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Waiver Of The Network Nonduplication And Syndicated Exclusivity Rules

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Released: August 16, 2013

Federal Communications Commission

DA 13-1771

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Catamount Broadcasting of Chico-Redding, Inc. )
CSR-8782-N
and Chico License LLC, Chico, California
)
Docket No. 13-107
)
Petition For Waiver of Sections 76.92(f), 76.106(a), )
76.122(j), and 76.123(k) of the Commission's )
Rules
)

MEMORANDUM OPINION AND ORDER

Adopted: August 16, 2013

Released: August 16, 2013

By the Senior Deputy Chief, Policy Division, Media Bureau:

I.

INTRODUCTION

1. On April 5, 2013, Catamount Broadcasting of Chico-Reading, Inc., licensee of CBS affiliate
KHSL-TV, and Chico License L.L.C., licensee of NBC affiliate KNVN(TV), both of Chico, California,
filed a petition to request a waiver in Chico of the significantly viewed status of KOVR(TV) (CBS),
Stockton, California and of KCRA-TV (NBC), Sacramento, California.1 The grant of this waiver would
allow Petitioners to assert their stations' network non-duplication and syndicated exclusivity rights and
thereby delete on cable and satellite systems serving the community of Chico, any KCRA and KOVR
programming which duplicates programs aired on KNVN and KHSL. Without such a waiver, the
significantly viewed status of KCRA and KOVR grants them an exception to the rights these exclusivity
rules provide to KNVN and KHSL.2 No oppositions have been filed in response to the Petition,3 and for
the reasons discussed below, we grant Petitioners' waiver request.


1 Petition for Special Relief by Catamount Broadcasting and Chico License, L.L.C., filed April 5, 2013 ("Petition").
GOCOM Media and K4 Media, the assignees of KHSL and KNVN, respectively, joined in the petition with the
intention of pursuing the same requested relief once they had become licensees of the stations. See Petition at 1, n.1.
Subsequently, GOCOM Media of Northern California LLC ("GOCOM"), became the licensee of KHSL, and K4
Media Holdings LLC ("K4 Media"), became the licensee of KNVN (the "Petitioners"), and these successors in
interest filed a supplemental pleading. See Supplement to Petition for Special Relief by GOCOM and K4 Media, at
1 & n.1, filed Aug. 9, 2013 ("Supplement").
2 Petitioners seek a waiver of the exclusivity rules applicable to both cable and DBS systems, see Petition at 1, n.2.,
and the same showing for cable that a station is no longer significantly viewed in the relevant community under
Sections 76.92(f) and 76.106(a) (with respect to cable systems), is also effective for obtaining a waiver under
Sections 76.122(j) and 76.123(k) (with respect to DBS systems). See 47 C.F.R. 76.92(f), 76.106(a), 76.122(j),
and 76.123(k).
3 The petition was placed on Public Notice on April 29, 2013, initially numbered as CSR-8782-S. By Public Notice
on May 20, 2013, its designation was corrected and it number changed to CSR-8782-N.

Federal Communications Commission

DA 13-1771

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(a) of the Commission's rules, however, a signal
otherwise subject to deletion is exempt from application of both the network nonduplication and
syndicated exclusivity rules if it is "significantly viewed" in a relevant community (the "significantly
viewed exception").5 Section 75.5(i) of our rules, defines a "significantly viewed" network station as one
that is viewed in over-the-air households such that it achieves a share of viewing hours of at least 3
percent (total week hours), and a net weekly circulation of at least 25 percent.6 Furthermore, to
demonstrate such audience levels, Section 76.54(b) states that a petitioner may submit
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. If 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 level.
If this viewership level is met, the station is deemed to be significantly viewed and is no longer
considered distant for purposes of the application of the network nonduplication and syndicated
exclusivity rules; it is subject to the significantly viewed exception to these rules.7
3. To obtain a waiver of this exception with respect to certain communities or cable systems,
the Commission held in KCST-TV, Inc. that a petitioner 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 same methodology set forth in Section
76.54(b), above.8 To ensure that the reported audience does not exceed the levels required to
demonstrate significantly viewed status at least a 3 percent share (total week hours) and at least a 25
percent cume (net weekly circulation) one standard error is added to both the station's share of the total
weekly viewing hours and its net weekly circulation share. If the results of these calculations do not
exceed the share of viewing hours and net weekly circulation levels required by Section 76.5(i), then we
must conclude the station is no longer considered significantly viewed.
4. Since the Commission's decision in KCST-TV, the methodology required by Section 76.54(b)
of the rules has evolved pursuant to case law and market realities. 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


4 See 47 C.F.R. 76.92(a) et seq.; 47 C.F.R. 76.101.
5 47 C.F.R. 76.92(f) and 76.106(a); see also 47 C.F.R. 76.5(i) and 76.54.
6 See 47 C.F.R. 76.5(i).
7 See 47 C.F.R. 76.92(f) and 76.106(a).
8 KCST-TV, Inc., 103 FCC 2d 407, 413 11 (1986). Although KCST explicitly dealt with a station obtaining a
waiver of the significantly viewed exception to the network nonduplication rule, the Commission has found that this
test is equally applicable to such waivers of the syndicated exclusivity exemption. See Chambers Cable of Oregon,
Inc.,
5 FCC Rcd 5640, 5640-41 6 (1990).
2

Federal Communications Commission

DA 13-1771

with a sweep period is acceptable and, if anything, adds to the accuracy of the audience statistics because
of the increased sample size.9 Accordingly, a petitioner may submit the results from two sweep 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.10 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.11 Petitioner is 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.12
5. Finally, we note that the manner in which surveys based on sweep periods are averaged,
remains the same as for weekly surveys.13 A petitioner may therefore submit the average of 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 results data are not skewed by the
choice of sweep periods.

III.

DISCUSSION

6. As described above, Petitioners seek a waiver of KCRA and KOVR's significantly viewed
status in Chico, California, to reinstate KHSL and KNVN's exclusivity rights in Chico. Petitioners have
submitted community-specific data from the Nielsen Company to demonstrate that these stations are no
longer significantly viewed in Chico.14 The submitted audience statistics are the result of two separate


9 Although, 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 7 (CSB 2001) (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 it could determine the effect of these sweeps periods).
10 It should be noted that Nielsen identifies individual communities by zip codes, a process not incompatible with the
surveying process discussed here.
11 We 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 database is being used, 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. In this 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 10 (1996); Gulf-
California Broadcast Company,
21 FCC Rcd 3476, 3479-80 8 (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.
12 47 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."
13 Section 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."
14 Descriptions of methodology and the survey data re-tabulated for this request are provided in the Petition, Exh. 2
& Supplement, Exh. 1. In addition, the Petitioners sent letters describing their methodology for conducting the
(continued...)
3

Federal Communications Commission

DA 13-1771

community-specific re-tabulations of Nielsen's audience data based on non-cable/non-ADS homes
located in the six zip codes comprising Chico.15 The submitted data are averages for two-four week
audience sweep periods in each of two years. The first year survey's audience estimates are derived from
Nielsen's February 2011 and July 2011 audience sweep data and the second year estimates are based on
February 2012 and July 2012 data.16 The following tables show for each of the two stations for which
the waiver is requested the number of in-tab households used to derive the audience estimates, the share
of total viewing hours, the standard error for the share of total viewing hours, the net weekly circulation
share, and the standard error for the net weekly circulation share.17

TABLE 1 KOVR(TV) VIEWING IN CHICO

Survey Dates

No. of In- Total Viewing Standard

NWC Share

Standard

Tab HHs

Hours Share

Error

Error

Feb. 11/July 11
42
0.00
0.00
0.00
0.00
Feb. 12/July 12
49
0.06
0.06
1.03
1.04

TABLE 2 KCRA-TV VIEWING IN CHICO

Survey Dates

No. of In- Total Viewing Standard

NWC Share

Standard

Tab HHs

Hours Share

Error

Error

Feb. 11/July 11
42
0.05
0.05
2.14
2.14
Feb. 12/July 12
49
0.00
0.00
0.00
0.00
7.
We find the Petitioners have made the requisite showing to support their petition. The
survey dates they provide and the method they used to combine audience surveys are consistent with the
requirements of the Commission's rules and precedent.18 Petitioners have provided community-specific
survey results for Chico, California for two survey periods in each of two years. The submitted data
show that neither KCRA nor KOVR attain a sufficient measurable audience, either in terms of total
weekly viewing hours or net weekly circulation share, needed to demonstrate significantly viewed status
in the community of Chico, California.19


(...continued from previous page)
surveys to all relevant parties pursuant to Section 76.54(c). See Petition, Exh. 1. They state no party objected to the
proposed surveys. Petition at 5.
15 See Supplement at 2-3 & Exh. 1. The zip codes used to identify Chico are: 95926, 95927, 95928, 95929, 95973,
and 95976. See id. & Exh. 1; infra n.19.
16 See id. & Exh. 1. Petitioners also submitted average audience estimates derived from Nielsen's July 2011 and
November 2011 audience sweep data for the first year and July 2012 and November 2012 audience sweep data for
the second year. See id. & Exh. 1.
17 See id. & Exh. 1.
18 See 47 C.F.R. 76.54(b); see also KCST-TV, Inc., 103 FCC 2d 407, 413 11 (1986).
19 As noted above, Section 76.5(i) of the Commission's rules requires that for network stations such as KCRA and
KOVR to be considered significantly viewed, their survey results should exceed a 3 percent share of total viewing
(continued...)
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Federal Communications Commission

DA 13-1771

8. Accordingly,

IT IS ORDERED

, that the petition filed by Catamount Broadcasting of Chico-
Reading, Inc., and Chico License Licensee L.L.C.,

IS GRANTED

.
9. This action is taken pursuant to authority delegated under Section 0.283 of the Commission's
rules.20
FEDERAL COMMUNICATIONS COMMISSION
Steven A. Broeckaert
Deputy Chief, Policy Division
Media Bureau


(...continued from previous page)
hours and a net weekly circulation of 25 percent, by at least one standard error. See 47 C.F.R. 76.5(i). The
submitted data show that neither station achieved this level of viewership in the Feb./July periods analyzed. We also
note that the additional July 2011/Nov. 2011 and July 2012/Nov. 2012 data which Petitioners submitted, but which
we did not discuss as part of our analysis, also demonstrates that KCRA and KOVR are no longer significantly
viewed in Chico.
20 47 C.F.R. 0.283.
5

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