Order MEMORANDUM OPINION AND ORDER SES-T/C-20131120-01154 Transfer of Control

Attachment Transfer of Control

Transfer of Control

MEMORANDUM OPINION AND ORDER

Order

2013-12-20

This document pretains to SES-T/C-20131120-01154 for Transfer of Control on a Satellite Earth Station filing.

IBFS_SESTC2013112001154_1213689

Federal Communications Commission DA 13-2423

Before the
Federal Communications Commission
Washington, D.C. 20554

In the Matter of )
) MB Docket No. 13-189
Applications for Consent to Transfer of Control )
from Shareholders of Belo Corp. to Gannett Co., ) File Nos. BTCCDT - 20130619AAY et seq.
Inc. )
)
Applications For Consent to Assignment of )
Licenses from Subsidiaries of Belo Corp. to )
Subsidiaries of Sander Media, LLC and Tucker )
Operating Co., LLC )
)
)
)
)
)

MEMORANDUM OPINION AND ORDER

Adopted: December 20, 2013 Released: December 20, 2013

By the Chief, Media Bureau

1. This Memorandum Opinion and Order grants applications for transfer of control of
subsidiaries holding television licenses from the Shareholders of Belo Corp. (“Belo”) to Gannett Co., Inc.
(“Gannett”) and applications for assignment of license from subsidiaries of Belo Corp. (“Belo”) to
subsidiaries of Sander Media Co., LLC (“Sander”) and Tucker Operating Co., LLC (“Tucker”).1 In
addition, it denies a petition from public interest groups asking us not to grant the Sander and Tucker
portions of the transaction, primarily on grounds related to our ownership rules. Finally, it denies a
petition from multichannel video programming distributors asking us to deny the Sander and Tucker
portions of the application on competition grounds.

2. The Commission, by the Chief, Media Bureau, pursuant to delegated authority, has before it for
consideration Applications for Consent to Transfer of Control (FCC Form 315) of various broadcast
television licenses from the Shareholders of Belo Corp. to Gannett Co., Inc.2 and Applications for
Consent to the Assignment (FCC Form 314) of the remaining Belo television licensee subsidiaries to

1
Collectively “Applicants.”
2
A complete list of the applications for Consent to Transfer of Control and the licenses is attached as Exhibit A
(“Transfer of Control Applications”).

Federal Communications Commission DA 13-2423

subsidiaries of Sander Media, LLC and Tucker Operating Co., LLC, respectively.3 The applications
propose to effectuate the Gannett-Belo Merger Agreement and other contemporaneous agreements.
Consolidated Petitions to Deny were filed by United Church of Christ Office of Communications, Inc.,
Free Press, National Association of Broadcast Employees and Technicians-Communications Workers of
America, The Newspaper Guild-Communications Workers of America, and Common Cause, through
their counsel, the Institute for Public Representation (collectively, “Public Interest Petitioners”), and by
American Cable Association, DIRECTV LLC, and Time Warner Cable (collectively, “MVPD
Petitioners”).4 Belo, Gannett, Sander, and Tucker opposed each Petition to Deny, and each petitioner
replied to the respective oppositions.5

I. THE TRANSACTION

3. On June 12, 2013, the Applicants entered into the three primary agreements that govern this
transaction: (1) the Merger Agreement by and among Belo, Gannett, and Gannett’s wholly-owned
subsidiary Delta Acquisition Corp. (“Delta”); (2) the Asset Purchase Agreement between Gannett and
Sander (“Sander APA”); and (3) the Asset Purchase Agreement between Gannett and Tucker (“Tucker
APA,” together, the “APAs”).6 Under the terms of the various agreements, there will be the
simultaneous merger of Delta into Belo, and the sale of certain Belo stations to Sander and Tucker.7 Once
the transactions are consummated, Sander will have acquired six of Belo’s stations, Tucker will have
acquired one, and Belo, with its remaining thirteen full-power stations, will be a wholly owned subsidiary
of Gannett.8 Under the terms of the agreements, the consummation of the Merger Agreement and the
APAs must occur simultaneously.9

4. Under section 73.3555(b)(2) of the Rules,10 two television stations licensed in the same
Nielsen Designated Market Area (“DMA”) that have Grade B11 overlap may be commonly owned if: (1)

3
A complete list of the applications for Consent of Assignment of Licenses and the licenses is included in Exhibit A
(“Assignment Applications”).
4
In addition to the formal petitions to deny, Maneesh Pangasa filed support for the Free Press petition to deny, in
addition to several news articles with accompanied commentary, which outline the transactions’ alleged public
interest harms.
5
On July 31, 2013, the staff announced “permit-but-disclose” ex parte status for this proceeding. Media Bureau
Announces Permit-but-Disclose Ex Parte Status for Applications Seeking to Transfer Control of Licenses from
Shareholders of Belo Corp. to Gannett Co., Inc. and For Applications Seeking to Assign Licenses from Subsidiaries
of Belo Corp. to Subsidiaries of Sander Media, LLC and Tucker Operating Co., LLC, DA 13-1666 (MB rel. July 31,
2013).
6
See WFAA-TV, Inc., Application for Transfer of Control of Entity Holding Broadcast Station Construction Permit
or License (FCC Form 315), WFAA(TV), File No. BTCCDT-20130619AAY, ID No. 72054, Exhibit 15A, at 1.
(“WFAA Application”).
7
Id.
8
Id.
9
Id.
10
47 C.F.R. § 73.3555(b)(2).
11
Since the digital transition, stations no longer have a Grade B contour. In these circumstances, absent substantial
evidence of relevant change in the service area of the stations whose analog contours conflict with the television
(continued....)

2

Federal Communications Commission DA 13-2423

II. PETITIONS TO DENY

8. Public Interest Petitioners. Public Interest Petitioners have not challenged the overall
transfer of control of the Belo stations, but have opposed the assignments in the markets where Belo and
Gannett currently have overlapping interests, in particular the sharing arrangements that would exist
between Gannett and Sander or Tucker. The purpose of these arrangements, according to the Public
Interest Petitioners, is to allow Gannett to influence or control media outlets in markets where purchase of
the outlet would otherwise violate Commission rules.23 In this case, Public Interest Petitioners maintain
that the Commission has never approved the use of such sharing arrangements in a situation where
common ownership would implicate the NBCO Rule.24 They argue that the arrangements would put
Gannett in control of the day-to-day decision-making of the Sander and Tucker stations.25 Public Interest
Petitioners also challenge the terms of the transaction in the five overlap markets, point out that physical
properties and certain station functions would be shared, and note that the stations would need to hire
fewer employees.

9. The Public Interest Petitioners “acknowledge that the Media Bureau has allowed similar
sharing arrangements in the past,” 26 but argue that the transactions in the five “overlap” markets would
not be in the public interest in this case because they would diminish “diversity of media voices,
competition among broadcasters, and localism.”27 They maintain that the transaction is harmful to
diversity because the sharing arrangements will reduce the number of independent voices available to the
public; that competition will be harmed because stations entering into such arrangements will not compete
for advertising and viewership; and that localism is diminished because fewer outlets will originate local
news content, and, thus, the stations will represent less of the public.28 Further, they maintain that such
arrangements lead to job losses and harm the quality of journalism. Thus, even though the arrangements
may comply with the rules and applicable precedent, they argue the agreements will frustrate or impair
the objectives of the Commission’s multiple and cross-ownership rules and should be denied under the
public interest standard. They acknowledge that many of these issues are being addressed in the
Commission’s pending 2010 Quadrennial Review of the Media Ownership Rules.29

10. The Public Interest Petitioners’ primary concern, with respect to the individual markets, is that
Gannett would have a role in a top-four affiliate and a strong local newspaper. In Phoenix, Public Interest
Petitioners contend that allowing the purchase of stations KASW(TV) and KTVK(TV) by Sander would
not only permit Gannett to own the major daily newspaper and a top-four affiliate, but also allow Gannett

23
Public Interest Petitioners Petition to Deny, MB Dkt. No. 13-189, at i (filed July 24, 2013).
24
Id. at 8.
25
Id. at 6-7.
26
Id. at 8.
27
Public Interest Petitioners Joint Reply to Opposition, MB Dkt. No. 13-189, at i.
28
Id.
29
Id. at 12-16. 2010 Quadrennial Regulatory Review – Review of the Commission’s Broadcast Ownership Rules
and Other Rules Adopted Pursuant to Section 202 of the Telecommunications Act of 1996; Promoting
Diversification of Ownership in the Broadcasting Services, Notice of Proposed Rulemaking, 26 FCC Rcd 17489
(2011) (“2010 Quadrennial Review of the Media Ownership Rules”).

5

Federal Communications Commission DA 13-2423

supply any programming; and in Phoenix and St. Louis, there are no JSAs.38 In Louisville and Portland,
Gannett states that the JSAs provide that Gannett will provide only up to 15% of the weekly programming
for Sander’s station. 39 Both Belo and Gannett argue that the attribution rules are clear and thus there is
no de novo issue raised by the fact that some of the service agreements involve Gannett’s newspapers.
Belo notes that, “[o]ver the past decade, . . . the Commission has continued to consider applications for
consent to television station transactions involving joint sales agreements, other types of shared services
agreements, options and similar contingent interests, and guarantees of third party debt financing, and has
routinely approved them because such agreements and interests are not attributable under existing
regulations.” 40 To the extent that Public Interest Petitioners argue that the agreements nonetheless
violate the public interest, Belo and Gannett argue that the appropriate forum is an industry-wide
rulemaking.

13. Gannett argues that its “acquisition of Belo’s stations…will allow Gannett to achieve
economies of scale and employ infrastructure that will support its mission of local public service and its
strong commitment to local journalism across all communities that its stations serve.”41 Gannett states
that, in those markets where Sander and Tucker are acquiring stations, the service arrangements will
enhance the ability of these small entities to compete and provide service to the public.42 According to
Gannett, Public Interest Petitioners’ argument that the agreements would result in loss of employment is
speculative, and, moreover, not relevant to whether grant of these applications would serve the public
interest.43

14. Both Sander and Tucker filed separate oppositions. Sander states that it will be owned by Jack
Sander, who has been working in the broadcast industry since 1965, including leadership positions in
local stations in Toledo, New Orleans, Phoenix, Atlanta, the corporate offices of Taft Broadcasting, and
more recently the position of Vice-Chairman of Belo, from which he retired in 2006.44 He has also served
as the President-Chairman of NBC Television Affiliates, Vice-Chairman of the Fox Board of Governors,
Chairman of the Television Bureau of Advertising, Chairman of Broadcast Music, Inc., Chairman of the
National Association of Broadcasters’ Joint Board, and a Member of Citadel Broadcasting’s Board of
Directors.45 Sander states that Jack Sander will use his experience, and his demonstrable service to local
broadcasting as evidenced by his many public statements, to improve service in the Phoenix, St. Louis,
Portland, Louisville, and Tucson markets.46
38
Gannett Opposition to Petition to Deny at 5-6.
39
Id.
40
Belo Opposition to Petition to Deny at 5 (citing Malara Broadcasting Group of Duluth Licensee LLC,
Memorandum Opinion and Order, 19 FCC Rcd 24070 (MB 2004); SagamoreHill of Corpus Christi Licenses, LLC,
Letter, 25 FCC Rcd 2809 (MB 2010); Piedmont Television of Springfield License LLC, Memorandum Opinion and
Order, 22 FCC Rcd 13910 (MB 2007)).
41
Gannett Opposition to Petition to Deny at 3-4.
42
Id. at 4.
43
Id. at 8, n. 18.
44
Sander Opposition to Petition to Deny, MB Dkt. No. 13-189, at 5 (filed August 8, 2013).
45
Id.
46
Id. at 5-6.

7

Federal Communications Commission DA 13-2423

15. Tucker, the proposed licensee of station KTTU(TV), Tucson, AZ, will be owned by Ben
Tucker, a “nearly 40-year veteran of the TV broadcast business.”47 According to Tucker, Ben Tucker has
long been an advocate of broadcast localism, as evidenced by his ownership of the licensee of station
WGTU(TV), Traverse City, Michigan, which had aired only very limited local news when Mr. Tucker
acquired it.48 Tucker states that the station subsequently entered into an SSA with Barrington
Broadcasting that allowed WGTU(TV) to introduce a full weeknight evening newscast in 2010, and that,
instead of being a rebroadcast, the newscast originated from station WGTU(TV) with its own news
staff.49

16. MVPD Petitioners. MVPD Petitioners challenge the Gannett – Sander/Tucker sharing
arrangements in the St. Louis, MO; Phoenix, AZ; and Tucson, AZ markets and state that the Commission
must either deny or condition the grants to prevent collusive arrangements affecting retransmission
agreements in the particular markets at issue.50 MVPD Petitioners allege that Gannett’s intention is to
“negotiate retransmission consent for multiple stations in a single DMA,” which will in turn drive up
retransmission consent fees.51 They conclude that the Commission should order the Applicants to
terminate any agreement that would result in one station being able to negotiate for both the Gannett and
Tucker and/or Sander stations in a particular market.52

17. Applicants assert that the MVPD Petitioners’ arguments should be addressed in the
Retransmission Consent Proceeding.53 Belo, for example, asserts that MVPD Petitioners’ “arguments
are nothing more than a stale and overblown rehash of policy positions they have advanced in the …
Commission’s ongoing proceeding concerning the retransmission consent negotiations.”54 Applicants
also collectively argue that MVPD parties have repeatedly been told by the Bureau that restrictions on
agency relationships in retransmission consent negotiations will not be adopted in proceedings addressing

47
Tucker Opposition to Petition to Deny, MB Dkt. No. 13-189, at 2 (filed August 8, 2013).
48
Id. at 3.
49
Id.
50
MVPD Petition to Deny at 9 – 14. MVPD Petitioners allege that the proposed sharing arrangements violate the
Sherman Act and therefore are not consistent with the Commission’s public interest standard. MVPD Petition to
Deny at 9-10. Gannett, in its reply, states that MVPD Petitioners’ antitrust argument “is speculative on its face and
does not form a valid basis for a petition to deny.” Belo Opposition to Petition to Deny at 14 (citing Acme
Television Licenses of Ohio, LLC 26 FCC Rcd 5198, 5199 n.6.). While antitrust violations may be considered in
certain circumstances, we find that this adjudicatory proceeding is not the proper forum to consider such allegations.
As we have already noted, the Department of Justice has undertaken its own review of the transaction.
51
MVPD Petition to Deny at 9 -12.
52
MVPD Petition to Deny at 13-14.
53
Tucker Opposition to Petition to Deny at 2, 9; Sander Opposition to Petition to Deny at 2, 8; Belo Opposition to
Petition to Deny at 3, 7-9; Gannett Opposition to Petition to Deny at 9-15; Amendment of the Commission’s Rules
Related to Retransmission Consent, Notice of Proposed Rulemaking, 26 FCC Rcd 2718 (2011) (“Retransmission
Consent Proceeding”).
54
Belo Opposition to Petition to Deny at 3 (citing Retransmission Consent Proceeding); see also Gannett
Opposition at 9.

8

Federal Communications Commission DA 13-2423

the assignment of television stations.55

18. In their reply, MVPD Petitioners object to Applicant’s contention that their retransmission
consent argument should be addressed only in the pending retransmission consent and media ownership
rulemakings and assert they are alleging transaction-specific harms ripe for review.56 In addition they
claim that their arguments are not identical to those presented by other parties in other broadcast
transactions, which were previously denied.57

III. DISCUSSION

19. Standing. Belo alleges that both Public Interest Petitioners and MVPD Petitioners
(collectively, “Petitioners”) lack the standing to be a “party in interest” qualified to file a petition to
deny.58 In regard to the Public Interest Petitioners, Belo states that the D.C. Circuit has previously
rejected a claim of organizational standing derived from “broad and conclusory assertions”59 and an
allegation that “common control of two licensees necessarily or even probably affects their
programming.”60 Belo then claims that the MVPD Petitioners’61 claims of economic harm are remote and
speculative and, therefore, inadequate to make a concrete showing that they are likely to suffer financial
harm.62 Furthermore, Belo states that neither Petitioner can demonstrate causation or redressability
because Sander and Tucker could enter into the very same types of agreements with each other, in the
very same markets, that they will enter into with Gannett.63

20. In their reply, the Public Interest Petitioners give multiple examples of concrete harms to the
public interest that they claim would result from grant of the applications, recited in the affidavits
attached to their petition to deny.64 Similarly, MVPD Petitioners have alleged specific competitive harms,
supported by affidavits, that they claim would occur if the transaction is approved.65 This is in contrast to

55
Sander Opposition to Petition to Deny at 6-8 (citing High Maintenance Broadcasting, LLC, FCC File No.
BALCDT-20120315ADD, rel. Aug. 28, 2012; ACME Television Licenses of Ohio, LLC, Letter, 26 FCC Rcd 5198
(2011); Free State Communications, LLC, Letter, 26 FCC Rcd 10310 (2011); ACME Television, Inc., Letter, 26
FCC Rcd 5189 (2011); see also Belo Opposition to Petition to Deny at 8-9; Gannett Opposition to Petition to Deny
at 11-13; Tucker Opposition to Petition to Deny at 9.
56
MVPD Reply at 2-4.
57
Id. at 5.
58
Belo Opposition to Petition to Deny at 9-10.
59
Id. (citing Rainbow/PUSH Coalition v. FCC, 30 F.3d 539, 544 (D.C. Cir. 2003)).
60
Id. at 545.
61
Time Warner does not claim to have standing and has joined in the MVPD Opposition to Petition to Deny as an
informal objector. MVPD Opposition to Petition to Deny at 8.
62
Belo Opposition to Petition to Deny at 10-11 (citing Pub. Citizen v. NHSTA, 489 F.3d 1293 (D.C. Cir. 2007);
KERM, Inc. v. FCC, 353 F.3d 57, 60-61 (D.C. Cir. 2004)).
63
Belo Opposition to Petition to Deny at 11.
64
Public Interest Petitioners Reply at 4-5.
65
See, e.g., MVPD Petition to Deny, Declaration of Ross J. Lieberman at para. 5, n.1.; MVPD Parties Petition to
Deny, Declaration of Linda Burakoff, Vice President, Programming Acquisitions, DIRECTV at para. 3.

9

Federal Communications Commission DA 13-2423

the speculative and conclusory assertions and the overall vagueness of the declarations that the Court
found inadequate in denying standing to the petitioners in Rainbow/Push Coalition.66 In light of the
detailed declarations provided by the parties, we find that Rainbow/Push is inapposite here. Furthermore,
we are unpersuaded by Applicant’s argument that there is no causation or redressability because Sander
and Tucker could enter into the same agreements in the same markets. We are required to review all of
the elements of the transaction before us to determine if it is in the public interest.67

21. We find that Public Interest Petitioners and MVPD Petitioners68 have standing. Both Public
Interest Petitioners and MVPD Petitioners have alleged that grant of the applications will have specific,
negative effects on their members, and they claim that those harms can be cured by dismissal or denial of
the applications. We find that denial of the Applicants’ applications would afford the Petitioners the
relief they seek, and the Petitioners therefore have standing.69

22. Standard of Review. Pursuant to Section 310(d) of the Communications Act (the “Act”), we
must determine whether the proposed applications for transfer of control and assignment of licenses
presently held and controlled by Belo Corp. will serve “the public interest, convenience, and necessity.”70
In making this determination, we must assess whether the proposed transaction complies with the specific
provisions of the Act, other applicable statutes, and the Commission’s Rules. If the transaction would
not violate a statute or rule, the Commission considers whether a grant could result in public interest
harms (by substantially frustrating or impairing the objectives or implementation of the Act or related
statutes) or public interest benefits. Where, as here, the Commission has adopted rules to promote
diversity, competition, localism, or other public interest concerns, those rules may form a basis for
determining whether the transfer and assignment applications are on balance in the public interest.

23. Our standard of review requires us to determine whether granting the proposed transactions is
in the public interest, in ruling on the applications. Our findings are based on the record before us, and
we must incorporate into our analysis issues raised by petitions to deny and other comments filed in this
proceeding. The Applicants bear the ultimate burden of demonstrating that the transaction (including the
grant of waivers, if any) is in the public interest.

24. The Commission applies a two-step analysis of any petition to deny opposing an application.
The Commission must first determine whether the petition contains specific allegations of fact sufficient
to show that granting the application would be prima facie inconsistent with the public interest.71 The first
step “is much like that performed by a trial judge considering a motion for directed verdict: if all the
supporting facts alleged in the [petition] were true, could a reasonable fact finder conclude that the

66
Rainbow/PUSH Coalition v. FCC, 30 F.3d 539, 544 (D.C. Cir. 2003).
67
47 C.F.R. § 310(d).
68
As noted above, Time Warner is an informal objector.
69
The other grounds for standing, such as the necessity of being a viewer-resident or the adequacy of declarations,
have not been challenged. See 47 U.S.C. § 309(d).
70
47 U.S.C. §310(d).
71
47 U.S.C. § 309(d)(1); Astroline Communications Co., Ltd. Partnership v. FCC, 857 F.2d 1556 (D.C. Cir. 1988)
(“Astroline”).

10

Federal Communications Commission DA 13-2423

ultimate fact in dispute had been established.”72 If the petition meets this first step, the Commission must
determine whether, “on the basis of the application, the pleadings filed, or other matters which [the
Commission] may officially notice,” the petitioner has raised a substantial and material question of fact as
to whether the application would serve the public interest.73 For the reasons discussed below, we find that
all of the Petitioners have failed to meet their burden.

25. Service Agreements in Overlap Markets. Section 310(d) of the Act prohibits the transfer of
control of a license, either de jure or de facto, without prior Commission consent. The Commission
analyzes de facto control issues on a case-by-case basis.74 In determining whether an entity has de facto
control of an applicant or a licensee, we have traditionally looked beyond legal title and financial interests
to determine who holds operational control of the station.75 The Commission, in particular, examines the
policies governing station programming, personnel, and finances. The Commission has long held that a
licensee may delegate day-to-day operations without surrendering de facto control, so long as the licensee
continues to set the policies governing these three indicia of control.76 Thus, entering into one or multiple
cooperative agreements with a same-market entity does not in itself indicate an unauthorized transfer of
control. All of the agreements contain provisions asserting that the relevant licensee, whether it be
Gannett, Sander, or Tucker, will control the operations of the station they own consistent with FCC rules.

26. The Commission’s rule-based attribution benchmarks, which are set forth in Note 2 to
Section 73.355 of the Commission’s rules77 and related precedent, have a slightly different purpose in that
they seek to identify those ownership interests that subject the holders to compliance with the multiple
and cross-ownership rules because they confer a degree “of influence or control such that the holders have
a realistic potential to affect the programming decisions of licensees or other core operating
functions.”78 The Commission has stated in the past that SSAs covering technical and other back-office
operations typically do not raise an issue under the Commission’s attribution rules. The Commission has
determined that the contingent interests applicable to all the overlap markets in this case, the guarantee
and option, are not attributable unless exercised.79 The considerations for such contingent interests are
included in the Commission’s Equity-Debt Plus (EDP) attribution standard, but in this case do not rise to
33% of the total asset value of the stations at issue, which would be necessary to find attribution.80 Thus,

72
Gencom, Inc. v. FCC, 832 F.2d 171, 181 (D.C. Cir. 1987) (“Gencom”).
73
Astroline, 857 F.2d at 1561; 47 U.S.C. § 309(e).
74
See Shareholders of Hispanic Broadcasting Corporation, Memorandum Opinion and Order, 18 FCC Rcd 18834,
18843 (2003); Chase Broadcasting, Inc., Memorandum Opinion and Order, 5 FCC Rcd 1642, 1643 (1990).
75
See WHDH, Inc., Memorandum Opinion and Order, 17 F.C.C.2d 856, 863 (1969), aff'd sub nom., Greater Boston
Television Corp. v. FCC, 444 F.2d 841 (D.C. Cir. 1970).
76
WGPR, Inc., Memorandum Opinion and Order, 10 FCC Rcd 8140, 8142 (1995); Choctaw Broadcasting Corp.,
Memorandum Opinion and Order, FCC Rcd 8534, 8539 (1997); Southwest Texas Broadcasting Council,
Memorandum Opinion and Order, 85 F.C.C.2d 713, 715 (1981).
77
47 C.F.R. § 73.3555, note 2.
78
Review of The Commission’s Regulations Governing Attribution of Broadcast and Cable/MDS Interests, Report
and Order, 14 FCC Rcd 12559, 12560 (1999), subsequent hist. omitted (“1999 Attribution Order”).
79
Id. at 1112.

11

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the arrangements are within, and do not approach, the limits we have previously set forth in our
attribution rulemakings governing individual financial interests.

27. There will be no programming component to the relationship between Gannett and Sander in
the Phoenix market as has become common in more recent SSAs. In Tucson, the existing SSA between
Raycom and Belo that Sander and Tucker will assume does provide for joint production of news
programming, but such programming is limited to 15% of weekly broadcasting time and thus is not
attributable under our rules. The Commission has approved applications for consent to television station
transactions involving a combination of joint sales agreements, other types of shared services agreements,
options and similar contingent interests, and guarantees of third-party debt financing, and has found these
cooperative arrangements not to rise to the level of an attributable interest.81 We find the combination of
interests presented here falls within those combinations previously approved.

28. As acknowledged by Public Interest Petitioners, we have also found that financial
arrangements more extensive than those at issue here do not to rise to an unauthorized transfer of de facto
control.82 The Commission has stated that it must determine based on the record whether a licensee’s
profits align with its operation of the station. In other words, we must determine whether a licensee has
the economic incentive to control its own programming.83 Public Interest Petitioners fail to raise a
substantial and material question of fact as to whether Sander and Tucker will have an economic incentive
to control programming. We note, in this regard, that advertising revenue will not be shared between

(...continued from previous page)
80
See, e.g., Review of the Commission’s Regulations Governing Attribution of Broadcast and Cable/MDS Interests,
Report and Order on Reconsideration, 16 FCC Rcd 1097, 1112 (2001).
81
See, e.g., Malara Broadcasting Group of Duluth Licensee LLC, 19 FCC Rcd at 24070 (SSA with programming
not to exceed 15% of weekly broadcast hours, JSA, Option, Lease of Facilities, and Guarantee of debt);
SagamoreHill of Corpus Christi Licenses, LLC. 25 FCC Rcd at 2809 (SSA with programming not to exceed 15% of
weekly broadcast hours, JSA with 30 % of revenues going to broker, Option, Studio Lease, Guarantee); Piedmont
Television of Springfield License LLC, 22 FCC Rcd at 13910 (SSA with programming not to exceed 15% of weekly
broadcast hours, JSA, Option, Studio Lease, Guarantee and sale of non-license assets to broker); Chelsey
Broadcasting Company of Youngstown, LLC, Letter, 22 FCC Rcd 13905 (Vid. Div 2007) (SSA with programming
not to exceed 15% of weekly broadcast hours, Option and Guarantee).
82
Public Interest Petitioners cite the Raycom Hawai’i Order. In that case, the broker held an SSA with a 15%
programming component, lease, Option, Term Loan Note, and, while not formally a JSA, the broker did lease
advertising employees to the licensee. KHNL License Subsidiary, LLC, Memorandum Opinion and Order, 26 FCC
Rcd 16087, 16089 (MB 2011) (“Raycom Hawai’i Order”).
83
Id. at 16093 (In determining financial control, concluded, “based on the entire record before us, that the payment
terms operate in a manner that aligns the profits arising from operation of the station with HITV's ownership and,
thus, HITV has had sufficient economic incentive to control programming aired on Station KFVE(TV).”); see also,
Shareholders of Ackerley Group, Inc., Memorandum Opinion and Order, 17 FCC Rcd 10828, 10841 (2002) (“2002
Ackerley Order”)(finding no economic incentive to control programming where broker programmed 15% of weekly
broadcast hours and retained 100% of revenue under JSA); SagamoreHill of Corpus Christi Licenses, LLC, 24 FCC
Rcd at 2810 (finding no unauthorized transfer of control where, “[i]n exchange for its sales representation, broker
will retain the lesser of the revenues it collects minus a set Base Rate, or 30% of all revenues”); Nexstar
Broadcasting, Inc., Letter, 23 FCC Rcd 3528, 3534 (Vid. Div. 2008) (finding no unauthorized transfer of control
where licensee receives “70% of all revenue attributable to commercial advertisements”).

12

Federal Communications Commission DA 13-2423

Gannett and Sander and/or Tucker in three of the five overlap markets.84 We find based on our review of
the terms of the agreements in these and the remaining two markets that Sander’s and Tucker’s profits
would align with their ownership of the stations in the overlap markets. With respect to programming and
personnel, even in those markets where there will be some programming relationship, the terms of the
various cooperative agreements are consistent with those approved in the past, and each station will have
enough personnel to meet the minimum staffing requirements of the Main Studio Rule.85 Of course,
applicants will be required to comply with any future rules, attribution standards, and/or procedural
requirements related to ownership and/or attribution.

29. The gravamen of Public Interest Petitioners’ petition, however, is that grant of the
applications in the five overlap markets will substantially frustrate the objectives of the multiple and
cross-ownership rules by harming competition, diversity, and localism, even though the transaction
complies with past precedent and the Commission’s rules. Public Interest Petitioners stress that the Act
requires a finding that a transaction serves the public interest, not merely that the transaction does not
violate our rules and shares particular factual elements with other transactions previously approved
relating to our attribution and control analysis. We find force to that contention. The parties to this
transaction have relied on an expectation, generated by prior decisions in the broadcast context, that
conformity of individual elements of the transaction to our rules and to other transactions previously
approved would warrant approval here.

30. At the same time, of course, Congress’ express statutory command is that license transfers
must satisfy the “public interest, convenience, and necessity,” a standard that is always informed by
regulatory standards, but which necessarily involves, as our licensing decisions have long noted, the use
of a “case-by-case” approach.86 Nor is the public-interest standard limited to the goals established by the
core antitrust laws.87 That is why applicants and interested parties should not forget that our public
interest mandate encompasses giving careful attention to the economic effects of, and incentives created
by, a proposed transaction taken as a whole and its consistency with the Commission’s policies under the
Act, including our policies in favor of competition, diversity, and localism.88

84
See, e.g., Raycom Hawai’i Order, 26 FCC Rcd at 16089 (Raycom, as broker, received 30% of revenue in addition
to a flat fee of $208,333 per month).
85
The Commission has long permitted brokers to place employees at brokered stations, as long as the licensee
complies with its obligation to retain ultimate control of station operations and maintains the minimum staffing
requirements set forth in the Main Studio Rule. 2002 Ackerley Order, 17 FCC Rcd at 10842; Shareholders of
Hispanic Broadcasting Corporation, 18 FCC Rcd at 18848.
86
Supra ¶¶ 22, 25, citing Shareholders of Hispanic Broadcasting Corporation, 18 FCC Rcd at 18843; Chase
Broadcasting, Inc., 5 FCC Rcd at 1643 (The Commission analyzes de facto control issues on a case-by-case basis).
87
See Clayton Antitrust Act, 15 U.S.C. § 18; 47 U.S.C. § 310(d).
88
As the Commission noted in the 1999 Attribution Order, the Commission “retain[s] discretion to review
individual cases that present unusual issues on a case-by-case basis where it would serve the public interest to
conduct such a review. Such cases might occur, for example, when there is substantial evidence that the combined
interests held are so extensive that they raise an issue of significant influence such that the Commission's multiple
ownership rules should be implicated, notwithstanding the fact that these combined interests do not come within the
parameters of the EDP rule.” 1999 Attribution Order, para. 44.

13

Federal Communications Commission DA 13-2423

31. Retransmission Consent. MVPD Petitioners assert that the joint negotiation of retransmission
consent agreements by separately owned broadcast television licensees in the same market harms cable
operators by reducing their bargaining power and that the Commission should act to prohibit it. This
issue is now before the Commission in the Retransmission Consent Proceeding and the 2010
Quadrennial Review of the Media Ownership Rules.89 Indeed, despite MVPD Petitioners' protest that
they are concerned solely with the likelihood of market- and transaction-specific harms,90 the evidence
they marshal in support of their position consists of reports and comments filed in the Retransmission
Consent Proceeding.91 We decline to address in this licensing order an issue posed in that rulemaking
proceeding, at the behest of parties that petitioned to commence it. Aside from the issue of joint
negotiation of retransmission consent agreements, MVPD Petitioners fail to demonstrate that the
proposed assignments and related cooperative agreements violate our rules or our policies as embodied in
precedent.

32. Current Renewals. It is Commission policy, in multi-station transactions, to grant transfer of
control applications while renewal applications are pending as long as there are no basic qualification
issues pending against the transferor or transferee that could not be resolved in the context of the transfer
proceeding, and the transferee explicitly assents to standing in the stead of the transferor in the pending
renewal proceeding.92 Some of the Belo licensees have applications pending before the Commission for
renewal of broadcast licenses.93 None of these renewals has petitions or other matters currently pending
that present a basic character qualification issue. Gannett has submitted a statement explicitly agreeing to
stand in the stead of the transferor in any renewal application that is pending at the time of the
consummation of the transfer.94 Therefore, we will apply the policy set out in Shareholders of CBS to
those applications. We recognize that other stations to be transferred to Gannett may need to file their
renewal applications prior to closing. This situation is also encompassed by the precedent established by
Shareholders of CBS.95
IV. ORDERING CLAUSES

33. We have reviewed the transfer of control and assignment applications, the petition to deny,
replies, and related filings. We conclude that the transferees and assignees are fully qualified to hold the
licenses, and that grant of the applications and overall transaction, as modified in the Consent Decree
entered into with the Department of Justice, will serve the public interest, convenience, and necessity.
34. ACCORDINGLY, IT IS ORDERED, that the petitions to deny jointly filed by United Church
of Christ Office of Communications, Inc.; Free Press; National Association of Broadcast Employees and
89
Retransmission Consent Proceeding, 26 FCC Rcd 2718; 2010 Quadrennial Review of the Media Ownership
Rules, 26 FCC Rcd 17489.
90
MVPD Reply at 3-4, 13.
91
MVPD Petition to Deny at nn.33, 34.
92
Shareholders of CBS Corporation, Memorandum Opinion and Order, l6 FCC Rcd 16072, 16072-73 (2001).
93
Stations WFAA(TV), Dallas, TX; KHOU(TV), Houston, TX; WCNC-TV, Charlotte, NC; W30CR-D, Biscoe,
NC; W24AY-D, Linesville/ Wadesboro, NC; WVEC(TV), Hampton, VA; WWL-TV, New Orleans, LA.
94
WFAA-TV Application, Exhibit 15A, at 5.
95
See Cumulus Media, Inc. and Citadel Broadcasting Corp., Memorandum Opinion and Order, 26 FCC Rcd 12956,
12959 (2011).

14

Federal Communications Commission DA 13-2423

Technicians-Communications Workers of America; The Newspaper Guild-Communications Workers of
America; and Common Cause, through their counsel, the Institute for Public Representation and jointly
by American Cable Association, DIRECTV LLC, and Time Warner Cable ARE DENIED.

35. IT IS FURTHER ORDERED, that the Applications for Consent to Transfer of Control of
various broadcast television licensee subsidiaries of Belo Corp. from the Shareholders of Belo Corp. to
Gannett Co., Inc. (“Gannett”)96 and Applications for Consent to the Assignment of the remaining Belo
television licensee subsidiaries to subsidiaries of Sander Media, LLC and to Tucker Operating Co., LLC
respectively,97 pursuant to Part 73 of the Commission’s Rules, are GRANTED.

36. These actions are taken pursuant to Section 0.61 and 0.283 of the Commission’s rules, 47
C.F.R. §§ 0.61, 0.283, and Sections 4(i) and (j), 303(r), 309, and 310(d) of the Communications Act of
1934, as amended, 47 U.S.C. §§ 154(i), 154(j), 303(r), 309, 310(d).

FEDERAL COMMUNICATIONS COMMISSION

William T. Lake
Chief
Media Bureau

96
A complete list of the applications for Consent of Transfer of Control and the licenses is attached as Exhibit A
(“Transfer of Control Applications”).
97
A complete list of the applications for Consent of Assignment of Licenses and the licenses is included in Exhibit
A (“Assignment Applications”).

15

Federal Communications Commission DA 13-2423

Exhibit A
Fac. Assignor/ Application
Station ID Community Transferor Assignee/ Transferee Number
Sander Operating Co. II
KASW-TV, LLC D/B/A KTVK BALCDT-
KASW(TV) 7143 Phoenix, AZ Inc. Television 20130619AFJ
Sander Operating Co. II
LLC D/B/A KTVK BALCDT-
KTVK (TV) 40993 Phoenix, AZ KTVK, Inc. Television 20130619AFA
Sander Operating Co. II
LLC D/B/A KTVK BALCDT-
K11LC-D 2756 Prescott, AZ KTVK, Inc. Television 20130619AFB
Sander Operating Co. II
Cottonwood, LLC D/B/A KTVK BALCDT-
K38AI-D 2754 AZ KTVK, Inc. Television 20130619AFC
Sander Operating Co. II
Williams- LLC D/B/A KTVK BALCDT-
K15HY 5323 Ashfork, AZ KTVK, Inc. Television 20130619AFD
Sander Operating Co. II
LLC D/B/A KTVK BALCDT-
K25MG-D 2753 Flagstaff, AZ KTVK, Inc. Television 20130619AFE
Sander Operating Co. II
Globe & LLC D/B/A KTVK BALCDT-
K14NA-D 13087 Miami, AZ KTVK, Inc. Television 20130619AFF
Prescott- Sander Operating Co. II
Cottonwood, LLC D/B/A KTVK BALCDT-
K34EE-D 56142 AZ KTVK, Inc. Television 20130619AFG
Sander Operating Co. II
Williams- LLC D/B/A KTVK BALCDT-
K41JE 126160 Ashfork, AZ KTVK, Inc. Television 20130619AFH
St. Louis, KMOV-TV, Sander Operating Co. BALCDT -
KMOV(TV) 70034 MO INC. IV, LLC 20130619AEZ
King
Broadcasting Sander Operating Co. BALCDT -
KGW(TV) 34874 Portland, OR Company III, LLC 20130619AFN
King
Broadcasting Sander Operating Co. BALCDT -
K48MP-D 34851 Corvallis, OR Company III, LLC 20130619AFO
King
Broadcasting Sander Operating Co. BALCDT -
K29AZ-D 34865 Newport, OR Company III, LLC 20130619AFP
King
Tillamook, Broadcasting Sander Operating Co. BALCDT -
K40EG 34881 OR Company III, LLC 20130619AFQ
King
Prineville, Broadcasting Sander Operating Co. BALCDT -
K46AK-D 34864 etc., OR Company III, LLC 20130619AFR

16

Federal Communications Commission DA 13-2423

King
The Dalles, Broadcasting Sander Operating Co. BALCDT -
K25KS-D 34844 OR Company III, LLC 20130619AFS
King
Grays River, Broadcasting Sander Operating Co. BALCDT -
K35HU-D 34870 WA Company III, LLC 20130619AFT
King
Broadcasting Sander Operating Co. BALCDT -
K17HA-D 130923 Astoria, OR Company III, LLC 20130619AFU
King
Broadcasting Sander Operating Co. BALCDT -
KGWZ-LD 30810 Portland, OR Company III, LLC 20130619AFV

Louisville, Belo Kentucky,Sander Operating Co. I, BALCDT -
WHAS-TV 32327 KY Inc. LLC 20130619AFM
KMSB-TV, Sander Operating Co. V, BALCDT -
KMSB(TV) 44052 Tucson, AZ Inc. LLC 20130619AFL
Tucker Operating Co., BALCDT -
KTTU(TV) 11908 Tucson, AZ KTTU-TV, Inc. LLC 20130619ADJ

Shareholders of BTCCDT -
WFAA(TV) 72054 Dallas, TX Belo Corp. Gannett Co., Inc. 20130619AAY
Shareholders of BTCCDT -
KHOU(TV) 34529 Houston, TX Belo Corp. Gannett Co., Inc. 20130619AAW
Shareholders of BTCCDT -
KING-TV 34847 Seattle, WA Belo Corp. Gannett Co., Inc. 20130619AAZ
Coeur Shareholders of BTCCDT -
K41FJ-D 34861 D'Alene, ID Belo Corp. Gannett Co., Inc. 20130619ABB
Wenatchee, Shareholders of BTCCDT -
K45AC 34873 WA Belo Corp. Gannett Co., Inc. 20130619ABC
Shareholders of BTCCDT -
K21CC 50532 Lewiston, ID Belo Corp. Gannett Co., Inc. 20130619ABD
Twin Falls, Shareholders of BTCCDT -
KTFT-LD 167056 ID Belo Corp. Gannett Co., Inc. 20130619ABF
Cambridge, Shareholders of BTCCDT -
K05DC 34875 Etc., ID Belo Corp. Gannett Co., Inc. 20130619ABG

Glenns Ferry, Shareholders of BTCCDT -
K16JE-D 188132 ID Belo Corp. Gannett Co., Inc. 20130619ABH

Shareholders of BTCCDT -
K26LE-D 34884 Cascade, ID Belo Corp. Gannett Co., Inc. 20130619ABI
McCall &
New Shareholders of BTCCDT -
K15IO-D 34869 Meadows, ID Belo Corp. Gannett Co., Inc. 20130619ABJ

17

Federal Communications Commission DA 13-2423

Shareholders of BTCCDT -
K23KY-D 11446 Council, ID Belo Corp. Gannett Co., Inc. 20130619ABK

Shareholders of BTCCDT -
KONG(TV) 35396 Everett, WA Belo Corp. Gannett Co., Inc. 20130619AAM

Charlotte, Shareholders of BTCCDT -
WCNC-TV 32326 NC Belo Corp. Gannett Co., Inc. 20130619AAS
Shareholders of BTCCDT -
W30CR-D 32317 Biscoe, NC Belo Corp. Gannett Co., Inc. 20130619AAT
Lilesville/
Wadesboro, Shareholders of BTCCDT -
W24AY-D 32316 NC Belo Corp. Gannett Co., Inc. 20130619AAU

San Antonio, Shareholders of BTCCDT -
KENS(TV) 26304 TX Belo Corp. Gannett Co., Inc. 20130619AAP

Hampton, Shareholders of BTCCDT -
WVEC(TV) 74167 VA Belo Corp. Gannett Co., Inc. 20130619AAR

Shareholders of BTCCDT -
KVUE(TV) 35867 Austin, TX Belo Corp. Gannett Co., Inc. 20130619AAV
Shareholders of BTCCDT -
WUPL(TV) 13938 Slidell, LA Belo Corp. Gannett Co., Inc. 20130619AAN
New Orleans, Shareholders of BTCCDT -
WBXN-CA 70419 LA Belo Corp. Gannett Co., Inc. 20130619AAO
New Orleans, Shareholders of BTCCDT -
WWL-TV 74192 LA Belo Corp. Gannett Co., Inc. 20130619AAQ
Spokane, Shareholders of BTCCDT -
KREM(TV) 34686 WA Belo Corp. Gannett Co., Inc. 20130619ABA
Spokane, Shareholders of BTCCDT -
KSKN(TV) 35606 WA Belo Corp. Gannett Co., Inc. 20130619AAX
Shareholders of BTCCDT -
KTVB(TV) 34858 Boise, ID Belo Corp. Gannett Co., Inc. 20130619ABE

18

Document Created: 2017-05-04 11:29:21
Document Modified: 2017-05-04 11:29:21

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