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Federal Communications Commission FCC 96-495

Before theFederal Communications Commission

Washington, D.C 20554

In re Applications of ))

STOCKHOLDERS OF INFINITY )BROADCASTING CORPORATION )(Transferor) )

) and )

)WESTINGHOUSE ELECTRIC ) CORPORATION )(Transferee) )

)For Transfer of Control of ) File Nos. ETC, BTCH, BTCFTB-Infinity Broadcasting Corporation, ) 960722GE through 960722A4Licensee of )WCAO(AM), Baltimore, Maryland )WJFK(AM), Baltimore, Maryland )WLJF-FM, Baltimore, Maryland )WXYV(FM), Baltimore, Maryland )WJFK-FM, Manassas, Virginia )WPGC(AM), Momingside, Maryland )WPGC-FM, Momingside, Maryland )WQYK(AM), Seffiier, Florida )WQYK-FM, St Petersburg, Florida )WAOK(AM), Atlanta, Georgia )WVEE(FM), Atlanta, Georgia )WZGQFM), Atlanta, Georgia )WOMC(FM), Detroit, Michigan )WX\T(AM), Detroit, Michigan )WYCD-FM, Detroit, Michigan ).WCKG(FM), Elmwood Park, Illinois ) .WJJD(AM), Chicago, Illinois )WJMK(FM), Chicago, Illinois )WUSN(FM), Chicago, Illinois )WYSY(FM), Aurora, Illinois )KDMM(AM), Highland Park, Texas )KEWS-FM, Arlington, Texas )KHVN(AM), Fort Worth, Texas )KOAI-FM, Fort Worth, Texas )KRBV(FM), Dallas, Texas )KVIL-FM, Highland Park, Texas )KYNG-FM, Dallas, Texas )

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Report No. SPB-80 - 2 - April 16, 1997

seek to have a processing round initiated.

This action constitutes a new information collection under the Paperwork Reduction Act of 1995, Pub. L. No. 104-13. Accordingly, the Office of Management and Budget must approve this collection before it can go into effect. The OMB approval process may take up to 120 days.

Once OMB approval is granted, the Bureau intends to issue Public Notices establishing cut-off dates for satellite space stations in both the 2 GHz frequency band and the 40 GHz frequency band. See Amendment of Section 2.106 of the Commission's Rules to Allocate Spectrum at 2 GHz for Mobile Satellite Service, First Report and Order and Further Notice of Proposed RulemaTdng, ET Docket No. 95-18 (released, March 14, 1997), and Allocation and Designation of Spectrum hi the 37.5-38.5 GHz, 40.5-42.5 GHz, 48.2-50.2 GHz, 46.9-47.0 GHz, and 37.0-38.0 GHz Frequency Bands, Notice of Proposed RulemaMng, FCC No. 97-85, 62 FR 16129 (April 4, 1997), respectively. The Bureau expects it will require applicants to file applications, including letters of intent where appropriate, within 30 days after each Public Notice is issued.

This Public Notice contains either a proposed or modified information collection. As part of its continuing effort to reduce paperwork burdens, we invite the general public and the Office of Management and Budget (OMB) to take this opportunity to comment on the information collections contained in this Public Notice, as required by the Paperwork Reduction Act of 1995, Pub. L. No. 104-13. Comments should address: (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.

Public and agency comments on the proposed information collections are due by June 23, 1997; OMB comments are due June 23, 1997. In addition to filing comments with the Secretary, a copy of any comments on the information collections contained herein should be submitted to Dorothy Conway, Federal Communications Commission, Room 234, 1919 M Street, N.W., Washington, DC 20554, or via the Internet to [email protected], and to Timothy Fain, OMB Desk Officer, 10236 NEOB, 725 17th Street, N.W., Washington, DC 20503 or via the Internet to [email protected].

For further information, contact Virginia Marshall (202) 418-0778 and Kathleen Campbell at (202) 418-0753.

- FCC-

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THE DALLAS-FORT WORTH )STATIONS TRUST, BILL CLARK, )TRUSTEE )Assignee )

)For the Assignment of the license of ) KOAI-FM, Fort Worth, Texas )

)WESTLNGHOUSE ELECTRIC ) File Nos. BAL-96101 1GC, CORPORATION/GROUP W ) BALH-961011GL BROADCASTING, INC )Assignor )

) and )

)THE CHICAGO STATIONS TRUST, ) HENRY M. RIVERA, TRUSTEE )Assignee )

)For the Assignment of the licenses of ) WSCR(AM) and WXRT(FM), ) Chicago, Illinois )

WESTINGHOUSE ELECTRIC ) CORPORATION/CBS INC )

)Request for Permanent Waivers of ) Section 73.3555(c) of the Commission's Rules )

MEMORANDUM OPINION AND ORDER

Adopted: December 26,1996 Released: December 26,1996

By the Commission:

Table of ContentsParagraph

Summary 2-6

Petitions to Deny/Informal Objections/Motion for StaySpectrum Petition to Deny 18, 32-33, 81 Serafyn/UCCA Petition to Deny 7, 81 Serafyn/UCCA Motion for Stay 10

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KXYZ(AM), Houston, Texas KROQ-FM, Pasadena, California KRTH-FM, Los Angeles, California KFRC(AM), San Francisco, California KFRC-FM, San Francisco, California KFRC-FM1, Danville, California KFRC-FM2, Pleasanton, California KFRC-FM3, Walnut Creek, California KOME(FM), San Jose, California KOME-FM1, Santa Cruz, California KOME-FM2, Morgan Hill, California KYCY(FM), San Francisco, California KYCY-FM1, Pleasanton, California WBCN(FM), Boston, Massachusetts WBOS(FM), Brookline, Massachusetts WOAZ(FM), Lowell, Massachusetts WZLXKTFM), Boston, Massachusetts WFAN(AM), New York, New York WXRK(FM), New York, New York WZRCXAM), New York, New York WIP(AM), Philadelphia, Pennsylvania WYSP(FM), Philadelphia, Pennsylvania

INFINITY FORT WORTH LICENSEE ) File Nos. BAL-961011GM,CORPORATION ) BALH-961011GNAssignor )

and )

THE DALLAS-FORT WORTH )STATIONS TRUST, BILL CLARK, )TRUSTEE )Assignee . )

For the Assignment of the licenses of )KHVN(AM), Fort Worth, Texas )and KRBV(FM), Dallas, Texas )

INFINITY KOAI-FM LICENSEE ) File No. BALH-961011GJCORPORATION )Assignor )

and )

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___ Federal Communications Commission_____FCC 96-495

Informal Objections 1

Qualifications Issues 7-12

Multiple Ownership Matters

Permanent One-to-a-Market Rule WaiversBackground 13 Waiver Standard 16 Waiver Showing 20-31 Opposition to Waiver 32-34 Discussion 34-48

Radio Contour Overlap RuleBackground 49 Chicago 51 Dallas/Fort Worth 54 Chicago-Dallas/Fort Worth Discussion 57-60 New York, Los Angeles, Philadelphia, San Francisco, Detroit, Boston,Washington, D.C., Baltimore, Houston, Atlanta 61-63

Temporary One-to-a-Market Rule WaiversBackground 64-66 Waiver Showing 67-80 Opposition to Waiver 81 Discussion 82-91

Conclusion 92

1. The Commission has before it for consideration the above-captioned applications seeking consent to the transfer of control of Infinity Broadcasting Corporation (Infinity) from the shareholders of Infinity to Westinghouse Electric Corporation (Westinghouse), and related applications to assign certain Infinity and Westinghouse radio stations to contingent trusts. Also before the Commission for consideration is Westinghouse's request for permanent one-to-a-market waivers for radio-television combinations for which it received temporary twelve-month waivers in connection with its merger with CBS Inc. Stockholders of CBS Inc.. 11 FCC Red 3733 (1995), appeal pending sub nom. Alexander J. Serafyn y. FCC. No. 95-1385 (D.C. Cir.). Petitions to deny the transfer of control applications were timely filed by Alexander J. Serafyn and the Ukrainian Congress Committee of America, Inc. (collectively, Serafyn/UCCA) and by Spectrum Detroit, Inc. (Spectrum).' Spectrum also opposes Westinghouse's request for permanent

1 Three letters were also submitted to the Commission in opposition to the Infiiuty/Westinghouse merger. Kirn Cox, of Richmond, Virginia characterizes her letter pleading as a "petition to deny." However, the letter does not meet the procedural requirements applicable to petitions to deny set forth in 47 U.S.C. § 309(dXl). Additionally, Cox's letter and the two additional letter pleadings were submitted before the transfer of control applications were

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one-to-a-market waivers. Additionally, Serafyn/UCCA filed a motion for a stay of consideration of the transfer of control applications. Westinghouse and Infinity filed joint oppositions to the petitions to deny the transfer of control applications and to the motion for stay filed by Serafyn/UCCA Westinghouse filed a separate pleading responding to Spectrum's opposition to its request for permanent waivers of the one-to-a-market rule.

filed, and thus were premature because the Commission's rules permit the filing of informal objections and petitions to deny only against pending applications. See 47 C.F.R. §§ 73.3584, 73.3587, see also, 47 U.S.C. § 309 (dXl). However, we will consider the substantive matters raised in those pleadings.

Cox opposes the merger based on Infinity's "past and pending" violations of federal law governing indecent broadcasts. Cox specifically objects to material broadcast on the "Howard Stem Radio Show," which Cox characterizes as "indecent and sometimes obscene." Cox alleges that Stem promotes racism, incest and prostitution. Another letter, filed by Endicott Peabody, the former governor of Massachusetts, also objects to the "Howard Stem Show," and cites Stem's "Incest Wednesday" as an example of programming that encourages deviant behavior. Neither Cox nor Peabody has provided a tape, transcript or significant portion of any broadcast of the "Howard Stern Show" which would permit the Commission to make an independent assessment of whether the programming was indecent or obscene. Absent this documentation, Cox and Peabody fail to raise a substantial and material question of fact concerning indecent or obscene programming. See, e.g.. K7 Communications. Inc.. 8 FCC Red 2448,2449 (MMB 1993). Furthermore, in the past, the Commission made the determination mat Infinity's apparent misconduct with respect to indecent programming does not disqualify it as a Commission licensee. KLUVYFMX 10 FCC Red 4517, 4519 (1995); KRTHfFMl 9 FCC 7112 (1994), iseon, denied. 10 FCC Red 9504 (1995). Additionally, under the terms of an agreement settling enforcement proceedings relating to broadcasts aired by Infinity and its subsidiaries, the Commission agreed to expunge past determinations that resulted in the issuance of Notices of Apparent Liability for indecent programming and complaints pending as of September 5,1995, from Infinity's record for all purposes, including any future qualifications issue or future licensing proceeding or future transfer of control or assignment of license or permit See Sagittarius Broadcasting Corporation. 10 FCC Red 12245, 12250 (1995). Consequently, Cox's assertion concerning the effect of past apparent indecency violations is moot Id- However, we note that mere are currently pending indecency complaints against Infinity. Our preliminary review of these complaints indicates mat they raise no substantial and material question of fact concerning Infinity's qualifications to be a Commission licensee that would otherwise bar the merger of Infinity and Westinghouse. In this regard, we also note that following the merger, Infinity will continue to exist as a subsidiary of Westinghouse, and mat our decision concerning the merger is without prejudice to whatever further action, if any, the Commission deems appropriate with respect to the pending indecency complaints.

The third letter pleading, filed by Bluma F. Wolfson, objects to the merger, and alleges that approval of Westinghouse's acquisition of Infinity will create a monopoly and permit Westinghouse to "slant, limit or completely black out any news and/or opinions not reflective of its own." Peabody also generally objects to the merger by alleging mat it will permit Westinghouse to "take over the broadcasting market" Peabody and Wolfson's assertions concerning market dominance and concentration are conclusory and contain no specific evidence sufficient to raise a substantial and material question of fact that would preclude grant of the transfer of control or the permanent waiver requests. Wolfson's comments on the potential for news slanting or suppression are no more man speculation concerning Westinghouse's future conduct, and thus raise no substantial and material question of fact concerning Westinghouse's qualifications to be a licensee. Sfig, e.g., Stockholders of CBS Inc.. 11 FCC Red at 3747. General concerns about market concentration articulated by Peabody and Wolfson will be addressed in the context of our analysis of the merger of Infinity and Westinghouse and the waivers related bom to that transaction and to Westinghouse's permanent waiver request See Capital Cities/ABC,. Inc., 11 FCC Red 5841, 5850-51 n.5 (1996).

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SUMMARY

2. The transfer of control applications involve the merger of Infinity and Westinghouse.2 Disposition of these applications requires us to consider (1) Serafyn/UCCA's arguments concerning Infinity and Westinghouse's qualifications to be Commission licensees; (2) Serafyn/UCCA's motion for stay of consideration of the transfer of control applications; (3) Westinghouse's request to convert six temporary twelve-month one-to-a-market waivers granted in connection with its acquisition of CBS Inc. to permanent waivers; (4) Westinghouse's request for nine conditional one-to-a-market waivers in connection with its acquisition of Infinity; (5) divestiture proposals and alternative agreements to assign stations to trusts to insure that the merged entity complies with the numerical limitations of the radio local ownership rules; (6) arguments raised by Spectrum concerning the standard used to evaluate one-to-a-market waiver requests; and (7) arguments raised by Spectrum and Serafyn/UCCA concerning the propriety of granting the temporary and permanent waivers. Additionally, our consideration of the merger will take into account divestiture of stations in Boston and Philadelphia that is required pursuant to Westinghouse's agreement with the Department of Justice settling a civil antitrust case related to its proposed acquisition of Infinity's radio stations. (DOJ Settlement Agreement).3

3. Westinghouse is the indirect licensee of, or controls the licensee or permittee of, fifteen full-service television stations,4 three television satellite stations,5 and 39 radio stations.6

2 Pursuant to an Agreement and Plan of Merger executed on June 20, 19%, Infinity is to become a wholly- owned subsidiary of Westinghouse. Each of the existing and outstanding shares of Infinity's common stock will be converted into the right to receive 1.71 shares of common stock of Westinghouse.

3 Under the terms of the DOJ Settlement Agreement, Westinghouse is required to divest WMMR(FM), Philadelphia, a station currently licensed to its subsidiary, Group W Broadcasting, L.P., and WBOS(FM), Boston, a station currently controlled by Infinity that Westinghouse would control as a result of the subject merger. Divestiture of the stations must be completed within six months of the filing of the Final Judgment in the civil antitrust suit, or within five business days after notice of entry of the Final Judgment, whichever is later. If the stations are not divested within the prescribed time, the Department, at its discretion, may ask the court to appoint a trustee who shall have the power and authority to locate a purchaser or purchasers and to accomplish the sale of the stations. Proposed Final Judgment in United States v. Westinghouse Electric Corporation. Case No. 96CV02563 (D.D.C., filed Nov.12,1996).

4 Westinghouse is the indirect licensee of: KPEX-TV, San Francisco, licensed to Group W Broadcasting, Inc. (Group W), a subsidiary of Westinghouse; KDKA-TV, Pittsburgh, WBZrTV, Boston, and WJZ-TV, Baltimore, licensed to Group W Broadcasting, L.P. (Group W, L.P.X whose sole general partner is Group W; and WCBS-TV, New York, KCBS-TV, Los Angeles, WBBM-TV, Chicago, WWJ-TV, Detroit, WCCO-TV, Minneapolis, WFRV-TV, Green Bay, licensed to CBS Inc., a subsidiary of Westinghouse. In addition, Westinghouse controls the permit for KUSGCTV), St George, Utah, as well as the licenses of KYW-TV, Philadelphia, WFOR-TV, Miami, KUTV(TV), Salt Lake City, and KCNC-TV, Denver.

5 KCCO-TV, Alexandria, Minnesota and KCCW-TV, Walker, Minnesota operate as satellite stations of WCCO- TV, Minneapolis. WJMN-TV, Escanaba, Minnesota is operated as a satellite station of WFRV-TV, Green Bay, Wisconsin. All of these satellite televisions stations are licensed to CBS Inc.

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As a result of the merger, Westinghouse will acquire Infinity's 43 radio stations. Westinghouse presently controls radio and television stations in nine of the markets where it proposes to acquire additional Infinity radio stations - New York, Los Angeles, Chicago, Philadelphia, San Francisco, Detroit, Boston, Baltimore, and Washington, D.C. In three of these markets - Boston, Baltimore and Washington, D.C - Westinghouse controls permanent radio-television combinations and requests conditional one-to-a-market waivers in order to acquire and hold Infinity radio stations for a period ending six months after the Commission issues its decision in the television ownership proceeding, in which the Commission is considering issues related to radio-television cross-ownership.7

4. In the remaining six markets - New York, Los Angeles, Chicago, Philadelphia, San Francisco and Detroit - Westinghouse was previously granted temporary twelve-month one-to-a- market waivers for radio-television combinations that resulted from its acquisition of CBS. See Stockholders of CBS Inc.. spa Westinghouse now proposes, in its request for permanent waivers, to convert the temporary waivers it received in these six markets to permanent waivers. The Infinity/Westinghouse merger would result in Westinghouse's acquisition of additional radio stations in each of these six markets. Therefore, Westinghouse requests conditional one-to-a- market waivers in these six markets to permit it to acquire and hold these Infinity stations for a period ending six months after the Commission issues its decision in the television ownership proceeding. Westinghouse also seeks temporary six-month waivers of the one-to-a-market rule to permit it to divest of WMMR(FM), Philadelphia, and WBOS(FM), Boston, in the time permitted under its agreement with DOJ.

5. The transfer of control of Infinity to Westinghouse will also result in the merged entity's ownership of more than one same-service radio station in twelve local radio markets. Westinghouse has submitted showings to demonstrate its compliance with the radio local ownership rules' numerical restrictions in ten of these markets and has filed applications to divest

6 CBS Inc., a wholly-owned subsidiary of Westinghouse, is the licensee of: WCBS(AM) and WCBS-FM, New York, New York; KNX(AM) and KCBS-FM, Los Angeles, California; WBBM(AM) and WBBM-FM, Chicago, Illinois; WWJ(AM) and WYST(FM), Detroit, Michigan; WCCO(AM), and WLTE(FM), Minneapolis, Minnesota; WPHT(AM) and WOGL-FM, Philadelphia, Pennsylvania; KCBS(AM) and KLLC(FM), San Francisco, California; WODS(FM), Boston, Massachusetts; WARW(FM), Bethesda, Maryland; KTXQ-FM, Fort Worth, Texas and KRRW(FM), KRLD(AM), Dallas, Texas; KMOX(AM) and KLOU(FM), St Louis, Missouri. Group W Broadcasting, Inc., also a wholly owned subsidiary of Westinghouse, is the licensee of: KPIX(AM) and KPEX-FM, San Francisco; KTWV(FM), Los Angeles, California; WMACXAM), WSCR(AM) and WXRT(FM), all Chicago, Illinois. Group W Broadcasting, Inc., is also die sole general partner of Group W. Broadcasting, L.P., licensee of: KFWB(AM), Los Angeles; KKK(AM), Pasadena, Texas, KKK-FM, KILT(AM) and KELT-FM, all Houston, Texas; KDKA(AM), Pittsburgh, Pennsylvania; KYW(AM) and WMMR(FM), Philadelphia, Pennsylvania; WINS(AM) and WNEW(FM), New York, New York; WB2(AM), Boston, Massachusetts; and WVMV(FM), Detroit, Michigan.

7 See Review of the Commission's Regulations Governing Television Broadcast Ownership in MM Docket Nos. 91-221 and 87-8, FCC 96438 (Nov. 7,1996XSecond Further Notice of Proposed Rule Making); 10 FCC Red 3524 (1995XFurther Notice of Proposed Rule Making).

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stations in the two remaining markets - Chicago and Dallas/Fort Worth - as a means of coming into compliance with the local ownership rules. Westinghouse has pledged to come into compliance with the radio local ownership rules before consummating the merger transaction. To ensure that it will do so, even if its pending applications to divest stations are not granted or consummated at the time that Westinghouse and Infinity are prepared to consummate the merger, Westinghouse and Infinity have filed additional applications to assign stations in these radio markets to trusts insulated in accordance with the Commission's rules and policies. The assignment of these stations to trusts would eliminate the merged entity's attributable interests in a sufficient number of stations so that the merged entity would not exceed the radio local ownership rules' numerical limitations.

6. For the reasons that follow, we find that Spectrum and Serafyn/UCCA have each failed to raise a substantial and material question of fact that would preclude grant of the transfer of control applications at issue here, and that Spectrum has failed to raise a substantial and material question of fact that would preclude grant of the permanent waiver requests. We will also dismiss the motion for stay filed by Serafyn/UCCA. We therefore will grant the permanent waiver requests8 and will grant the transfer of control of Infinity to Westinghouse and the temporary one-to-a-rnarket waivers requested in connection with the transfer of control, conditioned on the outcome of the television ownership proceeding. However, as discussed below, our actions will be conditioned on the divestiture of certain stations in Chicago and Dallas/Fort Worth, either by assignment of those stations to new parties or by assignment of stations in those markets to trusts prior to consummation of the merger. We will approve the trusts for 6 month periods. The one-to-a-market waivers also will be modified by conditions that reflect the divestiture of WMMR(FM), in Philadelphia, and WBOS(FM) in Boston, pursuant to Westinghouse's settlement agreement with the Department of Justice.

QUALIFICATIONS ISSUES

7. Petition to Deny. Serafyn/UCCA's petition to deny primarily concerns the October 1994 broadcast of "The Ugly Face of Freedom," an episode of "60 Minutes," which allegedly portrayed Ukrainians in an inaccurate and defamatory manner. Serafyn first raised news distortion allegations in connection with the "60 Minutes" broadcast when CBS acquired WGPR- TV.9 See WGPR. Inc.. 10 FCC Red 8140, 8146-48 (1995), appeal pending suLnom Meander. J. Serafyn v. FCC. No. 95-1385 (D.C. Cir.). The Commission, in the WGPR-TV proceeding, rejected Serafyn's news distortion allegations as well as his more general allegations that CBS's programming is not in the public interest. 10 FCC Red at 8146-48. When Westinghouse

8 The temporary waivers, which are now being converted to permanent waivers, were initially granted for a period not to exceed twelve months from the date of consummation of the merger of Westinghouse and CBS. The merger was consummated on November 24, 1995. On October 18, 1996, Westinghouse filed a request for an extension of the temporary waivers. Westinghouse's request for an extension of the temporary waivers will be dismissed as moot in light of our decision granting the permanent waiver requests.

9 The call sign of WGPR-TV has been changed to WWJ-TV.

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subsequently sought to acquire CBS, Serafyn and the UCCA filed a joint petition to deny that also concerned the 1994 "60 Minutes" broadcast. Serafyn and the UCCA alleged that CBS had made misrepresentations concerning whether it had responded to complaints directed to a CBS affiliate that concerned the "60 Minutes" program. However, the Commission resolved the basic qualifications issues in CBS's favor and denied the petition filed by Serafyn and the UCCA in the decision approving the merger of CBS and Westinghouse. Stockholders of CBS Inc.. 11 FCC Red 3733 (1995), appeal pending sub nom. Alexander J. Serafyn v. FCC. No. 95-1385 (D.C. Cir.)

8. Nevertheless, Serafyn/UCCA continue to challenge Westinghouse's character qualifications based on the "60 Minutes" broadcast. In their petition to deny the transfer of control applications, Serafyn/UCCA point out that appeals of the Commission's decisions in WGPR, Inc. and Stockholders of CBS Inc. have been consolidated and are presently pending. Additionally, Serafyn/UCCA assert that they have asked CBS to either publicly apologize for allegedly false statements made during the broadcast of "The Ugly Face of Freedom," or to prove the truth of statements made in the broadcast. Furthermore, Serafyn/UCCA argue that Westinghouse's failure to vouch for the fairness and accuracy of this program is a sufficient basis on which to revoke all Westinghouse's authorizations to operate radio and television stations.

9. The Commission has previously rejected, in WGPR. Inc. and Stockholders of CBS Inc.. the arguments that Serafyn/UCCA reassert here. Serafyn/UCCA have not presented any basis for further consideration of these matters in connection with the Infinity/Westinghouse merger proposed in the transfer of control applications. Neither the Communications Act not any Commission rule or policy mandates that the Commission maintain the status quo pending a judicial appeal of its decisions. Evans v. FCC. 113 F.2d 166,169 (1940); Pinelandsr Inc.. 7 FCC Red 6058, 6061 (1992). Thus, the pending appeals in the WGPR-TV proceeding and the CBS/Westinghouse merger proceeding do not alter our decisions in those proceedings or preclude our reliance on our decisions while the appeals are pending. Furthermore, because the Commission fully resolved all qualifications issues in favor of CBS in the WGPR-TV and CBS/Westinghouse merger proceeding, we need not defer action on the transfer of control and the related waiver requests at issue here. However, our action on the transfer of control applications does not prejudice Serafyn/UCCA or any other party with pending appeals of our decisions in WGPR. Inc. and Stockholders of CBS Inc. Our grants of the WGPR-TV application and the CBS/Westinghouse merger are subject to Section 402(h) of the Communications Act That statutory provision provides that if the court issues a decision reversing the Commission's order in a proceeding, it will remand the case to the Commission to carry out the court's judgment. See 47 U.S.C. §402(h). Therefore, all applicants, including CBS and Westinghouse, bear the risk of consummating a transaction that is subject to an appeal and reversal by the Court of Appeals. See Improvement Leasing Co.. 73 FCC 2d 676, 684 (1979), affd sub nom. Washington Association for Television and Children v. FCC. 665 F.2d 1264 (D.C. Cir. 1981Xapplicants on notice that they proceed at their own risk pending judicial review).

10. Motion for Stay. The Motion for Stay requests that the Commission withhold consideration of the transfer of control of Infinity to Westinghouse until the United States Court of Appeals for the D.C. Circuit has decided a Petition for Writ of Mandamus, which was filed

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by Serafyn/UCCA with the court on July 3, 1996. Serafyn/UCCA filed the mandamus petition following the Commission's action, on June 26, 1996, returning a pleading filed by Serafyn/UCCA concerning the Infinity/Westinghouse merger. Serafyn/UCCA's pleading stated their intent to file a petition to deny the Westinghouse/Infinity transaction, which, they argued, should be considered restricted and subject to prohibitions against ex parte communications under the Commission's rules. However, because the applications to transfer control of Infinity to Westinghouse had not yet been filed, the Commission found that there was no proceeding that triggered application of the ex parte rules and therefore returned Serafyn/UCCA's pleading as premature. Letter from William E. Kennard, General Counsel to Arthur V. Belenduik, Esq. (Jun. 26, 1996). 5S£ 47 C.F.R. §§ 1.1208(cXlXiiXA), U208(cXlXi)(B); 47 C.F.R. §§ 73.3584, 73.3587. S§£ also. 47 U.S.C. § 309(dXl).

11. In the mandamus petition filed with the court, Serafyn/UCCA contended that the Commission had misapplied its own ex parte rules as well as provisions of the Administrative Procedure Act, 5 U.S.C. § 551 st seq., when it returned their pleading filed against the Infinity/Westinghouse merger as premature. Serafyn/UCCA also alleged in the mandamus petition that there had been impermissible ex parte contacts in proceedings involving the acquisition of broadcast licenses by Westinghouse and CBS, including the WGPR-TV proceeding, the CBS/Westinghouse merger proceeding Westinghouse's request for permanent waivers, and the Westinghouse/Infinity merger, not yet on file. Serafyn/UCCA asked the court to order the Commission to comply with the ex parte rules in these proceedings and to require disclosure of any ex parte contacts that had been made by Westinghouse, CBS or Infinity.

12. On September 13,1996, the Court of Appeals for the D.C. Circuit denied the Petition for Writ of Mandamus. In re: Alexander J. Serafyn. No. 96-1232 (D.C. Cir. Sept. 13, 19%). Consequently, Serafyn/UCCA's motion for stay is moot and will be dismissed However, we note that the transfer of control of Infinity to Westinghouse has been a restricted proceeding, and subject to ex parte prohibitions, since formal oppositions were filed by Serafyn/UCCA and Spectrum on August 26, 19%. The WGPR-TV proceeding and the CBS/Westinghouse proceeding which are both the subject of pending court appeals, also remain restricted and subject to prohibitions against ex parte communications. 10 Serafyn/UCCA do not, in their petition to deny or motion for stay, offer any evidence that Westinghouse, CBS or Infinity have

10 We note that Spectrum filed a petition for reconsideration of the Commission's decision granting the CBS/Westinghouse merger in which it raised for the first time allegations concerning ex parte rule violations. First, Spectrum contended that Westinghouse or CBS engaged in impermissible ex parte discussions in a meeting with the Commission staff during the pendency of the appeal of the WGPR-TV proceeding. Second, Spectrum argued that it was impermissible for the Commission in the CBS/Westinghouse proceeding to treat issues pertaining to children's television and political broadcast obligations as non-restricted but to treat all other aspects of the proceedings as restricted based on the filing of formal oppositions. Spectrum did not reassert these matters in either its opposition to Westinghouse's request for permanent waivers or in its petition to deny the transfer of control of Infinity. Furthermore, the Commission has dismissed Spectrum's petition for reconsideration on procedural grounds. In doing so, the Commission concluded that Spectrum presented no new facts that warranted reconsideration and that no other public interest reasons existed to cause it to set aside its previous approval of the CBS/Westinghouse merger. Stockholders of CBS Inc.. FCC 96-478 (Dec. 17, 1996).

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engaged in impermissible ex parte contacts or have otherwise violated the ex parte rules in any proceeding, including the permanent waiver request and the transfer of control of Infinity to Westinghouse that are under consideration here. Thus, their allegations are unsubstantiated and fail to raise a substantial and material question of fact concerning the ex parte rules. 11

MULTIPLE OWNERSHIP MATTERS

Permanent One-to-a-Market Waiver Requests

13. Background Because the stations involved are already controlled by Westinghouse and because their ultimate ownership will affect our analysis of the merger, we will first consider Westinghouse's request to make permanent the temporary one-to-a-market waivers it received in connection with its acquisition of CBS. The Commission previously granted Westinghouse temporary one-to-a-market waivers in connection with its acquisition of CBS for radio-television combinations in New York, Los Angeles, Chicago, Philadelphia, San Francisco and Detroit. Stockholders of CBS Inc.. 11 FCC Red at 3772. In each of these markets, the Westinghouse/CBS merger expanded existing radio-television combinations. Westinghouse requests permanent one-to-a-market waivers in order to permit the continued ownership of these radio-television combinations.

14. Westinghouse states that at the time of its merger with CBS, it initially requested only temporary one-to-a-market waivers in order to facilitate expeditious consideration of the overall merger transaction, but had also explicitly stated its intention to make its ownership of the radio-television combinations in these six markets permanent in the future. Westinghouse also states that in each market, a radio-television combination had existed prior to the merger, and that in five of the markets, it would own no more than two AM stations and two FM stations in each market, and thus would comply with the Commission's radio local ownership rules that were in effect at the time that the merger was approved. Westinghouse states that in the sixth market, Chicago, its proposed ownership of three AM and two FM stations in the radio television combination complies with the numerical ownership restrictions that are now in place as a consequence of the revisions to the radio local ownership rules mandated by the

11 Serafyn/UCCA filed a separate "Motion to Compel Service" in the Westinghouse permanent waiver proceeding, in which they argued that their participation in the earlier WGPR-TV proceeding and the CBS/Westinghouse merger proceeding entitled mem to be treated as parties to the permanent waiver proceeding from March 8, 1996, the date that Westinghouse filed its request for the permanent waivers. Serafyn/UCCA further asserted that because they were parties from the outset, Westinghouse violated the ex parte rules by failing to serve them with pleadings related to the request for the permanent waivers. We have issued a separate Memorandum Opinion and Order denying this motion. Westinghouse Electric Corporation. FCC 96-365 (Sept 24, 1996). In denying the motion, we determined that the permanent waiver proceeding became restricted only when Spectrum filed its formal opposition to the request for permanent waivers. We also rejected Serafyn/UCCA's claim to party status because they failed to file an opposition to the request for permanent waivers. However, in light of Serafyn/UCCA's interest in being kept informed on matters affecting the permanent waiver proceeding, we directed the Westinghouse and Spectrum to serve Serafyn/UCCA with copies of any future pleadings or documents filed with respect to the permanent waiver requests. Id-

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Telecommunications Act of 1996. Westinghouse contends that permitting it to retain the radio- television combinations that resulted from its merger with CBS on a permanent basis would be consistent with Commission precedent and would advance important public interest goals without in any way threatening diversity and competition.

15. When the merger of CBS and Westinghouse was approved, the Commission determined that Westinghouse's acquisition of CBS stations complied with the local radio ownership rules in all relevant local radio markets except Chicago and Houston. Westinghouse's acquisition of CBS stations exceeded the then applicable two AM/two FM numerical limitations, and Westinghouse was granted temporary twelve-month waivers of the radio local ownership rules in order to hold a three AM/two FM station combination in Chicago and a two AM/three FM station combination in Houston. 10 FCC Red at 3758. Westinghouse has filed an application to assign the license of WSCR(AM), Chicago, which is now held by CBS, to Personal Achievement Radio of Illinois, Inc. See BAL-960925EA. Therefore, Westinghouse now proposes to own no more than two AM stations and two FM stations in any of the markets where it requests permanent one-to-a-market waivers. 12 Additionally, its request for permanent waivers implicates only the one-to-a-market rule, and not the radio local ownership rules as amended by the Telecommunications Act of 19%. Specifically, in three of these markets, New York, Los Angeles, and San Francisco, Westinghouse will control a television/two AM/two FM station combination. In Philadelphia, Westinghouse will control a television/two AM/one FM station combination. 13 In Chicago, following divestiture of the AM station, Westinghouse will control a television/two AM/two FM station combination, and in Detroit, Westinghouse will control a television/one AM/two FM station combination.

Weaver Standard

16. Section 73.3555(c) of the Commission's Rules, the one-to-a-market rule, generally proscribes common ownership of a television and radio station in the same market In Second Report and Order in MM Docket No. 87-7 (Second Report and Order). 4 FCC Red 1741, recon. granted in part f Second Report and Order Recon.\ 4 FCC Red 6489 (1989), the Commission established three standards for waiver of the rule. Under these standards, the Commission presumptively favors waiver requests involving stations combinations serving the top 25 markets where there remain at least 30 separately owned, operated and controlled broadcast licenses or

12 Westinghouse's ownership of stations in Houston is not at issue in connection with the permanent one-to-a- market waiver requests. Its ownership of radio stations in this market is discussed in the local radio ownership section infra.

13 This excludes WMMR(FM). Westinghouse has agreed to divest WMMR(FM), one of its FM stations in Philadelphia, within six months pursuant to the DOJ Settlement Agreement

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"voices" after the proposed combination is consummated ("top 25 markets/30 voices" standard). 14 Id at 1751-52. Second, under the "failed station" standard, the Commission presumes that the public interest will also be served in cases involving acquisition of "failed" broadcast stations, that is, stations that have not been operating for a substantial period of time or that are in bankruptcy. Id at 1752-53. Third, waiver requests not eligible for consideration under either the "top 25 markets/30 voices" standard or the "failed station" standard are evaluated under the more rigorous "case-by-case" standard, set forth in paragraph 17, i

1 7. The permanent rule waivers requested by Westinghouse all involve markets that are among the top ten television markets in the country. However, because Westinghouse proposes to control a television station and more than one same-service radio station in each of the markets where it requests one-to-a-market rule waivers, it bases the waiver requests on the more rigorous case-by-case waiver standard See Memorandum Opinion and Order in MM Docket 91-140, 7 FCC Red 6387, 6394 n.40 (1992Xconsideration of one-to-a-market waivers under case-by-case standard is appropriate when a transaction implicates the numerical limitations of the radio local ownership rules, pending resolution of the television ownership proceeding, in which the Commission is considering revision of the one-to-a-market waiver rule). Under the case-by-case waiver standard, the Commission makes a public interest determination using the following criteria: (1) the potential public service benefits of joint ownership of the facilities, such as the economies of scale, cost savings and programming and service benefits; (2) the types of facilities involved; (3) the number of media outlets owned by the applicant in the relevant market; (4) any financial difficulties involving the stations; (5) the nature of the relevant market in light of the level of competition and diversity after the joint operation is implemented Second Report and Order. 4 FCC Red at 1753-54. The Commission noted, in adopting the case-by-case waiver standard, that not all five of the case-by-case factors must be satisfied as a precondition to grant of a waiver. See Second Report and Order Recon.. 4 FCC Red at 6491.

1 8. Before turning to Westinghouse's showing under the applicable case-by-case standard, we must first address Spectrum's argument that the case-by-case standard is unlawfully arbitrary and capricious because it is composed of five subjective factors that are selectively applied. Spectrum further argues that because these five factors are not necessarily applied in every case, the Commission routinely grants one-to-a-market rule waivers to permit the common ownership of radio and television stations in the same market, and thus has effectively gutted a rule that was intended to prohibit the common ownership of radio and television stations in the same market In this regard, Spectrum claims that during the seven year period since the case-by-case waiver standard was implemented, the Commission has granted one-to-a-market rule waivers in 33 reported cases, and has denied such waivers in only two cases. Spectrum asserts that this result is contrary to the purpose of rule waivers, which are meant to fimction as a "safety valve" to

14 The Commission has been directed to "extend its [one-to-a-market] waiver policy to any of the top 50 markets, consistent with the public interest, convenience, and necessity." See Telecommunications Act of 19%. Pub. L. No. 104-104, § 202(d), 110 Stat 56 (1996). A proposal to implement mis extension of our waiver policy is pending. Second Further Notice of Proposed Rule Making in MM Docket Nos. 91-221 and 87-8, FCC 96-438 (Nov. 7, 19%) at para.66.

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address situations that do not fit the intent of the rule and should be granted sparingly.

19. Spectrum's argument overlooks the Commission's decision in the 1989 rulemaking proceeding to relax the one-to-a-market rule's prohibition against radio-television combinations in order to permit common ownership of radio and television stations consistent with the maintenance of diversity and competition. Second Report and Order. 4 FCC Red 1741,1746. The Commission liberalized the radio-television cross-ownership prohibition by adopting waiver standards that included allowing for waiver of the one-to-a-market rule on a case-by-case basis using the five factors set forth above. In doing so, the Commission articulated general standards for making exceptions to the rule prohibiting same market radio-television combinations, as required by principles of administrative procedure that generally govern the Commission's authority to waive its rules. WAIT Radio v. FCC. 418 F. 2d 1153, 1159 (D.C. Cir. 1969Xwaivers must be founded on an "appropriate general standard"). See generally Northeast Cellular Telephone Company, L.P. v. FCC. 897 F. 2d 1164, 1166 (D.C. Cir. 1990Xexplaining obligation to articulate standard on which rule may be waived). The five factors of the case-by- case waiver standard were not challenged by Spectrum, or any other party, on reconsideration in the one-to-a-market rulemaking proceeding. 15 In any event, Spectrum fails to demonstrate that the case-by-case standard adopted in that proceeding is arbitrary and capricious either generally or as applied Spectrum's argument is solely based on a comparison of the number of cases in which one-to-a-market waivers have been granted with the number of cases in which waivers were denied. Such a superficial showing, devoid of any analysis of the facts and circumstances present in the relevant decisions, falls well short of substantiating its contention that the case-by- case standard has been arbitrarily applied Consequently, we now turn to Westinghouse's showing, which address each of the five case-by-case factors in support of the permanent waiver requests.

Waiver Showing

20. Benefits of Joint Operation. Westinghouse asserts that grant of the requested permanent rule waivers will lead to substantial cost savings and efficiencies. Specifically, Westinghouse approximates total savings for 1997 for each of the radio-television combinations in the six markets to be: New York, $7.65 million; Los Angeles, $6.8 million; Chicago, $3.82 million; Philadelphia, $1 million; San Francisco, $4 million; and Detroit, $850,000. For each market, Westinghouse has broken down its aggregate cost savings into estimated cost savings in four categories. These categories are: (1) centralized management, accounting, human resources and other related functions; (2) centralized purchasing of goods and services; (3) centralized telephone and communications services; and (4) centralized maintenance operations. In the first category, centralized management and related functions, Westinghouse estimates the following

15 We note, however, that Spectrum has participated in the pending television ownership proceeding. Moreover, there is still an opportunity for Spectrum to raise its concerns about die one-to-a-market rule in the rulemaking context because the Commission has solicited further comment on proposals to modify or eliminate the one-to-a- market rule in that on-going rulemaking proceeding. See Second Further Notice of Proposed Rule Making in MM Docket Nos. 91-221 and 87-8, FCC 96438 (Nov. 7, 1996).

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savings: New York, $6.3 million; Los Angeles, $5.6 million; Chicago, $3.15 million; Philadelphia, $700,000; San Francisco, $2.8 million; and Detroit, $700,000. In the second category, centralized purchasing, Westinghouse estimates the following savings: New York, $900,000; Los Angeles, $800,000; Chicago, $450,000; Philadelphia, $100,000; San Francisco, $400,000; and Detroit, $100,000. In the third category, centralized communications services, Westinghouse estimates the following savings: New York, $180,000; Los Angeles, $160,000; Chicago, $90,000; Philadelphia, $20,000; San Francisco, $80,000; and Detroit, $20,000. In the fourth category, centralized maintenance operations, Westinghouse estimates the following savings: New York, $270,000; Los Angeles, $240,000; Chicago, $135,000; Philadelphia, $30,000; San Francisco, $120,000; and Detroit, $30,000. The cost savings specified for Philadelphia and San Francisco also include an additional category, savings on real estate and rent that will be attributable to its plans to consolidate the studios and physical facilities of the radio and television stations in those markets. Westinghouse expects cost saving attributable to facilities consolidation of $150,000 and $600,000 respectively, in Philadelphia and San Francisco.

21. Westinghouse contends that these cost savings and operating efficiencies will yield substantial public interest benefits, including programming and community service benefits. In this regard, Westinghouse acknowledges that many of these public interest benefits have already been realized in markets where it had radio-television combinations prior to its merger with CBS as well as in those markets in which CBS had existing radio-television combinations. However, Westinghouse asserts that the efficiencies that it achieves through permanent radio-television combinations also will contribute to the ability of the CBS television network to continue to provide a national program distribution service which enhances programming services of the stations with which it is affiliated. Therefore, according to Westinghouse, permitting these permanent radio-television combinations will in turn further enhance the overall ability of free over-the-air television and radio stations to meet their public service obligations in the competitive mass media marketplace.

22. Westinghouse has presented news, public interest and community service programming enhancements and improvements that the permanent waivers will yield in each market. With regard to news programming, Westinghouse plans to continue combined operations of radio and television news services in Philadelphia, San Francisco, Los Angeles and Chicago and to implement combined news operations in New York and Detroit, the remaining two markets where it seeks permanent waivers. Westinghouse plans to combine weather services for the radio and television stations in all markets affected by the permanent waiver requests, as is now being done in San Francisco, Boston and Philadelphia Westinghouse further notes that many of its radio stations in these six markets with music formats now have access to the all-news and information capabilities of its all-news radio and television stations, and that access to these services will be extended to its other music stations.

23. The following list represents examples of public interest programming that will be provided in each market: in New York, "Good for New York" a series on people and organizations working to make the city better, in Los Angeles, the KNX Roundtable specials focusing on community issues; in Chicago, "Radio Health Journal;" In Philadelphia, "95 Forum,"

5026


interviews with community leaders; in San Francisco, "Mosaic," a discussion of social and religious issues; and in Detroit, "Staying in Touch," interviews with community organizations. See Westinghouse Request for Permanent Waivers at Exh. 1, pages 3-9; Exh. 2, pages 3-8, Exh. 3, pages 3-8; Exh. 4, pages 3-8; Exh. 5, pages 4-8; Exh. 6, pages 3-6 for complete list of public interest programming.

24. Additionally, Westinghouse is committed to providing on its radio stations a "Parent's Guide to Children's Educational Programming," an on-air radio program guide to television programming on its television stations addressing the educational and informational needs of children. The guide will provide parents with on-air scheduling and content guides for the educational children's programming airing on the television stations in the same market. The guide, which will highlight the week's educational and informational programming, will air each day, seven days a week, during rotating time periods. Westinghouse's radio stations began airing these guides this fall. Additionally, Westinghouse intends to extend to its radio stations programming that provides major presidential candidates with the opportunity to present unedited statements on key issues, as was done on its television stations during the recently concluded campaign season. Westinghouse contends that its plan to extend the presidential candidates' broadcast messages to radio will ensure that the messages will gain access to an additional audience that can only be reached by radio.

25. Westinghouse also asserts that permitting it to retain the radio-television combinations in each of these markets will enable Westinghouse to undertake more substantial public interest campaigns and community service projects than would be possible on an individual basis, ensuring that greater and more diverse audiences are reached. Westinghouse provides the following examples of community service projects currently being undertaken by its stations in the six markets and that it expects to continue if the permanent waiver requests are granted: in New York, "Access for All," an accessibility guide for the handicapped produced in conjunction with the city's department of public affairs; in Los Angeles, "To Protect Our Planet," a four year campaign addressing environmental issues; in Chicago, "Thanks to Teachers," recognizing excellence in teaching; in Philadelphia, "The Children's Miracle Network Telethon;" in San Francisco, Asian Heritage Month; and in Detroit, African-American History Month. Moreover, in all of these markets, Westinghouse plans to combine the public service initiatives of its radio and television stations, making it possible to devote greater resources to the promotion and execution of the projects and to reach a greater audience. See Westinghouse Request for Permanent Waivers, Exh. 1 at pages 9-12; Exh. 2 at pages 9-11; Exh. 3 at pages 9-11, Exh. 4 at pages 9-11; Exh. 5 at pages 9-11; Exh. 6 at pages 7-8.

26. Westinghouse also argues that other public interest benefits will result if its requests for permanent waivers are approved. Westinghouse states that the ongoing Equal Employment Opportunity Programs of the radio and television stations will be augmented through the increased human resources staff available when the radio and television stations are combined. Each station will have access to the services of a full-time professional Human Resources Manager and support staff. The outreach resources and relationships of the stations will be combined to ensure the maximum benefit of each station's outreach efforts. Additionally, all

5027


stations will have access to the combined human resources expertise of the overall Westinghouse organization, including the ability to participate in numerous national, regional and local minority and women's employment conferences and job fairs.

27. Types of Facilities/Other Media Outlets. Westinghouse acknowledges that it proposes to combine stations with substantial technical facilities in most of the markets. However, Westinghouse asserts that there are numerous comparable AM, FM and television facilities owned by other entities in each market. Specifically, Westinghouse states that there are at least six, and as many as nine comparable AM stations, at least eight and as many as thirteen comparable FM stations and at least four and as many as six comparable television stations in the markets where it seeks permanent rule waivers. Westinghouse also states that each market now has at least one other radio-television combination, and that in some markets, the radio-television combinations also include more than one same-service radio station. Moreover, Westinghouse states that in each market there are at least four other existing station combinations that include more than one same-service station. Under these circumstances, Westinghouse argues that the proposed station combinations do not present issues of market domination inconsistent with the public interest. Additionally, under the third factor, the number of media outlets owned in these markets, Westinghouse states that other than the stations enumerated here, it has no other attributable interests in media outlets in the six markets.

28. Westinghouse has described the facilities of all of the stations comprising the permanent combinations. In New York, WCBS-TV is a VHP station operating on Channel 2, both WCBS(AM), a Class A clear-channel station, and WINS(AM), a Class B station, operate at 50 kW, WNEW(FM), a Class B FM station, operates at 7.8 kW fitan a 1,220-foot antenna, and WCBS-FM, also a Class B station, operates at 6.8 kW from a 1,353-foot antenna. In Los Angeles, KCBS-TV is a VHF station operating on Channel 2, KNX(AM), a Class A clear - channel station operates at 50kW, KFWB(AM), a Class B station operates at 5 kW, KCBS-FM operates at 54 kW from a 5,000-foot antenna, and KTWV(FM) operates at 58 kW from a 2,835- foot antenna. Both Los Angeles FM stations are Class B stations. In Chicago, WBBM-TV is a VHF station operating on Channel 2, WBBM(AM) and WMAQ(AM), both Class A clear- channel stations, operate at 50 kW, and WSCR(AM), a Class D station, operates day-time only at 5 kW. As to the FM stations in Chicago, WXRT-FM, a Class B FM station, operates at 6.7 kW from a 1,310-foot antenna, and WBBM-FM, also a Class B station, operates at 6.2 kW from a 1,174-foot antenna. In Philadelphia, KYW-TV is a VHF station operating on Channel 3, KYW(AM) and WPHT(AM) are both Class A clear-channel stations operating at 50 kW and WOGL-FM, a Class B station, operates at 12.5 kW from a 1,000-foot antenna WMMR-FM, Philadelphia, which Westinghouse will divest within six months pursuant to the DOJ Settlement Agreement, is also Class B station that operates at 18 kW from an 827-foot antenna In San Francisco, KPIX-TV is a VHF station operating on channel 5, KCBS(AM), a Class B station, operates at 50 kW, and KPIX(AM), also a Class B station, operates at 10 kW. As to the San Francisco FM stations, KLLC-FM, a Class B station operates at 82 kW from a 1,014-foot antenna, and KPIX(FM), also a Class B station, operates at 6.9 kW from a 1,500-foot antenna In Detroit, WWJ-TV is a UHF station operating on channel 62, WWJ(AM), a Class B station, operates at 5 kW, WVMV-FM, a Class B station, operates at 50 kW from a 462-foot antenna,

5028


and WYST-FM, also a Class B station, operates at 15 kW from an 890-foot antenna.

29. Economic Status of the Stations. Westinghouse does not demonstrate that any of these stations is in financial distress. However, Westinghouse asserts that the Commission has granted permanent one-to-a-market waivers in other cases where financial difficulties were not a consideration. Furthermore, Westinghouse states in these cases, the level of competition and diversity did not approach the level of diversity and competition present in these top-ranked markets.

30. Competition and Diversity in the Markets. Westinghouse asserts that when temporary one-to-a-market waivers were granted in connection with its merger with CBS, the Commission stated that "competition and diversity in the six markets involved here are, indeed, robust" Stockholders of CBS Inc.. 11 FCC Red at 3772. Additionally, Westinghouse contends that the level of competition in each of these markets significantly exceeds that required for a presumptive waiver under the "top 25 markets/30 voices" test In this regard, for each of these markets, Westinghouse has provided data concerning the number of radio and television stations in each market, the number of separate owners of those facilities and the presence of cable and other mass media outlets. 16

31. In New York, the largest television market in the country, Westinghouse states that there are 23 commercial and non-commercial television stations licensed to 21 separate owners. Additionally, there are 134 commercial and non-commercial radio stations (48 AM and 86 FM) in the New York television metro. market which are owned, operated and controlled by % separate individuals or entities. There are also 36 daily newspapers published in the market and cable penetration is 67.9 percent Westinghouse states that Los Angeles is the second largest television market in the country, and has 25 commercial and non-commercial television stations, licensed to 24 separate owners. Additionally, there are 87 commercial and non-commercial radio stations (37 AM and 50 FM) in the Los Angeles television metro market which are owned, operated and controlled by 63 separate individuals or entities. There are also 30 daily newspapers published in the market and cable penetration is 61.4 percent Chicago, according to Westinghouse's showing, is the third largest television market in the country, and has 17 commercial and non-commercial television stations, licensed to 17 separate owners. Additionally, there are 125 commercial and non-commercial radio stations (47 AM and 78 FM) in the Chicago television metro market which are owned, operated and controlled by 91 separate individuals or

16 Westinghouse acknowledges that the number of broadcast stations and thenumber of separately owned, operated and controlled broadcast 'Voices" reported in the Infinrty/Westinghouse merger application varies from information submitted in its request for permanent waivers as well as in its 1995 applications for consent to acquire CBS. Westinghouse states mat these variations are due to changes that have occurred in the ownership of broadcast stations in these markets or are due to different methods used to count market stations and voices. Westinghouse requests mat the Commission rely on its amended showing, associated with the applications to transfer control of Infinity for its determination of the number of broadcast stations and separately owned voices in each market In this regard, Westinghouse states that this information is derived from "Broadcasting and Cable Yearbook 19%," the BIA Publications, Inc. database and ownership reports on file with the Commission.

5029


entities. There are also 23 daily newspapers published in the market and cable penetration is 58.8 percent. Westinghouse stales that Philadelphia is the fourth largest television market in the country, and has 20 commercial and non-commercial television stations, licensed to 19 separate owners. Additionally, there are 63 commercial and non-commercial radio stations (26 AM and37 FM) in the Philadelphia television metro market which are owned, operated and controlled by 49 separate individuals or entities. There are also 24 daily newspapers published in the market and cable penetration is 74.8 percent. Westinghouse states that the San Francisco- Oakland-San Jose market is the fifth largest television market in the country, and has 22 commercial and non-commercial television stations, licensed to 22 separate owners. Additionally, there are 54 commercial and non-commercial radio stations (18 AM and .36 FM) in the television metro market which are owned, operated and controlled by 37 separate individuals or entities. There are also 22 daily newspapers published in the market and cable penetration is 70.1 percent. Finally, Westinghouse asserts that Detroit is the ninth largest television market in the country, and has nine commercial and non-commercial television stations, licensed to nine separate owners. Additionally, there are 59 commercial and non-commercial radio stations (21 AM and38 FM) in the Detroit television metro market which are owned, operated and controlled by 44 separate individuals or entities. There are also eight daily newspapers published in the market and cable penetration is 65.2 percent Additionally, Westinghouse notes that each of the six markets is served by "wireless cable" or Multipoint Multichannel Distribution Service (MMDS) facilities.

Opposition to Waiver

32. Spectrum makes a general argument that the requests for permanent one-to-a-market rule waivers should be denied. Spectrum first asserts that combining Westinghouse and CBS broadcast stations in these markets will result in nothing more than the economies of scale that would result from any merger. Spectrum also argues that all radio or television stations in the markets where Westinghouse requests permanent waivers can offer extensive presentations on programming service, and that the Commission "cannot lawfully attempt a judgment based on a subjective evaluation of programming service," as Westinghouse requests. Spectrum acknowledges that New York, Los Angeles, Chicago, Philadelphia, San Francisco, and Detroit each have large numbers of radio and television stations and are served by other media of mass communication. However, Spectrum contends that Westinghouse has not presented public interest justifications for the unprecedented number and scope of the requested waivers sufficient to meet the high hurdle that it faces in markets where it already has at least as many, if not more, broadcast stations than any other group owner. Spectrum also asserts that there is no claim of financial difficulties for any of the stations at issue.

33. Spectrum further contends that minority owners, like itself, face limited opportunity to achieve parity with "establishment" owners like Westinghouse, especially in light of recent changes in the Commission's multiple ownership rules, including the revisions of the broadcast ownership rules that were mandated by me Telecommunications Act of 1996. Spectrum points out that Congress did not eliminate the one-to-a-market rule in the Telecommunications Act of 1996, and argues that grant of the one-to-a-market waivers requested by Westinghouse would

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widen the gulf between the "establishment" and minority owners. Serafyn/UCCA's petition incorporates by reference the arguments made by Spectrum concerning the permanent waivers.

Discussion

34. At the outset, we note that the pending television ownership proceeding, in which the Commission is considering eliminating or modifying the one-to-a-market rule, does not preclude consideration of Westinghouse's request for permanent one-to-a-market rule waivers. In the recently released Second Further Notice of Proposed Rule Making in the television ownership proceeding, we stated that waiver requests submitted pending the resolution of the proceeding will be considered under the current criteria for evaluating such requests. §^ Review of The Commission's Regulations Governing Television Broadcast Ownership in MM Docket Nos. 91- 221 and 87-8, FCC 96-438 (Nov. 7, 19%XSecond Further Notice of Proposed Rule Making). Thus, the Second Further Notice of Proposed Rule Making contemplates approval of permanent, unconditional waivers to allow radio-television combinations that do not propose common ownership of stations exceeding a combination of one television station, two AM stations and two FM stations, as long as the requested waivers are clearly consistent with Commission precedent Second Further Notice of Proposed Rule Making, slip op. at 35 and n.130. In each of these markets except Chicago, Westinghouse's retention of stations that it acquired through its merger with CBS would not exceed the common ownership of a television station, two FM stations and two AM stations. In Chicago, Westinghouse would own a combination of one television station, two FM stations and three AM stations. However, Westinghouse has already filed an application to sell WSCR(AM), one of the AM stations in this proposed combination, to a minority- controlled entity, which will bring Westinghouse's combination of Chicago stations in line with radio-television combinations that are eligible for permanent, unconditional waivers pending the outcome of the television ownership proceeding.

35. In evaluating a request for a permanent waiver of the one-to-a-market rule, the Commission's goal is "to permit the public to benefit from such efficiencies of operation as may be achieved through the use of common facilities and stafij consistent with the maintenance of diversity and vigorous competition within the market areas involved" Second Report and Order Recon.. 4 FCC Red at 6491. In determining whether the public interest would be served by grant of a permanent one-to-a-market rule waiver, the Commission's paramount concern is to evaluate and balance the five case-by-case factors to facilitate combinational efficiencies while protecting its long-standing interest in promoting competition and promoting diversity. Se£ Greater Muskegon Broadcasters. Inc.. FCC 96423 (Oct 30, 19%). We find that each of the permanent waivers requested by Westinghouse in New York, Los Angeles, Chicago, Philadelphia, San Francisco and Detroit meets our case-by-case criteria and that permitting Westinghouse to retain the radio-television combinations in these markets that resulted from its merger with CBS, conditioned on divestiture of WSCR(AM), Chicago, would achieve significant economic and program service benefits without und\ily adversely affecting competition and diversity in the relevant markets.

36. Under the first factor, the potential public service benefits of joint ownership of the

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Federal Communications Commission FCC 96495

stations proposed in each of the markets where Westinghouse proposes permanent radio-television combinations, the Commission considers the public service benefits that will result from the proposed radio-television combination, such as projected economies of scale, cost savings, and programming and service benefits. Second Report and Order. 4 FCC Red at 1753. Westinghouse has demonstrated that in the six markets where it seeks permanent one-to-a-market rule waivers, joint operation of the radio and television stations that it proposes will permit the continuation of operational efficiencies that have resulted and will result in the future in cost savings. Westinghouse will use these cost savings to continue to provide enhanced programming and service benefits that it has already initiated in these markets. Specifically, Westinghouse estimates that during 1997, it will accrue total savings of $24,120,000 in the six markets where it will have permanent radio-television combinations. Most of these savings will result from consolidation of station functions, although a portion of these savings is attributable to consolidation of physical station operations in Chicago, Philadelphia and San Francisco. Westinghouse has not amended its waiver request to account for the divestiture of WMMR(FM), in Philadelphia, pursuant to the DOJ settlement agreement However, even excluding cost savings attributable to WMMR(FM), the projected cost savings and economic efficiencies anticipated by Westinghouse are significant

37. Moreover, these cost savings will allow Westinghouse to continue programming benefits in the form of enhanced news programming now available in Philadelphia, San Francisco, Chicago, and Los Angeles and to extend similar news programming enhancements to New York and Detroit In particular, we note that the combined operation of radio and television in all of the markets will permit expanded, continuous and varied news coverage, and that the radio stations will have access to the newsgathering and weather forecasting equipment and facilities of the television stations. Additionally, Westinghouse will continue to provide extensive public affairs programming in the six markets, and its combined station operations in these markets will allow it to devote greater resources to the promotion and execution of community service projects. See Westinghouse Request for Permanent Waivers, Exh. 1 at pages 3-12; Exh. 2 at pages 3-11; Exh. 3 at pages 3-11, Exh. 4 at pages 3-11; Exh. 5 at pages 4-11; Exh. 6 at pages 3-8.

38. Westinghouse has also made specific commitments to provide increased promotion of the children's television programming available on its television stations in these markets through its "Parent's Guide to Children's Educational Programming." This program will air on the radio stations in each market to provide parents with scheduling and content guides for the educational children's television programming airing on the same-market television stations. Furthermore, Westinghouse has stated additional public service and programming benefits through its intention to promote and broadcast on the radio stations in each market the statements by major presidential candidates concerning key issues that are aired on its CBS network television stations during the presidential campaigns.

39. We reject Spectrum and Serafyn/UCCA's contention that our determination that the permanent waiver requests are based on an unlawful "subjective evaluation" of programming service. Our conclusion that grant of the permanent waivers will benefit the public interest

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through programming and public service improvements is grounded in the Commission's conclusion, in the Second Report and Order, that combining radio and television operations will result in programming benefits. 4 FCC Red at 1748. Moreover, there is no requirement that Westinghouse, under this case-by-case factor, offer a particular category or program format for these programming benefits. Rather, we find that Westinghouse has related the cost savings it will realize from the operational efficiencies it will achieve to explicit service benefits, including the news, public affairs and community service programming and activities specifically set forth in paragraphs 21-25 supra.

40. Westinghouse has also outlined other public interest benefits that will result from the permanent waivers. In this regard, Westinghouse will augment its Equal Employment Opportunity Programs now in place at the radio and television stations in the proposed combinations to increase the human resources staff and to expand its outreach efforts for employing women and minorities. See Westinghouse Request for Permanent Waivers Exh. 1 at page 9, Exh. 2 at page 8, Exh. 3 at pages 8-9, Exh. 4 at page 9, Exh. 5 at pages 8-9, Exh. 6 at pages 6-7; paragraph 26, supra. Spectrum and Seraryn/LJCCA make a general argument that grant of the one-to-a-market waivers requested by Westinghouse would decrease opportunities for minorities, without addressing the specific commitments that Westinghouse has made with respect to minority ownership and employment in the markets affected by its temporary and permanent waiver requests. In this regard, we note Westinghouse has filed an application to assign one of its Chicago stations to a minority-controlled entity.

41. Hie second factor in our analysis concerns the types of facilities that Westinghouse owns in each of the markets. In this regard, we must "consider such factors as whether the proposed radio-television combination involves a UHF or VHP TV station or an AM or FM radio station, as well as the size or class of the stations involved" Second Report and Order. 4 FCC Red at 1753. In the station combinations related to the permanent waiver requests, Westinghouse will combine a VHP television station with at least one clear-channel AM station in New York, Los Angeles, Chicago, and Philadelphia In Detroit, Westinghouse would have a UHF television station and a less powerful Class B AM station. In San Francisco, Westinghouse would have a VHP station and two Class B AM stations. In all six of the markets, Westinghouse would also have two Class B FM stations, the most powerful class of FM stations licensed in Zone I, the geographic designation that includes the six markets in which Westinghouse requests permanent one-to-a-market waivers. See 47 C.F.R. § 73.205. However, in Philadelphia, Westinghouse will be required to divest one of these Class B stations, WMMR(FM), pursuant to the DOJ Settlement Agreement. Of the remaining Class B stations that Westinghouse will control in these six markets, the two Los Angeles stations, and one of the San Francisco stations FM stations operate with the most powerful facilities of the FM stations in these markets. Additionally, one Washington, D.C. FM station operates at the maximum power for Class B facilities.

42. Thus, Westinghouse will combine stations with significant technical facilities. However, if there is robust competition and diversity in a market, there is less chance that a combination of facilities, even powerful ones, will permit the owner of those powerful facilities to dominate the market As discussed at paragraphs 44-46 infra, the level of competition and

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diversity in these markets is of a level that convinces us that combining substantial stations in these market will not have a detrimental effect on diversity and competition, nor pose any appreciable threat of market dominance by Westinghouse.

43. With regard to the third factor, Westinghouse will not own any media outlets other than those listed in its permanent waiver requests. Fourth, regarding the financial status of the stations in the permanent combinations, we note, and Spectrum and Serafyn/UCCA point out, that none of the stations involved is experiencing financial difficulties. However, Westinghouse is not required to demonstrate that the stations in these combinations are experiencing financial difficulties as a precondition to grant of the permanent waiver requests. The Commission has previously granted one-to-a market rule waivers in the absence of financial difficulties. See. e.g.. S.E. Licensee G.P.. FCC 96-464 (Nov. 27, 1996); Shareholders of Citicasters. Inc.. FCC 96-380 (Sept. 17,1996); Louis C. DeArias. Receiver. 11 FCC Red 3662 (1996); Henry Broadcasting Co.. 11 FCC Red 1175 (1995); Alta Gulf FM Inc.. 10 FCC Red 7750 (1995); Sfiast Communications. Ltd.. 10 FCC Red 6874 (1995).

44. Finally, the fifth factor relates to the level of diversity and competition in the relevant market. 17 Indicia of the level of diversity include the number of broadcast outlets, the number of separately-owned and operated "voices" in the market, and the presence of cable and non- broadcast media. We have previously recognized that in New York, Los Angeles, Chicago, Philadelphia, San Francisco, the top five television markets in the country, and Detroit, the ninth largest television market, competition and diversity are "robust" Stockholders of CBS Inc.. 11 FCC Red at 3772. We find no reason to alter this conclusion in light of Westinghouse's request for permanent waivers in these markets. According to our independent analysis of the data submitted by Westinghouse, these markets will continue to be served by at least 54 radio stations and as many as 133 radio stations if the permanent waiver requests are granted. 18 Additionally, the number of television stations in these markets range from nine to 25. More importantly, even if Westinghouse retains the radio-television combinations in these markets that it acquired in its merger with CBS, these markets will still have a wide diversity of voices. Our independent analysis of data submitted by Westinghouse confirms that mere will be at least 51 separately

17 In order to determine the number of radio and television broadcast stations in die context of a one-to-a-market waiver, die Commission considers "die relevant TV metro market for radio stations and the relevant ADI [Arbhron Area of Dominant Influence] TV market for radio stations." Second Report and Order. 4 FCC Red at 1760 n.101. However, because Arbhron no longer compiles television ADI data, we will accept instead Westinghouse's showing using the Nielsen Designated Market Area (DMA) in determining the number of broadcast 'Voices" in die markets at issue in the temporary and permanent one-to-a-market waiver requests. Sfifi Media/Communications Partners L.P.T 10 FCC Red 8116, 8116-117, n.3 (1995); see also Review of me Commission's Regulations Governing Television Broadcast Ownership in MM Docket Nos. 91-221 and 87-7,10 FCC Red 3524,3539 n.59 (1995)(Furdier Notice of Proposed Rule Making).

18 Although Westinghouse claims that there are 134 radio stations in die relevant Nielsen television metro market in New York, we determined dial one of die stations counted by Westinghouse, WRKT(AM), in Cortland, New York, is located in a county that is outside the Nielsen television metro.

5034


owned broadcast "voices" in these markets and as many as 112 separate broadcast voices. 19 Additionally, the markets all have substantial cable penetration rates, the lowest of which is 58.8 percent. Additionally, numerous daily and weekly newspapers serve these markets, and all of the markets are served by MMDS facilities.

45. The radio and television stations together in each of these markets will receive combined television and radio advertising revenue shares as follows: New York, 17.1 percent for a television/two AM/two FM station combination; Los Angeles, 13.3 percent, for a television/two AM/two FM station combination; Chicago, 14.9 percent for a television/two AM/two FM station combination; Philadelphia, 18.06 percent for a television/two AM/one FM station combination (excluding WMMR(FM), which Westinghouse must divest pursuant to the DOJ Settlement Agreement); San Francisco, 16.6 percent for a television/two AM/two FM station combination; and Detroit, 4.5 percent for a television/one AM/ two FM station combination.20 See also, n. 21 infia, explaining that the radio advertising shares of the permanent station combinations in these markets do not exceed 22 percent.

46. We conclude, based on the record, that granting Westinghouse permanent waivers in these six markets will not have an undue adverse effect on competition and diversity. In this regard, we emphasize that these are among the top ten television markets in the country, and are served by a multitude of radio and television broadcast stations. Westinghouse's ownership of these station combinations is consistent with other permanent radio-television combinations that the Commission has approved in the past See. £,&, Brem Broadcasting. 9 FCC Red 1333 (1994Xtelevision/two AM/two FM station combination in Mobile/Pensacola); First Broadcasting Company. 10 FCC Red 2904 (1995Xtelevision/two AM station combination in San Francisco); Golden West Broadcasters. 10 FCC Red 2081 (1995Xtelevision/two AM/one FM station combination in Los Angeles). See also Capital Cities/ABC, Inc.. 11 FCC Red 5841 (1996)(permitting continued ownership of radio-television combinations approved in Fjisl Broadcasting and Golden West in connection with the merger of Capital Cities/ABC, Inc. and The Walt Disney Company). Furthermore, we note that the combined radio/television advertising revenue shares in the markets do not exceed 19 percent21 Thus, we do not believe that the advertising revenue shares in any of these markets is so significant as to raise a concern that diversity and competition will be adversely affected by Westinghouse's retention of CBS stations.

19 Westinghouse's request for permanent waivers to permit it to retain stations it acquired from CBS does not depend on our approval of the Infinity merger. Thus, we are here considering only the permanent waiver requests and are counting Infinity stations in each market as a separate, additional "voice."

20 The source of the revenue data used in our decision is BIA Publications, Inc., which relies on reported 1995 market revenue.

21 Westinghouse's acquisition of CBS radio stations was previously approved when the Commission issued its decision granting the CBS/Westinghouse merger. Nevertheless, we have reviewed the radio advertising shares of the radio station combinations mat were previously approved. In this regard, the relevant radio advertising shares do not exceed 22 percent, and thus are not so significant as to raise a concern that diversity and competition would be unduly affected by the approval of the permanent waiver requests.

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See. &&, S.E. Licensee G.P.. FCC 96-464 (Nov. 27, 1996)(post-acquisition combined radio/television advertising revenue share of '24.2 percent in Memphis, the 42nd largest television market would not unduly affect competition and diversity during period of temporary, conditional waiver); Shareholders of Citicasters. Inc.. FCC 96-380 (Sept. 17, 19%Xpost-merger combined radio/television advertising revenue share of 32.03 percent in Cincinnati, the 29th largest television market and combined radio/television advertising revenue share of 21.26 percent in Tampa, the 15th largest market would not pose an unacceptable short term risk to competition). As to diversity, we find that even following the permanent radio-television combinations, the affected markets will continue to enjoy a robust number and variety of broadcast speakers, with no fewer than 51 independently owned and operated broadcast voices serving the relevant markets. Moreover, although Westinghouse's commonly owned facilities in these markets will be significant in technical terms, there are comparable competing facilities in all of the markets.

47. We recognize, as Spectrum and Serafyn/UCCA point out, that waiver applicants who own a number of media outlets in the relevant market will face a higher hurdle to justify a one- to-a-market rule waiver than do applicants with fewer outlets. Second Report and Oder, 4 FCC Red at 1753. However, we find that Westinghouse has successfully cleared this hurdle in each market where it seeks a permanent waiver, especially in light of the economic efficiencies and public interest benefits that will be gained by permitting permanent radio and television combinations in these markets. In particular, Westinghouse intends to provide meaningful public interest benefits in these markets. These include improvements and enhancement of news and local programming including increased promotion of children's television programming and the provision of time to major presidential candidates. Additionally, Westinghouse has demonstrated a commitment to increasing its outreach to minorities and women through the Equal Employment Opportunity programs of its station combinations. Furthermore, Westinghouse has already filed an application to assign one of the stations it will divest to a minority-controlled entity.

48. Spectrum and Serafyn/UCCA's generalized argument in opposition to the permanent waiver requests contending in essence that Westinghouse will somehow control too may broadcast outlets in the aggregate points to neither rules nor precedent to support its contention. We recognize, of course, that Westinghouse already controls substantial broadcast facilities and will significantly enhance its reach and influence as a multiple owner as a result of the proposed merger. And, in granting the ownership waivers that Westinghouse has sought in connection with this transaction, we have carefully balanced the increased concentration in media ownership that will result against the benefits that it may produce. We conclude that the permanent waivers we grant are fully warranted based upon that balancing. Spectrum and Serafyn/UCCA fail to challenge any of the specific and significant economic and public interest benefits. Their argument is, in short, unpersuasive. Having approved Westinghouse's permanent waiver requests, we will turn our consideration to the Infimty/Westinghouse merger.

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______________ Federal Communications Commission_____FCC 96-495

Radio Contour Overlap Rule

Background

49. The radio local ownership rules, as mandated by the Telecommunications Act of 1996, impose numerical restrictions on the number of radio stations in the same service and on the number of radio stations overall which may be commonly owned in any given local radio market.22 A local radio market is defined by the area encompassed by the principal community contours of the mutually overlapping stations proposed to be co-owned See Implementation of Sections 202^ and 202rbYl) of the Telecommunications Act of 1996. FCC 96-90 (Mar. 8, 1996); Memorandum Opinion and Order in MM Docket No. 91-140, 7 FCC Red 6387, 6395 (1992). Under the radio local ownership rules, as amended by the Telecommunications Act of 1996, in a radio market with 45 or more commercial radio stations, a party may own up to eight commercial radio stations, no more man five of which are in the same service; in a market with 30 to 44 commercial radio stations, a single entity may own up to seven commercial radio stations, no more than four of which are in the same service; in a market with 15 to 29 stations, a party may own up to six stations, no more than four of which are in the same service; and, in markets with 14 or fewer stations, one owner may hold up to five stations, no more than three of which are in the same service, except that no one entity may control more than 50 percent of the stations in a market. Implementation of Sections 202(a^ and 202fbYn of the Telecomnuinications Act of 1996. FCC 96-90 (Mar. 8,19%). See. also. Telecommunications Act of 19%, Section 202(b).

50. Westinghouse, in the transfer of control applications relevant to its merger with Infinity, has submitted showings concerning its compliance with the numerical ownership restrictions adopted in the Telecommunications Act of 19% and incorporated in our rules. These showings assume that Westinghouse has been granted permanent one-to-a-market rule waivers in New York, Los Angeles, Chicago, Philadelphia, San Francisco and Detroit and thus retains its ownership interests in CBS radio stations in these markets. Westinghouse will add stations to these radio combinations with its proposed acquisition of Infinity's radio stations in these six markets. Additionally, as a result of its merger with Infinity, Westinghouse will control more than one same-service radio station in local radio markets in Boston, Washington, D.C., Baltimore, Dallas/Fort Worth, Houston, and Atlanta Westinghouse has demonstrated that in each case except Chicago and Dallas/Fort Worth, its proposed ownership does not exceed the radio local ownership rules' numerical restrictions. Because Westinghouse intends to come into compliance with the radio ownership rules in both Chicago and Dallas/Fort Worth prior to consummating its acquisition of Infinity, no radio local ownership rule waivers have been requested.

Pub. L. No. 104-104, § 202(b), 110 StaL 56 (1996).

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Chicago

51. Westinghouse currently has ownership interests in the licenses of three AM and two FM radio stations in Chicago and its surrounding communities. Infinity through its subsidiaries, is the indirect licensee of one AM and two FM stations in Chicago, and will acquire an FM station in Elmwood, Illinois and an FM station in Aurora, Illinois.23 The principal community contours of these stations all mutually overlap. Consequently, upon consummation of the merger and the acquisitions by Infinity's subsidiary, the merged entity would have an interest in ten stations, four AM and six FM, in a single radio market. Westinghouse has submitted a showing that demonstrates that there are more than 45 radio stations in the relevant local radio market defined by the principal community contours of these ten stations. The local radio ownership restrictions adopted in the Telecommunications Act of 1996 and incorporated in our rules provide that in radio markets of more than 45 stations, a single entity may own, operate or control eight radio stations, not more than five of which are in the same service. Therefore, Westinghouse's control often radio stations, six of which are FM stations, would exceed the overall limit of eight stations that may be owned in a market of this size as well as the applicable numerical limitations of five same-service stations.

52. Proposed Chicago Divestitures. Westinghouse has pledged that two stations, at least one of which is an FM station, will be divested prior to or contemporaneously with the merger closing in order to insure compliance with the radio local ownership rules' numerical limitations and to avoid the need to request a temporary waiver of the radio local ownership rules. In this regard, Westinghouse, through its wholly-owned subsidiary CBS, has filed an application to assign the license of WSCR(AM) to Personal Achievement Radio of Illinois, Inc., which is controlled by N. John Douglas, a minority broadcaster. See BAL-960925EA. Infinity has filed an application to assign the license of WYSY(FM), in Aurora, Illinois, to Spanish Broadcasting Systems, a minority controlled entity. See BAL-960829GH If these stations are assigned to the proposed buyers, the merged entity would control eight stations in the relevant radio market, five FM and three AM, and thus would comply with the radio local ownership rules.

53. Chicago Trust Applications. Westinghouse has also filed applications to assign WSCR(AM), one of the Chicago stations that it plans to divest, and WXRT(FM) to a trust. Westinghouse states that the trust is a back-up measure to facilitate the merged entity's

23 One of Infinity's subsidiaries, Infinity Holdings Corporation of Orlando, entered into an agreement to exchange stations with Cox Radio, Inc. before the Infinity/Westinghouse merger was filed. Infinity proposed to acquire from a Cox subsidiary two radio stations in the Chicago area and to assign to Cox three radio stations it now holds in Orlando. Applications have been approved to assign Infinity's Orlando stations WHCO(AM), WHTCXFM) and WMOO-FM to Cox as have applications to assign Cox's Chicago stations, WYSY(FM), Aurora, Illinois, and WCKG(FM), Elmwood Park, Illinois, to Infinity. See Infinity Holdings Corp. of Orlando. FCC 96-494 (Dec. 26, 1996). The merger of Infinity and Westinghouse included contingent applications to transfer control of these stations from Infinity to Westinghouse. Appropriate conditions will be imposed to require consummation of the assignment of the Chicago stations from Cox to Infinity and to require consummation of the assignment of the Orlando stations from Infinity to Cox prior to consummation of the Infinity/Westinghouse merger. See paragraph 102 infra.

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compliance with the radio ownership rules in the event that Westinghouse and Infinity's proposed divestiture of Chicago stations has not occurred at the time that the merger is consummated. Specifically, Westinghouse contends that assignment of these stations to the trust would eliminate attributable interests in one AM and one FM station in the Chicago radio market so that its acquisition of Infinity's Chicago stations would result in the merged entity having attributable interests in eight stations, five FM and three AM, in compliance with the radio local ownership rules. Westinghouse states that the trust's provisions fully comply with the Commission's insulation criteria for such arrangements, including the requirement that the trustee who will manage and operate WSCR(AM) and WXRT(FM), be independent and have no business or familial relationship with Westinghouse or its affiliates. Additionally, Westinghouse describes the trust as irrevocable, but states that the trust will remain in effect until such time as the merged entity no longer holds attributable ownership interests, through the trust or otherwise, in more than eight radio stations or more than five same service radio stations in the Chicago radio market.

Dallas/Fort Worth

54. Westinghouse currently has indirect ownership interests in two FM stations and one AM station in the Dallas/Fort Worth area Infinity has attributable interests in five FM stations and two AM stations in Dallas/Fort Worth. Infinity has also agreed to acquire a third AM station in Dallas.24 Moreover, Infinity has a non-attributable beneficial interest in an insulated trust which holds the license of a sixth FM station. Westinghouse has submitted a showing that demonstrates that the principal community contours of these stations are all mutually overlapping, and thus constitute one market under the radio local ownership rules. Additionally, Westinghouse's showing indicates that there are more than 45 commercial radio stations in the relevant local radio market Consequently, upon consummation of the merger and the acquisition of an AM station by Infinity, the merged entity would have attributable interests in eleven stations, four AM and seven FM, in a single radio market and a non-attributable interest in a 12th station. Westinghouse's control of these stations in Dallas/Fort Worth would exceed both the eight station limit for a local radio market of this size as well as the applicable cap of five same-service stations by virtue of its ownership of seven FM stations.

55. Proposed Divestiture of Dallas/Fort Worth Stations. Westinghouse has pledged to come into compliance with the radio local ownership rules' numerical limitations prior to or contemporaneously with the closing of the merger. Specifically, Westinghouse pledged to divest two of its FM stations in this market and to that end Westinghouse's subsidiary, CBS, has filed

24 An application to assign the license and construction permit of KDFX(AM), Dallas, from Inspiration Media of Texas, Inc. to Infinity's subsidiary Infinity Broadcasting Corporation of Dallas was filed on October 7,19%. File No. BAPI^%1007FC. Additionally, a contingent application to transfer control of KDFX(AM) from Infinity to Westinghouse was filed on November 1,19%. File No. BTC-%1101EE. A separate pro fonna application to assign the station to a voting trust has also been filed. File No. BAPL-%1108EF. This pro fauna assignment would take place if, at the time the merger is consummated, Infinity has acquired KDFX(AM) from Inspiration but die contingent application to transfer control of the station from Infinity to Westinghouse has not been approved.

5039


applications to assign the licenses of KTXQ-FM, Fort Worth and KRRW(FM), Dallas, to WHFS, Inc., a subsidiary of SFX Broadcasting, Inc. See FileNos. BALH-961017HA; BALH-961017GL. Likewise, Infinity has filed applications to divest one AM station and one FM station in this radio market. Infinity has filed an application to assign KEWS(FM), Arlington, Texas to Inspiration Media of Texas, Inc. See File No. BALH-961007GH. Additionally, Infinity has filed an application to assign KDMM(AM) to Marcos Rodriguez, Inc., a minority controlled entity. See File No. BAL-961018EB. Divestiture of these three FM stations and one AM station would bring the merged entity's ownership of radio stations in this market to four FM stations and three AM stations, in compliance with the radio local ownership rules' applicable numerical limitations of eight stations, no more than five of which are in the same service. Moreover, even were the trust which now holds the additional FM license for Infinity's benefit to terminate, the merged entity's attributable interest in a fifth FM station in the market would still comply with the radio local ownership rules' numerical limitations.

56. Dallas/Fort Worth Trust Applications. In addition to the applications to divest stations, applications to assign certain other Infinity stations in the Dallas/Fort Worth radio markets to a trust have also been filed. Like the Chicago trust proposed by Westinghouse, this trust is fully insulated and is intended as a back-up measure to facilitate the merged entity's compliance with the radio ownership rules in the event that Westinghouse and Infinity's proposed divestiture of stations in the Dallas/Fort Worth radio market has not occurred at the time that the merger is consummated. Specifically, applications to assign KOAI-FM, Fort Worth, KHVN(AM), Dallas, and KRBV(FM), Dallas, from Infinity to a trust have been filed See File Nos. BAL- 961011GJ, BALH-961011GN, BALH-961011GM. Westinghouse contends that assignment of these stations to the trust would eliminate Infinity's attributable interests in one AM and two FM stations so that the merged entity would have five FMs and three AMs in the radio market, and thus comply with the radio ownership rules. Specifically, Westinghouse states that under the terms of the trust, KOAI-FM, KHVN(AM) and KRBV(FM) would be operated and managed by an independent trustee who has no business or familial relationship with Infinity or its affiliates. Additionally, Westinghouse describes the trust as irrevocable, but states that the trust will remain in effect until such time as the merged entity no longer holds attributable ownership interests, through the trust or otherwise, in more than eight radio stations or more than five same service radio stations in the Dallas/Fort Worth radio market

Chicago-Dallas/Fort Worth Discussion

57. We find that the merged entity would comply with the Commission's local radio ownership rules in both the Chicago and Dallas/Fort Worth radio markets either through the proposed divestiture of stations or through assigning the proposed stations to trusts. In this regard, the Commission has specifically found that trusts may be legitimately used to avoid attribution of a broadcast interest under the Commission's multiple ownership rules. Attribution of Ownership Interests. 97 FCC 2d 997, 1023 (1984), reconsideration granted in part 58 RR 2d 604 (1985), further reconsideration granted in part 1 FCC Red 802 (1986V"Attribution"! Thus, "trusts are occasionally established specifically to effect compliance with the Commission's rules for holdings which would violate the [multiple ownership] rules if held outright." Id. See e_4j.,

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Viacom Inc.. 9 FCC Red 1577, 1578 (1994); Twentieth Holdings Corporation. 4 FCC Red 4052 (1989). Under the Commission's attribution criteria, the ownership interests of trustors or beneficiaries will not be attributed to them if they are sufficiently insulated to prevent the exercise of control or influence over the trustee. The trust agreements submitted by Infinity and Westinghouse comply with the Attribution insulation standards, so that the stations to be held in trust in Chicago and Dallas/Fort Worth would not be attributable to the merged entity. Specifically, the trusts ensure that control of the stations to be placed in trust rests with, and must be exercised solely by, the designated trustees. Additionally, in each trust, the trustee is an independent individual with no familial or business relationships with the beneficiary or grantor. Moreover, the trust instruments clearly state that there will be no communications with the trustee regarding the management or operation of the stations subject to the trusts. The trusts terminate if a sufficient number of stations are divested so that compliance with the radio local ownership rules is achieved by the merged entity holding no more than eight stations in either Chicago or Dallas/Fort Worth, no more than five of which are same-service stations in either radio market. However, the ability of Westinghouse or Infinity to revoke the trust by divesting of enough stations to come into compliance with the radio local ownership rules is permissible. See. £,&, Twentieth Holdings. 4 FCC Red at 4054. We are satisfied that the trusts conform to the standards set out in Attribution.

58. However, we recognize that if the pledged divestiture of stations has not taken place prior to consummation of the merger, and the trusts are implemented, the merged entity will hold attributable interests in the maximum number of stations in both Chicago and Dallas/Fort Worth at the same time that it is the beneficiary of insulated trusts which hold additional stations in each market. Specifically, the merged entity will hold eight stations in Chicago, five of which are FM stations and three of which are AM stations, and also have a beneficial interest in an additional AM station and an additional FM station. In Dallas/Fort Worth, the merged entity will hold eight stations, five of which are FM stations, and three of which are AM stations, and also have a beneficial interest in three additional FM stations and one additional AM station. While these trusts may be effective in avoiding the influence which would trigger attribution and our concern for diversity, we recognize that there could be an effect on competition in the relevant markets. In this regard, we note that the stations held in trust, with the exception of WSCR(AM), are not being offered for sale to competitors who may otherwise choose to acquire those stations in order to compete more effectively with Westinghouse.

59. In this case, we are convinced, that we can approve this arrangement. Even if we were to consider the market shares of the stations in trust as belonging to Westinghouse/Infinity, the proposed, temporary ownership patterns created by these trusts do not pose an unacceptable risk that Westinghouse will be able to impede competition in the relevant markets. We note that the post-merger radio advertising revenue share of the Chicago and Dallas/Fort Worth station combinations, including stations held in trusts, is 37 percent and 44.3 percent respectively. These levels are consistent with actions we have taken in the past. See S.E. Licensee G.P.. FCC 96-464 (Nov. 27, 19%); Shareholders of Citicasters. Inc.. FCC 96-380, (Sept. 17, 19%). Moreover, we note that the Department of Justice has reviewed the Infinity/Westinghouse merger and although the Department has required the divestiture of stations in Philadelphia and Boston, it has not

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raised antitrust challenges to Westinghouse's acquisition of Infinity radio stations in Chicago and Dallas/Fort Worth. We believe that the Department's antitrust determinations in these markets support our conclusion that Westinghouse's temporary ownership of stations in these markets will not pose unacceptable risks to competition. See Shareholders of Citicasters. Inc.. FCC 96-380, slip op. at 9.

60. Nevertheless, we emphasize that, we do not believe that trusts should be used as a mechanism for warehousing stations in excess of statutory limits on radio ownership that could otherwise be sold to potential competitors. Therefore, we approve the trusts for the limited purpose of providing a means for the merger to proceed should the good faith and diligent efforts of the parties to close the divesting transactions fail. Moreover, we believe that it is appropriate to ensure that the trusts which give Westinghouse beneficial interests in stations that exceed the numerical ownership limits are short-term. Accordingly, we will approve the applications to assign the proposed stations to trusts for a limited period of up to six months. This will allow Westinghouse and Infinity a reasonable period of time to complete the pledged divestitures and to terminate the trust agreements.

New York, Los Angeles, Philadelphia, San Francisco, Detroit, Boston, Washington, D.C., Baltimore, Houston, Atlanta

61. The merged entity will comply with the numerical ownership limitations of the local radio ownership rules in New York, Los Angeles, Philadelphia, San Francisco, Detroit, Boston, Washington, D.C., Baltimore, Houston, and Atlanta. With regard to the Philadelphia and Boston radio markets, the Department of Justice has entered into an agreement with Westinghouse and Infinity which requires Westinghouse to divest its interest in WMMR(FM), Philadelphia as well as its prospective interest in WBOS(FM), Boston. The required divestiture of the Boston and Philadelphia stations will reduce Westinghouse's post-merger radio advertising share in Philadelphia from 44.7 percent to 37 percent and in Boston from 40.6 percent to 36.5 percent. Moreover, under the terms of the settlement agreement, Westinghouse and Infinity have agreed that the Philadelphia and Boston stations shall be maintained as separate and independent competitors to other Westinghouse and Infinity stations in these markets. Westinghouse and Infinity have further agreed that they will not acquire any assets of or any financial or management interest in any radio stations in Philadelphia or Boston without providing advance notification to the Department Specifically, the agreement obliges Westinghouse to notify the Department prior to acquiring "any assets of or any interest, including any financial, security, loan, equity or management interest in, any non-Westinghouse Radio Station or any person affiliated with any such Station..."25 Westinghouse and Infinity are also required to provide the Department advance notification before entering into joint sales agreements or local marketing

25 DOJ Settlement Agreement, Section X.A.1. This provision does not apply to transactions that are otherwise subject to the reporting and waiting period requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, 15 U.S.C. § 18(a). Also, mere is a limited exception that applies to the acquisition of equity interests of no more than five percent of a radio station in these markets.

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agreements in Boston or Philadelphia.26 We have previously considered the Department's antitrust determinations in connection with our inquiries concerning the broadcast ownership rules. Shareholders of Citicasters. Inc.. FCC 96-380, slip op. at 9. Here, we believe that the Department's antitrust determination is relevant and highly probative evidence concerning the effect of the merger in the relevant radio markets.

62. In the remaining local radio markets where Westinghouse will acquire Infinity radio stations, the aggregate radio advertising revenue shares for the merged entity in the relevant local radio markets ranges from 17 percent to 36.5 percent27 Under these circumstances, and based on the foregoing considerations, we find that the radio combinations which Westinghouse will ultimately control after consummation of the merger with Infinity, as modified by the Department's settlement agreement, do not pose unacceptable risks to competition in the relevant radio markets. Thus, we conclude that, with respect to local radio ownership, nothing in the record in this case suggests that Westinghouse's acquisition of Infinity's radio stations would be inconsistent with the public interest. See. ££., S.E. Licensee G.P.. FCC 96-464 (Nov. 27, 1996Xpost-acquisition radio advertising revenue share of 40.4 percent in Memphis, the 42nd largest television market would not unduly affect competition and diversity during period of temporary, conditional waiver); Shareholders of Citicasters. Inc.. FCC 96-380 (Sept 17, 1996Xpost-merger radio advertising revenue share of 49 percent in Cincinnati, the 29th largest television market would not pose an unacceptable short term risk to competition).

63. However, our grant of the transfer of control of Infinity to Westinghouse will be conditioned on compliance with the radio local ownership rules either by the divestiture of stations in Chicago and Dallas/Fort Worth prior to consummation of the merger or transfer of the named stations in each market to the proposed trusts for a six month period while the divestitures are completed. Moreover, given the magnitude of the holdings of Westinghouse in Dallas/Fort Worth, Chicago, Philadelphia and Boston, we caution Westinghouse against involvement in any significant financial investment, joint sales agreement or local marketing agreement with other stations in these markets.

Temporary One-to-a-Market Waiver Requests

Background

64. Westinghouse has requested only temporary, conditional rule waivers for the radio- television combinations that will result from its merger with Infinity even though it believes that

26 DOJ Settlement Agreement, Section X.A.2. This provision also does not apply to transactions that are otherwise subject to the reporting and waiting period requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, 15 U.S.C. § 18(a).

27 Specifically, the post-merger radio advertising share for each radio market is: New York: 36.5 percent; Los Angeles, 27.3 percent; San Francisco, 19.9 percent; Detroit, 31.3 percent; Washington, D.C., 17 percent; Baltimore, 18.5 percent; Houston, 17.2 percent; and Atlanta, 18 percent

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permanent waivers would be permissible. In this regard, Westinghouse points out that in the television ownership rulemaking proceeding, the Commission is considering revising the one-to-a- market rule or eliminating the rule altogether. See Review of the Commission's Regulations Governing Television Broadcast Ownership in MM Docket Nos. 91-221 and 87-8, FCC 96-438 (Nov. 7, 1996XSecond Further Notice of Proposed Rule Making); 10 FCC Red 3524 (1995XFurther Notice of Proposed Rule Making). Westinghouse contends that in the Conference Report that accompanied the Telecommunications Act of 19%, Congress specifically referred to the television ownership proceeding and encouraged the Commission to consider the current status of competition in the radio marketplace competition which led Congress to substantially increase the numerical limits on local radio station ownership - when considering whether to permit the ownership of television and radio stations in the same market. Telecommunications Act of 1996, H.R Rep. 104-458, 104th Cpng., 2d Sess., Joint Explanatory Statement of the Committee of Conference. Telecommunications Act of 1996, at 47, 163. Westinghouse argues that the legislative history of the Telecommunications Act of 19% thus indicates that the case-by- case standard for waiver of television-radio cross-ownership restrictions should be liberally applied Westinghouse submits that extending the benefits of radio-television cross-ownership is particularly appropriate in the markets where it proposes to add Infinity radio stations because those markets are the largest and most competitive in the nation. However, Westinghouse states that it has requested temporary waivers in order to permit timely consummation of the merger transaction and to avoid consideration of a request for permanent waiver of a rule that both the Commission and Congress have indicated should be changed. Given the pendency of the rulemaking, Westinghouse requests, with the exception of its acquisition of WBOS(FM), which is subject to divestiture within six months under the DOJ Settlement agreement, that the temporary waiver period extend for a period of six months following the conclusion of the television ownership rulemaking proceeding.

65. If Westinghouse's request for conditional one-to-a-market waivers is granted, and it acquires Infinity's radio stations subject to the outcome of the television ownership proceeding, Westinghouse will acquire additional radio stations in New York, Los Angeles, Chicago, Philadelphia, San Francisco, Detroit, Boston, Washington, D.C. and Baltimore. In New York, the merged entity will control a television/four AM/three FM station combination. In Los Angeles and Detroit, the merged entity will control a television/two AM/four FM station combinations. In Chicago, it will control a television/three AM/five FM station combination.28 In Philadelphia, it will control a television/three AM/three FM station combination until after the divestiture of WMMR(FM), as required by the DOJ Settlement, and thereafter will control a television/three AM/two FM station combination. In San Francisco, it will control a television/three AM/four FM station combination. In Boston, Westinghouse has committed to divest of WBOS(FM), one of the Boston FM stations it will acquire from Infinity, pursuant to the DOJ Settlement Agreement Thus, following the divestiture of WBOS(FM), Westinghouse would control a television/one AM/four FM station combination. In Baltimore, Westinghouse

28 This combination takes into account the required divestitures of an AM and an FM station. See paragraph 62 supra.

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will control a television/two AM/ two FM station combination. Westinghouse's Baltimore television station's Grade A contour also encompasses the entire community of license of an FM station in the Washington, D.C. market. Westinghouse was granted a permanent one-to-a-market waiver for this television/one FM station combination in Washington, D.C. when its merger with CBS was approved. Stockholders of CBS Inc.. 11 FCC Red 3767. Westinghouse will acquire from Infinity an additional AM station and an additional FM station in the Washington, D.C. market whose communities of license are also totally encompassed by its Baltimore television station's Grade A contour. Thus, Westinghouse will control a television/one AM/two FM station combination in the Washington, D.C. market during the temporary waiver period.

66. The conditional, temporary one-to-a-market rule waivers requested by Westinghouse involve markets that are among me top 25 television markets in the country. However, because Westinghouse proposes to control a television station and more than one same service radio station in each of the markets where it requests conditional one-to-a-market rule waivers, it bases the waiver requests on the more rigorous case-by-case waiver standard See paragraph 17, supra.

Waiver Showing

67. Benefits of Joint Operation. Westinghouse expects to realize substantial cost savings in each of these markets based on its acquisition of Infinity radio stations on a temporary basis. The total cost savings projected from the acquisition of Infinity stations in these markets is: New York, $600,000; Los Angeles, $370,000; Chicago, $780,000; Philadelphia, $490,000; San Francisco, $580,000; Detroit, $160,000; Boston, $170,000; and $335,000 for the two radio/television combinations in Baltimore and Washington, D.C. Specifically, Westinghouse anticipates cost savings attributable to centralized management, accounting, engineering, legal, human resources and other functions in each market to be at least: New York, $300,000; Los Angeles, $120,000; Chicago, $180,000; Philadelphia, $120,000; San Francisco, $150,000; Detroit, $150,000; Boston, $160,000; and $145,000 for the two radio-television combinations in Baltimore and Washington, D.C. Westinghouse also anticipates additional cost savings in each market from combined purchasing power and promotional and other efficiencies, as follows: New York, $300,000; Los Angeles, $250,000; Chicago, $400,000; Philadelphia, $250,000; San Francisco, $300,000; Detroit, $10,000; Boston, $10,000 and Baltimore and Washington, D.C., a combined $10,000. In Chicago, Philadelphia, and San Francisco, Westinghouse expects cost savings from consolidation of station facilities of $200,000, $120,000, and $130,000, respectively. The total cost savings for Washington, D.C. and Baltimore also includes $180,000 in savings from potential consolidation of facilities, including savings in rent, centralized telephone services and maintenance attributable to its plans to consolidate the studios and physical facilities of the radio and television stations in those markets.

68. Westinghouse states that these cost savings will generate substantial economic efficiencies from combined station operation, making possible a wide range of public interest benefits in each market In this regard, Westinghouse states mat Infinity's radio stations will have access to the news and informational programming resources of its existing radio-television combinations, bolstering the px)gramming on Infinity stations, which have more typically

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employed formats based on personality/hosts and music. Westinghouse also states that Infinity radio stations will have access to the substantial newsgathering and weather forecasting equipment, facilities and personnel of the Westinghouse/CBS stations. Furthermore, Westinghouse asserts that combined television and radio station operations will enable its stations to provide seamless coverage of important news and local events from the home to the car to the workplace. Westinghouse also anticipates that the synergies resulting from the combined Westinghouse/mfinity operations will yield substantial local programming and community service benefits in each market. In this regard, Westinghouse states that its "Parent's Guide to Children's Educational Programming," described in paragraph 24 supra, will also be aired on Infinity radio stations upon approval of the merger. Westinghouse also intends to broadcast the presidential candidate messages, described in paragraph 24 supra on the Infinity radio stations following the merger.

69. Westinghouse states that the merger will permit additional public service programming, including increased news, local programming and public affairs programming in each market. The following, derived from Westinghouse's waiver showing, includes examples of the local public affairs programming improvements that will be provided in each market. In New York, "Sunday Morning on the Fan," a local radio program focusing on community issues, will be enhanced by sharing the news and public affairs resources of WCBS-TV. In Los Angeles, "Close Up," and in Chicago, "Chicago Close Up," both public affairs programs on Infinity radio stations, will benefit from more in-depth quality news and information production based on access to its co-owned stations. In Philadelphia, "What You Should Know," a radio public affairs program, will be strengthened by sharing reporters and producers from its co-owned television and radio stations. In San Francisco, "Street Talk," will have access to reporters from its co- owned television station. In Detroit, more in-depth coverage of town meeting topics will be broadcast on Infinity station public affaire programming, such as "Metro Magazine." In Boston, public affairs programs such as "Boston Sunday Review" will provide fuller coverage of more issues. In Washington, D.C., and Baltimore, Westinghouse plans to coordinate public affairs programming on its stations so that locally produced radio programs in these markets, such as "Basically Baltimore" and "African-American Focus" will have greater depth and diversity. See Exh. 2, Transfer of Control Application: Annex A at pages 3-5, 10; Annex B at pages 2-4, 9; Annex C at pages 3-4, 9; Annex D at pages 3-5, 9; Annex E at pages 3-5,10; Annex F at pages 3-4, 9; Annex G at pages 3-4, 9; Annex H at pages 3-4, 12.

70. Westinghouse also specifically discusses community service programming and projects that will be enhanced by the combined ownership of its stations and Infinity radio stations. For example, in New York, Westinghouse states that adding the combined reach and audience of Infinity stations to WCBS-TVs "Family 2" campaign would extend the public service benefits of this important campaign on family life. In Los Angeles, its television station's "Fight Hunger" day will benefit from support from its co-owned Infinity radio stations, which will add news stories and public service announcements on the campaign to collect food for regional food banks. In Chicago, Westinghouse will use WBBM-TV to increase the reach of current Infinity station promotions, such as the Children's Hospital campaign. In Philadelphia, Westinghouse plans to add Infinity radio stations to the Black History Month campaign now jointly produced

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by KYW-TV and KYW(AM). In San Francisco, Westinghouse states that public interest campaigns for Children's Hospital, blood banks and food drives will be combined in order to make the campaigns more comprehensive and to give the campaigns access to greater resources. In Detroit, Infinity's current campaign supporting Ronald McDonald House will be added to WWJ-TVs existing children's campaigns. In Boston, Westinghouse states that Infinity community service projects like the sponsorship of an AIDS Walk-A-Thon will be increased through coordination with its co-owned radio and television stations. In Washington, D.C. and Baltimore, Westinghouse states that the combined ownership and coordination of community service outreach effort of its radio and television stations will expand the promotion and execution of such campaigns like "Black History Month." See Exh. 2, Transfer of Control Application: Annex A at pages 5-6, 1; Annex B at pages 4-5, 10; Annex C at pages 4-5, 10; Annex D at pages 5-6, 11; Annex E at pages 5, 11; Annex Fat pages 4-5, 10; Annex G at pages 4-5, 10; Annex H at pages 5, 13.

71. Westinghouse also states that the Equal Employment Opportunity Programs of Infinity's radio stations will also benefit from increased human resources staff available from the combined companies. Each station in a particular market will have access to the services of a full-time professional Human Resources Manager and supporting staff. The outreach resources and relationships of the stations will be combined to ensure the maximum benefit of each station's outreach efforts. See paragraph 26

72. Westinghouse presents an additional public interest benefit that will result from approval of the temporary waiver requests. In this regard, as discussed supra at paragraphs 52 and 55, three radio stations, two in the Chicago market, and one in the Dallas market, will be sold to minority-controlled entities. Westinghouse thus contends that its pledge to increase opportunities for minority ownership through these waiver requests will provide a public interest benefit consistent with the Commission's commitment to enhancing minority ownership of broadcast stations.

73. Types of Facilities/Other Media Outlets In addition to the stations in Westinghouse's permanent radio-television combinations, described in paragraph 28 above, Westinghouse also describes the facilities of the Infinity radio stations which it proposes to acquire on a temporary basis. In New York, WFAN(AM) is a Class A clear-channel station operating at 50 kW, WZRQAM), is Class B AM station operating at 5 kW, and WXRK(FM), is a Class B FM station operating with 7.6 kW from a 1,220-foot antenna In Los Angeles, KRTH(FM), is a Class B FM station operating at 51 kW from a 3,130-foot antenna, and KROQ(FM), is a Class B FM station operating at 5.6 kW with a 2,000-foot antenna. In Chicago, WJJD(AM) is a Class B station, operating at 50 kW during the daytime and 5 kW at night, WUSN(FM), is a Class B station operating at 8.3 kW with a 1,174-foot antenna, WJMK(FM) is a Class B FM station operating at 4.1 kW from a 1,575-foot antenna, and WCKG(FM) is a Class B FM station

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operating at 4.1 kW from a 1,581-foot antenna29 In Philadelphia, WIP(AM) is a Class B station operating at 5 kW, and WYSP(FM) is a Class B FM station operating at 16 kW from a 900-foot antenna In San Francisco, KFRC(AM) is a Class B station operating at 5 kW, KFRC-FM is a Class B station operating at 50 kW from a 1,299 foot antenna, and KYCY(FM) is a Class B station operating at 50 kW from a 492-foot antenna In Detroit, WXYT(AM) is a Class B station, operating at 5 kW, WOMC(FM) is a Class B station, operating at 190 kW from a 391-foot antenna, and WYCD(FM), is also a Class B station, operating at 21 kW from a 755-foot antenna

74. In Boston, Westinghouse's WBZ(TV) is a VHP station operating on channel 4. Its existing radio stations are: WBZ(AM), a Class A clear-channel station, operating at 50 kW; and WODS(FM), a Class B FM station, operating at 16.5 kW from a 938-foot antenna The four FM stations that Westinghouse proposes to acquire from Infinity on a temporary, conditional basis are all Class B stations. WBCN(FM) operates at 20.9 kW from a 771-foot antenna WZLX(FM) operates at 21.5 kW from a 777-foot antenna WBOS-FM, which will be divested pursuant to the DOT Settlement Agreement, operates at 8.8 kW from a 1,100 foot antenna WOAZ(FM) operates at 32 kW from a 600-foot antenna In the Washington, D.C. market, Westinghouse's WJZ(TV), Baltimore, a VHP station operating on channel 13, has a Grade A contour that totally encompasses the communities of license of two radio stations that Westinghouse proposes to acquire from Infinity on a temporary, conditional basis. Those two stations are: WPGQAM), a Class B station operating with 50 kW during the daytime and with 270 watts at night; WPCG- FM, a Class B station operating with 50 kW from a 500-foot antenna Westinghouse's WJZ(TV) also creates a radio-television combination with Infinity stations in Baltimore that Westinghouse will acquire on a temporary basis. WXYV(FM) is a Class B FM station operating at 50 kW from a 436-foot antenna WLIF(FM), is a Class B FM station operating at 13.5 kW from a 960- foot antenna, WCAO(AM) is a Class B station operating at 5 kW, and WJFK(AM) is a Class B station operating at 5 kW.

75. Westinghouse acknowledges that it proposes to combine stations with substantial technical facilities in most of the markets. However, Westinghouse asserts that there are numerous comparable AM, FM and television facilities owned by other entities in each market. Furthermore, Westinghouse states that in all of these markets it will have to compete against other established radio/television combinations as well as commonly owned radio station combinations that have more than one same-service radio station. Westinghouse also argues that the number and types of facilities that comprise the radio-television combinations that it will own on a conditional basis must be evaluated in light of the nature of competition and diversity in these nine markets, all of which are large, highly diverse and competitive. Under these circumstances, Westinghouse argues that the proposed temporary, conditional station combinations do not present issues of market domination inconsistent with the public interest

29 Westinghouse does not provide information concerning the facilities of WYSY(FM), an Infinity station that it would divest prior to consummation of the Westinghouse/Infinity merger.

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76. Additionally, other than the stations enumerated here, Westinghouse has other attributable interests in media outlets only in the Washington, D.C. market.30 In this regard, as discussed supra at paragraph 65, Westinghouse has a permanent radio-television combination, WJZ(TV) and WARW(FM), in Washington, D.C. Westinghouse will acquire another FM station from Infinity, WJFK(FM), Manassas, Virginia, in the Washington, D.C. market that is not included in the temporary waiver request for that market. According to Westinghouse's showing, the Grade A contour of WJZ(TV) does not totally encompass Manassas, nor does WJFK(FM)ls 1 mV/m contour encompass WJZ(TV)'s community of license. Therefore, Westinghouse's acquisition of WJFK(FM) does not implicate the one-to-a-market rule.

77. Economic Status of the Stations. Westinghouse does not assert that any stations involved in the temporary waiver requests are in financial distress. However, Westinghouse argues that financial considerations are of less importance because it has made a strong showing that the public interest would be served by grant of the requested waivers. Additionally, Westinghouse points out that the Commission does not require a waiver applicant to satisfy all five factors relevant to the case-by-case standard as a precondition to granting the requested one- to-a-market waiver and cites recent precedent in which the Commission granted one-to-a-market waivers for station combinations that did not involve stations experiencing financial difficulties.

78. Competition and Diversity in the Markets. Westinghouse emphasizes that, except for Baltimore, the markets involved in the temporary waiver requests are among the top ten television markets in the country. Westinghouse also notes that although Baltimore is not among the top ten markets, it ranks 23rd Furthermore, Westinghouse argues that the Commission previously found that competition and diversity in New York, Los Angeles, Chicago, Philadelphia, San Francisco and Detroit is robust, and also argues that the same conclusion applies with equal force to Boston, Washington, D.C. and Baltimore, the other markets at issue here. Specifically, for each of these markets, Westinghouse has provided data concerning the number of radio and television stations in each market, the number of separate owners of those facilities and the presence of cable and other mass media outlets.31 For the New York, Los

30 We note that Westinghouse's proposed acquisition of KOMErFM, San Jose, California, from Infinity is not included in the temporary waiver request for the San Francisco market According to Westinghouse's showing, the Grade A contour of KPDC-TV, the television station that is part of the radio-television combination in this market, does not totally encompass KOME-FMs community of license, nor does KOME-FMs ImV/m contour totally encompass San Francisco, the community of license of KPDC-TV. Furthermore, although San Jose is included in the Nielsen television DMA for the San Francisco market, it is located in a county that is outside the television metro market, the relevant market for radio stations under the one-to-a-market rule analysis. Consequently, KOME-FM does not constitute an additional San Francisco media outlet owned by Westinghouse under the third case-by-case factor.

31 As discussed in footnote 16, supra. Westinghouse requests mat the Commission rely on its amended showing, associated with the applications to transfer control of Infinity for its determination of the number of broadcast stations and separately owned voices in each market In mis regard, Westinghouse states mat mis information is derived from "Broadcasting and Cable Yearbook 1996," me BLA Publications, Inc. database and ownership reports on file with the Commission.

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Angeles, Chicago, Philadelphia, San Francisco and Detroit markets, the number of radio and television stations is set forth in paragraph 31 above.

79. As to three remaining markets where it will acquire Infinity radio stations, Westinghouse states that Boston is the sixth largest television market in the country, and has 17 commercial and non-commercial television stations, licensed to 14 separate owners. Additionally, there are 68 commercial and non-commercial radio stations (29 AM and 39 FM) in the Boston television metro market which are owned, operated and controlled by 54 separate individuals or entities. There are also 34 daily newspapers published in the market and cable penetration is 76.8 percent. Westinghouse states that Washington, D.C. is the seventh largest television market in the country, and has 17 commercial and non-commercial television stations, licensed to 15 separate owners. Additionally, there are 64 commercial and non-commercial radio stations (34 AM and 30 FM) in the Washington, D.C. television metro market which are owned, operated and controlled by 41 separate individuals or entities. There are also 17 daily newspapers published in the market and cable penetration is 66.4 percent. Westinghouse states that Baltimore is the twenty-third largest television market in the country, and has eight commercial and non commercial television stations licemsed to seven separate owners. Additionally, there are 38 commercial and non-commercial radio stations (18 AM and 20 FM) in the Baltimore television metro market which are owned, operated and controlled by 31 separate individuals or entities. There are also six daily newspapers published in the market and cable penetration is 62.2 percent. Additionally, Westinghouse notes that each of these three markets is served by MMDS facilities.

80. Westinghouse's request for conditional waivers to acquire additional Infinity radio stations in these markets assumed that its request for permanent waivers has been granted. Therefore, Westinghouse's showing indicates that the number of separately owned facilities in these markets following the merger is: 111 separate broadcast voices in the New York market; 84 separate broadcast voices in the Los Angeles market; 104 separate broadcast voices in the Chicago market; 64 separate broadcast voices in the Philadelphia market; 53 separate broadcast voices in the San Francisco market; 50 separate broadcast voices in the Detroit market; 66 separate broadcast voices in the Boston market; 53 separate broadcast voices in the Washington, D.C. market and 31 separate broadcast voices in the Baltimore market

Opposition to Waiver

81. hi its petition to deny the temporary, conditional one-to-a-market waivers associated with Westinghouse's acquisition of Infinity, Spectrum reiterates the same arguments that it raised against Westinghouse's request for permanent waivers and which have already been rejected above. Additionally, Spectrum asserts that by virtue of its merger with Infinity, Westinghouse will gamer expanded market power. Specifically, Spectrum states that the merged entity will control the following percentage of radio advertising revenue in each market: New York, 36 percent; Los Angeles, 26 percent; Chicago, 32 percent; San Francisco, 19 percent; Philadelphia, 44 percent; Detroit, 30 percent; Boston, 39 percent; and Washington, D.CTBaltimore, 21 percent Serafyn/UCCA oppose Westinghouse's request fortemporary, conditional one-to-a-market waivers by incorporating by reference the arguments made by Spectrum. Serafyn/UCCA also argue that

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approval of the requested one-to-a-market waivers will diminish diversity and permit Westinghouse to broadcast more programming like "The Ugly Face of Freedom."

Discussion

82. In evaluating the temporary waiver requests, we will be guided by the five factor case-by-case waiver standard. However, different weight may be given to those factors, and the factors themselves may be evaluated in light of the limited duration of the proposed combinations. See Stockholders of CBS Inc.. 11 FCC Red 3755,3769. In this regard, temporary ownership rule waivers may be incidental to the larger merger, and the Commission has determined that a temporary waiver of the multiple ownership rules will, by facilitating the merger and promoting commerce, encourage investment in the broadcast industry, and allow for the free transfer of broadcast licenses. Thus, where mergers or transfers of multiple stations are involved, the Commission has granted temporary rule waivers, including waivers of one-to-a- market rule, in order to give the parties a reasonable period of time to effectuate the merger and to come into compliance with the Commission's multiple ownership rules. See, e^g., Shareholders of Citicasters. Inc.. FCC 96-380 (Sept. 17, 19%); Stockholders of CBS Inc.. 11 FCC Red 3733; Viacom Inc.. 9 FCC Red 5165 (1994).

83. We find that permitting Westinghouse to acquire additional radio stations from Infinity, conditioned on the outcome of the television ownership proceeding, will not unduly affect competition and diversity in these markets, given the limited duration of these waivers. In this regard, we note that the size of the markets involved and the nature of competition therein reduces any threat that Westinghouse's stations combinations could dominate these markets in the short run. Moreover, the temporary waivers will facilitate Westinghouse's merger with Infinity and the exigencies of acquiring Infinity's 43 radio stations located throughout the country. We also find that the petitions filed by Spectrum and Serafyn/UCCA fail to raise substantial and material questions of fact that would preclude grant of the temporary, conditional waiver requests.

84. Beyond facilitating the underlying merger transaction, Westinghouse has demonstrated that it will realize specific cost savings from its acquisition of Infinity radio stations. Westinghouse expects to achieve total additional savings of at least $3,485,000 in the markets where it will acquire Infinity's radio stations. Of this total, $1,325,000 will come from consolidation of personnel and management and human resources functions. Another $1,530,000 is attributable to combined purchasing and promotion for the stations, with an additional $630,000 in savings from consolidation of station facilities in Chicago, San Francisco, Philadelphia, Washington, D.C. and Baltimore. We note that Westinghouse has not amended its waiver request to account for cost savings for WBOS(FM), which will be divested in accordance with the DOJ settlement agreement. Nevertheless, the total cost savings based on Westinghouse's acquisition of Infinity stations is also significant.

85. As a result of its merger with Infinity, Westinghouse will acquire an additional clear- channel Class A station in New York, but will acquire no other clear-channel Class A facilities from Infinity in the other markets where temporary waivers are requested. Thus, in New York,

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Westinghouse would acquire a second, less powerful Class B AM station from Infinity, and would acquire one Class B AM station in Chicago, Philadelphia, San Francisco, Detroit, and Washington, D.C. and two Class B AM stations in Baltimore. With regard to the FM stations that Westinghouse will acquire from Infinity on a temporary basis, all are Class B stations. Westinghouse will divest of WBOS(FM), pursuant to the DOJ Settlement Agreement. Of the remaining Class B FM stations, one FM in Los Angeles, one FM in San Francisco, and one FM in Detroit operate with the most powerful facilities of the FM stations in these markets. Additionally, one FM station in Washington, D.C. and one FM station Baltimore operate at maximum power.

86. Thus, as Westinghouse acknowledges, its merger with Infinity will result in its combined ownership of stations with substantial technical facilities. However, we will consider the broadcast outlets to be commonly owned by Westinghouse as a result of the conditional waivers, "against the backdrop of the fifth factor, the nature of the relevant marketfs]" Stockholders of CBS Inc.. 11 FCC Red at 3772. As discussed more fully at paragraph 88 Ma, Westinghouse's temporary station combinations affect markets that are among the largest in the country, and are served by substantial numbers of competing stations that represent a plethora of independent broadcast "voices." Furthermore, although the facilities that Westinghouse proposes to own on a temporary basis are significant, Westinghouse has also demonstrated that there comparable facilities in these markets. Thus, we conclude that Westinghouse will not be able to dominate the markets based on the nature of the facilities involved in its conditional waiver requests.

87. With regard to the third factor, Westinghouse will own media outlets other than those listed in its requests for temporary waivers in Washington, D.C., where it will own one additional FM station that does not come within the one-to-a-market rule's radio-television contour overlap provisions. See paragraph 76 supra. Fourth, regarding the financial status of the stations in the temporary, conditional waiver combinations, none of the stations involved is experiencing financial difficulties. However, Westinghouse is not required to demonstrate that the stations in these combinations are experiencing financial difficulties as a precondition to grant of the temporary and permanent waiver requests. The Commission has previously granted one-to-a market rule waivers in the absence of financial difficulties. See. £,&, S.E. Licensee G.P.. FCC 96464 (Nov.27, 19%); Shareholders of Citicasters. Inc.. FCC 96-380 (Sept 17,19%); l&a&£> DeArias. Receiver. 11 FCC Red 3662 (19%); Henry Broadcasting Co.T 11 FCC Red 1175 (1995); Alta Gulf FM. Inc.. 10 FCC Red 7750 (1995); Secret Communications. Ltd.. 10 FCC Red 6874 (1995).

88. Next, we turn to the fifth factor, competition and diversity based on Westinghouse's temporary waiver requests for the additional radio television combinations that will result from its merger with Infinity. Eight of the nine markets affected by Westinghouse's temporary waiver requests, New York, Los Angeles, Chicago, Philadelphia, Detroit, Boston, and Washington, D.C. are among the top ten television markets in the country, and Baltimore, the ninth market affected by the temporary waiver requests, is the 23rd largest We find, as we did in the context of the permanent one-to-a-market waiver requests, that New York, Los Angeles, Chicago, Philadelphia,

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San Francisco and Detroit enjoy robust competition and diversity, and will continue to do so after Westinghouse adds Infinity radio stations in these markets on a temporary basis. This conclusion applies with equal force to Boston, Washington, D.C. and Baltimore. These markets will be served by at least 38 radio stations and as many as 133 radio stations following the merger of Infinity and Westinghouse. Additionally, the number of television stations in these markets will range from eight stations to 25. Our independent analysis of data submitted by Westinghouse confirms that there will be at least 30 separately owned broadcast "voices" in these markets and as many as 111 separate broadcast voices in the markets affected by the temporary, conditional waiver requests. Additionally, the markets all have substantial cable penetration rates, the lowest of which is 58.8 percent. Numerous daily and weekly newspapers also serve these markets, and all of the markets are served by MMDS facilities.

89. With regard to economic concentration and competition in the markets affected by the temporary waivers, Spectrum cites news articles concerning Westinghouse's potential radio revenue shares based on its addition of Infinity stations to the permanent radio-television combinations that it proposes in these markets. However, Spectrum does not indicate the source of the revenue data contained in these articles. Our independent analysis indicates that Westinghouse will have a substantial share of the combined radio and television advertising revenue in these markets.32 The television and radio stations together receive the following combined television and radio advertising shares in each market: New York, 21 percent, Los Angeles, 16.3 percent; Chicago, 19.4 percent; Philadelphia, 24.9 percent; San Francisco, 18.6 percent; Detroit, 10.5 percent; Boston 23.9 percent; and Baltimore, 23.1 percent33 These shares do not pose a threat to competition in these very diverse and competitive markets. See, e.g.. S.E. Licensee G.P.. FCC 9^464 (Nov. 27,19%); Shareholders of Citicasters. Inc.. FCC 96-380 (Sept 17, 19%).

90. We conclude, based on me record, that given their limited duration, the temporary waivers requested by Westinghouse are warranted and will, on balance, serve the public interest Specifically, these temporary waivers, pending resolution of the television ownership rulemaking proceeding, will facilitate the overall merger of Infinity and Westinghouse. The Commission has stated that the benefits of merger transactions, which involve multiple stations, support the grant of a reasonable waiver period to effectuate the merger. See, e.g.. Stockholders of CBS Inc.. 11 FCC Red at 3755. Furthermore, a number of other factors support our conclusion. First, we note that the levels of advertising revenues attributable to the temporary radio-television combinations are not so significant as to raise a concern that diversity and competition in these markets among the top-ranked in the country- will be unduly affected for the waiver period. See,

32 We have already considered and found acceptable in terms of impact on competition the radio station combinations which the merger will produce. See paragraphs 57-63 supra and the revenue share data and discussion therein.

33 We note that no combined radio and television advertising revenues are available for the Washington, D.C. radio-television combination, because the television station involved, WJZ(TV), is a Baltimore station and we cannot determine the portion of WJZ(TV)'s revenues attributable to Washington, DC.

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S.E. Licensee G.P.. FCC 96-464 (Nov. 27, 1996); Shareholders of Citicasters. Inc.. FCC 96-380 (Sept. 17, 1996). Additionally, the Justice Department has entered into an agreement with Westinghouse and Infinity, which requires Westinghouse to divest of WMMR-FM, Philadelphia and its prospective interest in WBOS-FM, Boston, but has otherwise determined not to challenge the Infinity/Westinghouse merger on antitrust grounds. The Department's determination, coupled with the conditions we will impose in this order with respect to joint sales agreements and local marketing agreements in Philadelphia and Boston, adequately assure us that grant of the temporary waivers will not have an undue adverse effect on competition in the relevant markets. We furthermore believe that diversity in these markets will not be adversely affected during the temporary waiver periods. As Westinghouse's showing suggests, and our own analysis confirms, more than 30 independent voices will remain in these markets after the proposed merger. In this regard, Serafyn/UCCA makes a general argument that grant of requested temporary waivers will diminish diversity and permit Westinghouse to broadcast more programming like "The Ugly Face of Freedom" However, neither Serafyn/UCCA nor Spectrum has presented evidence that Westinghouse will dominate the markets in which the temporary waivers are requested Furthermore, we have rejected Serafyn's argument that the broadcast of "The Ugly Face of Freedom" affects Westinghouse's qualifications to be a Commission licensee. See paragraph 9, supra.

91. Thus, we find that given the overall benefits of the merger of Infinity and Westinghouse, the temporary combinations will not adversely affect diversity and competition. In this regard, although Westinghouse will control stations in these markets with significant technical facilities, comparable facilities exist. Moreover, Westinghouse's temporary, conditional waiver requests will result in significant economic efficiencies and public interest benefits. These benefits include: improvements and enhancement of news and local programming, including increased promotion of children's television programming and the provision of time to major presidential candidates; a commitment to increasing outreach to minorities and women as well as divestiture commitments that will increase minority ownership in markets affected by the temporary waiver requests. We further find, as we did with respect to the permanent waiver requests, that these public interest benefits outweigh any diminution in diversity that result from the totality of the temporary, conditional one-to-a-market waivers requested Spectrum and Serafyn/UCCA's generalized arguments in opposition to the temporary waiver requests are insufficient to support a finding that these waiver requests should be denied Westinghouse's request for six month rule waivers following an Order issued in the pending television ownership proceeding is consistent with recent precedent, and accordingly will be granted for this period See. ££., S.E. Licensee G.P.. FCC 96-464 (Nov.27, 1996); Shareholders of Citicasters. Inc.. FCC 96-380 (Sept. 17, 1996); Broad Street Television. L.P.. FCC 96-106 (Mar. 12, 1996).

CONCLUSION

92. For the reasons stated above, we conclude that grant of Westinghouse's request for permanent one-to-a-market waivers and grant of Westinghouse's request for temporary one-to-a- market waivers for a period of six months from the issuance of an Order in our pending

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television ownership proceeding are warranted Additionally, we find that the applicants are fully qualified, that grant of the permanent waivers to permit Westinghouse to retain radio-television combinations for which it was granted temporary twelve-month one-to-a-market rule waivers in Stockholders of CBS Inc.. 11 FCC Red 3733 (1995), appeal pending sub nom. Alexander J. Seraiyn v. FCC. No. 95-1385 (D.C. Cir.) would serve the public interest, and that grant of the transfer of control of the Infinity radio stations to Westinghouse would serve the public interest

93. Accordingly, IT IS ORDERED, That the petition to deny filed by Spectrum Detroit, Inc. against Westinghouse's request for permanent rule waivers IS HEREBY DENIED, the petitions to deny the transfer of control of Infinity Broadcasting Corporation to Westinghouse Electric Corporation filed by Spectrum Detroit, Inc. and Alexander J. Seraiyn and the Ukrainian Congress Committee of America, Inc. ARE HEREBY DENIED, and the Motion for Stay Pending Appellate Review filed by Alexander J. Seraiyn and the Ukrainian Congress Committee of America, Inc. IS HEREBY DISMISSED as moot

94. IT IS FURTHER ORDERED, That permanent waivers of the one-to-a-market rule, Section 73.3555(c), to permit common ownership of the following combinations in the following six markets ARE GRANTED: WCBS-TV, WCBS(AM), WINS(AM), WCBS-FM, and WNEW(FM), New York; KCBS-TV, KNX(AM), KFWB(AM), KCBS-FM, andKTWV(FM), Los Angeles; WBBNHV, WBBM(AM), WMAQ(AM), and WBBNWFM, and WXRT(FM), Chicago; KYW-TV, KYW(AM), WPHT(AM), and WOGL-FM, Philadelphia; KPIX-TV, KCBS(AM), KPIX(AM), KLLC-FM, and KPIX(FM), San Francisco; WWJ-TV, WWJ(AM), WVMV-FM, and WYST(FM), Detroit.

95. IT IS FURTHER ORDERED, That the request for a temporary waiver of the one-to- a-market rule to permit common ownership station WMMR(FM), and stations KYW-TV, KYW(AM), WPHT(AM), and WOGL-FM, Philadelphia, IS GRANTED, provided however, that within six months of the consummation of the transfer of control of Infinity Broadcasting Corporation to Westinghouse Electric Corporation, Westinghouse Electric Corporation SHALL FILE an application for Commission consent to assign the license of WMMR(FM) to an unrelated party.

96. IT IS FURTHER ORDERED, That the Request for Grant of Permanent or For Extension of Temporary Waivers filed October 18,19% by Westinghouse Electric Corporation, insofar as it requests the extension of temporary waivers, IS HEREBY DISMISSED as moot

97. IT IS FURTHER ORDERED, lhat the request for temporary waivers of the Commission's one-to-armarket rule, Section 73.3555(c), to permit common ownership of the following stations in the following nine markets: WCBS-TV, WCBS(AM), WINS(AM), WCBS- FM, WNEW(FM), WXRK(FM), WFAN(AM), and WZRC(AM), New York; KCBS-TV, KNX(AM), KFWB(AM), KCBS-FM, KTWV(FM), KROQ-FM, and KRTH(FM), Los Angeles; WBBM-TV, WBBM(AM), WMAQXAM), WBBM-FM, WXRT(FM), WJJD(AM), WJMK(FM), WUSN(FM), and WCKG(FM) Chicago; KYW-TV, KYW(AM), WPHT(AM), WOGL-FM, WIP(AM) and WYSP(FM) Philadelphia; KPIX-TV, KCBS(AM), KPIX(AM), KLLC-FM,

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KPIX(FM), KFRC(AM), KFRC-FM, and KYCY(FM), San Francisco; WWJ-TV, WWJ(AM), WVMV-FM, WYST(FM), WXYT(AM), WOMC(FM) and WYCD-FM, Detroit; WBZ-TV, WBZ(AM), WODS-FM, WBCN(FM), WZLX(FM), and WOAZ(FM), Boston; WJZ-TV, WARW(FM), WPGC(AM), WPGC-FM, Washington, DC; and WJZ-TV, WJFK(AM), WLIF-FM, WCAO(AM), and WXYV(AM), Baltimore ARE GRANTED, subject to the outcome in the pending television ownership rulemaking, (Second Further Notice of Proposed Rulemaking in MM Docket Nos. 91-221 and 87-8), concerning these issues. Should divestiture be required as a result of that proceeding, Westinghouse Electric Corporation IS DIRECTED to file an application for Commission consent to sell the necessary stations to comply with that divestiture requirement within six months from the release of an Order in the rulemaking proceeding.

98. IT IS FURTHER ORDERED, That the request for a temporary waiver of the Commission's one-to-a-market rule, Section 73.3555(c), to permit common ownership of WBZ- TV, WBZ(AM), WODS-FM, WBCN(FM), WZLX(FM), WOAZ(FM), and WBOS(FM), Boston IS GRANTED, but within six months of the consummation of the transfer of control of Infinity Broadcasting Corporation to Westinghouse Electric Corporation, Westinghouse Electric Corporation SHALL FILE an application for Commission consent to assign the license of WBOS(FM) to an unrelated party.

99. IT IS FURTHER ORDERED, That the request for a temporary waiver of the Commission's one-to-a-market rule, Section 73.3555(c), to permit common ownership of KYW- TV, KYW(AM), WPHT(AM), WOGL-FM, WIP(AM), and WMMR(FM), Philadelphia; IS GRANTED, but within six months of the consummation of the transfer of control of Infinity Broadcasting Corporation to Westinghouse Electric Corporation, Westinghouse Electric Corporation SHALL FILE an application for Commission consent to assign the license of WMMR(FM) to an unrelated party.

100. IT IS FURTHER ORDERED, That the applications to assign the license of KOAI- FM, Fort Worth, Texas, from Infinity KOAI-FM Licensee Corporation to the Dallas-Fort Worth Stations Trust, Bill Clark, Trustee, File No. BALH-961011GJ and the applications to assign the licenses of KHVN(AM), For Worth, Texas and KRBV(FM), Dallas, Texas, from Infinity Fort Worth Licensee Corporation to the Dallas-Fort Worth Stations Trust, Bill Clark, Trustee, File Nos. BAL-96101 IGM, BALH-96101 IGN ARE HEREBY GRANTED for a temporary six month period

101. IT IS FURTHER ORDERED, That of the licenses of WSCR(AM) and WXRT(FM), Chicago, from Westinghouse Electric Corporation/Group W Broadcasting, Inc. to the Chicago Stations Trust, Henry Rivera, Trustee, File Nos. BAL-961011GC, BALH-961011GL ARE HEREBY GRANTED for a temporary six month period

102. IT IS FURTHER ORDERED, That the applications for consent to the transfer of control of Infinity Broadcasting Corporation radio stations, BTC, BTCH, BTCFTB-960722GE through 960722A4, ARE HEREBY GRANTED, upon the following conditions: (1) that prior to consummation of the transaction, Westinghouse Electric Corporation and Infinity Broadcasting

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Corporation have collectively divested themselves of sufficient stations, or consummated the assignment of stations to the Chicago Stations Trust and the Dallas Fort Worth Stations Trust so that the merger will result in Westinghouse Electric Corporation controlling no more than eight stations, no more than five of which are in the same service, in Chicago and Dallas/Fort Worth; (2) that prior to consummation of the transaction, the transactions assigning the licenses of WYSY(FM), Aurora, Illinois and WCKG(FM), Elmwood Park, Illinois from Cox Radio, Inc. to Infinity Broadcasting Corporation and assigning the licenses of WHOO(AM), WHTQ-FM and WMMO-FM, all Qrlando, Florida, from Infinity Broadcasting Corporation to Cox Radio Inc. have been consummated; (3) that prior to consummation of the transaction, the assignment of KDFX(AM), Dallas, Texas, from Inspiration Media of Texas, Inc. to Infinity Broadcasting Corporation of Dallas has been consummated and the contingent application transferring control of KDFX(AM) from Infinity Broadcasting Corporation to Westinghouse Electric Corporation, File No. BTC-961101EE, has been consummated or the contingent pm ionna application assigning the license of KDFX(AM) to Infinity Broadcasting Corporation of Dallas n, File No. BAPL- 961108EF has been consummated Our action granting the transfer of control is taken without prejudice to the Commission's future enforcement of 18 U.S.C. § 1464 and the relevant provisions of the Communications Act relating to the broadcast of indecent programming.

FEDERAL COMMUNICATIONS COMMISSION

William F. Caton Acting Secretary

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