In  the  Matter  of 
 Rules  and  Policies  Concerning 
 Multiple  Ownership  of  Radio  Broadcast 
 Stations  in  Local  Markets 

 Definition  of  Radio  Markets 

 ) 
 ) 
 ) 
 ) 
 ) 
 ) 
 ) 
 ) 

 MM  Docket  No.  01-  317 
 MM  Docket  No.  00-  244 
 NOTICE  OF  PROPOSED  RULE  MAKING  AND 
 FURTHER  NOTICE  OF  PROPOSED  RULE  MAKING 

 Adopted:  November  8,  2001  Released:  November  9,  2001 
 By  the  Commission:  Commissioners  Copps  and  Martin  issuing  separate  statements. 
 Comment  Date:  60  Days  After  Publication  in  Federal  Register 
 Reply  Comment  Date:  90  Days  After  Publication  in  Federal  Register 

 I.  INTRODUCTION 
 1.  In  accordance  with  Sections  309(  a)  and  310(  d)  of  the  Communications  Act  of  1934 
 (the  1934  Act),  the  Commission  issues  new  radio  broadcast  licenses  and  approves  the  assignment 
 and  transfer  of  those  licenses  only  when  those  actions  are  consistent  with  the  public  interest, 
 convenience,  and  necessity.  1  Pursuant  to  its  public  interest  authority,  the  Commission  historically 
 has  sought  to  promote  diversity  and  competition  in  broadcasting  by  limiting  by  rule  the  number  of 
 radio  stations  a  single  party  could  own  or  acquire  in  a  local  market.  2  In  Section  202(  b)  of  the 
 Telecommunications  Act  of  1996  (the  1996  Act),  Congress  directed  the  Commission  to  revise  its 
 local  radio  ownership  rule  to  relax  the  numerical  station  limits  in  the  ownership  rules.  3  In  the 
 almost  six  years  since  the  Commission  implemented  this  congressional  directive,  the  local  radio 
 market  has  been  significantly  transformed  as  many  communities  throughout  the  country  have 
 experienced  increased  consolidation  of  radio  station  ownership.  In  this  proceeding,  we  seek  to 
 examine  the  effect  that  this  consolidation  has  had  on  the  public  and  to  consider  possible  changes 
 to  our  local  radio  ownership  rules  and  policies  to  reflect  the  current  radio  marketplace. 

 1 
 47  U.  S.  C.    309(  a);  310(  d). 

 2 
 See  47  C.  F.  R.    73.3555(  a)  for  the  current  version  of  the  local  radio  ownership  rule.  In  addition  to  limiting  the 

 number  of  radio  stations  that  may  be  commonly  owned,  the  local  radio  ownership  rule  in  effect  between  1992  and 
 1996  presumed  that  acquisitions  of  radio  stations  that  proposed  a  combined  audience  share  greater  than  25% 
 were  contrary  to  the  public  interest. 

 3 
 Pub.  L.  No.  104-  104,    202(  b),  110  Stat.  110. 
1
 Federal  Communications  Commission  FCC  01-  329 
 2 
 II.  BACKGROUND 
 2.  To  guide  our  evaluation  of  the  regulatory  policies  that  we  should  adopt  in  light  of  the 
 current  radio  marketplace,  we  review  the  background  of  the  local  radio  ownership  rule  and  the 
 traditional  interests  that  the  rule  was  intended  to  advance. 

 A.  Rules  and  Policies  before  1992 
 3.  The  Commission  first  limited  local  radio  ownership  in  1938,  when  it  denied  an 
 application  for  a  new  AM  station  on  the  ground  that  the  parties  that  controlled  the  applicant  also 
 controlled  another  AM  station  in  the  same  community.  4  The  Commission  found  that  the 
 commonly  owned,  same  service  stations  would  not  compete  with  each  other  and  that  granting  the 
 application  could  preclude  a  competitive  station  from  entering  the  market.  5  Accordingly,  to 
 assure  a  substantial  equality  of  service  to  all  interests  in  a  community  and  to  assure 
 diversification  of  service  and  advancements  in  quality  and  effectiveness  of  service,  the 
 Commission  held  that  it  would  allow  commonly  owned  duplicate  facilities  only  where  it  would 
 fulfill  a  community  need  that  otherwise  could  not  be  fulfilled.  6  Based  on  this  policy,  the 
 Commission  found  that  the  public  convenience,  interest  or  necessity  would  not  be  served  by 
 grant  of  the  application.  7 

 4.  In  the  early  1940s,  this  policy  was  codified  in  the  Commissions  rules.  8  AM  licensees 
 were  prohibited  from  owning  another  AM  station  that  would  provide  primary  service  to  a 
 substantial  portion  of  the  primary  service  area  of  a  commonly  owned  AM  station,  except 
 where  the  public  interest  would  be  served  by  multiple  ownership.  9  FM  licensees  were  prohibited 
 from  owning  another  FM  station  that  served  substantially  the  same  service  area.  10  Between 
 1940  and  1964,  the  Commission  determined  on  a  case-  by-  case  basis  whether  two  commonly 
 owned,  same  service  radio  stations  served  substantially  the  same  area. 

 4 
 Genesee  Radio  Corp.,  5  FCC  183. 

 5 
 Id.  at  186. 

 6 
 Id.  at  187. 

 7 
 Id. 

 8 
 See  Amendment  of  Sections  3.35,  3.240  and  3.636  of  the  Rules  and  Regulations  Relating  to  Multiple  Ownership 

 of  AM,  FM  and  Television  Broadcast  Stations,  Report  and  Order,  18  FCC  288,  290  (  4)  n.  3  (1953)  (1953 
 Decision)  (citing  5  Fed.  Reg.  2384  (1940),  6  Fed.  Reg.  2284  (1941),  and  8  Fed.  Reg.  16065  (1943));  id.  at  290- 
 91  (  8),  295-  96;  Amendment  of  Section  73.3555  of  the  Commissions  Rules,  the  Broadcast  Multiple  Ownership 
 Rules,  First  Report  and  Order,  4  FCC  Rcd  1723,  1723  (  5)  (1989)  (1989  Decision). 

 9 
 See,  e.  g.,  1953  Decision,  18  FCC  2d  at  295-  96. 

 10 
 See,  e.  g.,  id.  Unlike  the  AM  rule,  the  FM  rule  did  not  expressly  provide  for  a  public  interest  exception.  Id. 
2
 Federal  Communications  Commission  FCC  01-  329 
 3 
 5.  In  1964,  the  Commission  replaced  its  case-  by-  case  analysis  with  a  fixed  standard 
 consisting  of  a  contour-  based  test  that  looked  solely  to  the  overlap  of  the  radio  stations  signals.  11 
 The  new  rule  prohibited  common  ownership  of  same  service  stations  when  any  overlap  of 
 contours  occurred,  not  just  the  situation  where  there  was  a  substantial  overlap.  The 
 Commission  explained  that  the  purpose  of  the  multiple  ownership  rules  was  to  promote 
 maximum  diversification  of  program  and  service  viewpoints  and  to  prevent  undue  concentration 
 of  economic  power  contrary  to  the  public  interest.  12  The  Commission  found  that  the  local  radio 
 ownership  rule  in  particular  was  based  on  two  principles:  first,  that  it  is  more  reasonable  to 
 assume  that  stations  owned  by  different  people  will  compete  with  each  other,  for  the  same 
 audience  and  advertisers,  than  stations  under  the  control  of  a  single  person  or  group;  13  and 
 second,  that  the  greater  the  diversity  of  ownership  in  a  particular  area,  the  less  chance  there  is 
 that  a  single  person  or  group  can  have  an  inordinate  effect,  in  a  political,  editorial,  or  similar 
 programming  sense,  on  public  opinion  at  the  regional  level.  14  Quoting  Associated  Press  v. 
 United  States,  15  the  Commission  cited,  as  support  for  the  local  ownership  limits,  the  principle  that 
 the  First  Amendment  rests  on  the  assumption  that  the  widest  possible  dissemination  of 
 information  from  diverse  and  antagonistic  sources  is  essential  to  the  welfare  of  the  public.  16 

 6.  In  the  early  1970s,  the  Commission  briefly  restricted  local  radio  ownership  further  by 
 prohibiting,  with  certain  exceptions,  common  ownership  of  different  service  broadcast  stations  in 
 the  same  market.  17  These  limits  were  designed  to  advance  diversity  by  maximizing  the  number  of 
 independent  owners  of  broadcast  media  in  a  market,  and  the  Commission  rejected  arguments  that 
 common  ownership  of  local  broadcast  stations  would  enhance  the  ability  of  station  owners  to 
 provide  better  quality,  more  responsive  programming.  18  The  Commission  also  found  that  common 
 ownership  of  local  broadcast  stations  could  lessen  the  degree  of  competition  for  advertising 
 among  the  alternative  media  and  that  common  owners  could  use  practices  [such  as  special 
 discounts]  which  exploit  [their]  advantage  over  the  single  station  owner.  19  On  reconsideration, 

 11 
 See  Amendment  of  Sections  73.35,  73.240,  and  73.636  of  the  Commissions  Rules  Relating  to  Multiple 

 Ownership  of  Standard,  FM  and  Television  Broadcast  Stations,  Report  and  Order,  45  FCC  1476,  1484  (  20) 
 (1964  Decision). 

 12 
 Id.  at  1476-  77  (  2). 

 13 
 Id.  at  1477  (  3). 

 14 
 Id.  (internal  quotation  marks  omitted). 

 15 
 326  U.  S.  1  (1945). 

 16 
 1964  Decision,  45  FCC  at  1477  (  3)  (quoting  Associated  Press,  326  U.  S.  at  20). 

 17 
 See  Amendment  of  Sections  73.35,  73.240  and  73.636  of  the  Commission  Rules  Relating  to  Multiple  Ownership 

 of  Standard,  FM  and  Television  Broadcast  Stations,  First  Report  and  Order,  22  FCC  2d  306,  307  (  5-  6),  309 
 (  10-  13)  (1970). 

 18 
 Id.  at  311-  12  (  21-  23). 

 19 
 Id.  at  313  (  25). 
3
 Federal  Communications  Commission  FCC  01-  329 
 4 
 however,  the  Commission  relaxed  its  new  ownership  restrictions  to  allow  again,  in  all 
 circumstances,  a  party  to  hold  a  single  AM-  FM  combination.  20 

 7.  In  1989,  the  Commission  relaxed  certain  technical  aspects  of  the  contour  overlap  test, 
 which  decreased  the  likelihood  of  contour  overlap  between  closely  located  stations  and  thereby 
 increased  the  ability  of  a  single  party  to  own  those  stations.  21  In  making  this  change,  the 
 Commission  determined  that  ownership  diversity  was  not  an  end  in  itself,  but  a  means  of 
 promoting  diversity  of  program  sources  and  viewpoints.  22  The  Commission  determined  that  its 
 rule  change  would  not  adversely  affect  programming  and  viewpoint  diversity  because  the  number 
 of  media  outlets  had  increased  since  the  contour  overlap  test  was  developed  in  1964  and  because 
 the  efficiencies  that  common  ownership  would  generate  could  lead  to  programming  benefits.  23 
 The  Commission  also  cited  the  increase  in  media  outlets  and  the  competition  that  radio  stations 
 faced  in  the  advertising  market  from  television  stations,  cable  systems,  and  newspapers  to  support 
 its  conclusion  that  relaxing  the  contour-  based  test  would  not  harm  competition.  24 

 B.  The  1992  Radio  Ownership  Proceeding 
 8.  In  a  1992  proceeding,  the  Commission  found  that  increases  in  the  number  and  types  of 
 media  outlets  warranted  further  relaxation  of  the  rule.  25  Citing  greater  numbers  of  radio  and 
 television  stations  and  the  growth  of  cable,  particularly  cable  radio  networks,  the  Commission 
 determined  that  relaxing  the  local  radio  ownership  rule  would  not  harm  diversity  or  competition.  26 
 Specifically  with  respect  to  competition,  the  Commission  found  that  the  radio  industrys  share  of 
 the  local  advertising  market,  in  which  the  Commission  included  television  stations  and  cable 
 systems,  had  remained  flat.  27  Moreover,  the  Commission  found  that  the  inability  of  radio  stations 
 to  realize  the  efficiencies  arising  from  common  ownership  harmed  diversity  and  competition  by 
 making  it  more  difficult  for  radio  stations  to  compete  and  to  provide  valuable  programming 

 20 
 The  Commission  indicated  that  it  wished  to  examine  the  question  of  AM-  FM  combinations  further. 

 Amendment  of  Sections  73.35,  73.240  and  73.636  of  the  Commissions  Rules  Relating  to  Multiple  Ownership  of 
 Standard,  FM  and  Television  Broadcast  Stations,  Memorandum  Opinion  and  Order,  28  FCC  2d  662,  671-  72  ( 
 35-  36)  (1971). 

 21 
 1989  Decision,  4  FCC  Rcd  at  1723  (  1). 

 22 
 Id.  at  1724  (  7). 

 23 
 Id.  at  1727  (  31,  37). 

 24 
 Id.  at  1727  (  33). 

 25 
 Revision  of  Radio  Rules  and  Policies,  Report  and  Order,  7  FCC  Rcd  2755,  2773-  74  (  35)  (1992). 

 26 
 Id.  at  2757-  58  (  4-  6),  2773-  74  (  35). 

 27 
 Id.  at  2759  (  8). 
4
 Federal  Communications  Commission  FCC  01-  329 
 5 
 services.  28  Accordingly,  the  Commission  decided  to  relax  its  ownership  rules  to  permit  greater 
 consolidation  of  radio  stations  in  the  local  market. 

 9.  The  Commission  initially  adopted  a  tiered  approach,  similar  to  the  approach  that 
 would  be  adopted  in  the  1996  Act.  Under  the  Commissions  framework,  although  common 
 ownership  of  stations  with  overlapping  signals  technically  remained  prohibited,  an  exception  was 
 created  to  allow  common  ownership  of  a  specified  number  of  radio  stations  based  on  the  number 
 of  radio  stations  in  the  market.  To  determine  the  number  of  stations  that  could  be  commonly 
 owned,  radio  markets  were  divided  into  four  tiers,  and  the  maximum  number  of  radio  stations  that 
 a  single  party  could  own  was  3  AM  and  3  FM  stations  in  the  top  tier,  i.  e.,  markets  having  40  or 
 more  radio  stations.  29  In  markets  with  more  than  15  radio  stations  (the  top  3  tiers),  the  numerical 
 limits  were  also  subject  to  an  audience  share  cap  of  25  percent.  Although  the  Commission 
 recognized  that  the  25  percent  limit  was  substantially  more  restrictive  than  ordinary  antitrust 
 concerns  would  mandate,  the  Commission  decline[  d]  to  base  [the]  common  ownership 
 restrictions  solely  on  economic  concentration  considerations  because  the  restrictions  also  were 
 designed  to  protect  and  promote  a  diversity  of  voices    a  concern  distinct  from  antitrust 
 objectives.  30  Both  the  market  size  and  the  audience  share  were  calculated  based  on  the  relevant 
 Arbitron  market.  31  In  adopting  this  framework,  the  Commission  reserved  the  right  to  implement 

 28 
 Id.  at  2774  (  37). 

 29 
 Id.  at  2776  (  40).  The  complete  framework  was  as  follows: 

 In  markets  with  fewer  than  15  radio  stations,  a  single  licensee  will  be  permitted  to  own  up  to  three 
 stations,  no  more  than  two  of  which  are  in  the  same  service,  provided  that  the  owned  stations  represent 
 less  than  50  percent  of  the  stations  in  the  market.  Common  ownership  of  one  AM/  FM  combination  will 
 continue  to  be  allowed  in  any  event. 

 In  markets  with  15  to  29  radio  stations,  a  single  licensee  will  be  permitted  to  own  up  to  two  AM  stations 
 and  two  FM  stations,  provided  that  the  combined  audience  share  of  the  stations  does  not  exceed  25 
 percent. 

 In  markets  with  30  to  39  radio  stations,  a  single  licensee  will  be  permitted  to  own  up  to  three  AM 
 stations  and  two  FM  stations,  provided  that  the  combined  audience  share  of  the  stations  does  not  exceed 
 25  percent. 

 In  markets  with  40  or  more  radio  stations,  a  single  licensee  will  be  permitted  to  own  up  to  three  AM 
 stations  and  three  FM  stations,  provided  that  the  combined  audience  share  of  the  stations  does  not 
 exceed  25  percent. 

 Id. 
 30 
 Id.  at  2780  (  50). 

 31 
 Id.  at  2778  (  45).  For  stations  that  were  not  in  Arbitron  markets,  the  Commission  used  a  contour  overlap 

 market  definition  under  which  a  radio  market  was  the  area  encompassed  by  the  principal  community  contours  of 
 the  commonly  owned  stations  whose  contours  overlapped.  For  purposes  of  applying  the  numerical  caps,  the 
 number  of  stations  in  the  market  was  calculated  based  on  the  number  of  commercial  radio  stations  whose 
 principal  community  contours  fell  fully  or  partially  within  the  radio  market.  To  apply  the  audience  share  test  in 
 non-  Arbitron  markets,  applicants  were  required  to  commission  an  audience  survey  for  the  counties  that  were 
 located  in  whole  or  in  part  in  the  radio  market.  See  id.  at  2778-  79  (  45-  46)  &  n.  101;  2798. 
5
 Federal  Communications  Commission  FCC  01-  329 
 6 
 a  full  range  of  remedies  where  ownership  levels  in  a  particular  market  might  threaten  the  public 
 interest.  32 

 10.  On  reconsideration,  the  Commission  again  modified  its  local  radio  ownership  rule.  33 
 The  rule  still  generally  prohibited  common  ownership  of  overlapping  stations,  but  the  Commission 
 revised  the  exception  to  allow  common  ownership  of  up  to  only  2  AM  and  2  FM  stations  in  all 
 markets  with  15  or  more  radio  stations.  In  smaller  markets,  a  single  party  could  own  up  to  3 
 stations,  of  which  no  more  than  2  could  be  in  the  same  service.  34  The  Commission  also  replaced 
 the  audience  share  cap  with  a  provision  that,  in  markets  with  15  or  more  radio  stations,  evidence 
 that  grant  of  any  application  will  result  in  a  combined  audience  share  exceeding  25  percent  will  be 
 considered  prima  facie  inconsistent  with  the  public  interest.  35  The  Commission  explained  that 
 this  provision  was  designed  to  prevent  excessive  concentration  even  if  the  combination 
 complied  with  the  2  AM-  2  FM  limit.  36  The  language  of  the  rule  indicated  that  the  excessive 
 concentration  determination  would  be  made  under  the  public  interest  standard. 

 11.  The  Commission  also  altered  the  market  definition  for  calculating  the  numerical  caps; 
 instead  of  Arbitron  markets,  the  Commission  adopted  a  contour  overlap  market  definition.  37  To 
 determine  audience  share,  however,  the  Commission  retained  use  of  Arbitron  markets,  or,  if 
 Arbitron  data  was  unavailable,  the  market  created  by  the  counties  covered  by  the  contours  of  the 
 stations  to  be  combined.  38  In  certain  cases,  the  Commission  permitted  applicants  to  make 
 alternative  showings  to  demonstrate  that  the  proposed  combination  would  not  lead  to  excessive 
 concentration.  39 

 32 
 Id.  at  2783  (  56)  n.  109.  In  particular,  the  Commission  suggested  that,  in  appropriate  circumstances,  it  may 

 order  divestiture  of  a  station  if  through  audience  growth  any  station  group  reaches  or  exceeds  a  40  percent  local 
 market  share.  Id. 

 33 
 See  Revision  of  Radio  Rules  and  Policies,  Memorandum  Opinion  and  Order  and  Further  Notice  of  Proposed 

 Rulemaking,  7  FCC  Rcd  6387  (1992)  (1992  Reconsideration  Order). 

 34 
 Id.  at  6393  (  32). 

 35 
 Id.  at  6406. 

 36 
 Id.  at  6393  (  32). 

 37 
 Id.  at  6395  (  39-  40). 

 38 
 Id.  at  6398  (  52-  53). 

 39 
 Id.  at  6399-  400  (  54-  58).  The  Commission  issued  a  second  reconsideration  order  in  1994  in  which  the 

 Commission  maintained  the  rule  adopted  in  the  1992  reconsideration  order,  except  for  certain  technical 
 modifications.  Revision  of  Radio  Rules  and  Policies,  Second  Memorandum  Opinion  and  Order,  9  FCC  Rcd 
 7183,  7187-  90  (  24-  39)  (1994).  In  deciding  not  to  modify  the  rule  further,  the  Commission  acknowledged  that 
 its  new  rule  would  increase  concentration  in  smaller  radio  markets,  while  maintaining  an  unconcentrated  market 
 structure  in  larger  markets.  Id.  at  7186  (  17-  18).  The  Commission  concluded,  however,  that  consolidation 
 permitted  greater  efficiencies  and  could  increase  diversity  by  providing  the  means  for  marginal  stations  to  come 
 (continued.) 
6
 Federal  Communications  Commission  FCC  01-  329 
 7 
 C.  The  1996  Act 
 12.  In  the  1996  Act,  Congress  directed  the  Commission  to  revise  its  local  ownership  rule. 
 Specifically,  Section  202(  b)(  1)  of  the  1996  Act,  entitled  Local  Radio  Diversity  Applicable 
 Caps,  required  the  Commission  to  revise  its  local  radio  ownership  rule  to  provide  that: 

 (A)  in  a  radio  market  with  45  or  more  commercial  radio  stations,  a  party  may  own, 
 operate,  or  control  up  to  8  commercial  radio  stations,  not  more  than  5  of  which  are  in  the 
 same  service  (AM  or  FM); 

 (B)  in  a  radio  market  with  between  30  and  44  (inclusive)  commercial  radio  stations,  a 
 party  may  own,  operate,  or  control  up  to  7  commercial  radio  stations,  not  more  than  4  of 
 which  are  in  the  same  service  (AM  or  FM); 

 (C)  in  a  radio  market  with  between  15  and  29  (inclusive)  commercial  radio  stations,  a 
 party  may  own,  operate,  or  control  up  to  6  commercial  radio  stations,  not  more  than  4  of 
 which  are  in  the  same  service  (AM  or  FM);  and 

 (D)  in  a  radio  market  with  14  or  fewer  commercial  radio  stations,  a  party  may  own, 
 operate,  or  control  up  to  5  commercial  radio  stations,  not  more  than  3  of  which  are  in  the 
 same  service  (AM  or  FM),  except  that  a  party  may  not  own,  operate,  or  control  more  than 
 50  percent  of  the  stations  in  such  market.  40 

 The  Conference  Report  provides  little  additional  detail  concerning  Section  202(  b),  stating  merely 
 that  [  n]  ew  subsection  [202](  b)  directs  the  Commission  to  further  modify  its  rules  with  respect  to 
 the  number  of  radio  stations  a  party  may  own,  operate  or  control  in  a  local  market.  41  In  (Continued  from  previous  page) 

 or  remain  on  the  air  and  by  providing  incentives  for  common  station  owners  to  offer  diverse  formats  targeting 
 different  segments  of  the  audience.  Id.  at  7186  (  19-  20). 

 40 
 Section  202(  b)  also  provides  that  the  Commission  may  permit  a  party  to  exceed  these  limits  if  the  Commission 

 determines  that  [it]  will  result  in  an  increase  in  the  number  of  radio  broadcast  stations  in  operation.  1996  Act, 
   202(  b)(  2),  110  Stat.  at  110-  11. 

 41 
 H.  R.  Conf.  Rep.  104-  458,  104th  Cong.,  2d  Sess.  162  (1996).  The  legislative  history  of  Section  202(  b)  reflects 

 the  significant  differences  between  the  local  radio  ownership  provisions  of  the  Senate  and  House  bills  and  Section 
 202(  b).  The  Senate  bill  would  have  required  the  Commission  to  modify  its  broadcast  ownership  rules  to 
 eliminate  numerical  limits  on  the  number  of  AM  or  FM  stations  that  may  be  owned  or  controlled  by  one  entity 
 nationally  or  in  a  particular  market.  S.  652,    206(  b)(  2).  The  bill  authorized  the  Commission  to  refuse  to 
 approve  the  transfer  or  issuance  of  a  radio  license  if  it  finds  that  an  entity  would  obtain  an  undue  concentration 
 of  control  or  would  thereby  harm  competition.  Id.  Thus,  the  Senate  bill  would  have  replaced  numerical  and 
 audience  share  limits  with  a  case-  by-  case  analysis  focused  on  competition  issues.  The  House  bill  would  have 
 eliminated  the  local  radio  ownership  rule  in  its  entirety,  but  would  have  authorized  the  Commission  to  deny  an 
 application  for  a  station  license,  license  renewal,  or  license  assignment  if  the  combination  of  the  station  and 
 more  than  one  other  nonbroadcast  media  of  mass  communication  would  result  in  an  undue  concentration  of 
 media  voices  in  the  respective  local  market.  H.  R.  1555,    302(  c)  (July  4,  1995)  (proposing  to  add  new  section 
 337(  c)  to  the  Communications  Act).  The  term  medium  of  mass  communication  was  intended  to  include  radio 
 and  television  stations  licensed  to  communities  in  the  market,  daily  newspapers  published  in  communities  in  the 
 market,  and  cable  television  and  other  equivalent  delivery  systems  that  service  communities  in  the  market.  See 
 H.  Rep.  No.  104-  204,  pt.  1,  at  118.  The  House  bill  also  would  have  prohibited  grant  of  such  an  application  if  it 
 would  result  in  all  the  media  of  mass  communication  in  such  local  market  being  owned,  operated,  or  controlled 
 by  two  or  fewer  persons  or  entities.  H.  R.  1555,    302(  c)  (July  4,  1995). 
7
 Federal  Communications  Commission  FCC  01-  329 
 8 
 particular,  neither  the  1996  Act  nor  the  legislative  history  elaborates  on  the  intended  interplay 
 between  Section  202(  b)  and  the  public  interest  standard  contained  in  Sections  309(  a)  and  310(  d) 
 of  the  1934  Act. 

 13.  In  addition  to  Section  202(  b),  Congress  enacted  Section  202(  h)  in  the  1996  Act. 
 Section  202(  h)  directs  the  Commission  to  review  its  rules  adopted  pursuant  to  this  section  and 
 all  of  its  ownership  rules  biennially  .  .  .  and  [to]  determine  whether  any  of  such  rules  are  necessary 
 in  the  public  interest  as  the  result  of  competition.  42  Section  202(  h)  further  directs  the 
 Commission  to  repeal  or  modify  any  ownership  rules  that  it  finds  to  be  no  longer  in  the  public 
 interest.  43  The  legislative  history  provides  little  additional  discussion  concerning  the 
 implementation  of  Section  202(  h). 

 D.  The  Commissions  Implementation  of  Section  202(  b)  and  Subsequent 
 Decisions 

 14.  The  Commission  responded  to  Congresss  directive  in  Section  202(  b)  by  issuing  an 
 order  in  March  1996  replacing  a  portion  of  the  local  radio  ownership  rule,  including  both  the 
 numerical  station  limits  and  the  presumption  that  an  audience  share  of  greater  than  25%  was 
 prima  facie  inconsistent  with  the  public  interest,  with  the  language  set  forth  in  Section  202(  b).  44 
 The  Commission  found  that  prior  notice  and  an  opportunity  for  public  comment  were  unnecessary 
 because  the  rule  changes  [did]  not  involve  discretionary  action  on  the  part  of  the  Commission, 
 [but]  simply  implement[  ed]  provisions  of  the  Telecom  Act  that  direct  the  Commission  to  revise  its 
 rules  according  to  the  specific  terms  set  forth  in  the  legislation.  45  The  local  radio  ownership  rule 
 has  not  been  altered  since  the  Commissions  March  1996  order. 

 15.  In  1998,  the  Commission  commenced  a  biennial  review  to  examine  whether  the  local 
 radio  ownership  rule  was  necessary  in  the  public  interest  as  a  result  of  competition.  46  In  its 
 biennial  review  final  report,  the  Commission  concluded  that  the  rule  continued  to  serve  the  public 
 interest.  47  Although  the  Commission  noted  that  consolidation  had  produced  financial  benefits  for 
 the  radio  broadcast  industry,  the  Commission  expressed  concern  that  consolidation  could  be 

 42 
 110  Stat.  at  111-  12. 

 43 
 Id.  at  112. 

 44 
 Implementation  of  Sections  202(  a)  and  202(  b)(  1)  of  the  Telecommunications  Act  of  1996  (Broadcast  Radio 

 Ownership),  Order,  11  FCC  Rcd  12368. 

 45 
 Id.  at  12371  (  5). 

 46 
 1998  Biennial  Regulatory  Review  --  Review  of  the  Commissions  Broadcast  Ownership  Rules  and  Other  Rules 

 Adopted  Pursuant  to  Section  202  of  the  Telecommunications  Act  of  1996,  Notice  of  Inquiry,  13  FCC  Rcd  11276, 
 11276  (  1)  (1998)  (1998  NOI)  (quoting  Section  202(  h)  of  the  1996  Act). 

 47 
 1998  Biennial  Regulatory  Review  --  Review  of  the  Commissions  Broadcast  Ownership  Rules  and  Other  Rules 

 Adopted  Pursuant  to  Section  202  of  the  Telecommunications  Act  of  1996,  Biennial  Review  Report,  15  FCC  Rcd 
 11058,  11087  (  52)  (2000)  (Biennial  Review  Report) 
8
 Federal  Communications  Commission  FCC  01-  329 
 9 
 having  an  adverse  affect  on  local  advertising  rates.  48  The  Commission  also  expressed  concern  that 
 consolidation  could  reduce  diversity  of  viewpoint  and  source  diversity.  49  Accordingly,  the 
 Commission  decided  to  retain  the  local  radio  ownership  rule  without  modification.  50 

 16.  In  the  1998  biennial  review  proceeding,  the  Commission  also  decided  to  examine  the 
 method  by  which  it  defined  the  relevant  geographic  market  and  counted  the  number  of  commonly 
 owned  and  independent  commercial  radio  stations  for  purposes  of  applying  the  rule.  The 
 Commission  expressed  concern  that  its  current  method  of  defining  radio  markets  might  be 
 achieving  results  that  frustrate  the  Congress  intent  and  that,  together  with  its  method  of  counting 
 stations  in  a  market  for  various  purposes,  might  be  undermining  legitimate  expectations  of 
 broadcasters,  advertisers  and  the  public  as  to  the  size  of  the  market  and  the  number  of  stations  in 
 it.  51  The  Commission  accordingly  initiated  a  rulemaking  proceeding  in  December  2000  to  examine 
 possible  revisions  to  its  methodology  for  defining  the  market  and  counting  the  number  of 
 commonly  owned  and  independent  radio  stations.  52 

 17.  The  1996  revisions  to  the  local  radio  ownership  rule  enabled  greater  consolidation  of 
 radio  station  ownership  at  the  local  level,  and,  since  1996,  thousands  of  assignment  and  transfer  of 
 control  applications  have  been  filed  to  effectuate  this  consolidation.  53  Although  most  of  these 
 applications  were  granted  summarily,  the  Commission  in  certain  instances  faced  concerns 
 regarding  the  competitive  impact  of  proposed  transactions.  In  response  to  these  concerns,  the 
 Commission  concluded  in  a  written  decision  that  it  had  an  independent  obligation  [under  the 
 statute]  to  consider  whether  a  proposed  pattern  of  radio  ownership  that  complies  with  the  local 
 radio  ownership  limits  would  otherwise  have  an  adverse  competitive  effect  in  a  particular  local 
 radio  market  and[,]  thus,  would  be  inconsistent  with  the  public  interest.  54  In  several  written 
 decisions  since  1996,  the  Commission  engaged  in  public  interest  analyses  that  considered  the 
 potential  competitive  impact  of  the  proposed  transaction.  55 

 48 
 Id.  at  11088  (  55). 

 49 
 Id.  at  11089-  90  (  56-  57). 

 50 
 Id.  at  11091  (  60). 

 51 
 See  id.  at  11093-  94  (  65-  68)  for  a  more  complete  explanation  of  the  market  definition  methodology  at  issue 

 in  the  MM  Docket  No.  00-  244. 

 52 
 See  Definitions  of  Radio  Markets,  Notice  of  Proposed  Rulemaking,  15  FCC  Rcd  25077  (2000)  (Market 

 Definition  NPRM). 

 53 
 Radio  station  consolidation  also  occurred  at  the  national  level  as  a  result  of  the  elimination  of  national  radio 

 ownership  limits.  See  1996  Act,    202(  a),  110  Stat.  at  110. 

 54 
 CHET-  5  Broadcasting,  L.  P.,  Memorandum  Opinion  and  Order,  14  FCC  Rcd  13041,  13043  (  8)  (1999)  (citing 

 47  U.  S.  C.    309(  a)  and  KIXK,  Inc.,  13  FCC  Rcd  15685  (1998)). 

 55 
 See,  e.  g.,  Shareholders  of  Citicasters,  Inc.,  Memorandum  Opinion  and  Order,  11  FCC  Rcd  19135,  19141-  43 

 (  12-  16)  (1996);  Great  Empire  Broadcasting,  Inc.,  Memorandum  Opinion  and  Order,  14  FCC  Rcd  11145, 
 (continued.) 
9
 Federal  Communications  Commission  FCC  01-  329 
 10 
 18.  In  addition  to  competitive  analyses,  in  August  1998  the  Commission  began  flagging 
 public  notices  of  radio  station  transactions  that,  based  on  an  initial  analysis  by  the  staff,  proposed 
 a  level  of  local  radio  concentration  that  implicated  the  Commissions  public  interest  concern  for 
 maintaining  diversity  and  competition.  56  Under  this  policy,  the  Commission  flagged  proposed 
 transactions  that  would  result  in  one  entity  controlling  50%  or  more  of  the  advertising  revenues  in 
 the  relevant  Arbitron  radio  market  or  two  entities  controlling  70%  or  more  of  the  advertising 
 revenues  in  that  market.  57  Most  of  these  flagged  applications  that  proposed  radio  concentration 
 levels  that  were  consistent  with  Commission  precedent  were  granted  on  delegated  authority.  A 
 number  of  applications  that  remain  pending  propose  concentration  levels  that  would  exceed  the 
 levels  previously  approved  in  Commission-  level  decisions. 

 III.  DISCUSSION 
 19.  We  propose  to  undertake  a  comprehensive  examination  of  our  rules  and  policies 
 concerning  local  radio  ownership.  The  radio  industry  has  undergone  substantial  changes  since 
 1996,  and  we  are  concerned  that  our  current  policies  on  local  radio  ownership  do  not  adequately 
 reflect  current  industry  conditions.  Our  framework  for  analyzing  proposed  radio  combinations 
 particularly  has  led  to  unfortunate  delays  that  do  not  serve  well  the  interests  of  the  agency,  the 
 parties,  or  the  public.  Our  goal  in  this  proceeding  is  to  develop  a  new  framework  that  will  be 
 more  responsive  to  current  marketplace  realities  while  continuing  to  address  our  core  public 
 interest  concerns  of  promoting  diversity  and  competition. 

 20.  We  start  with  a  review  of  the  statutory  framework  from  which  we  derive  our 
 regulatory  authority  and  under  which  we  implement  our  radio  ownership  policy.  We  next 
 consider  the  traditional  goals  that  have  supported  the  local  radio  ownership  rule    diversity  and 
 competition    and  possible  ways  to  measure  and  promote  those  goals  in  the  modern  media 
 environment.  After  discussion  of  these  subjects,  we  lay  out  possible  changes  to  our  radio 
 ownership  rules  and  policies.  Our  goal  here  is  to  consider  the  public  interest  advantages  and 
 disadvantages  of  various  potential  rule  and  policy  changes  as  well  as  questions  surrounding  their 
 implementation.  In  the  final  substantive  section  of  this  Notice,  we  adopt  an  interim  policy  to 
 provide  guidance  on  the  processing  of  radio  applications  pending  completion  of  this  rulemaking. 

 A.  Statutory  Framework 
 21.  We  begin  with  a  review  of  the  relevant  statutory  framework.  Before  1996, 
 Commission  regulation  of  local  radio  ownership  was  governed  primarily  by  the  statutory  mandate 
 of  Sections  309(  a)  and  310(  d)  that  the  Commission  regulate  the  granting  and  transfer  of  radio 

 (Continued  from  previous  page) 
 11148  (  10)  (1999);  Shareholders  of  AMFM,  Inc.,  Memorandum  Opinion  and  Order,  15  FCC  Rcd  16062,  16066 
 (  7-  8)  &  n.  10  (2000). 

 56 
 See  Broadcast  Applications,  Rep.  No.  24303  (Aug.  12,  1998). 

 57 
 See  AMFM,  Inc.,  15  FCC  Rcd  at  16066  (  7)  n.  10. 
10
 Federal  Communications  Commission  FCC  01-  329 
 11 
 licenses  consistent  with  the  public  interest,  convenience,  and  necessity.  58  This  public  interest 
 authority  has  long  been  held  to  authorize  regulations,  such  as  the  local  radio  ownership  rule,  that 
 are  designed  to  promote  the  goals  of  diversity  and  competition.  59 

 22.  As  a  result  of  the  1996  Act,  the  broad  public  interest  standards  of  Title  III  are  no 
 longer  the  sole  congressional  statement  bearing  on  the  question  of  local  radio  ownership.  We  also 
 must  consider  the  impact  of  Section  202(  b)  and  the  rule  changes  it  mandated.  In  deciding  prior 
 cases,  the  Commission  expressed  the  view  that  the  numerical  limits  mandated  by  Section  202(  b) 
 were  important  tools  for  promoting  our  public  interest  concerns  in  local  radio  markets,  but  that 
 competitive  analyses  were  appropriate  in  particular  cases  where  compliance  with  those  limits  did 
 not  fully  address  those  concerns.  60  Because  that  view  developed  out  of  decisions  issued  in  specific 
 cases,  the  Commission  never  received  the  benefit  of  public  input  that  a  rulemaking  proceeding 
 would  have  afforded.  This  proceeding  will  provide  us  with  that  opportunity.  Below  we  propose 
 alternative  views  on  the  interplay  between  Section  202(  b)  and  our  public  interest  mandate.  We 
 seek  comment  on  these  views  and  invite  comment  on  other  possible  interpretations  of  the  relevant 
 statutory  provisions  and  the  impact  any  such  interpretation  would  have  on  our  diversity  and 
 competition  goals  if  adopted. 

 23.  In  addressing  the  three  interpretations  outlined  below  or  other  possible  interpretations 
 of  the  statutory  framework,  commenters  should  explain  the  relevance,  if  any,  of  Section  202(  h)  s 
 directive  that  the  Commission  review  its  ownership  rules  biennially  to  determine  if  they  are  no 
 longer  in  the  public  interest  as  a  result  of  competition.  Does  the  instruction  to  modify  or  repeal 
 ownership  rules  when  they  are  no  longer  necessary  in  the  public  interest  bear  on  the  relationship 
 between  Section  202(  b)  and  the  public  interest  standard?  Does  Section  202(  h)  s  reference  to 
 competition  affect  our  interpretation  of  the  statutory  framework?  Aside  from  modifying  or 
 eliminating  the  local  radio  ownership  rule  if  it  is  no  longer  in  the  public  interest  as  a  result  of 

 58 
 47  U.  S.  C.    309(  a);  310(  d).  In  addition,  47  U.  S.  C.    303(  r)  authorizes  the  Commission,  as  the  public 

 convenience,  interest,  or  necessity  requires,  to  [  m]  ake  such  rules  and  regulations  and  prescribe  such  restrictions 
 and  conditions,  not  inconsistent  with  law,  as  may  be  necessary  to  carry  out  the  provisions  of  this  Act. 

 59 
 See,  e.  g.,  FCC  v.  National  Citizens  Comm.  for  Broadcasting,  436  U.  S.  775  (1978)  (upholding  newspaper 

 broadcast  cross  ownership  rule  as  rational  means  to  promote  diversity);  United  States  v.  RCA,  358  U.  S.  334,  351- 
 52  (1959)  (  in  a  given  case  the  Commission  might  find  that  antitrust  considerations  alone  would  keep  the 
 statutory  standard  from  being  met,  as  when  the  publisher  of  the  sole  newspaper  in  an  area  applies  for  a  license  for 
 the  only  available  radio  and  television  facilities,  which,  if  granted,  would  give  him  a  monopoly  of  that  areas 
 major  media  of  mass  communication);  National  Broadcasting  Co.  v.  United  States,  319  U.  S.  190  (1943) 
 (upholding  various  broadcast  ownership  and  network  affiliation  regulations  issued  under  the  public  interest 
 standard);  United  States  v.  FCC,  652  F.  2d  72,  81-  82  (D.  C.  Cir.  1980)  (en  banc)  (because  competitive 
 considerations  are  an  important  element  of  the  public  interest  standard,  agencies  must  make  findings  related  to 
 the  pertinent  antitrust  policies,  draw  conclusions  from  the  findings,  and  weigh  these  conclusions  along  with  other 
 important  public  interest  considerations);  Mansfield  Journal  Co.  v.  FCC,  180  F.  2d  28,  33  (D.  C.  Cir.  1950)  (  It 
 is  certainly  not  in  the  public  interest  that  a  radio  station  be  used  to  achieve  monopoly);  American  Broadcasting 
 Co.,  Inc.,  Memorandum  Opinion  and  Order,  7  FCC  2d  245,  251-  52  (1966),  recon.  denied,  9  FCC  2d  546,  548 
 (1967). 

 60 
 See,  e.  g.,  AMFM,  Inc.,  15  FCC  Rcd  at  16066  (  7). 
11
 Federal  Communications  Commission  FCC  01-  329 
 12 
 competition,  are  we  permitted  to  revise  or  replace  the  current  rule  with  another  framework  to 
 address  our  public  interest  goals? 

 24.  Commenters  also  are  encouraged  to  explain  how  their  interpretation  of  the  relevant 
 statutory  provisions  comports  with  traditional  principles  of  statutory  construction  and  the  specific 
 rule  of  construction  set  forth  in  Section  601(  c)(  1)  of  the  1996  Act.  Section  601(  c)(  1)  provides 
 that:  This  Act  and  the  amendments  made  by  this  Act  shall  not  be  construed  to  modify,  impair,  or 
 supersede  Federal,  State,  or  local  law  unless  expressly  so  provided  in  such  Act  or  amendments.  61 
 Does  this  savings  clause  limit  the  effect  that  Section  202(  b)  otherwise  could  have  on  the  public 
 interest  standards  of  Sections  309(  a)  and  310(  d)? 

 25.  Numerical  limits  are  definitive.  One  interpretation  of  the  statutory  framework  is  that 
 Congress  conclusively  determined  that  the  numerical  limits  specified  in  Section  202(  b)  establish 
 radio  station  concentration  levels  that  are  consistent  with  the  public  interest  in  diversity  and 
 competition.  Under  this  interpretation,  we  would  not  consider  any  public  interest  factors  relating 
 to  diversity  or  competition  beyond  compliance  with  the  numerical  limits.  We  seek  comment  on 
 the  reasonableness  of  this  interpretation.  How  consistent  is  this  interpretation  with  the  legislative 
 history  of  the  1996  Act  and  Section  601(  c)(  1)?  How  effective  are  the  numerical  limits  in 
 vindicating  diversity  or  competition  concerns?  If  the  limits  are  not  effective,  is  it  because  of  the 
 numbers  themselves  or  because  of  the  contour  overlap  market  definition  we  use?  62  What  are  the 
 legal  ramifications,  if  any,  of  Congress  directing  the  Commission  to  revise  its  rules  rather  than 
 amending  the  1934  Act  and,  in  particular,  Section  310(  d)? 

 26.  Numerical  limits  address  diversity  only.  Another  possible  interpretation  of  the 
 statutory  framework  is  that  Section  202(  b)  addresses  the  diversity  prong  of  our  public  interest 
 analysis,  while  leaving  competition  concerns  to  be  addressed  by  the  general  public  interest 
 standard.  The  heading  of  Section  202(  b)    Local  Radio  Diversity    suggests  this  interpretation.  63  Does  the  absence  of  any  mention  of  market  share,  a  traditional  element  of 

 anticompetitive  market  power,  also  suggest  that  Section  202(  b)  was  not  intended  to  address 
 competition  concerns?  What  significance,  if  any,  is  there  to  the  fact  that  an  audience  share 
 presumption  was  part  of  the  local  radio  ownership  rule  before  the  1996  Act,  and  that  the  revisions 
 required  by  Section  202(  b)  removed  that  presumption?  If  Section  202(  b)  addresses  diversity 
 only,  does  it  nevertheless  affect  the  types  of  factors  we  could  consider  in  a  competitive  analysis? 
 If  Congress  addressed  diversity  through  numerical  caps,  does  that  indicate  that  other 
 considerations,  such  as  advertising  revenue  or  audience  share,  relate  only  to  competition?  We 
 seek  comment  on  this  interpretation. 

 61 
 1996  Act,    601(  c)(  1),  110  Stat.  at  143. 

 62 
 A  detailed  description  of  our  contour  overlap  definition,  see  Market  Definition  NPRM,  supra. 

 63 
 Courts  have  recognized  that  titles  and  headings  can  be  important  tools  in  construing  a  statute  or  regulation. 

 See,  e.  g.,  Almendarez-  Torres  v.  United  States,  523  U.  S.  224,  234  (1998);  Hardin  v  City  Title  &  Escrow,  797  F.  2d 
 1037,  1039  (D.  C.  Cir.  1986).  We  note,  however,  that  the  Commission  has  not  always  given  meaning  to  statutory 
 headings.  See,  e.  g.,  Federal-  State  Board  on  Universal  Service,  Report  and  Order,  13  FCC  Rcd  11501,  11584- 
 11589  (interpreting  Sec.  254(  h)  as  not  being  limited  to  telecommunications  services,  despite  the  heading, 
 Telecommunications  Services  for  Certain  Providers). 
12
 Federal  Communications  Commission  FCC  01-  329 
 13 
 27.  Numerical  limits  presumptively  consistent  with  public  interest.  A  third  possible 
 interpretation  of  the  statutory  framework  is  that  Section  202(  b)  established  presumptively 
 permissible  levels  of  radio  station  ownership  and  that,  therefore,  the  Commission  should  rely  on 
 Section  202(  b)  s  numerical  limits  absent  a  specific  reason  to  conclude  that  the  rule  is  ineffective  in 
 addressing  diversity  or  competition  issues  with  respect  to  a  particular  proposed  combination. 
 This  interpretation  would  harmonize  the  rule  changes  required  by  Section  202(  b)  with  the 
 statutory  requirement  that  every  grant,  assignment,  or  transfer  of  a  radio  license  be  consistent 
 with  the  public  interest.  64  We  seek  comment  on  this  interpretation.  If  Section  202(  b)  establishes  a 
 presumptively  acceptable  level  of  radio  ownership,  does  it  also  indicate  what  factors  would  rebut 
 that  presumption  (and  who  is  responsible  for  demonstrating  the  presence  of  such  factors),  or  has 
 that  question  been  entrusted  to  the  Commission  to  resolve?  If  we  conclude  that  Section  202(  b) 
 establishes  a  presumption,  what  is  the  risk,  if  any,  that  similarly  situated  applicants  could  be 
 treated  inconsistently  based  on  procedural  rather  than  substantive  considerations,  e.  g.,  whether  a 
 petition  to  deny  is  filed.  Does  this  interpretation  adequately  address  diversity  and  competition 
 interests?  Are  there  downsides  to  this  interpretation  that  we  should  consider?  In  this  regard,  we 
 specifically  invite  comment  on  the  possibility  that  this  approach  could  result  in  very  disparate 
 treatment  of  similar  competitive  situations  based  entirely  on  whether  an  interested  party  brought 
 competitive  concerns  to  our  attention.  Is  this  appropriate? 

 B.  Promoting  Diversity  and  Competition 
 28.  If  we  determine  that  Section  202(  b)  permits  us  to  exercise  our  public  interest  authority 
 to  promote  diversity  and  competition  in  radio  broadcasting,  we  seek  to  explore  the  contours  of 
 these  public  interest  goals,  which  have  been  the  touchstone  of  our  rules  and  policies  on  local  radio 
 ownership.  We  undertake  this  analysis  to  guide  us  as  we  consider,  in  accordance  with  the 
 statutory  framework,  revisions  to  those  rules  and  policies  to  reflect  the  rapidly  changing  media 
 marketplace.  In  that  regard,  we  are  especially  interested  in  receiving  comments  that  provide  not 
 only  the  theoretical  justifications  for  adopting  a  particular  regulatory  framework,  but  also  relevant 
 empirical  data  on  the  effect  that  consolidation  in  the  radio  industry  since  1996  has  had  on  diversity 
 and  competition  in  local  markets. 

 1.  Diversity 
 29.  Diversity  is  one  of  the  guiding  principles  of  the  Commissions  local  radio  ownership 
 rule.  This  principle  is  intended  to  advance  the  values  of  the  First  Amendment,  which,  as  the 
 Supreme  Court  stated,  rests  on  the  assumption  that  the  widest  possible  dissemination  of 
 information  from  diverse  and  antagonistic  sources  is  essential  to  the  welfare  of  the  public.  65  The 
 Commission  has  elaborated  on  the  Supreme  Courts  view,  positing  that  the  greater  the  diversity 
 of  ownership  in  a  particular  area,  the  less  chance  there  is  that  a  single  person  or  group  can  have  an 

 64 
 See  47  U.  S.  C.    309(  a);  310(  d). 

 65 
 See  Associated  Press,  326  U.  S.  at  20. 
13
 Federal  Communications  Commission  FCC  01-  329 
 14 
 inordinate  effect,  in  a  political,  editorial,  or  similar  programming  sense,  on  public  opinion  at  the 
 regional  level.  66 

 30.  In  this  proceeding,  we  intend  to  consider  how  our  rules  and  polices  concerning  local 
 radio  ownership  affect  our  goal  of  promoting  diversity.  To  do  this,  we  first  must  define  the  types 
 of  diversity  we  seek  to  ensure.  The  Commission  previously  has  evaluated  three  aspects  of 
 diversity:  viewpoint  diversity,  outlet  diversity,  and  source  diversity.  67  Viewpoint  diversity  ensures 
 that  the  public  has  access  to  a  wide  range  of  diverse  and  antagonistic  opinions  and 
 interpretations.  68  Outlet  diversity  ensures  that  the  public  has  access  to  multiple  distribution 
 channels  (e.  g.,  radio,  broadcast  television,  and  newspapers)  from  which  it  can  access  information 
 and  programming.  69  Source  diversity  ensures  that  the  public  has  access  to  information  and 
 programming  from  multiple  content  providers.  70  We  seek  comment  on  which  one  or  more  of 
 these  three  types  of  diversity  should  guide  our  public  interest  considerations.  Are  there  other 
 aspects  of  diversity  that  we  should  consider?  Parties  commenting  on  this  issue  should  explain  in 
 detail  the  how  the  public  will  be  affected  if  we  decide  to  emphasize  one  or  more  of  these  various 
 aspects  of  diversity.  We  especially  seek  empirical  data  in  support  of  parties  positions. 

 31.  We  also  seek  comment  on  how  we  should  measure  the  success  or  failure  of  our 
 diversity  goal,  however  that  goal  is  defined.  Historically,  the  Commission  has  looked  to  the 
 number  of  independent  station  owners  as  a  proxy  for  source  diversity  and  viewpoint  diversity,  71 
 and  Section  202(  b)  of  the  1996  Act  similarly  speaks  in  terms  of  numerical  limits  on  station 
 ownership.  We  seek  comment  on  the  advantages  and  disadvantages  of  measuring  diversity  by 
 looking,  in  whole  or  in  part,  to  the  number  of  independent  station  owners.  What  other  measures 
 of  diversity,  quantitative  or  qualitative,  should  we  consider,  and  what  tools  do  we  have  that 
 enable  us  to  measure  diversity  with  a  reasonable  degree  of  accuracy?  Are  audience  demographics 
 an  appropriate  measure  of  diversity?  Is  competition  an  appropriate  proxy  for  diversity,  such  that 
 the  presence  of  a  competitive  local  market  will  assuage  our  concerns  about  diversity?  72  Should  we 
 take  a  radio  owners  market  share,  audience  share,  or  subscribership  into  account  in  measuring 
 diversity,  and  if  so,  how?  In  considering  the  various  potential  ways  to  measure  diversity,  we  also 
 seek  comment  on  how  their  use  comports  with  the  values  and  principles  embodied  in  the  First 
 Amendment  of  the  Constitution. 

 66 
 1964  Decision,  45  FCC  at  1477  (  3). 

 67 
 1998  NOI,  13  FCC  Rcd  at  11278  (  6). 

 68 
 Id. 

 69 
 Id. 

 70 
 Id. 

 71 
 See  1989  Decision,  4  FCC  Rcd  at  1724  (  7). 

 72 
 We  seek  comment  elsewhere  in  this  Notice  about  our  use  of  competition  analysis  in  evaluating  our  rules  and 

 policies  concerning  local  radio  ownership. 
14
 Federal  Communications  Commission  FCC  01-  329 
 15 
 32.  In  searching  for  ways  to  define  and  measure  diversity,  we  are  especially  interested  in 
 the  particular  impact  of  our  analysis  on  the  radio  broadcast  industry  and  radio  listeners.  We  seek 
 comment  on  whether  there  are  attributes  of  radio  broadcasting  that  should  lead  us  to  define  and 
 measure  diversity  in  radio  differently  from  other  media.  Consumers  generally  have  access  to 
 news,  public  affairs,  and  entertainment  programming  from  a  variety  of  media  outlets.  On  the 
 other  hand,  two  attributes  of  radio  broadcasting    its  ability  to  reach  mobile  users  and  its  audio-only 
 programming    may  give  radio  stations  singular  access  to  the  public  in  certain  situations, 
 most  notably  when  listeners  are  in  their  cars  or  at  their  offices  or  other  places  of  employment. 
 Are  those  or  other  attributes  of  radio  broadcasting  sufficiently  unique  that  we  should  look  at  radio 
 separately  for  diversity  purposes,  or  do  consumers  consider  other  outlets  as  substitutes  for  radio? 
 Are  there  other  attributes  we  should  consider,  and  how  does  any  particular  attribute  affect  how 
 we  define  and  measure  diversity  in  conducting  our  public  interest  analysis? 

 33.  We  also  must  consider  the  appropriate  geographic  area  over  which  to  measure 
 diversity  as  it  relates  to  radio  broadcasting.  The  current  local  radio  ownership  rule  contemplates 
 that  diversity  in  radio  will  be  measured  at  the  local  level.  This  appears  to  be  an  appropriate  result 
 if  diversity  analysis  is  restricted  to  radio  since  radio  stations  that  do  not  serve  the  local  community 
 do  not  contribute  to  media  diversity  in  that  community.  Would  the  appropriate  geographic  area 
 change  if  we  consider  other  media,  in  particular  Internet-  related  media  such  as  Internet  radio,  as 
 significant  contributors  of  diversity?  Does  the  appropriate  geographic  area  for  measuring 
 diversity  differ  based  on  the  type  of  information  or  programming  involved,  for  example,  local 
 news  and  sports  versus  nationwide  entertainment  programming?  Even  if  some  aspects  of 
 diversity  are  not  local  in  nature,  should  we  nonetheless  evaluate  diversity  at  the  local  level  in  light 
 of  the  value  we  traditionally  have  placed  on  localism  in  the  broadcasting  industry?  73  Should  the 
 appropriate  geographic  area  for  measuring  diversity  be  coextensive  with  the  relevant  geographic 
 market  for  competition  purposes,  which  we  examine  below?  We  seek  comment  responding  to 
 these  questions. 

 34.  We  also  seek  comment  on  whether  the  level  of  diversity  that  the  public  enjoys  varies 
 among  different  demographic  or  income  groups.  Although  access  to  broadcasting  services  is 
 available  to  all  individuals  in  a  community  with  the  appropriate  receiving  equipment,  access  to 
 other  forms  of  media  typically  requires  the  user  to  incur  a  recurring  charge,  generally  in  the  form 
 of  a  subscription  fee.  Does  this  or  other  differences  between  broadcasting  and  other  media  reduce 
 the  level  of  diversity  that  certain  demographic  or  income  groups  enjoy?  What  is  the  extent  of  any 
 disparity  in  access  to  diversity,  and  how  should  we  factor  in  that  disparity  in  our  diversity 
 analysis?  Parties  commenting  on  this  issue  are  encouraged  to  submit  empirical  data  to  support 
 their  positions. 

 35.  As  we  have  found  previously,  the  current  media  marketplace  appears  robust  in  terms 
 of  the  aggregate  number  of  media  outlets.  As  of  June  30,  2001,  the  Commission  had  licensed 
 12,932  radio  stations,  74  1,678  full  power  television  stations,  2,396  low  power  TV  stations,  and 

 73 
 The  Commissions  localism  policy  historically  has  been  grounded  on  the  notion  that  as  many  communities  as 

 possible  should  have  the  opportunity  of  enjoying  the  advantages  that  derive  from  having  local  outlets  that  will  be 
 responsive  to  local  needs.  Sixth  Report  and  Order  in  Docket  No.  8736,  1  RR  91:  559,  :624  (1952). 

 74 
 FCC  News  Release,  Broadcast  Station  Totals  as  of  June  30,  2001  (July  13,  2001). 
15
 Federal  Communications  Commission  FCC  01-  329 
 16 
 232  Class  A  TV  stations.  75  Today,  there  are  seven  national  commercial  television  broadcast 
 networks.  The  nation  was  served  in  2000  by  1,422  daily  newspapers  with  a  total  circulation  of 
 55.8  million,  76  and  in  1996  by  7,915  weekly  newspapers  with  a  total  circulation  of  approximately 
 81.6  million.  77  As  of  June  2000,  cable  television  systems  served  67.4%  of  TV  households,  or  67.7 
 million  people.  78  These  systems  offered  in  the  aggregate  over  200  video  programming  services.  79 
 Direct  broadcast  satellite  (DBS)  providers  now  serve  nearly  13  million  subscribers,  or  over  15% 
 of  all  households  served  by  multichannel  video  programming  distributors  (MVPDs),  80  and  other 
 MVPDs  serve  another  nearly  4  million  subscribers.  We  also  anticipate  that  satellite  radio  soon 
 will  become  broadly  available  to  the  nation.  In  addition,  as  of  November  2000,  56%  of 
 Americans  had  access  to  the  Internet  from  their  homes.  81  Although  these  national  figures  do  not 
 necessarily  correlate  to  the  level  of  diversity  in  particular  local  markets,  the  aggregate  number  of 
 media  outlets  potentially  available  to  the  public,  including  outlets  that  have  developed  in  just  the 
 last  decade,  may  have  some  bearing  on  our  diversity  analysis.  We  accordingly  seek  comment  on 
 the  significance  of  these  figures  and  any  other  information  about  marketplace  conditions  that 
 would  inform  our  analysis. 

 36.  Although  the  number  of  media  outlets  has  grown,  so  has  the  concentration  in  their 
 ownership.  Historically,  the  Commission  has  had  both  local  and  national  ownership  limits  for 
 radio  broadcast  stations.  Pursuant  to  the  1996  Act,  the  Commission  eliminated  the  national 
 ownership  limit  on  radio  stations,  in  addition  to  relaxing  its  local  radio  ownership  rules.  As  a 
 result,  significant  consolidation  occurred  in  the  national  and  local  radio  markets.  At 
 approximately  the  same  time  that  the  1996  Act  became  law,  there  were  approximately  5,100 
 owners  of  commercial  radio  stations  nationwide,  while  now  there  are  only  approximately  3,800 
 owners,  a  decrease  of  25%.  82  Local  markets  have  seen  similar  consolidation.  In  March  1996,  an 
 Arbitron  metro  market  had  an  average  of  13.5  owners;  in  March  2001,  the  average  was  10.3,  a 
 decrease  of  22%.  83  Other  media  also  appear  to  have  undergone  similar  consolidation.  For 

 75 
 FCC  News  Release,  Broadcast  Station  Totals  as  of  June  30,  2001  (July  13,  2001). 

 76 
 SRDS,  Circulation  2001,  at  1038. 

 77 
 Newspaper  Assn  of  America,  Petition  for  Rulemaking,  at  24  (filed  Apr.  28,  1997). 

 78 
 Annual  Assessment  of  the  Status  of  Competition  in  the  Market  for  the  Delivery  of  Video  Programming,  Seventh 

 Annual  Report,  16  FCC  Rcd  6005,  6017  (  19)  (2001)  (Seventh  Annual  Report). 

 79 
 Id.  at  6105,  Table  B-  5. 

 80 
 Id.  at  6037  (  61)  n.  235. 

 81 
 Id.  at  6054  (  107). 

 82 
 Mass  Media  Bureau  Staff  Report,  Review  of  the  Radio  Industry,  2001,  September  2001,  p.  3. 

 www.  fcc.  gov/  mmb/  prd/  radio.  html. 

 83 
 Id.  at  7. 
16
 Federal  Communications  Commission  FCC  01-  329 
 17 
 example,  in  1995  there  were  543  entities  nationwide  that  owned  commercial  TV  stations,  84  while 
 today  there  are  only  360.  85  Does  this  consolidation  in  ownership  offset  the  increases  in  media 
 outlets?  What  is  the  relevance  of  this  consolidation  to  our  local  radio  ownership  policies  and  to 
 diversity  in  particular?  Commenters  are  encouraged  to  submit  empirical  data  on  the  impact  of 
 consolidation  on  diversity. 

 37.  In  examining  the  impact  of  greater  media  outlets  and  increased  media  consolidation, 
 we  note  that  there  is  considerable  debate  concerning  the  relationship  between  consolidation  and 
 viewpoint  and  source  diversity.  Traditionally,  the  Commission  has  focused  on  the  number  of 
 different  owners  on  the  theory  that  a  larger  number  of  owners  would  help  provide  greater 
 viewpoint  or  source  diversity.  In  addition,  multiple  owners  presumably  are  more  likely  to  provide 
 divergent  viewpoints  on  controversial  issues,  which  the  Commission  has  stated  is  essential  to 
 democracy.  86  The  Commission  has  noted,  however,  the  contrary  theory  that  the  greater  the 
 increase  in  concentration  of  ownership,  the  greater  the  opportunity  for  diversity  of  content.  87 
 Under  that  theory,  competing  parties  in  a  market  have  a  commercial  incentive  to  air  greatest 
 common  denominator  programming,  while  a  single  party  that  owns  all  stations  in  a  market  has  a 
 commercial  incentive  to  air  more  diverse  programming  to  appeal  to  all  substantial  interests. 

 38.  We  seek  comment  on  these  competing  theories  and  on  any  relevant  empirical  analysis 
 of  these  theories.  Should  commonly  owned  media  outlets  be  considered  a  single  media  voice  in 
 evaluating  diversity?  Does  the  answer  depend  on  the  type  of  programming  involved,  for  example, 
 entertainment  programming  versus  news  or  public  affairs  programming,  or  on  the  type  of  media 
 outlet  involved?  Does  it  make  sense  to  treat  increased  media  consolidation  as  contributing  to 
 diversity  if  the  common  owner  exercises  editorial  discretion  over  news  and  programming?  Even  if 
 some  consolidation  of  media  outlets  does  lead  to  greater  diversity,  is  there  a  level  of  consolidation 
 at  which  the  maximum  amount  of  diversity  is  achieved?  How  do  we  determine  what  that  level  is? 
 In  considering  these  questions,  we  are  particularly  interested  in  the  actual  experience  of  the  radio 
 industry.  Has  consolidation  in  local  radio  markets  since  1996  lead  to  greater  diversity? 
 Commenters  responding  in  the  affirmative  are  encouraged  to  submit  empirical  data  and  analysis 
 demonstrating  both  the  increase  in  diversity  and  the  causal  link,  as  opposed  to  mere  correlation, 
 between  the  increase  and  greater  consolidation  in  local  markets.  Commenters  arguing  that  greater 
 consolidation  harms  diversity  also  are  encouraged  to  submit  empirical  data  and  analysis 
 supporting  their  view.  Evidence  comparing  the  levels  of  diversity  in  local  communities  with 
 different  levels  of  radio  concentration  would  be  especially  useful. 

 84 
 Broadcasting  &  Cable  Yearbook  1995,  at  A98-  A123. 

 85 
 BIA  MasterAccess  Database,  Mar.  2001. 

 86 
 Amendment  of  Sections  73.34,  73.240,  and  73.636  of  the  Commissions  Rules  Relating  to  Multiple  Ownership 

 of  Standard,  FM,  and  Television  Broadcast  Stations,  Second  Report  &  Order,  50  FCC  2d  1046,  1074  (  99) 
 (1975). 

 87 
 Review  of  the  Commissions  Regulations  Governing  Television  Broadcasting,  Further  Notice  of  Proposed 

 Rulemaking,  10  FCC  Rcd  3524,  3551  (  63)  (1995). 
17
 Federal  Communications  Commission  FCC  01-  329 
 18 
 2.  Competition 
 39.  Competition  is  the  other  principle  underlying  the  Commissions  local  radio  ownership 
 rules  and  policies.  Generally  speaking,  radio  station  groups  compete  with  each  other  in  two  ways: 
 they  compete  to  attract  listeners,  and  they  compete  to  attract  advertising  dollars.  These  two 
 forms  of  competition  are  interrelated  since  advertising  revenue  is  used  to  finance  the  production 
 of  programming,  which  in  turn  helps  attract  listeners,  which  then  enables  radio  stations  to  charge 
 advertisers.  Nevertheless,  because  there  often  is  not  a  one-  to-  one  ratio  between  audience  share 
 and  station  revenue,  the  degree  of  concentration  in  a  market  may  differ  depending  on  whether 
 audience  share  or  advertising  share  (or  some  other  factor)  is  the  relevant  measure.  At  different 
 points  in  the  past,  the  Commission  has  relied  on  both  measures.  Between  1992  and  1996,  the 
 local  radio  ownership  rule  included,  along  with  numerical  limits,  a  presumption  that  a  combination 
 that  created  a  station  group  with  a  greater  than  25%  audience  share  resulted  in  excessive 
 concentration  that  was  prima  facie  inconsistent  with  the  public  interest.  88  As  consolidation  in 
 local  radio  markets  increased  as  a  result  of  the  1996  Act,  the  Commission  began  to  examine  in 
 assignment  and  transfer  cases  the  potential  competitive  effect  of  proposed  transactions  in  the  local 
 radio  advertising  market.  Because  advertisers  provide  the  financial  support  for  programming  on 
 commercial  stations  and  have  an  incentive  to  prefer  programming  with  widespread  appeal,  the 
 Commission  has  considered  competition  in  advertising  markets  to  enhance  the  welfare  of 
 consumers.  In  this  proceeding,  we  seek  to  examine  more  fully  our  interest  in  the  various  types  of 
 radio  station  competition  and  to  develop  the  appropriate  standards  and  measures  to  help  us 
 evaluate  how  best  to  promote  that  interest  in  the  modern  media  environment. 

 40.  We  begin  by  examining  our  interest  in  competition  in  light  of  current  marketplace 
 conditions.  As  Americans  increasingly  are  willing  to  pay  for  information  and  programming  by 
 subscribing  to  programming  services,  like  satellite  radio  services,  for  example,  it  is  incumbent  on 
 us  to  define  more  precisely  the  goals  of  our  competition  analysis.  Should  we  be  interested  in 
 competition  for  listeners,  competition  for  advertisers,  or  a  combination  of  the  two?  With  respect 
 to  advertising,  does  our  authority  to  regulate  the  radio  market  justify  our  basing  regulation  on  the 
 level  of  competition  in  the  radio  advertising  market?  Are  we  interested  in  competition  as  a  proxy 
 for  ensuring  an  appropriate  level  of  diversity  in  a  local  community?  If  we  conclude  that  Section 
 202(  b)  definitively  establishes  the  levels  of  radio  station  concentration  that  are  consistent  with  our 
 diversity  interest,  how  would  this  affect  the  role  of  our  competition  analysis,  if  at  all?  Is  one 
 objective  of  competitive  analysis  to  ensure  a  healthy  radio  advertising  market  so  that  radio 
 stations  not  affiliated  with  larger  station  groups  in  a  community  will  be  able  to  attract  sufficient 
 advertising  dollars  to  support  their  operations  and  their  ability  to  provide  valuable  news  and 
 programming  services  to  the  public?  Is  one  objective  to  protect  radio  advertisers  from  any 
 anticompetitive  pricing  or  conduct  that  could  occur  if  a  single  party  achieved  market  power  or 
 monopoly  using  the  public  airways?  What  precisely  are  the  harms  consumers  suffer  as  advertising 
 prices  rise,  and  what  empirical  evidence  of  these  harms  is  available?  We  note  also  that  our  biennial 
 review  mandate  requires  us  to  consider  whether  our  local  radio  ownership  rule  is  no  longer 
 necessary  in  the  public  interest  as  a  result  of  competition.  89  One  of  the  objectives  of  our 

 88 
 See  supra  Section  II.  B. 

 89 
 1996  Act,    202(  h),  110  Stat.  at  111-  12. 
18
 Federal  Communications  Commission  FCC  01-  329 
 19 
 competition  analysis  therefore  must  be  to  guide  our  biennial  review  examination.  We  seek 
 comment  on  these  objectives  and  on  any  other  objectives  that  should  guide  the  competition  aspect 
 of  our  public  interest  analysis. 

 41.  Competition  analysis  requires  us  to  define  the  relevant  product  and  geographic 
 markets  in  which  radio  stations  compete,  as  well  as  the  market  share  of  the  participants  within  the 
 relevant  market,  and  then  weigh  the  competitive  benefits  of  consolidation  (e.  g.,  economies  of 
 scale  and  scope  that  may  lead  to  lower  costs  and  prices  or  superior  products)  against  the  harms 
 (e.  g.,  the  exercise  of  market  power  or  reduction  in  output).  90  We  seek  information  that  would 
 help  us  conduct  our  analysis. 

 42.  We  seek  comment  on  the  relevant  product  market.  In  determining  the  relevant 
 market,  should  we  look  at  the  advertising  market  or  the  market  for  audiences?  If  we  look  at 
 advertising,  does  radio  advertising  constitute  a  separate  market  from  other  forms  of  media 
 advertising?  In  its  enforcement  of  the  antitrust  laws,  the  Department  of  Justice  (DOJ),  looking  at 
 the  advertising  market,  has  taken  the  position  that  radio  advertising  constitutes  a  separate  market,  91  finding  that  advertisers  find  value  in  certain  of  radios  unique  attributes.  First,  unlike 

 other  media,  radio  is  exclusively  sound-  based.  Second,  radio  allows  advertisers  to  focus  narrowly 
 on  specific  demographic  groups  (e.  g.,  women  age  18  -  49).  Third,  radio  allows  an  advertiser  to 
 build  repetition  or  frequency  by  advertising  at  a  reasonable  price.  Fourth,  the  cost  of  producing  a 
 radio  commercial  is  much  lower  than  producing  a  television  commercial,  thus  allowing  advertisers 
 to  change  advertisements  more  often.  Fifth,  radio  allows  for  fast  turnaround  of  advertising  copy. 
 Sixth,  radio  can  reach  people  driving  in  their  cars.  Consequently,  according  to  the  DOJ, 
 advertisers  considering  one  radio  station  generally  perceive  other  radio  stations  as  the  closest 
 substitute,  and  therefore  radio  stations  tend  to  set  the  price  of  their  radio  advertising  time  based 
 upon  prices  charged  by  other  radio  stations  rather  than  those  of  alternative  media.  92  We  seek 
 comment  on  the  DOJs  analysis,  both  as  it  relates  to  the  advertising  market  and  the  market  for 
 listeners.  We  recognize  that  many  advertisers  consider  alternative  media  to  be  good  substitutes 
 for  radio  advertising,  but  the  DOJs  analysis  indicates  that  alternative  media  are  not  good 
 substitutes  for  a  significant  number  of  advertisers.  Are  there  studies  or  empirical  data  that 
 confirm  or  refute  the  theory  that  radio  advertising  is  a  separate  market?  Similarly,  do  listeners 
 substitute  other  forms  of  media  for  radio,  or  do  listeners  tend  to  complement  radio  with  other 

 90 
 Review  of  the  Commissions  Regulations  Governing  Television  Broadcasting,  10  FCC  Rcd  3524,  3532  (  16) 

 (1995). 

 91 
 U.  S.  Dept  of  Justice  &  FTC,  1992  Horizontal  Merger  Guidelines,    1.1,  1.2  (revised  1997)  (1992  Merger 

 Guidelines).  In  settlements  requiring  divestiture,  the  DOJ  concluded  that  the  sale  of  advertising  time  on  radio 
 stations  constitutes  the  relevant  market  for  antitrust  purposes.  See,  e.  g.  Competitive  Impact  Statement,  United 
 States  v.  CBS  Corporation  and  American  Radio  Systems  Corporation,  Case  No.  98CV00819  (D.  D.  C.  March  31, 
 1998);  Competitive  Impact  Statement,  United  States  v.  Hicks,  Muse,  Tate  &  Furst  Inc.,  Case  No.  CV  98-  2422 
 (March  31,  1998);  Competitive  Impact  Statement,  United  States  v.  Jacor  Communications,  Inc.  and  Citicasters, 
 Inc.,  Case  No.  C-  1-  96-  757  (S.  D.  Ohio,  August  5,  1996);  Competitive  Impact  Statement,  United  States  v.  American 
 Radio  Systems  Corporation  and  EZ  Communications,  Inc.,  Case  No.  97CV405  (D.  D.  C.  March  20,  1997). 

 92 
 U.  S.  Department  of  Justice,  Comments  in  Response  to  Public  Notice,  In  re  Application  of  Citadel 

 Communications  Corporation  and  Marathon  Media  L.  P.  for  consent  to  Assignment  of  Licenses  of  Stations  (April 
 26,  1999)  at  7. 
19
 Federal  Communications  Commission  FCC  01-  329 
 20 
 media?  What  is  the  evidence  from  local  markets  that  have  witnessed  consolidation  of  radio 
 station?  Does  the  substitutability  of  radio  and  other  media  depend  on  the  size  of  the  geographic 
 market  at  issue?  We  seek  pertinent  data  that  will  help  us  determine  the  relevant  product  market. 

 43.  We  also  seek  comment  on  the  relevant  geographic  market.  We  note  that  antitrust 
 analysis  defines  the  relevant  geographic  market  as  the  region  where  a  hypothetical  monopolist  that 
 is  the  only  producer  of  the  relevant  product  in  the  region  could  profitably  raise  the  price  of  the 
 relevant  product.  93  We  tentatively  conclude  that  the  relevant  geographic  market  is  local  in  nature, 
 but  we  seek  comment  on  the  precise  parameters  of  that  market.  What  would  be  the  appropriate 
 market  if  we  focused  on  listenership  rather  than  advertising?  With  respect  to  advertising,  is  there 
 a  distinct  regional  or  national  market  we  also  should  consider  in  our  analysis?  If  so,  what  are  the 
 relative  sizes,  in  terms  of  radio  station  revenue  and  media  revenue,  of  those  markets  vis-  -  vis  each 
 other  and  local  advertising  markets?  Do  some  radio  stations  rely  more  on  national  or  regional 
 advertising  than  on  local  advertising,  and,  if  so,  what  characteristics  lead  to  that  result?  What  are 
 the  implications  of  these  different  geographic  market  definitions  for  our  competition  analysis?  94 

 44.  Under  the  Commissions  current  local  radio  ownership  rule,  the  geographic  market 
 is  defined  based  on  a  system  of  mutually  overlapping  signal  contours,  which  makes  the  geographic 
 market  endogenous  to  a  common  owners  particular  station  holdings.  95  Is  this  the  appropriate 
 basis  for  defining  a  relevant  geographic  market  for  purposes  of  a  competition  analysis?  If  so, 
 why,  and  what  are  the  benefits  of  this  market  definition?  If  not,  what  other  geographic  market 
 definition  should  we  use?  The  Commission  before  1996  used  the  Arbitron  radio  metropolitan 
 area  as  the  relevant  geographic  market  to  determine  whether  a  proposed  combination  implicated 
 the  25%  audience  share  presumption,  and  since  1996  to  assess  the  competitive  effects  of  a 
 proposed  transaction.  96  This  market  definition  also  is  the  one  that  radio  advertisers  customarily 
 recognize  and  rely  on  in  making  their  purchasing  decisions.  97  Are  Arbitron  markets  the  relevant 
 geographic  market  for  purposes  of  our  competition  analysis?  Can  Arbitron  radio  markets  be 
 manipulated  to  make  a  particular  market  or  transaction  appear  less  troublesome.  If  so,  how 

 93 
 1992  Merger  Guidelines    1.21. 

 94 
 For  example,  out-  of-  market  stations  that  can  be  heard  in  a  local  market  may  provide  more  competitive  pressure 

 on  local  radio  stations  with  respect  to  national  or  regional  advertisers,  but  not  with  respect  to  local  advertisers. 

 95 
 Specifically,  we  have  defined  the  radio  market  as  that  area  encompassed  by  the  principal  community  contours 

   of  the  mutually  overlapping  stations  proposing  to  have  common  ownership.  The  number  of  stations  in  the 
 market  will  be  determined  based  on  the  principal  community  contours  of  all  commercial  stations  whose  principal 
 community  contours  overlap  or  intersect  the  principal  community  contours  of  the  commonly-  owned  and  mutually 
 overlapping  stations.  1992  Reconsideration  Order,  7  FCC  Rcd  at  6395  (  39).  See  also  Biennial  Review  Report, 
 15  FCC  Rcd  at  11091-  94  (  62-  65).  In  the  Notice  issued  in  MM  Docket  No.  00-  244,  we  sought  comment  on 
 possible  revisions  to  the  market  definition  for  purposes  of  applying  the  local  radio  ownership  rule. 

 96 
 See,  e.  g.,  AMFM,  Inc.,  15  FCC  Rcd  at  16068  (  15). 

 97 
 The  DOJ  also  generally  has  relied  on  the  Arbitron  market  as  the  relevant  geographic  market.  U.  S.  Department 

 of  Justice,  Comments  in  Response  to  Public  Notice,  In  re  Application  of  Citadel  Communications  Corporation 
 and  Marathon  Media  L.  P.  for  Consent  to  Assignment  of  Licenses  of  Stations  (April  26,  1999)  at  8-  9. 
20
 Federal  Communications  Commission  FCC  01-  329 
 21 
 should  we  deal  with  this  issue?  If  we  adopt  the  Arbitron  market  as  the  relevant  geographic 
 market,  how  should  we  treat  below-  the-  line  stations  that  Arbitron  reports  as  having  audience 
 shares  or  reportable  revenues  in  the  relevant  market?  98  Commenters  advocating  use  of  the 
 Arbitron  market  should  propose  a  relevant  geographic  market  definition  for  radio  stations  not 
 located  in  an  Arbitron  radio  market.  We  also  seek  comment  on  any  other  potential  geographic 
 market  definitions  we  should  consider.  99 

 45.  Once  we  define  the  relevant  product  and  geographic  markets,  how  should  we  measure 
 the  market  share  of  those  that  compete  in  the  market?  Accurately  calculating  market  share  is  key 
 because  higher  levels  of  concentration  of  the  post-  transaction  firm  could  indicate  a  greater 
 likelihood  for  the  exercise  of  market  power  due  to  unilateral  or  coordinated  effects.  In  many 
 industries,  market  share  is  often  measured  as  a  function  of  revenue,  although,  as  indicated  above, 
 we  also  have  relied  on  audience  share  data  to  determine  concentration  levels.  If  radio  advertising 
 constitutes  the  relevant  product  market  and  the  Arbitron  market  (where  defined)  is  the  relevant 
 geographic  market,  we  can  readily  obtain  actual  or  estimated  local  advertising  revenue  from  a 
 commercial  industry  reporting  service,  such  as  BIA.  If  we  rely  on  listenership,  we  also  should  be 
 able  to  obtain  audience  share  data  from  BIA  or  another  commercial  reporting  service,  at  least  for 
 stations  located  in  Arbitron  markets.  Alternatively,  if  the  market  includes  media  for  which 
 revenue  data  is  not  readily  available,  we  could  rely  on  circulation  and  ratings  information,  which 
 presumably  correlate  to  advertising  rates,  and  therefore  overall  revenue  and  share.  Even  if  we 
 rely  on  station  revenue,  we  could  either  look  at  the  combined  market  share,  as  we  used  in 
 implementing  the  50/  70  screen,  or  use  the  Herfindahl-  Hirschman  Index  (  HHI)  as  a  method  of 
 measuring  pre-  and  post-  acquisition  market  concentration.  100  We  note  that  actions  by  the  DOJ 
 indicate  that  revenue  share  is  a  principal  determinant  in  their  evaluation  of  radio  mergers,  while 
 HHI  is  less  critical  and  we  have  taken  a  similar  view.  101  In  addition,  the  Commission  has  flagged 
 proposed  transactions  based  on  market  share.  We  also  seek  comment  on  other  sources  of 

 98 
 Below-  the-  line  stations  are  classified  as  out-  of-  market  stations  by  BIA  Publications,  Inc.  in  BIAs  Master 

 Access  Database. 

 99 
 Comments  filed  in  MM  Docket  No.  00-  244  will  be  included  in  the  record  in  this  proceeding. 

 100 
 The  HHI  for  a  market  is  calculated  by  summing  the  squares  of  the  individual  market  shares  of  all  firms 

 participating  in  the  market.  Under  the  Merger  Guidelines  approach,  markets  with  an  HHI  below  1000  are 
 deemed  unconcentrated;  those  with  an  HHI  between  1000  and  1800  are  moderately  concentrated;  and  those  with 
 an  HHI  above  1800  are  termed  highly  concentrated.  In  cases  where  the  post-  merger  market  is  highly 
 concentrated,  and  an  acquisition  would  result  in  an  increase  of  more  than  100  points  in  the  HHI,  the  acquisition 
 is  presumed  to  be  likely  to  create  or  enhance  market  power  or  facilitate  its  exercise. 

 101 
 See  Great  Empire  Broadcasting,  Inc.,  supra.  The  following  radio  mergers  that  included  settlements  with  the 

 DOJ  attest  to  the  Department's  recognition  that  an  HHI  over  1,800  may  not  necessarily  imply  adverse  competitive 
 consequences  in  a  local  radio  market.  See,  e.  g.,  Final  Judgment  in  United  States  v.  CBS  Corporation  and 
 American  Radio  Systems  Corporation,  Case  No.  98CV00819  (D.  D.  C.  June  30,  1998);  Final  Judgment  in  United 
 States  v.  Hicks,  Muse,  Tate  &  Furst,  Inc.,  Case  No.  CV  98-  2422,  (E.  D.  N.  Y.  Aug.  17,  1998);  Final  Judgment  in 
 United  States  v.  EZ  Communications,  Inc.  and  Evergreen  Media  Corp.,  Case  No.  97CV00406  (D.  D.  C.  Jun.  17, 
 1997);  Final  Judgment  in  United  States  v.  Westinghouse  Electric  Corporation,  Case  No.  96  CV02563  (D.  D.  C. 
 Mar.  10,  1997);  Final  Judgment  in  United  States  v.  Jacor  Communications,  Inc.,  Case  No.  C-  1-  96-  757  (S.  D. 
 Ohio,  Dec.  31,  1996). 
21
 Federal  Communications  Commission  FCC  01-  329 
 22 
 available  data  that  we  could  use  to  determine  market  share  and  concentration  levels.  Although  we 
 have  focused  on  advertising  revenue  and  audience  share  as  the  principal  potential  measures  of 
 concentration,  there  may  be  other  approaches  we  should  consider. 

 46.  Although  a  large  market  share  in  itself  does  not  demonstrate  market  power,  market 
 power  may  be  inferred  when  a  partys  market  share  is  protected  by  high  barriers  to  entry.  102  We 
 seek  comment  on  barriers  to  entry  into  the  relevant  product  and  geographic  markets.  We 
 tentatively  believe  that  the  possible  entry  of  additional  stations  would  seldom  be  sufficient  to 
 counteract  the  exercise  of  market  power.  103  While  new  entry  is  possible  in  some  radio  markets,  it 
 is  unusual  for  a  strong  new  signal  to  be  placed  into  a  market.  Because  of  the  scarcity  of 
 spectrum,  a  particular  geographic  area  can  support  only  a  certain  number  of  radio  broadcasting 
 signals.  Generally,  the  good  signals  were  taken  many  years  ago,  resulting  in  little  unused  capacity 
 that  could  support  new  radio  station  entry.  104  If  the  relevant  product  market  includes  other  forms 
 of  media,  the  barriers  to  entry  may  be  different.  We  seek  comment  on  our  tentative  conclusion 
 regarding  entry  by  new  radio  stations,  and  request  comment  on  barriers  to  entry  through  other 
 media  that  may  be  part  of  the  relevant  product  market.  We  also  seek  studies  or  evidence, 
 particular  those  relating  to  the  radio  industrys  experience  since  1996,  that  would  support  any 
 finding  we  may  make  regarding  entry  barriers. 

 47.  Although  we  believe  that  entry  by  new  stations  is  unlikely,  we  seek  comment  on 
 whether  the  mere  existence  of  other  stations  in  the  market  negates  market  power,  even  where  the 
 current  market  shares  of  those  stations  are  low.  Should  we  consider  the  number  of  other  stations 
 in  the  market  and  their  signal  strength,  either  as  an  alternative  to  or  in  addition  to  market  share? 
 We  note  that  in  order  to  attract  more  listeners,  stations  often  change  their  programming  format, 
 sometimes  radically  (e.  g.,  from  classical  music  to  country  and  western).  This  suggests  that  radio 
 stations  with  low  market  share  may  be  able  to  increase  their  market  share  and  provide  a  check  on 
 the  leaders  market  power.  We  seek  comment  on  this  analysis.  Is  it  easier  to  increase  market 
 share  in  the  radio  industry  than  it  is  in  other  industries?  Or  do  market  shares  tend  to  remain  static, 
 with  only  small  shifts  in  listening  audiences?  Further,  does  the  amount  of  concentration  in  the 
 market  have  an  impact  on  the  ability  of  stations  to  increase  their  market  share?  Is  it  easier  for  a 

 102 
 United  States  v.  Microsoft  Corp.,  253  F.  3d  34,  54  (D.  C.  Cir.  2001)  (en  banc). 

 103 
 Easy  entry  into  an  industry  can  offset  the  potential  anticompetitive  effects  of  other  aspects  of  firm  dominance, 

 such  as  format  dominance  or  signal  strength  dominance  in  a  given  geographic  radio  market.  The  assessment  of 
 the  conditions  of  entry  considers,  in  addition  to  the  timeliness,  likelihood,  and  sufficiency  of  entry,  two  important 
 types  of  entry  barriers,  namely,  (1)  technical,  economic,  and  regulatory  barriers  into  any  given  geographic  radio 
 market,  where  "radio"  constitutes  a  relevant  antitrust  market;  and  (2)  mobility  barriers  that  influence  the  cost  to  a 
 radio  station  of  switching  from  one  programming  format  to  another.  Barriers  into  a  local  radio  market  may  be 
 substantial  if  no  spectrum  is  available  to  permit  an  additional  AM  or  FM  station  to  enter  the  market.  Similarly, 
 mobility  barriers  between  and  among  different  radio  formats  may  also  be  substantial,  such  as  a  talk-  radio  AM 
 station  that  considers  competing  with  a  rock  and  roll  FM  station.  In  any  given  transaction,  low  entry  barriers 
 may  offset  the  potential  for  increased  market  power  due  to  increased  concentration. 

 104 
 We  note  that  radio  stations  generally  can  and  do  change  format  in  response  to  perceived  profit  opportunities. 

 We  believe  that  this  ability  to  change  format  fairly  rapidly  and  at  relatively  low  cost  may  often  defeat  an  attempt 
 by  a  station  group  to  dominate  a  format  or  target  a  demographic  in  a  local  market.  We  invite  comment  on  this 
 view. 
22
 Federal  Communications  Commission  FCC  01-  329 
 23 
 station  with  a  low  audience  share  to  increase  its  listenership  in  markets  with  low  concentrations 
 than  it  is  in  markets  where  one  or  two  owners  control  a  majority  of  the  stations?  What  has  been 
 the  experience  of  the  radio  industry  since  1996? 

 48.  After  identifying  and  defining  key  market  characteristics,  we  next  consider  the 
 economic  benefits  and  harms  of  permitting  greater  horizontal  consolidation  of  local  radio  stations 
 under  common  ownership.  What  are  the  benefits  of  these  combinations,  not  only  to  the  radio 
 stations,  but  also  to  advertisers,  and  the  public?  Combining  radio  stations  or  radio  groups  may 
 have  the  potential  to  produce  efficiencies  that  result  in  cost-  savings  from  co-  locating  facilities, 
 consolidating  support  services,  and  eliminating  redundant  management  positions.  Advertisers 
 may  benefit  from  the  combination  from  being  able  to  access  a  variety  of  formats  and  demographic 
 groups  in  a  single  transaction.  In  some  cases,  combining  radio  stations  may  strengthen  several 
 weak  competitors,  resulting  in  intensified  rivalry  with  stronger  competing  stations  that  benefits 
 both  advertisers  and  listeners.  In  particular,  cost  savings  produced  by  combining  radio  stations 
 may  result  in  lower  prices  for  advertising  if  price  competition  post-  transaction  is  intensified  by  the 
 strengthening  of  former  weak  competitors.  Some  of  the  additional  savings  in  advertising 
 expenses  could  also  be  passed  on  to  listeners  in  the  form  of  enhanced  content.  We  seek 
 information  on  the  nature  and  scope  of  efficiencies  combinations  might  realize,  and  the  nature  and 
 magnitude  of  benefits  that  flow  through  to  advertisers  and  ultimately  to  consumers.  105  We  seek 
 evidence  that  horizontal  radio  combinations  produce  efficiencies  that  flow  through  to  advertisers 
 and  consumers.  Evidence  of  asserted  efficiency  gains  should  demonstrate  that  such  gains  arose 
 because  of  the  combination  of  local  radio  stations,  as  opposed  to  being  caused  by  the  unique 
 circumstances  of  the  common  owner.  106  Studies  showing  that  radio  station  combinations  have 
 lower  advertising  rates  or  greater  programming  benefits  than  separately  owned  stations  would  be 
 particularly  useful. 

 49.  What  economic  harms  might  radio  station  consolidation  bring?  The  potential  harms  of 
 such  combinations  include  creating  and  exercising  market  power.  A  particular  combination  may 
 garner  such  a  share  of  the  local  advertising  market  that  advertisers  believe  they  must  advertise  on 
 the  combinations  media  in  order  to  reach  consumers,  such  that  the  combination  can  charge 
 anticompetitive  prices.  A  dominant  firm  could  also  bundle  the  advertising  on  its  various  stations 
 in  such  a  way  so  as  to  make  it  more  difficult  for  rivals  of  one  of  those  stations  to  compete.  We 
 seek  additional  information  on  the  nature  and  scope  of  the  economic  harms  that  radio  station 
 combinations  might  bring.  Studies  and  other  evidence  showing  that  advertising  rates  for  radio 
 station  combinations  are  significantly  higher  after  a  consolidation  than  before  a  consolidation 
 would  be  particularly  useful.  We  also  seek  comment  on  associated  harm  to  consumers.  For 

 105 
 For  profit-  maximizing  firms,  including  monopolies,  facing  many  customers,  reductions  in  fixed  costs  that  do 

 not  affect  marginal  cost  ordinarily  do  not  create  an  incentive  to  lower  price.  See  1992  Horizontal  Merger 
 Guidelines  at    4.  If,  however,  the  firm  faces  just  one  or  few  customers,  then  the  seller  may  bargain  with  the 
 customer  or  customers  over  price  and  other  terms  of  sale.  In  this  case,  then  reductions  in  the  sellers  fixed  costs 
 may  be  shared  with  the  customers  to  an  extent  that  reflects  the  relative  bargaining  power  of  the  seller  and 
 buyer. 

 106 
 For  example,  any  efficiency  gains  created  solely  because  the  common  owner  also  owns  radio  stations  in  distant 

 markets,  or  because  the  common  owner  is  vertically  integrated  with  program  producers,  likely  would  not  be 
 relevant  to  the  issue  of  whether  consolidation  of  stations  in  a  local  market  produces  efficiency  gains. 
23
 Federal  Communications  Commission  FCC  01-  329 
 24 
 example,  if  the  existence  of  market  power  would  prevent  any  efficiencies  that  otherwise  would 
 arise  out  of  consolidation  from  flowing  to  the  public,  or  would  harm  the  incentive  of  radio 
 stations  to  produce  quality  programming  responsive  to  community  tastes  and  needs,  that  may  be  a 
 harm  we  should  consider.  Similarly,  if  a  certain  level  of  consolidation  causes  the  market  to  tip 
 such  that  independently  owned  radio  stations  could  not  obtain  sufficient  revenue  to  remain  on  the 
 air  or  fulfill  their  public  interest  obligations,  the  public  interest  also  may  be  harmed. 

 50.  We  are  also  concerned  about  the  possibility  that  coordinated  behavior  would  increase 
 as  the  number  of  independently  owned  competitors  in  a  local  market  declines.  107  Three  factors 
 could  provide  incentives  for  coordinated  behavior  in  highly  concentrated  local  radio  markets:  the 
 ability  to  price  discriminate,  the  ease  of  monitoring  a  collusive  agreement,  and  the  existence  of 
 barriers  to  entry.  As  such,  a  concentrated  market  may  raise  significant  competitive  concerns.  We 
 seek  comment  on  the  relationship  between  radio  concentration  and  coordinated  behavior,  and  the 
 adverse  effects  such  behavior  would  have  on  listeners  and  advertisers. 

 C.  Specific  Case  Studies 
 51.  To  assist  us  in  formulating  our  radio  rules  and  policies,  we  seek  not  only  theoretical 
 arguments  but  specific  empirical  data  on  the  effect  that  consolidation  will  have  on  the  public 
 interest.  In  the  following  paragraphs,  we  examine  in  detail  particular  local  markets  that  have 
 undergone  substantial  consolidation  since  1996.  We  seek  data  on  the  public  interest  harms,  if  any, 
 that  have  been  caused  by  this  consolidation.  Has  the  public  in  these  markets  suffered  from  an 
 unacceptable  reduction  in  diversity?  Have  advertising  rates  increased?  What  has  been  the 
 financial  impact  on  independently  owned  radio  stations?  We  also  seek  data  on  the  specific 
 benefits  that  consolidation  has  produced  in  those  markets.  Have  the  listeners  received  better 
 quality  radio  programming,  or  greater  diversity?  Have  efficiencies  produced  more  radio  voices 
 than  would  otherwise  have  been  possible?  Has  news  and  local  affairs  programming  improved? 
 We  seek  information  that  addresses  these  questions  and  any  other  public  interest  factors  that  we 
 should  consider  in  this  proceeding. 

 52.  Parties  are  encouraged  to  file  information  on  any  local  market  that  they  feel  is  relevant 
 or  helpful.  In  addition  we  would  appreciate  comments  on  three  specific  local  markets  that  have 
 experienced  consolidation.  The  Arbitron  metros  that  we  seek  information  on  are  Syracuse,  New 
 York;  Rockford,  Illinois;  and  Florence,  South  Carolina.  These  markets  illustrate  significant 
 differences  in  market  structure  and,  presumptively,  differences  in  the  intensity  of  price  competition 
 in  the  local  radio  advertising  market.  Empirical  evidence  concerning  the  competitive  behavior  of 
 the  competing  radio  groups  in  each  market  would  be  helpful.  Empirical  indicators  of  market 
 performance  in  these  markets,  such  as  changes  in  program  quality  or  changes  in  the  price  of  radio 
 advertising,  would  also  be  useful.  Evidence  of  possible  harms  to  both  listeners  and  advertisers 
 that  are  the  direct  consequence  of  increasing  consolidation  would  be  most  informative. 

 107 
 The  basic  economics  of  coordinated  behavior  among  cooperative  oligopolies  are  summarized  in  Dennis  W. 

 Carlton  and  Jeffrey  M.  Perloff,  Modern  Industrial  Organization,  2d  ed.  (New  York:  HarperCollins,  1994),  Chapter 
 6.  In  relatively  concentrated  markets,  even  as  few  as  three  independent  competitors  can  nevertheless  induce 
 competitive-  like  market  conduct,  an  empirical  finding  with  direct  relevance  to  maintaining  competition  in  local 
 radio  advertising  markets.  See  Timothy  F.  Bresnahan  and  Peter  C.  Reiss,  Entry  and  Competition  in  Concentrated 
 Markets,  Journal  of  Political  Economy  99  (1991):  977-  1009. 
24
 Federal  Communications  Commission  FCC  01-  329 
 25 
 53.  The  Syracuse  radio  metro  consists  of  three  New  York  counties:  Madison,  Onondaga 
 and  Oswego.  The  population  of  the  Syracuse  metro  is  estimated  to  be  650,100.  108  This  metro  is 
 the  75  th  largest  metropolitan  area  by  population  and  ranks  67  th  in  terms  of  radio  advertising 
 revenue.  The  three  Syracuse  counties  generated  $7.2  billion  in  retail  sales  in  2000.  Local 
 advertising  accounts  for  approximately  73  percent  of  station  revenues.  Appendix  A  contains  a 
 spreadsheet  listing  all  of  the  stations  belonging  to  the  Syracuse  metro  and  other  stations  that 
 receive  a  share  of  the  listening  of  Syracuse  residents.  Estimated  revenue  and  the  date  that  the 
 station  was  acquired  are  presented  along  with  other  information. 

 54.  The  Rockford  radio  metro  consists  of  two  Illinois  counties:  Boone  and  Winnebago  . 
 The  population  of  the  Rockford  metro  is  estimated  to  be  308,500.  This  metro  is  the  150  th  largest 
 metropolitan  area  by  population  and  ranks  139  th  in  terms  of  radio  advertising  revenue.  The  three 
 Rockford  counties  generated  $3.9  billion  in  retail  sales  in  2000.  Local  advertising  accounts  for 
 approximately  93  percent  of  station  revenues.  Appendix  A  contains  a  spreadsheet  listing  all  of  the 
 stations  belonging  to  the  Rockford  metro  and  other  stations  that  receive  a  share  of  the  listening  of 
 Rockford  residents.  Estimated  revenue  and  the  date  that  the  station  was  acquired  are  presented 
 along  with  other  information. 

 55.  The  Florence  radio  metro  consists  of  two  South  Carolina  counties:  Darlington  and 
 Florence  .  The  population  of  the  Florence  metro  is  estimated  to  be  192,400.  This  metro  is  the 
 204  th  largest  metropolitan  area  by  population  and  ranks  181  st  in  terms  of  radio  advertising 
 revenue.  The  three  Florence  counties  generated  $2.4  billion  in  retail  sales  in  2000.  Local 
 advertising  accounts  for  approximately  80  percent  of  station  revenues.  Appendix  A  contains  a 
 spreadsheet  listing  all  of  the  stations  belonging  to  the  Florence  metro  and  other  stations  that 
 receive  a  share  of  the  listening  of  Florence  residents.  Estimated  revenue  and  the  date  that  the 
 station  was  acquired  are  presented  along  with  other  information. 

 D.  Options 
 56.  In  this  section,  we  explore  the  potential  ways  we  could  use  the  results  of  the  preceding 
 diversity  and  competition  analyses  to  formulate  a  concrete  framework  for  addressing  proposed 
 combinations  of  radio  stations  in  local  markets.  In  prior  cases,  the  Commission  has  both  applied 
 the  local  radio  ownership  rule,  which  set  a  ceiling  on  the  number  of  stations  that  may  be 
 commonly  controlled,  and  conducted  a  case-  by-  case  analysis  to  determine  whether  the  particular 
 transaction  was  in  the  public  interest.  We  could  continue  our  current  approach,  rely  exclusively 
 on  bright-  line  rules,  analyze  each  case  individually,  or  apply  numerical  limits  for  some  aspects  of 
 the  case,  e.  g.,  diversity,  and  conduct  a  case-  specific  analysis  for  others,  e.  g.,  competition.  We 
 seek  comment  on  the  various  policy  options. 

 1.  Bright-  line  Rules  or  Case-  by-  Case  Analysis 
 57.  We  first  seek  comment  on  the  general  advantages  and  disadvantages  of  relying  on 
 numerical  limits  or  other  bright-  line  rules  to  guide  our  public  interest  determination  versus 
 conducting  a  case-  by-  case  public  interest  analysis.  We  see  several  advantages  to  the  use  of 

 108 
 The  local  market  information  presented  here  is  based  on  the  BIA  database  as  of  September  24,  2001. 
25
 Federal  Communications  Commission  FCC  01-  329 
 26 
 bright-  line  rules  rather  than  case-  by-  case  analysis.  Because  numerical  limits  can  be  easier  to  apply 
 in  any  individual  transaction,  they  help  conserve  scarce  regulatory  resources  in  deciding  cases. 
 Bright-  line  rules  also  provide  greater  certainty  to  industry  participants,  and  help  avoid  long  delays 
 in  regulatory  decision-  making.  Thus,  bright-  line  rules  can  result  in  substantially  lower  transaction 
 costs  than  case-  by-  case  analysis.  Finally,  bright-  line  rules  apply  to  all  industry  participants 
 uniformly. 

 58.  We  also  see  several  advantages  to  conducting  case-  by-  case  analyses.  A  bright-  line 
 rule  indiscriminately  applied  to  all  situations  might  allow  undesirable  concentrations  of  radio 
 stations  in  certain  instances  and  preclude  desirable  combinations  in  others.  In  the  latter  instance,  a 
 bright-  line  rule  could  prevent  a  more  efficient  firm  from  acquiring  a  less  efficient  firm,  and  could 
 prevent  combinations  that  would  result  in  increased  economies  or  efficiencies  that  would 
 otherwise  have  passed  through  to  advertisers  or  listeners  in  the  form  of  lower  rates  or  better 
 programming.  A  case-  specific  analysis,  on  the  other  hand,  would  allow  the  Commission  to  take 
 into  account  the  nuances  of  the  particular  case,  and  to  adapt  more  readily  to  changing  market  (and 
 other  regulatory)  conditions. 

 59.  We  seek  comment  on  the  various  trade-  offs  between  bright-  line  rules  and  case-  by-  case 
 analysis.  The  benefits  of  bright-  line  rules  may  be  more  likely  to  outweigh  their  costs  when  there 
 are  substantial  similarities  among  cases  or  where  relevant  factual  information  would  be  difficult  to 
 obtain  or  evaluate.  In  these  circumstances,  it  is  more  likely  that  simple  application  of  an 
 appropriately  defined  bright-  line  rule  will  achieve  the  right  result.  We  seek  comment  whether 
 the  characteristics  of  the  radio  industry  make  it  more  susceptible  to  bright  line  strictures  or  case-by- 
 case  review  or  proposed  radio  combinations.  What  are  the  common  characteristics  of  various 
 radio  combinations,  and  what  differences  do  they  have  that  would  be  difficult  to  encapsulate  in  a 
 rule?  Are  there  other  characteristics  that  weigh  in  favor  of  relying  on  either  predetermined  rules 
 or  case-  specific  review  in  conducting  a  public  interest  review  of  a  proposed  combination?  Are 
 diversity  concerns  more  amenable  to  being  encapsulated  in  a  bright-  line  rule  than  competition 
 concerns? 

 60.  We  also  seek  comment  on  whether  the  advantages  of  both  bright-  line  rules  and  case-by- 
 case  analysis  be  obtained  by  other  regulatory  tools,  such  as  presumptions,  processing 
 guidelines,  and  screens.  To  what  extent  has  the  50/  70  screen  been  helpful,  and  what  are  its 
 disadvantages?  If  appropriate,  we  could  adopt  a  combination  of  rules,  fact-  specific  analysis,  and 
 other  formal  and  informal  regulatory  tools.  We  seek  comment  on  the  appropriate  regulatory 
 mix  that  would  provide  the  greatest  benefit  to  the  agency,  the  industry,  and  the  public. 

 2.  Implementation  of  Radio  Rules  and  Policies 
 61.  We  examine  here  a  number  of  possible  frameworks  that  we  could  adopt  to  implement 
 our  policies  on  local  radio  ownership.  We  discuss  several  below  and  seek  comment  on  their 
 advantages,  disadvantages,  and  possible  ramifications  on  our  diversity  and  competition  goals.  We 
 also  invite  suggestions  for  other  possible  frameworks  that  we  should  consider. 

 62.  Rely  exclusively  on  current  numerical  limits.  To  the  extent  we  have  the  authority 
 under  the  statutory  framework  to  consider  public  interest  factors  other  than  compliance  with  the 
 numerical  limits  of  the  local  radio  ownership  rule,  should  we  nonetheless  rely  on  those  limits  to 
 address  our  competition  and  diversity  concerns?  We  seek  comment  on  the  advantages  and 
26
 Federal  Communications  Commission  FCC  01-  329 
 27 
 disadvantages  of  relying  exclusively  on  numerical  limits.  One  advantage  to  this  approach  is  its 
 administrative  simplicity.  Our  experience  since  1996,  however,  suggests  that  one  disadvantage  to 
 this  approach  is  that  compliance  with  numerical  limits  alone  may  not  adequately  address  our 
 competition  goals,  and  perhaps  not  our  diversity  goal  as  well.  109  If  we  decide  to  rely  exclusively 
 on  numerical  limits,  should  we  change  the  market  definition  we  use  to  apply  the  rule  to  reflect 
 more  accurately  the  relevant  geographic  market?  As  discussed  above,  the  Commission  has 
 expressed  concern  that  the  current  methodology  leads  to  irrational  and  unintended  results.  We 
 have  discussed  this  issue  at  length  in  the  Market  Definition  proceeding,  110  and  the  comments  that 
 have  been  filed  in  that  proceeding  will  be  incorporated  here.  We  seek  any  additional  comments 
 that  would  be  useful  in  light  of  the  broader  policy  issues  raised  in  this  proceeding. 

 63.  Rely  exclusively  on  modified  rule.  Another  possibility  we  may  consider  is  modifying 
 the  local  radio  ownership  rule  to  revise  the  numerical  limits  or  adopt  a  new  framework  entirely. 
 We  seek  comment  on  whether  our  authority  to  tighten  or  loosen  the  numerical  limits  in  the  local 
 radio  ownership  rule,  or  otherwise  to  alter  the  rule,  is  limited  by  the  statutory  framework.  111  To 
 the  extent  we  have  the  authority  to  make  such  changes,  we  seek  comment  on  what  changes  we 
 should  make.  Aside  from  revising  the  numerical  limits,  are  there  other  standards  we  could  adopt? 
 For  example,  between  1992  and  1996,  the  rule  provided  for  consideration  of  excessive  market 
 concentration,  which  was  presumed  to  exist  if  a  proposed  radio  combination  would  have  had  an 
 audience  share  exceeding  25%  in  the  Arbitron  market.  Do  we  have  the  authority  to  adopt  an 
 audience  share  limit,  112  and,  if  so,  should  we  adopt  a  similar  presumption  or  bright-  line  rule? 
 Should  such  a  limit  replace  or  accompany  a  numerical  limit?  Would  such  a  rule  be  beneficial  in 
 promoting  diversity  even  if  the  relevant  market  is  competitive,  or  would  numerical  limit  best  meet 
 our  concerns  regarding  diversity  and  a  market  share  limit  best  meet  our  concerns  regarding  undue 
 market  power.  Alternatively,  if  there  is  a  sufficient  amount  of  competition  in  the  relevant  market, 
 there  may  be  sufficient  incentive  for  stations  to  offer  diverse  programming,  such  that  strict  limits 
 on  common  ownership  may  be  unnecessary. 

 64.  Commenters  who  propose  a  market  share  limit  should  discuss  the  following  issues: 
 Should  we  examine  audience  share,  share  of  the  advertising  revenue,  or  some  other  measure?  113  If 
 we  adopt  a  presumption  instead  of  a  rule,  what  evidence  would  be  sufficient  to  overcome  the 
 presumption?  What  percentage  limit  should  we  adopt,  and  why  should  we  adopt  it?  For 
 example,  we  could  adopt  limits  that  attempt  to  ensure  the  presence  of  at  least  three  competitive 
 firms.  Commenters  supporting  this  approach  should  explain  how  many  firms  should  we  seek  to 

 109 
 For  example,  a  combination  of  four  radio  stations  with  a  total  radio  advertising  revenue  share  of  20%  will 

 likely  have  a  very  different  competitive  effect  from  a  combination  of  four  radio  stations  with  a  combined  radio 
 advertising  revenue  share  of  90%. 

 110 
 Market  Definition  NPRM,  15  FCC  Rcd  25077  (2000). 

 111 
 See  supra    23. 

 112 
 See  supra    26. 

 113 
 See  supra  Section  III.  B. 
27
 Federal  Communications  Commission  FCC  01-  329 
 28 
 ensure  remain  in  the  market  (counting  all  commonly  controlled  stations  as  one  firm)  and  what 
 maximum  market  share  limit  should  we  impose.  Commenters  should  provide  economic,  other 
 theoretical,  and  actual  evidentiary  support  for  such  limits. 

 65.  Commenters  proposing  that  we  modify  the  local  radio  ownership  rule  to  change  the 
 numerical  limits  or  to  include  new  standards  or  presumptions  should  also  propose  what  action  we 
 should  take  with  respect  to  existing  combinations  that  would  not  comply  with  the  revised  rule? 
 Should  we  require  divestiture?  Should  we  grandfather  those  station  groupings?  Should  we 
 permit  assignment  and  transfer  of  potentially  non-  compliant  station  groups  to  third  parties?  What 
 are  the  benefits  and  harms  of  adopting  these  various  approaches? 

 66.  Case-  by-  case  competition  analysis.  Rather  than  attempting  to  establish  a  bright-  line 
 rule  that  would  address  competition  issues,  we  could  examine  the  public  interest  concerns  of  any 
 proposed  radio  combination  on  a  case-  by-  case  basis.  We  could  adopt  an  entirely  case-  by-  case 
 approach  or  conduct  a  case-  by-  case  analysis  within  the  context  of  specific  rules  or  presumptions. 
 For  example,  we  could  establish  a  screen  that  would  permit  all  transactions  falling  below  it  to  be 
 granted  without  a  competitive  analysis.  In  addition,  we  could  limit  our  case-  by-  case  approach  to 
 competition  issues,  while  using  a  bright-  line  rule  to  protect  diversity.  We  seek  comment  on  these 
 alternatives.  114 

 67.  To  the  extent  we  are  required  to  conduct  a  competition  analysis  of  a  proposed 
 assignment  or  transfer  control  of  a  radio  broadcast  license,  we  nevertheless  may  have  some 
 latitude  to  consider  the  actions  of  the  antitrust  enforcement  agencies,  particular  the  DOJ,  115  in 
 conducting  any  such  competition  analysis.  116  We  note  that  our  current  practice  is  to  await 
 completion  of  any  DOJ  review  of  a  radio  transaction  and  consider  the  results  of  that  review  in  our 
 competition  analysis.  Should  we  continue  that  approach?  How  should  we  take  into  account  the 
 various  possible  outcomes  of  DOJ  review,  e.  g.,  early  termination  or  issuance  of  a  second 
 request  under  the  Hart-  Scott-  Rodino  Act,  entering  into  a  consent  decree  with  the  merging 
 parties,  or  full-  fledged  trial?  In  particular,  given  the  DOJs  prosecutorial  discretion,  can  we 
 assume  that  non-  action  by  the  DOJ  is  the  result  of  a  determination  that  a  proposed  transaction 
 does  not  raise  competitive  concerns?  How  should  we  treat  cases  where  the  transaction  is  below 
 the  newly  revised  Hart-  Scott-  Rodino  threshold  117  and  thus  may  not  have  been  reviewed  by  the 
 DOJ?  What  would  be  the  legal  and  policy  implications  of  adopting  these  or  any  alternative 
 approaches? 

 114 
 See  also  supra    57. 

 115 
 Historically,  the  DOJ,  not  the  Federal  Trade  Commission,  has  taken  the  lead  in  reviewing  proposed  radio 

 station  transactions. 

 116 
 We  do  not,  however,  have  the  statutory  authority  to  forbear  from  our  public  interest  obligation  with  respect  to 

 broadcasting  services. 

 117 
 Under  the  new  threshold,  transactions  valued  at  less  than  $50  million  are  not  subject  to  review  under  Hart-Scott- 

 Rodino.  See  Pub.  L.  No.  106-  553,  114  Stat.  2762,  2762A-  109. 
28
 Federal  Communications  Commission  FCC  01-  329 
 29 
 E.  Framework  for  Possible  Case-  by-  Case  Competitive  Analysis 
 68.  In  this  section,  we  consider  what  the  framework  for  a  case-  by-  case  competitive 
 analysis  should  be  if  we  decide  to  adopt  that  approach.  We  lay  out  below  certain  possible 
 frameworks  and  competitive  factors  we  could  take  into  account  in  evaluating  a  proposed  radio 
 station  combination.  We  seek  comment  on  these  factors  and  on  our  framework  generally. 

 1.  General  Framework 
 69.  In  evaluating  the  competitive  impact  of  a  proposed  license  transfer,  we  could  adopt 
 the  framework  that  we  have  used  for  assessing  market  power  in  other  contexts,  which  is  also 
 embodied  in  the  antitrust  laws.  118  We  would  first  analyze  each  proposed  radio  combination  by 
 defining  the  relevant  markets,  both  in  terms  of  the  relevant  products  and  geographic  scope,  119  and 
 identifying  the  market  participants.  120  Next,  we  would  evaluate  the  effects  of  the  transaction  on 
 competition  in  the  relevant  market,  such  as  whether  the  transaction  is  likely  to  result  in  either 
 unilateral  or  coordinated  effects  that  enhance  or  maintain  market  power.  121  We  would  also 
 consider  whether  the  proposed  transaction  would  result  in  transaction-  specific  efficiencies  such  as 

 118 
 1992  Merger  Guidelines,    1.0  -  1.2.  See  Regulatory  Treatment  of  LEC  Provision  of  Interexchange  Services 

 Originating  in  the  LEC's  Local  Exchange  Area  and  Policy  and  Rules  Concerning  the  Interstate,  Interexchange 
 Marketplace,  Second  Report  and  Order  in  CC  Docket  No.  96-  149  and  Third  Report  and  Order  in  CC  Docket  No. 
 96-  61,  12  FCC  Rcd  15756  (1997);  Rulemaking  to  Amend  Parts  1,  2,  21,  and  25  of  the  Commission's  Rules  to 
 Redesignate  the  27.5-  29.5  GHz  Frequency  Band,  To  Reallocate  the  29.5-  30.0  GHz  Frequency  Band,  To  Establish 
 Rules  and  Policies  For  Local  Multipoint  Distribution  Service  and  for  Fixed  Satellite  Services,  Second  Report  and 
 Order,  Order  on  Reconsideration,  and  Fifth  Notice  of  Proposed  Rulemaking,  12  FCC  Rcd  12545  (1997);  Pacific 
 Telesis  Group,  Memorandum  Opinion  and  Order,  12  FCC  Rcd  2624  (1997);  Motion  of  AT&  T  Corp.  To  Be 
 Declared  Non-  Dominant  for  International  Service,  Order,  11  FCC  Rcd  17963  (1996);  Sprint  Corporation, 
 Declaratory  Ruling  and  Order,  11  FCC  Rcd  1850  (1996);  Motion  of  AT&  T  Corp.  To  Be  Reclassified  as  a  Non-Dominant 
 Carrier,  Order,  11  FCC  Rcd  3271  (1995);  BAMS-  NYNEX  Mobile,  10  FCC  Rcd  13368  (1995);  Market 
 Entry  and  Regulation  of  Foreign  Affiliated  Entities,  Report  and  Order,  11  FCC  Rcd  3873  (1995);  Craig  O.  McCaw 
 &  American  Tel.  &  Tel.  Co,  Memorandum  Opinion  &  Order,  9  FCC  Rcd  5836  (1994),  recon.  denied,  10  FCC  Rcd 
 11786  (1995),  aff'd  sub  nom.  SBC  Communications  v.  FCC,  56  F.  3d  1484  (D.  C.  Cir.  1995);  Request  of  MCI 
 Communications  Corp.  British  Telecommunications  PLC,  Declaratory  Ruling  and  Order,  9  FCC  Rcd  3960  (1994). 

 119 
 See  1992  Merger  Guidelines.  See  also  Brown  Shoe  Co.  v.  United  States,  370  U.  S.  294,  324-  25  (1962)  (defining 

 relevant  product  market  in  terms  of  reasonable  interchangeability  of  a  service  or  product  and  its  substitute,  while 
 considering  price,  use,  and  quality);  United  States  v.  FCC,  652  F.  2d  72,  97  (D.  C.  Cir.  1980);  Craig  O.  McCaw,  9 
 FCC  Rcd  at  5845    10,  nn.  27-  28.  With  regard  to  the  definition  of  the  relevant  geographic  scope  of  relevant 
 markets,  see  United  States  v.  Philadelphia  Nat'l  Bank,  374  U.  S.  321,  359  (1963)  (defining  relevant  geographic 
 market  as  an  area  in  which  a  buyer  may  purchase  a  product  or  service  from  alternative  sources,  or  in  which  the 
 presence  of  other  sellers  restrains  prices  charged  to  buyers). 

 120 
 See  1992  Merger  Guidelines    1.3. 

 121 
 See,  e.  g.  Philadelphia  Nat'l  Bank,  374  U.  S.  at  363  ("[  A]  significant  increase  in  the  concentration  .  .  .  must  be 

 enjoined  in  the  absence  of  evidence  clearly  showing  that  the  merger  is  not  likely  to  have  such  anticompetitive 
 effects.").  See  also  1992  Horizontal  Guidelines  at  41558    2.1,  2.2;  New  York  v.  Kraft  General  Foods,  926  F. 
 Supp.  321,  359  (S.  D.  N.  Y.  1995);  Amendment  of  Parts  20  and  24  of  the  Commission's  Rules  --  Broadband  PCS 
 Competitive  Bidding  and  the  Commercial  Mobile  Radio  Service  Spectrum  Cap,  Report  and  Order,  11  FCC  Rcd 
 7824  (1996). 
29
 Federal  Communications  Commission  FCC  01-  329 
 30 
 cost  reductions,  productivity  enhancements,  or  improved  incentives  for  innovation.  122  No  single 
 competitive  factor  taken  alone  would  provide  a  definitive  indicator  of  the  level  of  competition  or 
 potential  competitive  problem.  123  We  seek  comment  on  this  approach. 

 70.  One  alternative  of  the  approach  described  above  is  to  develop  certain  assumptions  that 
 would  apply  to  all  proposed  radio  station  combinations.  Earlier  in  this  Notice,  we  sought 
 comment  about  the  relevant  product  and  geographic  markets  to  which  radio  belongs,  barriers  to 
 entry,  and  the  benefits  and  costs  of  consolidation.  124  Some  factors  such  as  the  relevant  product 
 and  geographic  market  and  barriers  to  entry  are  likely  to  be  relatively  uniform  across  most 
 proposed  radio  combinations  such  that  we  could  presume  that  they  are  constant  in  all  cases. 
 Factors  such  as  efficiencies  and  the  ability  to  exercise  market  power  may  not  be  as  generally 
 applicable.  We  seek  comment  concerning  the  assumptions  that  we  could  consistently  apply  in 
 evaluating  applications  proposing  radio  station  combinations  and  the  advantages  or  disadvantages 
 of  those  assumptions.  If  we  adopt  certain  assumptions,  we  propose  that  the  party  seeking  to 
 demonstrate  that  an  assumption  is  not  true  in  a  particular  case  bears  the  burden  of  proof  as  to  that 
 fact.  We  seek  comment  on  this  proposal. 

 71.  Another  possible  alternative  to  the  basic  analytical  framework  is  to  examine  not  only 
 whether  a  proposed  transaction  could  lead  to  the  exercise  of  market  power,  but  to  take  the 
 additional  step  of  considering  whether  that  market  power  would  harm  consumers,  as  opposed  to 
 advertisers,  of  radio  broadcasting  services.  Are  there  certain  situations  in  which  the  exercise  of 
 market  power  would  not  harm  consumers?  Are  there  situations  in  which  consumers  would 
 affirmatively  benefit  if  we  permitted  a  certain  degree  of  market  power  in  the  relevant  market?  For 
 example,  would  permitting  some  degree  of  market  power  in  smaller  geographic  markets  generate 
 more  diverse  or  better  quality  programming  for  the  people  living  in  those  markets?  If  so,  how  do 
 we  draw  the  line  between  acceptable  levels  of  market  power  and  unacceptable  levels  of  control 
 over  local  media,  and  what  are  the  relevant  considerations  we  should  examine  to  help  us 
 determine  on  which  side  of  the  line  a  particular  transaction  falls?  We  seek  comment  on  these 
 issues. 

 2.  Specific  Factors 
 72.  We  seek  comment  on  the  specific  factors  we  should  consider  within  our  general 
 framework.  As  discussed  above,  any  competitive  analysis  of  a  proposed  transaction  must  take 
 into  account  the  relevant  product  and  geographic  markets,  the  market  participants  and  their 
 relative  market  share,  barriers  to  entry,  potential  efficiencies,  and  possible  harms.  To  the  extent 
 not  already  discussed,  we  seek  comment  on  how  we  should  evaluate  these  factors  in  the  context 
 of  a  particular  case.  In  addition,  are  there  other  factors  we  should  consider? 

 122 
 See  1992  Merger  Guidelines    4  et  seq.;  see,  e.  g.,  FTC  v.  University  Health,  Inc.,  938  F.  2d  1206,  1213  (11th 

 Cir.  1991)  (stating  that  defendants  must  show  that  acquisition  would  result  in  significant  efficiencies  that  would 
 benefit  competition  and  the  consumer). 

 123 
 See  Great  Empire  Broadcasting,  14  FCC  Rcd  at  11151  (  15-  16). 

 124 
 See  supra    42-  50. 
30
 Federal  Communications  Commission  FCC  01-  329 
 31 
 73.  First,  we  seek  comment  on  how  we  should  review  applications  proposing  to  assign  or 
 transfer  control  of  existing  station  groups  to  a  new  owner.  We  tentatively  conclude  that  we 
 generally  would  not  subject  the  transaction  to  competitive  analysis  if  such  transfers  do  not  change 
 the  relative  market  share  or  competitive  conditions.  That  will  generally  be  the  case  if  the  new 
 owner  owns  no  other  radio  stations  or  other  media  in  the  relevant  geographic  market  that  may  be 
 in  the  relevant  product  market  with  radio.  We  invite  comment  on  this  tentative  conclusion. 

 74.  Second,  we  invite  comment  on  how  to  treat  under  our  proposed  guidelines  claims  that 
 a  station  is  failing.  Highly  concentrated  radio  markets  often  contain  stations  with  small  revenue 
 share  that  are  independent  of  the  one  or  two  largest  radio  groups.  Some  applicants  have  argued 
 that  consolidation  eliminates  the  possibility  that  a  small  player  can  remain  competitive.  In  such 
 cases,  applicants  often  propose  to  sell  their  stations  to  the  first  or  second  largest  group  in  the 
 market.  If  the  Commission  grants  this  transfer,  the  transaction  may  augment  the  market  power  of 
 the  large  station  group  in  the  local  market  for  radio  advertising.  Such  transactions  often  pose  a 
 trade-  off  between  keeping  a  small  station  on  the  air  together  with  the  benefits  it  provides  to 
 advertisers  and  listeners  versus  a  reduction  in  competition  that  may  tip  the  current  radio  market 
 structure  toward  a  duopoly  and  its  implied  increase  in  market  power. 

 75.  In  our  decision  revising  the  television  ownership  rules,  we  adopted  several  criteria  to 
 evaluate  whether  a  failing  station  showing  would  justify  waiver  of  the  television  duopoly  rule  in  a 
 particular  case.  We  stated  that  we  would  presume  a  waiver  would  serve  the  public  interest  if  each 
 of  the  following  criteria  were  satisfied: 

   One  of  the  merging  stations  has  had  low  all-  day  audience  share. 
   The  financial  condition  of  one  of  the  merging  stations  is  poor.  A  waiver  is  more  likely  to  be  granted  where  one  or  both  of  the  stations  has  had  a  negative  cash  flow  for  the  previous 
 three  years.  We  required  the  applicant  to  submit  data,  such  as  detailed  income  statements 
 and  balance  sheets,  to  demonstrate  this  and  stated  that  the  Commission  staff  will  assess  the 
 reasonableness  of  the  applicants  showing  by  comparing  data  regarding  the  stations 
 expenses  to  industry  averages. 

   The  transaction  will  produce  public  interest  benefits.  A  waiver  will  be  granted  where  the  applicant  demonstrates  that  the  tangible  and  verifiable  benefits  of  the  transaction  outweigh 
 any  harm  to  competition  and  diversity.  At  the  end  of  the  stations  license  terms,  the 
 owner  of  the  combined  stations  must  certify  to  the  Commission  that  the  public  interest 
 benefits  of  the  transaction  are  being  fulfilled,  including  a  specific,  factual  showing  of  the 
 program-  related  benefits  that  have  accrued  to  the  public.  Cost  savings  or  other 
 efficiencies,  standing  alone,  will  not  constitute  a  sufficient  showing. 

   The  in-  market  buyer  is  the  only  reasonably  available  candidate  willing  and  able  to  acquire  and  operate  the  station;  selling  the  station  to  an  out-  of-  market  buyer  would  result  in  an 
 artificially  depressed  price.  As  with  the  showing  required  of  failed  station  waiver 
 applicants,  one  way  to  satisfy  this  fourth  criterion  is  to  provide  an  affidavit  from  an 
31
 Federal  Communications  Commission  FCC  01-  329 
 32 
 independent  broker  affirming  that  active  and  serious  efforts  have  been  made  to  sell  the 
 station,  and  that  no  reasonable  offer  from  an  entity  outside  the  market  has  been  received.  125 

 We  further  provided  that  a  combination  formed  as  a  result  of  a  failing  station  waiver  could  be 
 transferred  only  if  the  combination  met  the  revised  duopoly  rule  or  the  waiver  standards 
 (including  the  failing  standard  just  described)  at  the  time  of  the  transfer.  We  also  concluded,  if 
 necessary  we  will  tailor  these  criteria  further  as  we  gain  experience  in  administering  the  failing 
 station  standard.  126 

 76.  We  invite  comment  as  to  whether  to  use  a  similar  approach  in  our  competitive 
 analysis.  We  believe  this  approach  to  failing  station  showings,  including  the  criteria,  may  provide 
 a  useful  starting  point  for  our  evaluation  of  failing  station  showings  in  the  radio  merger  context. 
 We  invite  comment  on  this  proposal. 

 77.  Third,  we  seek  comment  on  how  we  should  analyze  applications  proposing  the 
 granting  of  a  new  license  or  the  acquisition  of  an  unbuilt  facility  or  a  "dark"  station.  Competitive 
 analysis  focusing  on  concentration  in  the  advertising  market  or  audience  shares  would  be 
 insufficient  to  analyze  these  transactions  because  new  licenses,  unbuilt  stations,  and  dark  stations 
 generally  will  not  have  an  associated  radio  advertising  business  or  audience  share.  In  the  absence 
 of  this  data,  what  should  we  consider  in  determining  the  effect  of  a  proposed  transaction  on 
 competition?  And  how  should  we  weigh  the  relevant  public  interest  benefits  and  harms?  Grant 
 of  these  types  of  applications  could  have  public  interest  benefits  if  they  result  in  an  increase  the 
 quality  or  quantity  of  radio  programming  available  to  listeners.  If  a  large  or  dominant  radio 
 station  group  in  a  local  market  acquires  a  new  license,  unbuilt  station,  or  dark  station,  however,  it 
 could  cause  a  competitive  market  to  tip  toward  consolidation  or  could  eliminate  a  potential  source 
 of  competition  in  markets  that  are  not  fully  competitive.  We  invite  comment  on  how  we  should 
 analyze  these  competing  considerations. 

 78.  Fourth,  we  seek  comment  concerning  how  we  should  coordinate  our  competitive 
 analysis  with  any  DOJ  review  that  may  occur  with  respect  to  the  same  transaction.  Where  a 
 transaction  remains  under  review  or  investigation  by  DOJ,  the  Commission  generally  defers 
 ultimate  action  on  the  applications.  Where  DOJ  devises  a  remedy  in  a  radio  merger  case,  we 
 propose  to  generally  incorporate  that  remedy  in  our  decision  and  would  likely  rely  upon  it  in  most 
 cases  as  a  sufficient  resolution  of  competition  issues  raised  by  the  transaction.  127  We  seek 
 comment  on  this  approach. 

 3.  Treatment  of  Brokerage  and  Sales  Agreements 
 79.  Local  Marketing  Agreements  and  Time  Brokerage  Agreements.  A  local  marketing 
 agreement  (LMA)  and  time  brokerage  agreement  (TBA)  is  a  type  of  contract  that  generally 

 125 
 Review  of  the  Commissions  Regulations  Governing  Television  Broadcasting,  Report  and  Order,  14  FCC  Rcd 

 12903,  12939  (  81)  (1999). 

 126 
 Id.  at  12940  (  81). 

 127 
 See,  e.  g.,  Capital  Cities/  ABC,  Inc.,  11  FCC  Rcd  5841  (1996). 
32
 Federal  Communications  Commission  FCC  01-  329 
 33 
 involves  the  sale  by  a  licensee  of  discrete  blocks  of  time  to  a  broker  that  then  supplies  the 
 programming  to  fill  that  time  and  sells  the  commercial  spot  announcements  to  support  the 
 programming.  128  In  calculating  the  number  of  radio  stations  under  common  control  for  purposes 
 of  applying  the  local  radio  ownership  rule,  we  attribute  a  same-  market,  brokered  station  to  the 
 broker  if  more  than  15%  of  the  stations  weekly  broadcast  time  is  brokered.  129  We  do  not, 
 however,  require  station  owners  to  obtain  prior  Commission  approval  before  entering  into  LMAs 
 or  TBAs  as  long  as  the  licensee  continues  to  exercise  ultimate  control  over  the  licensed  station.  130 
 As  a  result,  if  a  broker  files  an  application  to  acquire  its  brokered  radio  stations,  the  Commission 
 would  examine  the  potential  competitive  impact  of  the  proposed  transaction  as  if  two  station 
 groups  were  wholly  independent  economic  actors. 

 80.  As  we  consider  whether  and  how  to  conduct  case-  by-  case  competitive  analyses  of 
 radio  transactions,  we  seek  comment  on  the  appropriate  regulatory  treatment  of  LMAs  and 
 TBAs.  We  have  recognized  that  LMAs  and  TBAs  permit  the  broker  to  exercise  a  degree  of 
 influence  over  the  brokered  station,  and  they  can  have  a  similar  effect  on  competition  as  common 
 station  ownership  in  cases  where  the  brokering  station  controls  a  significant  portion  of  the  sale 
 and  pricing  of  brokered  stations  advertising  inventory.  131  To  the  extent  we  rely  on  bright-  line 
 rules  to  vindicate  our  competition  concerns,  we  can  take  the  competitive  impact  of  LMAs  and 
 TBAs  into  account  by  continuing  our  policy  of  attributing  brokered  stations  to  their  brokers.  We 
 seek  comment  on  this  proposal. 

 81.  To  the  extent  we  decide  to  conduct  a  case-  by-  case  analysis  of  proposed  radio 
 transactions,  how  should  we  evaluate  LMAs  or  TBAs?  Should  we  continue  the  practice  of 
 treating  the  merging  parties  as  independent  economic  actors  regardless  of  the  economic  realities 
 of  the  relevant  market?  If  we  ignore  economic  realities,  what  purpose  would  our  competitive 
 analysis  serve?  On  the  other  hand,  if  we  treat  the  merging  parties  as  a  single  economic  unit 
 because  of  a  pre-  existing  LMA  or  TBA,  what  potential  competitive  harm  would  our  analysis  ever 
 uncover?  We  could  address  this  problem  by  requiring  prior  Commission  approval  of  LMAs  and 
 TBAs,  in  some  if  not  all  circumstances.  If  so,  what  would  those  circumstances  be?  Rather  than 
 require  prior  approval  of  LMAs  and  TBAs,  we  could  rely  on  our  enforcement  authority  to  require 
 termination  of  LMAs  or  TBAs  that  are  contrary  to  the  public  interest  because  of  their  effect  on 
 competition.  We  also  could  provide  expressly  for  voluntary  filings  by  parties  that  seek  certainty 
 as  to  whether  their  LMA  or  TBA  is  consistent  with  our  policies.  What  are  the  costs  and  benefits 
 of  these  various  procedures?  If  we  adopt  new  policies  towards  LMAs  or  TBAs,  how  should  we 
 apply  those  policies  towards  pre-  existing  agreements?  We  seek  comment  on  these  proposals  and 
 on  any  other  proposals  that  we  should  consider  with  regard  to  the  regulatory  treatment  of  LMAs 
 and  TBAs? 

 128 
 Review  of  the  Commission's  Regulations  Governing  Attribution  of  Broadcast  and  Cable/  MDS  Interests,  Report 

 and  Order,  14  FCC  Rcd  12559,  12591  (  66)  (1999)  (1999  Attribution  Order). 

 129 
 47  C.  F.  R.    73.3555  Note  2(  k). 

 130 
 See  1992  Reconsideration  Order,  7  FCC  Rcd  at  6402  (  66). 

 131 
 1999  Attribution  Order,  Report  and  Order,  14  FCC  Rcd  at  12594,  12598  (  72,  87). 
33
 Federal  Communications  Commission  FCC  01-  329 
 34 
 82.  Joint  Sales  Agreement.  Unlike  LMAs  and  TBAs,  joint  sales  agreements  (JSAs) 
 involve  primarily  the  sale  of  advertising  time  and  not  decisions  concerning  programming.  132  In  the 
 Broadcast  Attribution  Order,  the  Commission  declined  to  attribute  JSAs  to  sales  agents  provided 
 the  terms  of  the  JSAs  did  not  materially  extend  to  programming  or  certain  other  station 
 operations.  133  Although  acknowledging  that  JSAs  could  raise  competitive  concerns,  the 
 Commission  determined  that  JSAs  limited  to  advertising  sales  did  not  convey  a  degree  of 
 influence  or  control  over  station  programming  or  non-  sales  operations  and  that  JSAs  could 
 promote  diversity  by  enabling  smaller  stations  to  stay  on  the  air.  134  The  Commission  declined  to 
 require  that  JSAs  be  filed,  but  did  require  that  they  be  placed  in  the  stations  public  inspection  file.  135  The  Commission  also  noted  that  it  retained  the  discretion  to  conduct  a  public  interest 

 review  of  JSAs  on  a  case-  by-  case  basis  where  competition  or  other  concerns  were  raised.  136 
 83.  As  with  LMAs  and  TBAs,  we  seek  comment  on  the  appropriate  regulatory  treatment 
 of  JSAs.  Even  if  we  adopt  a  bright  line  rule,  JSAs  would  not  be  attributable  to  the  sales  agent. 
 Should  we  reconsider  this  blanket  exemption  to  attribution  in  light  of  the  new  local  radio 
 ownership  policy  we  intend  to  adopt?  If  so,  what  should  our  new  rule  be?  To  the  extent  we 
 decide  to  conduct  a  case-  by-  case  analysis  of  proposed  radio  transactions,  how  should  we  evaluate 
 JSAs?  Should  we  distinguish  between  JSAs  and  LMAs  or  TBAs  in  a  case-  by-  case  review  of 
 proposed  transactions  or  in  other  contexts?  What  are  the  reasons  for  and  against  affording  similar 
 treatment  to  all  three  types  of  agreements? 

 IV.  INTERIM  POLICY 
 84.  We  set  forth  in  this  section  the  interim  policy  that  the  Commission  will  apply  to  guide 
 its  actions  on  radio  assignment  and  transfer  of  control  applications  pending  a  decision  in  this 
 proceeding.  We  recognize  that  certain  guidelines  need  to  be  established  both  to  handle  currently 
 pending  radio  assignment  and  transfer  applications  and  to  address  any  future  applications  filed 
 while  this  proceeding  is  pending.  At  the  same  time,  we  are  mindful  of  the  concern  that  our  policy 
 not  expressly  or  implicitly  prejudge,  or  be  viewed  as  prejudging,  our  ultimate  decision  in  this 
 proceeding.  In  that  regard,  we  believe  that  any  fundamental  changes  we  make  to  our  policy  and 
 procedures  governing  radio  station  combinations  should  be  the  result  of  the  record  in  this 
 rulemaking  proceeding,  and  should  not  be  implemented  as  an  interim  measure.  We  believe  that 
 the  interim  policy  we  are  adopting  today  strikes  a  fair  balance  that  addresses  our  statutory 
 responsibilities  while  providing  guidance  to  applicants  and  the  public  on  the  process  the 
 Commission  will  use  to  resolve  pending  applications  during  this  interim  period. 

 132 
 Id.  at  12612-  13  (  122-  23). 

 133 
 Id.  at  12612-  13  (  123). 

 134 
 Id.  at  12612  (  122).  Although  the  DOJ  had  argued  in  favor  of  attribution  because  of  the  potential  competitive 

 impact  of  JSAs,  the  Commission  found  that  its  concerns,  unlike  those  of  the  DOJ,  included  not  only  competition 
 but  also  diversity  and  reducing  administrative  burdens  on  licensees.  Id. 

 135 
 Id.  at  12612-  13  (  123). 

 136 
 Id. 
34
 Federal  Communications  Commission  FCC  01-  329 
 35 
 85.  Consistent  with  our  precedent  and  the  principles  mentioned  above,  we  will  continue  to 
 examine  the  potential  competitive  effects  of  proposed  radio  station  combinations,  and,  and  to  that 
 end,  we  will  continue  to  rely  on  the  50/  70  screen  to  bring  to  our  attention  proposed  radio 
 transactions  that  may  raise  competitive  concerns.  Under  this  screen,  an  application  that  proposes 
 a  radio  station  combination  that  would  provide  one  station  group  with  50%,  or  the  two  station 
 groups  with  70%,  of  the  radio  advertising  revenue  share  of  the  relevant  Arbitron  metro  market,  as 
 reported  by  BIA,  will  be  flagged  when  the  Commission  issues  public  notice  that  the  application 
 has  been  accepted  for  filing.  137  While  we  are  aware  that  the  utility  and  appropriateness  of  50/  70 
 screen  has  been  the  subject  of  disagreement,  we  are  concerned  that  adopting  another  screen  or  set 
 of  processing  guidelines  on  an  interim  basis  would  create  significant  confusion  and  uncertainty  to 
 applicants  and  could  be  seen  as  prejudging  the  rulemaking  proceeding. 

 86.  As  the  Commission  has  done  in  the  past,  we  will  presume  that  an  application  that  falls 
 below  the  screen  will  not  raise  competition  concerns,  and  the  staff  will  not  conduct  a  further 
 competitive  analysis  of  those  proposed  transactions  absent  the  filing  of  a  petition  to  deny  raising 
 competitive  issues.  For  applications  that  are  flagged,  the  staff  will  review  the  facts  and  arguments 
 contained  in  any  pleadings  that  are  filed,  and  will  conduct  a  public  interest  analysis,  including  but 
 not  limited  to  an  independent  preliminary  competitive  analysis  of  the  proposed  transaction  based 
 on  publicly  available  information  and  information  in  the  Commissions  records.  In  addition,  the 
 staff  is  authorized  to  request  additional  information  from  the  parties  to  the  extent  required  for  the 
 staff  to  issue  or  recommend  a  decision  on  the  application.  We  establish  the  following  generic 
 categories  of  information  that  may  be  requested  or  received  by  the  staff  in  conducting  its 
 competitive  analysis: 

   Product  market  definition.  During  the  interim  period,  the  Commission  will  presume  that  the  relevant  product  market  is  radio  advertising.  The  staff  nevertheless  should  consider 
 evidence  from  the  parties  that  the  relevant  product  market  in  a  specific  case  includes  other 
 forms  of  media  advertising  or  should  be  based  on  listenership  rather  than  advertising. 

   Geographic  market  definition.  During  the  interim  period,  the  Commission  will  presume  that  the  relevant  geographic  market  is  the  Arbitron  metro  market.  138  The  staff  nevertheless 
 may  ask  for  or  receive  evidence  from  the  parties  that  the  relevant  geographic  market  in  a 
 specific  case  is  larger,  smaller,  or  otherwise  different  from  the  Arbitron  metro  market. 

   Market  participants.  The  staff  may  ask  for  or  receive  evidence  concerning  the  firms  that  participate  in  the  relevant  product  and  geographic  markets.  The  list  of  market  participants 
 should  include  firms  that  could  enter  the  relevant  product  and  geographic  markets  within 
 one  year  without  expending  significant  sunk  costs  of  entry  and  exit  in  response  to  a  small 
 but  significant  and  non-  transitory  increase  in  price.  If  the  presumptive  product  and 
 geographic  market  definitions  are  used,  the  list  of  market  participants  should  include 

 137 
 We  will  continue  the  policy  of  not  flagging  proposed  radio  transactions  that  do  not  involve  stations  located  in 

 Arbitron  metro  markets. 

 138 
 To  the  extent  that  the  relevant  geographic  market  for  a  proposed  transaction  involving  radio  stations  not 

 located  in  an  Arbitron  market  is  raised,  it  will  be  determined  on  a  case-  by-  case  basis  without  a  presumption. 
35
 Federal  Communications  Commission  FCC  01-  329 
 36 
 operating  commercial  radio  stations  and  any  dark  station  that  might  be  expected  to 
 become  operational  in  response  to  such  an  increase  in  price. 

   Market  shares  and  market  concentration.  The  staff  may  ask  for  or  receive  evidence  concerning  the  market  shares  of  the  market  participants.  If  the  presumptive  product  and 
 geographic  market  definitions  are  used,  the  radio  advertising  revenues  reported  in  the  BIA 
 Master  Access  Database  will  be  presumed  to  be  an  accurate  reflection  of  actual  market 
 shares,  absent  persuasive  evidence  that  another  measure  of  market  share  should  be  used. 
 The  staff  may  use  market  share  data  to  calculate  any  HHIs  that  may  be  relevant  for  the 
 staffs  analysis. 

   Barriers  to  entry.  The  staff  may  ask  for  or  receive  evidence  concerning  the  barriers  to  entry  into  the  relevant  product  and  geographic  markets,  including  the  timeliness, 
 likelihood,  and  sufficiency  of  entry  to  counter  any  potential  market  power. 
   Potential  adverse  competitive  effects.  The  staff  may  ask  for  or  receive  evidence  concerning  the  potential  adverse  competitive  effects  of  a  proposed  transaction.  Relevant 
 evidence  may  include  direct  proof  of  adverse  competitive  effects  or  facts  that  demonstrate 
 that  structural  conditions  (e.  g.,  a  high  market  share  and  significant  barriers  to  entry)  will 
 facilitate  the  exercise  of  market  power.  In  asking  for  or  receiving  evidence  of  potential 
 adverse  competitive  effects,  the  staff  should  consider  the  effect  on  competition,  if  any,  that 
 may  have  resulted  from  a  pre-  existing  LMA,  TBA,  or  JSA  between  the  applicants. 

   Efficiencies  and  other  public  interest  benefits.  The  staff  may  ask  for  or  receive  evidence  concerning  any  economic  efficiencies  that  the  proposed  transaction  would  produce.  In 
 addition,  the  staff  may  ask  for  or  receive  evidence  concerning  other  public  interest  benefits 
 the  proposed  transaction  would  provide  listeners  or  advertisers,  such  as  improvements  in 
 the  quality,  scope,  and  quantity  of  community  responsive  programming,  improved 
 community  service,  and  the  furtherance  of  localism.  Parties  asserting  that  a  proposed 
 transaction  will  produce  efficiencies  or  other  public  interest  benefits  should  show  both 
 how  the  transaction  will  produce  those  benefits  and  how  those  benefits  will  flow  through 
 to  listeners  or  advertisers. 

 87.  After  completing  its  preliminary  competitive  analysis  of  the  proposed  transaction,  the 
 staff  may  grant  any  application  that  is  consistent  with  the  public  interest  and  that  may  be  granted 
 on  delegated  authority.  For  applications  that  the  staff  cannot  grant,  we  establish  the  following 
 timetable  to  ensure  that  they  are  resolved  expeditiously.  For  each  application  that,  as  of  the  date 
 of  adoption  of  this  Notice,  has  been  pending  for  over  one  year,  within  90  days  of  the  date  of 
 adoption  of  this  Notice,  the  staff  will  distribute  to  the  Commission  a  draft  order  recommending 
 that  the  application  either  be  granted  or  designated  for  hearing.  For  all  other  currently  pending 
 applications,  within  six  months  of  the  date  of  adoption  of  this  Notice,  the  staff  will  distribute  to 
 the  Commission  a  draft  order  recommending  that  the  application  either  be  granted  or  designated 
 for  hearing.  For  all  applications  filed  after  the  date  of  adoption  of  this  Notice,  within  six  months 
 of  the  date  after  such  application  is  filed,  the  staff  will  distribute  to  the  Commission  a  draft  order 
 recommending  that  such  application  either  be  granted  or  be  designated  for  hearing.  In  all  of  these 
 cases,  the  draft  order  shall  include  the  relevant  facts  of  the  proposed  transaction,  and  the  staffs 
 competitive  analysis  and  recommendation,  including  any  issues  to  be  resolved  at  hearing  (if  the 
36
 Federal  Communications  Commission  FCC  01-  329 
 37 
 staff  recommends  a  hearing).  After  receiving  the  draft  order,  the  Commission  shall  then  decide 
 whether  the  relevant  factors  support  grant  (with  or  without  conditions)  of  an  application  or 
 whether  the  application  should  be  designated  for  hearing. 

 88.  For  applications  that  the  Commission  decides  to  designate  for  hearing,  the  hearing 
 designation  order  shall  afford  the  applicants  with  the  opportunity  to  elect  instead  to  have  their 
 applications  held  pending  completion  of  this  rulemaking  proceeding  and  having  the  outcome  of 
 this  proceeding  apply  to  their  application.  We  provide  this  election  because  we  believe  it  is 
 appropriate  to  provide  applicants  with  the  ability  to  have  their  applications  evaluated  under  our 
 permanent  radio  rules  and  policies  rather  than  our  interim  policy.  We  caution,  however,  that  our 
 provision  of  this  election  will  not  in  any  way  prejudice  or  limit  the  range  of  actions  we  could  take 
 in  processing  pending  applications,  including  designation  for  hearing,  upon  completion  of  this 
 rulemaking. 

 89.  The  interim  policy  we  outline  above  will  apply  to  currently  pending  applications  to 
 assign  or  transfer  control  of  radio  broadcast  stations.  This  interim  policy  also  will  apply  to  radio 
 assignment  or  transfer  applications  filed  on  or  after  the  date  we  adopt  this  Notice  until  we  adopt  a 
 decision  in  this  proceeding. 

 V.  ADMINISTRATIVE  MATTERS 
 90.  Comments  and  Reply  Comments.  Pursuant  to  Sections  1.415  and  1.419  of  the 
 Commission's  rules,  47  C.  F.  R.    1.415,  1.419,  interested  parties  may  file  comments  on  or  before 
 60  days  after  publication  of  the  item  in  the  Federal  Register,  and  reply  comments  on  or  before  90 
 days  after  publication  of  the  item  in  the  Federal  Register.  Comments  may  be  filed  using  the 
 Commission's  Electronic  Comment  Filing  System  (ECFS)  or  by  filing  paper  copies.  See 
 Electronic  Filing  of  Documents  in  Rulemaking  Proceedings,  63  Fed.  Reg.  24,121  (1998). 

 91.  Comments  filed  through  the  ECFS  can  be  sent  as  an  electronic  file  via  the  Internet  to 
 <http://  www.  fcc.  gov/  e-  file/  ecfs.  html>.  Generally,  only  one  copy  of  an  electronic  submission  must 
 be  filed.  If  multiple  docket  or  rulemaking  numbers  appear  in  the  caption  of  this  proceeding, 
 however,  commenters  must  transmit  one  electronic  copy  of  the  comments  to  each  docket  or 
 rulemaking  number  referenced  in  the  caption.  In  completing  the  transmittal  screen,  commenters 
 should  include  their  full  name,  Postal  Service  mailing  address,  and  the  applicable  docket  or 
 rulemaking  number.  Parties  may  also  submit  an  electronic  comment  by  Internet  e-  mail.  To  get 
 filing  instructions  for  e-  mail  comments,  commenters  should  send  an  e-  mail  to  ecfs@  fcc.  gov,  and 
 should  include  the  following  words  in  the  body  of  the  message,  "get  form  <your  e-  mail  address." 
 A  sample  form  and  directions  will  be  sent  in  reply.  Parties  who  choose  to  file  by  paper  must  file 
 an  original  and  four  copies  of  each  filing.  If  more  than  one  docket  or  rulemaking  number  appear 
 in  the  caption  of  this  proceeding,  commenters  must  submit  two  additional  copies  for  each 
 additional  docket  or  rulemaking  number.  All  filings  must  be  sent  to  the  Commission's  Secretary, 
 Magalie  Roman  Salas,  Office  of  the  Secretary,  Federal  Communications  Commission,  445 
 Twelfth  Street,  S.  W.,  TW-  A325,  Washington,  D.  C.  20554. 

 92.  Parties  who  choose  to  file  by  paper  should  also  submit  their  comments  on  diskette. 
 These  diskettes  should  be  submitted  to:  Wanda  Hardy,  445  Twelfth  Street,  S.  W.,  Room,  2-  C207, 
 Washington,  D.  C.  20554.  Such  a  submission  should  be  on  a  3.5  inch  diskette  formatted  in  an 
 IBM  compatible  format  using  WordPerfect  5.1  for  Windows  or  compatible  software.  The 
37
 Federal  Communications  Commission  FCC  01-  329 
 38 
 diskette  should  be  accompanied  by  a  cover  letter  and  should  be  submitted  in  "read  only"  mode. 
 The  diskette  should  be  clearly  labeled  with  the  commenter's  name,  proceeding  (including  the 
 docket  number  in  this  case,  MM  Docket  Nos.  01-  317,  00-  244,  type  of  pleading  (comment  or 
 reply  comment),  date  of  submission,  and  the  name  of  the  electronic  file  on  the  diskette.  The  label 
 should  also  include  the  following  phrase  "Disk  Copy  -  Not  an  Original."  Each  diskette  should 
 contain  only  one  party's  pleadings,  preferably  in  a  single  electronic  file.  In  addition,  commenters 
 must  send  diskette  copies  to  the  Commission's  copy  contractor,  Qualex  International,  Portals  II, 
 445  12th  Street,  S.  W.,  Room  CY-  B402,  Washington,  DC  20554. 

 93.  Comments  and  reply  comments  will  be  available  for  public  inspection  during  regular 
 business  hours  in  the  FCC  Reference  Center,  Federal  Communications  Commission,  445  Twelfth 
 Street,  S.  W.,  CY-  A257,  Washington,  D.  C.  20554.  Persons  with  disabilities  who  need  assistance 
 in  the  FCC  Reference  Center  may  contact  Bill  Cline  at  (202)  418-  0270,  (202)  418-  2555  TTY,  or 
 bcline@  fcc.  gov.  Comments  and  reply  comments  also  will  be  available  electronically  at  the 
 Commissions  Disabilities  Issues  Task  Force  web  site:  www.  fcc.  gov/  dtf.  Comments  and  reply 
 comments  are  available  electronically  in  ASCII  text,  Word  97,  and  Adobe  Acrobat. 

 94.  This  document  is  available  in  alternative  formats  (computer  diskette,  large  print,  audio 
 cassette,  and  Braille).  Persons  who  need  documents  in  such  formats  may  contact  Martha  Contee 
 at  (202)  4810-  0260,  TTY  (202)  418-  2555,  or  mcontee@  fcc.  gov. 

 95.  Ex  Parte  Rules.  This  is  a  permit-  but-  disclose  notice  and  comment  proceeding.  Ex 
 parte  presentations  are  permitted  except  during  the  Sunshine  Agenda  period,  provided  they  are 
 disclosed  as  provided  in  the  Commission's  Rules.  See  generally  47  CFR  Sections  1.1202,  1.1203, 
 and  1.1206(  a). 

 96.  Initial  Regulatory  Flexibility  Analysis.  With  respect  to  this  Notice,  an  Initial 
 Regulatory  Flexibility  Analysis  ("  IRFA")  is  contained  in  Appendix  B.  As  required  by  Section  603 
 of  the  Regulatory  Flexibility  Act,  the  Commission  has  prepared  an  IRFA  of  the  possible 
 significant  economic  impact  on  small  entities  of  the  proposals  contained  in  this  Notice.  Written 
 public  comments  are  requested  on  the  IRFA.  In  order  to  fulfill  the  mandate  of  the  Contract  with 
 America  Advancement  Act  of  1996  regarding  the  Final  Regulatory  Flexibility  Analysis,  we  ask  a 
 number  of  questions  in  our  IRFA  regarding  the  prevalence  of  small  businesses  in  the  radio 
 broadcasting  industry.  Comments  on  the  IRFA  must  be  filed  in  accordance  with  the  same  filing 
 deadlines  as  comments  on  the  Notice,  but  they  must  have  a  distinct  heading  designating  them  as 
 responses  to  the  IRFA.  The  Secretary  shall  send  a  copy  of  this  Notice,  including  the  IRFA,  to  the 
 Chief  Counsel  for  Advocacy  of  the  Small  Business  Administration  in  accordance  with  Section 
 603(  a)  of  the  Regulatory  Flexibility  Act,  Pub.  L.  No.  96-  354,  94  Stat.  1164,  5  U.  S.  C.    601  et 
 seq.  (1981),  as  amended. 

 97.  Authority.  This  Notice  is  issued  pursuant  to  authority  contained  in  Sections  4(  i),  303, 
 and  307  of  the  Communications  Act  of  1934,  as  amended,  47  U.  S.  C.    154(  i),  303,  and  307. 

 VI.  ORDERING  CLAUSES 
 98.  Accordingly,  IT  IS  ORDERED  that,  pursuant  to  the  authority  contained  in  sections  1, 
 2(  a),  4(  i),  303,  307,  309,  and  310  of  the  Communications  Act,  as  amended,  47  U.  S.  C.    151, 
38
 Federal  Communications  Commission  FCC  01-  329 
 39 
 152(  a),  154(  i),  303,  307,  309,  and  310  this  Notice  of  Proposed  Rulemaking  and  Further  Notice  of 
 Proposed  Rule  Making  ARE  ADOPTED. 

 99.  IT  IS  FURTHER  ORDERED  that  the  Interim  Policy  set  forth  herein  IS  ADOPTED. 
 100.  IT  IS  FURTHER  ORDERED  that  the  Commissions  Consumer  Information 
 Bureau,  Reference  Information  Center,  SHALL  SEND  a  copy  of  this  Notice,  including  the  Initial 
 Regulatory  Flexibility  Analysis,  to  the  Chief  Counsel  for  Advocacy  of  the  Small  Business 
 Administration. 

 FEDERAL  COMMUNICATIONS  COMMISSION 

 Magalie  Roman  Salas 
 Secretary 
39
 Federal  Communications  Commission  FCC  01-  329 
 40 
 APPENDIX  A 
40
 Federal  Communications  Commission  FCC  01-  329 
 APPENDIX  B 
 Initial  Regulatory  Flexibility  Analysis 
 As  required  by  the  Regulatory  Flexibility  Act  of  1980,  as  amended  (RFA),  1  the  Commission  has 
 prepared  this  present  Initial  Regulatory  Flexibility  Analysis  (IRFA)  of  the  possible  significant 
 economic  impact  on  a  substantial  number  of  small  entities  by  the  policies  and  rules  proposed  in 
 this  Notice  of  Proposed  Rulemaking  (Notice).  Written  public  comments  are  requested  on  this 
 IRFA.  Comments  must  be  identified  as  responses  to  the  IRFA  and  must  be  filed  by  the  deadlines 
 for  comments  on  the  Notice  provided  above  in  paragraph  90.  The  Commission  will  send  a  copy 
 of  the  Notice,  including  this  IRFA,  to  the  Chief  Counsel  for  Advocacy  of  the  Small  Business 
 Administration  (SBA).  See  5  U.  S.  C.    603(  a).  In  addition,  the  Notice  and  IRFA  (or  summaries 
 thereof)  will  be  published  in  the  Federal  Register.  See  id. 

 A.  Need  for,  and  Objectives  of,  the  Proposed  Rules 
 Application  to  and  consent  by  the  Commission  are  required  under  Section  310  of  the  Communications  Act  before  the  sale  of  any  licensed  radio  broadcast  station  may  be  consummated. 

 The  Commission  may  grant  its  consent  only  if  it  determines  that  the  public  interest,  convenience  and  necessity  will  be  served  thereby.  47  U.  S.  C.    310(  d).  The  effects  of  a  proposed  transaction 
 on  the  diversity  of  voices  and  economic  competition  in  a  given  market  have  long  been  core  considerations  in  making  this  public  interest  determination.  The  Commissions  concern  for 
 diversity  and  competition  in  broadcast  markets  has  prompted  us  to  adopt  and  maintain  structural  ownership  rules  intended  to  vindicate  these  interests.  Until  recently,  these  ownership  rules  have 
 been  sufficiently  strict  that  we  have  not  been  presented  with  proposed  transactions  that  comply  with  the  ownership  rules  but  nonetheless  present  economic  concentration  issues.  The 
 Telecommunications  Act  of  1996,  however,  substantially  relaxed  the  Commissions  local  radio  ownership  rules.  Heretofore,  the  Commissions  radio  ownership  rules  have  been  based  strictly  on 
 the  number  of  stations  proposed  for  common  ownership,  without  regard  to  the  power  or  dominance  of  the  stations  that  are  being  combined.  This  was  not  a  problem  under  the  former 
 Commission  rules  which  strictly  circumscribed  the  number  of  radio  stations  that  could  be  commonly  owned  in  a  local  market.  Now,  however,  under  the  new  rules,  which  allow  greater 
 numbers  of  radio  stations  to  be  commonly  owned  in  local  markets,  the  Commission  has  encountered  sales  applications  that  propose  transactions  which  comply  with  the  numerical  station 
 limits  but  which  result  in  substantial  economic  concentration  in  the  relevant  economic  markets.  In  such  cases,  the  Commission  has  an  independent  obligation  to  consider  whether  a  proposed 
 pattern  of  radio  ownership  that  complies  with  the  local  ownership  limits  would  otherwise  have  an  adverse  competitive  effect  in  a  particular  radio  market  and  thus,  would  be  inconsistent  with  the 
 public  interest.  47  U.  S.  C.    309(  a)  (requiring  the  Commission  to  make  a  determination  that  the  transfer  or  assignment  of  a  broadcast  license  would  be  in  the  public  interest).  CHET-  5 
 Broadcasting  L.  P.,  14  FCC  Rcd  13041,  13043  (1999).  Accordingly,  we  are  adopting  this  Notice  to  consider  possible  changes  to  our  local  radio  ownership  rules  and  policies. 

 1 
 See  5  U.  S.  C.    603.  The  RFA,  see  5  U.  S.  C.    601-  612,  has  been  amended  by  the  Small  Business  Regulatory 

 Enforcement  Fairness  Act  of  1996  (SBREFA),  Pub.  L.  No.  104-  121,  Title  II,  110  Stat.  857  (1996). 
41
 Federal  Communications  Commission  FCC  01-  329 
 2 
 B.  Legal  Basis 
 This  Notice  is  adopted  pursuant  to  sections  1,  2(  a),  4(  i),  303,  307,  309,  and  310,  of  the 
 Communications  Act,  47  U.  S.  C.    151,  152(  a),  154(  i),  303,  307,  309,  and  310. 

 C.  Description  and  Estimate  of  the  Number  of  Small  Entities  To 
 Which  the  Proposed  Rules  Will  Apply 

 The  RFA  directs  agencies  to  provide  a  description  of,  and,  where  feasible,  an  estimate  of  the 
 number  of  small  entities  that  may  be  affected  by  the  proposed  rules,  if  adopted.  2  The  RFA  defines  the  term  small  entity  as  having  the  same  meaning  as  the  terms  small  business,  small 

 organization,  and  small  governmental  jurisdiction.  3  In  addition,  the  term  small  business  has 
 the  same  meaning  as  the  term  small  business  concern  under  the  Small  Business  Act.  4  A  small  business  concern  is  one  which:  (1)  is  independently  owned  and  operated;  (2)  is  not  dominant  in  its 

 field  of  operation;  and  (3)  satisfies  any  additional  criteria  established  by  the  SBA.  5 
 Pursuant  to  5  U.  S.  C.    601(  3),  the  statutory  definition  of  a  small  business  applies  "unless  an  agency  after  consultation  with  the  Office  of  Advocacy  of  the  SBA  and  after  opportunity  for  public 
 comment,  establishes  one  or  more  definitions  of  such  term  which  are  appropriate  to  the  activities  of  the  agency  and  publishes  such  definition(  s)  in  the  Federal  Register.  A  small  organization  is 
 generally  any  not-  for-  profit  enterprise  which  is  independently  owned  and  operated  and  is  not 
 dominant  in  its  field.  6  Nationwide,  as  of  1992,  there  were  approximately  275,801  small 
 organizations.  7  Small  governmental  jurisdiction  generally  means  governments  of  cities,  counties,  towns,  townships,  villages,  school  districts,  or  special  districts  with  a  population  of  less 

 than  50,000.  8  As  of  1992,  there  were  approximately  85,006  such  jurisdictions  in  the  United 
 States.  9  This  number  includes  38,978  counties,  cities,  and  towns;  of  these,  37,566,  or  96  percent, 
 have  populations  of  fewer  than  50,000.  10  Thus,  of  the  85,006  governmental  entities,  we  estimate  that  81,600  (91  percent)  are  small  entities. 

 2 
 5  U.  S.  C.    603(  b)(  3). 

 3 
 Id.    601(  6). 

 4 
 Id.    601(  3). 

 5 
 15  U.  S.  C.    632. 

 6 
 5  U.  S.  C.    601(  4). 

 7 
 1992  Economic  Census,  U.  S.  Bureau  of  the  Census,  Table  6  (special  tabulation  of  data  under  contract  to  Office 

 of  Advocacy  of  the  U.  S.  Small  Business  Administration). 

 8 
 5  U.  S.  C.    601(  5). 

 9 
 U.  S.  Dept.  of  Commerce,  Bureau  of  the  Census,  1992  Census  of  Governments. 

 10 
 Id. 
42
 Federal  Communications  Commission  FCC  01-  329 
 3 
 The  SBA  defines  a  radio  broadcasting  station  that  has  $5  million  or  less  in  annual  receipts  as  a 
 small  business.  11  A  radio  broadcasting  station  is  an  establishment  primarily  engaged  in 
 broadcasting  aural  programs  by  radio  to  the  public.  12  Included  in  this  industry  are  commercial, 
 religious,  educational,  and  other  radio  stations.  13  Radio  broadcasting  stations,  which  primarily  are 
 engaged  in  radio  broadcasting  and  which  produce  radio  program  materials,  are  similarly  included.  14  However,  radio  stations  which  are  separate  establishments  and  are  primarily  engaged 

 in  producing  radio  program  material  are  classified  under  another  NAICS  code.  15  The  1992  Census  indicates  that  96  percent  (5,861  of  6,127)  of  radio  station  establishments  produced  less 
 than  $5  million  in  revenue  in  1992.  Official  Commission  records  indicate  that  11,334  individual 
 radio  stations  were  operating  in  1992.  16  As  of  June  30,  2001,  Commission  records  indicate  that  12,932  radio  stations  (both  commercial  and  noncommercial)  were  operating  of  which  2,216  were 

 noncommercial  educational  FM  radio  stations.  17  Applying  the  1992  percentage  of  station  establishments  producing  less  than  $5  million  in  revenue  (i.  e.,  96  percent)  to  the  number  of 
 commercial  radio  stations  in  operation,  (i.  e.,  10,716)  indicates  that  10,287  of  these  radio  stations  would  be  considered  small  businesses  or  small  organizations.  These  estimates  may  overstate 
 the  number  of  small  entities  because  the  revenue  figures  on  which  they  are  based  do  not  include  or  aggregate  revenues  from  non-  radio  affiliated  companies. 

 D.  Description  of  Projected  Reporting,  Recordkeeping,  and  Other  Compliance 
 Requirements 

 The  Notice  proposes  no  new  recordkeeping  or  other  compliance  requirements  associated  with  the 
 subject  rules  and  policies.  These  rules  amend  the  Commissions  procedures  and  review  processes 
 and  do  not  change  existing  documentation  and  application  requirements. 

 E.  Steps  Taken  to  Minimize  Significant  Impact  on  Small  Entities,  and  Significant  Alternatives  Considered 

 The  RFA  requires  an  agency  to  describe  any  significant,  specifically  small  business,  alternatives 
 that  it  has  considered  in  reaching  its  proposed  approach,  which  may  include  the  following  four 
 alternatives  (among  others):  (1)  the  establishment  of  differing  compliance  or  reporting 
 requirements  or  timetables  that  take  into  account  the  resources  available  to  small  entities;  (2)  the 
 clarification,  consolidation,  or  simplification  of  compliance  or  reporting  requirements  under  the 

 11 
 13  CFR    121.201,  NAICS  code  513111  and  513112. 

 12 
 1992  Census,  Series  UC92-  S-  1,  at  Appendix  A-  9. 

 13 
 Id. 

 14 
 Id. 

 15 
 Id. 

 16 
 FCC  News  Release,  No.  31327  (Jan.  13,  1993). 

 17 
 FCC  News  Release,  Broadcast  Station  Totals  as  of  June  30,  2001,  (issued  July  13,  2001). 
43
 Federal  Communications  Commission  FCC  01-  329 
 4 
 rule  for  small  entities;  (3)  the  use  of  performance,  rather  than  design,  standards;  and  (4)  an 
 exemption  from  coverage  of  the  rule,  or  any  part  thereof,  for  small  entities.  18 

 In  this  Notice,  the  Commission  explores  the  underpinnings  of  two  principles  underlying  the 
 regulation  of  the  radio  broadcast  industry,  namely  diversity  and  competition.  The  principles  of 
 diversity  and  competition  are  of  particular  import  to  small  entities.  Thus  we  seek  comment  on  the 
 general  advantages  and  disadvantages  of  relying  on  numerical  limits  or  other  bright-  line  rules  to 
 guide  our  public  interest  determination  versus  conducting  a  case-  by-  case  competitive  analysis. 
 The  framework  minimizes  the  impact  on  small  entities  by  not  subjecting  to  further  competitive 
 analysis  transactions  below  a  threshold  level. 

 This  Notice  invites  comment  on  a  number  of  alternative  interpretations  of  the  relationship 
 between  the  revision  of  local  radio  ownership  rules,  embodied  in  Section  202(  b)  of  the 
 Telecommunications  Act  of  1996  and  the  Commissions  public  interest  mandate.  19  Specifically, 
 we  propose  alternative  views  on  that  relationship  in  the  Notice,  paragraphs  25-  27,  seek  comment 
 on  these  proposals,  and  invite  additional  possible  interpretations  of  the  relevant  statutory 
 provisions.  Further,  the  Notice  seeks  comment  on  how  the  Commissions  rules  and  policies 
 concerning  local  radio  ownership  affect  our  goal  of  promoting  diversity.  20  In  light  of  the  fact  that 
 a  majority  of  the  radio  broadcasting  stations  likely  to  be  affected  are  small,  we  seek  comment  on 
 the  impact  of  industry  consolidation  on  both  viewpoint  and  source  diversity.  21 

 In  addition  to  the  principle  of  diversity,  this  Notice  seeks  comment  on  the  principle  of  competition 
 in  the  radio  broadcast  industry,  with  regard  to  the  definitions  of  the  marketplace  and  measurement 
 of  market  share.  22 

 F.  Federal  Rules  that  May  Duplicate,  Overlap,  or  Conflict  With  the  Proposed 
 Rules 

 None. 

 18 
 5  USC    603(  c). 

 19 
 See  Notice,  paragraphs  14-  18. 

 20 
 Id.  at  paragraphs  29-  38. 

 21 
 Id.  at  paragraphs  36-  38. 

 22 
 Id.  at  paragraphs  39-  50. 
44
 SEPARATE  STATEMENT 
 OF  COMMISSIONER  MICHAEL  J.  COPPS 

 In  the  Matter  of:  Rules  and  Policies  Concerning  Multiple  Ownership  of  Radio  Broadcast  Stations  in  Local  Markets    Definition  of  Radio  Markets 

 Today,  we  initiate  a  proceeding  to  establish  clearer  rules  of  the  road  for  evaluating  radio  station  transfers  in  local  markets.  If  done  rigorously,  with  input  from  a  broad  range 
 of  interested  parties,  all  of  us  stand  to  benefit  from  this  exercise.  These  transactions  have  profound  commercial,  economic,  civic  and  social  consequences,  particularly  in  these 
 difficult  and  challenging  times.  The  criteria  used  to  evaluate  proposed  transfers  and  mergers  cry  out  for  sunshine  and  clarity. 

 Congress  has  given  us  the  statutory  parameters  for  consideration  of  local  radio 
 transactions.  First,  the  1996  Act  establishes  limits  on  the  number  of  stations  any  owner  may  own  in  local  radio  markets.  Second,  our  reviews  of  radio  transactions  are  governed 

 by  long-  standing  statutory  mandate  that  we  review  each  transaction  to  determine  whether  the  public  interest  will  be  served  by  the  grant  or  transfer  of  a  license. 

 In  local  radio  transactions,  as  in  all  broadcast  transactions,  the  public  interest 
 requires  diversity  and  competition  in  the  local  market.  In  pursuit  of  its  statutory  public  interest  responsibilities,  the  proposed  NPRM  notes,    the  Commission  historically  has 

 sought  to  promote  diversity  and  competition  in  broadcasting  by  limiting  by  rule  the  number  of  radio  stations  a  single  party  could  own  or  acquire  in  a  local  market.  Diversity 
   in  sources  of  programming  and  choices  for  consumers    and  competition    among  radio  owners  for  listeners  and  advertisers    are,  as  the  Commission  further  states  in  the  NPRM, 
 the  touchstone  of  our  rules  and  policies  on  local  radio  ownership. 
 Todays  item  is  significant  for  its  strong  affirmation  of  the  Commissions  public  interest  analysis,  both  in  the  NPRM  and  in  the  interim  policy  to  be  applied  until  final 
 rules  are  in  place.  It  is  also  significant  that  the  Commission  here  recognizes  that  the  public  interest  analysis  goes  beyond  merely  a  competition  analysis.  The  analysis  also 
 must  always  include  inter  alia  such  statutory  directives  as  diversity  as  well  as 
 consideration  of  the  efficiencies  that  may  flow  from  the  transaction  and  fairness  to  all  concerned.  I  also  believe  the  public  interest  is  served  when  the  private  sector  has  clear 

 and  transparent  rules  of  the  road,  and  expeditious  procedures  for  implementing  them,  because  business  cannot  operate  with  a  question  mark. 

 I  am,  however,  concerned  that  certain  questions  in  the  NPRM  raise  issues  about 
 our  clear  statutory  obligation  to  conduct  a  comprehensive  public  interest  analysis.  I  am  troubled  by  the  implication  that  the  local  radio  station  ownership  limits  could  obviate  our 

 public  interest  obligation.  In  establishing  the  local  radio  station  limits,  Congress  made  clear  in  Section  601(  c)(  1)  of  the  1996  Act  that  these  limits  were  to  exist  in  addition  to 
 and  not  in  place  of  the  Commissions  obligation  to  grant  station  transfers  and  mergers 
45
 only  if  they  serve  the  public  interest.  Nevertheless,  the  NPRM  asks  these  questions  to 
 solicit  comment,  and  such  comment  is  essential  to  building  the  strong  record  that  will  ground  our  ultimate  decision. 

 We  are  asking  all  stakeholders  to  respond,  and  our  final  work  product  will  be  the 
 poorer  to  the  extent  that  we  lack  widespread  response.  This  exercise  deserves  focused  stakeholder  attention. 

 I  want  to  commend  the  Bureau  not  only  for  the  hard  work  that  went  into  crafting 
 this  item  but  for  its  willingness  to  undertake  the  much  more  arduous  work  that  lies  ahead,  and  I  also  commend  my  Chairman  for  his  work  in  making  this  a  better  document. 
46
 SEPARATE  STATEMENT 
 OF  COMMISSIONER  KEVIN  J.  MARTIN 

 Re:  Rules  and  Policies  Concerning  Multiple  Ownership  of  Radio  Broadcast  Stations 
 in  Local  Markets,  Notice  of  Proposed  Rule  Making,  MM  Docket  No.  01-  317; 
 Definition  of  Radio  Markets,  Further  Notice  of  Proposed  Rule  Making,  MM  Docket  No.  00-  244 

 It  is  with  some  hesitation  that  I  support  todays  item,  which  both  opens  a  rulemaking  to 
 determine  how  to  address  radio  ownership  and  establishes  interim  rules  regarding  how  we  will  process  and  evaluate  pending  radio  license  transfer  applications. 

 I  commend  the  Chairman  for  making  this  issue  a  priority  and  for  reducing  the  backlog  of 
 pending  radio  licenses  transfer  applications  considerably  since  he  assumed  his  position  in  January.  I  am  troubled,  however,  by  the  number  of  applications  that  remain  pending 

 before  the  Commission.  I  am  even  more  concerned  by  the  length  of  time  that  some  of  these  applications  have  been  pending  at  times,  for  several  years.  I  believe  that  the 
 parties  have  a  right  to  a  timely  decision  on  their  applications,  and  I  regret  that  the  Commission  at  times  has  not  acted  in  a  more  responsible  fashion. 

 I  find  this  situation  particularly  troubling  because  these  radio  license  transfers  are  subject 
 to  structural  ownership  limits.  These  limits  on  local  radio  ownership  are  not  merely  the  result  of  our  own  determination,  but  rather  were  expressly  mandated  by  Congress.  Such 

 statutory  limits  should  provide,  at  a  minimum,  a  guide  for  any  public  interest  analysis  and  should  help  make  our  review  easier,  not  more  complicated. 

 Todays  notice  solicits  comment  on  this  issue  of  the  interplay  among  statute,  structural 
 rule,  and  the  public  interest.  Specifically,  when  we  have  structural  ownership  rules,  whether  they  be  the  result  of  a  rulemaking  or  explicit  statutory  directive,  does  an 

 applications  compliance  with  these  rules  mean  that  granting  the  application  is  in  the  public  interest?  If  not,  how  should  these  rules  impact  our  analysis?  These  are  difficult 
 questions,  and  ones  that  will  be  critical  to  determining  the  appropriate  process  by  which  we  should  grant  or  designate  for  hearing  any  proposed  license  transfer  applications.  I 
 look  forward  to  reviewing  the  record  and  resolving  this  matter. 
 In  light  of  the  questions  surrounding  our  evaluation  of  these  radio  license  transfer  applications,  I  would  have  preferred  to  grant  conditionally  at  least  those  applications  that 
 have  been  pending  for  several  years.  These  grants  could  have  been  conditioned  on  the  requirement  that  the  applicants  come  into  compliance  with  whatever  rules  and/  or 
 competitive  analyses  arise  out  of  todays  NPRM. 
 Nevertheless,  I  support  the  interim  policy  we  adopt  today  because  it  establishes  a  time  line  that  should  enable  prompt  resolution  of  license  transfer  applications.  I  thank  my 
 colleagues  for  agreeing  to  incorporate  these  timelines  into  the  new  policy.  While  I  have  some  concerns  with  how  this  policy  may  be  implemented,  I  am  optimistic  that  we  soon 
 will  be  able  to  vote  on,  at  least,  the  oldest  pending  applications. 
47
 Station  Data  Syracuse,  NY  Market 
 (Home  Market  Stations  and  All  Other  Stations  with  a  Listening  Share) 

 Call  Sign 
 AM/ 
 FM  Format  Arbitron  Metro  Name 
 Metro 
 Rank  City  of  License  ST  Owner 
 Start 
 Year  Acquired 
 Station 
 Revenue 
 Rating  Share 
 Summer  '01 
 Power 
 Ratio  Class 

 WBXL  FM  AC  Syracuse,  NY  78  Baldwinsville  NY  Baldwinsville  Central  School  District  1975  0  0  0  A 
 WFBL  AM  Adlt  Stndrd  Syracuse,  NY  78  Baldwinsville  NY  Buckley  Broadcasting  Corporation  1959  Aug-  80  500  2.6  0.4  B 
 WSEN  FM  Oldies  Syracuse,  NY  78  Baldwinsville  NY  Buckley  Broadcasting  Corporation  1967  Aug-  80  2250  4.9  0.99  B 
 WITC  FM  Variety  Syracuse,  NY  78  Cazenovia  NY  Cazenovia  College  1978  0  0  0  A 
 WAQX  FM  AOR  Syracuse,  NY  78  Manlius  NY  Citadel  Communications  Corporation  1978  Apr-  00  2100  5.7  0.96  B1 
 WLTI  FM  Soft  AC  Syracuse,  NY  78  Syracuse  NY  Citadel  Communications  Corporation  1996  Apr-  00  900  3.6  0.52  A 
 WNSS  AM  Sports  Syracuse,  NY  78  Syracuse  NY  Citadel  Communications  Corporation  1946  Apr-  00  500  0  1.1  B 
 WNTQ  FM  CHR  Syracuse,  NY  78  Syracuse  NY  Citadel  Communications  Corporation  1956  Apr-  00  4600  8.7  1.6  B 
 WYYY  FM  AC  Syracuse,  NY  78  Syracuse  NY  Clear  Channel  Communications  1946  Jan-  99  4250  6.3  1.76  B 
 WBBS  FM  Country  Syracuse,  NY  78  Fulton  NY  Clear  Channel  Communications  1961  Jul-  99  5800  10.2  1.41  B 
 WHEN  AM  Sports  Syracuse,  NY  78  Syracuse  NY  Clear  Channel  Communications  1941  Jul-  99  800  2.5  0.72  B 
 WSYR  AM  Talk  Syracuse,  NY  78  Syracuse  NY  Clear  Channel  Communications  1922  Jul-  99  3400  8.1  1.03  B 
 WWHT  FM  CHR  Syracuse,  NY  78  Syracuse  NY  Clear  Channel  Communications  1958  Jul-  99  2000  7.6  0.81  B 
 WPHR  FM  Urban  Syracuse,  NY  78  Auburn  NY  Clear  Channel  Communications  1949  Feb-  00  500  3.9  1.39  B 
 WXBB  FM  Christian  Syracuse,  NY  78  DeRuyter  NY  Clear  Channel  Communications  1948  Apr-  00  0  0  0  B 
 WRCU  FM  Variety  Syracuse,  NY  78  Hamilton  NY  Colgate  University  1970  0  0  0  A 
 WDCW  AM  Christian  Syracuse,  NY  78  Syracuse  NY  Crawford  Broadcasting  Company  1922  Jul-  93  0  0.5  0  B 
 WOLF  AM  Children  Syracuse,  NY  78  Syracuse  NY  Fox,  Craig  1940  Oct-  82  100  0  0  C 
 WVOA  FM  Christian  Syracuse,  NY  78  Mexico  NY  Fox,  Craig  1996  Jul-  96  250  0  0  A 
 WSIV  AM  Christian  Syracuse,  NY  78  E.  Syracuse  NY  Fox,  Craig  1955  Sep-  96  100  0  0  B 
 WOLF  FM  Children  Syracuse,  NY  78  Oswego  NY  Fox,  Craig  1990  Sep-  97  0  0.4  0  A 
 WKRL  FM  Modern  Rock  Syracuse,  NY  78  N.  Syracuse  NY  Galaxy  Communications  1972  Feb-  94  1600  4.4  0.91  A 
 WTLA  AM  Adlt  Stndrd  Syracuse,  NY  78  N.  Syracuse  NY  Galaxy  Communications  1959  Feb-  94  200  1  0.36  B 
 WTKW  FM  Clsc  Rock  Syracuse,  NY  78  Bridgeport  NY  Galaxy  Communications  1992  Aug-  94  1800  3.5  1.23  A 
 WSGO  AM  Adlt  Stndrd  Syracuse,  NY  78  Oswego  NY  Galaxy  Communications  1960  Dec-  95  0  0  0  B 
 WTKV  FM  Clsc  Rock  Syracuse,  NY  78  Oswego  NY  Galaxy  Communications  1973  Dec-  95  0  1.7  0  A 
 WZUN  FM  AC  Syracuse,  NY  78  Phoenix  NY  Galaxy  Communications  1995  Dec-  00  300  2.1  0.18  A 
 WSCP  AM  Country  Syracuse,  NY  78  Sandy  Creek  NY  Galaxy  Communications  1974  Aug-  01  0  0  0  B 
 WSCP  FM  Country  Syracuse,  NY  78  Pulaski  NY  Galaxy  Communications  1987  Aug-  01  500  1  1.1  A 
 WKRH  FM  Modern  Rock  Syracuse,  NY  78  Minetto  NY  Galaxy  Communications  1996  0  1.6  0  A 
 WMHR  FM  Christian  Syracuse,  NY  78  Syracuse  NY  Mars  Hill  Broadcasting  Co.,  Inc.  1969  0  0  0  B 
 WCNY  FM  Classical  Syracuse,  NY  78  Syracuse  NY  Public  Broadcasting  Council  of  Central  NY  Inc  1971  0  0  0  B 
 WNYO  FM  Alternative  Syracuse,  NY  78  Oswego  NY  State  University  of  New  York  1993  0  0  0  A 
 WRVD  FM  Nws/  Tlk/  Inf  Syracuse,  NY  78  Syracuse  NY  State  University  of  New  York  1999  0  0  0  A 
 WRVO  FM  Nws/  Tlk/  Inf  Syracuse,  NY  78  Oswego/  syracuse  NY  State  University  of  New  York  1969  0  0  0  B 
 WAER  FM  Jazz  Syracuse,  NY  78  Syracuse  NY  Syracuse  University  1947  0  0  0  B1 
 WMCR  AM  AC  Syracuse,  NY  78  Oneida  NY  Warren  Broadcasting  Co  Inc  1956  Jan-  69  0  0  0  B 
 WMCR  FM  AC  Syracuse,  NY  78  Oneida  NY  Warren  Broadcasting  Co  Inc  1972  100  0  0  A 
 WJPZ  FM  Rhymc/  CHR  Syracuse,  NY  78  Syracuse  NY  WJPZ  Radio  Inc  1985  0  0  0  A 
 WZZZ  AM  AC  Syracuse,  NY  78  Fulton  NY  Zinkhann,  David  1949  Dec-  94  0  0  0  B 

 Out  of  Market  Stations 
 (Home  Market  Listed) 
 WYFY  AM  Religion  Utica  -  Rome,  NY  154  Rome  NY  Bible  Broadcasting  Network  1946  Apr-  99  0  0  C 
 WIII  FM  Clsc  Rock  Ithaca,  NY  272  Cortland  NY  Citadel  Communications  Corporation  1947  Apr-  00  875  0  B 
 WNVE  FM  Alternative  Rochester,  NY  53  Honeoye  Falls  NY  Clear  Channel  Communications  1948  May-  99  2400  0  B 
 WOUR  FM  AdStd/  NwRck  Utica  -  Rome,  NY  154  Utica  NY  Clear  Channel  Communications  1967  Jun-  99  1125  0.8  B 
 WRBY  FM  Country  Utica  -  Rome,  NY  154  Rome  NY  Clear  Channel  Communications  1982  Jun-  99  150  0.5  B 
 WMRV  FM  Adult  CHR  Binghamton,  NY  171  Endicott  NY  Clear  Channel  Communications  1969  May-  00  1400  0  B 
 WSKS  FM  Adult  CHR  Utica  -  Rome,  NY  154  Whitesboro  NY  Clear  Channel  Communications  1994  Mar-  01  950  0  A 
 WCOV  FM  Christian  Rochester,  NY  53  Clyde  NY  Family  Life  Ministries  1968  Jun-  00  0  0  A 
 WKLL  FM  Modern  Rock  Utica  -  Rome,  NY  154  Frankfort  NY  Galaxy  Communications  1990  Apr-  90  650  0.5  B 
 WRCK  FM  Clsc  Rock  Utica  -  Rome,  NY  154  Utica  NY  Galaxy  Communications  1962  Sep-  94  825  0.8  B 
 WLZW  FM  AC  Utica  -  Rome,  NY  154  Utica  NY  Regent  Communications,  Inc.  1974  Jan-  00  2150  0.4  B 
 WFRG  FM  Country  Utica  -  Rome,  NY  154  Utica  NY  Regent  Communications,  Inc.  1948  Jan-  00  2250  0.8  B 
 WFRY  FM  Country  Watertown,  NY  266  Watertown  NY  Regent  Communications,  Inc.  1968  Jan-  00  1500  0  C1 
 WRUN  AM  Country  Utica  -  Rome,  NY  154  Utica  NY  Regent  Communications,  Inc.  1948  Jan-  00  0  0  B 
 WODZ  FM  Oldies  Utica  -  Rome,  NY  154  Rome  NY  Regent  Communications,  Inc.  1968  Jan-  00  400  0  B1 

 Source:  BIA  Database  11/  5/  2001 
48
 Station  Data  Rockford,  IL  Market 
 (Home  Market  Stations  and  All  Other  Stations  with  a  Listening  Share) 

 Call  Sign 
 AM/ 
 FM  Format  Arbitron  Metro  Name 
 Metro 
 Rank  City  of  License  ST  Owner 
 Start 
 Year 
 Date 
 Acquired 

 Station 
 Revenue 
 (000) 
 Rating  Share 
 Spring  '01 
 Power 
 Ratio  Class 

 WGSL  FM  Inspiration  Rockford,  IL  150  Loves  Park  IL  Christian  Life  Center  School  1989  0  0  0 
 WKMQ  FM  Oldies  Rockford,  IL  150  Loves  Park  IL  Cumulus  Broadcasting  Inc  1964  Oct-  00  100  5.6  0  A 
 WROK  AM  News/  Talk  Rockford,  IL  150  Rockford  IL  Cumulus  Broadcasting  Inc  1923  Oct-  00  1200  3.5  1.21  B 
 WXXQ  FM  Country  Rockford,  IL  150  Freeport  IL  Cumulus  Broadcasting  Inc  1947  Oct-  00  2475  9.7  1.01  B1 
 WZOK  FM  Top40/  CHR  Rockford,  IL  150  Rockford  IL  Cumulus  Broadcasting  Inc  1949  Oct-  00  3200  12.6  0.99  B 
 WFEN  FM  ChrsContemp  Rockford,  IL  150  Rockford  IL  Faith  Academy  1991  0  0  0  B 
 WQFL  FM  ChrsContemp  Rockford,  IL  150  Rockford  IL  First  Assembly  God  1974  Jun-  80  275  2.4  0.64  A 
 WTJK  AM  Sports  Rockford,  IL  150  S.  Beloit  IL  Good  Karma  Broadcasting  1948  Oct-  00  125  0  0  B 
 WLUV  AM  Country  Rockford,  IL  150  Loves  Park  IL  Loves  Park  Broadcasting  Co  1962  0  0  0  B 
 WNIU  FM  Classical  Rockford,  IL  150  Rockford  IL  Northern  Illinois  University  1991  0  0  0  B 
 WYHY  FM  Oldies  Rockford,  IL  150  Winnebago  IL  RadioWorks  Inc  1971  May-  99  2100  8.8  0.83  A 
 WNTA  AM  Nws/  Tlk/  Old  Rockford,  IL  150  Rockford  IL  RadioWorks  Inc  1953  Aug-  99  500  4  0.53  B 
 WXRX  FM  Clsc  Rock  Rockford,  IL  150  Belvidere  IL  RadioWorks  Inc  1971  Aug-  99  2600  9.4  1.16  A 
 WGFB  FM  AC  Rockford,  IL  150  Rockton  IL  RadioWorks  Inc  1963  Oct-  99  1825  4.6  1.15  A 

 Out  of  Market  Stations 
 (Home  Market  Listed) 
 WLS  AM  News/  Talk  Chicago,  IL  3  Chicago  IL  ABC  Radio  Incorporated  1924  Feb-  96  18300  1.9  A 
 WMVP  AM  Sports  Chicago,  IL  3  Chicago  IL  ABC  Radio  Incorporated  1926  Apr-  99  8600  0  A 
 WKIE  FM  CHR/  Rhymc  Chicago,  IL  3  Arlington  Hghts  IL  Big  City  Radio  1960  Aug-  98  4500  0  A 
 WDEK  FM  CHR/  Rhymc  Chicago,  IL  3  De  Kalb  IL  Big  City  Radio  1961  Feb-  99  0  2.9  B 
 WJVL  FM  Country  Janesville  WI  Bliss  Communications  Inc  1947  0  1.3  B1 
 WKSC  FM  CHR  Chicago,  IL  3  Chicago  IL  Clear  Channel  Communications  1957  Aug-  00  17100  0  B 
 WZEE  FM  CHR  Madison,  WI  122  Madison  WI  Clear  Channel  Communications  1948  Aug-  00  4500  0  B 
 WIBA  FM  Clsc  Rock  Madison,  WI  122  Madison  WI  Clear  Channel  Communications  1947  Aug-  00  3350  0  B 
 WNUA  FM  Smooth  Jazz  Chicago,  IL  3  Chicago  IL  Clear  Channel  Communications  1959  Aug-  00  25400  0  B 
 WGCI  FM  Urban  Chicago,  IL  3  Chicago  IL  Clear  Channel  Communications  1958  Aug-  00  38800  0  B 
 WVAZ  FM  Urban  AC  Chicago,  IL  3  Oak  Park  IL  Clear  Channel  Communications  1950  Aug-  00  24600  0  B 
 WZCH  FM  Spanish  Chicago,  IL  3  Dundee  IL  Entravision  Communications  Company  LLC  1967  Aug-  00  650  0  A 
 WKPO  FM  CHR/  Rhymc  Madison,  WI  122  Evansville  WI  Good  Karma  Broadcasting  1989  Sep-  00  500  2.4  A 
 WIND  AM  Span/  News  Chicago,  IL  3  Chicago  IL  Hispanic  Broadcasting  Corporation  1927  Feb-  97  6500  1.1  B 
 WSCR  AM  Sprts/  Talk  Chicago,  IL  3  Chicago  IL  Infinity  Broadcasting  1922  Aug-  00  21400  2.1  A 
 WUSN  FM  Country  Chicago,  IL  3  Chicago  IL  Infinity  Broadcasting  1940  Feb-  01  34800  0  B 
 WBBM  AM  News  Chicago,  IL  3  Chicago  IL  Infinity  Broadcasting  1923  Feb-  01  26100  1.6  A 
 WCKG  FM  Talk  Chicago,  IL  3  Elmwood  Park  IL  Infinity  Broadcasting  1947  Feb-  01  21600  0  B 
 WTMJ  AM  Nws/  Tlk/  Spt  Milwaukee  -  Racine  31  Milwaukee  WI  Journal  Broadcast  Group  Incorporated  1927  9700  0  B 
 WSJY  FM  Lite  AC  Madison,  WI  122  Ft.  Atkinson  WI  Marathon  Media  Group  LLC  1959  Dec-  98  850  1.9  B 
 WJJO  FM  Rock  Madison,  WI  122  Watertown  WI  Mid-  West  Family  Broadcast  Group  1961  Jun-  93  2700  4  B 
 WCSN  AM  Sports  Chicago,  IL  3  Chicago  IL  NewsWeb  Corporation  1941  Feb-  01  2500  0  B 
 WAIT  AM  Nostalgia  Chicago,  IL  3  Crystal  Lake  IL  NextMedia  Group  1965  Nov-  00  1450  1.6  B 
 WYLL  AM  Chrst/  Talk  Chicago,  IL  3  Chicago  IL  Salem  Communications  Corporation  1924  Feb-  01  5200  0  B 
 WLEY  FM  Mexican  Chicago,  IL  3  Aurora  IL  Spanish  Broadcasting  System  1965  Apr-  97  12100  0  B 
 WGN  AM  News/  Talk  Chicago,  IL  3  Chicago  IL  Tribune  Broadcasting  Company  1924  38500  4.3  A 

 Source:  BIA  Database  11/  5/  2001 
49
 Station  Data  Florence,  SC  Market 
 (Home  Market  Stations  and  All  Other  Stations  with  a  Listening  Share) 

 Call  Sign 
 AM/ 
 FM  Format  Arbitron  Metro  Name 
 Metro 
 Rank  City  of  License  ST  Owner 
 Start 
 Year 
 Date 
 Acquired 
 Station 
 Revenue 
 Rating  Share 
 Spring  '01 
 Power 
 Ratio  Class 

 WHLZ  FM  Country  Florence,  SC  204  Manning  SC  Apex  Broadcasting  Inc  1973  July-  01  1050  6.5  1.33  C 
 WLPG  FM  Gospel  Florence,  SC  204  Florence  SC  Carolina  Radio  Fellowship  1993  0  0  0  C2 
 WYNN  FM  Urban  Florence,  SC  204  Florence  SC  Cumulus  Broadcasting  Inc  1964  Mar-  98  1350  15.2  0.93  A 
 WYNN  AM  Gospel  Florence,  SC  204  Florence  SC  Cumulus  Broadcasting  Inc  1958  Mar-  98  350  5.5  0.37  B 
 WBZF  FM  Gospel  Florence,  SC  204  Hartsville  SC  Cumulus  Broadcasting  Inc  1992  Jun-  98  500  3.7  0.7  A 
 WHSC  AM  Oldies  Florence,  SC  204  Hartsville  SC  Cumulus  Broadcasting  Inc  1946  Jun-  98  0  0  0  C 
 WCMG  FM  R&  B  Oldies  Florence,  SC  204  Latta  SC  Cumulus  Broadcasting  Inc  1970  Apr-  99  400  3.2  1.34  C3 
 WFSF  FM  CHR  Florence,  SC  204  Marion  SC  Cumulus  Broadcasting  Inc  1991  Apr-  99  225  3.7  1.07  C3 
 WMXT  FM  Clsc  Rock  Florence,  SC  204  Pamplico  SC  Cumulus  Broadcasting  Inc  1990  Apr-  99  900  6.9  1.4  C2 
 WYMB  AM  Country  Florence,  SC  204  Manning  SC  Cumulus  Broadcasting  Inc  1957  Apr-  99  0  0  0  B 
 WWFN  FM  Oldies  Florence,  SC  204  Lake  City  SC  Cumulus  Broadcasting  Inc  1977  Apr-  00  200  3.7  0.6  A 
 WOLS  AM  Nostalgia  Florence,  SC  204  Florence  SC  GHB  Broadcasting  1937  Dec-  87  150  1.8  0  C 
 WHYM  AM  Nostalgia  Florence,  SC  204  Lake  City  SC  GHB  Broadcasting  1953  May-  92  0  0  0  B 
 WTNI  AM  Gospel  Florence,  SC  204  Hartsville  SC  J  &  J  Broadcasting  Inc  1972  0  0  0  C 
 WDAR  FM  Soft  AC  Florence,  SC  204  Darlington  SC  Root  Communications  Group  LP  1965  Jul-  97  425  5.1  0.7  C3 
 WJMX  AM  Nws/  Tlk/  Spt  Florence,  SC  204  Florence  SC  Root  Communications  Group  LP  1947  Jul-  97  250  3.2  0.7  B 
 WJMX  FM  CHR  Florence,  SC  204  Cheraw  SC  Root  Communications  Group  LP  1979  Jul-  97  1650  7.4  1.44  C2 
 WPFM  AM  Gospel  Florence,  SC  204  Darlington  SC  Root  Communications  Group  LP  1955  Jul-  97  150  0  0  B 
 WSQN  FM  Oldies  Florence,  SC  204  Scranton  SC  Root  Communications  Group  LP  1991  Jul-  97  525  3.7  1.12  A 
 WDSC  AM  Gospel  Florence,  SC  204  Dillon  SC  Root  Communications  Group  LP  1946  Oct-  97  25  0  0  B 
 WEGX  FM  Country  Florence,  SC  204  Dillon  SC  Root  Communications  Group  LP  1954  Oct-  97  1400  6.5  2.11  C 
 WGSS  FM  Gospel  Florence,  SC  204  Kingstree  SC  Root  Communications  Group  LP  1998  50  1.4  0.52  A 
 WPDT  FM  CHR  Florence,  SC  204  Johnsonville  SC  Waccamaw  Neck  Broadcasting  1995  0  0  0  A 

 Out  of  Market  Stations 
 (Home  Market  Listed) 
 WWKT  FM  Urban/  Oldes  Kingstree  SC  A&  D  Broadcasting  Inc  1966  May-  01  0  0  C3 
 WFLB  FM  Oldies  Fayetteville,  NC  129  Laurinburg  NC  Beasley  Broadcast  Group  1951  Jul-  96  2325  0  C 
 WZFX  FM  Urban  Fayetteville,  NC  129  Whiteville  NC  Beasley  Broadcast  Group  1962  May-  97  4100  0  C1 
 WCOS  FM  Country  Columbia,  SC  93  Columbia  SC  Clear  Channel  Communications  1951  Aug-  00  4900  0.5  C1 
 WWBZ  FM  Urban/  Rap  Charleston,  SC  86  McClellanville  SC  Daniels,  Thomas  B  1994  Nov-  00  0  0.5  C2 
 WWDM  FM  Urban  Columbia,  SC  93  Sumter  SC  Inner  City  Broadcasting  Corporation  1961  Aug-  00  3500  3.7  C 
 WICI  FM  Top  40  Sumter  SC  Miller  Communications  Inc  1995  July-  01  0  0.5  A 
 WKZQ  FM  AOR  Myrtle  Beach,  SC  176  Myrtle  Beach  SC  NextMedia  Group  1969  Aug-  00  900  0.9  C2 
 WYAV  FM  Clsc  Rock  Myrtle  Beach,  SC  176  Myrtle  Beach  SC  NextMedia  Group  1964  Aug-  00  700  0.9  C1 
 WSTS  FM  Gospel  Fayetteville,  NC  129  Fairmont  NC  Pro  Media  Inc  1975  Dec-  86  400  0.9  C2 
 WTUA  FM  Gospel  Charleston,  SC  86  St.  Stephen  SC  Ravenell,  Jeremiah  1989  Jul-  99  0  0  A 
 WWXM  FM  Mix  AC  Myrtle  Beach,  SC  176  Garden  City  SC  Root  Communications  Group  LP  1971  Sep-  97  1800  0.9  C1 
 WWSK  FM  Clsc  Rock  Myrtle  Beach,  SC  176  Mullins  SC  Root  Communications  Group  LP  1975  Jul-  99  600  0  C2 

 Source:  BIA  Database  11/  5/  2001 
50