[Federal Register Volume 67, Number 197 (Thursday, October 10, 2002)]
[Notices]
[Pages 63094-63095]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-25765]
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FEDERAL COMMUNICATIONS COMMISSION
[MB Docket No. 02-284; FCC 02-251]
Whitehall Enterprises, Inc. and Clear Channel Broadcasting
Licenses, 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 WAAM(AM), Ann Arbor, Michigan, from
Whitehall Enterprises, Inc. (``Whitehall'') 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, MB Docket No.
02-284, adopted on September 16, 2002, and released on September 18,
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, 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 17, 2001, Clear Channel and Whitehall filed an
application proposing to assign the license of station WAAM(AM) from
Whitehall to Clear Channel. The application was unopposed. Clear
Channel currently is the licensee of four stations in the Ann Arbor,
Michigan Arbitron metro: WCAS(AM), Saline, Michigan, and WQKL(FM),
WTKA(AM), and WWWW(FM), Ann Arbor, Michigan.
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 Whitehall's radio broadcast license to
Clear Channel before the assignment may occur. Under the interim policy
set forth in our Local 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
[[Page 63095]]
oriented service and diversity in media voices. Our public interest
analysis therefore includes assessing whether the transaction 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 Clear Channel's share of the local radio
advertising market would be 94.9%, and the combined market share of the
top two group owners in the market would be 99.0%. 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 before us 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 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 Ann Arbor,
Michigan market 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 burden of proof with respect
to both the introduction of evidence and the issue specified in this
Order shall be upon Whitehall and Clear Channel, the applicant parties
in this proceeding.
7. 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.
8. To defer further consideration of the application to assign the
license of station WAAM(AM), Ann Arbor, Michigan, from Whitehall to
Clear Channel in accordance with the interim policy, Whitehall 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 the Hearing Designation Order.
9. In the event the parties do not timely file the joint election
set forth in the paragraph above, pursuant to 47 U.S.C. 309(e), the
application to assign the license of station WAAM(AM), Ann Arbor,
Michigan, from Whitehall to Clear Channel is designated for hearing 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. BAL-
20010817AAH).
10. Within 15 days of the mailing of this Hearing Designation
Order, 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.
11. To avail themselves of the opportunity to be heard, Whitehall
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 Hearing Designation Order. 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.
12. 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).
13. 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.
14. The application to assign the licenses of station WAAM(AM), Ann
Arbor, Michigan, from Whitehall to Clear Channel will be held in
abeyance pending the outcome of this proceeding.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 02-25765 Filed 10-9-02; 8:45 am]
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