*Pages 1--1 from  Microsoft Word - 5411.doc*
 December  7,  2000 
 Separate  Statement  of  Commissioner  Susan  Ness 
 Re:  In  the  Matter  of  Definition  of  Radio  Markets,  Notice  of  Proposed  Rulemaking 


 The  Commission’s  current  method  of  defining  local  radio  markets  suffers  from  a 
 number  of  flaws  that  can  and  should  be  remedied  in  this  proceeding.  That  said,  I  fear  that 
 the  final  rules  we  issue  may  be  the  gilded  padlock  on  the  proverbial  barn  door,  with  the 
 horse  of  consolidation  galloping  over  the  horizon. 


 As  this  Notice  points  out,  current  radio  market  definition  methods  use  different 
 contour  overlap  schemes  to  define  commonly  owned  stations,  on  the  one  hand,  and  total 
 stations  in  a  market,  on  the  other,  often  leading  to  uneven  results  that  bear  no 
 resemblance  to  market  realities.  For  example,  under  our  current  contour  overlap  method, 
 two  competing  groups  operating  in  the  same  city  may  be  limited  by  two  different  station 
 caps.  Since  the  Commission  first  implemented  the  radio  ownership  changes  mandated  by 
 Congress,  see  In  Re:  Implementation  of  Sections  202(  a)  and  202(  b)(  1)  of  the 
 Telecommunications  Act  of  1996,  11  FCC  Rcd  12368  (1996),  I  have  highlighted  the  need 
 to  remedy  this  problem,  see,  e.  g.,  Joint  Statement  of  Commissioners  Susan  Ness  and 
 Gloria  Tristani,  KBYB(  FM),  El  Dorado,  Arkansas,  13  FCC  Rcd  15685  (1998).  Over  the 
 last  four  years,  however,  the  radio  broadcast  industry  has  consolidated  considerably,  with 
 transactions  consummated  under  our  current,  flawed  system  of  defining  markets.  I  hope 
 we  can  quickly  conclude  this  proceeding  so  that  we  do  not  compound  the  problem  with 
 further  delay. 


 I  also  believe  that,  in  the  spirit  of  improving  the  law,  we  should  be  mindful  of  the 
 law  of  unintended  consequences.  Any  remedy  we  adopt  must  be  applied  prospectively 
 and  fairly,  with  cognizance  of  the  reasonable  market  expectations  of  parties  who  hold 
 combinations  lawfully  assembled  under  our  existing  rules.  Finally,  whatever  definition 
 we  adopt  should  be  consistent  with  the  intent  of  Congress  in  the  Telecommunications  Act 
 of  1996  in  relaxing  radio  ownership  restrictions. 
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