
    independent media voices. Our review of the applicant's showing
    finds that the Baltimore market will have at least 27 independently
    owned media voices post merger. The Chicago, Los Angeles and
    Dallas-Fort Worth markets will each host at a minimum 32
    independently owned media voices post merger. We also believe it is
    important to note that under our relaxed ownership rules, these
    radio/television combinations in Baltimore, Los Angeles, Chicago and
    Dallas-Fort Worth would be grandfathered until at least 2004 had CBS
    and Viacom not entered into this proposed merger.[^40] Should the
    proposed transfer of control not take place, it is possible that
    these radio/television combinations would exist for at least four
    more years. Thus, this brief six-month period to divest the
    stations, we believe, would not harm diversity or hinder competition
    in a manner conflicting with the public interest. We will, however,
    prohibit Viacom from divesting the stations to any party whose
    acquisition would require waiver of our multiple ownership rules.

    **C. Satellite Waivers**

37. We next consider the proposal of Viacom to continue operating
    stations KCCO-TV, Alexandria, Minnesota, and KCCW-TV, Walker,
    Minnesota, as satellites of WCCO-TV, Minneapolis, Minnesota and
    station WJMN-TV, Escanaba, Michigan as a satellite of WFRV-TV, Green
    Bay, Wisconsin. Viacom requests a continuing satellite exemption of
    the local television multiple ownership rule, 47 CFR § 73.3555(b),
    with respect to WCCO-TV, KCCO-TV, and KCCW-TV, which are all located
    in the Minneapolis-St. Paul, Minnesota DMA. A satellite exemption is
    no longer required to permit common ownership of WJMN-TV and WFRV-TV
    pursuant to the local television multiple ownership rule, 47 CFR
    §73.3555(b), as they are licensed to separate DMAs. Viacom requests,
    instead, a waiver of the main studio rule, 47 CFR §73.1125, to
    permit continued operation of WJMN-TV without a local main
    studio.[^41]

38. Viacom bases its requests for satellite exemptions on the standards
    adopted in *Television Satellite Stations,* 6 FCC Rcd 4212, 4215
    (1991)[^42] Under that standard, applicants acquiring satellite
    stations must show that the stations meet our satellite policy at
    the time of the assignment. However, an applicant will be entitled
    to a presumption that satellite operation is in the public interest
    if it meets three criteria: (1) no City Grade contour overlap exists
    between the parent and the satellite; (2) the satellite would
    provide service to an underserved area; and (3) no alternative
    operator is ready and able either to construct or to purchase and
    operate the satellite as a full-service station.[^43] If an
    applicant cannot qualify for the presumption, we will evaluate the
    proposal on an *ad hoc* basis to determine whether other compelling
    circumstances warrant grant of a waiver.[^44]

39. The satellites meet the first criterion because the City Grade
    contour of WCCO-TV does not overlap the City Grade contour of either
    KCCO-TV or KCCW-TV. With respect to the second criterion, Viacom has
    demonstrated, by using our "transmission" test, that the respective
    areas are underserved. That test deems an area underserved if there
    are two or fewer full-service stations licensed to a proposed
    satellite's community of license. No other full-service television
    station is licensed to Walker, Minnesota, KCCW-TV's community of
    license and only one other full-power television station is licensed
    to Alexandria, Minnesota, KCCO-TV's community of license.

40. As to the third criterion, we note that the Commission has approved
    continuing satellite status for these stations on two recent
    occasions.[^45] In these determinations, the Commission relied on
    submissions demonstrating that it would not be feasible to find a
    purchaser willing to operate any of the stations on a stand-alone
    basis due to the small size of the respective markets, the expense
    of upgrading each station to a stand-alone facility, and other
    demographic considerations. Viacom has submitted further evidence
    demonstrating the unfeasibility of finding a purchaser willing to
    operate the respective stations on a stand-alone basis, and we agree
    that the facts show that operation of the satellites as full-service
    stations is unlikely to be profitable. While we find that this
    showing fails to meet the "presumptive" satellite waiver standard,
    we do believe that it is strong enough to support continued
    satellite operation under our *ad hoc* analysis. Therefore, we will
    grant Viacom authority to continue to operate these stations as
    satellites. As to the main studio rule, the applicants have
    demonstrated that the Escanaba market is extremely limited in size,
    that no other television station is licensed to that community and
    that maintenance of a main studio in Escanaba is not economically
    viable. Based on this showing, we will grant a waiver of the main
    studio rule, pursuant to 47 CFR § 73.1125, with regard to WJMN-TV.

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V.  **The Petitions to Deny**

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A.  **NBMC**

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41. In its petition to deny and intervene,[^46] NBMC alleges that the
    proposed merger violates numerous Commission rules and the public
    interest. Among the rules alleged to be violated are our EEO rules
    and the news distortion policy.[^47] We deny NBMC's petition.

42. NBMC has claimed that there are 12 EEO proceedings pending against
    the applicant. Even if evidence regarding these proceedings had been
    provided, the applicants only would have been required to provide
    information regarding adverse findings or adverse final actions
    falling within the specified categories of misconduct.

43. Finally, on the issue of news distortion, NBMC seems to allege that
    certain CBS affiliates in Mississippi have either distorted or
    suppressed news related to civil rights issues. There are no
    specific allegations of fact to support this claim.[^48] In
    addition, none of the stations that are the subject of the
    applications are located in Mississippi. There is no legal basis to
    hold that CBS is liable for the local programming decisions of
    independently owned affiliates or that such programming decisions
    are in any way relevant to the merger. NBMC has failed to present
    any legal basis or to proffer any evidence that would support
    denying the CBS/Viacom application. Therefore, we deny its petition.

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B.  **The Stern Petitioners**

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44. In their petition to deny, Al Westcott, Tom Blackwell, and Glenn and
    Kathleen Benfield (collectively the "Stern Petitioners"), allege
    that CBS has been violating 18 U.S.C. § 1464, which governs the
    broadcast of indecent or obscene material.[^49] These violations are
    alleged to have taken place during the broadcast of Howard Stern's
    radio program. They also allege that CBS has permitted its radio
    stations to broadcast "threatening remarks" against individuals who
    might file a complaint with the Commission, law enforcement agencies
    or sponsors regarding the Howard Stern show. Finally, the Stern
    Petitioners contend that CBS should be held liable for the actions
    of an alleged serial rapist in New York who apparently was a
    listener of the Howard Stern show. In its opposition, CBS argues,
    among other things, that a September 1, 1995 Settlement Agreement
    between Infinity and the Commission specifically precluded use of
    material aired prior to the agreement as a basis for a petition. CBS
    also argues that any material aired prior to June 4, 1998 is
    irrelevant as the Commission has already considered, and passed
    upon, the qualifications of CBS within the context of a separate
    transfer of control application.

45. Section 310(d) of the Communications Act, by incorporating Section
    308(b), requires us to consider a proposed transferee's character
    qualifications before granting a transfer of control application.
    This consideration entails examination of the transferee's
    compliance with the Communications Act and with our rules, including
    our indecency restrictions.[^50] On December 26, 1996, the
    Commission approved the transfer of control of Infinity radio
    stations to Westinghouse Electric Corporation.[^51] At that time,
    the Commission dismissed two letters alleging that Infinity
    committed "past and pending" violations of federal indecency law by
    broadcasting the "Howard Stern Show," because the letters failed to
    raise a substantial or material question of fact concerning indecent
    programming. [^52] The Commission also noted that certain broadcasts
    of the "Howard Stern Show," even if they were indecent, did not
    disqualify Infinity as a Commission licensee.[^53] On December 1,
    1997, Westinghouse Electric Corporation, having merged with CBS
    prior to purchasing Infinity, changed its name to CBS Corporation,
    and, on June 4, 1998, purchased the stock of American Radio Systems
    pursuant to Commission consent granted on May 27, 1998.[^54] The
    Stern Petitioners base their instant petition to deny on transcripts
    of broadcasts aired prior to the May 27, 1998 order. Not only has
    the Commission considered substantially the same issues within the
    context of our approval of the Westinghouse/Infinity merger, but has
    reviewed, and passed upon, CBS's basic qualifications when approving
    the transfer of control of American Radio Systems stations. These
    issues have been decided by the Commission and will not be
    revisited.

46. With respect to the allegation that CBS permitted their radio
    stations to broadcast "threatening remarks" from Howard Stern, the
    Commission has already determined that the allegedly threatening
    remarks made by Mr. Stern were "'off-the-cuff' comments complaining
    about those listeners who allegedly \[\] paraphrased his material
    incorrectly," and were not "calculated to threaten or intimidate"
    those complaining about his broadcasts.[^55] We see no reason to
    alter this conclusion in the context of this application.

47. Finally, we reject the argument that CBS should be held liable for
    the actions of an alleged rapist in New York who happened to be a
    listener to the program. Absent some tangible, causal link, such as
    direct incitement, we will not hold a broadcast station liable for
    the actions of any or all of its listeners. Consequently, for the
    reasons set forth above, we deny the petition filed by Al Westcott,
    Glenn and Kathleen Benfield, and Tom Blackwell.

VII\. Administrative Matters

48. We have reviewed the proposed merger and the related pleadings and
    find that the applicants are fully qualified and that grant of the
    transfer of control of the CBS broadcast stations to Viacom will
    serve the public interest, convenience, and necessity.

49. ACCORDINGLY, IT IS ORDERED, That the petitions to deny filed by the
    American Cable Association, the National Black Media Coalition, the
    WEYS Television Corporation, and the Stern Petitioners ARE DENIED,
    and the letter filed by A.H. Belo Corporation in opposition to the
    applications IS DENIED.

50. IT IS FURTHER ORDERED, That the request for 24 months to come into
    compliance with the Dual Network Rule, Section 73.658(g), IS DENIED,
    however, we GRANT a temporary 12-month period from the date of the
    consummation of the transaction in order to allow Viacom/CBS to come
    into compliance with the Dual Network Rule.

51. IT IS FURTHER ORDERED, That the request for 24 months to come into
    compliance with the national television ownership cap, Section
    73.3555(e), IS DENIED, however, we GRANT a temporary 12-month period
    from the date of the consummation of the transaction in order to
    allow Viacom/CBS to come into compliance with our national
    television ownership cap.

52. IT IS FURTHER ORDERED, That the requests for 6 months to come into
    compliance with the radio-television cross-ownership rule, Section
    73.3555(c), in the Los Angeles, Chicago, Dallas/Ft. Worth,
    Sacramento and Baltimore markets ARE GRANTED, but within 6 months of
    consummation of the transaction, Viacom/CBS is directed to file the
    applications necessary to bring it into compliance in all five
    markets.

53. IT IS FURTHER ORDERED, That continued television satellite
    authorization, pursuant to Note 5 of Section 73.3555, for KCCO-TV,
    Alexandria, Minnesota and KCCW-TV, Walker, Minnesota, satellite
    stations of WCCO-TV, Minneapolis, Minnesota IS GRANTED, and a waiver
    of the main studio rule, Section 73.1125(a), to permit operation of
    WJMN-TV, Escanaba, Michigan without a local main studio IS GRANTED.

54. IT IS FURTHER ORDERED, That, pursuant to the request of Viacom and
    Section 1.103, this order is effective upon adoption.

55. Accordingly, IT IS ORDERED, That the applications for consent to the
    transfer of control of the CBS broadcast stations, applications
    BTCCT, BTCH, BTC, BTCTT, BTCTTL, BTCFTB, BTCFT 19991116ABA-AIN, as
    listed in Exhibit A, ARE GRANTED.

**FEDERAL COMMUNICATIONS COMMISSION**

Magalie Roman Salas

Secretary

EXHIBIT A

CBS Corporation seeks consent to transfer control of the following
stations (TV, TV Translator, AM,

FM, FM Booster, and FM Translator) from the shareholders of CBS
Corporation to Viacom Inc.:

  ----------- ------------ ------------------ -------------------- ----------
  Station     Service      Community of       File Number          Facility
                           License                                 ID Number

  KCBS-TV     TV           Los Angeles, CA    BTCCT-19991116ABC    9628

  KDKA-TV     TV           Pittsburgh, PA     BTCCT-19991116AAX    25454

  KEYE-TV     TV           Austin, TX         BTCCT-19991116AAY    33691

  KYW-TV      TV           Philadelphia, PA   BTCCT-19991116AAZ    25453

  WBZ-TV      TV           Boston, MA         BTCCT-19991116ABA    25456

  WJZ-TV      TV           Baltimore, MD      BTCCT-19991116ABB    25455

  KCCO-TV     TV           Alexandria, MN     BTCCT-19991116ABD    9632

  KCCW-TV     TV           Walker, MN         BTCCT-19991116ABE    9640

  KPIX-TV     TV           San Francisco, CA  BTCCT-19991116ABF    25452

  WBBM-TV     TV           Chicago, IL        BTCCT-19991116ABG    9617

  WCBS-TV     TV           New York, NY       BTCCT-19991116ABH    9610

  WCCO-TV     TV           Minneapolis, MN    BTCCT-19991116ABI    9629

  WFRV-TV     TV           Green Bay, WI      BTCCT-19991116ABJ    9635

  WJMN-TV     TV           Escanaba, MI       BTCCT-19991116ABK    9630

  WWJ-TV      TV           Detroit, MI        BTCCT-19991116ABL    72123

  KTVT        TV           Dallas-Fort Worth, BTCCT-19991116ABM    23422
                           TX                                      

  KCNC-TV     TV           Denver, CO         BTCCT-19991116ABN    47903

  WFOR-TV     TV           Miami, FL          BTCCT-19991116ABO    47902

  KUSG        TV           St. George, UT     BTCCT-19991116ABP    35822

  KUTV        TV           Salt Lake City, UT BTCCT-19991116ABQ    35823

  K64AA       TV           Spring Glen, UT    BTCTT-19991116ABR    35838
              Translator                                           

  K67AA       TV           Aurora, UT         BTCTT-19991116ABS    35839
              Translator                                           

  K53CF       LPTV         Aurora, UT         BTCTTL-19991116ABT   35837

  K64BO       LPTV         Delta, UT          BTCTTL-19991116ABU   35840

  K43AE       LPTV         Myton, UT          BTCTTL-19991116ABV   35836

  KCBS        AM           Los Angeles, CA    BTC-19991116ABW      9637

  KFWB        AM           Los Angeles, CA    BTC-19991116ABX      25457

  KIKK        AM           Pasadena, TX       BTC-19991116ABY      25450

  KILT        AM           Houston, TX        BTC-19991116ABZ      25440

  KMOX        AM           St. Louis, MO      BTC-19991116ACA      9638

  KNX         AM           Los Angeles, CA    BTC-19991116ACB      9616

  KRLD        AM           Dallas, TX         BTC-19991116ACC      59820

  KYCY        AM           San Francisco, CA  BTC-19991116ACD      25458

  WBBM        AM           Chicago, IL        BTC-19991116ACE      9631

  WBZ         AM           Boston, MA         BTC-19991116ACF      25444

  WCBS        AM           New York, NY       BTC-19991116ACG      9636

  WCCO        AM           Minneapolis, MN    BTC-19991116ACH      9642

  WINS        AM           New York, NY       BTC-19991116ACI      25451

  WMAQ        AM           Chicago, IL        BTC-19991116ACJ      25445

  WWJ         AM           Detroit, MI        BTC-19991116ACK      9621

  KCBS-FM     FM           Los Angeles, CA    BTCH-19991116ACL     9612

  KIKK-FM     FM           Houston, TX        BTCH-19991116ACM     25449

  KILT-FM     FM           Houston, TX        BTCH-19991116ACN     25439

  KITS        FM           San Francisco, CA  BTCH-19991116ACO     18510

  KITS-FM1    FM Booster   Pleasant Hill, CA  BTCFTB-19991116ACP   18524

  KITS-FM2    FM Booster   Pleasanton, CA     BTCFTB-19991116ACQ   18521

  KITS-FM3    FM Booster   San Francisco, CA  BTCFTB-19991116ACR   18519

  KITS-FM4    FM Booster   Antioch, CA        BTCFTB-19991116ACS   18526

  KLLC        FM           San Francisco, CA  BTCH-19991116ACT     9624

  KRQR-FM1    FM Booster   San Ramon/Dublin,  BTCFTB-19991116ACU   9633
                           CA                                      

  KLSX        FM           Los Angeles, CA    BTCH-19991116ACV     25075

  KTWV        FM           Los Angeles, CA    BTCH-19991116ACW     25437

  WARW        FM           Bethesda, MD       BTCH-19991116ACX     9619

  WBBM-FM     FM           Chicago, IL        BTCH-19991116ACY     9613

  WCBS-FM     FM           New York, NY       BTCH-19991116ACZ     9611

  WHFS        FM           Annapolis, MD      BTCH-19991116ADA     72177

  WKRK-FM     FM           Detroit, MI        BTCH-19991116ADB     9618

  WLTE        FM           Minneapolis, MN    BTCH-19991116ADC     9641

  WNEW        FM           New York, NY       BTCH-19991116ADD     25442

  WODS        FM           Boston, MA         BTCH-19991116ADE     9639

  WVMV        FM           Detroit, MI        BTCH-19991116ADF     25448

  WXRT        FM           Chicago, IL        BTCH-19991116ADG     16853

  WZGC        FM           Atlanta, GA        BTCH-19991116ADH     13805

  WZLX        FM           Boston, MA         BTCH-19991116ADI     13806

  KRTH        FM           Los Angeles, CA    BTCH-19991116ADJ     28631

  WUSN        FM           Chicago, IL        BTCH-19991116ADK     28620

  KLUV        AM           Dallas, TX         BTC-19991116ADL      25375

  KLUV-FM     FM           Dallas, TX         BTCH-19991116ADM     67195

  KYNG        FM           Dallas, TX         BTCH-19991116ADN     1087

  WXYT        AM           Detroit, MI        BTC-19991116ADO      28627

  WQYK-FM     FM           St. Petersburg, FL BTCH-19991116ADP     28619

  KHVN        AM           Fort Worth, TX     BTC-19991116ADQ      63780

  KRBV        FM           Fort Worth, TX     BTCH-19991116ADR     63779

  WSCR        AM           Chicago, IL        BTC-19991116ADS      28630

  WJMK        FM           Chicago, IL        BTCH-19991116ADT     28621

  KFRC        AM           San Francisco, CA  BTC-19991116ADU      1082

  KROQ-FM     FM           Pasadena, CA       BTCH-19991116ADV     28622

  WPGC-FM     FM           Morningside, MD    BTCH-19991116ADW     28632

  WOMC        FM           Detroit, MI        BTCH-19991116ADX     28623

  WYCD        FM           Detroit, MI        BTCH-19991116ADY     1089

  WFAN        AM           New York, NY       BTC-19991116ADZ      28617

  KDKA        AM           Pittsburgh, PA     BTC-19991116AEA      25443

  KYW         AM           Philadelphia, PA   BTC-19991116AEB      25441

  WPHT        AM           Philadelphia, PA   BTC-19991116AEC      9634

  WOGL-FM     FM           Philadelphia, PA   BTCH-19991116AED     9622

  WYSP        FM           Philadelphia, PA   BTCH-19991116AEE     28628

  WIP         AM           Philadelphia, PA   BTC-19991116AEF      28626

  KYCY-FM     FM           San Francisco, CA  BTCH-19991116AEG     1092

  KYCY-FM1    FM Booster   Pleasanton, CA     BTCFTB-19991116AEH   1083

  WQYK        AM           Seffner, FL        BTC-19991116AEI      28629

  KVIL-FM     FM           Highland Park, TX  BTCH-19991116AEJ     28624

  WJFK-FM     FM           Manassas, VA       BTCH-19991116AEK     28625

  WCKG        FM           Elmwood Park, IL   BTCH-19991116AEL     71283

  KFRC-FM     FM           San Francisco, CA  BTCH-19991116AEM     1084

  KFRC-FM3    FM Booster   Walnut Creek, CA   BTCFTB-19991116AEN   1090

  KOAI        FM           Fort Worth, TX     BTCH-19991116AEO     23440

  WLIF-FM     FM           Baltimore, MD      BTCH-19991116AEP     28637

  WJFK        AM           Baltimore, MD      BTC-19991116AEQ      28636

  KRLA        AM           Pasadena, CA       BTC-19991116AER      25076

  WPGC        AM           Morningside, MD    BTC-19991116AES      28638

  WXYV        FM           Baltimore, MD      BTCH-19991116AET     63778

  WAOK        AM           Atlanta, GA        BTC-19991116AEU      63775

  WVEE        FM           Atlanta, GA        BTCH-19991116AEV     63776

  WBCN        FM           Boston, MA         BTCH-19991116AEW     26897

  KSGS        AM           St. Louis Park, MN BTC-19991116AEX      57833

  WXPT        FM           St. Louis Park, MN BTCH-19991116AEY     54425

  WXRK        FM           New York, NY       BTCH-19991116AEZ     58579

  WBGR        AM           Baltimore, MD      BTC-19991116AFA      43864

  WBMD        AM           Baltimore, MD      BTC-19991116AFB      1913

  KEZR        FM           San Jose, CA       BTCH-19991116AFC     1176

  KLUE        FM           Soledad, CA        BTCH-19991116AFD     54968

  KMJ         AM           Fresno, CA         BTC-19991116AFE      26923

  KOOR        AM           Clovis, CA         BTC-19991116AFF      29429

  KRAK        AM           Sacramento, CA     BTC-19991116AFG      65482

  KSFN        AM           North Las Vegas,   BTC-19991116AFH      47745
                           NV                                      

  KUPL        AM           Portland, OR       BTC-19991116AFI      26926

  KXNT        AM           North Las Vegas,   BTC-19991116AFJ      33068
                           NV                                      

  WECK        AM           Cheektowaga, NY    BTC-19991116AFK      1914

  WTIC        AM           Hartford, CT       BTC-19991116AFL      66464

  KBAY        FM           Gilroy, CA         BTCH-19991116AFM     35401

  KBBT-FM     FM           Banks, OR          BTCH-19991116AFN     12551

  KFRG        FM           San Bernardino, CA BTCH-19991116AFO     1241

  KINK-FM     FM           Portland, OR       BTCH-19991116AFP     53068

  KLUC-FM     FM           Las Vegas, NV      BTCH-19991116AFQ     47744

  KMGV        FM           Fresno, CA         BTCH-19991116AFR     18409

  KMXB        FM           Henderson, NV      BTCH-19991116AFS     51676

  KMXV        FM           Kansas City, MO    BTCH-19991116AFT     2446

  KMZQ-FM     FM           Henderson, NV      BTCH-19991116AFU     12560

  KOQO-FM     FM           Fresno, CA         BTCH-19991116AFV     29296

  KQBT        FM           Taylor, TX         BTCH-19991116AFW     63201

  KRNC        FM           Fresno, CA         BTCH-19991116AFX     26933

  KSKS        FM           Fresno, CA         BTCH-19991116AFY     29924

  KSRC        FM           Kansas City, MO    BTCH-19991116AFZ     11279

  KUFO        FM           Portland, OR       BTCH-19991116AGA     26932

  KVSR        FM           Fresno, CA         BTCH-19991116AGB     18406

  KXFG        FM           Sun City, CA       BTCH-19991116AGC     63912

  KXTE        FM           Pahrump, NV        BTCH-19991116AGD     2100

  KYMX        FM           Sacramento, CA     BTCH-19991116AGE     72116

  KZZ0        FM           Sacramento, CA     BTCH-19991116AGF     65481

  K232CO      FM           Boulder City, NV   BTCFT-19991116AGG    51674
              Translator                                           

  K272DD      FM           Pahrump, NV        BTCFT-19991116AGH    51673
              Translator                                           

  WAZU        FM           Circleville, OH    BTCH-19991116AGI     64717

  WBMX        FM           Boston, MA         BTCH-19991116AGJ     1901

  WBUF        FM           Buffalo, NY        BTCH-19991116AGK     53699

  WCMF-FM     FM           Rochester, NY      BTCH-19991116AGL     1905

  WEAT-FM     FM           West Palm Beach,   BTCH-19991116AGM     29567
                           FL                                      

  WGRR        FM           Hamilton, OH       BTCH-19991116AGN     72126

  WIRK-FM     FM           West Palm Beach,   BTCH-19991116AGO     1918
                           FL                                      

  WJYE        FM           Buffalo, NY        BTCH-19991116AGP     1915

  WKRQ        FM           Cincinnati, OH     BTCH-19991116AGQ     11276

  WLLD        FM           Holmes Beach, FL   BTCH-19991116AGR     18527

  WLVQ        FM           Columbus, OH       BTCH-19991116AGS     11277

  WPXY-FM     FM           Rochester, NY      BTCH-19991116AGT     53966

  WQSR        FM           Catonsville, MD    BTCH-19991116AGU     1916

  WRBQ-FM     FM           Tampa, FL          BTCH-19991116AGV     11943

  WRCH        FM           New Britain, CT    BTCH-19991116AGW     1910

  WRMM-FM     FM           Rochester, NY      BTCH-19991116AGX     1907

  WSJT        FM           Lakeland, FL       BTCH-19991116AGY     51987

  WTIC-FM     FM           Hartford, CT       BTCH-19991116AGZ     66465

  WWMX        FM           Baltimore, MD      BTCH-19991116AHA     74196

  WYLX        FM           Lebanon, OH        BTCH-19991116AHB     40915

  WYRK        FM           Buffalo, NY        BTCH-19991116AHC     1908

  WYUU        FM           Safety Harbor, FL  BTCH-19991116AHD     18512

  WZMX        FM           Hartford, CT       BTCH-19991116AHE     1900

  WZNE        FM           Brighton, NY       BTCH-19991116AHF     6859

  WNKS        FM           Charlotte, NC      BTCH-19991116AHG     53975

  WSOC-FM     FM           Charlotte, NC      BTCH-19991116AHH     20339

  WSSS        FM           Charlotte, NC      BTCH-19991116AHI     20338

  KBEQ-FM     FM           Kansas City, MO    BTCH-19991116AHJ     48961

  KFKF-FM     FM           Kansas City, MO    BTCH-19991116AHK     34431

  KMPS        AM           Seattle, WA        BTC-19991116AHL      6387

  KBKS        FM           Tacoma, WA         BTCH-19991116AHM     27020

  WFNZ        AM           Charlotte, NC      BTC-19991116AHN      53974

  WGIV        AM           Charlotte, NC      BTC-19991116AHO      6585

  WBAV-FM     FM           Gastonia, NC       BTCH-19991116AHP     6587

  WDSY-FM     FM           Pittsburgh, PA     BTCH-19991116AHQ     18525

  WPEG        FM           Concord, NC        BTCH-19991116AHR     6586

  W298AE      FM           New Brighton, PA   BTCFT-19991116AHS    18514
              Translator                                           

  WBZZ        FM           Pittsburgh, PA     BTCH-19991116AHT     20350

  WZPT        FM           New Kensington, PA BTCH-19991116AHU     20351

  KHTK        AM           Sacramento, CA     BTC-19991116AHV      20352

  KNCI        FM           Sacramento, CA     BTCH-19991116AHW     20353

  KXOA        FM           Roseville, CA      BTCH-19991116AHX     11273

  KMPS-FM     FM           Seattle, WA        BTCH-19991116AHY     20356

  KYCW        FM           Seattle, WA        BTCH-19991116AHZ     1091

  KZOK-FM     FM           Seattle, WA        BTCH-19991116AIA     20357

  KEZK-FM     FM           St. Louis, MO      BTCH-19991116AIB     13507

  KEZN        FM           Palm Desert, CA    BTCH-19991116AIC     11747

  KYKY        FM           St. Louis, MO      BTCH-19991116AID     20358

  WHOK-FM     FM           Lancaster, OH      BTCH-19991116AIE     72311

  W272AT      FM           Columbus, OH       BTCFT-19991116AIF    72310
              Translator                                           

  KJCE        AM           Rollingwood, TX    BTC-19991116AIG      1243

  KAMX        FM           Luling, TX         BTCH-19991116AIH     48651

  KKMJ-FM     FM           Austin, TX         BTCH-19991116AII     66489

  WNCX        FM           Cleveland, OH      BTCH-19991116AIJ     41390

  KKJZ        FM           Lake Oswego, OR    BTCH-19991116AIK     4115

  KUPL-FM     FM           Portland, OR       BTCH-19991116AIL     4114

  K251AD      FM           Beaverton, OR      BTCFT-19991116AIM    4116
              Translator                                           

  KSFM        FM           Woodland, CA       BTCH-19991116AIN     59598
  ----------- ------------ ------------------ -------------------- ----------

**In the Matter of the Application of Shareholders of CBS Corporation
(Transferor)**

**And Viacom, Inc. (Transferee) For Transfer of Control of CBS
Corporation and**

**Certain Subsidiaries, Licensees of KCBS-TV, Los Angeles, CA *et al*.**

**Statement of Commissioner Harold W. Furchtgott-Roth,**

**Concurring in Part and Dissenting in Part**

I concur in the fundamental decision to grant CBS's Application to
transfer radio licenses to Viacom, Inc. I also concur in the Order's
disposition of matters relating to the dual network rule, national
ownership cap, local television ownership rules, satellite waivers, and
petitions to deny this transfer. Although I strongly support timely
deregulatory action on our ownership rules in the context of the
broadcast biennial review, I must at the same time acknowledge their
current legal force and effect and therefore agree with their
application to the instant license transfer request.

I must dissent, however, from application of the radio-television cross
ownership rule to CBS/Viacom because that rule shrinks the combined
entity's statutory right to local radio ownership. To my mind, such a
result is in derogation of statutory right and thus untenable under the
Administrative Procedure Act. *See* 5 U.S.C. section 706 (providing that
a "reviewing court shall . . . hold unlawful and set aside agency action
. . . found to be . . . short of statutory right").

As I stated in last year's review of local broadcast ownership rules:

> I believe that limitations on radio ownership under the
> one-to-a-market rule that constrict the statutory radio ownership caps
> in section 202(b) of the Telecommunications Act of 1996 are legally
> unsound. As \[here\],there are instances where ownership of a
> television station in addition to radio stations will trigger
> application of the one-to-a-market rule, which may impose lower caps
> on radio ownership than does section 202(b).

Dissenting Statement of Commissioner Harold W. Furchtgott-Roth, *In the
Matter of Review of the Commission\'s Regulations Governing Television
Broadcasting and in the Matter of Television Satellite Stations Review
of Policy and Rules,* 14 FCC Rcd. 12,903 (rel. Aug. 6, 1999) ("*Local
Ownership Report*").

For example, under section 202(b), a broadcaster is affirmatively and
specifically authorized to own as many as 8 stations in certain local
markets. *See* 47 U.S.C. section 202(b) ("\[I\]n a radio market with 45
or more commercial radio stations, a party may own, operate, or control
up to 8 commercial radio stations, not more than 5 of which are in the
same service."). But under the Commission's one-to-a-market rule, which
was promulgated pursuant to the generalized public interest standard, a
party may *not*, contrary to the express language of section 202(b), own
8 radio stations if it happens to also own a television station in that
market. In such a situation, the party can own only 1 television and 7
radio stations or 2 television and 6 radio stations. *See Local
Ownership Report* at para. 9 & n.19.

This contraction of statutory ownership rights is exactly what happened
to CBS/Viacom in the Sacramento, Baltimore, Los Angeles, Chicago, and
Dallas-Fort Worth markets. *See* *Memorandum Opinion & Order* at paras.
29-36. Under section 202(b), as long as there are 45 radio stations in
the market (an issue the Order does not even address), CBS/Viacom is by
federal statute *affirmatively entitled* to own 8 radio stations. Yet by
dint of the radio-television cross-ownership rule, the Commission forces
the company to divest itself of property in order to fall within a
wholly regulatory, more restrictive limit.

> Again, as I have previously explained:
>
> Nothing in section 202(b). . . indicates that radio ownership rights
> are contingent on non-ownership of a television station. Section
> 202(b) is not phrased in the conditional; it does not say that
> ownership of other kinds of communications properties should adversely
> affect the rights established by that section. Nor are the ownership
> rights created there limited to \"radio-*only*\" combinations, as the
> Commission \[calls them\]; rather, the provision simply speaks of
> radio ownership, without reference to broadcast combinations.
>
> The one-to-a-market rule is, of course, based on the generalized
> \"public interest\" standard, whereas the caps established in 202(b)
> are very specific. Regulations promulgated under the general public
> interest grant of authority should not trump such particularized
> decisions by Congress. In short, the Commission cannot by rulemaking
> shrink statutorily granted ownership rights.

Dissenting Statement of Commissioner Harold W. Furchtgott-Roth, *Local
Ownership Report*.

While I have my policy and even constitutional concerns with the other
ownership limits applied today and hope to see them soon repealed or
modified, none of them is clearly in derogation of a positive statutory
right to ownership at defined levels. Because this is true of the
radio-television cross-ownership rule, its operation in this Order
appears to violate the Administrative Procedure Act. I cannot vote for
such action, especially where, as here, the limit in question is not
statutorily required.

Finally, I note my hope and expectation that other license transfer
applicants will be subject to the same straightforward approach to
section 309 taken in this Order -- namely, application of *existing*
statutory provisions and Commission rules to the proposed transfer,
without a separate (and usually more restrictive) analysis taken
pursuant to the public interest standard. I also hope and expect that
other license transfer applicants will receive the same reasonable
treatment when it comes to objections grounded in antitrust theory --
that is, deferral to the Department of Justice. *See Memorandum Opinion
and Order* at para. 16 (suggesting that concerns regarding potential
abuse of market power should be addressed not by the Commission but by
antitrust authorities); *id.* at n. 13 (noting that DOJ has examined the
specific issue of concentration in program supply markets and thus
declining to address the matter).

For the foregoing reasons, I concur in part but dissent from the
relevant radio-television part of this decision.

#  {#section .unnumbered}

#   {#section-1 .unnumbered}

#  mAY 3, 2000 {#may-3-2000 .unnumbered}

**[SEPARATE STATEMENT OF COMMISSIONER GLORIA TRISTANI]{.underline}**

*Re: CBS-Viacom Merger*

The Commission's Order approving the merger between CBS and Viacom is
most notable for what it fails to address. As mystery readers know,
sometimes it is the dog that does not bark that explains a situation's
underlying reality.

***Diversity***

First, the Order completely ignores the effect of the CBS-Viacom merger
on one of the fundamental purposes of the Communications Act --
maintaining a diversity of media voices.[^56] The potential
concentration of viewpoints on television is especially important.
Television is still the means by which most Americans get their news and
information, and is still the medium that children spend far more time
with than any other. [^57]

One would never know from the Commission's Order that this merger
involves the combination of two of the behemoths of the media industry.
CBS owns, among other interests, the CBS network (with over 200
affiliates), 20 television stations, 162 radio stations, cable networks
TNN and Country Music Television, King World and Eyemark Entertainment.
Viacom owns, among other interests, the UPN network, 17 television
stations, Paramount Pictures, Paramount Television, Spelling
Entertainment Group, Blockbuster Video, Simon and Schuster, and cable
networks MTV, Nickelodeon, Nick at Nite, VH-1, Showtime, TV Land and the
Movie Channel.

Will the combination of these assets give one entity too much control
over the marketplace of ideas? The Commission provides no analysis, and,
most disturbing, does not even ask the question. The Commission's
failure to examine this issue constitutes an abdication of its
responsibility to ensure that the merger will serve the public interest
and effectuate the purposes of the Communications Act.[^58] Ultimately,
the American public will pay the price if they do not have meaningful
access to the diverse and antagonistic viewpoints that democratic
deliberation requires.

I express no opinion on the results of such a diversity analysis in this
case. But the Commission's failure to even raise the issue is an ominous
development for those who are looking to the Commission to examine these
mega-mergers in their broader context, rather than simply as a
mechanical exercise to verify compliance with specific rules.

### Radio Market Definition {#radio-market-definition .unnumbered}

Second, the Commission fails to acknowledge that it shifts the
definition of "radio market" to suit its purposes. In particular, the
Commission ignores the conflict between the definition of radio "market"
it applies to the one-to-a-market rule and the definition of radio
"market" that applies to the local radio ownership cap rules. Put
simply, under the market definition adopted for the one-to-a-market
rule, a radio station is present only in the Arbitron market to which it
is assigned (unless its contour completely encompasses the city of
license of a television station in another market, as CBS's San
Francisco radio station KFRC(AM) does in Sacramento). By contrast, under
the local ownership cap rules, a radio "market" is defined as all
stations with signal contours that overlap the commonly-owned stations,
regardless of the Arbitron market to which those stations are assigned.
The Order's failure to address the conflicting market definitions is all
the more glaring because the one-to-a-market and local ownership cap
rules are contained in the very same section of the Commission's rules
(Section 73.3555).

I understand the desire to pretend that the local ownership cap rules do
not exist. As I have written on several occasions, those rules are
irrational and there is no defending them.[^59] One of the problems is
that a radio market definition based on overlapping signal contours
often results in markets that bear little relation to reality.[^60] The
Order implicitly agrees, rejecting the notion that radio markets should
be defined by overlapping signal contours. Instead, the Order looks to
the markets established by a commercial ratings service as a more
appropriate reflection of which stations actually serve particular
listeners. Logically, the Commission's shifting definitional approach
makes no sense. Either radio stations with overlapping signal contours
should count as being in the same "market" or they should not. They
cannot count as being "in the market" for one part of Section 73.3555
and then "out of the market" for another.

Beyond the illogic, these conflicting market definitions have a clear
real-world effect: they permit more consolidation than if the Commission
applied a consistent market definition. For the local ownership caps,
the more stations that count as being "in the market" the greater the
consolidation, because the rules provide for increasing levels of
ownership as the number of stations in a market increases. A radio
market definition based on signal contour overlaps can dramatically
increase the number of stations in the "market" as distant stations
whose signals overlap with the outermost reaches of stations in the
market are swept into the count. In the recent situation in Wichita,
Kansas, for example, the Commission's signal contour approach more than
doubled the number of stations that Arbitron assigned to the Wichita
market \-- from 24 to 52 stations. That increase meant that an entity
could own up to eight stations in Wichita, rather than only six that
would be possible under Arbitron's station count. Similarly, CBS owns 5
FM stations in the 38-station Sacramento Arbitron market. But in a
38-station market, CBS would be limited to no more than 4 FM stations.
In order to be able to own a fifth FM station, CBS must rely on
out-of-market stations with overlapping signal contours as being "in the
market."

For the one-to-a-market rule, the consequences of using a signal contour
method are reversed \-- bringing additional stations into the market
generally would *restrict* consolidation. Here, for instance, CBS-Viacom
will own one television and 7 radio stations in both the San Francisco
and Sacramento markets. That could not happen under a signal contour
approach, because the San Francisco stations would put CBS-Viacom over
the one-to-a-market rule limit in Sacramento, and vice versa.

In other words, the Commission treats the San Francisco and Sacramento
stations as being in the same market to permit a level of consolidation
that otherwise would not be possible, but then it treats them as being
in separate markets when counting them together would limit
consolidation under other rules. It's tempting to say that the
Commission simply adopts whatever definition of radio market will
maximize consolidation, regardless of logic or consistency. One might be
able to dismiss such a charge as cynical, but not as inaccurate.

### Conclusion {#conclusion .unnumbered}

Those who are counting on the Commission to use its public interest
authority to scrutinize the impact of huge media mergers should be
disheartened by this decision. The Commission shows little sensitivity
to the broader context in which these mergers are taking place, and
little stomach for limiting consolidation based on diversity concerns.
The sound of a dog not barking is a clue; the sound of a watchdog not
barking is a problem.

[^1]: A complete list of the applications filed and the licenses to be
    transferred is attached as Exhibit A.

[^2]: CBS and Viacom argued that the various petitioners do not have
    standing. However, we have reviewed the petitions and will address
    the arguments raised in them. In addition to the petitioners to
    deny, a number of individuals filed letters commenting on the
    proceeding. Those letters have been reviewed and considered in
    reaching our decision here.

[^3]: CBS and Viacom served their oppositions on the petitioners by
    facsimile, relying on §1.4(h) of our rules. We wish to clarify that
    §1.47, not §1.4(h), governs service requirements in Commission
    proceedings. *See* 47 C.F.R. § 1.47. The reference in §1.4 as to how
    to treat service by facsimile or electronic mail only relates to
    timing issues that arise when such service is specifically
    authorized by our rules. It is not a blanket authorization of
    service by such means. In this proceeding, no party objected or
    claimed any prejudice due to the method of service, so we do not
    need to rule on the propriety of the service in this particular
    case.

[^4]: On April 28, 2000, Viacom filed an amendment pursuant to Section
    1.103 of our Rules requesting that the effective date of this order
    be the date of adoption. We will grant the request.

[^5]: Between them, the applicants also have interests in various
    program production companies, cable networks, publishing houses and
    record companies. This order only addresses the transfer of the
    various licensees and permittees regulated by the Commission.

[^6]: At the time of the application, NAI intended to create a new,
    wholly owned subsidiary, NAIRI, Inc. which would be the single
    majority shareholder of Viacom. In any event, Sumner Redstone would
    continue to control NAI and remain in control of Viacom.

[^7]: At the time the application was filed, Chris-Craft Industries,
    Inc. owned 50% of UPN. Pursuant to a buy/sell option, Viacom has
    acquired all of Chris-Craft's interest in UPN and is now the sole
    shareholder. Viacom amended the applications to reflect this
    transaction on March 27, 2000.

[^8]: 47 C.F.R. § 73.658(g). This provision implements § 202(e) of the
    Telecommunications Act of 1996).

[^9]: 47 C.F.R. §73.658(g)(2)

[^10]: NBMC claims that we should deny the applications just because the
    applicants have requested a reasonable time following any grant of
    the applications to come into compliance with our rules. It has long
    been Commission practice, however, in multi-station transactions to
    allow a reasonable time for parties to come into compliance with our
    rules. *See, e.g.*, *Multimedia, Inc.,* 11 FCC Rcd 4883 (1995).

[^11]: *See* Viacom Exhibit F.

[^12]: Sutherland on Statutory Construction, 2A, § 46.06, at 63 (4^th^
    ed. C. Sands, 1973)("It is a recognized principle that a statute
    should be construed so that effect is given to all provisions, so
    that no part will be inoperative or superfluous, void or
    insignificant."); *see also, Policy and Rules Concerning Rates for
    Competitive Common Carrier Services,* 84 FCC 2d 445, 508 (1981).

[^13]: 142 Cong. Rec. H1078-03, \*H1121.

[^14]: Belo, ACA and WEYS also allege that the proposed transaction will
    result in the program supply market becoming too concentrated and
    that the merged CBS/Viacom will exert undue market influence in that
    market. The Department of Justice examined this specific issue in
    connection with its review of the broader merger and determined not
    to intervene in the transaction. In our discretion, we conclude that
    no further action with respect to these matters is warranted based
    on the record here.

[^15]: *See, e.g., Multimedia, Inc.*, 11 FCC Rcd 4883 (1995).

[^16]: CBS/Viacom will program stations pursuant to out-of-market LMAs
    in the Fort Pierce-West Palm Beach, Florida, and Providence, Rhode
    Island - New Bedford, Massachusetts DMAs. In the Marquette,
    Wisconsin DMA, CBS/Viacom will own a satellite whose parent station
    is located in the Green Bay-Appleton, Wisconsin DMA. Pursuant to
    *Broadcast Television National Ownership Rules*, FCC 99-208, MM
    Docket No. 96-222, ¶¶ 20 and 29 (rel. August 6, 1999)("*Television
    National Ownership Rules ")*, all three DMAs are counted in
    determining CBS/Viacom's national audience reach.

[^17]: Every television station is assigned to a "designated market
    area" ("DMA") by the Neilsen ratings service. A station's DMA
    indicates the primary market for that stations service. The
    Commission uses these DMA's as the basis for several of the multiple
    ownership rules. *See, e.g.*, Review of the Commission's Regulations
    Governing Television Broadcasting, 14 FCC Rcd 12903 (1999).

[^18]: Telecommunications Act of 1996, § 202(c)(1); 47 C.F.R. §
    73.3555(e).

[^19]: *Id*.

[^20]: *Citing, e.g., Metromedia Radio and Television, Inc*., 102 FCC 2d
    1334 (1985), *aff'd Health Medicine and Policy Research Group v.
    FCC*, 807 F.2d 1038 (D.C. Cir. 1986).; *Storer Communications,
    Inc.*, 59 R.R.2d 611 (1985).

[^21]: *See* Viacom/CBS Application, Exhibit F.

[^22]: 14 FCC Rcd at 12903.

[^23]: All of the audience share statistics are based on the July 1999
    Nielsen Ratings, the most current statistics available at the time
    the parties filed the transfer of control applications.

[^24]: A Viacom television station will be also be added to the CBS
    radio/television combinations in each of the Boston, Detroit,
    Pittsburgh, Philadelphia and Dallas/Fort Worth markets.

[^25]: 14 FCC Rcd at 12947.

[^26]: *Id.*

[^27]: *Id.*, at 12950

[^28]: *Id.*, at 12947

[^29]: The merged entity will control the following television and radio
    station combinations: **Tampa-St. Petersburg** (CBS's WQYK(AM)
    Seffner, FL;WQYK-FM, St. Petersburg, FL; WYUU(FM), Safety Harbor,
    FL; WLLD(FM), Holmes Beach, FL WRBQ-FM, Tampa, FL; WSJT(FM),
    Lakeland, FL and Viacom's WTOG(TV), Channel 44, St. Petersburg, FL);
    **New York** (CBS's WCBS-TV, Channel 2; WINS(AM), WNEW(FM), WCBS-FM,
    WCBS(AM), WFAN(FM), WXRK(FM) all licensed to New York, NY);
    **Philadelphia** (CBS's KYW-TV, Channel 3; KYW(AM), WPHT(AM),
    WOGL-FM, WIP(AM), WYSP(FM) and Viacom's WPSG(TV), Channel 57 all
    licensed to Philadelphia, PA); Detroit (CBS's WWJ-TV, Channel 62;
    WVMV(FM), WWJ(AM), WKRK-FM, WOMC(FM), WYCD(FM), WXYT(AM) and
    Viacom's WKBD-TV, Channel 50 all licensed to Detroit, MI**); San
    Francisco** (CBS's KPIX-TV, Channel 5; KYCY(AM), KYCY-FM, KITS(FM),
    KCBS(AM), KLLC(FM), KFRC(AM), KFRC-FM all licensed to San Francisco,
    CA); **Boston** (CBS's WBZ-TV, Channel 4 WBMX(FM), WBZ(AM),
    WODS(FM), WBCN(FM), WZLX(FM) and Viacom's WSBK-TV, Channel 38, all
    licensed to Boston, MA); and **Seattle-Tacoma** (CBS's KMPS(AM),
    KMPS-FM, KYCW(FM), KZOK-FM, all licensed to Seattle, WA, KBKS(FM)
    and Viacom's KSTW(TV), Channel 11, both licensed to Tacoma, WA) .

[^30]: **Fort Pierce-West Palm Beach** (CBS's WIRK(FM), WEAT-FM licensed
    to West Palm Beach, FL and Viacom's WTVX(TV), Channel 34, Fort
    Pierce, FL); **Atlanta** (CBS's WZGC(FM), WAOK(AM), WVEE(FM) and
    Viacom's WUPA(TV), Channel 69, all licensed to Atlanta, GA);
    **Columbus** (CBS's WAZU(FM), Circleville, OH; WHOK(FM), Lancaster,
    OH and Viacom's WWHO, Channel 53, Chillicothe, OH); **Pittsburgh**
    (CBS's KDKA-TV, Channel 2, WDSY(FM), WBZZ(FM), KDKA(AM) all licensed
    to Pittsburgh, PA; WZPT(FM) New Kensington, PA and Viacom's
    WNPA(TV), Channel 19, Jeannette, PA); **Houston** (CBS's KIKK(AM),
    Pasadena, TX, KIKK-FM, KILT(AM), KILT-FM and Viacom's KTXH(TV),
    Channel 20, all licensed to Houston, TX); **Minneapolis** (CBS's
    WCCO-TV, Channel 4, WCCO(AM), WLTE(FM) all licensed to Minneapolis,
    MN, KSGS(AM), WXPT(FM) both licensed to St. Louis Park, MN);
    **Austin** (CBS's KEYE-TV, Channel 42, KKMJ-FM, both licensed to
    Austin, TX; KJCE(AM), Rollingwood, TX, KQBT(FM), Taylor, TX and
    KAMX(FM), Luling, TX).

[^31]: The radio-television cross-ownership rule is triggered when the
    Grade A contour of a television station encompasses the community of
    license of a radio station, or when the 1 mV/m contour of an FM
    station or the 2 mV/m contour of an AM station encompasses the
    community of license of a television station.

[^32]: *See Stockholders of Infinity Broadcasting Corp*., 12 FCC Rcd
    5012 (1996). *See also Shareholders of American Radio Systems
    Corporation*, 13 FCC Rcd 12430 (1998); *WHFS, Inc*., 12 FCC Rcd 3965
    (1997).

[^33]: *See, e.g. A T & T Corporation*, 13 FCC Rcd at 4633, 4644 (1998).

[^34]: *Media Communications Partners, L.P.*, 10 FCC Fcd 8116 (1995).

[^35]: In each of these markets, Viacom has decided to maintain control
    of the television stations in the combination.

[^36]: *Television Ownership Report,* 14 FCC Rcd at 12950.

[^37]: *See, e.g., Multimedia, Inc*. 11 FCC Rcd 4883, 4889 (1995);
    *Stockholders of CBS, Inc*., 11 FCC Rcd at 3755 (1995).

[^38]: *Television Ownership Order* at 12957.

[^39]: *See, e.g., The Providence Journal Company*, 12 FCC Rcd 2883
    (1997); *Argyle Television, Inc*., 12 FCC Rcd 10737 (1997).

[^40]: We require applicants for transfer of control to demonstrate
    compliance with the radio-television cross-ownership rule. However,
    for parties who were previously granted waivers conditioned on the
    outcome of the report and order, we have extended those conditional
    waivers for parties that do not comply with the modified
    radio-television cross-ownership rule until the conclusion of our
    biennial review in 2004.

[^41]: Section 73.1125(a) of the Commission's rules requires that a
    local main studio be maintained either within the station's
    community of license; within the principal community contour of any
    AM, FM or TV broadcast station licensed to the station's community
    of license; or within twenty-five miles from the reference
    coordinates of the center of its community of license. 47 CFR
    §73.1125(a). A station may be maintained beyond the limits set forth
    in Section 73.1125(a) where good cause exists, or "when doing so
    would be consistent with the operation of the station in the public
    interest." 47 CFR §73.1125(b)(2).

[^42]: ^.^

[^43]: *Television Satellite Stations,* 6 FCC Rcd at 4212.

[^44]: *Id.* at 4214

[^45]: *See Midwest Communications, Inc.,* 7 FCC Rcd 159 (1991);
    *Stockholders of CBS Inc.*, 11 FCC Rcd 3733 (1995).

[^46]: NBMC filed an amended petition to deny and intervene on January
    4, 2000. The substantive allegations in the amended and original
    petitions are the same.

[^47]: NBMC also makes a blanket accusation that the applications are
    "fraught with anti-trust Justice Department, Federal Trade
    Commission, Security \[sic\] and Exchange Commission and indeed
    certain Internal Revenue Service violations." NBMC does not,
    however, make any specific factual statements to support these
    vague, generalized allegations. Given this lack of particularity and
    substantiation, we conclude that no action on our part with respect
    to NBMC's assertions is warranted**.**

[^48]: *Galloway v.* FCC, 778 F2d 16, 20 (D.C. Cir. 1985); Hunger *in
    America*, 20 FCC 2d 143, 150 (1969).

[^49]: 18 U.S.C. § 1464 is reflected in our rules at 47 C.F.R. §
    73.3999.

[^50]: 47 U.S.C. § 310(d); *see also*, *Stockholders of CBS Inc.,* 11
    FCC Rcd 3733, 3739 (1995).

[^51]: *See Stockholders of Infinity Broadcasting Corporation*, 12 FCC
    Rcd 5012 (1996).

[^52]: *Id.*, at 5016, Footnote 1.

[^53]: *Id.; See also KLUV(FM)*, 10 FCC Rcd 4517, 4519 (1995);
    *KRTH(FM)*, 9 FCC Rcd 7112 (1994).

[^54]: *See Shareholders of American Radio Systems Corporation*, 13 FCC
    Rcd 12430 (1998).

[^55]: *Eagle Radio, Inc.,* 13 FCC Rcd 13869, 13871 (1998).

[^56]: *See, e.g.,* Communications Act, Section 257 (noting that one of
    the "policies and purposes" of the Communications Act favors a
    "diversity of media voices"); *Metro Broadcasting, Inc. v. FCC*, 497
    U.S. 547, 567 (1990) ("Safeguarding the public's right to receive a
    diversity of views and information over the airwaves is therefore an
    integral component of the FCC's mission"); *Turner Broadcasting
    System, Inc. v. FCC*, 512 U.S. 622, 663 (1994) ("\[I\]t has long
    been a basic tenet of national communications policy" that "the
    widest dissemination of information from diverse and antagonistic
    sources is essential to the welfare of the public"), *quoting United
    States v. Midwest Video Corp.*, 406 U.S. 649, 668 n.27, *quoting
    Associated Press v. United States*, 326 U.S. 1, 20 (1945).

[^57]: ^ ?^*Kaiser Family Foundation Report* (1999) (finding that, on
    average, children watch 2 hours and 46 minutes of television a day,
    compared to 48 minutes spent listening to CDs or tapes, the second
    most popular media activity).

[^58]: *See* Communications Act of 1934, Secs. 310(d) and 309(e);
    *Application of Telecommunications, Inc. and AT&T Corp.*, 14 FCC Rcd
    3160, 3168-69 (1999).

[^59]:
    ###  See, e.g., Press Statement of Commissioner Gloria Tristani re: Mass Media Bureau Approval of Radio License Transfers in Youngstown-Warren, Ohio and Lafayette, Louisiana (March 20, 2000); Press Statement of Commissioner Gloria Tristani re: Applications for Radio License Transfers in Augusta-Waterville, Maine (rel. Feb. 28, 2000); Press Statement of Commissioner Gloria Tristani re: Mass Media Bureau\'s granting of applications to transfer radio licenses from Fuller-Jeffrey Broadcasting to Citadel Broadcasting in Portland, Maine (rel. Aug. 19, 1999); Dissenting Statement of Commissioners Susan Ness and Gloria Tristani, In re Applications of Pine Bluff Radio, Inc. and Seark Radio, Inc. File Nos. BAL-970103EA, BALH-970103EB, BALH-970103EC (rel. April 12, 1999); Joint Statement of Commissioners Susan Ness and Gloria Tristani, In re Station KBYB(FM), El Dorado, Arkansas, 13 FCC Rcd 15685 (1998). {#see-e.g.-press-statement-of-commissioner-gloria-tristani-re-mass-media-bureau-approval-of-radio-license-transfers-in-youngstown-warren-ohio-and-lafayette-louisiana-march-20-2000-press-statement-of-commissioner-gloria-tristani-re-applications-for-radio-license-transfers-in-augusta-waterville-maine-rel.-feb.-28-2000-press-statement-of-commissioner-gloria-tristani-re-mass-media-bureaus-granting-of-applications-to-transfer-radio-licenses-from-fuller-jeffrey-broadcasting-to-citadel-broadcasting-in-portland-maine-rel.-aug.-19-1999-dissenting-statement-of-commissioners-susan-ness-and-gloria-tristani-in-re-applications-of-pine-bluff-radio-inc.-and-seark-radio-inc.-file-nos.-bal-970103ea-balh-970103eb-balh-970103ec-rel.-april-12-1999-joint-statement-of-commissioners-susan-ness-and-gloria-tristani-in-re-station-kbybfm-el-dorado-arkansas-13-fcc-rcd-15685-1998. .unnumbered}

    ###  {#section-2 .unnumbered}

[^60]:
    ###  See, e.g., Press Statement of Commissioner Gloria Tristani re: Mass Media Bureau Approval of Radio License Transfer in Wichita, Kansas*, (March 24, 2000) (although Arbitron assigned only 24 radio stations to the Wichita, Kansas market, the Mass Media Bureau counted 52 radio stations in the market under the contour overlap approach, including several Oklahoma stations whose signals did not even reach Kansas).*  {#see-e.g.-press-statement-of-commissioner-gloria-tristani-re-mass-media-bureau-approval-of-radio-license-transfer-in-wichita-kansas-march-24-2000-although-arbitron-assigned-only-24-radio-stations-to-the-wichita-kansas-market-the-mass-media-bureau-counted-52-radio-stations-in-the-market-under-the-contour-overlap-approach-including-several-oklahoma-stations-whose-signals-did-not-even-reach-kansas. .unnumbered}