**FEDERAL COMMUNICATIONS COMMISSION**

**Washington, D.C. 20554**

**In Reply Refer To:**

1800B3-AB

March 12, 2001

Brian M. Madden, Esq.

Leventhal, Senter & Lerman, PLLC

2000 K Street, N.W.

Suite 600

Washington, D.C. 20006-1809

Richard J. Bodorff, Esq.

Wiley Rein & Fielding

1776 K Street, N.W.

Washington, D.C. 20006

Re: WACL(FM), Elkton, VA, Fac. ID 63491

WKCY(AM), Harrisonburg, VA, Fac. ID 41815

WKCY-FM, Harrisonburg, VA, Fac. ID 41811

File Nos. BAL/BALH-20001204AIX-AIZ

Dear Counsel:

*Background.* The staff has under consideration an application seeking
consent to the assignment of the licenses for WACL(FM), Elkton, VA,
WKCY(AM), and WKCY-FM, Harrisonburg, VA from Mid Atlantic Network, Inc.
("Mid Atlantic") to Capstar TX Limited Partnership, an indirect wholly
owned subsidiary of Clear Channel Communications, Inc. ("Clear
Channel"). Also under consideration is a petition to deny filed by HJV
Limited Partnership and M. Belmont VerStandig, Inc. ("HJV/MBV"), two
commonly controlled entities. Based on the reasons set forth below, we
deny the petition and grant the assignment application.

HJV/MBV allege that grant of the proposed transaction would be
inconsistent with the Commission's statement, set forth in the pending
rulemaking on radio markets, that it would defer action on certain radio
merger cases. *See In the Matter of Definition of Radio Markets*, MM
Docket No. 00-244, FCC 00-427 (rel. Dec. 13, 2000) ("*NPRM*"). In
addition, they argue that if the Commission grants Clear Channel's
assignment application, then it also should grant HJV's pending
application seeking consent to acquire station WLTK(FM), Broadway, VA,
also located in the Harrisonburg, VA market (File No.
BALH-19991215AAY).[^1] HJV/MBV allege that the transactions raise
similar local concentration issues and thus the Commission is compelled
to act on the applications in a like manner.

*Discussion.* In the *NPRM* cited by HJV/MBV, the Commission sought
comment on whether and how to modify the current definition of a "radio
market" and the methodology it uses to count the number of stations in a
market. The Commission stated that during the pendency of the
rulemaking, it would defer any decisions "in cases raising concerns
about how we count the number of stations a party owns in a market until
the conclusion of the proceeding." *NPRM* at ¶14. However, contrary to
HJV/MBV's argument, this transaction does not fall into the category of
applications that we believe the Commission intended to defer.

As the Commission explained in the *NPRM*, it evaluates whether a
proposed transaction complies with statutory numerical ownership
caps[^2] by first determining the boundaries of each market created by
the transaction. Specifically, it looks to all stations that will be
commonly owned after the proposed transaction is consummated and groups
these stations into "markets" based on which stations have mutually
overlapping signal contours. It then determines the total number of
stations in a market by counting all stations whose principal community
contours overlap the principal community contours of *any* one or more
of the stations whose contours define the market. *See NPRM* at ¶¶3-4.

One of the issues raised in the *NPRM* is that, based on our current
methodology, a station owned by an applicant might not count as an
attributable interest in determining whether the applicant will comply
with the numerical ownership cap in a market because it does not overlap
all of the stations the applicant seeks to own in that market.
Nonetheless, that same station may count for purposes of determining the
total number of stations in that market because it overlaps the contour
of at least one station which defines the market. It was anomalous
cases\-- where an applicant's *own* existing holdings make a dispositive
contribution to the total number of stations in the market, thereby
"bumping" the applicant into a tier of permissible ownership that it
could not otherwise reach \-- that proved especially troubling to the
Commission in past proceedings and that it specifically focused on in
the *NPRM*.[^3] Likewise, it is these anomalous cases which we believe
the Commission intended to hold in abeyance pending the outcome of the
rulemaking. The Clear Channel transaction is not in this category of
cases. Specifically, there are a sufficient number of stations in each
of the five radio markets created by the transaction to permit Clear
Channel to attain the level of ownership it seeks without counting any
of Clear Channel's commonly owned stations as contributing to the total
number of stations in the market unless they also count toward Clear
Channel's ownership cap. Therefore, the application will not be deferred
pursuant to the *NPRM*.[^4]

We also note that there is no substantial and material question of fact
concerning the impact of this transaction on competition in the
Harrisonburg radio market. Mid Atlantic proposes only to transfer an
existing group of stations to Clear Channel. Current information in the
BIA database shows that the Mid Atlantic stations have a combined
advertising revenue share of 38.0%. The transfer will not increase the
advertising revenue share of the existing group or result in increased
levels of ownership concentration in the radio market. *See Shareholders
of AMFM, Inc.,* 15 FCC Rcd 16062, 16068 (2000). Therefore, under these
circumstances and based on our independent review of the record, we find
that the petition fails to raise a substantial and material question of
fact to warrant further inquiry.

Finally, we need not reach HJV/MBV's argument that we are compelled to
act simultaneously on HJV's application in order to treat the parties in
a consistent manner because we are today granting its application to
sell WBHB-FM, New Market, VA and acquire WLTK(FM), Broadway, VA. *See
Letter to David M. Silverman, Esq. from Linda Blair, Chief, Audio
Services Div., MMB (1800B3-TSN)*. We therefore dismiss as moot HJV/MBV's
petition to deny to the extent it argued for such action.

Accordingly, IT IS ORDERED, That the petition to deny filed by HJV
Limited Partnership and M. Belmont VerStandig, Inc. IS DISMISSED AS MOOT
to the extent indicated above, and is otherwise DENIED. IT IS FURTHER
ORDERED, That the application to assign WACL(FM), Elkton, VA, WKCY(AM),
Harrisonburg, VA and WKCY-FM, Harrisonburg, VA (File
Nos.BAL/BALH-20001204AIX-AIZ ) IS GRANTED.

Sincerely,

Linda Blair, Chief

Audio Services Division

Mass Media Bureau

cc: David M. Silverman, Esq.

[^1]: HJV proposes to sell station WBHB-FM, New Market, VA to
    Massanutten Broadcasting Company, Inc. In return it will acquire
    station WLTK(FM) and pay Massanutten an additional cash payment.
    Both stations are in the Harrisonburg market. Mid Atlantic filed a
    petition to deny the proposed swap arguing that it likely would have
    an anticompetitive effect on the market for radio advertising in
    Harrisonburg.

[^2]: *See* Section 202(b)(1) of the Telecommunications Act of 1996,
    establishing four tiers of permissible ownership. Specifically, in a
    radio market with 45 or more commercial stations, a party may own up
    to 8 commercial radio stations, not more than 5 of which are in the
    same service; in a radio market with between 30 and 44 commercial
    stations, a party may own up to 7 commercial radio stations, not
    more than 4 of which are in the same service; in a radio market with
    between 15 and 29 commercial radio stations, a party may own up to 6
    commercial radio stations, not more than 4 of which are in the same
    service; and in a radio market with 14 or fewer commercial radio
    stations, a party may own up to 5 commercial radio stations, not
    more than 3 of which are in the same service, except that a party
    may not own more than 50% of the stations in such a market.

[^3]: *See Pine Bluff Radio, Inc.*, 14 FCC Rcd 6594 (1999)
    (Commissioners Susan Ness and Gloria Tristani, dissenting); *see
    also NPRM* at ¶¶8-9 (proposing to "exclude from the count of the
    number of stations in a market, any stations owned by the applicant,
    except the commonly owned stations that form the market").

[^4]: We also are unpersuaded by the argument that Clear Channel's
    multiple ownership showing is inadequate and misleading. Clear
    Channel provided sufficient information to show compliance with the
    Commission's multiple ownership rules and to determine whether the
    transaction triggered paragraph 14 of the *NPRM.*