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Waiver Of The Network Nonduplication And Syndicated Exclusivity Rules

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Released: December 20, 2012

Federal Communications Commission

DA 12-2054

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

WTNH Broadcasting, Inc.
)
)

CSR-8283-N
Petition For Waiver of Sections 76.92(f) and
)
76.106(a) of the Commission’s Rules
)

MEMORANDUM OPINION AND ORDER

Adopted: December 19, 2012

Released: December 20, 2012

By the Senior Deputy Chief, Policy Division Media Bureau:

I.

INTRODUCTION

1.
WTNH Broadcasting, Inc., licensee of television broadcast station WTNH-TV (ABC,
Ch. 8), New Haven, Connecticut (“WTNH-TV”), filed the above 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, WTNH-TV seeks a waiver of the significantly viewed exception so that it may enforce its
exclusivity rights against WABC-TV (ABC, Ch. 7), New York (“WABC-TV”) in the communities of
Meriden, Milford, Wallingford and Waterbury, Connecticut.2 An opposition to this petition has been
filed on behalf of American Broadcasting Companies, Inc., licensee of WABC-TV to which WTNH-TV
replied. For the reasons discussed below, we grant, in part, WTNH-TV’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 Sections 76.92(f) and 76.106(a) of the Commission’s rules, however, a signal
otherwise subject to deletion is exempt from application of both the network nonduplication and


147 C.F.R. §§ 76.92(f) and 76.106(a). Although not expressly requested in WTNH-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 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.

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DA 12-2054

syndicated exclusivity rules if it is “significantly viewed” in a relevant community (the “significantly
viewed exception”).4 The significantly viewed exception to the exclusivity rules is based on a
demonstration 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. 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.11 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.
11Although, 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
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
(continued…)
2

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DA 12-2054

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.12 If a petitioner is purchasing survey data on a
system-specific basis where two or more communities are involved, the percent 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. 13 In order to produce the data required for exclusivity waivers,
Nielsen re-tabulates the over-the-air data that it collects 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.14 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.15 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.16 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.17 A petitioner may therefore submit
the average of the two sweep periods for each year. If, however, a petitioner 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


(…continued from previous page)
fourth sweep periods.
12It should be noted that Nielsen identifies individual communities by zip codes, a process not incompatible
with the surveying process discussed here.
1347 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.
14We 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 obtained from 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.
1547 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.”
16Id.
17Section 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.”
3

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DA 12-2054

results data are not skewed by the choice of sweep periods.
5.
WTNH-TV seeks a waiver of the significantly viewed exception so that it may enforce
its network nonduplication and syndicated exclusivity rights against station WABC-TV for the
communities of Meriden, Milford, Wallingford and Waterbury, Connecticut.18 WTNH-TV states that it
is licensed to a community in the Hartford-New Haven, Connecticut designated market area (“DMA”),
while WABC-TV is licensed to the New York, New York DMA.19 WTNH-TV argues that it would
normally be entitled to assert network nonduplication and syndicated exclusivity protection against
WABC-TV in the subject communities, but it cannot because WABC-TV is considered significantly
viewed in New Haven County, Connecticut.20 WTNH-TV maintains, however, that WABC-TV no
longer meets the significantly viewed standard in Meriden, Milford, Wallingford and Waterbury and, as
proof; it submits the results of special community-specific surveys conducted by The Nielsen Company.21
WTNH-TV states that Nielsen conducted a special tabulation of over-the-air viewing using diaries from
noncable/non-ADS homes for specified zip codes comprising the communities.22 The submitted data are
averages of two four-week audience sweep periods in each of two years. For Meriden and Waterbury,
the first year’s audience estimates were derived from November 2007 and May 2008 audience sweep
data, combined, and the second year’s estimates from the November 2008 and May 2009 audience sweep
data, combined.23 For Milford, the first year’s audience estimates were derived from November 2006 and
July 2007 audience sweep data, combined, and the second years from November 2007 and July 2008,
combined.24 For Wallingford, the first year’s audience estimates were derived from February 2007 and
July 2007 audience sweep data, combined, and the second years from February 2008 and July 2008,
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 WTNH-TV maintains that for
WABC-TV, the share of total viewing hours in over-the-air homes in Meriden, Milford, Wallingford and
Waterbury is far short of the required significantly viewed minimums, within one standard error, as
shown in the tables below:


18Petition at 1. While WTNH-TV does not identify the cable operators serving these communities, Cox
Communications serves Meriden; Cablevision service Milford; and Comcast serves Wallingford and Waterbury.
19Id. at 2.
20Id. WTNH-TV states that WABC-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).
21Id. at Exhibit 1.
22Id. Nielsen Media Research 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 Media Research at
http://www.nielsenmedia.com/nc/portal/site/Public.
23Id.
24Id.
25Id.
2647 C.F.R. § 76.54(b).
4

Federal Communications Commission

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TABLE 1 – WABC-TV VIEWING IN MERIDEN, CT

Survey
Households
Share
Standard
Net
Standard
Year27
Studied
Viewing
Error
Weekly
Error
Hours
Circulation
Nov. 2007/
7
0.00
0.00
0.00
0.00
May 2008
Nov. 2008/
8
0.00
0.00
0.00
0.00
May 2009

TABLE 2 – WABC-TV VIEWING IN MILFORD, CT

Survey
Households
Share
Standard
Net
Standard
Year
Studied
Viewing
Error
Weekly
Error
Hours
Circulation
Nov. 2006/
2
0.00
0.00
0.00
0.00
July 2007
Nov. 2007/
2
0.00
0.00
0.00
0.00
July 2008

TABLE 3 – WABC-TV VIEWING IN WALLINGFORD, CT

Survey
Households
Share
Standard
Net
Standard
Year
Studied
Viewing
Error
Weekly
Error
Hours
Circulation
Feb. 2007/
2
0.00
0.00
0.00
0.00
July 2007
Feb. 2008/
2
0.00
0.00
0.00
0.00
July 2008


27The survey dates of November 2007, May 2008, November 2008 and May 2009 for Meridian and
Waterbury; November 2006, July 2007, November 2007 and July 2008 for Milford; and February 2007, July 2007,
February 2008 and July 2008 for Wallingford. All these dates 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.
5

Federal Communications Commission

DA 12-2054

TABLE 4 – WABC-TV VIEWING IN WATERBURY, CT

Survey
Households
Share
Standard
Net
Standard
Year
Studied
Viewing
Error
Weekly
Error
Hours
Circulation
Nov. 2007/
4
0.00
0.00
0.00
0.00
May 2008
Nov. 2008/
5
0.00
0.00
0.00
0.00
May 2009
As a result, WTNH-TV requests that the Commission grant its petition so that it can assert its exclusivity
rights in the subject communities.
6.
In opposition, WABC-TV argues that WTNH-TV has failed to meet its burden of proof
with regard to its contention that WABC-TV is not significantly viewed in the community of Milford,
Connecticut.28 WABC-TV states that WTNH-TV indicated in its petition that there were two in-tab
households for Milford for the first year’s audience data from the November 2006/July 2007 viewing
period.29 However, WABC-TV asserts that, based upon its review of this data, it appears that while there
are two in-tab households for the November 2006 viewing period, there are no in-tab households for the
July 2007 viewing period.30 WABC-TV maintains that in Gulf-California Broadcast Company, the
Commission stated where a petitioner elects to submit community-specific data to support a waiver of the
significantly viewed exception, each community that is subject to the waiver request must be represented
in each survey period for which data is submitted.31 WABC-TV argues that because there are no in-tab
households for Milford for July 2007, WTNH-TV has not met the Commission’s requirement that the
community of Milford be represented in each survey.32
7.
In reply, WTNH-TV argues that WABC-TV’s opposition is deficient and should not be
considered.33 WTNH-TV states that the re-tabulation of Nielsen data it submitted in support of its
petition shows two in-tab households for the November 2006/July 2007 viewing period for Milford.34
WTNH-TV points out that WABC-TV does not submit any Nielsen data itself or state the name or
qualifications of the individual who apparently reviewed the data for Milford.35 Such an unsupported


28Opposition at 2.
29Id. at 2-3.
30Id. at 3.
31Id. at 2, citing 23 FCC Rcd 7406, 7411 (2008) (“rules for a community-specific survey . . . require that
each community be represented in each survey.”).
32Id., citing MMK License LLC, 20 FCC Rcd 11704, 11707 (2005) (denying request for waiver with respect
to community of Horse Cave, Kentucky in part because petitioner submitted data for one survey period without any
diaries).
33Reply at 1.
34Id.
35Id. at 2.
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assertion, maintains WTNH-TV, does not constitute a “detailed full showing, supported by affidavit, of
any facts or considerations relied on,” as required by Section 76.7(b)(1) of the Commission’s rules.36
Moreover, WTNH-TV argues that WABC-TV’s reliance on Gulf-California is misplaced.37 WTNH-TV
states that in Gulf-California the Commission specifically rejected WABC-TV’s argument, stating that
“there is no requirement that a specific number of in-tab diaries be used to calculate the average audience
in a specific community in each survey period.”38 In addition, Gulf-California relied on three sweeps
periods and was therefore required to provide separate data for each sweeps periods and an average of all
sweeps periods for each year.39 In this case, WTNH-TV asserts that it has submitted the statistically
valid average of two sweeps periods, as permitted by Commission precedent.40 WTNH-TV maintains
that there is no reason to believe that it is trying to skew the viewership results by avoiding survey
periods. Indeed, it states that in Milford, as in all of the other three communities herein, WABC-TV had
zero shares in all of the survey periods presented.41

III.

DISCUSSION

8.
We find that, for the communities of Meriden, Wallingford and Waterbury, WTNH-TV
made the requisite showing to support its petition. As required by the rules, WTNH-TV has provided
community-specific survey results for the subject community for each year surveyed. For all of these
communities, the submitted data show that WABC-TV does not attain a measurable audience, either in
terms of total weekly viewing hours or net weekly circulation share. Accordingly, we find that the
submitted audience surveys are sufficient to show that WABC-TV no longer attains the viewing levels
needed to demonstrate significantly viewed status in the communities of Meriden, Wallingford and
Waterbury, Connecticut.
9.
With regard to the community of Milford, WABC-TV raised a question with respect to
the placement of the in-tab households for Milford for the first year’s survey, claiming that the two in-tab
households from that year were from the November 2006 survey and none from the July 2007 survey.
WTNH-TV argued that it meets the requirements and need not submit separate sweeps results, although
doing so could resolve the question of the placement of the in-tab households for the surveys chosen.
Our precedent makes clear that the rules for a community-specific survey require that each community be
represented in each survey.42 Furthermore, we have held that one household is insufficient to estimate
average viewing for a community in a community-based survey; at a minimum, two households must be
sampled, at least one from each survey period, to calculate an average for a community.43 We allow


36Id., citing 47 C.F.R. § 76.7(b)(1).
37Id.
38Id., citing Gulf-California Broadcast Company, 23 FCC Rcd at 7411.
39Id. The Commission found that the petitioner’s failure to provide the required separate data raised
questions of whether the inclusion of additional sweeps periods had skewed the results. Id.
40Id. at 3, citing Virginia Broadcasting Corporation, 22 FCC Rcd 18109, 18111 (2007); WBOC, Inc., 24
FCC Rcd 1635, 1636 (2009).
41Id. WTNH-TV points that that WABC-TV’s reliance on MMK License is also misplaced because in that
case the Commission denied the request not only because individual data for two sweeps periods, submitted without
requirement by the petitioner, showed that there was no data for one of two sweeps periods, but more critically, that
the other sweeps periods showing viewing far above the required threshold.
42See Gulf-California Broadcast Broadcast Company, 23 FCC Rcd at 7411.
43See Virginia Broadcasting Corporation, 22 FCC Rcd at 18117-18.
7

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petitioners to combine two survey periods and provide average audience statistics over the two periods
because that increases the sample size and the reliability of the estimates. In this case, for the community
of Milford, WTNH-TV used two in-tab households, a very small sample, but an average could have been
calculated and the sample would have met the requirements of the rules, if at least one in-tab household
was included for each survey period. However, we must reject the showing for Milford because there are
no in-tab households for one of the survey periods, and the claimed average is solely the result of one
survey period.44 We note that for the second year survey data for Milford (November 2007/July 2008)
and for both first and second year data for Wallingford (February 2007/July 2007; February 2008/July
2008) the reported results were also based on 2 in-tab households. The distinguishing difference in those
results was that one in-tab household came from each survey period. Had WTNH submitted comparable
results for the first year survey period for Milford, that reported result would have satisfied the minimum
requirements of our rules. As it did not, we cannot conclude that WABC-TV is no longer significantly
viewed in the community of Milford, Connecticut.

IV.

ORDERING CLAUSES

10.
Accordingly,

IT IS ORDERED

, that the petition filed by WTNH-TV Broadcasting, Inc

IS GRANTED

for the communities of Meriden, Wallingford and Waterbury, Connecticut, but

IS
DENIED

for the community of Milford, Connecticut.
11.
This action is taken pursuant to authority delegated under Section 0.283 of the
Commission’s rules.45
FEDERAL COMMUNICATIONS COMMISSION
Steven A. Broeckaert
Senior Deputy Chief, Policy Division
Media Bureau


44This is consistent with the decision in MMK License where the petitioner submitted the separate sweep
period data, although it was not required, and we disallowed the showing because for several survey periods there
were no in-tab households. See MMK License, 20 FCC Rcd at 11707.
4547 C.F.R. §0.283.
8

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