[Federal Register Volume 67, Number 197 (Thursday, October 10, 2002)]
[Notices]
[Pages 63092-63094]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-25764]
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FEDERAL COMMUNICATIONS COMMISSION
[MM Docket No. 02-272; FCC 02-246]
Voice in the Wilderness Broadcasting, Inc., and Clear Channel
Broadcasting License, Inc.
AGENCY: Federal Communications Commission.
ACTION: Notice.
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SUMMARY: In this document, the FCC designates the application to assign
the license of radio station KCOL-FM, Groves, Texas, from Voice in the
Wilderness Broadcasting, Inc. (``Voice in the Wilderness'') to Clear
Channel Broadcasting Licenses, Inc. (``Clear Channel''). The Commission
cannot find, based on the record, that grant of this application is
consistent with the public interest, convenience, and necessity.
Accordingly, pursuant to 47 U.S.C. 309(e), the Commission designates
the application for hearing to determine whether the public interest,
convenience, and necessity will be served by grant of the application.
DATES: See SUPPLEMENTARY INFORMATION section for document filing dates.
ADDRESSES: Please file documents with the Investigations and Hearing
Division, Enforcement Bureau, Federal Communications Commission, Room
3-B431, 445 12th Street, SW., Washington, DC 20554.
FOR FURTHER INFORMATION CONTACT: Charles W. Kelley, Chief,
Investigations and Hearing Division, Enforcement Bureau, at (202) 418-
1420.
SUPPLEMENTARY INFORMATION: This is a summary of the Federal
Communications Commission's Hearing Designation Order, MM Docket No.
02-272, adopted on September 4, 2002, and released on September 5,
2002. The full text is available for inspection and copying during
normal business hours in the FCC Reference Information Center, Room CY-
A257, 445 12th Street, SW., Washington, DC 20554. The full text may
also be purchased from the Commission's copy contractor, Qualex
International, Room CY-B402, 445 12th Street, SW., Washington, DC
20554, telephone (202) 863-2983, facsimile (202) 863-2898, or via e-
mail at [email protected], or may be viewed via the Internet at: http:/
/www.fcc.gov/Document-- Indexes/Media/2002--index--MB--Order.html.
Alternative formats are available to persons with disabilities by
contacting Martha Contee at (202) 418-0260 or TTY (202) 418-2555.
Synopsis of the Order
1. In March 1996, the Commission relaxed the numerical station
limits in its local radio ownership rules in accordance with Congress's
directive in section 202(b) of the Telecommunications Act of 1996.
Since then, the Commission has received applications proposing
transactions that would comply with the new limits, but that
nevertheless could produce concentration levels that raised significant
concerns about the potential impact on the public interest. In response
to these concerns, the Commission concluded that it has an independent
obligation 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. In August
1998, the Commission also began flagging public notices of radio
station transactions that would result in one entity controlling 50
percent or more of the advertising revenues in the relevant Arbitron
radio market or two entities controlling 70 percent or more of the
advertising revenues in that market. On November 8, 2001, we adopted
the Notice of Proposed Rulemaking in MM Docket No. 01-317, 16 FCC Rcd
19861, 66 FR 63986, December 11, 2001 (``Local Radio Ownership NPRM'').
We expressed concern that our current policies on local radio ownership
did not adequately reflect current industry conditions and had led to
unfortunate delays in the processing of assignment and transfer
applications. Accordingly, we adopted the Local Radio Ownership NPRM to
undertake a comprehensive examination of our rules and policies
concerning local radio ownership and 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. In the Local Radio Ownership NPRM, we also
set forth an interim policy to guide our actions on radio assignment
and transfer of control applications pending a decision in that
proceeding. Under our interim policy, we presume that an application
that falls below the 50/70 screen will not raise competition concerns
unless a petition to deny raising competition issues is filed. For
applications identified by the 50/70 screen, the interim policy directs
the Commission's staff to conduct a public interest analysis, including
an independent preliminary competition analysis, and sets forth generic
areas of inquiry for this purpose. The interim policy also sets forth
timetables for staff recommendations to the Commission for the
disposition of cases that may raise competition concerns.
2. On August 14, 2001, Clear Channel and Voice in the Wilderness
filed an application proposing to assign the license of station KCOL-FM
(formerly KTFA(FM)) from Voice in the Wilderness to Clear Channel. The
application was unopposed. Clear Channel currently is the licensee of
four stations in the Beaumont-Port Arthur, Texas Arbitron metro:
KIOC(FM), Orange, Texas; KKMY(FM), Orange, Texas; KLVI(AM), Beaumont,
Texas; and KYKR(FM), Beaumont, Texas.
3. Section 310(d) of the Communications Act of 1934, as amended
(the ``Communications Act''), 47 U.S.C. 310(d), requires the Commission
to find that the public interest, convenience and necessity would be
served by the assignment of Voice in the Wilderness's radio broadcast
license to Clear Channel before the assignment may occur. Under the
interim policy set forth in our Local
[[Page 63093]]
Radio Ownership NPRM, we conduct a public interest analysis, including
but not limited to an independent preliminary competition analysis of
the proposed transaction based on publicly available information and
information in the Commission's records. Under the interim policy, to
decide whether a proposed assignment serves the public interest, we
first determine whether it complies with the specific provisions of the
Communications Act, other applicable statutes, and the Commission's
rules, including our local radio ownership rules. If it does, we then
consider any potential public interest harms of the proposed
transaction as well as any potential public interest benefits to
determine whether, on balance, the assignment serves the public
interest. The Commission's analysis of public interest benefits and
harms includes an analysis of the potential competitive effects of the
transaction, as informed by traditional antitrust principles. However,
the Commission's public interest evaluation is not limited to
competition concerns but necessarily encompasses the broad aims of the
Communications Act. These broad aims include, among other things,
ensuring the existence of an efficient, nationwide radio communications
service available to everyone and promoting locally oriented service
and diversity in media voices. Our public interest analysis therefore
includes assessing whether the transfer will affect the quality of
radio services or responsiveness to the local needs of the community,
and whether it will result in the provision of new or additional
services to listeners. Thus, under our interim policy, where a proposed
transaction raises concerns about economic concentration, we will
consider evidence that the particular circumstances of a case may
mitigate any adverse impact that might otherwise result, as well as any
evidence of benefits to radio listeners that might result from the
proposed transaction. Ultimately, it is the potential impact of the
transaction on listeners that will determine whether we can find that,
on balance, grant of a particular radio station assignment or transfer
of control application serves the public interest.
4. Having concluded that the proposed transaction is consistent
with the numerical limits set forth in our ownership rules, we turn to
our competition analysis. Here, we find that the proposed transaction
would create a market in which the combined market share of the top two
group owners in the market would be 92.7%. We find that Clear Channel
has failed to demonstrate particular circumstances in this market
sufficient to overcome a concern that this level of economic
concentration in this market will harm the public interest. To the
extent Clear Channel presents generic arguments challenging the
parameters of our current competition analysis, we will address such
concerns in the context of the Local Radio Ownership NPRM and need not
consider them here. Rather, we look only to the record of this case to
determine whether there are unique facts that persuade us that grant of
this assignment application would serve the public interest despite the
apparent economic concentration it will create. On the basis of the
information before us, we are unable to make the required finding that
the public interest, convenience and necessity will be served by
granting the subject application. Accordingly, we will designate the
assignment application for hearing to determine, pursuant to 47 U.S.C.
309(e), and based on the evidence to be adduced at hearing, whether the
public interest, convenience and necessity will be served by the grant
of the application.
5. We direct the Administrative Law Judge (``ALJ'') to examine in
an evidentiary hearing the particular circumstances of the Beaumont-
Port Arthur, Texas metro to determine whether the factual assumptions
in Section III.C. of the Hearing Designation Order are correct. We
further direct the ALJ to determine, in light of his or her
conclusions, whether the transaction is likely to cause any
anticompetitive harms, and to determine what, if any, public benefits
would accrue from this transaction. Finally, we direct the ALJ to apply
these findings to determine whether, on balance, grant of the
application would serve the public interest.
6. Pursuant to 47 U.S.C. 309(e), the application to assign the
license of station KCOL-FM, Groves, Texas, from Voice in the Wilderness
to Clear Channel is designated for hearing. Unless the parties timely
file a joint election to defer as set forth below, the Hearing shall be
at a time and place to be specified in a subsequent Order, to
determine, in light of the evidence to be presented in the hearing,
whether the public interest, convenience and necessity would be served
by the grant of the above-captioned assignment application (File No.
BALH-20010814AAU).
7. Pursuant to 47 U.S.C. 309(e), the burden of proof with respect
to both the introduction of evidence and the issue specified in this
Order shall be upon Voice in the Wilderness and Clear Channel, the
applicant parties in this proceeding.
8. The Commission's Consumer and Governmental Affairs Bureau,
Reference Information Center, will send copies of this Order to all
parties by Certified Mail--Return Receipt Requested.
9. To defer further consideration of the application to assign the
license of station KCOL-FM, Groves, Texas, from Voice in the Wilderness
to Clear Channel in accordance with the interim policy, Voice in the
Wilderness and Clear Channel must file a joint election to defer
consideration of the application. Such election must be filed within 20
days of the mailing of this Order pursuant to Paragraph 8 above.
10. A copy of each document filed in this proceeding subsequent to
the date of adoption of this Order must be served on the counsel of
record appearing on behalf of the Chief, Enforcement Bureau. Parties
may inquire as to the identity of such counsel by calling the
Investigations and Hearings Division of the Enforcement Bureau at (202)
418-1420. Such service must be addressed to the named counsel of
record, Investigations and Hearings Division, Enforcement Bureau,
Federal Communications Commission, 445 12th Street, SW., Room 3-B431,
Washington, DC 20554.
11. No less than 15 days of the mailing of the Order pursuant to
Paragraph 8 above, the parties may amend their application or file such
other information with the Media Bureau as they deem relevant to
ameliorate the competition concerns identified in this Order.
12. To avail themselves of the opportunity to be heard, Voice in
the Wilderness and Clear Channel, pursuant to 47 CFR 1.221(c) and
1.221(e), in person or by their respective attorneys, must file, in
triplicate, a written appearance stating an intention to appear on the
date fixed for the hearing and present evidence on the issues specified
in this Order. Such written appearance shall be filed within 20 days of
the mailing of this Order pursuant to Paragraph 8 above. Pursuant to 47
CFR 1.221(c) of the Commission's rules, if the parties fail to file an
appearance within the specified time period, the assignment application
will be dismissed with prejudice for failure to prosecute.
13. The applicants, pursuant to 47 U.S.C. 311(a)(2), and 47 CFR
73.3594 must give notice of the hearing within the time and in the
manner prescribed, and must advise the Commission of the publication of
such notice as required by 47 CFR 73.3594(g).
[[Page 63094]]
14. The application to assign the licenses of station KCOL-FM,
Groves, Texas, from Voice in the Wilderness to Clear Channel will be
held in abeyance pending the outcome of this proceeding.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 02-25764 Filed 10-9-02; 8:45 am]
BILLING CODE 6712-01-P