120 UNIVERSITY OF ILLINOIS LAW REVIEW [Vo to take evidence on the question of the licensee's fitness and character. Before that hearing take place, the licensee may arrange to sell the license to a minority purchaser for not more than seventy-five percent of fair market value In return for that Investment minority purchaser receives w clean" license. 9 The Commission implemented the distress sale policy to further the goal of [full minority participation in the ownership and management of broadcast facilities [that] re sults in a more di verse selection of programming. The Commission has not extended the distress sale policy to female pur- chasers The final policy, tax certificates, was designed to increase minority ownership and management of broadcast facilities, thereby diversifying the pro- gramming available to the public. Under the tax cer tificate policy, the Commission granted the seller of a license a tax certificate when the seller trans ferred a station to parties with a significant mi- nority interest. "o3 Via the tax certificate, the seller was permitted to defer any capital gain tax the sale, provided that the monies were reinvested within a certain time. 04 Because of the clear ta benefits,[t]his policy gave the seller a substan tial incentive to seek out qualified minority buyers and accept offers from minority buyers even where the minorities offered less money than prospective white 97. See Statement of Policy on Minority Ownership of Broadcast Facili- 68F 2dat981; also Jeff Dubin Matthew L. Spitzer, Testing Minority Preferences in Broadcasting, 68 S. CAL. L. REV. 841, 845(1995) 98. Dubin Spitzer, supra note 97, at 845 00. Statement of Policy on Minority dcast Facili 68 E.C.C. 2d at 981. of course, there is no empirical data to support that con- 101 ee petition for nce of Policy Statement or Notice of Inquiry National Telecommunications and Information Administration, 69 F.C.c 1591, 1593 n9(1978)(memorandum opinion and order) ("[w]e have not con t the historical and anagement suffered by omen is of the same order, or has the same contemporary consequences, which ould justify inclusion of a majority of the nation's population in a pref erential category defined by the presence of minority groups 102. See Statement of Policy on Minority Ownership of Broadcast Facili 68F.C.C.2dat983 103.Id.;seea1so26U.s.C.s1071(1994) 104. See Statement of Policy on Minority Ownership of Broadcast Facili- F.C. C. 2d at 983
KROTO.DOC 12/07/00 9:35 AM 120 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 to take evidence on the question of the licensee’s fitness and character.97 Before that hearing takes place, “ the licensee may arrange to sell the license to a minority purchaser for not more than seventy-five percent of fair market value.” 98 In return for that investment, the minority purchaser receives a “ clean” license.99 The Commission implemented the distress sale policy to further the goal of “ [f]ull minority participation in the ownership and management of broadcast facilities [that] results in a more diverse selection of programming.” 100 The Commission has not extended the distress sale policy to female purchasers.101 The final policy, tax certificates, was designed to increase minority ownership and management of broadcast facilities, thereby diversifying the programming available to the public.102 Under the tax certificate policy, the Commission granted the seller of a license a tax certificate when the seller transferred a station to “ parties with a significant minority interest.” 103 Via the tax certificate, the seller was permitted to defer any capital gain tax on the sale, provided that the monies were reinvested within a certain time.104 Because of the clear tax benefits, “ [t]his policy gave the seller a substantial incentive to seek out qualified minority buyers and accept offers from minority buyers even where the minorities offered less money than prospective white 97. See Statement of Policy on Minority Ownership of Broadcast Facilities, 68 F.C.C.2d at 981; see also Jeff Dubin & Matthew L. Spitzer, Testing Minority Preferences in Broadcasting, 68 S. CAL. L. REV. 841, 845 (1995). 98. Dubin & Spitzer, supra note 97, at 845. 99. See id. 100. Statement of Policy on Minority Ownership of Broadcast Facilities, 68 F.C.C.2d at 981. Of course, there is no empirical data to support that conclusion. 101. See Petition for Issuance of Policy Statement or Notice of Inquiry by National Telecommunications and Information Administration, 69 F.C.C.2d 1591, 1593 n.9 (1978) (memorandum opinion and order) (“ [W]e have not concluded that the historical and contemporary disadvantagement suffered by women is of the same order, or has the same contemporary consequences, which would justify inclusion of a majority of the nation’s population in a preferential category defined by the presence of ‘minority groups.’” ). 102. See Statement of Policy on Minority Ownership of Broadcast Facilities, 68 F.C.C.2d at 983. 103. Id.; see also 26 U.S.C. § 1071 (1994). 104. See Statement of Policy on Minority Ownership of Broadcast Facilities, 68 F.C.C.2d at 983
No.3] ENHANCING THE SPECTRUM 121 purchasers. 105 As with the distress sale program, the tax certificate program when in force did not apply to 106 In 1995, Congress repealed the statutory pro vision authorizing the issuance of tax certificates to date, Congress has not passed legislation reinstat ng the availability of the tax certificate program. o 2. Outlet Diversity The Commission has imposed seve estriction on broadcaster may own or control. 0g E, the number and combination of st that any one e restrictions include the duopoly rule, the one-to-a market rule,o the daily newspaper/radio cross-ownership a note 86, at 299-300 07. See Bill McConnell, Push for Minority Tax Certificates, BROADCASTING CABLE, Mar. 29, 1999, at 9, 9. Commissioner Michael Powell and Senator John McCain currently t legislation to revive the minority tax certificat program. See Paige Albiniak Bill McConnell, McCain Floats Tax Certificate Draft, BROADCASTING CABLE, Sept. 20, 1999, at 22, 22: David Hatch, McCa in Un veils Tax Certificate Plan, ELECTRONIC MEDIA, Apr. 26, 1999, at 4, 27 08.See47c.F.R.s73.3555(1998) 109. This rule formerly stated w that a party may not own trol two or more broadcast television stations with overlapping Grade B 1 contouRs (para. 9)(quoting 47 C.F.R. 5 73.3555(b)(1998)). This effectively meant that a single entity could not own or control two television stations within the same community, or in closely neighboring communities (e. g, Wash ington, D. C. and Baltimore, Maryland). The Commission repealed the duopoly rule in August 1999, and replaced it with a "two-to-a-market" rule,pro- rided that certain conditions are satisfied. Under the new rules, a single ntity may own or control two television stations in the same market if the second station is not among the top four stations in ratings and the market as at least eight separately owned stations. See 47 C.F.R. 5 73.3555 (1998): Broadcast Television National Ownership Rules, Review of the Commis tions Review of Policy and Rules, 14 F.C. C.R. 12, 903, 12, 907-12, 12,975- 77(paras. 8 B)(report and order) (1999). The Commmission will also ermit a single entity to own or control two television stat in a market if the second station has failed or remains unbuilt notwith- standing the issuance of a valid license and construction permit. See 47 C.E.R. S 73.3555 n7(1998): Broadcast Television National Ownership Rules, eview of the Cammission's Regulations Governing Television Broadcasting Television Satellite station R of Policy and Rules, 14F.CCR.at 12,954-58( Daras.115-25) 110. Prior to August 1999, this enerally prohibit [ed] the commo wnership of a television and radio in the same mar 1998 Bien- supra note 18 s73.3555(c In 1989, the ion amended this rule to stat that it would look favorably on requests for waiver of the restrictions in the failed station. Case-by-case review of a waiver of request is also
KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 121 purchasers.” 105 As with the distress sale program, the tax certificate program when in force did not apply to women.106 In 1995, Congress repealed the statutory provision authorizing the issuance of tax certificates; to date, Congress has not passed legislation reinstating the availability of the tax certificate program.107 2. Outlet Diversity The Commission has imposed several restrictions on the number and combination of stations that any one broadcaster may own or control.108 These restrictions include the “ duopoly” rule,109 the “ one-to-a market” rule,110 the daily newspaper/radio cross-ownership 105. Id. at 981. 106. See Spitzer, supra note 86, at 299-300. 107. See Bill McConnell, Push for Minority Tax Certificates, BROADCASTING & CABLE, Mar. 29, 1999, at 9, 9. Commissioner Michael Powell and Senator John McCain currently support legislation to revive the minority tax certificate program. See Paige Albiniak & Bill McConnell, McCain Floats Tax Certificate Draft, BROADCASTING & CABLE, Sept. 20, 1999, at 22, 22; David Hatch, McCain Unveils Tax Certificate Plan, ELECTRONIC MEDIA, Apr. 26, 1999, at 4, 27. 108. See 47 C.F.R. § 73.3555 (1998) . 109. This rule formerly stated “ that a party may not own, operate or control two or more broadcast television stations with overlapping ‘Grade B’ signal contours.” 1998 Biennial Review, supra note 18, at 11,279-80 (para. 9) (quoting 47 C.F.R. § 73.3555(b) (1998)). This effectively meant that a single entity could not own or control two television stations within the same community, or even in closely neighboring communities (e.g., Washington, D.C. and Baltimore, Maryland). The Commission repealed the duopoly rule in August 1999, and replaced it with a “ two-to-a-market” rule, provided that certain conditions are satisfied. Under the new rules, a single entity may own or control two television stations in the same market if the second station is not among the top four stations in ratings and the market has at least eight separately owned stations. See 47 C.F.R. § 73.3555 (1998); Broadcast Television National Ownership Rules, Review of the Commission’s Regulations Governing Television Broadcasting, Television Satellite Stations Review of Policy and Rules, 14 F.C.C.R. 12,903, 12,907-12, 12,975- 77 (paras. 8-12, app. B) (report and order) (1999). The Commission will also permit a single entity to own or control two television stations in a market if the second station has failed, is failing, or remains unbuilt notwithstanding the issuance of a valid license and construction permit. See 47 C.F.R. § 73.3555 n.7 (1998); Broadcast Television National Ownership Rules, Review of the Commission’s Regulations Governing Television Broadcasting, Television Satellite Station Review of Policy and Rules, 14 F.C.C.R. at 12,954-58 (paras. 115-25). 110. Prior to August 1999, this rule “ generally prohibit[ed] the common ownership of a television and radio station in the same market.” 1998 Biennial Review, supra note 18, at 11,279 (para. 9) (quoting 47 C.F.R. § 73.3555(c) (1998)). In 1989, the Commission amended this rule to state that it would: “ look favorably” on requests for waiver of the restrictions in the top 25 television markets if, after the merger, at least 30 independently owned broadcast voices remain, or if the merger involved a “ failed station.” Case-by-case review of a waiver of request is also
122 UNIVERSITY OF ILLINOIS LAW REVIEW rule, local radio ownership rules,2the dual net work rule, 3 the UH f and television discount provided for in instances where the presumptive waiver of criteria are not present tion 202(d) of [Tel 1996 Pub. L. No. 104-104, s 202(d),110 Stat. 56, 111] directed the Commis sion to extend its presumptive waiver policy to the top fifty telev sion markets if it finds that doing so would be in the public inter Id. In August 1999, the Commission abandoned the one-to-a-market rule, per mitting a single entity to own both a television station and a radio station in the same community of license. See Broadcast Television National Owner- ship Rules, Review of the Commission's Regulations Governing Television roadcasting, Television Satellite Station Review of Policy and Rules, 1 E.C.C.R. at 12,947-53 (paras. 100-114). Having repealed the one-to-a-market rule, the Commission now claims to be out of the waiver business. See Bill McConnell, No Favors, No Waivers, BROADCASTING CABLE, Sept. 13, 1999, at 24, 111. This rule w generally prohibits the common ownership of a daily news paper and a radio station in the same community" and applies to all news er/broadcast cross-ownership situations. 1998 Biennial Review, supra note 73.3555(d 12. Section 202(b) of the Telecommunications Act of 1996 directed the Commission to relax its radio multiple ownership rules to allow common own in radio markets with 45 or more commercial radio stations 8 commercial radio stations in the same service (AM or EM)i(B)mar ets with betwee n 30 and 44 (inclusive) rcial radio stat party may own, operate, or control up to 7 commercial radio stations not more than 4 of which in the same service; (C) markets with be tween 15 and 29 (inclusive) commercial radio stations, a party may own,operate, or control up to 6 commercial radio stations,not mo same service; and (D) in markets with I 1 not more tl h are in the control more than 50 percent of the stations in such market Telecommunications Act of 1996, Pub. L. No. 104-104, s 202(b)(1),110Stat 6, 110. Also, Section 202(a)of the Telecom Act directed the Commission to eliminate its national radio ownership restrictions, which the Commission has now done; consequently, there are now no limits on the number of radi tations that may be owned nationally. See id. s 202(a),56 Stat. at 110 mplementation of Sections 202(a) and 202(b)(1) of the Telecommunications Act of1996,11F.C.C.R.12368,12,368-69(para.2)(1996)( order) 113. Section 202 (e) of the Telecom Act directed the Commission to revise its w dual twork" rule order, 47 C.E.R. s 73.658(g). See Telecommunica- tions Act s 202(e), 56 Stat. at 111. Under the pre-Telecom Act dual network rule, "the Commission generally prohibited a party from affiliating with a network organization that maintained more than one network of television roadcast stations 1998 Biennial Review, supra note 18, at 11, 283-84 Pursuant to a directive in the Telecom Act, the Commission re- vised the rule te⊥ evision b station to affiliate with y that maintain tations unless such networks are composed of: (1) program dis tribution service that on the date of the Telecom Act's enactment pr
KROTO.DOC 12/07/00 9:35 AM 122 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 rule,111 local radio ownership rules,112 the dual network rule,113 the UHF and television discount,114 and provided for in instances where the presumptive waiver of criteria are not present. Section 202(d) of the [Telecommunications Act of 1996, Pub. L. No. 104-104, § 202(d), 110 Stat. 56, 111] directed the Commission to extend its presumptive waiver policy to the top fifty television markets if it finds that doing so would be in the public interest. Id. In August 1999, the Commission abandoned the one-to-a-market rule, permitting a single entity to own both a television station and a radio station in the same community of license. See Broadcast Television National Ownership Rules, Review of the Commission’s Regulations Governing Television Broadcasting, Television Satellite Station Review of Policy and Rules, 14 F.C.C.R. at 12,947-53 (paras. 100-114). Having repealed the one-to-a-market rule, the Commission now claims to be out of the waiver business. See Bill McConnell, No Favors, No Waivers, BROADCASTING & CABLE, Sept. 13, 1999, at 24, 24. 111. This rule “ generally prohibits the common ownership of a daily newspaper and a radio station in the same community” and applies to all newspaper/broadcast cross-ownership situations. 1998 Biennial Review, supra note 18, at 11,279 (para. 9) (citing 47 C.F.R. § 73.3555(d) (1998)). 112. Section 202(b) of the Telecommunications Act of 1996 directed the Commission to relax its radio multiple ownership rules to allow common ownership as follows: (A) in radio markets with 45 or more commercial radio stations, a party may own, operate, or control up to 8 commercial radio stations, not more than 5 of which are in the same service (AM or FM); (B) markets with between 30 and 44 (inclusive) commercial radio stations, a party may own, operate, or control up to 7 commercial radio stations, not more than 4 of which are in the same service; (C) markets with between 15 and 29 (inclusive) commercial radio stations, a party may own, operate, or control up to 6 commercial radio stations, not more than 4 of which are in the same service; and (D) in markets with 14 or fewer commercial radio stations, a party may own, operate, or control up to 5 commercial radio stations, not more than 3 of which are in the same service (AM or FM), except that a party may not own, operate, or control more than 50 percent of the stations in such market. Telecommunications Act of 1996, Pub. L. No. 104-104, § 202(b)(1), 110 Stat. 56, 110. Also, Section 202(a) of the Telecom Act directed the Commission to eliminate its national radio ownership restrictions, which the Commission has now done; consequently, there are now no limits on the number of radio stations that may be owned nationally. See id. § 202(a), 56 Stat. at 110; Implementation of Sections 202(a) and 202(b)(1) of the Telecommunications Act of 1996, 11 F.C.C.R. 12368, 12,368-69 (para. 2) (1996) (order). 113. Section 202(e) of the Telecom Act directed the Commission to revise its “ dual network” rule order, 47 C.F.R. § 73.658(g). See Telecommunications Act § 202(e), 56 Stat. at 111. Under the pre-Telecom Act dual network rule, “ the Commission generally prohibited a party from affiliating with a network organization that maintained more than one network of television broadcast stations.” 1998 Biennial Review, supra note 18, at 11,283-84 (para. 24). Pursuant to a directive in the Telecom Act, the Commission revised the rule to permit a television broadcast station to affiliate with a person or entity that maintains two or more networks of television broadcast stations unless such networks are composed of: (1) two or more persons or entities that were “ networks” upon the date the Telecom Act was enacted; or (2) any such network in an English-language program distribution service that on the date of the Telecom Act’s enactment provided 4 or more hours of programming per week on a national basis pursuant to network affiliation arrangements with local television
No.3] ENHANCING THE SPECTRUM 123 the daily newspaper/broadcast cross-ownershig p rule. 115 All of these multiple ownership rules rest on the twin goals of promoting diversity and economic com- petition. Outlet diversity bears a close relation hip to viewpoint diversity by dividing up the owner ship of media assets, the Commission hopes to ensure the distribution of diverse programmil and, hence viewpoints 3. Source Diversity The Commission, in its continuing effort to foster source diversity, adopted financial interest and syn- n/ syn rules).7 These rules w limit network control over television programming and thereby foster diversity of programming th h the development of diverse and an NBC)to own and syndicate television programming,=. the tagonistic programming sources, [and restrict] ability of the three established networks (ABC, CBS Under severe judicial criticism, g the Commission voluntarily scrapped these rules because it was unable to demonstrate that these rules advanced the goal of ensuring diversity with respect to programming broadcast stations and markets reaching more than 75 percent of tele vision househo lds 114. The national television ownership rule states that an entity may own any number of television stations (subject to the restrictions of the local nership rule) so long as "the combined audience reach of the stations does nd their respective ADIs [Area of Dominant Influence]. Under [the Commis sions] rules, UHE and television stations are attributed with 50 percent of the television households in their ADI market. 1998 Biennial Review, supra note18,at11,284(para.25)( citing47C.F.R.573.3555(e)(2)(i)(1997)) 115. This rule prohibits the common ownership of a broadcast station and a daily newspaper in the same locale. "Id. 1, 285-86 (para. 28)(citing 7C.F.R.573.3555(d)(1994)) 116.Id crans, The Questionable Validity of the Network Syndication and Financial Interest Rules in the Present Environment, 43 FED. COMM. L.J. 65, 65-68(1990) Tamber Christian, The Financial Interest L. Herskovitz, Note, The Repeal of the Financial Interest and Syndication Rules: The Demise of iversity and Television Network Competi 118. Review of the Syndication and Financial Interest Rules, Section 3)(1995)(report and orderl 119. See, e. g, Capital Cities/ABC, Inc, v. FCC, 29 F3d 309 (7th Ci 1994): Schurz Comm. v. FCC, 982 F 2d 1043 (7th Cir. 1992)
KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 123 the daily newspaper/broadcast cross-ownership rule.115 All of these multiple ownership rules rest on the “ twin goals of promoting diversity and economic competition.” 116 Outlet diversity bears a close relationship to viewpoint diversity; by dividing up the ownership of media assets, the Commission hopes to ensure the distribution of diverse programming and, hence, viewpoints. 3. Source Diversity The Commission, in its continuing effort to foster source diversity, adopted financial interest and syndication rules (commonly known as the fin/syn rules).117 These rules “ limit network control over television programming and thereby foster diversity of programming through the development of diverse and antagonistic programming sources, [and restrict] the ability of the three established networks (ABC, CBS, NBC) to own and syndicate television programming.” 118 Under severe judicial criticism,119 the Commission “ voluntarily” scrapped these rules because it was unable to demonstrate that these rules advanced the goal of ensuring diversity with respect to programming broadcast stations and markets reaching more than 75 percent of television households. Id. (footnotes omitted). 114. The national television ownership rule states that an entity may own any number of television stations (subject to the restrictions of the local ownership rule) so long as “ the combined audience reach of the stations does not exceed 35 percent, as measured by the number of television households and their respective ADIs [Area of Dominant Influence]. Under [the Commission’s] rules, UHF and television stations are attributed with 50 percent of the television households in their ADI market.” 1998 Biennial Review, supra note 18, at 11,284 (para. 25) (citing 47 C.F.R. § 73.3555(e)(2)(i) (1997)). 115. This “ rule prohibits the common ownership of a broadcast station and a daily newspaper in the same locale.” Id. at 11,285-86 (para. 28) (citing 47 C.F.R. § 73.3555(d) (1994)). 116. Id. 117. See Suzanne Rosencrans, The Questionable Validity of the Network Syndication and Financial Interest Rules in the Present Environment, 43 FED. COMM. L.J. 65, 65-68 (1990); Tamber Christian, The Financial Interest and Syndication Rules— Take Two, COMMLAW CONSPECTUS 107, 107-109 (1995); Marc L. Herskovitz, Note, The Repeal of the Financial Interest and Syndication Rules: The Demise of Program Diversity and Television Network Competition?, 15 CARDOZO ARTS & ENT. L.J. 177 (1997). 118. Review of the Syndication and Financial Interest Rules, Section 73.655-73.663 of the Commission’s Rules, 10 F.C.C.R. 12,165, 12,165 (para. 3) (1995) (report and order). 119. See, e.g., Capital Cities/ABC, Inc., v. FCC, 29 F.3d 309 (7th Cir. 1994); Schurz Comm. v. FCC, 982 F.2d 1043 (7th Cir. 1992)
124 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 sources. Given the existence of a competitive mar ketplace for programming and the emergence of two new television networks, the fin/syn rules no longer served their original purpose of fostering diversity in television program production and distribution mar- kets The Commission also determined that the net- orks likely would not act in ways detrimental to pro ramming source diversity following deregulation, and if they should attempt to do so, antitrust laws ld le an adequate remedy C. Inche tradictions in the Diversity finitions and With the possible exception of the Commission's attempts to create structural diversity through its multiple station ownership restrictions, the Commis sion's diversity efforts have not achieved their in tended goals and purposes. Indeed, in at least some instances, the Commission's efforts have perhaps im peded the goal of promoting a particular manifestation 1. Race as a Proxy for Programming Historically, the Commission's EEo rules assume that a person holds a predetermined set of viewpoints based on his race. Those viewpoints will then, by virtue of that person's mere presence at a broadcast station, contribute to the diversity of viewpoints re flected in that station's programming. Yet there sim ply is no reliable empirical evidence linking a per ew of the Syndication and Financial Interest Rules 73.655-73.663 of the Commmission's Rules, 10 F.C. C.R. at 12, 168-71 (paras 16-30): Review of the Syndication and Financial Interest Rules, Section 73.655-73.663 of the Commission's Rules, 10 F.C. C.R. 5672,5672-73(paras 1-9)(1995)(notice of proposed rule making): Evaluation of the Syndication and Financial Interest Rules, 8 F.C.C.R. 3282, 3284-3311 (paras. 3-52 1993) 121. The Commission was referring to UPN and Fox. See Review of the syndi s,10F.C.C.R.at12169-71( paras.23-27) In the last five year additional networks have entered the scene: War- ner Brothers and PAX. See John Marks, TV's Lucky Seventh?, U.s. NEKS &WORLD REP, Sept. 7, 1998, at 38 122. See 1998 Biennial Review, supra note 18, at 11, 285-86 (para. 28) 123. See id. at 124. See id 125. See supra notes 21-34 and accompanying text
KROTO.DOC 12/07/00 9:35 AM 124 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 sources.120 Given the existence of a competitive marketplace for programming and the emergence of two new television networks,121 the fin/syn rules no longer served their original purpose of fostering diversity in television program production and distribution markets.122 The Commission also determined that the networks likely would not act in ways detrimental to programming source diversity following deregulation,123 and if they should attempt to do so, antitrust laws would provide an adequate remedy.124 C. Incoherence and Contradictions in the Diversity Programs’ Definitions and Goals With the possible exception of the Commission’s attempts to create structural diversity through its multiple station ownership restrictions, the Commission’s diversity efforts have not achieved their intended goals and purposes. Indeed, in at least some instances, the Commission’s efforts have perhaps impeded the goal of promoting a particular manifestation of diversity. 1. Race as a Proxy for Programming Historically, the Commission’s EEO rules assume that a person holds a predetermined set of viewpoints based on his race.125 Those viewpoints will then, by virtue of that person’s mere presence at a broadcast station, contribute to the diversity of viewpoints reflected in that station’s programming. Yet there simply is no reliable empirical evidence linking a per- 120. See Review of the Syndication and Financial Interest Rules, Section 73.655-73.663 of the Commission’s Rules, 10 F.C.C.R. at 12,168-71 (paras. 16-30); Review of the Syndication and Financial Interest Rules, Sections 73.655-73.663 of the Commission’s Rules, 10 F.C.C.R. 5672, 5672-73 (paras. 1-9) (1995) (notice of proposed rule making); Evaluation of the Syndication and Financial Interest Rules, 8 F.C.C.R. 3282, 3284-3311 (paras. 3-52) (1993). 121. The Commission was referring to UPN and Fox. See Review of the Syndication and Financial Interest Rules, 10 F.C.C.R. at 12169-71 (paras. 23-27). In the last five years, two additional networks have entered the scene: Warner Brothers and PAX. See John Marks, TV’s Lucky Seventh?, U.S. NEWS & WORLD REP., Sept. 7, 1998, at 38. 122. See 1998 Biennial Review, supra note 18, at 11,285-86 (para. 28). 123. See id. at 11,277 (para. 3). 124. See id. 125. See supra notes 21-34 and accompanying text