the applicant group is dissimilar to the RMLC group and the rest of the industry.
b. The Applicant Stations' Formats and Market Sizes
In addition to contending that applicants' levels of music use were comparable to the levels of numerous stations which accepted the RMLC-negotiated licenses, ASCAP argues that applicants were similar to the Group W and WGN licensees with respect to format and appeal to large-audience markets. At trial, Robert Unmacht, the publisher of the M Street Journal, a radio-industry publication, offered his opinion that in 1992, the NECM Applicants constituted 31% of the religious-formatted stations in the industry, 50% of the fine arts-formatted stations, and 4% of the Spanish language-formatted stations. (Exhs. 665, 666.) Mr. Unmacht also observed that in 1995, 77% of the NECM Applicants were represented in large markets as compared to 58% of the RMLC stations. (Exh. 663.)
Applicants take issue with Mr. Unmacht's decision to characterize music intensive gospel and contemporary Christian music stations as having the same "religious" format as the talk-oriented Christian stations that comprise the majority of the applicant group. Applicants also argue that Mr. Unmacht's conclusions are flawed because he did not restrict his analysis to RMLC stations but rather included those stations that executed extension agreements with ASCAP. Applicants point out that 4.2% of the RMLC stations had religious, fine arts, or Spanish language formats, while 87% of the applicant stations employed one of these formats. (Exh. 781.)
We find it unnecessary to resolve the parties' dispute over whether the formats and market sizes of the applicant stations are similar to those of either the RMLC stations or the Group W and WGN licensees. The characteristic that is relevant to our determination of reasonable fees is the level of the applicants' use of ASCAP music. The amount of such music a station plays dictates whether that station will select a per-program or blanket license and, if a per-program license is selected, establishes the fee that must be paid to ASCAP. While differences between the formats and market sizes of the applicant stations and those that accepted RMLC-negotiated licenses obviously affect their revenues, these factors do not need to be separately considered if their use fees are computed as a percentage of their revenues, as we conclude should be done here. We therefore find the ASCAP survey data reflecting music use levels to be far more probative than format and market comparisons in determining whether stations are similarly situated for fee-setting purposes.
2. ASCAP's Nondiscrimination Argument
Relying on the factual premise that individual applicants and individual Group W and WGN licensees were similarly situated, ASCAP presses the argument that ASCAP may not, consistent with the Consent Decree, offer applicants a fee proposal with more favorable per-program terms than are contained in the Group W and WGN licenses. To do so, according to ASCAP, would create a situation in which individual radio stations, though similarly situated with respect to music use, would be subject to different fee structures based only upon whether they had accepted the RMLC-negotiated licenses or joined the applicant group. Such a scenario, ASCAP maintains, would be contrary to the Consent Decree's nondiscrimination provisions. Moreover, ASCAP contends that, to the extent stations which accepted the Group W and WGN licenses are disfavored in comparison to their similarly situated competitors among the applicants, the integrity of the collective, industry-wide bargaining process is imperiled.
a. Textual Grounds
In support of the theory that it is bound to offer applicants the same terms as it offered similarly situated Group W and WGN licensees, ASCAP invokes Sections VIII, IX(C), and IV(C) of the Consent Decree. (ASCAP Mem. at 24.) However, neither Section VIII, nor Section IV(C) meaningfully advances ASCAP's nondiscrimination argument. Section VIII provides:
Defendant ASCAP, in fixing its fees for the licensing of compositions in the ASCAP repertory, is hereby ordered and directed to use its best efforts to avoid any discrimination among the respective fees fixed for the various types of licenses which would deprive the licensees or prospective licensees of a genuine choice from among such various types of licenses.