[Federal Register Volume 67, Number 162 (Wednesday, August 21, 2002)]
[Notices]
[Pages 54208-54209]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-21302]


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FEDERAL COMMUNICATIONS COMMISSION

[MM Docket No. 02-138; FCC 02-166]


Mountain Wireless, 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 applications to 
assign the licenses of radio stations WSKW(AM) and WHQO(FM), Skowhegan, 
Maine, from Mountain Wireless, Inc. (``Mountain'') to Clear Channel 
Broadcasting Licenses, Inc. (``Clear Channel''). The Commission cannot 
find, based on the record, that grant of these applications is 
consistent with the public interest, convenience, and necessity. 
Accordingly, pursuant to 47 U.S.C. 309(e), the Commission designates 
the applications for hearing to determine whether the public interest, 
convenience, and necessity will be served by grant of the applications.

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. 
02-138, adopted on June 5, 2002 and released on July 10, 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 rule 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 (2001), 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 September 18, 2001, Mountain and Clear Channel filed 
applications proposing to assign the licenses of WSKW(AM) and WHQO(FM) 
from Mountain to Clear Channel. The applications were unopposed. Clear 
Channel currently owns six stations in the Augusta-Waterville, Maine 
Arbitron metropolitan market (``Augusta-Waterville metro''): (1) 
WFAU(AM), Gardiner, Maine; (2) WABK-FM, Gardiner, Maine; (3) WCME(FM), 
Boothbay Harbor, Maine; (4) WIGY(FM), Madison, Maine; (5) WKCG(FM), 
Augusta, Maine; and (6) WTOS-FM, Skowhegan, Maine.
    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 Mountain's radio broadcast licenses 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

[[Page 54209]]

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 99.5%. 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 
these assignment applications 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 applications. Accordingly, we will designate the 
assignment applications 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 applications.
    5. We direct the Administrative Law Judge (``ALJ'') to examine in 
an evidentiary hearing the particular circumstances of the Augusta-
Waterville 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 applications would serve 
the public interest.
    6. To defer further consideration of the applications to assign the 
licenses of Stations WSKW(AM) and WHQO(FM), Skowhegan, Maine, from 
Mountain to Clear Channel in accordance with the interim policy, 
Mountain and Clear Channel must file a joint election to defer 
consideration of the applications. Such election must be filed by 
September 5, 2002.
    7. 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 
applications to assign the licenses of Stations WSKW(AM) and WHQO(FM), 
Skowhegan, Maine, from Mountain to Clear Channel are 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 applications (File Nos. 
BAL-20010918ABB/BALH-20010918ABC).
    8. 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 Mountain and Clear Channel, the applicant parties 
in this proceeding.
    9. 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.
    10. The effectiveness of this Order is stayed until September 11, 
2002, no less than 10 days prior to which the parties may amend their 
applications 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, Mountain 
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 by September 11, 2002. 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 
applications 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. The applications to assign the licenses of stations WSKW(AM) 
and WHQO(FM), Skowhegan, Maine, from Mountain to Clear Channel will be 
held in abeyance pending the outcome of this proceeding.
    14. 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.

Federal Communications Commission.
      
Marlene H. Dortch,
 Secretary.
[FR Doc. 02-21302 Filed 8-20-02; 8:45 am]
BILLING CODE 6712-01-P