Federal Communications Commission DA 10-1285 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of WPBF-TV Company Petition For Waiver of Sections 76.92(f) and 76.106(a) of the Commission’s Rules ) ) ) ) ) ) CSR-8146-N MEMORANDUM OPINION AND ORDER Adopted: July 9, 2010 Released: July 9, 2010 By the Senior Deputy Chief, Policy Division Media Bureau: I. INTRODUCTION 1. WPBF-TV Company, licensee of station WPBF(TV)/-DT (ABC), Tequesta, Florida (“WPBF”), 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, WPBF seeks a waiver of the significantly viewed exception so that it may enforce its exclusivity rights against television broadcast station WPLG(TV)/-DT (ABC), Miami, Florida (“WPLG”) in the communities of Belle Glade, Delray Beach, Greenacres City, Palm Beach Gardens, Riviera Beach, Wellington, and West Palm Beach, Florida, which are served by Comcast Cable.2 No opposition to this petition has been received. For the reasons discussed below, we grant WPBF’s waiver 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.3 Under Section 76.92(f) of the Commission’s rules, however, a signal otherwise subject to deletion is exempt from application of the network nonduplication rules if it is “significantly viewed” 147 C.F.R. §§ 76.92(f) and 76.106(a). Although not expressly requested in WPBF’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 to a waiver for carriage on DBS systems based on the same showing that a station is no longer significantly viewed in the relevant community. See 47 C.F.R. §§ 76.92(f), 76.106(a), 76.122(j), and 76.123(k). See 47 U.S.C. §§ 340(a)(2) and 340(c). 2Petition at 1. 3See 47 C.F.R. §76.92; 47 C.F.R. §76.101. Federal Communications Commission DA 10-1285 2 in a relevant community (the “significantly viewed exception”).4 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. A similar exception is provided in the syndicated exclusivity rules.5 3. In order to obtain a waiver of Section 76.92(f), the Commission held in KCST-TV, Inc.6 that petitioners would be required to demonstrate for two 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). Section 76.5(i) of the Commission’s rules requires that for network stations to be considered significantly viewed, the survey results should exceed a 3 percent share of total viewing hours and a net weekly circulation of 25 percent, by at least one standard error.7 For independent stations (i.e., non-network stations), to be considered significantly viewed, Section 76.5(i) of the Commission’s rules requires that the survey results should exceed a 2 percent share of total viewing hours and a net weekly circulation of 5 percent, by at least one standard error.8 The Commission has found that this type of test is applicable as well for waivers of the syndicated exclusivity exemption.9 4. Since the Commission’s decision in KCST-TV, the methodology required by Section 76.54(b) of the rules for a petitioner seeking a waiver of the significantly viewed exception has evolved, pursuant to case law and market realities. Section 76.54(b) states in pertinent part that significant viewing “may be demonstrated by an independent professional audience survey of [over-the-air] television homes that covers at least two weekly periods separated by at least thirty (30) days but no more than one of which shall be a week between the months of April and September.10 Over time, The Nielsen Company (“Nielsen”) became the primary surveying organization through which a petitioner could obtain television surveys.11 Nielsen, which routinely surveys television markets to obtain television stations’ viewership, conducts four-week audience surveys four times a year (i.e., February, May, July and November “sweep periods”). The Bureau has found that replacing each week required under KCST- TV with a sweep period is acceptable and, if anything, adds to the accuracy of the audience statistics because of the increased sample size.12 Accordingly, a petitioner may submit the results from two sweep 4 47 C.F.R. §76.92(f); see 47 C.F.R. §§76.5(i) and 76.54. 5 47 C.F.R. §76.106(a). 6103 FCC 2d 407 (1986). 747 C.F.R. §76.5(i). 8 Id. 9See Chambers Cable of Oregon, Inc., 5 FCC Rcd 5640 (1990). 1047 C.F.R. § 76.54(b). The criteria set forth in KCST-TV require that two separate surveys be performed pursuant to Section 76.54(b) in consecutive years. The provisions of Section 76.54(b) therefore apply to each year’s survey. It should be noted that these types of surveys cannot be done by the affected television station, cable system or satellite operator. 11The Nielsen Company was previously known as Nielsen Media Research. 12Although, in general, petitioners are prohibited from using two surveys between April and September (i.e., May or July sweeps), we have not ruled out a petitioner providing all sweeps in a year where more than two are submitted. See WTNH Broadcasting, Inc. and K-W TV, Inc., 16 FCC Rcd 6781, 6784 (2001), where the Bureau did (continued…) Federal Communications Commission DA 10-1285 3 periods in each year. For use in exclusivity waivers, a petitioner may purchase survey data from Nielsen on either a community-specific or system-specific basis.13 If a petitioner is purchasing survey data on a system-specific basis where two or more communities are involved, the percentage of diaries from each community surveyed must be approximately the same as the percentage of the total population for each community served by the cable system. 14 In order to produce the data required for exclusivity waivers, Nielsen re-tabulates the data that it collects from over-the-air households for its routine audience sweep periods, selecting in-tab diaries from its database from the area served by a cable system or an individual cable community.15 It should be noted that, despite the fact that a petitioner is purchasing a re-tabulation of data that has already been collected, it is still obligated to notify interested parties prior to the purchase of such data, pursuant to the requirements set forth in Section 76.54(c) of the Commission’s rules.16 Such notice should indicate the surveying organization, the methodology used to calculate the viewing shares (e.g., a description of the process used to re-tabulate the information in an existing database), the manner in which the communities (and/or zip codes) were selected, and the survey periods used.17 Notification to interested parties before the purchase of Nielsen data allows a petitioner to correct any errors or clarify issues related to the methodology before the data are purchased and the petition is actually filed and, perhaps, avoid the filing of oppositions. Finally, we note that the manner in which surveys based on sweep periods are averaged, remains the same as for weekly surveys.18 A petitioner may therefore submit the average of the two sweep periods for each year. If, however, a petitioner (…continued from previous page) not reject the petition because of the inclusion of both May and July data, but only concluded that, in such a case, it would be necessary to provide individual survey period results so that we could determine the effect of the third and fourth sweep periods. 13It should be noted that Nielsen identifies individual communities by zip codes, a process not incompatible with the surveying process discussed here. 1447 C.F.R. § 76.54(b). Proportionality based on population demonstrates that more weight is given to larger communities. While there must be at least one diary from each community in each survey, there is no minimum sample size since the standard error allows us to be sure that there is a high probability that the reported result meets or falls below our criteria. Because Nielsen is able to weight its sampling, they can provide such proportionality. 15We expect petitioners who commission such data to include, along with the survey data itself, a description of the procedures used to retabulate the data, which data base it is using, what communities (or zip codes) are covered, the station(s) surveyed, and time periods covered. Because Nielsen routinely provides this information in a cover letter along with its survey data, it is most helpful if this letter is included. That way there is no doubt that the data provided was provided by Nielsen. See e.g., Radio Perry, Inc., 11 FCC Rcd 10564, 10568-9 (1996); Gulf- California Broadcast Company, 21 FCC Rcd 3476, 3479-80 (2006). We further suggest that the petitioner make it clear that the data they are submitting, along with the description of methodology, are as agreed on between the petitioner and Nielsen. 1647 C.F.R. § 76.54(c). Section 76.54(c) states that “[n]otice of a survey to be made pursuant to paragraph (b) of this section shall be served on all licensees or permittees of television broadcast stations within whose predicted Grade B contour the cable community or communities are located, in whole or in part, and on all other system community units, franchisees, and franchise applicants in the cable community or communities at least (30) days prior to the initial survey period.” 17Id. 18Section 76.54(b) states that “[i]f two surveys are taken, they shall include samples sufficient to assure that the combined surveys result in an average figure at least one standard error above the required viewing levels. If surveys are taken for more than 2-weekly periods in any 12 months, all such surveys must result in an average figure at least one standard error above the required viewing level.” Federal Communications Commission DA 10-1285 4 submits more than two sweep periods, in addition to the average or combined audience shares for the year, it must also include the separate sweep data for each individual sweep period used. This ensures that the reported audience results data are not skewed by the choice of sweep periods. 5. WPBF seeks a waiver of the significantly viewed exception so that it may enforce its network nonduplication and syndicated exclusivity rights against television broadcast station WPLG for the communities of Belle Glade, Delray Beach, Greenacres City, Palm Beach Gardens, Riviera Beach, Wellington, and West Palm Beach, Florida.19 WPLG is considered to be significantly viewed in Palm Beach County, Florida, where the subject communities are located.20 6. WPBF states that it is an affiliate of the ABC Network and is licensed to a community in the West Palm Beach-Ft. Pierce, Florida designated market area (“DMA”), while WPLG, also an ABC Network affiliate, is licensed to a community in the Miami-Ft. Lauderdale, Florida DMA.21 WPBF argues that it would normally be entitled to assert exclusivity protection against WPLG in the referenced communities in the West Palm Beach-Ft. Pierce DMA, but it cannot because WPLG is considered significantly viewed in West Palm Beach County, Florida, where the various communities are located.22 WPBF maintains, however, that WPLG no longer meets the significantly viewed standard in the subject communities and, as proof, it submits the results of special community-specific surveys conducted by The Nielsen Company.23 WPBF states that Nielsen conducted a special tabulation of over-the-air viewing using diaries from noncable/non-ADS homes for specified zip codes identified for each community.24 For all the communities, the submitted data are averages of two four-week audience sweep periods in each of two years. The first year’s survey audience estimates were derived from February 2007 and May 2007 audience sweep data, combined, and the second year’s estimates from the February 2008 and May 2008 audience sweep data, combined.25 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.26 WPBF states that for WPLG, the share of total viewing hours in over-the-air homes in all of the communities falls far short of the required significantly viewed minimums, within one standard error, as shown in the tables below: 19Petition at 1. 20Id. 21Id. at 2. 22Id at 4. WPBF states that WPLG 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). 23Id. at Exhibit 1. 24Id. Nielsen defines Alternative Delivery Source (“ADS”) to include the following technologies: satellite (C-Band), DBS (Ku-Band), SMATV (master antennae), and MMDS (includes multi-channel multi-point and mult- point distribution service). Thus, noncable/non-ADS homes are those that do not subscribe to an MVPD, and view the broadcast signal in question off-air. See Nielsen at http://www.nielsenmedia.com/glossary/. 25Id. 2647 C.F.R. § 76.54(b). Federal Communications Commission DA 10-1285 5 TABLE 1 – WPLG VIEWING IN BELLE GLADE, FL Survey Households Share Standard Net Standard Year27 Studied Viewing Error Weekly Error Hours Circulation Feb. 2007/ 2 0 0 0 0 May 2007 Feb. 2008/ 3 0 0 0 0 May 2008 TABLE 2 – WPLG VIEWING IN DELRAY BEACH, FL Survey Households Share Standard Net Standard Year Studied Viewing Error Weekly Error Hours Circulation Feb. 2007/ 2 0 0 0 0 May 2007 Feb. 2008/ 2 0 0 0 0 May 2008 TABLE 3 – WPLG VIEWING IN GREEN ACRES CITY, FL Survey Households Share Standard Net Standard Year Studied Viewing Error Weekly Error Hours Circulation Feb. 2007/ 10 0 0 0 0 May 2007 Feb. 2008/ 6 0 0 0 0 May 2008 27All of the survey dates provided meet the criteria set forth in the rules and KCST-TV that the two one- week surveys be separated by at least 30 days and that both surveys may not occur between April and September. Federal Communications Commission DA 10-1285 6 TABLE 4 – WPLG VIEWING IN PALM BEACH GARDENS, FL Survey Households Share Standard Net Standard Year Studied Viewing Error Weekly Error Hours Circulation Feb 2007/ 3 0 0 0 0 May 2007 Feb. 2008/ 4 0 0 0 0 May 2008 TABLE 5 – WPLG VIEWING IN RIVIERA BEACH, FL Survey Households Share Standard Net Standard Year Studied Viewing Error Weekly Error Hours Circulation Feb. 2007/ 4 0 0 0 0 May 2007 Feb. 2008/ 3 0 0 0 0 May 2008 TABLE 6– WPLG VIEWING IN WELLINGTON, FL Survey Households Share Standard Net Standard Year Studied Viewing Error Weekly Error Hours Circulation Feb. 2007/ 11 0 0 0 0 May 2007 Feb. 2008/ 11 1.025 0.836 16.37 13.29 May 2008 TABLE 7– WPLG VIEWING IN WEST PALM BEACH, FL Survey Households Share Standard Net Standard Year Studied Viewing Error Weekly Error Hours Circulation Feb. 2007/ 8 0 0 0 0 May 2007 Feb. 2008/ 17 0 0 0 0 May 2008 Federal Communications Commission DA 10-1285 7 As a result, WPBF requests that the Commission grant its petition so that it can assert its exclusivity rights in the communities of Belle Glade, Delray Beach, Greenacres City, Palm Beach Gardens, Riviera Beach, Wellington, and West Palm Beach, Florida. III. DISCUSSION 7. We find that WPBF made the requisite showing to support its petition. As required by the rules, WPBF has provided community-specific survey results for each community for each year surveyed. With the exception of the showing for Wellington, Florida, each of the reported average audience shares – the share of total viewing hours and net weekly circulation share – is zero based on two four-week survey periods from each of two years. Nielsen reports that the standard error about each of these estimates is zero, although technically because of the nature of the computation of the standard error, that value is indeterminate. However, because the submitted data represent the lack of viewing from a reasonable sample, we can conclude that WPLG attains approximately no viewing in these communities. Accordingly, we find that that submitted audience surveys are sufficient to demonstrate that WPLG no longer attains the viewing levels needed to demonstrate significantly viewed status in the communities of Belle Glade, Delray Beach, Green Acres City, Palm Beach Gardens, Riviera Beach, and West Palm Beach, Florida. 8. With regard to the showing for WPLG in Wellington, Florida, for the first year, the submitted data show that for the February 2007/May 2007 audience sweep periods, combined, with the standard errors added, WPLG attains no measurable audience share. For the second year, the submitted data show that for the February 2008/May 2008 audience sweep periods, combined, with the standard errors added, WPLG attains a 1.861 percent share of total viewing hours (1.025 reported share + 0.836 standard error) and a 29.66 percent net weekly circulation share (16.37 reported share + 13.29 standard error). In order for a network station, such as WPLG, to be considered significantly viewed, it must attain a 3 percent share of total weekly viewing hours and a 25 percent net weekly circulation share. In this case, for the first year, the survey results show that WPLG does not meet these criteria. For the second year, WPLG’s share of total viewing hours is below the required 3 percent criteria, but when the standard error for the net weekly circulation share is added to the reported audience share, the resulting audience estimate exceeds the 25 percent criteria for that prong of the test for significantly viewed status. However, in order to demonstrate significantly viewed status, a station must exceed both the total weekly viewing share and the net weekly circulation share by one standard error. Because both conditions have not been satisfied, WPLG cannot be considered to be significantly viewed for the second year. As a result, WPBF has demonstrated that WPLG is no longer significantly viewed in the community of Wellington, Florida. 9. Accordingly, we find that the submitted audience surveys are sufficient to show that WPLG no longer attains the viewing levels needed to demonstrate significantly viewed status in the communities of Belle Glade, Delray Beach, Greenacres City, Palm Beach Gardens, Riviera Beach, Wellington, and West Palm Beach, Florida and we grant WPBF’s request. Federal Communications Commission DA 10-1285 8 IV. ORDERING CLAUSES 10. Accordingly, IT IS ORDERED, that the petition filed by WPBF-TV Company IS GRANTED. 11. This action is taken pursuant to authority delegated under Section 0.283 of the Commission’s rules.28 FEDERAL COMMUNICATIONS COMMISSION Steven A. Broeckaert Senior Deputy Chief, Policy Division Media Bureau 2847 C.F.R. §0.283.