*Pages 1--7 from Microsoft Word - 61214.doc* Federal Communications Commission DA 06- 2327 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of: WGME Licensee, LLC For Waiver of Sections 76.92( f) of the Commission’s Rules ) ) ) ) ) ) CSR- 6947- N MEMORANDUM OPINION AND ORDER Adopted: November 22, 2006 Released: November 28, 2006 By the Deputy Chief, Policy Division, Media Bureau: I. INTRODUCTION 1. WGME Licensee, LLC, licensee of station WGME- TV (CBS), Portland, Maine (“ WGME- TV”), has filed the captioned petition seeking a waiver of the rules that preclude cable operators from deleting the duplicate programming of “significantly viewed” stations under the network nonduplication and syndicated exclusivity rules (“ exclusivity rules”). 1 Specifically, WGME- TV seeks a waiver of the significantly viewed exception so that it may enforce its network nonduplication rights against Station WBZ- TV (CBS), Boston, Massachusetts. 2 WBZ- TV is currently considered to be significantly viewed in York County, Maine, where the communities surveyed are located. 3 No 1 47 C. F. R. §§ 76.92( f) and 76.106( a). Although not expressly requested in WGME- TV’s petition for waiver of Sections 76.92( f) and 76.106( a) (significantly viewed exception to cable network nonduplication and syndicated exclusivity), a waiver of Sections 76.122( j) and 76.123( k) (significantly viewed exception to satellite network nonduplication and syndicated exclusivity) would also appertain based on the same showing that a station is no longer significantly viewed in the relevant community. See 47 U. S. C. § 340( a)( 2) and 340( c); 47 C. F. R. §§ 76.92( f), 76.106( a), 76.122( j) and 76.123( k). We also take this opportunity to remind petitioners that, in accordance with Section 76.7( c)( 3), petitions should be accompanied by a certificate of service showing that affected cable operators, stations, and interested persons, including satellite carriers, have been served. 47 C. F. R. § 76. 7( c)( 3). 2 Petition at 1. 3 Id. at 3. We note that, initially, WGME- TV submitted county- wide survey data so that it could assert its network nonduplication rights against WBZ- TV throughout York County. When it was informed that that county-wide data did not meet the requirements set forth in KCST- TV, Inc. and Section 76.54( b) of the Commission’s rules, WGME- TV submitted additional survey information on July 25, 2006 and again on September 13, 2006. See Supplement to Petition for Special Relief, Letter from Kathryn R. Schmeltzer and Paul A. Cicelski, Counsel for WGME- TV, to Marlene H. Dortch, Secretary, FCC (July 25, 2006 ) (“ July Supplement”); Letter from Kathryn R. Schmeltzer and Paul Cicelski, Counsel for WGME- TV, to Marlene H. Dortch, Secretary, FCC (September 13, 2006) (“ September Letter”). 1 Federal Communications Commission DA 06- 2327 2 opposition to this petition has been received. For the reasons discussed below, we grant, in part, WGME-TV’s request. II. BACKGROUND 2. Upon the request of a local television station with exclusive rights to distribute a network or syndicated program, a cable operator generally may not carry a duplicating program broadcast by a distant station. 4 Under Sections 76.92( f) and 76.106( c) of the Commission’s rules, however, an otherwise distant station is exempt from the application of the network nonduplication rules if it is considered “significantly viewed” in a relevant community (the “significantly viewed exception”). 5 The Commission’s rules generally provide stations such protection within a station’s 35- mile geographic zone. 6 The significantly viewed exception to the exclusivity rules is based on it being established that an otherwise distant station receives a “significant” level of over- the- air viewership in a subject community. If this viewership level is met, the station is no longer considered distant for purposes of the application of the exclusivity rules because it has established that it is viewed over the air in the subject community. 3. In the SHVERA Significantly Viewed Report and Order, the Commission adopted a rule for satellite carriage that mirrors the rules for cable carriage. 7 Accordingly, the amended Sections 76.122( a) and (j) and 76.123( a) and (k) of the Commission’s rules allow a station or distributor with exclusive rights to network or syndicated programming to assert exclusivity protection to require satellite carriers to delete such programming. The duplicating station may respond to such assertions by claiming the significantly viewed exception. 8 The party asserting exclusivity protection may request a waiver of the significantly viewed exception from the Commission by demonstrating that the station is no longer significantly viewed in a particular community or communities. 9 If the waiver is granted, the duplicating programming must be deleted by a cable operator or satellite carrier if the station is carried in a community in which the station has been shown to no longer be significantly viewed. It should be noted that the station itself is not removed from the significantly viewed list and may continue to be carried, provided the necessary programming deletions are made. 10 4. In order to obtain a waiver of the significantly viewed exception to the exclusivity rules, the Commission held in KCST- TV, Inc. 11 that petitioners would be required to demonstrate for two 4 See 47 C. F. R. §76.92; 47 C. F. R. §76.101. 5 47 C. F. R. §76.92( f) and 76.106( a); see 47 C. F. R. §§ 76.5( i) and 76.54. 6 The 35- mile geographic zone of all major markets and the 55- mile geographic zone around all smaller markets extends from the reference point of the community of license of the television station. These reference points are listed in Section 76.53 of the Commission’s rules. Where a community’s reference point is not given, the geographic coordinates of the main post office in the community shall be used. See 47 C. F. R. §§ 73.658 and 76.53. 7 Implementation of the Satellite Home Viewer Extension and Reauthorization Act of 2004; Implementation of Section 340 of the Communications Act, 20 FCC Rcd 17278 (2005) (“ SHVERA Significantly Viewed Report and Order”). 8 47 C. F. R. §§ 76.122( j)( 2) and 76.123( k)( 2). 9 See KCST- TV, Inc., 103 FCC 2d 407 (1986). 10 See SHVERA Significantly Viewed Report and Order, 20 FCC Rcd at 17295- 26; see also 47 U. S. C. § 340( e)( 2). 11 103 FCC 2d 407 (1986). 2 Federal Communications Commission DA 06- 2327 3 consecutive years that a station was no longer significantly viewed, based either on community- specific or system- specific over- the- air viewing data, following the methodology set forth in Section 76.54( b) of the Commission’s rules. 12 For each year, the data must be the result of independent professional surveys taken during two one- week periods separated by at least thirty days, the viewing samples must be distributed proportionately among the relevant cable communities, and not more than one of the surveys may be taken between April and September of each year. 13 Under Section 76.5( i) of the Commission’s rules network stations 14 are considered significantly viewed if the survey results show more than a 3 percent share of total viewing hours and a net weekly circulation of 25 percent, by at least one standard error. 15 Independent stations (i. e., non- network stations), are considered significantly viewed if the survey results show more than a 2 percent share of total viewing hours and a net weekly circulation of 5 percent, by at least one standard error. 16 The Commission has found that this type of test is applicable as well for waivers of the syndicated exclusivity exemption. 17 III. DISCUSSION 5. In support of its petition, WGME- TV states that it would normally have network nonduplication rights for CBS programming in the Portland- Poland Spring, Maine designated market area (“ DMA”), but is prevented from asserting those rights against WBZ- TV in York County because WBZ-TV is considered to be significantly viewed. 18 WGME- TV points out that WBZ- TV, which is licensed to Boston, Massachusetts, is located in the Boston, Massachusetts DMA. 19 WGME- TV asserts, however, that WBZ- TV no longer meets the significantly viewed standard in York County and, as proof, it submits the results of a study that is a retabulation of the data collected by Nielsen Media Research for its routine audience sweep period measurements. 20 WGME- TV states that Nielsen’s study is based on a sample of 12 Section 76.54( b) describes the required survey procedures for adding a station to the significantly viewed list based on community- or system- specific surveys. For the addition of a station to the list, only one year’s surveys are required. In KCST, the Commission required that the data demonstrate viewing levels for two years. In the SHVERA Significantly Viewed Report and Order, we clarified that the independent professional audience surveys required by Section 76.54 of our rules must include surveys only from households that receive broadcast signals via an over- the- air antenna and thus amended Section 76.54 to change the reference from “noncable television homes” to “over- the- air television homes.” See SHVERA Significantly Viewed Report and Order, 20 FCC Rcd at 17292- 23. 13 See 47 C. F. R. §76.54( b). 14 For purposes of determining whether to use the network or non- network standard for audience share, the Commission relies on the definition of network and independent station in our rules. Thus, for such purposes, affiliates of the ABC, CBS, and NBC networks are “network stations.” See 47 C. F. R. §76.5( j) and (k). Other stations are treated as independent stations for this limited purpose. See 47 C. F. R. §76.5( j); SHVERA Significantly Viewed Report and Order, 20 FCC Rcd at 17293- 34. 15 47 C. F. R. §76.5( i). 16 Id. 17 See Chambers Cable of Oregon, Inc., 5 FCC Rcd 5640 (1990). 18 Petition at 2. WGME- TV states that WBZ- TV achieved its significantly viewed status by its inclusion in Appendix B to the Reconsideration of the Cable Television Report and Order, 36 FCC 2d 326, 378 (1972). 19 Id. 20 Petition at Exhibit 1 and July Supplement. 3 Federal Communications Commission DA 06- 2327 4 over- the- air viewing of WBZ- TV in noncable/ non- ADS households 21 located in the zip codes of the York County communities served by the cable systems subject to this petition. 22 The first year survey’s audience estimates were based on November 2003, February 2004, and May 2004 sweep periods combined, and the second year’s estimates of the November 2004, February 2005, and May 2005 sweeps periods combined. 23 These survey dates and the method used to combine audience surveys are consistent with the requirements set forth in Section 76.54( b) of the Commission’s rules. 24 6. Three cable systems subject to this waiver request are single community systems. 25 With regard to the Adelphia- Acton cable system, the submitted Nielsen report shows no sample households. As a result, we cannot draw any conclusion about WBZ- TV’s audience in the over- the- air television homes in that community, and we must deny the requested waiver. 7. For the other two cable systems – Cablevision- Lebanon and Time Warner- Biddleford -that serve only one community, the information provided is based on actual sampled households. As shown in the tables below, WBZ- TV no longer attains a measurable share of total viewing hours or net weekly circulation share (i. e., its reported audience share is zero in each case) in over- the- air television homes in the communities served by the cable systems. Accordingly, we agree with WGME- TV that WBZ- TV is no longer significantly viewed in these communities. TABLE 1 – WBZ- TV VIEWING IN LEBANON, MAINE Survey Households Share Standard Net Standard Year 26 Studied Viewing Error Weekly Error Hours Circulation Nov. 03/ 3 0.00 -- 0.00 -- Feb. 04/ May 04 21 Nielsen Media Research defines Alternative Delivery Source (“ ADS”) to include the following technologies: satellite (C- Band), DBS (Ku- Band), SMATV (master antenna), and MMDS (includes multi- channel multi- point and multi- point distribution service). Thus, noncable/ non- ADS homes are those that do not subscribe to an MVPD, and view the broadcast signal in question over- the- air. See Nielsen Media Research at http:// www. nielsenmedia. com/ nc/ portal/ site/ Public. 22 The cable systems and their respective communities are: 1) Cablevision – Lebanon, Maine; 2) Comcast – Berwick and South Berwick, Maine; 3) Comcast – Eliot, Kittery and Kittery Point, Maine; 4) Adelphia – Acton, Maine; 5) Adelphia – Alfred, Arundel, Buxton, Cornish, Dayton, East Waterloo, Hollis Center, Kennebunk, Kezar Falls, Limerick, Limington, North Waterloo, Saco, Waterboro and West Buxton, Maine; 6) Cablevision – Acton, Lebanon, Sanford, Shapleigh and Springvale, Maine; 7) Time Warner – Old Orchard Beach and Saco, Maine; 8) Time Warner – Biddleford, Maine; and 9) Time Warner – Cape Neddick, North Berwick, Ogunquit, Wells and York, Maine. Below, for convenience, we refer to each cable system by the name of the cable operator and the first community listed alphabetically. 23 July Supplement. 24 47 C. F. R. § 76.54( b). 25 They are: Cablevision- Lebanon, Adelphia- Acton, and Time Warner- Biddleford. 26 The survey dates of November 2003/ February 2004/ May 2004 and November 2004/ Feburary 2005/ May 2005 meet the criteria set forth in the rules and KCST- TV that the audience survey cover at least two one- week periods separated by at least 30 days and that both surveys may not occur between April and September. 4 Federal Communications Commission DA 06- 2327 5 5