John M. Pelkey, Esq.

Garvey Schubert Barer

1000 Potomac Street, N.W.

Washington, D.C. 20007

Dan J. Alpert, Esq.

2120 N. 21^st^ Road

Arlington, VA 22201

Allan Moscowitz, Esq.

Kaye Scholer LLP

901 15^th^ Street, N.W.

Washington, D.C. 20005

In re: **WCCL(FM), Central City, Pennsylvania**

Facility ID No. 49026

File No. BALH-20071031AAG

**WLKH(FM), Somerset, Pennsylvania**

Facility ID No. 56363

File No. BALH-20071031AAH

**WBHV(AM), Somerset, Pennsylvania**

Facility ID No. 49027

File No. BAL-20071031AAI

**WNTJ(AM), Johnstown, Pennsylvania**

Facility ID No. 15327

File No. BAL-20071031AAJ

> **Application for Assignment of Licenses**

**Petition to Deny**

Dear Counsel:

We have before us the above-captioned application (the "Assignment
Application") seeking approval for the proposed assignment of licenses
for Stations WCCL(FM), Central City, Pennsylvania; WLKH(FM), Somerset,
Pennsylvania; WBVH(AM), Somerset, Pennsylvania; and WNTJ(AM) (formerly
WPRR(AM)), Johnstown, Pennsylvania (collectively, the "Stations"), from
2510 Licenses, LLC ("2510") to Forever Broadcasting, LLC ("Forever"). On
December 5, 2007, Sherlock Broadcasting, Inc. ("Sherlock"), licensee of
Station WBXQ(FM), Patton, Pennsylvania, and Sounds Good, Inc. ("Sounds
Good"), licensee of Station WBRX(FM), Cresson, Pennsylvania (together,
"Barger"),[^1] jointly filed a Petition to Deny the Assignment
Application. On December 5, 2007, Vernal Enterprises, Inc. ("Vernal"),
licensee of WRDD(AM), Ebensburg, Pennsylvania; WNCC(AM), Barnesboro,
Pennsylvania; and WHPA(FM), Gallitzin, Pennsylvania, filed a separate
Petition to Deny.[^2] The two pleadings raise essentially the same issue
and we will address the objecting parties jointly as the "Petitioners."
For the reasons stated below, we grant the Barger and Vernal Petitions
to Deny to the extent indicated herein and dismiss the Assignment
Application as inadvertently accepted for filing.

**Background.** On March 27, 2007, in the course of negotiating
multi-year subscriptions to Arbitron, Forever's parent company, Forever
Communications, Inc., advised Arbitron via email that it had decided to
continue to subscribe to Arbitron in the Jackson, Tennessee, market and
in the Pittsburgh, Pennsylvania, Metro, but "at this time, a decision
has not been made to renew" its subscription for Altoona, State College,
and Johnstown.[^3] Vernal reports that "\[O\]n October 2, 2007, Arbitron
announced in an 'Advertiser/Agency Presurvey Bulletin' ("Arbitron
Cancellation Announcement") that the Johnstown Arbitron had been
'cancelled.'"[^4] A copy of the Arbitron Cancellation Announcement
submitted by Vernal indicates that the Johnstown Arbitron Metro "is
cancelled, effective Fall 2007."[^5]

On October 31, 2007, the parties filed the Assignment Application,
proposing to assign to Forever four stations that are licensed to
communities within the recently-cancelled Johnstown Arbitron Metro.[^6]
Forever states that "in the absence of any Metro reported by BIA for the
above-referenced stations, the instant application was filed utilizing
the contour-overlap methodology *required* by *Paragraph 4 of FCC Form
314 Worksheet 3, and the Ownership Order.*"[^7] Forever adds that it was
required to demonstrate compliance with the local radio ownership rule
utilizing the contour overlap methodology because the Johnstown Arbitron
Metro ceased to exist "at some point after the date of the \[Arbitron
Cancellation Announcement\] and prior to the filing of the \[Assignment
Application\]."[^8]

**Discussion.** Petitioners argue that Commission policy requires a
waiting period before a party can rely on certain market definition
changes. Specifically, Petitioners cite to the Commission's policy that
prevents a party from receiving the benefit of a change in Arbitron
boundaries unless that change has been in place for at least two
years.[^9] Vernal argues that the elimination of an entire Arbitron
Metro should be treated as a market definition change within the scope
of this policy. Vernal asserts that "Forever has effectuated the
ultimate change in Metro boundaries; it has eliminated them."[^10]

When the Commission revised the local radio ownership rule to use
Arbitron Metros, where available, to define a particular radio market,
it concurrently adopted the two-year waiting period policy to safeguard
the integrity of the new methodology. The Commission recognized that
Arbitron Metro boundaries are subject to change, and noted that
"\[S\]everal commenters have argued that Arbitron market definitions are
not reliable enough for us to use as a radio market definition."[^11]
While acknowledging that market definitional changes could be initiated
at the behest of licensees seeking to circumvent the local radio
ownership rule, the Commission nonetheless adopted the use of Arbitron
Metros, but with the following *proviso*:

> We believe, moreover, that we can establish safeguards to deter
> parties from attempting to manipulate Arbitron market definitions for
> purposes of circumventing the local radio ownership rule.
> Specifically, we will not allow a party to receive the benefit of a
> change in Arbitron boundaries unless that change has been in place for
> at least two years.[^12]

The Commission stated that "these safeguards will ensure that changes in
Arbitron Metro boundaries . . . will be made to reflect actual market
conditions and not to circumvent the local radio ownership rule."[^13]
While the *Ownership Report and* *Order* does not define the scope of,
nor qualify the reach of an Arbitron "change," we find that the totality
of circumstances surrounding Forever's proposed acquisition supports
application of this policy to the instant transaction.

Specifically, the record indicates that Forever's March 27, 2007,
communication to Arbitron that it would not renew the subscription for
the Johnstown Arbitron Metro was followed by Arbitron's announcement on
October 2, 2007, that the Johnstown Arbitron Metro "is cancelled
effective Fall 2007."[^14] Thus, it appears that Forever's business
decision to cancel its subscription for the Johnstown Arbitron Metro
precipitated Arbitron's subsequent cancellation of the Johnstown
Arbitron Metro.

Forever urges that we narrowly apply this policy to only those boundary
changes that literally contract or expand an Arbitron Metro.[^15] This
argument is based on the *Ownership Report and Order'*s illustrative
statement that the safeguard "includes both enlarging the Metro (to make
a market larger) and shrinking the Metro (to split a party's
non-compliant station holdings into separate markets)."[^16] We disagree
with this narrow reading of this policy. The concerns, which the
adoption of this two-year waiting period is intended to address, are
equally present in a situation involving the cancellation of an entire
Arbitron Metro. In particular, we find that a broader approach best
comports with the Commission's directive to consider whether "an
Arbitron Metro boundary has been altered to circumvent the local radio
ownership rule . . . in evaluating" compliance with the rule.[^17]

In this regard, we note that taking into account the cancellation of the
Johnstown Arbitron Metro would undeniably "benefit" Forever. Forever
would be allowed to own nine stations, including six FM stations, where
it had previously been limited to six stations, with a maximum of four
FM stations. We concur with Vernal's assessment that permitting Forever
to benefit immediately from this market definition change would
undermine the safeguards that the Commission specifically established to
protect the reliability of an Arbitron Metro-based methodology.[^18]

In light of the above finding, we must then determine when Forever may
rely on the cancellation of the Johnstown Arbitron Metro to establish
compliance with Section 73.3555(a) of the Commission's Rules. Based on
the totality of circumstances, we find that a two-year waiting period
began on October 2, 2007 \-- the date that Arbitron issued the
Cancellation Notice. Thus, Forever may not rely on the Johnstown
Arbitron Metro market cancellation at this time to demonstrate that its
proposed acquisition of the Stations would comply with the local radio
ownership restrictions.

**Conclusion/Actions**. Accordingly, because the proposed assignment of
licenses does not comply with 47 C.F.R. Section 73.3555(a)(1)(iii), IT
IS ORDERED, that the Barger and Vernal Petitions to Deny ARE GRANTED to
the extent indicated herein. IT IS FURTHER ORDERED, that the application
for approval to assign the licenses for Stations WCCL(FM), Central City,
Pennsylvania (File No. BALH-20071031AAG); WLKH(FM), Somerset,
Pennsylvania (File No. BALH-20071031AAH); WBVH(AM),

Somerset, Pennsylvania (File No.BAL-20071031AAI); and WNTJ(AM),
Johnstown, Pennsylvania (File No. BAL-20071031AAJ) from 2510 Licenses,
LLC, to Forever Broadcasting, LLC, IS DISMISSED AS INADVERTENTLY
ACCEPTED FOR FILING.

Sincerely,

Peter H. Doyle

Chief, Audio Division

Media Bureau

[^1]: David Barger is the President of both Sherlock and Sounds Good.
    *See* Barger Petition to Deny, Attachment 1.

[^2]: 2510 and Forever filed a Consolidated Opposition to Petitions to
    Deny ("Consolidated Opposition") on December 19, 2007. Barger filed
    a Joint Request for Extension of Time on January 3, 2008, and a
    Reply to Consolidated Opposition on January 17, 2008. Vernal filed a
    separate Reply to Consolidated Opposition on January 17, 2008.

[^3]: Consolidated Opposition at 3. Forever also states that "\[P\]rior
    to Fall 2007, BIA's last 'Competitive Overview' reflected 18 radio
    stations" in the Johnstown Arbitron Metro. *Id.* at 2.

[^4]: *See* Vernal Reply at 5; Vernal Petition to Deny, Exhibit D at 2.

[^5]: Vernal Petition to Deny, Exhibit D at 2.

[^6]: Pursuant to 47 C.F.R. § 73.3555(a)(1)(iii), in a radio market with
    between 15 and 29 stations, a single entity may not own more than
    six commercial stations in total, and not more than four commercial
    stations in the same service (AM or FM). Prior to its cancellation,
    the relevant radio market, as defined by the Johnstown Arbitron
    Metro, consisted of 23 stations. With the cancellation of the
    Johnstown Arbitron Metro, Forever used the contour overlap
    methodology to define the radio market. Because use of the contour
    overlap methodology results in the creation of four separate radio
    markets, Forever would be permitted to own nine stations, including
    six FM stations, whose communities of license are all located in
    either Somerset County or Cambria County, the two counties that had
    comprised the Johnstown Arbitron Metro prior to its elimination.

[^7]: Consolidated Opposition at 3 (emphasis in original).

[^8]: Consolidated Opposition at 3.

[^9]: *See* *2002 Biennial Regulatory Review---Review of the
    Commission's Broadcast Ownership Rules and Other Rules Adopted
    Pursuant to Section 202 of the Telecommunications Act of 1996,*
    Report and Order and Notice of Proposed Rulemaking, 18 FCC Rcd
    13620, 13726 (2003) ("*Ownership Report and Order"*), *aff'd in part
    and remanded in part, Prometheus Radio Project, et al. v. FCC*, 373
    F. 3d 372 (3d Cir. 2004), *cert. denied*, 125 S. Ct. 2902 (2005).
    *See also Prometheus Radio Project, et al. v. FCC,* No. 03-3388 (3d
    Cir. Sept. 3, 2004) (lifting stay with respect to new local radio
    ownership rule).

[^10]: Vernal Petition to Deny at 8.

[^11]: *Ownership Report and Order*, 18 FCC Rcd at 13726.

[^12]: *Id.*

[^13]: *Id.*

[^14]: *See supra* page 3.

[^15]: Consolidated Opposition at 5.

[^16]: *Ownership Report and Order*, 18 FCC Rcd at 13726.

[^17]: *Id.* at n. 584.

[^18]: Recently, in the *2006 Quadrennial Review*, the Commission
    reaffirmed its previous finding that the relevant geographic market
    for purposes of the local radio ownership rule is the Arbitron Metro
    market. *See 2006 Quadrennial Regulatory Review -- Review of the
    Commission's Broadcast Ownership Rules and Other Rules Adopted
    Pursuant to Section 202 of the Telecommunications Act of 1996 ("2006
    Quadrennial Review")*, Report and Order and Order on
    Reconsideration, 23 FCC Rcd 2010, 2069-82 (2007). Significant to
    this transaction, in the *2006 Quadrennial Review* the Commission
    also confirmed the relevance of the safeguard policy and denied
    reconsideration petitions that had argued that the two-year
    safeguard policy would not deter manipulation or abuse. *Id.* 23 FCC
    Rcd at 2080, n. 427.