Duopoly rule revisions proposed


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The FCC has begun a rulemaking proceeding to revise the definition of radio market and/or the method of counting the number of stations in a market for purposes of its duopoly rule. This attempt to narrow the definition of a market and decrease the number of stations counted in a market will likely reduce the number of stations that can be commonly owned in many markets.

Arbitron Definition. The FCC outlined alternative proposals in lieu of the current contour overlap standard. One is to use Arbitron radio market definitions. The FCC noted that 850 counties, containing 80% of the US population, are included in Arbitron radio markets, while 2,250 counties are not in any Arbitron market. Arbitron market definitions, the FCC said, may best reflect the actual numbers of stations and how many stations an applicant would control in a market.

Alternatives. The following methods for defining radio markets and counting the stations within them are proposed in the FCC's notice:

  • Counting against an applicant's ownership allowance any station it owned in a market that was included in determining how many stations were in the market.

  • Excluding from the count of the number of stations in a market any stations owned by an applicant except the commonly owned stations that form the market.

  • Counting as being in a market only those stations whose principal community contours overlap or intersect the overlap area of the principal city contours of the stations whose ownership is to be merged.

  • Counting only those stations that overlap a certain percentage of the contour of one or more mutually overlapping station.

The Current Standards. Currently, the FCC defines a market as the area within the combined overlapping principal community contours of the stations that will be commonly owned. The number of stations in a market is determined by counting all the stations whose principal community contours overlap the principal community contour of any market-defining station. In determining the number of stations an owner is deemed to posess, the FCC counts only those stations whose principal community contours overlap that part of the market where the principal community contours of all the stations that define the market actually overlap. This difference between the method of counting the number of stations in a market and the method of counting the number of stations an entity owns in the market has led to greater aggregation of stations in some markets than some of the current FCC commissioners believe the law permits.

Interim Processing. The FCC will delay, until after new rules are adopted, action on all pending and future assignment and transfer applications where the method used to count the stations the applicants own in the market affects whether the applications can be granted. The FCC proposed not to apply counting methodology changes retroactively to existing ownership combinations, so existing owners would not be required to sell stations. However, owners of existing combinations that transgress any new rules may not be able to sell them to a new owner as a group.

The outcome of the market definition rulemaking may be affected by the transition to a Republican-controlled FCC. As the statements of Commissioners Powell (perhaps the new FCC Chairman) and Furchgott-Roth in the rulemaking make clear, Republican commissioners are highly unlikely to roll back ownership rule deregulation in any significant manner.

FCC fines tower owners

A Puerto Rico company has been fined $10,000 for failing to monitor lighting on its antenna structure. This situation involved a tower at a remote location where the licensee was unaware of the lighting outage. Rejecting the argument that the antenna's location did not allow it to be monitored regularly, the FCC noted that its rules require tower owners to “make an observation of the antenna structure's lights at least once every 24 hours either visually or by observing an automatic, properly maintained indicator.”

The FCC also notified 21 antenna operators of violations of the antenna structure registration posting requirement, which requires antenna structure owners to post the FCC-issued antenna structure registration number in a conspicuous place near the base of the antenna structure. The FCC further requires that materials used to display this number must be (1) weather resistant and (2) of a sufficient size to be easily seen at the base of the antenna structure.


Harry Martin is an attorney with Fletcher, Heald & Hildreth, PLC., Arlington, VA. E-mail martin@fhh-telcomlaw.com.


Dateline

On or before April 1, 2001, stations in the following states must file their biennial ownership reports with the FCC: Delaware, Indiana, Kentucky, Pennsylvania, Tennessee and Texas. Stations in the same states must place their first annual EEO Public File Reports in their public files, also on April 1.

April 10, 2001 is the deadline for all stations to place in their public files their issues/programs lists for January 1 to March 30.




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