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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In re Applications of ) ) CHET-5 Broadcasting, L.P. ) BAL-970428GH (Assignor) ) ) and ) ) Crystal Communications Corporation) (Assignee) ) ) For Consent to Assignment of WKNY(AM), ) Kingston, NY ) ) - - - ) ) CHET-5 Broadcasting, L.P. ) BTCH-970428GI (Transferor) ) ) and ) ) Crystal Communications Corporation ) (Transferee) ) ) For Consent to Transfer Control of ) Chet-5 Broadcasting of Poughkeepsie, Inc., ) Licensee of WRRB(FM), Arlington, NY ) MEMORANDUM OPINION AND ORDER Adopted: January 21, 1999 Released: June 17, 1999 By the Commission, Commissioners Furchtgott-Roth and Powell concurring in the result: 1. The Commission has under consideration: (1) an Application for Review filed by Charles Stewart ("Stewart") on September 15, 1997; (2) an Opposition filed by Crystal Communications Corporation ("Crystal") on September 29, 1997; (3) a Motion to Hold in Abeyance filed by Stewart on November 14, 1997; (4) an Opposition to the Motion filed by Crystal on December 1, 1997; and (5) Stewart's Reply to Crystal's Opposition to the Motion. Stewart seeks review of the Commission's denial of his petition to deny and grant of consent to the above-captioned applications to assign the license for WKNY(AM), Kingston, NY from CHET-5 Broadcasting, L.P. ("CHET-5") to Crystal and to transfer control of the licensee of WRRB(FM), Arlington, NY (formerly WDSP(FM)) from CHET-5 to Crystal. For the reasons set forth below, we affirm the staff's decision. Procedural Issues 2. Stewart takes issue with the staff's finding that he did not have standing to file a petition to deny. The staff applied the standard enunciated by the Commission in Maumee Valley Broadcasting, Inc., 12 FCC Rcd 3487, 3488-3489 (1997), recon. pending, which requires a petitioner to demonstrate both residence in the station's service area and that petitioner listens to or views the station in order to demonstrate standing as a listener/viewer. Stewart's affidavit accompanying his petition to deny stated that he listens to WKNY(FM) and WRRB(FM) and "reside[s] in Newburgh, NY in the heart of the Mid-Hudson Valley." Because the affidavit failed to provide specific factual allegations demonstrating that Stewart resides in the community of license of either WKNY(AM) or WRRB(FM) or that his residence is within the service area of either of the stations, the staff found that Stewart had not established listener standing. The staff nevertheless considered Stewart's pleading as an informal objection pursuant to 47 C.F.R.  73.3587. 3. We agree with the Bureau's determination that Stewart's statement did not contain specific factual allegations sufficient to demonstrate that he satisfied the Maumee Valley Broadcasting standard for listener/viewer standing. 47 U.S.C.  309(d)(1) ("The petition shall contain specific allegations of fact sufficient to show that the petitioner is a party in interest. . . ."). However, we have decided to modify Maumee Valley to the extent that it requires a petitioner to demonstrate residence within a station's service area. Instead, we will accord party-in-interest status to a petitioner who demonstrates either residence in the station's service area or that the petitioner listens to or views the station regularly, and that such listening or viewing is not the result of transient contacts with the station. 4. Prior to Maumee Valley, individuals were granted standing based on their status as either listeners or residents. See Petition for Rulemaking to Establish Standards for Determining the Standing of a Party to Petition to Deny a Broadcast Application, 82 FCC 2d 89, 98 (1980)(NAB Petition for Rulemaking). The Maumee Valley decision was intended to distinguish transients, who listen to a station only occasionally, from residents of a station's service area. National Broadcasting Co., Inc., 11 FCC Rcd 10779, 10780 (1996). Thus, the standard set forth in Maumee Valley was intended to vindicate the principle that a broadcaster's responsibility is to serve the needs of residents within its service area. Maumee Valley Broadcasting, Inc., 12 FCC at 3488. In Maumee Valley, an organization attempted to establish that it was a party-in-interest based on the fact that one of its members, who resided approximately 45 miles from the station's city of license, listened to the station as she travelled. The Commission rejected the organization's claim of standing based on the transient nature of the member's contact with the station. Although we agree that listener/viewer standing should not rest on transient or infrequent contacts with a station, we believe that the Maumee Valley standard, in denying standing to such transients, swept too broadly by also excluding non-resident, regular listeners or viewers, who have a legitimate interest in a station's performance. Our modification of Maumee Valley is intended to eliminate this overbreadth; however, we wish to make clear that we will not accord party-in-interest status to transients. 5. We find that Stewart's affidavit is sufficient to meet this modified standard, and therefore find that he has established that he is a party-in-interest under Section 309(d). Under these circumstances, we need not consider Stewart's alternative claim of standing as a market competitor. However, we will address the merits of Stewart's application for review. Multiple Ownership Issues 6. In the Letter Decision, the staff found that Crystal's acquisition of WKNY(AM) and WRRB(FM) complies with the Commission's local radio ownership rules, which limit the number of same service and the total number of stations in which an entity can have an attributable interest in a local radio market. The staff rejected Stewart's claim that, notwithstanding the acquisition's compliance with the local radio ownership rules, consummation of the proposed transactions would result in an undue concentration of control in the "Mid-Hudson Valley" area." The staff found that Stewart's concentration argument relies on a local market definition plainly at odds with the Commission's rules and one that the Commission previously has rejected, citing Atlantic Morris Broadcasting, Inc., 11 FCC Rcd 4723 (1996) and WZAD, Inc., 12 FCC Rcd 10051 (1997) (rejecting Stewart's contention that there is a single Mid-Hudson Valley market). 7. In his Application for Review, Stewart does not dispute that Crystal's acquisition of the two subject stations, and thus the common ownership of five stations-- WKNY(AM), WRRB(FM), WCZX(FM), WEOK(AM), and WPDH(FM)-- complies with the Commission's local radio ownership rules. However, Stewart contends that the staff erred by failing to look beyond the proposed transactions' compliance with the local radio ownership rules to determine whether the transactions would result in an undue concentration of control in the Mid-Hudson Valley. In this regard, Stewart claims that the Commission has a statutory obligation under the public interest standard of the Communications Act to determine on a case-by-case basis whether a transaction would result in anticompetitive behavior. 8. Although Stewart concedes that Crystal's acquisition of WKNY(AM) and WRRB(FM) is permissible under the local radio ownership rules, Stewart argues that the Commission is nevertheless obligated to consider whether Crystal's ownership of other stations in the Mid-Hudson Valley will result in an undue concentration of control. We agree that the Commission has an independent obligation to consider whether a proposed pattern of radio ownership that complies with the local radio ownership limits would otherwise have an adverse competitive effect in a particular local radio market and thus, would be inconsistent with the public interest. 47 U.S.C.  309(a)(requiring the Commission to make a determination that the transfer or assignment of a broadcast license would be in the public interest). See KIXK, Inc., 13 FCC Rcd 15685 (1998). However, we find inadequate support for Stewart's claim that the proposed transactions would result in anticompetitive behavior. 9. In considering issues of radio concentration in its public interest analysis, the Commission generally looks at the advertising revenue share of the proposed combination in the relevant Arbitron radio metro market, as reported in the BIA Master Access Database. KIXK, Inc., supra. Of the five proposed co-owned stations in the radio combination at issue here, four are located in the Poughkeepsie Arbitron radio metro market: WRRB(FM), WEOK(AM), WPDH(FM), and WCZX(FM). The fifth station, WKNY(AM), Kingston, New York, is not located in any Arbitron radio metro market, and therefore, advertising revenues are not reported for WKNY(AM) in Poughkeepsie. Dyson currently owns WEOK(AM), WPDH(FM) and WCZX(FM), and these stations garner 40.2 percent of the radio advertising revenue in Poughkeepsie. Crystal's addition of WRRB(FM) in Poughkeepsie would result in a 1.7 percent increase in revenue share, and thus stations controlled by Dyson would receive 41.9 percent of the total radio advertising revenue in Poughkeepsie. This level of advertising revenue is consistent with levels previously approved in other cases. See, e.g., Shareholders of Citicasters, 11 FCC Rcd 19135, 19145 (1996)(combined radio advertising revenue share of 49.01 percent in Cincinnati). 10. Stewart asserts that the Commission's concentration analysis must take into account the additional stations in which Crystal has attributable interests, even though these stations do not have principal community contour overlap with the principal community contours of any of the stations in the proposed radio combination here. However, three of these stations WALL(AM), WRRV(FM), and WZAD(FM)-- are located in the Newburgh/Middletown (Mid-Hudson Valley) Arbitron radio metro market, which is separate from the Poughkeepsie Arbitron radio metro market. Thus, these stations would not be implicated in our concentration analysis. KIXK, supra. Although the radio advertising revenue for the fourth station, WPDA(FM), would be reported in the Poughkeepsie Arbitron radio metro, the station receives less than the threshold necessary for its advertising revenue to be reported in that market. Under these circumstances, even if we include this station in our analysis, it would not increase Crystal's share of Poughkeepsie advertising revenues. Moreover, Stewart has not presented other evidence which raises a substantial and material question of fact as to whether Dyson's ownership of these stations would have a competitive impact in Poughkeepsie and we discern none based on the record here. Accordingly, we find that grant of Crystal's acquisition of WKNY(AM) and WRRB(FM) is consistent with the public interest. 11. Stewart has filed a separate motion to request that we withhold action on his application for review pending the Department of Justice's review of his request for an investigation into Mr. Dyson's ownership of the stations discussed above. Included in this motion is anecdotal evidence which Stewart claims supports his assertion that Dyson requires advertisers to purchase a package of advertising time for multiple stations instead of time on individual stations. This was Stewart's second request to the Department of Justice. The Department reviewed Stewart's earlier request, which was submitted February 14, 1997. However, by letter dated March 4, 1997, the Antitrust Division of the Department of Justice informed Stewart's counsel that it had carefully considered the concerns and information provided to it and had "determined that [it] will not be taking any further investigative action." The Department of Justice has advised the Commission that it has informed Mr. Stewart that it does not intend to take any action on his latest request. Under these circumstances, Stewart's Motion to Hold in Abeyance will be dismissed as moot. 12. Thus, we find that Crystal's acquisition of WKNY(AM) and WRRB(FM) fully complies with the local radio ownership rules and, further, that that there is no basis on which to conclude that Crystal's ownership of these stations would adversely affect competition or diversity or otherwise would be contrary to the public interest. We therefore find that grant of the captioned applications is consistent with the public interest and affirm the staff's decision. 13. ACCORDINGLY, IT IS ORDERED, That pursuant to 47 C.F.R.  1.115(g), the Application for Review filed by Charles A. Stewart on September 15, 1997 is DENIED. IT IS FURTHER ORDERED That the Motion to Hold in Abeyance filed by Charles A. Stewart on November 14, 1997 IS HEREBY DISMISSED AS MOOT. FEDERAL COMMUNICATIONS COMMISSION Magalie Roman Salas Secretary