Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In re Application of             | * | File No. BALH-19991116AAT    |
|                                  | * |                              |
| **CHANCELLOR MEDIA/ SHAMROCK**   | ) |                              |
|                                  | * |                              |
| **RADIO LICENSES, L.L.C.**       | * |                              |
|                                  |   |                              |
| (Assignor)                       | * |                              |
|                                  | * |                              |
| and                              | ) |                              |
|                                  | * |                              |
| **COX RADIO, INC.**              | * |                              |
|                                  |   |                              |
| (Assignee)                       | * |                              |
|                                  | * |                              |
| For Assignment of License of     | ) |                              |
|                                  | * |                              |
| WFOX(FM), Gainesville, Georgia   | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
+----------------------------------+---+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted:** August 7, 2000 **Released:** August 16, 2000

By the Commission: Commissioner Tristani concurring in the result.

1\. The Commission has before it for consideration the above-captioned
application seeking consent to the assignment of radio station WFOX(FM),
Gainesville, Georgia, from Chancellor Media/Shamrock Radio Licenses,
L.L.C. ("Chancellor") to Cox Radio, Inc. ("Cox"). Chancellor's parent is
AMFM, Inc. Because a subsidiary of Cox publishes two newspapers in
Atlanta, Georgia, which is encompassed by the 1 mV/m contour of
WFOX(FM), Cox also requests a temporary waiver of the Commission's daily
newspaper/broadcast cross-ownership rule, 47 C.F.R. 73.3555(d).[^1]

**BACKGROUND**

2\. Section 73.3555(d)(2) of the Commission\'s rules, 47 C.F.R. Section
73.3555(d)(2), prohibits the grant of an FM broadcast station license to
"any party (including all parties under common control) if such party
directly or indirectly owns, operates or controls a daily newspaper and
the grant of such license will result in . . . \[t\]he predicted 1 mV/m
contour for an FM station . . . encompassing the entire community in
which such newspaper is published\[.\]"[^2] Cox seeks a 12-month
temporary waiver of the radio/newspaper cross ownership rule to
facilitate the larger transaction, of which the WFOX(FM) assignment is a
part, and to permit it to come into compliance with the rule in an
orderly fashion.[^3] Without such a waiver, Cox would be prohibited from
acquiring WFOX(FM) because the 1 mV/m contour of the station completely
encompasses the city of Atlanta, Georgia, wherein the Atlanta Newspapers
Division of Cox publishes *The Atlanta Constitution* (morning) and *The
Atlanta Journal* (afternoon) daily newspapers (*"The Atlanta
Journal-Constitution")*.[^4]

3\. In support of its waiver request, Cox asserts that, because WFOX(FM)
and *The Atlanta Journal-Constitution* are not located in the same
community, the cross-ownership situation at issue in the instant case is
far different from other instances in which the Commission has
considered waiver requests. Cox argues that there is no effective
competition between the newspaper and the radio station. Cox asserts
that WFOX(FM)'s community of license, Gainesville, is located 55 miles
(approximately 76 minutes drive time) from Atlanta, and that Atlanta and
Gainesville are in separate newspaper markets. Cox points out that *The
Gainesville Times* is published in Gainesville, and has a circulation of
38.9 percent in Hall County, in which Gainesville and WFOX(FM) are
located. In contrast, *The Atlanta Journal-Constitution* has a combined
circulation of 9.5% in Hall County. Cox also argues that Gainesville and
Atlanta are located in separate radio markets. Although Arbitron
considers WFOX(FM) to be an Atlanta home market station and attributes
its audience ratings and advertising revenues to the Atlanta radio metro
market, Hall County is not within the Atlanta radio metro market. Cox
asserts there are few political ties between Atlanta and Gainesville,
given their locations in different counties and their representation in
the U.S. House of Representatives by different Members of Congress.

4\. Cox also claims that there is substantial diversity within the
geographic market relevant to evaluation of its temporary waiver
request, and provides information as to the number of independently
owned radio and television stations providing service to the counties
that are located within the 1 mV/m service area of WFOX(FM) (the
"WFOX(FM) Coverage Area") and where the *Atlanta Journal-Constitution*
enjoys significant circulation. Cox asserts the level of diversity in
the Atlanta media market, and more specifically, within the WFOX(FM)
Coverage Area, exceeds that found to be sufficient in other cases in
which the Commission has granted temporary waivers of the
broadcast/newspaper cross ownership rule. Specifically, Cox provides
contour maps and other engineering exhibits showing that 12 full-power
television stations (including Cox-owned WSB-TV, Atlanta, Georgia) and
106 radio stations (not including WFOX or the five Cox affiliated
stations) provide service to some portion of the WFOX(FM) Coverage Area.
According to Cox, at least 36 cable companies serve more than 870,000
subscribers within the WFOX(FM) Coverage Area, and at least five
different daily papers, published by four companies other than Cox, are
published in counties located entirely within the 1 mV/m contour. Cox
also notes that at least 36 weekly papers, owned by 22 different owners,
are published in the area, and MMDS, MDS, DBS, outdoor advertising and
direct mail are all players in the economic and information marketplace.
Cox asserts that diversity would not be adversely impacted because Cox's
newspaper and broadcast stations are operated separately.

5\. As further support for its waiver request, Cox notes that in 1997
the Commission granted a temporary waiver to permit Cox to acquire
WJZF(FM), La Grange, Georgia, from NewCity Communications, Inc.[^5] A
waiver was required because the 1 mV/m contour of WJZF(FM) encompasses
Atlanta, thus triggering the radio/newspaper cross-ownership rule's
contour encompassment prohibition with regard to common ownership of
WJZF(FM) and *The Atlanta Journal-Constitution*. The Commission's
decision there was based on its determination that abundant competition
and diversity would remain in the Atlanta market following the
acquisition of WJZF(FM).[^6] Cox asserts that competition and diversity
among media voices in the Atlanta market is at least as strong today as
it was when the Commission granted the *NewCity* application.

**DISCUSSION**

6\. In adopting the 1975 rule that generally prohibited the common
ownership of a newspaper and broadcast station serving the same
community, the Commission made it clear that fostering diverse
viewpoints from antagonistic sources is at the heart of our licensing
responsibility.[^7] The Commission concluded that granting a broadcast
license to an entity in the same community as that in which the entity
also publishes a newspaper could harm local diversity.[^8] At the same
time, the Commission noted its expectation that there could be
meritorious waiver requests and specified four circumstances in which
waivers would be warranted: (1) where a licensee is unable to sell a
station; (2) where the only sale possible would be at an artificially
depressed price; (3) where separate ownership and operation of the
newspaper and the broadcast station could not be supported in the
locality; or (4) where, for whatever reason, the purposes of the rule
would be disserved by its application.[^9]

7\. The Commission has granted temporary waivers of the multiple
ownership rules, including the daily newspaper/broadcast cross-ownership
rule, in order to facilitate transactions involving stations in
different markets. *See Capital Cities/ABC, Inc.*, 11 FCC Rcd 5841, 5895
(1996) (granting 12-month waivers of radio-newspaper cross-ownership
rule to the Walt Disney Company in Fort Worth, Texas and
Detroit-Pontiac, Michigan); *Multimedia, Inc.*, 11 FCC Rcd 4883, 4891
(1995) (granting 12-month waiver of television-newspaper cross-ownership
rule to Gannett Co., Inc. in Cincinnati, Ohio). *See also, Shareholders
of CBS Corporation and Viacom, Inc.*, FCC 00-155 (May 3, 2000) (granting
12-month waivers of the Dual Network Rule and the National Television
Ownership Cap). In *Multimedia, Inc.*, we stated that where "mergers or
transfers of multiple stations are involved, in general we believe that
the benefits derived from such transactions support grant of a
reasonable waiver period to effectuate the merger and permit time to
come into compliance with our rules." *Multimedia, Inc.*, 11 FCC Rcd at
4885. We believe that a temporary waiver period is appropriate in the
instant case to effectuate the overall station exchange between Cox and
AMFM, Inc., and to avoid a forced sale of WFOX(FM) or the newspaper.
Accordingly, we grant Cox a temporary 12-month waiver to allow an
orderly divestiture of either WFOX(FM) or the *The Atlanta
Journal-Constitution* newspapers.[^10]

8\. The Commission has determined that the relevant market for analyzing
the effects of a newspaper/radio cross-ownership waiver on diversity and
competition is the common area served by the newspaper and the 1 mV/m
contour of the FM station.[^11] Because we are convinced that *The
Atlanta Journal-Constitution* serves portions of at least 41 of the 43
counties that are contained either in whole or in part within the
WFOX(FM) Coverage Area, we accept Cox's characterization of the relevant
geographic market.[^12] Furthermore, given that the *Atlanta
Journal-Constitution's* daily circulation in almost every county within
the WFOX(FM) Coverage Area exceeds five percent,[^13] we are further
convinced that the relevant geographic market for our diversity and
competition analysis is the entire area within the WFOX(FM) Coverage
Area.

9\. We note that while the temporary waiver we granted in *NewCity* is
support for the action taken herein, the diversity finding we made there
is not dispositive of the finding in the instant case. The relevant
market for our diversity analysis in *NewCity* was the area of overlap
between WJZF(FM)'s 1 mV/m contour and the service area of the *Atlanta
Journal-Constitution*. In contrast, the relevant market in the instant
case is the area of overlap between the WFOX(FM) Coverage Area and the
service area of the *Atlanta Journal-Constitution*. La Grange (the
community at issue in *New City*) is located 67 miles southwest of
Atlanta, and Gainesville is located 55 miles northeast of Atlanta. La
Grange and Gainesville are approximately 120 miles apart, and the
newspapers and broadcast services available to them are not the same.

10\. For its diversity analysis, Cox has provided a listing of all of
the radio and television stations licensed to communities within the
WFOX(FM) Coverage Area, as well as contour maps and a listing of all of
the broadcast stations that serve the WFOX(FM) Coverage Area, but are
not licensed to communities therein. Considering the impact of the
proposed combination on local diversity, our analysis indicates that the
relevant market is served by a wide variety of media. Specifically, Cox
has shown that eleven full-time television stations are licensed to
communities located within the WFOX(FM) Coverage Area. Aural service to
the overlap area is also substantial. Cox has stated that at least 90
radio stations (excluding Cox stations) are licensed to communities
located within the WFOX(FM) Coverage Area. As described above, numerous
broadcast stations provide service to the WFOX(FM) Coverage Area.

11\. According to an engineering study provided by Cox, the WFOX(FM)
Coverage Area includes portions, if not all, of 43 counties in Georgia
and South Carolina (the "Overlap Counties"). Cox's waiver request
included a listing of each AM, FM and television station providing
service within the Overlap Counties.[^14] Based on a review of that
information, we are satisfied that there is sufficient diversity of
viewpoint in the Overlap Counties to counter the loss of one independent
viewpoint during the 12-month temporary waiver period. Specifically, in
the Overlap Counties in which *The Atlanta Journal Constitution's*
circulation exceeds 12.6% (which is the average circulation of all the
Overlap Counties combined), Cox has shown that 46 AMs, 29 FMs and 10
television stations, representing at least 57 independently-owned media
voices, provide service. In addition, none of the Overlap Counties
appears to be served by fewer than seven broadcast stations,
representing no fewer than seven independently-owned broadcast voices.

12\. Although we find that Cox's current ownership of five radio
stations and one television station within the WFOX(FM) Coverage Area is
not inconsequential, overall, we find that the *Atlanta
Journal-Constitution* faces competition from other media sources in
Gainesville and the surrounding area sufficient to offset the concern
for loss of diversity during the 12-month temporary waiver period. In
addition to the *Atlanta Journal-Constitution*, five daily newspapers,
published by four different entities, are published in counties within
the WFOX(FM) Coverage Area.[^15] At least 36 weekly newspapers are
published within the WFOX(FM) Coverage Area by 22 different owners. The
*Atlanta Journal-Constitution* has a combined daily circulation of just
9.5% in Hall County, yet *The Gainesville Times*, the only daily
newspaper published in either Hall County or Gainesville, has a
circulation of 38.9% in Hall County. Cable television penetration
throughout the area is substantial. There are 36 cable television
systems serving communities in the overlap area. Given this information,
we are satisfied that there is adequate diversity of viewpoint within
the relevant market to counter the loss of diversity from common
ownership of WFOX(FM) and *The Atlanta Journal-Constitution* during the
12-month temporary waiver period.

13\. In conclusion, we believe that a temporary 12-month waiver of the
radio/newspaper cross ownership rule is in the public interest, in order
to allow Cox time to divest itself of either WFOX(FM) or the *Atlanta
Journal-Constitution*. Moreover, we find that the parties are fully
qualified and that grant of the application would serve the public
interest.

14\. ACCORDINGLY, IT IS ORDERED, that the request for a temporary
12-month waiver of Section 73.3555(d) IS GRANTED, subject to the
condition that within twelve months of the date of consummation of the
proposed assignment of WFOX(FM), Gainesville, Georgia, from Chancellor
Media/Shamrock Radio Licenses, L.L.C. to Cox Radio, Inc., Cox Radio Inc.
comes into compliance with 47 C.F.R. § 73.3555(d) either by filing an
application to divest itself of its interest in WFOX(FM) or taking such
other action as may be necessary to bring it into compliance with 47
C.F.R. § 73.3555(d). Any request to extend this temporary period should
be filed at least 45 days prior to the end of the period and will be
closely scrutinized.

15\. IT IS FURTHER ORDERED, that the above-captioned application to
assign the license of WFOX(FM), Gainesville, Georgia, from Chancellor
Media/Shamrock Radio Licenses, L.L.C. to Cox Radio, Inc. (File No.
BALH-19991116AAT) IS GRANTED.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

[^1]: Cox Enterprises, Inc. ("CEI") is a privately held company with
    radio, television, newspaper and cable television interests
    throughout the United States. Its Atlanta Newspapers Division
    publishes the *Atlanta Journal-Constitution*. In addition, CEI owns
    100% of the issued and outstanding common stock of Cox Holdings,
    Inc. ("CHI"), which in turn owns 100% of the issued and outstanding
    common stock of Cox Broadcasting, Inc. ("CBI"). CBI owns 100% of the
    issued and outstanding Class B common stock of Cox Radio, Inc., the
    proposed assignee of WFOX(FM) ("CRI").

[^2]: In 1996, the Commission initiated an inquiry concerning proposed
    changes to the newspaper/radio cross-ownership waiver policy and
    invited public comment. *See Newspaper/Radio Cross-Ownership Waiver
    Policy, Notice of Inquiry*, MM Docket No. 96-197, 11 FCC Rcd 13003
    (1996) ("*Newspaper/Radio NOI").* The comments filed in that
    proceeding were considered in the Commission's 1998 Biennial
    Regulatory Review, wherein we sought comment on whether the
    newspaper/broadcast cross-ownership rule should be retained,
    modified or eliminated. *See 1998 Biennial Regulatory Review of the
    Commission's Broadcast Ownership Rules and Other Rules Adopted
    Pursuant to Section 202 of the Telecommunications Act of 1996*,
    *Notice of Inquiry,* 13 FCC Rcd 11276, 11288 (1998)*.* On May 26,
    2000, the Commission adopted the Biennial Review Report, in which we
    determined that, as a general matter, the rule should be retained
    because it continues to serve the public interest by furthering our
    important and substantial policy of viewpoint diversity. However, as
    we stated in the Biennial Review Report, "we believe that there may
    be circumstances in which the rule may not be necessary to achieve
    its intended public interest benefits. We, therefore, will initiate
    a rulemaking proceeding to consider tailoring the rule accordingly."
    *See Biennial Review Report*, MM Docket 98-35, FCC 00-191, at ¶ 88
    (rel. June 20, 2000).

[^3]: Pursuant to an Asset Exchange Agreement between Cox and AMFM,
    Inc., dated August 30, 1999, the parties will exchange the licenses
    and assets of 15 radio stations, including WFOX(FM). Specifically,
    AMFM is selling 13 stations to Cox, including WFOX(FM), as well as
    stations in: Stamford-Norwalk, Connecticut; Miami, Florida; and
    Jacksonville, Florida. In exchange, AMFM will acquire two stations
    from Cox in Los Angeles, California. This station exchange between
    Cox and AMFM will also facilitate AMFM's merger with Clear Channel
    Communications, Inc. Clear Channel's acquisition of the stations
    that AMFM proposes to sell to Cox would cause the merged entity to
    violate the Commission's multiple ownership rules.

[^4]: A combined paper is published on Saturdays and Sundays.

[^5]: *NewCity Communications, Inc.* 12 FCC Rcd 3929 (1997) (Commission
    granted temporary waiver of 47 C.F.R. § 73.3555(d) for a period
    ending six months from the date of a final order in MM Docket
    96-197).

[^6]: In *New City*, Cox provided information that nine television
    stations, eight low power television stations, and 68 radio stations
    (exclusive of Cox stations) were licensed to communities within the
    WJZF(FM) 1 mV/m contour area, as well as the presence of 37 cable
    systems, seven daily newspapers (not including the *Atlanta
    Journal-Constitution*) and 33 weekly newspapers. *Id.* at 3952.

[^7]: *Multiple Ownership of Standard, FM, and Television Broadcast
    Stations, Second Report and Order*, 50 FCC 2d 1046, 1079 (1975)
    ("*Second Report and Order*"), *recon*., 53 FCC 2d 589 (1975)
    ("*Recon. Order*"), *aff'd sub. nom. Federal Communications
    Commission v. National Citizens Committee for Broadcasting*, 436
    U.S. 775 (1978).

[^8]: *Second Report and* Order, 50 FCC 2d at 1075.

[^9]: *Second Report and Order*, 50 FCC 2d at 1085.

[^10]: As stated in *Capital Cities/ABC, Inc.*, 11 FCC Rcd at 5895, a
    12-month period should be sufficient to avoid a forced sale.
    Moreover, the Commission's observation in *Stockholders of CBS
    Inc.*, that "today's economic climate appears robust" and thus a
    12-month waiver provided the "transferee with ample time to locate
    potential purchasers and to negotiate purchase agreements for the
    stations to be divested" applies with equal force to the
    circumstances here. 11 FCC Rcd 3733, 3755-56 (1995).

[^11]: See *Columbia Montour Broadcasting Co., Inc.*, 13 FCC Rcd 13007,
    13015 (1998). *Also* s*ee Newspaper/Radio NOI*, 11 FCC Rcd at 13011;
    *Capital Cities/ABC, Inc.*, 11 FCC Rcd 5841, 5890 (1996); *Hopkins
    Hall Broadcasting, Inc.*, 10 FCC Rcd 9764, 9766 (1995).

[^12]: This is consistent with our decision in *Columbia Montour*,
    wherein we accepted the applicant's description of Columbia County,
    Pennsylvania, as being the relevant market because the boundaries of
    Columbia County approximated the common area served by the newspaper
    and the 2 mV/m contour of WCNR. Similarly, in *Stockholders of
    Renaissance Communications Corporation*, we concurred in the
    applicants' contention that the relevant geographic market was Dade,
    Broward and Palm Beach counties, because WDZL(TV)'s Grade A contour
    (the relevant contour when testing a newspaper/television cross
    ownership waiver) included portions of each of these counties, and
    the *Sun-Sentinel* was distributed in each county. *Stockholders of
    Renaissance Communications Corporation*, 12 FCC Rcd 11866 (1997).

[^13]: In just nine of the 43 counties that fall wholly or partially
    within the WFOX(FM) Coverage Area does the *Journal-Constitution*
    have less than five percent circulation. The *Atlanta
    Journal-Constitution*'s average level of daily circulation among all
    counties contained within the WFOX(FM) Coverage Area is 12.6%. The
    *Atlanta Journal-Constitutio*n's circulation is above average in 20
    counties within the WFOX(FM) Coverage Area.

[^14]: Cox determined the number of stations providing service within
    the overlap area as follows: for AM stations, the 2 mV/m contour was
    used; for FMs, the 1.0 mV/m contour was used; and for TV, the Grade
    A contour was used. As used herein, these contours are referred to
    as the "requisite level of service." This approach is consistent
    with the approach taken by the applicant in *WDRQ, Inc.*, 12 FCC
    Rcd. 11671 (1997) in which we granted a four-month waiver of the
    rule to allow ABC, Inc. to own both WDRQ(FM), Detroit, Michigan, and
    the *Oakland Press & Reminder*, which is published within the 1 mV/m
    contour of WDRQ(FM). *WDRQ, Inc.*, 12 FCC Rcd. at 11673.

[^15]: The *Marietta Daily Journal* is published in Cobb County, the
    *Gwinnett Daily Post* is published in Gwinnett County, the *Rockdale
    Citizen* is published in Rockdale County, the *Athens Banner Herald/
    Daily News* is published in Clarke County, and the *Gainesville
    Times* is published in Hall County, WFOX's home county.