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A. 1. a.(1)(a) i) a) 1. 1. 1. a.(1)(a) i) a)#XP\  P6QXP#"5@^2CRdd$CCdq2C28dddddddddd88qqqYzoCNzoozzC8C^dCYdYdYCdd88d8ddddCN8ddddY`(`l2CC!CCPRCddYYYYYYzYzYzYzYC8C8C8C8ddddddddddYdddddoddYYYYYzYzYzYddddddPdCdCCCdNdz8zRdddCRoNoNNF2[dCYddddd7>d<d<CCYYdCCddCYCdYzzzzCCCCqodYYYYYYYYYYY8888dddddddnddddddd"5@^2Coddȧ8CCdr2C28ddddddddddCCrrrdzNdzoȐC8CtdCdoYoYCdo8Co8odooYNCodddYO,Oh2CC!CCPRCdodddddȐYYYYYN8N8N8N8oddddooooddoddddzodddYYYYYYddddooPoNoNCNodo8RoodȐYYoNoNNF2ldCddddddwaiver request because Spectrum currently owns an FM station in Key West and provides   Mprogramming to an AM/FM station combination in the market pursuant to a time brokerage   agreement. PolarComm argues that were Spectrum to retain ownership of WKIZ(AM), it would   \hold attributable ownership interests in four broadcast stations in the Key West market. In   contrast, PolarComm argues, if the instant waiver request were granted, WKIZ(AM) could aggressively compete with the stations currently owned or programmed by Spectrum.  Xy-*H Discussion ă ` `  P9. In evaluating a request for temporary waiver of the onetoamarket rule, "[o]ur   Mprimary concern, in the end, is how diversity will be affected in the market involved and the   public interest benefits advanced by the applicant to offset any adverse impact on diversity."  X-  Stockholder of CBS, Inc., 11 FCC Rcd 3733, 3769 (1996); see also Knoxville Channel 8 Limited  X-  MPartnership, 4 FCC Rcd 4760, 4761 (1989). While we conclude here that, on balance, a grant   of a temporary waiver of the onetoamarket rule will not unduly affect diversity in the relevant   market, we first address our basis for concluding that PolarComm is not entitled to a presumptive waiver under either the "failed station" standard or the "top 25 markets/30 voices" standard.  10. PolarComm claims that it is entitled to a presumptive waiver under the "failed   <station" standard on the grounds that the station has been off the air since December 6, 1994 and  XN-  that the current licensee is not in a position to reconstruct the station. The Commission has   -stated that it will be predisposed to grant onetoamarket waivers where waiver of the rule would   allow: (1) a radio or television station that has not been operating "for a substantial period of   >time" to resume broadcast operations; or (b) a radio or television station that is involved in  X-  ,voluntary or involuntary bankruptcy proceedings to continue broadcast operations. Second Report  X-  and Order, 4 FCC Rcd at 1752. To support a waiver request under the "failed station" standard,   the Commission stated that applicants "would first be required to provide relevant documentation,  X!-  i.e., proof of the length of time that the station has been offair, or proof that it is involved in"!x,-(-(ZZ "  X-bankruptcy proceedings." Second Report and Order, 4 FCC Rcd at 1752.  11. With respect to a station that has not been operating, the Commission declined to   .define specifically what constitutes a "substantial period of time," but indicated that it did not   believe this criteria would be satisfied unless the station had been off the air for at least several  X-  months, e.g., four months. Second Report and Order, 4 FCC Rcd at 1760 n. 98. The   =Commission also stated that "[w]e believe that it is unlikely that a station would remain off the  X_-  air for such a length of time absent serious financial difficulties." Id. In this regard, the   yCommission also stated that it did not expect that any broadcaster would undergo the financial   hardships of filing for bankruptcy or taking a station off the air to qualify for a presumptive one X -toamarket waiver under the "failed station" standard. Id. at 1753.  ?12. Although WKIZ(AM) has been off the air for almost two years, there is evidence in   the record that the station's silent status was not the result of financial difficulties. In its first   request for special temporary authority ("STA") to remain silent, Spectrum stated that the   [continuing deterioration of the station's facilities necessitated taking the station off the air and   that it was conducting studies to determine whether the station's transmission facilities could be   Zmoved to another location. In its second STA extension request, Spectrum stated that a potential   transmitter site had been identified and that its engineers were studying the feasibility of   relocating the station to this site. In its third STA extension request, Spectrum reported that   -shortly after filing its request, its engineers discontinued their study of the alternative transmitter   site in light of Spectrum's negotiations with a buyer for the sale of the station. Spectrum stated   that the negotiations had failed and that its engineers had been instructed to return to the study   of the alternative transmitter site, which Spectrum noted was the site of its other station in the   market, WEOW(FM). In its fourth request, Spectrum stated that it had listed the station for sale   =with a broker and needed time to locate a buyer. Finally, Spectrum reported that it had located a buyer. The instant assignment application was then filed.  13. These requests reveal that Spectrum was undecided about whether to reconstruct the   station at its present facilities, to relocate the station to a new transmitter site or to sell the   station. We believe that such behavior, particularly the search for an alternative transmitter site,   is inconsistent with a station that is suffering from financial difficulties. At no point in its   requests to remain silent does Spectrum indicate that financial difficulties or even financial   Lconcerns are a factor in its failure to resume broadcast operations. Moreover, when presented   \with an opportunity to provide additional information in connection with the instant waiver   request, Spectrum merely stated that it "is not in a position" to reconstruct WKIZ(AM)'s   authorized facilities "at this time." In addition, Spectrum not only owns an FM station in the   <market, but also provides programming to an AM/FM station combination in the market pursuant   to a time brokerage agreement. We believe that these factors, when taken together, are   inconsistent with PolarComm's allegation that WKIZ(AM) is a "failed" station, within the   .intended meaning of the rule. When an applicant seeks a presumptive waiver of our onetoa  market rule under the "failed station" claim based on the station's silent status, we ordinarily do   not require additional evidence. However, when, as here, there is clear evidence in the record   that the station's silent status was the result of a decision to sell the station for reasons other than"#',-(-(ZZ%"   =financial difficulties, we will not grant a presumptive waiver merely because a station has been   off the air for a substantial period of time. We conclude that WKIZ(AM)'s silent status is the   result of a decision to sell the station rather then reconstruct the station, not the result of the  X-  financial inability to resume operations, and therefore PolarComm is not entitled to a presumptive waiver under the "failed station" standard.  014. We likewise conclude that PolarComm is not entitled to a presumptive waiver under   Kthe "top 25 markets/30 voices" standard. Under this standard, we will grant a presumptive waiver   where the proposed combination of stations is in one of the top 25 markets and where at least   30 separately owned, operated and controlled broadcast licensees will remain after the proposed  X -  combination. Second Report and Order, 4 FCC Rcd at 175152. The stations at issue here are  X -  !licensed to Key West, which is located in the 16thranked Miami/Ft. Lauderdale DMA. # yO| -  ԍ Because Arbitron no longer compiles television ADI data, we now accept the use of Nielsen DMA data. See  yOD -Media/Communications Partners, L.P., 10 FCC Rcd 8116 n.3 (1995).   However, where the DMA covers a large area and the stations at issue compete only in the local  X -  community, we have focused our analysis on the local community rather than the DMA.  Burt  X -  H. Oliphant, 10 FCC Rcd 2708, 2711 (1995), citing Duane J. Polich, 4 FCC Rcd 5596, 5597   (1989). In the instant case, no AM, FM or television station licensed to Miami or Ft. Lauderdale   provides principal community service to Key West. We conclude that the relevant market here   is Key West and therefore PolarComm is not entitled to a presumptive waiver under the "top 25  Xb-markets/30 voices" standard. b # yO3-  ԍ We note that the Cable Services Bureau recently concluded that certain communities served by a cable system   located in the Miami ADI are sufficiently removed from WEYS(TV) that such communities should not be deemed  yO-  ,part of WEYS(TV)'s market for mandatory carriage purposes. Memorandum Opinion and Order, CSR4777A, DA 961846 (rel. November 12, 1996).  {15. We previously have determined that when the proposed combination at issue is one  X-  .which, in the context of a request for a permanent waiver, would require application of the five   factor casebycase approach, we shall be guided by those factors when reviewing temporary  X-  .waiver requests as well. See Stockholders of CBS, Inc., 11 FCC Rcd at 3769 (1996). Moreover,   Mbecause PolarComm is not seeking a permanent waiver and has set forth explicit divestiture   !plans, we believe consideration of the factors based on the temporary waiver request is   Lappropriate. Accordingly, we will not require as detailed a showing under each factor and the   yweight accorded each factor will vary. We also note that an applicant is not required to satisfy  X|-all five factors in the context of either a temporary or a permanent waiver. Id.  16. With respect to the potential public service benefits, PolarComm has demonstrated   programming benefits and economic benefits to be derived from joint ownership of WKIZ(AM)   and WEYS(TV), even if such ownership is for a brief period of time. PolarComm intends to   broadcast Spanish language programming, which currently is not available to the Key West   community. Furthermore, while PolarComm does not quantify specific cost savings, PolarComm   has indicated that the low costs associated with bringing the Spanish language programming to",-(-(ZZ"   Key West, coupled with PolarComm's ability to use WEYS(TV)'s personnel and studio space to   >operate WKIZ(AM) in Key West, will enable PolarComm to expend the funds necessary to reconstruct the station.  17. With respect to the type of facilities involved, the Commission aims to predict and   ^avoid any significant adverse effects on diversity or competition from too powerful a  Xv-  combination. Great American Television and Radio Co., Inc., 4 FCC Rcd 6347, 6349 (1989).   jWKIZ(AM) is authorized to operate with an effective radiated power of 250 watts. In contrast,  XH-  jthe only other AM station licensed to Key West operates at an effective radiated power of 500   watts twice the power of WKIZ(AM). Furthermore, while WEYS(TV) is a UHF station, the   only other television station licensed to Key West is a more powerful VHF station. In   enunciating the standards for reviewing onetoamarket waiver requests, the Commission stated   that "combinations involving UHF TV, small AM, or class A FM stations may provide relatively  X -  -greater public interest benefits and impose relatively fewer public interest costs." Second Report  X -  and Order, 4 FCC Rcd at 1753. Because the proposed combination involves a silent AM station   and a UHF station, we find that the proposed combination does not present issues of market   dominance inconsistent with the public interest. In addition, aside from WEYS(TV), PolarComm holds no other broadcast interests in Key West.  18. With regard to the economic status of the broadcast stations involved, PolarComm   has not demonstrated that either WKIZ(AM) or WEYS(TV) is in financial distress. As noted   above, PolarComm relies solely on WKIZ(AM)'s silent status as evidence of the station's  X-  financial difficulties and we have concluded (see supra paragraphs 1012 ) that WKIZ(AM)'s   silent status is the result of an independent business judgment, not the result of financial   Ldifficulties. However, as we previously have stated, "[n]ot all of the factors mentioned will be  X-  relevant in every case." Second Report and Order Recon., 9 FCC Rcd at 6491. Indeed, onetoa X-  kmarket waivers have been granted in the absence of financial difficulties. See, e.g., Louis C.  X-  DeArias, Receiver, 11 FCC Rcd 3662 (1996); Henry Broadcasting Co., 11 FCC Rcd 1175 (1995);  X|-  zAtlantic Morris Broadcasting, Inc., 10 FCC Rcd 1175 (1995); Secret Communications Ltd., 10 FCC Rcd 6874 (1995).  m19. Finally, PolarComm has shown that the proposed combination will not create any   undue concentration of ownership or control of the broadcast media in Key West. We   independently have verified that in addition to WKIZ(AM), there are one AM station, seven FM   stations and two television stations licensed to Key West. After the proposed combination, these  X-  eleven broadcast stations will be licensed to nine separate owners.  # yOT"-  ԍ The total number of "voices" in Key West will not change as a result of this combination because PolarComm   and Spectrum already are "voices" in Key West. However, in light of Spectrum's provision of programming to the   Konly other AM station in Key West pursuant to a time brokerage agreement, we note that a grant of the instant waiver request will permit two different "voices" to program the only two AM stations in the market.  In addition, we independently  X -  yhave verified that one cable system serves Key West (Television and Cable Factbook (1996) at   [D272) and that Monroe County, which is composed almost exclusively of Key West, has 94%"! ,-(-(ZZ "  X-  cable penetration (Nielsen Station Index County Coverage Study (1995)). We also have verified  X-  that one local newspaper serves Key West (Gale Directory of Publications and Broadcast Media   (1996) at 443). Although the relevant market here is small, we have granted a permanent oneto  amarket waiver in which a similar number of voices remained following the proposed station  X-  combination. Glendive Broadcasting Corp., 10 FCC Rcd 2708, 2711 (1995)(8 "voices" in 152nd  X-  ranked market). While we recognize that the station being acquired in Glendive was suffering   severe financial difficulties, a circumstance not present here, we nevertheless find that on balance,   a grant of a temporary waiver to give PolarComm an opportunity to return WKIZ(AM) to the   air will serve the public interest. The linchpin in our conclusion that a grant of the instant waiver   request will serve the public interest is the preservation of a second AM station in the Key West market.  }20. For all these reasons, we find that during the limited period necessary to allow   PolarComm time to implement its plans for divestiture of WEYS(TV), the temporary combination   will not have an undue adverse impact on diversity and competition in the Key West market.  X -  We therefore will grant the requested temporary waiver for a period of twelve months. See, e.g.,  X-  ]Multimedia, Inc., 11 FCC Rcd 4883, 4885 (1995)("As a general rule, a temporary waiver of   twelve months from the date of consummation . . . is ample time to locate potential purchasers  Xb-  and to negotiate purchase agreements for the stations to be divested."); See also Capital  XK-  Cities/ABC, Inc., 11 FCC Rcd 5841, 5895 (1996); Stockholders of CBS, Inc., 11 FCC Rcd 3733, 375556 (1996).  !21. Accordingly, IT IS ORDERED, that the request for waiver of the Commission's one  toamarket rule, 47 C.F.R. Section 73.3555(c), to permit common ownership of WKIZ(AM), Key   ?West Florida and WEYS(TV), Key West, Florida, IS HEREBY GRANTED, subject to the   condition that within twelve months of the date of consummation of the proposed assignment of   >WKIZ(AM), Key West, Florida, from Spectrum Radio, Inc. to PolarComm Corp, PolarComm files an application for Commission consent to assign WEYS(TV) to a new party.  22. IT IS FURTHER ORDERED that the application for assignment of license (BAL  951211EA) of WKIZ(AM), Key West, Florida from Spectrum Radio, Inc. to PolarComm Corp. IS HEREBY GRANTED.  23. IT IS FURTHER ORDERED, that PolarComm Corp, is GRANTED six (6) months from the date hereof to return WKIZ(AM) to its fully authorized facilities. ` `  hh,VFEDERAL COMMUNICATIONS COMMISSION ` `  hh,VWilliam F. Caton ` `  hh,VActing Secretary