FEDERAL COMMUNICATIONS COMMISSION

**Washington, D.C. 20554**

**In Reply Refer to:**

1800B3-TSN

March 12, 2001

David M. Silverman, Esq.

Cole, Raywid & Braverman, L.L.P.

1919 Pennsylvania Avenue, N.W.

Suite 200

Washington, DC 20006

Brian M. Madden, Esq.

Leventhal, Senter & Lerman, P.L.L.C.

2000 K Street, N.W.

Suite 600

Washington, DC 20006-1809

In re: WLTK(FM), Broadway, Virginia

Facility ID No. 40648 File No. BALH-991215AAY

WBHB-FM, New Market, Virginia

Facility ID No. 12600

File No. BALH-991215ABF

Applications for Assignment

Dear Counsel:

The staff has under consideration: (1) the above-captioned applications
proposing to cross-assign the licenses of stations WLTK(FM), Broadway,
Virginia, and WBHB-FM, New Market, Virginia, between Massanutten
Broadcasting Company, Inc. ("Massanutten") and HJV Limited Partnership
("HJV"), (2) a Petition to Deny the applications filed January 28, 2000
by Mid Atlantic Network, Inc. ("Mid Atlantic"),[^1] (3) additional
responsive pleadings,[^2] and (4) an amendment to the assignee's portion
of the assignment application ("Amendment"), filed January 4, 2001 by
HJV. For the reasons set forth below, we deny the petition and grant the
applications.

*Background.* Five radio stations in the Harrisonburg, Virginia market,
including WBHB-FM, New Market, Virginia, are currently attributable to
HJV.[^3] HJV proposes to swap WBHB-FM, a Class A station, to Massanutten
in exchange for Massanutten's Class B1 station WLTK(FM), plus a payment
of \$1,720,000 from HJV to Massanutten. Massanutten is also the licensee
of WBTX(AM), Broadway-Timberville, Virginia, in the same market.
Additionally, in the Amendment, HJV attached a redacted copy of a
Reciprocal Local Marketing Agreement ("RLMA") among HJV, its commonly
owned sister corporation M. Belmont VerStandig, Inc. ("MBV"), and
Massanutten. In the RLMA, HJV/MBV would provide certain programming and
other services for WLTK, and Massanutten would provide similar
programming and other services for WBHB-FM, pending approval of the
assignments. Massanutten and HJV's proposed swap of the two stations is
consistent with the numerical limits in our radio local ownership rules,
47 C.F.R. §73.3555.[^4] As noted, Massanutten and HJV are currently
operating the stations they seek to acquire pursuant to the RLMA.

In response to the December 27, 1999 *Public Notice* announcing
acceptance of the applications for filing, Mid Atlantic filed a Petition
to Deny, alleging anti-competitive effects on local advertisers in the
Harrisonburg market. Specifically, Mid Atlantic stated that after the
proposed transaction, HJV would control over 40% of the local
advertising revenue in the Arbitron-defined metro market for
Harrisonburg, a market with fourteen commercial radio stations. Our
independent analysis indicates that HJV would control 42.6% of the
advertising revenue in the market after the swap.

*Discussion.* The proposed transaction is a station swap, which will
allow HJV to upgrade WBHB-FM from a Class A facility to a Class B1. We
have considered the potential competitive impact of this transaction as
reflected in post-merger market structure, revenue shares, and other
factors affecting post-merger competition.

We note initially that the percentages of market advertising revenue
that will result from this swap are within the range of those that have
already been approved by the Commission. According to the BIA Media
Access Database ("BIA"), HJV's station WBHB-FM garners 3.5% of the local
advertising revenue in the Harrisonburg radio market, compared to 4.2%
for Massanutten's WLTK. Overall, the five stations attributed to HJV
account for 41.9% of advertising revenue, with Mid Atlantic's three
stations accounting for 38%; the two groups advertising revenue share
thus totals 79.9%. The swap will increase HJV's share by 0.7%, to 42.6%.
This level of concentration is consistent with levels approved in other
cases. *See, e.g., CHET-5 Broadcasting, L.P*.*,* 14 FCC Rcd 13041, 13044
(1999), in which the approved assignment/transfer increased the
assignee/transferee's market revenue share by 1.7%, from 40.2% to 41.9%;
*see also NewCity Communications, Inc*., 12 FCC Rcd 3929, 3955 (1997)
(approving transfer resulting in control of 52.4% of radio advertising
revenues in Syracuse, New York market). In addition, since the parties
are exchanging facilities, each will own exactly the same number of
stations in the same services after the swap as before. The Harrisonburg
market will have the same number of stations and owners post-swap as
pre-swap, and the owners will have essentially the same percentage of
advertising revenue in the market. Any coverage and population gains HJV
will realize from the swap will be primarily out-of-market.[^5] In
short, the market will not change in any significant respect.[^6]

Further, the combined advertising revenue of HJV and petitioner Mid
Atlantic, the second-largest radio licensee in the market, does not pose
disqualifying market concentration under our existing cases. *See
Shareholders of AMFM, Inc.*, 15 FCC Rcd 16062 (2000) (approving
transactions in Akron, Ohio and Cedar Rapids, Iowa, where the
post-merger advertising revenue shares of the top two groups in the
markets would be 82.6% and 80.8%, respectively). HJV and Mid Atlantic
will have a combined total revenue share, both pre- and post-swap, of
under 80%, with Mid Atlantic's market revenue share only 4.6% below that
of HJV.[^7] There is no evidence that these two entities have engaged or
will engage in concerted, anti-competitive behavior; indeed, Mid
Atlantic's filing of the instant Petition to Deny indicates to the
contrary.

Based on the foregoing analysis, we find no substantial and material
questions of fact as to the effect of the proposed swap between HJV and
Massanutten on diversity and economic competition. In addition, we have
reviewed the assignment applications and find that Massanutten and HJV
are both fully qualified, and that approval of the proposed transactions
is in the public interest.

Accordingly, IT IS ORDERED, That, the Petition to Deny filed by Mid
Atlantic Network, Inc. IS DENIED; the application to assign the license
of station WLTK(FM) from Massanutten Broadcasting Company, Inc. to HJV
Limited Partnership (File No. BALH-19991215AAY), and the application to
assign the license of station WBHB-FM from HJV Limited Partnership to
Massanutten Broadcasting Company, Inc (File No. BALH-19991215ABF) ARE
GRANTED.

Sincerely,

Linda Blair, Chief

Audio Services Division

Mass Media Bureau

cc: David Tillotson, Esq.

[^1]: Mid-Atlantic is the licensee of stations WKCY and WKCY-FM in
    Harrisonburg, Virginia, and WACL(FM), Elkton, Virginia.

[^2]: These documents include: HJV's Opposition to Petition to Deny,
    filed February 10, 2000; and Mid Atlantic's Reply to Opposition to
    Petition to Deny, filed February 25, 2000 (pursuant to a Consent
    Motion for Extension of Time filed February 22, 2000).

[^3]: HJV's commonly owned sister corporation, M. Belmont VerStandig,
    Inc., is the licensee of WAMM-FM, Bridgewater, Virginia, and
    WHBG(AM), WQPO(FM), and WSVA(AM), Harrisonburg, Virginia. HJV is the
    licensee of WBHB-FM.

[^4]: Because the RLMA results in HJV/MBV's owning, operating, or having
    control over six stations in the Harrisonburg market pending
    approval of the assignment applications, in the Amendment HJV
    attached a multiple ownership showing indicating that, using the
    Commission's current definition of "radio market," there are 19
    stations in the relevant market. *See Notice of Proposed Rule
    Making, In the Matter of Definition of Radio Markets*, MM Docket No.
    00-244, FCC 00-427 (December 13, 2000). A single licensee can
    therefore own up to 6 stations in that market, not more than 4 of
    which are in the same service (AM or FM). *See* Telecommunications
    Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (1996),
    §202(b)(1)(d), *codified as* 47 C.F.R. §73.3555(a)(1). If the
    proposed transactions are approved and consummated, HJV/MBV will be
    the licensee of a total of 2 AM and 3 FM stations.

[^5]: Mid Atlantic's contour maps appear to indicate that the only
    community in Rockingham County (which constitutes the Harrisonburg
    market) of which HJV will gain new coverage is Grottoes, a town of
    1,544 people.

[^6]: As part of its competition argument, Mid Atlantic contends that
    the proposed station swap would further concentrate an already
    concentrated market, as measured by the Herfindahl-Hirschman Index,
    or HHI. The Commission does not afford HHI analyses the persuasive
    weight suggested by Mid Atlantic. *See Alton Rainbow Corporation*,
    14 FCC Rcd 16764, 16775 n. 20 (1999) ("*Alton Rainbow*"); *Great
    Empire Broadcasting, Inc*., 14 FCC Rcd 11145, 11151 (1999)
    (Commission believes "mechanical application" of HHI and other
    Horizontal Merger Guidelines may provide misleading answers to
    competitive issues in the context of local radio mergers; therefore,
    Commission applies the standards reasonably and flexibly to specific
    facts and circumstances). In any event, the pre-swap HHI for the
    Harrisonburg market is 3415.66; post-swap the HHI would increase
    49.28 points to 3464.94. "Mergers producing an increase in the HHI
    of less than 50 points, even in highly concentrated markets
    post-merger, are unlikely to have adverse competitive consequences
    and ordinarily require no further analysis." *Department of Justice
    and Federal Trade Commission Horizontal Merger Guidelines*, §1.51(c)
    (3d ed. February 1998). *See also Alton Rainbow*, 14 FCC Rcd at
    16776.

[^7]: It bears noting that the station with the highest percentage of
    the Harrisonburg market revenue, 22.5%, is Mid Atlantic's station
    WKCY-FM, and that its revenue share is over 4% higher than that of
    the second-highest revenue producer, HJV's WSVA(AM).