**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In re Application of             | *  | File No. BTCCT-20011121AAY   |
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| Montclair Communications, Inc.   | ** | Facility ID No. 19183        |
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| (Assignor)                       | *  |                              |
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| and                              | ** |                              |
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| Waterman Broadcasting            | *  |                              |
| Corporation of Florida           | *) |                              |
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| (Assignee)                       |    |                              |
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| For Consent to Transfer Control  | *) |                              |
| of Montclair                     | ** |                              |
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| Communications, Inc., Licensee   | *  |                              |
| of WZVN-TV                       | *) |                              |
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| Naples, FL                       |    |                              |
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+----------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted: April 23, 2007 Released: April 24, 2007**

By the Chief, Media Bureau:

**I. INTRODUCTION**

1\. The Commission, by the Chief, Media Bureau, has before it a Joint
Petition for Clarification of the Record and Reconsideration (Joint
Petition) filed in response to the staff's August 8, 2002 dismissal of
an application to transfer control of Montclair Communications, Inc.,
licensee of WZVN-TV, Naples, FL, from Lara Kunkler to Waterman
Broadcasting Corporation of Florida, licensee of WBBH-TV, Ft. Myers,
FL.[^1] In dismissing the application, the staff also denied a request
for waiver of the local television multiple ownership rule to permit
common ownership of WZVN-TV and WBBH-TV.[^2] Fort Myers Broadcasting
Company (FMBC), which filed a Petition to Deny the original application,
has filed an Opposition, to which Waterman and Montclair (Joint
Petitioners) filed a Joint Reply.[^3] Based on the information
presented, we affirm the August 8, 2002, dismissal. We further conclude
that the Joint Petitioners' showing does not meet the criteria for a
failing station waiver of the local television multiple ownership rule,
and that the Joint Petitioners have otherwise failed to demonstrate that
waiver of the rule would be in the public interest.

II. **BACKGROUND**

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2.  Waterman entered into a Local Marketing Agreement (LMA) with a
    previous licensee of WZVN-TV on June 1, 1994, with Montclair
    becoming the licensee and assuming the brokered station's rights
    under the LMA on October 10, 1996. Though attributable under the
    current standard,[^4] Montclair and Waterman entered into the LMA
    prior to November 5, 1996 and thus the LMA is grandfathered until
    the conclusion of the 2004 Biennial Review.[^5] Waterman's
    acquisition of WZVN-TV, however, would violate the local television
    multiple ownership rule since (1) WZVN-TV and WBBH-TV have
    overlapping Grade B contours; (2) both stations are located within
    the same Naples-Fort Myers Designated Market Area (DMA); and (3) the
    Naples-Fort Myers DMA would contain fewer than eight independently
    owned and operating commercial and noncommercial television voices
    post-merger.[^6] Common ownership of the stations would violate the
    local television ownership rule even if it complied with the voice
    count prong of the local television ownership rule since both
    WZVN-TV and WBBH-TV, as NBC and ABC affiliates, respectively, ranked
    within the top four in the DMA in terms of audience share.[^7]

3\. To permit common ownership, Waterman requested a presumptive waiver
of the local television ownership rule under the failing station waiver
standard.[^8] In the Dismissal Letter, however, the staff concluded that
Waterman's showing failed to comply with any of the applicable prongs of
the failing station waiver standard. The staff further concluded that
the asserted public interest benefits were unsupported and, thus,
Waterman's showing did not otherwise justify a waiver. The staff, in
particular, found that Waterman failed to "provide specific evidence
that WZVN-TV has suffered low audience share in comparison to other
stations in the market," and that Waterman's contention that WZVN-TV
suffered financially was likewise unsupported. [^9] The staff also
stated that "the unsupported public interest showing \[does not
justify\] grant of a waiver to Waterman," given Waterman's failure to
show either an unusually small audience share or poor financial
condition.[^10]

**III. DISCUSSION**

4\. The Commission entertains applications to waive the local television
multiple ownership rule on a case-by-case basis where the station to be
acquired is a failing station, a failed station, or an unbuilt
station.[^11] The Commission based the failing station waiver standard
on the premise that "it makes little sense to force a station to go dark
or declare bankruptcy before considering whether it should receive a
waiver."[^12] The Commission will generally not grant a presumptive
waiver under the failing station waiver standard unless the applicant
can meet *each* of the following criteria: (1) one of the merging
stations has had a low all-day audience share (i.e., 4% or lower); (2)
the financial condition of one of the merging stations is poor (e.g.,
where the station has had a negative cash flow for the previous 3
years); (3) the merger will produce tangible and verifiable public
interest benefits that outweigh any harm to competition and diversity;
and 4) the in-market buyer is the only reasonably available candidate
willing and able to acquire the failing station, and selling the station
to an out-of-market buyer would result in an artificially depressed
price.[^13]

5\. The Commission provided guidance on what kind of showing would be
necessary to meet the second prong, stating that a waiver would be more
likely if the applicant could demonstrate negative cash flow for the
previous 3 years.[^14] The Commission, however, stated that "an
applicant will need to submit data, such as detailed income statements
and balance sheets, to demonstrate \[financial condition\]," and that
the Commission will evaluate the showing by "comparing data regarding
the station's expenses to industry averages."[^15] The Commission stated
that an applicant may base its waiver showing on circumstances existing
just prior to entering into the LMA, if the LMA were entered into prior
to August 5, 1999, the date the new multiple ownership rules were
adopted.[^16] In such instances, the waiver applicant need not meet the
last prong.[^17] If the showing fails to meet the presumptive criteria,
then a waiver may still be granted under our *ad hoc* public interest
standard.[^18]

6\. **Audience Share.** The Joint Petitioners acknowledge that WZVN-TV's
all-day audience share never dropped below 4%. The Joint Petitioners,
rather, contend that audience share is an inadequate measure of
financial condition in this case, arguing that the Commission "never
intended its 4% benchmark to operate as an ironclad indicator" of
whether a station is failing.[^19] The Joint Petitioners point out that
WZVN-TV's audience share was low for an ABC affiliate with a local news
presence in the market. The Joint Petitioners state that WZVN-TV's 9
a.m. -- 12 midnight daypart share across all sweeps periods from July
1992 to July 1994 ranged from 9% to 13%, whereas the CBS and NBC
affiliates' daypart shares ranged from 22% to 37% and 18% to 24%,
respectively, during the same period.[^20] The Joint Petitioners argue
that the audience share data was particularly weak for the 6 p.m. to 8
p.m. time period, during which stations usually present their main
newscasts, and which accounts for a disproportionately large share of a
station's revenues.[^21]

7\. FMBC argues that the Joint Petitioners' request that they be
permitted to own two of the top four stations in a market with less than
eight independent voices would be tantamount to repeal of the local
television multiple ownership rule.[^22] FMBC points out that WZVN-TV's
lowest quarterly all-day audience share for the two years prior to
entering into the LMA was 9%, more than twice the threshold set forth in
the *Television Ownership Order*.[^23] FMBC states that, for the 8
quarters prior to entering into the LMA, WZVN-TV's overall audience
share was better than the audience share achieved by Waterman's
operation of the station in 2001.[^24]

8\. We agree that the Joint Petitioners have failed to demonstrate that
granting the waiver would be consistent with the audience share
component of the failing station waiver standard. As noted above, the
proposed combination would include both an NBC and an ABC affiliate. The
disappointing audience share figures cited by the Joint Petitioners fail
to demonstrate that WZVN-TV's audience share was so low as to place the
station in danger of going dark. The Commission specifically stated in
the *Television Ownership Order* that failing stations "rarely have the
resources to provide local news programming, and often struggle to
provide significant local programming at all."[^25] Despite the Joint
Petitioners' argument that WZVN-TV's ratings were particularly weak
during the 6 p.m. -- 8 p.m. time period, WZVN-TV, even prior to being
brokered by Waterman, had the resources to produce its own local news
programming.

9\. **Financial Condition.** The Joint Petitioners further argue that
WZVN-TV (then WEVU-TV) was suffering financially for the relevant three
years prior to entering into the LMA on June 1, 1994, due, primarily, to
the station's disadvantageous competitive position.[^26] The Joint
Petitioners state, in particular, that WZVN-TV's tower, being located in
the southern portion of the DMA, failed to provide a strong enough
signal to the DMA's northernmost population centers. The Joint
Petitioners argue that the presence of WWSB-TV, a fellow ABC affiliate
located in the neighboring Sarasota, FL DMA, exacerbated WZVN-TV's
competitive disadvantage since it provided a stronger signal to the
northern counties.

10\. The Joint Petitioners also argue that the station needed
substantial capital improvements in order to compete, improvements that
had been postponed due to the fact that WZVN-TV had three owners prior
to June 1994. The consequence of deferring capital expenditures,
according to the Joint Petitioners, was a "lower quality of on-air
product, disruptive power outages, failure of tapes to play on air,
failure to provide breaking news or live news coverage, less news
coverage for distant parts of the market, and tenuous prospects for the
future."[^27] The Joint Petitioners attempt to support this contention
by submitting the declarations of two separate engineers.[^28]

11\. The Joint Petitioners acknowledge that WZVN-TV has experienced
periods of positive cash flow during the three-year period prior to
commencement of the LMA, but argue that these periods of positive cash
flow do not accurately reflect the station's financial condition. They
emphasize, instead, the station's sustained and mounting operating
losses, and argue that the station's future funding requirements for
vital capital improvements, debt service and DTV transition costs far
exceeded annual cash flow. The Joint Petitioners provide audited
financial statements for the calendar year ending on December 31, 1991,
and for the period beginning on August 24, 1992, and ending on December
31, 1992. They also provide unaudited financial statements for the
period beginning on January 1, 1992 and ending on May 31, 1992, and for
certain portions of the period beginning on January 1, 1993, and ending
on June 1, 1994. Arthur H. Miller, a certified public accountant and tax
attorney who completed an affidavit in support of the waiver, states
that "WZVN-TV could not generate sufficient income to become viable and
competitive in the marketplace and, faced with the immediate need to
upgrade its technical equipment, service debt, and begin the process of
planning for the DTV conversion, could not have continued in operation
but for the LMA."[^29]

12\. FMBC challenges the Joint Petitioner's depiction of the competitive
and financial situation facing WZVN-TV. FMBC argues that WZVN-TV has
widespread cable carriage throughout the DMA, and that, even if the
station had a coverage deficit over certain portions of the DMA, the
station was still able to reach the majority of households within the
DMA.[^30] FMBC argues that this coverage deficit will, moreover,
disappear when the DTV transition is complete.[^31] FMBC further
maintains that the Joint Petitioners exaggerate the competitive effect
of the adjacent market ABC affiliate, WWSB-TV. FMBC states that WWSB-TV
only reaches the northwest corner of one county in the Ft. Myers-Naples
DMA, and that WWSB-TV serves a smaller DMA than does WZVN-TV.[^32] FMBC
further states that WZVN-TV's technical facilities were comparable with
the other UHF stations licensed to the Ft. Myers-Naples DMA.[^33]

13\. FMBC has also provided the declaration of Peter Girardin, CPA, who
states that the station generated a positive cash flow during each
period for which the Joint Petitioners supplied sufficient financial
data for a cash flow computation.[^34] The claim that WZVN-TV was
suffering financially is also rebutted, according to FMBC, by the
willingness of several buyers to pay an ever-increasing price for the
station.[^35] WZVN-TV was placed on the air in 1974 as an ABC affiliate,
and sold on August 24, 1992, for \$4.65 million. Montclair eventually
acquired WZVN-TV from Elcom of Florida, Inc. in 1996 for \$21
million.[^36] Thus, FMBC contends that WZVN-TV appreciated over 100% in
the two years before commencing the LMA, which is not indicative of a
failing station.[^37]

14\. We agree that the Joint Petitioners have failed to demonstrate that
WZVN-TV was suffering financially during the three years prior to
entering into the LMA. First, the station's cash flow was both
consistently and increasingly positive. Though the Joint Petitioners
request that we focus on the station's mounting operating losses, and
inability to invest in new equipment, the Joint Petitioners'
characterization of WZVN-TV as a station facing an increasingly perilous
financial situation is rebutted by the station's increasing market value
(defined as what a willing buyer is willing to pay). Both facts lead us
to conclude that the station was not in imminent danger of going dark
during the three years prior to entering into the LMA. We therefore
conclude that the Joint Petitioners have failed to show that common
ownership of WZVN-TV and WBBH-TV would comply with the second prong of
the failing station waiver standard.

15\. **Public Interest Showing**. The Joint Petitioners argue that the
LMA has resulted in the following identifiable, program-related public
interest benefits: (1) an expansion of locally-produced news from 6
hours per week to approximately 19.5 hours per week; (2) a distinct
local news product due to separate producers, anchors and reporters; and
(3) an increase in children's educational and informational programming
from 1 hour per week to 5 hours per week.[^38] Though not
program-related, the Joint Petitioners also contend that the LMA has
provided for necessary facilities upgrades, as described above, and that
the LMA has permitted an expedited transition to DTV.[^39]

16\. The Joint Petitioners further argue that common ownership of
WZVN-TV and WBBH-TV has not posed a threat to diversity in the Ft.
Myers-Naples, FL DMA, but has, in fact, increased diversity by
developing WZVN-TV as a viable local voice and serious competitor in the
market.[^40] With respect to the competition and diversity already
existing in the market, the Joint Petitioners state that the Ft.
Myers-Naples market has six independently owned "voices" as defined in
the Commission's rules, but that the actual number of broadcast
television voices exceeds 6 when one considers (a) that WZVN-TV and
WBBH-TV broadcast entirely different program services; (b) that the
market is served by Class A station WEVU-LP, which is carried by the
market's dominant cable system; and (c) that the two northernmost
counties of the DMA are served by adjacent market ABC affiliate WWSB-TV,
which produces its own local news programming.[^41] In addition to
broadcast television "voices," the Joint Petitioners contend that the
market is also well-served by newspapers, cable systems, and broadcast
radio stations.[^42]

17\. FMBC responds that, with respect to the program-related public
interest benefits, more than 80 percent of the weekly children's
programming is the ABC network's Saturday morning programming.[^43] FMBC
also argues that much of the news presented over WZVN-TV consists of a
repackaged version of WBBH-TV's news, which allegation the Joint
Petitioners' have denied.[^44] With respect to technical upgrades, FMBC
maintains that most of the broadcast equipment purchased by WZVN-TV is
studio equipment used or usable by WBBH-TV, and the remainder can be
sold or leased to the current licensee. FMBC further argues that the
Joint Petitioners have failed to demonstrate how the Ft. Myers-Naples
DMA is different from any other television market having only six
"voices." Common ownership of WZVN-TV and WBBH-TV will decrease
diversity, according to FMBC, by preventing the eventual separate sale
of WZVN-TV to an out-of-market competitor, and will ensure an ABC/NBC
combination in the market for the foreseeable future.[^45]

18\. We agree that granting a waiver in this instance would not be in
the public interest. The Joint Petitioners have failed to demonstrate
how the Ft. Myers-Naples DMA is unique among markets with six
independent television voices so that common ownership of two top-four
network affiliates is justified. The Ft. Myers-Naples DMA, moreover, is
not a particularly small market, ranking 81 out of a total of 210 DMAs.
We agree that permitting common ownership of an ABC and NBC affiliate
would decrease, rather than increase, diversity by preventing sale of
the station to an out-of market competitor.

19\. After carefully reviewing the pleadings in this case, we also
conclude that the Joint Petitioners have likewise failed to demonstrate
that grant of the waiver would be justified under our *ad hoc* standard.
Under *Wait Radio v. FCC*, an applicant may show that the public
interest may be better served by waiver, rather than application, of a
rule. Where the Commission is applying an established rule, however, "an
applicant for waiver faces a high hurdle even at the starting
gate."[^46] The Commission has further stated that the waiver standards
set forth in the *Television Ownership Order* were adopted "to ensure
that waivers are available only when truly necessary."[^47] As discussed
above, WZVN-TV does not appear to have been in imminent danger of going
dark, either before or after entering into the LMA, and WZVN-TV meets
none of the prongs of the failing station waiver standard. Under these
circumstances, the Joint Petitioners would need to demonstrate how their
particular situation is unique, which we do not believe they have done.

**IV. ORDERING CLAUSES**

20\. Accordingly, **IT IS ORDERED**, That the Joint Petition for
Clarification of the Record and Reconsideration filed jointly by
Montclair Communications, Inc. and Waterman Broadcasting Corporation,
**IS DENIED**.

###  FEDERAL COMMUNICATIONS COMMISSION

Monica Shah Desai

Chief, Media Bureau

[^1]: *Letter from Barbara A. Kreisman to Roy R. Russo, Esq., and Joseph
    A. Belisle, Esq.*, dated August 8, 2002 ("Dismissal Letter").

[^2]: We will exercise our discretion to consider facts raised in the
    Joint Petition that were not originally raised in the transfer of
    control application. See 47 C.F.R. § 1.106(c)(2).

[^3]: FMBC filed comments in response to the Joint Reply on November 25,
    2002. We have considered all of the pleadings in reaching our
    decision.

[^4]: LMAs are generally attributable to the brokering station unless
    the LMA covers no more than 15% of the weekly broadcast hours of the
    brokered station. *Review of the Commission's Regulations Governing
    Attribution of Broadcast Interests (Attribution Order)*, 14 FCC Rcd
    12559, 12597 (1999) (subsequent history omitted)

[^5]: *Review of the Commission's Regulations Governing Broadcasting
    ("Television Ownership Order")*, 14 FCC Rcd 12903, 12961 (1999)
    (subsequent history omitted). Section 202(h) of the
    Telecommunications Act of 1996 ("1996 Act") was subsequently amended
    on January 22, 2004, modifying the biennial review requirement of
    the 1996 Act to a quadrennial review requirement. The Commission
    initiated its quadrennial regulatory review on July 24, 2006. *In
    the Matter of 2006 Quadrennial Regulatory Review*, Further Notice of
    Proposed Rulemaking, 21 FCC Rcd 8834 (2006). Given the intervening
    change in the 1996 Act, the Commission has requested comment as to
    whether grandfathered LMAs should be reevaluated as part of the 2006
    quadrennial regulatory review. *See In the Matter of Rules and
    Policies Concerning Attribution of Joint Sales Agreements in Local
    Television Markets*, Report and Order and Notice of Proposed
    Rulemaking, 19 FCC Rcd 15238, 15244-15245 (2004) (subsequent history
    omitted). Grandfathering relief for those LMAs entered into prior to
    November 5, 1996, thus remains in effect.

[^6]: Under the Commission's local television multiple ownership rule,
    an entity may own, operate or control two television stations
    licensed in the same Designated Market Area (DMA) (as determined by
    Nielsen Media Research) if: (1) the Grade B contours of the stations
    do not overlap; or (2) if at least one of the stations is not ranked
    among the top four stations in the DMA in terms of audience share
    and eight or more independently owned and operating commercial and
    noncommercial television stations will be licensed in the DMA
    post-merger. 47 C.F.R. § 73.3555(b). On July 2, 2003, the Commission
    issued its 2002 *Biennial Review Order*, in which it modified the
    broadcast television multiple ownership rule. *See 2002 Biennial
    Regulatory Review -- Review of the Commission's Broadcast Ownership
    Rules and Other Rules Adopted Pursuant to Section 202 of the
    Telecommunication Act of 2002* ("*2002 Biennial Review Order*"), 18
    FCC Rcd 13620 (2002), *aff\'d in part and remanded in part*,
    *P**rometheus Radio Project et al. v. FCC*, 373 F.3d 372 (3d Cir.
    2004), *stay modified on rehearing*, (3d Cir. Sept. 3, 2004). The
    U.S. Court of Appeals for the Third Circuit has stayed the modified
    television multiple ownership rule, which stay remains outstanding.
    *Prometheus Radio Project v. Federal Communications Commission*, No.
    03-3388 (3d Cir. Sept. 3, 2003) (per curiam). Regardless, common
    ownership of WZVN-TV and WBBH-TV would not comply with the modified
    rule since the *Biennial Review Order* retained the prohibition on
    common ownership of two stations ranked within the top four in the
    DMA in terms audience share. *Biennial Review Order*, 18 FCC Rcd at
    13691-92.

[^7]: See Id.

[^8]: Id. at Note 7.

[^9]: Dismissal Letter at 2-3.

[^10]: Id. at 3.

[^11]: 47 C.F.R. § 73.3555, Note 7.

[^12]: *Television Ownership Order*, 14 FCC Rcd at 12939.

[^13]: 47 C.F.R. § 73.3555, Note 7. *Television Ownership Order,* 14 FCC
    Rcd at 12939.

[^14]: *Television Ownership Order*, 14 FCC Rcd at 12939.

[^15]: *Id.*

[^16]: *Id.* at 12965.

[^17]: *Television Ownership Order,* Memorandum Opinion and Second Order
    on Reconsideration, 16 FCC Rcd 1067, 1077 (2001).

[^18]: *See WAIT Radio v. FCC*, 418 F.2d 1153, 1157 (D.C. Cir. 1969)
    (the Commission may waive a rule if application will not undermine
    the policy behind the rule, the policy already having been
    determined to be in the public interest).

[^19]: *Joint Petition* at 13.

[^20]: *Id*.

[^21]: *Id.* at 13-14.

[^22]: *Opposition to Joint Petition* at 1.

[^23]: *Id.* at 3.

[^24]: *Id.* at 7.

[^25]: *Television Ownership Order*, 14 FCC Rcd 12939.

[^26]: The Joint Petitioners make no showing with respect to the
    financial condition of the WZVN-TV after entering into the LMA. To
    support their financial showing, the Joint Petitioners have filed
    the declarations of Bernard Waterman, President of Waterman
    Broadcasting; Steven Pontius, Former General Manger of WBBH-TV and
    Executive Vice-President of Waterman Broadcasting; Lara Kunkler,
    President and Owner of Montclair; U. Bertram Ellis, Jr., President,
    CEO and Chairman of the Board of Ellis Communications, Inc.; and
    Arthur H. Miller, a certified public accountant and tax attorney.

[^27]: *Joint Petition,* at 9.

[^28]: See the technical exhibits of David McKelvey, Chief Engineer of
    WZVN-TV since 1985, and Donald Everist, a Registered Professional
    Engineer, attached to the Joint Petition and the Reply,
    respectively.

[^29]: Declaration of Arthur H. Miller at 11.

[^30]: *Opposition to Joint Petition* at 10-11.

[^31]: *Id.* at 11.

[^32]: *Id.* at 12-13.

[^33]: *Id.*

[^34]: *Id.* at Exhibit 2.

[^35]: *Id.* at 7.

[^36]: *Id.* at 7-8.

[^37]: *Id.* at 8.

[^38]: *Joint Petition* at 16-17.

[^39]: *Id.* at 17-19.

[^40]: *Id.* at 20.

[^41]: *Id.* at 21.

[^42]: *Id.* at 22-23.

[^43]: *Opposition to Joint Petition*, at 13-14.

[^44]: *Id.* at 14.

[^45]: *Id.* at 14-15.

[^46]: *Wait Radio v. FCC*, 418 F.2d at 1157.

[^47]: *Television Ownership Order,* Memorandum Opinion and Second Order
    on Reconsideration, 16 FCC Rcd at 1076.