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ALBERT DAME  ,hh])ppFile Nos. BTC, BTCH  S'(Transferor)` `  ,hh])pp980617GN through GZ,  Sh'` `  ,hh])ppHA through HH  S5'and` `  ,hh])pp ` `  ,hh])  S' CLEAR CHANNEL  ,hh])  S ' COMMUNICATIONS, INC. ,hh])  Si '(Transferee)` `  ,hh]) ` `  ,hh])  S 'For Consent to Transfer of,hh])pp  S 'Control of Dame Media, Inc., ,hh])  S 'Licensee of ` `  ,hh]) ` `  ,hh])  S7'WGY(AM), Schenectady, New Yorkhh])  S'WRVE(FM), Schenectady, New Yorkhh])  S'WHRL(FM), Albany, New Yorkhh])  S'WADR(AM), Remsen, New Yorkhh])  Sk'WRFM(FM), Remsen, New Yorkhh])  S8'WUTQ(AM), Utica, New Yorkhh])  S'WOUR(FM), Utica, New Yorkhh])  S'WRNY(AM), Rome, New Yorkhh])  S'WSKS(FM), Rome, New York,hh]) ` `  ,hh])  S9'WNTJ(AM), Johnstown, Pennsylvaniahh])  S'WMTZ(FM), Johnstown, Pennsylvaniahh])  S'WHP(AM), Harrisburg, Pennsylvaniahh])  S'WKBO(AM), Harrisburg, Pennsylvania)  Sm'WWKL(AM), Harrisburg, Pennsylvania)  S:'WRBT(FM), Harrisburg, Pennsylvaniahh])  S'WRVV(FM), Harrisburg, Pennsylvaniahh])  S'WWKLFM, Harrisburg, Pennsylvaniahh])  S'WRAK(AM), Williamsport, Pennsylvania)  Sn'WKSB(FM), Williamsport, Pennsylvania)  S;'WRKK(AM), Hughesville, Pennsylvania)  S 'WMYL(FM), Salladasburg, Pennsylvania)  So"'  MEMORANDUM OPINION AND ORDER c  S$'X` hp x (#%'0*,.8135@8:',l(l(,,'" stations licensed to seven separate owners within the Harrisburg DMA. Additionally, according to Clear Channel the Harrisburg DMA is served by 33 cable operators with a combined penetration rate of 76% of the total TV households, seven daily newspapers and 21 weekly publications, two MMDS operators, and seven low power television stations.  S'Q Discussion c  S'  16. Local Radio Ownership Rules. We turn first to Clear Channel's compliance with the Commission's local radio ownership rules which impose restrictions on the number of radio stations in the same service and the number of radio stations overall that may be commonly owned in any given  S'local radio market. 47 C.F.R. 73.3555(a); see Implementation of Sections 202(a) and 202(b)(1) of  S'the Telecommunications Act of 1996, 11 FCC Rcd 12368 (1996). A local radio market is defined by the area encompassed by the mutually overlapping principal community contours of the stations proposed to be coowned. 47 C.F.R. 73.3555(a). 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 than 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; 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  S9'same service, except that no entity may control more than 50 percent of the stations in a market. Id. at 73.3555(a)(1). 17. Grant of the abovecaptioned transfer of control applications would result in Clear Channels acquisition of control of existing Dame station groups in several local radio markets. First, as a result of the merger Clear Channel would acquire Dame stations groups in a number of local markets in which Clear Channel controls no other radio stations. The Commission has previously reviewed and approved common ownership of these Dame groups under the local radio ownership rules. Clear Channel has submitted showings demonstrating that these groups continue to comply with the numerical limitations of the local radio ownership rules. We have determined that continued ownership of these station groups, located in the following areas, would comply with the local radio  S 'ownership rules: (1) RomeUtica, New York;#footnote reference# ! yO(' ! #C\  P6QQwP#э This group consists of stations WADR(AM) and WRFM(FM), Remsen, WUTQ(AM) and WOUR(FM), Utica, WRNY(AM) and WSKS(FM), Rome, New York.  (2) WilliamsportSalladasburg, Pennsylvania;)ffootnote reference)#footnote reference#  ! yO0' !x #C\  P6QQwP#э This group consists of stations WRAK(AM) and WKSB(FM), Williamsport, and WMYL(FM), Salladasburg, Pennsylvania. and (3)  S'WilliamsportHughesville, Pennsylvania.)3hfootnote reference) ( yON'#C\  P6QQwP#э This group consists of stations WRKK(AM), Hughesville and WKSB(FM), Williamsport, Pennsylvania. 18. In addition, the proposed merger would create new station groups in a number of local radio markets where Clear Channel already controls other radio stations. Clear Channel has submitted showings demonstrating that its prospective control of new station groups in the following areas complies with the numerical limitations of the local radio ownership rules: (1) SchenectadyCobleskill,  S'New York area; h yO\%' ! #C\  P6QQwP#э This group consists of stations WQBJ(FM), Cobleskill, WXCR(FM), Ballston Spa, WGY(AM) and WRVE(FM), Schenectady, New York, all of which have mutually overlapping principal community contours. (2) SchenectadyAlbanyRensselaer, New York;S Xp yO' !H #C\  P6QQwP#э This group consists of stations WGY(AM) and WRVE(FM), Schenectady, WHRL(FM), Albany, WTMM(AM)  ! and WQBK(FM), Rensselaer, and WXCR(FM) Ballston Spa, New York, all of which have mutually overlapping principal community contours.S (3) Harrisburg, Pennsylvania;D X yO`' !& #C\  P6QQwP#э This group consists of stations WHP(AM), WKBO(AM), WWKL(AM), WRBT(FM), WRVV(FM), and  !H WWKLFM, Harrisburg, and WLANFM, Lancaster, Pennsylvania, all of which have mutually overlapping principal community contours.D and " ,l(l(,,D"Ԍ S'(4) Lancaster, Pennsylvania.  yO' ! #C\  P6QQwP#э This group consists of stations WLAN(AM) and WLANFM, Lancaster, and WHP(AM), Harrisburg, Pennsylvania, all of which have mutually overlapping principal community contours. Based upon our independent review of the record in this case, with regard to the local radio ownership rules, we find no other circumstances that would preclude Clear Channels acquisition of control of Dame stations in the abovestated markets and thus conclude that these acquisitions would be consistent with the public interest.  S' 19. Local Marketing Agreement. Before considering Clear Channel's onetoamarket waiver requests, we must determine what weight, if any, we should accord Clear Channel's existing LMA with WLYHTV in assessing its onetoamarket waiver request in Harrisburg. Currently, television LMAs are not attributable to the brokering station, nor, taken alone, does the Commission consider them a "meaningful" relationship within the scope of the crossinterest policy. At present, therefore, we will not accord significance to Clear Channels existing television LMA in evaluating the Harrisburg, Pennsylvania, waiver request. We note, however, that we have proposed to attribute television LMAs to the brokering station where the stations involved are in the same market and the brokerage arrangement includes more than 15 percent of the brokered station's weekly broadcast  S6 'hours. Further Notice of Proposed Rulemaking, MM Docket Nos. 94150, 9251 and 87154, 11 FCC Rcd 19895, 1990809 (1996). Further, we have proposed that any LMA which would be attributable for duopoly rule purposes under this approach "would also count in applying our other ownership rules, including, for example . . . the onetoamarket rule (or radiotelevision crossownership rule)."  Sk'Id. (footnotes omitted). And, while we have proposed to grandfather those LMAs such as the  S9'LMA here that were entered into prior to the November 5, 1996, adoption date of the Second  S'Further Notice of Proposed Rulemaking, MM Docket Nos. 91221 and 878, 11 FCC Rcd 21655 (1996), we have also indicated that we would "reserve the right . . . to invalidate an otherwise grandfathered LMA in circumstances that raise particular competition and diversity concerns, such as  So'those that might be presented in very small markets."  Id. at 2169394. Our decision here in no way prejudges the resolution of LMA attribution in our pending ownership and attribution proceedings. Thus, if we establish final rules for attributing and grandfathering LMAs, we would also assess whether the class of transactions involving radio, television and LMA interests, such as those involved in this case, should be permitted to continue. Consistent with our treatment of transactions raising similar issues, we will condition the onetoamarket waiver we grant here on the outcome of these  S>'rule makings. See Altdoerffer, 12 FCC Rcd at 9948; AT&T Corporation, 13 FCC Rcd 4633, 4643  S '(MMB 1998); Paxson Communications Corporation, 12 FCC Rcd 19583, 19591 (MMB 1997).  S'20. OnetoaMarket Waivers. As to the first criterion, the potential public service benefits of joint ownership, the Commission considers the public service benefits that could result from the proposed radiotelevision combination, such as projected economies of scale, cost savings, program  S'and service benefits. Second Report and Order, 4 FCC Rcd at 1753. With respect to both the Albany and Harrisburg areas, Clear Channel demonstrates that the proposed combinations will create efficiencies resulting in significant cost savings and the potential for enhanced programming and service benefits. In both markets, Clear Channel plans to use the projected cost savings to enhance the"v ,l(l(,," programming of the stations involved in the combinations, to more effectively promote community events, and to strengthen the equal employment opportunity efforts of the stations involved. 21. As to the second factor, the types of facilities involved in the proposed combinations, in  S4'developing the casebycase test in the Second Report and Order, the Commission stated that it "will consider such factors as whether the proposed radioTV combination involves a UHF or VHF station  S'or an AM or FM radio station, as well as the size or the class of the stations involved." See  S'Shareholders of Citicasters, Inc., 11 FCC Rcd 19135, 19144 (1996) (citations omitted). Our independent analysis finds that, with respect to the Albany area waiver, there are three networkaffiliated VHF stations in the Albany DMA operating with superior facilities to WXXA(TV) and one commercial UHF station operating with comparable facilities. With respect to the radio stations, our independent analysis of the Albany television metro market shows that there is at least one fulltime Class A AM commercial station operating with facilities that are both comparable to WGY(AM) and superior to WTMM(AM). Additionally, there are at least three fulltime Class B AM commercial stations in the market operating with comparable facilities to WTMM(AM). With regard to the Class A FM stations involved in the proposed transaction WXCR(FM), WQBKFM, and WHRL(FM) our analysis shows that there are at least six comparable commercial stations and at least four commercial stations operating with superior facilities within the Albany television metro market. Likewise, with regard to the Class B FM stations involved in the proposed transactions WQBJ(FM) and WRVE(FM) our analysis shows that there are at least four comparable commercial FM stations within the relevant market. We therefore conclude that the technical capabilities of the proposed combination in the Albany area do not present issues of market dominance inconsistent with the public interest. 22. In the Harrisburg DMA, our independent analysis finds in addition to WHPTV there is one networkaffiliated VHF station operating with superior facilities and four other commercial UHF stations, two of which are networkaffiliated, operating with comparable facilities. With respect to the radio stations, our independent analysis of the Harrisburg television metro market finds that while no station has facilities superior to WHP(AM), WWKL(AM) or WLAN(AM), there are at least four other comparable Class A commercial AM stations. With regard to WKBO(AM), our analysis shows that there are at least four comparable commercial stations and at least six with superior facilities within the Harrisburg television metro market. Turning to the FM stations, we find that substantial competing facilities operate in the Harrisburg television metro market, including at least ten commercial stations with facilities comparable, but none with facilities superior, to those of WLANFM. Of these ten, nine have facilities that are comparable to, and one has superior facilities to, both WRBT(FM) and WRVV(FM), both Class B stations. Additionally, our independent analysis finds that there are at least five stations with comparable facilities and 10 with facilities superior to that of WWKLFM, a Class A station. We therefore conclude that the technical capabilities of the proposed combination in the Harrisburg area do not present issues of market dominance inconsistent with the  S>'public interest. > yO!' ! #C\  P6QQwP#э We note that although WWKLFM has an outstanding construction permit to modify facilities (File No. BPH ! 960821IC) and WKBO(AM) was, on August 20, 1998, granted a license to cover a construction permit for facilities  ! modification (File No. BL980522KD), we have independently verified that these modifications will not result in significant improvement to the technical facilities of these stations. 23. With respect to the third factor, Clear Channel owns no other media outlets in the Albany and Harrisburg markets. "r",l(l(,,""Ԍ24. Regarding the economic status of the stations involved in the combinations, according to Clear Channel none of these stations is experiencing financial difficulties. As we previously have  S'indicated, however, not all five factors need be present to justify grant of a waiver. See Second  Sh'Report and Order Recon., 4 FCC Rcd at 6491. Indeed, we have granted a number of onetoamarket  S6'waivers where there was no finding that any of the stations were in financial distress. See, e.g.,  S'Altdoerffer, 12 FCC Rcd at 9949; see also AT&T Corporation, 13 FCC Rcd at 4644; SE Licensee, GP 11 FCC Rcd at 16734. 25. Finally, under the fifth factor, we find that the proposed combination would not create undue concentration of ownership and control in either the Albany DMA (the 53rd largest) or the Harrisburg DMA (the 46th largest). 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  S 'and non-broadcast media.  yO ' !H #C\  P6QQwP#э As to the market definition within which to count the number of broadcast stations in the context of a onetoa ! market waiver, the Commission considers the relevant TV metro market for radio stations and the relevant ADI TV  {O ' ! market [Arbitron Area of Dominant Influence] for TV stations. Second Report and Order, 4 FCC Rcd at 1760  !. n.101. Since Arbitron no longer complies ADI data, however, we now accept showings using the Nielsen TV Metro  {O*' !D Market to count the number of radio stations and the Nielsen TV DMA to count the number of TV stations. See  {O' ! Media/Communications Partners, L.P., 10 FCC Rcd 8116 n.3 (1995); see also Further Notice of Proposed Rule  {O'Making, 10 FCC Rcd 3524, 3539 n.59 (1995). With respect to the Albany area, our independent analysis indicates that there are at least 35 commercial (15 AM and 20 FM) and 8 FM noncommercial radio stations serving the Albany television metro market. There are also three commercial VHF television stations and three commercial UHF television stations (one of which operates as a satellite) in the market. Additionally, the market is served by two noncommercial UHF television stations. After consummation of the proposed transaction, these 51 broadcast stations would be operated by 27  Sn'separate broadcast owners, or voices.  n yO' !Z #C\  P6QQwP#э Our independent analysis reveals that two stations listed by Clear Channel WBUGFM, Fort Plain and  ! WABT(FM) (formerly WXLE(FM)), Mechanicville, New York as being owned and operated by independent  ! "voices" in the market, are, in fact, each currently owned and operated by parties with other broadcast interests in the market, and thus do not count as separate and additional "voices."  Additionally, as Clear Channel notes, several other media  S;'outlets serve the market, including seven low power television stations, 12 daily newspapers,|X;  yO3' ! #C\  P6QQwP#э These include the following publications (listed with approximate circulations): The Albany Times Union  ! (98,000 weekday and 150,000 Sunday), The Schenectady Daily Gazette (56,000 daily), The Glens Falls PostStar (33,000 daily), and The Berkshire Eagle (31,000 daily).| and 29 weekly publications. We also note that the cable penetration rate for the Albany market has reached 74% of TV households and that the market is served by five MMDS/MDS operators. This level of  S'diversity is consistent with the level we have approved in previous conditional waiver requests. See,  Sp'e.g., North Idaho Broadcasting Co., 13 FCC Rcd 9489, 9494 (MMB 1998) (23 separate voices, 2  S>'daily newspapers, 62 % cable penetration in the 73rd ranked market); Paxson Communications  S 'Corporation, 12 FCC Rcd at 19594 (30 separate voices, 7 daily newspapers, and 75% cable  S'penetration in the 54th ranked market); S.E. Licensee, G.P., 11 FCC Rcd 16728, 16731 (1996) (27 separate voices, nine daily newspapers, 58.1% cable penetration in 42nd largest market). 26. In the Harrisburg area, our independent analysis finds that there are at least 40 commercial (20 AM and 20 FM) and 11 FM noncommercial radio stations licensed to communities" x ,l(l(,,"  S'within the Harrisburg television metro market. yOh' ! #C\  P6QQwP#э Although WRTL(FM), Ephrata, Pennsylvania, was included in Clear Channel's count, this station is a construction permit for a new facility that is not yet operational. There is also one commercial VHF television station and five commercial UHF television stations in the market. Additionally, the market is served by one noncommercial UHF television station. After consummation of the proposed transaction, these 58  Sg'broadcast stations would be operated by 39 separate broadcast owners, or voices.g  {O' ! #C\  P6QQwP#э The WRTL(FM) licensee was listed as an independent voice in Clear Channel's exhibit. See supra note 18.  !x Our independent analysis reveals that two stations listed by Clear Channel WQXAFM, York and WRKZ(FM),  ! Hershey, Pennsylvania (inadvertently listed as WKRZ, Elizabethtown) as being owned and operated by independent  ! "voices" in the market, are, in fact, each currently owned and operated by parties with other broadcast interests in the market, and thus do not count as separate and additional "voices." Furthermore, as demonstrated by Clear Channel, several other media outlets serve the market, including seven low  S'power television stations, seven daily newspapers  yO ' !x #C\  P6QQwP#э These include the following publications (listed with approximate circulations): The Harrisburg PatriotNews  ! (97,000 weekday and 164,000 Sunday), The Lancaster Intelligencer Journal/New Era (43,000 weekday morning,  ! 46,000 weekday evening, and 105,000 Sunday), and The York Daily Record/Dispatch (42,000 weekday morning, 40,000 weekday evening, and 92,000 Sunday). and 21 weekly publications, two MMDS operators, and 33 cable operators reaching 74% of the television households. As in the Albany market, the level  S'of diversity in the Harrisburg market is consistent with the level previously approved. See, e.g.,  Si'Paxson Communications Corporation, 12 FCC Rcd at 19594 (30 separate voices, 7 daily newspapers,  S7'and 75% cable penetration in the 54th ranked market); S.E. Licensee, G.P., 11 FCC Rcd 16728, 16731  S'(1996) (27 separate voices, nine daily newspapers, 58.1% cable penetration in 42nd largest market). 27. With respect to economic concentration and competition, we do not believe that the proposed transfer of control would unduly affect competition in either of the markets involved in the waiver requests. Our independent analysis indicates that WXXA(TV) garners 16.76 % of television advertising revenue in the Albany DMA, and the seven radio stations Clear Channel proposes to own have a combined 30.91% of the radio advertising revenues in the AlbanySchenectadyTroy Arbitron  S 'radio market.   yO ' ! #C\  P6QQwP#э Advertising revenue data for 1998 is obtained from BIA Publications, Inc.s Radio Master Access and Television Master Access databases. The radio stations and television station have a combined television and radio advertising revenue share of 21.6%. In the Harrisburg DMA, our independent analysis indicates that WHPTV earns 12.5% of the television advertising revenue. Clear Channel's proposed radio combination has a 31.83% share of the radio advertising revenues in the Harrisburg and Lancaster  S'markets.x"  yOF' !y #C\  P6QQwP#э Six of the radio stations Clear Channel proposes to own (WHP(AM), WKBO(AM), WRBT(FM),  !b WRVV(FM), WWKL(AM), and WWKLFM) are located in the HarrisburgLebanonCarlisle, Pennsylvania, Arbitron  ! radio market, and receive a combined 35.90% of the radio advertising revenue in that market. The two stations  ! already owned by Clear Channel, WLAN(AM) and WLANFM, in Lancaster, Pennsylvania, are located in the  !o Lancaster, Pennsylvania Arbitron radio market, and garner a combined 22.1% of the radio advertising revenue in that  ! market. The combined advertising revenue of these stations represents a weighted average of the revenues achieved by these stations in the Harrisburg and Lancaster Arbitron radio markets, as reported by BIA. See, e.g., SFX Broadcasting, Inc., 13 FCC Rcd 12366, 12385 n. 45 (1998). Together, the Clear Channel television and radio stations would garner 18.93% of the television and radio advertising revenue for the combined Harrisburg DMA, HarrisburgLebanonCarlisle Arbitron market, and Lancaster Arbitron market. The combined radio and television advertising revenue share represents the average of WHPTV's television advertising revenue share and Clear Channel's"  ,l(l(,," prospective radio stations' respective advertising revenue shares in the HarrisburgLebanonCarlisle  S'and Lancaster Arbitron radio markets. See SFX Broadcasting, 13 FCC Rcd at 1238586 n. 46. Both the combined televisionradio advertising revenue for the Albany area and for the Harrisburg area are  Sh'figures consistent with revenue levels approved in other conditional onetoamarket waivers. See,  S6'e.g., Shareholders of American Radio Systems Corporation, 13 FCC Rcd 12430, 1245354 (1998) (45.2% combined radio advertising revenue share and 23.2% combined television and radio advertising revenue share in Boston; 39.7 % combined radio advertising revenue share and 29.2% combined radio and television advertising revenue share in Baltimore; 32.3 % combined radio advertising revenue  Sk'share and 26.9 % combined radio and television advertising revenue share in Pittsburgh); NewCity  S9'Communications, Inc., 12 FCC Rcd 3929 (1997) (32% radio advertising revenue share and 29% combined television and radio advertising share in Orlando).  S '5 Conclusion c 28. Based on the record, we conclude that grant of the conditional waivers will result in economic efficiencies and facilitate enhanced public interest programming without having an undue adverse effect on competition or diversity in either the Albany market or the Harrisburg market. 29. Accordingly, IT IS ORDERED, That the request for a temporary waiver of the Commissions onetoamarket rule, Section 73.3555(c) to permit common ownership of stations WXXA(TV), Albany and WQBJ(FM), Cobleskill, WQBKFM and WTMM(AM), Rensselaer, and WXCR(FM), Ballston Spa, WGY(AM) and WRVE(FM), Schenectady, and WHRL(FM), Albany, New York, IS GRANTED subject to the outcome of the pending television ownership rulemaking  Sp'proceeding, Television Broadcast Ownership, Second Further Notice of Proposed Rule Making, MM Docket Nos. 91221 and 878, 11 FCC Rcd 21655 (1996). Should divestiture be required as a result of that proceeding, Clear Channel Communications, Inc. is directed to file an application for Commission consent to sell the necessary station(s) within six months from the release of the Orders in the proceeding. Should Clear Channel find it necessary to request an extension for any reason, it must make such request no fewer than 45 days before the end of the divestiture period. 30. IT IS FURTHER ORDERED, That the request for a temporary waiver of the Commissions onetoamarket rule, Section 73.3555(c) to permit common ownership of stations WHPTV, Harrisburg and WHP(AM), WKBO(AM), WRBT(FM), WRVV(FM), WWKL(AM), and WWKLFM, Harrisburg, and WLAN(AM) and WLANFM, Lancaster, Pennsylvania, IS GRANTED  S@'subject to the outcome of the pending television ownership rulemaking proceeding, Television  S'Broadcast Ownership, Second Further Notice of Proposed Rule Making, MM Docket Nos. 91221 and 878, 11 FCC Rcd 21655 (1996) and subject to the outcome of the pending broadcast attribution  S'proceeding, Attribution of Broadcast and Cable /MDS Interests, Further Notice of Proposed  Sw'Rulemaking, MM Docket Nos. 94150, 9251 and 87154, 11 FCC Rcd 19895 (1996). Should divestiture be required as a result of these proceedings, Clear Channel Communications, Inc. is directed to file an application for Commission consent to sell the necessary station(s) within six months from the release of the Orders in the proceeding. Should Clear Channel find it necessary to request an extension for any reason, it must make such request no fewer than 45 days before the end of the divestiture period. "$ ,l(l(,,$" 31. IT IS FURTHER ORDERED That, having found the applicants fully qualified and that grant of the applications would serve the public interest, the applications for transfer of control of Dame Media, Inc. from J. Albert Dame to Clear Channel Communications, Inc. (File Nos. BTC, BTCH980617GN through GZ and HA through HH), ARE HEREBY GRANTED. ` `  ,hh]FEDERAL COMMUNICATIONS COMMISSION ` `  ,hh]Roy J. Stewart  S'` `  ,hh]Chief, Mass Media Bureau#Xj\  P6G;XP#