Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In re Application of             | *  | File No. BAL-20000719ABA     |
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| Sunburst Media L.P.              | ** | File No. BAL-20000719ABI     |
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| (Assignor)                       | *  | File No. BALH-20000719ABJ    |
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| and                              | ** | File No. BALH-20000719ABK    |
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| Clear Channel Broadcasting       | *  | File No. BALH-20000719ABL    |
| Licenses, Inc.                   | *) |                              |
|                                  | ** | File No. BALH-20000719ABM    |
| (Assignee)                       |    |                              |
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| For Assignment of Licenses of:   | *) |                              |
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| Station KSLI(AM), Abilene, Texas |    |                              |
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| Station KEAN(AM), Abilene, Texas | *) |                              |
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| Station KEAN-FM, Abilene, Texas  |    |                              |
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| Station KULL(FM), Abilene, Texas | *) |                              |
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| Station KEYJ-FM, Abilene, Texas  |    |                              |
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| Station KHYS(FM), Abilene, Texas | *) |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: December 28, 2001 Released: January 11, 2002**

By the Commission:

1\. The Commission has under consideration an Application for Review
filed April 23, 2001 by Dove Media, Inc. ("Dove"), licensee of station
KORQ(FM), Winters, Texas, and a related pleading.[^1] Dove requests
review of a March 23, 2001 decision by the Chief, Audio Services
Division, Mass Media Bureau[^2] ("Staff Decision") that denied Dove's
December 20, 2000 Petition for Reconsideration of a November 15, 2000
staff ruling[^3] denying Dove's September 5, 2000 Petition to Deny and
granting the above-captioned application assigning the licenses for
stations KSLI(AM) (formerly KBBA(AM)), KEAN(AM), KEAN-FM, KULL(FM),
KEYJ-FM and KHYS(FM), Abilene, Texas, from Sunburst Media, L.P. to Clear
Channel Broadcasting Licenses, Inc. ("Clear Channel"). We find no error
in the Staff Decision and, therefore, deny the Application for Review.

2\. **Background.** Prior to the above-captioned assignment, Clear
Channel did not own radio stations in the Abilene market. The
transaction assigned six radio stations to Clear Channel, the maximum
number of commercial radio stations an entity may own, operate or
control in the Abilene market, pursuant to the radio contour overlap
provision of the Commission's broadcast multiple ownership rule.[^4]
*See* 47 C.F.R. § 73.3555(a)(1)(iii). Dove argues that, in addition to
the six stations being assigned, a seventh radio station in Abilene
should also be considered attributable to Clear Channel. Dove states
that while KWKC(AM), Abilene, Texas, is licensed to a non-Clear Channel
entity, Dynamic Broadcasting Company, it broadcasts nine hours of
programming per weekday, pursuant to its network affiliation with
Premiere Radio Networks ("PRN"), a Clear Channel subsidiary. Based on
this contractual relationship, Dove asks the Commission to attribute
KWKC(AM) to Clear Channel for purposes of the multiple ownership rules.
Attribution of a seventh radio station in the Abilene market would
render Clear Channel in violation of Section 73.3555(a)(1)(iii). In
support of its position, Dove maintains that the network / affiliate
relationship can be viewed as a form of time brokerage and argues that a
fair reading of 47 C.F.R. § 73.3555, Note 2, paragraph (k) should create
an attributable interest for the network entity in the affiliate
station.

3\. **Discussion**. Note 2, paragraph (k) of Section 73.3555 of the
Commission's rules defines time brokerage as "the sale by a licensee of
discreet blocks of time to a 'broker' that supplies the programming to
fill that time and sells the commercial spot announcements in it." 47
C.F.R. § 73.3555, Note 2, paragraph (k). Recognizing that time brokerage
agreements afford the broker significant influence over the brokered
station, the Commission's rules provide that time brokerage of another
radio station in the same market for more than fifteen percent of the
brokered station's weekly broadcast hours results in attribution of the
brokered station to the brokering licensee for purposes of applying the
multiple ownership rules.[^5] Unlike time brokerage, however, network /
affiliate relationships are not treated as attributable interests under
the Commission's rules or precedent. Dove requests that, in the context
of the subject assignment application, we expand current policy to
attribute such network affiliation agreements for purposes of the local
radio multiple ownership rule.

4\. Dove argues that the Application for Review is appropriate because
the issue involves a policy question previously unresolved by the
Commission. *See* 47 C.F.R. § 1.115(b)(2)(ii). Dove's position is
premised on an assumption that the disparate treatment of time brokerage
and network affiliation results from the Commission's failure to address
whether the latter should be recognized as an attributable relationship.
We disagree. Indeed, recently, the Commission comprehensively reviewed
its attribution rules and expressly addressed whether network
affiliation agreements should be deemed attributable interests.[^6]

5\. In the Broadcast Attribution Proceeding, the Commission sought to
identify *all* interests relevant to the underlying purposes of the
multiple ownership rules and which should, therefore, potentially be
counted in applying those rules. It specifically opted to attribute
certain television time brokerage *per se* and to count such interests
toward the brokering licensee's local ownership limits,[^7] noting that
the existing radio time brokerage rule has operated successfully to
ensure that the goals of competition and diversity are not undermined by
the existence of unattributed influence over radio stations in the same
market. The Commission explicitly declined to treat network affiliation
as a cognizable interest.[^8] Instead, the Commission provided that, to
the extent it might be appropriate to address concerns about a
particular radio or television network affiliation agreement, the
Commission would do so in the context of an equity/debt plus ("EDP")
analysis.[^9] The Commission thus concluded that "... where the program
supply agreement takes the form of a network affiliation agreement, the
network ... will have its interest in its affiliate attributed if it
invests in the affiliate above the EDP threshold." *Attribution Report
and Order*, 14 FCC Rcd at 12599-600, ¶ 89. Dove does not argue that
Clear Channel has an attributable interest in station KWKC(AM) under our
EDP analysis, nor does it present any evidence that Clear Channel has
the requisite financial investment to trigger the EDP rule.

6\. To the extent that Dove is asking us to change our policy with
respect to whether certain network affiliation agreements should be *per
se* attributable, we note that it has long been Commission practice to
make decisions that alter fundamental components of broadly applicable
regulatory schemes in the context of rule making proceedings, not
adjudications. *See, e.g., In re Application of Pine Bluff Radio, Inc.*,
14 FCC Rcd 6594, 6599 (1999) (any changes in methodology for determining
"radio markets," for purposes of the multiple ownership rule, are best
addressed in the context of a rule making); *Great Empire Broadcasting,
Inc.* 14 FCC Rcd 11145, 11148 (1999) (it is generally inappropriate to
address arguments for a change in rules "where third parties, including
those with substantial stakes in the outcome, have had no opportunity to
participate, and in which we, as a result, have not had the benefit of a
full and well-counseled record," citing *Capital Cities/ABC, Inc.*, 11
FCC Rcd 5841, 5888 (1996)); *Community Television of Southern California
v. Gottfried*, 459 U.S. 498, 511 (1983) ("rulemaking is generally
better, fairer, and more effective method of implementing a new industry
wide policy than the uneven application of conditions in isolated
\[adjudicatory\] proceedings"). Thus, the better forum in which to
assess Dove's argument is not an adjudicatory proceeding, where the many
parties potentially affected by the proposition lack opportunity to
participate. Rather, Dove's argument is more appropriately addressed in
a notice and comment rule making, with the benefit of an extensive and
well-counseled record developed therein. In fact, as noted above and in
the Staff Decision, the same argument raised by Dove in this proceeding
was examined and resolved by the Commission in the Broadcast Attribution
Proceeding.

7\. Accordingly, IT IS ORDERED that the April 23, 2001 Application for
Review filed by Dove Media, Inc. IS HEREBY DENIED.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

[^1]: Clear Channel Broadcasting Licenses, Inc. filed an opposition on
    May 8, 2001.

[^2]: *Letter to Dennis J. Kelly, Esq., Peter Gutmann, Esq., and Richard
    J. Bodorff, Esq.,* Ref. No. 1800B3-BSH (Mass Media Bureau, March 23,
    2001).

[^3]: *Letter to Dennis J. Kelly, Esq.,* Ref. No. 1800B3-AB (Mass Media
    Bureau, November 15, 2000).

[^4]: The assignment was consummated on December 15, 2000.

[^5]: Note 2, paragraph (k)(1) of Section 73.3555 states that where a
    party with an attributable ownership interest in one station in a
    radio market "brokers more than 15 percent of the broadcast time per
    week of the other such station, that party shall be treated as if it
    has an interest in the brokered station ..." 47 C.F.R. § 73.3555,
    Note 2, paragraph (k)(1).

[^6]: *In the Matter of Review of the Commission's Regulations Governing
    Attribution of Broadcast and Cable/MDS Interests; Review of the
    Commission's Regulations and Policies Affecting Investment in the
    Broadcast Industry; and Reexamination of the Commission's
    Cross-Interest Policy*, *Report and Order*, 14 FCC Rcd 12559,
    12599-600, ¶ 89 (1999) ("*Attribution Report and Order*");
    *Memorandum Opinion and Order on Reconsideration*, 16 FCC Rcd 1097
    (2001) ("*Attribution Reconsideration Order*") ("Broadcast
    Attribution Proceeding").

[^7]: *Attribution Report and Order*, 14 FCC Rcd at 12597-598, ¶¶ 83-84.

[^8]: *See id.* at 12599-600, ¶¶ 88-89.

[^9]: *Id*. at 12579, ¶ 36; 47 C.F.R. § 73.3555, Note 2, paragraph (j).
    Specifically, we apply a two-pronged test to determine whether an
    interest is attributable under EDP. Under the first prong, we ask
    whether the investor is either a major program supplier that
    supplies over 15 percent of a station's total weekly broadcast
    programming hours, or a same-market media entity subject to the
    broadcast multiple ownership rules. The second prong looks at the
    extent of the financial interest. A major program supplier's or a
    same-market media entity's interest in a licensee or other media
    entity in that market will be attributed if that interest,
    aggregating both debt and equity holdings, exceeds 33 percent of the
    total asset value (equity plus debt) of the licensee or media
    entity.