FCC 95-449 Federal Communications Commission Record

11 FCC Red No.7

3448

Before theFederal Communications Commission

Washington, D.C. 20554

In re Application of

WILLIAM B. NEAL

File No. BALH-950316GEAssignor

and

BIG MACK BROADCASTING, L.L.C.Assignee

For Consent to Assignment ofStation KSYN(FM),Joplin, Missouri

MEMORANDUM OPINION AND ORDER

Adopted: October 30, 1995;

Released: March 18, 1996

By the Commission:

1. The Commission has before it an application forreview filed by West Group Broadcasting, Ltd. ("West").' ofa June 27, 1995, action of the Chief, Audio Services Di-vision, Mass Media Bureau ("Bureau Letter"). The BureauLetter denied a joint petition to deny filed by West and twoother parties (the "Petitioners'),2 and granted theabove-captioned assignment of license for KSYN(FM),Joplin, Missouri,3 from William B. Neal ("Neal") to BigMack Broadcasting, L.L.C. ("BMB").4 Opposition, replyand various supplemental pleadings and replies have beensubmitted.5 As set forth below, we affirm the above-cap-tioned assignment grant.2. On March 16, 1995, BMB filed the above-captionedapplication to acquire the license of station KSYN(FM),Joplin, Missouri. Because BMB was already the licensee ofKJKT(FM), Joplin, Missouri. a station whose principal

West is the licensee of Missouri stations KFSB(AM), Joplin,KIXO(FM). Webb City, and KXDG(FM), Webb City.West had filed its original petition to deny jointly withCarthage Broadcasting Co., Inc., licensee of stations KDMO(AM)and KMXL(FM), Carthage. Missouri, and TGS Communica-tions, Inc., licensee of station KMOO(FM), Baxter Springs, Kan-sas.KSYN(FM) is a Class Cl station authorized to operate onChannel 223 with 100 kW effective radiated power at 131 metersheight above average terrain.

The Bureau Letter also granted consent to the assignment oflicense for station WMBH(AM), Joplin, Missouri, from BMB toNeal. West's application for review does not contest this grant.On June 29, 1995, West filed a motion for stay of theKSYN(FM) assignment grant. The record reflects, however, thatthe parties consummated the subject assignment on June 30,1995. (We therefore dismiss West's motion for stay as moot.6 In a market served by fifteen or more commercial radiostations, 47 C.F.R.. § 73.3555(a)(l)(ii) states that "any applicationRhati will result in a combined audience share exceeding 25percent will be considered prima facie inconsistent with the

community contour (3.16 mV/m) overlapped with that ofKSYN(FM), BMB submitted an exhibit demonstrating theproposed combination's compliance with the Commission'smultiple ownership rule, 47 C.F.R. § 7335556 In thatexhibit, BMB stated that 15 or more stations' relevantcontours overlapped the proposed combination's contoursand that the most recent Arbitron market report -- Spring1994 -- showed that the combined audience share did notexceed the Commission's 25% audience share cap.7 ThePetitioners argued, however, that BMB did not use themost recent published audience survey data available at thetime that it filed the subject application, as required by 47C.F.R. § 73.3555(a)(3)(iii).8 The Petitioners contended thatBMB should have used, instead, the Fall 1994 JoplinAccuRatings9 report which was released prior to the filingof BMB's application but subsequent to the release of theSpring 1994 Arbitron report. The Petitioners stated thataccording to the Fall 1994 Joplin AccuRatings report, theproposed combination's audience share was in excess of theCommission's 25 percent share cap.'°3. The Bureau Letter disagreed with West, finding thatBMB's reliance upon Arbitron's most recently releasedsurvey complied with 47 C.F.R. § 73.3555. The BureauLetter stated that in order to challenge an applicant's show-ing which relies upon the most recently published au-dience survey data, whether from Arbitron or fromanother widely used and regularly published reliable in-dependent ratings service, a petitioner must demonstratethat the relied-upon ratings data are anomalous oruntrustworthy. The Bureau Letter noted that the Petitionerhad not provided any "significant evidence relating to thedisparity between the Arbitron and AccuRatings data, or tothe defects in the Spring 1994 Arbitron report, or toArbitron's sampling procedure which would indicate thatthe subject Arbitron ratings data are anomalous oruntrustworthy."

4. In its application for review, West contends that thestaff's interpretation of the language in 47 C.F.R. §73.3555(a)(3)(iii) -- "most recent published audience sharedata available at the time that ani application is filed" --was erroneous. We disagree. We find that the Bureau Let-ter's interpretation of 47 C.F.R. § 73.3555(a)(3)(iii), whichpermits the use of data from the most recent ratings reportfrom any widely used and regularly published reliable rat-ings service, is consistent with the language of the rule.

public interest."According to the Spring 1994 Joplin Arbitron report, thecombined audience share of KSYN(FM) and KJKT(FM) was15.5 percent. Arbitron surveys the Joplin market betweenMarch and June of each year and publishes a Spring reportannually.

8 Section 73.3555(a)(3)(iii), as modified by Memorandum Opin-ion and Order/Second Recon. Order, 9 FCC Rcd 7183 (1994),states in pertinent part that "[aludience share shall be calculatedby using the most recent published audience share data avail-able at the time that the application is filed." 47 C.F.R. §73.3555(a)(3)(iii).West states that AccuRatings is an independent audienceresearch firm that conducts four surveys per year in the Joplinmarket. AccuRatings' Fall Joplin report is based on surveysconducted between October and December. West also reportsthat, as of April, 1995, AccuRatings conducted surveys in 46markets.

'

The Fall 1994 Joplin AccuRatings report showed the pro-posed combination's audience share to be 27.4 percent.

11 FCC Rcd No.7

Federal Communications Commission Record FCC 95-449

Furthermore, to employ West's reading of section73.3555(a)(3)(iii) would impose an unfair burden upon anapplicant by requiring, immediately prior to filing an ap-plication, a search among the different available ratingsservices in an effort to determine which survey was re-leased most recently. Moreover, we find that West's readingof section 73.3555(a)(3)(iii) would interject an unreason-able factor of uncertainty for an applicant who has negoti-ated a station purchase and has prepared an applicationbased upon a conforming ratings service's most recentlyreleased data. Where, as here, the applicant has selected themost recent available ratings data from a widely used andregularly published ratings service and those data are rea-sonably current, the burdens and uncertainty of West'sapproach are unnecessary.

5. As we have noted elsewhere, the audience share com-ponent of our local radio ownership rules was intended tofunction as a "secondary screening mechanism after ap-plication of numerical station ownership limits, in marketsof 15 or more stations." Franklin Communications Partners,L.P., 8 FCC Rcd 4909, 4911 (1993). In adopting this stan-dard, "we were concerned with preventing excessive con-centration, not with freezing audience shares at aprescribed level." Id. Thus, while we have considered evi-dence submitted by petitioners contesting an applicant'sshowing that its combined audience share was within the25% criterion, we have not deemed such evidence to raisea substantial question disfavoring grant where the appli-cant's showing is reasonably grounded and the deviationfrom the 25% benchmark has been modest. Id. at 4912.Here, as in Franklin, the applicant's use of Arbitron data --both current in nature and the most recent available fromthat source -- was reasonable. And, even accepting thepetitioner's showing as accurate, the deviation from the25% criterion -- 2.4% -- is modest. Under these circum-stances, there is no basis to reverse the Bureau's actiondenying the petition to deny and granting the subject as-signment application.

6. ACCORDINGLY, IT IS ORDERED, that the applica-tion for review filed on June 29, 1995. by West GroupBroadcasting, Ltd. IS DENIED.

FEDERAL COMMUNICATIONS COMMISSION

William F. CatonActing Secretary

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