competitor all are allowed to speak colocated merely colocated as a result but nevertheless yes you see use the term in that certain of these market stations are in one market area other cities are and if you go to market area necessarily satisfy all cases in fact they recognise the fact the contour methodology is more accurate than merely geographic doesn't nation and they were also recognised affected a certain cases that arbitron is a circumstances that's pressure yet the record shows that commission did take into account the circumstances and just reached a different conclusion based on its analysis as to why it was case were the only stations that were right in play here whatsoever which is really the standard they should be applying they should be looking at whether or not it is meaningful competition between that the station where they serve all serve the same service syria and as a result case your fuel cells six stations which puts them automatically over the five limit by virtue of the market size will be created if you look at a combined markets for situation more important thing is that if there are situations where such a thing exists never been litigated so i'd say in any of those situations we're not you have to the only case that might ever be litigated i'm not saying that whatsoever but probably should have the right to bring up that to the f c c and say he were straddling two different markets like for example if you look at washington d station to serve really both markets there clearly defined markets in years clearly defined geography situations such that they basically are are properly personal between two separate markets so the pearson said that there will still stations would necessarily be competitive with the main stations but the main feature as is whether or not these stations serve both markets in a meaningful fashion so that they really should be considered together rather than pretending as though they serve one market or another some others only competing immobile they're all competing together because of geography and placement of the stations eventually the crux of the of the problem here for all intents and purposes the commission is trying to create a fiction here circumstances three and look at them didn't i don't think they really there's no place in the commission's decision where they have ever looked at or suggested that they look at the fact that conceded the fact that even though the stations do over left and do provide  is the commission never left me with regard to what we brought the case on a timely basis we now have a commission says you didn't file your peel until after the two year period had expired well there was no period of time during before that we could have good morning your honour's may please the court my name is james carr and i present the federal communications commission eighty ex who's making an extraordinary request of the f c c here he concedes that under a straightforward application of the f c c rules the transactions that issue here comply with the radio ownership caps notwithstanding that official compliance you know argued that the f c c she see should deny those transactions because according to a d x they were not in the public interest now to make that kind of extraordinary request and have the f c c granted eighty x bore a heavy burden under section three hundred ninety one of the communications act you'd have to allege sufficient facts to show that this these particular transactions were prime facia inconsistent with the public interest and you failed to carry that burden in the bureaus who are joining the bendix page five eleven of rivals are actively engaged in competition for listening audiences that last clause is particularly important actively engaged in competition listening audiences all  was technical engineering data about signal coverage areas involving these particular stations where they could reach that where their signal reached it provided no information whatsoever about whether the stations in fact competed in both pensacola and know beyond the mere fact that their signal can reach both markets does not necessarily ensure that they are actively competing for local advertisers and arbitron has looked particular markets and index its experience it has found that these stations even if they reach both pensacola and mobile tend to gravitate toward one community or the other they don't actively compete with two separate in this whole communities in two different states with two different sets of local advertisers and maybe maybe not well i do again you even if you're think what eighty x would have had to do would have been to come up with the sort of evidence that arbitron was analyzing advertising revenues advertising strategies i mean  all right it's if you look at the concentric circles i mean they're all in the same market i'm just trying to understand i thought the whole where the station is looking for advertising the two aren't necessarily synonymous they aren't but they're both considerations go into the numerical ownership caps there there are considerations about diversity of viewpoints there's also a concern about economic concentrations here was there ten owners in each market that's right and therefore that's the end of the analysis and that overlap is not unique that's correct and that yes the end of the analysis yes that's right and i and again i think the purpose the public interest objective of the ownership caps is to ensure that the home is defined by the commission and you have these arbitron ratings that's the universe that the commission has decided to  here i'm not sure i do but for example if you had ten owners or twenty owners in one market and they're all doing country music all right there are ten owners and they're all playing the same here where he talks about the commission didn't give a hard look at what's going on here are you telling me that that is just not part of the relevant universe when you're  challenging the arbitron scheme that the commission has adopted i would say that the hard work here is whether or not there was sufficient evidence to determine that the arbitron markets were not accurate reflection of the state of actual market competition that is and so the answer to my question is yes well again i'm i'm i'm not sure you can you repeat the question and i'm sorry my hypothetical yes everybody is hearing country and nothing well if everybody's hearing country within the same you know working under this in the commission does not care about what the communities are hearing well that's right that it's not so much a question of i think the assumption here is that if you have different station owners they will be looking for different niches in the marketplace unless unless everybody in that market wants to hear country and nothing else and that the market will work but the main your live there and i'm sorry i don't want to live there i wanted to point out and the conditions interveners pointed this out and in the end there were things that eighty x did not come forward with any evidence related to these particular fourteen stations competition in the in the signal contrary so if it had come forward with evidence that only thing listeners are hearing is country that would have been irrelevant that would have been irrelevant to particular analysis your honor that's that's correct yes all we care about is corporate ownership and advertising revenues well and of is that when you have a diverse group of that's not that's not the commission's concern that's right i'm asking you as a powerful representing the commission you said explaining this rule what is the universe that's relevant and you have argued here today that that challenge failed to produce evidence beyond this technical tower strange thing that's right and i'm trying to understand what evidence needed to be presented beyond technical capability and the evidence would be evidence that for example they make the assumption that all of these stations because they can reach both pensacola and o b l must obviously compete in both pensacola o b l but that  is unsupported and in fact i was and i'm just wondering if the evidence that you would present other than towers i think you would present evidence along the lines of what  arbitron his study advertising revenues for these stations in the different markets their ratings are they in fact gaining sufficient audience in both moby old and pensacola to be a real factor in those markets have overlap known to their minority competition it is these these stations tend to focus on one market or the other so they're not all the the six stations that a d x is focusing on don't think there's any merit to their argument regarding a two year waiting period it clearly was limited to these arbitron based decisions for the commission to have extended here to a community of license change would have beyond would this court if if if we say that it's it's if we send it back because if if we address the two year yet and we've been so under those circumstances that after looking at that time that application should have been judged by the commission under the  there for if we if we decided if it in a different case where there was a point in clear violation of a manipulation and we sent it back to the commission since the two years is up commission would say or two years is up if it in other cases there are situations where three owners hers how basically the stations and a charges on are up to the limit but not over the limit you have c c is never studied whether it be included in their decision making process whatsoever that o