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Waiver Of The Network Nonduplication And Syndicated Exclusivity Rules

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Released: December 13, 2013

Federal Communications Commission

DA 13-2390

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Saga Broadcasting, LLC
)
)

CSR-8524-N
Petition For Waiver of Sections 76.92(f) and
)
76.106(a) of the Commission’s Rules
)

MEMORANDUM OPINION AND ORDER

Adopted: December 13, 2013

Released: December 13, 2013

By the Senior Deputy Chief, Policy Division Media Bureau:

I.

INTRODUCTION

1.
Saga Broadcasting, LLC, licensee of television broadcast station WXVT (CBS),
Greenville, Mississippi (“WXVT”), 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,
WXVT seeks a waiver of the significantly viewed exception so that it may enforce its exclusivity rights
against television broadcast stations WJTV (CBS), Jackson, Mississippi (“WJTV”) and WREG-TV
(CBS), Memphis, Tennessee (“WREG-TV”).2 No opposition to this petition has been received. For the
reasons discussed below, we grant in part WXVT’s waiver petition.

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
syndicated exclusivity rules if it is “significantly viewed” in a relevant community (the “significantly


147 C.F.R. §§ 76.92(f) and 76.106(a). Although not expressly requested in WXVT’s petition for waiver of Sections
76.92(f) and 76.106(a) (significantly viewed exception to the cable network non-duplication and syndicated
exclusivity rules), a waiver of Sections 76.122(j) and 76.123(k) (significantly viewed exception to the satellite
network non-duplication and syndicated exclusivity rules) 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. 47
U.S.C. §§ 340(a)(2) and (c); 47 C.F.R. §§ 76.122(j), 76.123(k).
2Petition at 1.
3See 47 C.F.R. §76.92; 47 C.F.R. §76.101.

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DA 13-2390

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
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.8 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.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 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


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).
6 KCST-TV, Inc., 103 FCC 2d 407, 413 ¶ 11 (1986).
747 C.F.R. §76.5(i). The Commission has found that this type of test is applicable as well for waivers of the
syndicated exclusivity exemption. See Chambers Cable of Oregon, Inc., 5 FCC Rcd 5640, 5640-41 ¶ 6 (1990).
847 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.
9Although, 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).
10It should be noted that Nielsen identifies individual communities by zip codes, a process not incompatible with the
surveying process discussed here.
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community served by the cable system.11 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.12 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.13 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.14 Finally, we
note that the manner in which surveys based on sweep periods are averaged, remains the same as for
weekly surveys.15 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 to ensure the reported audience results data are not skewed by the choice of sweep periods.

III.

DISCUSSION

5.
WXVT seeks a waiver of stations WJTV and WREG-TV’s significantly viewed status in
Cleveland, Grenada, Greenwood, Indianola, Charleston and Greenville, Mississippi, so that it may
enforce its exclusivity rights against these stations.16 WXVT states that it is licensed to a community in


1147 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.
12We 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. See, e.g., Radio Perry, Inc., 11 FCC Rcd 10564, 10568-9 ¶ 10 (CSB
1996); Gulf-California Broadcast Company, 21 FCC Rcd 3476, 3479-80 ¶ 8 (MB 2006). 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. 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.
1347 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.”
14Id. 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.
15Section 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.”
16Petition at 1. WJTV and WREG-TV are considered to be significantly viewed in the counties of Bolivar, Grenada,
Leflore, Sunflower, Tallahatchie and Washington, Mississippi, where the communities at issue are located. See id. at
2. WXVT also notes that Commission records indicate these communities are served by Cable One, Inc. and
Cebridge Acquisition, L.P. d/b/a Suddenlink. See id. at 1.
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the Greenwood-Greenville, Mississippi designated market area (“DMA”), while WJTV is licensed to a
community in the Jackson, Mississippi DMA and WREG-TV is licensed to a community in the
Memphis, Tennessee DMA.17 WXVT argues that it would normally be entitled to assert network
nonduplication and syndicated exclusivity protection against these stations in the subject communities,
but it cannot because WJTV and WREG-TV are considered significantly viewed therein.18 WXVT
maintains, however, that WJTV and WREG-TV no longer meet the significantly viewed standard in the
subject communities and, as proof, it submits the results of special community-specific surveys
conducted by Nielsen.19 WXVT states Nielsen conducted a special tabulation of over-the-air viewing
using diaries from noncable/non-ADS homes for specified zip codes comprising the communities.20 The
submitted data are averages of two four-week audience sweep periods in each of two years. The first
year’s audience estimates were derived from February and May 2010 audience sweep data, combined,
and the second year’s estimates from the February and May 2011 audience sweep data.21 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.22 WXVT maintains that for WJTV and WREG-TV, the
shares of total viewing hours in over-the-air homes in the subject communities are far short of the
required significantly viewed minimums, within one standard error, as shown in the tables below:

TABLE 1 – WREG-TV VIEWING IN CLEVELAND, MS

Survey
Households
Share
Standard
Net
Standard
Year23
Studied
Viewing
Error
Weekly
Error
Hours
Circulation
Feb. 2010/
4
0.00
0.00
0.00
0.00
May 2010
Feb. 2011/
4
0.00
0.00
0.00
0.00
May 2011

TABLE 2 – WREG-TV VIEWING IN GRENADA, MS



17Id. at 2.
18Id. at 2 & 4. WXVT states that WJTV and WREG-TV achieved their significantly viewed status by their inclusion
in Appendix B to the Reconsideration of the Cable Television Report and Order. Amendment of Part 74, Subpart K,
of the Commission’s Rules and Regulations Relative to Community Antenna Television Systems
, Memorandum
Opinion and Order on Reconsideration, 36 FCC 2d 326, App. B (1972).
19Id. at Exhibit 1.
20Id. 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.
21Id.
2247 C.F.R. § 76.54(b).
23The survey dates of March 2009, May 2009, February 2010 and May 2010 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.
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Survey
Households
Share
Standard
Net
Standard
Year
Studied
Viewing
Error
Weekly
Error
Hours
Circulation
Feb. 2010/
3
0.00
0.00
0.00
0.00
May 2010
Feb. 2011/
6
0.00
0.00
0.00
0.00
May 2011

TABLE 3 – WREG-TV VIEWING IN CHARLESTON, MS

Survey
Households
Share
Standard
Net
Standard
Year
Studied
Viewing
Error
Weekly
Error
Hours
Circulation
Feb. 2010/
2
0.00
0.00
0.00
0.00
May 2010
Feb. 2011/
1
0.00
0.00
0.00
0.00
May 2011

TABLE 4 – WJTV VIEWING IN GREENWOOD, MS

Survey
Households
Share
Standard
Net
Standard
Year
Studied
Viewing
Error
Weekly
Error
Hours
Circulation
Feb. 2010/
7
0.00
0.00
0.00
0.00
May 2010
Feb. 2011/
9
0.00
0.00
0.00
0.00
May 2011

TABLE 5 – WJTV VIEWING IN INDIANOLA, MS

Survey
Households
Share
Standard
Net
Standard
Year
Studied
Viewing
Error
Weekly
Error
Hours
Circulation
Feb. 2010/
1
0.00
0.00
0.00
0.00
May 2010
Feb. 2011/
7
0.00
0.00
0.00
0.00
May 2011

TABLE 6 – WJTV VIEWING IN GREENVILLE, MS

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Survey
Households
Share
Standard
Net
Standard
Year
Studied
Viewing
Error
Weekly
Error
Hours
Circulation
Feb. 2010/
4
0.00
0.00
0.00
0.00
May 2010
Feb. 2011/
10
0.00
0.00
0.00
0.00
May 2011
As a result, WXVT requests that the Commission grant its petition so that it can assert its exclusivity
rights in Cleveland, Grenada, Greenwood, Indianola, Charleston and Greenville, Mississippi.
6.
We find that WXVT made the requisite showing to support its petition, in part. As
required by the rules, WXVT has provided community-specific survey results for the subject
communities for each station for each year surveyed. For the communities of Cleveland and Grenada,
the submitted data for both years indicates that WREG-TV has no measurable audience shares.
Similarly, for the community of Greenwood, the submitted data for both years indicates that WJTV has
no measurable audience shares. For significant viewing purposes, network stations, such as WJTV and
WREG-TV, must exceed an average 3 percent share of total viewing hours and an average 25 percent net
weekly circulation to be considered significantly viewed, as set forth in Section 76.5(i) of the
Commission’s rules.24 When the standards errors are added, both stations fail to meet the criteria
threshold. Accordingly, we find that the submitted audience surveys are sufficient to show that WREG-
TV no longer attains the viewing levels needed to demonstrate significantly viewed status in Cleveland
and Grenada, Mississippi, and WJTV no longer attains the viewing levels needed to demonstrate
significantly viewed status in Greenwood, Mississippi, and we grant WXVT’s request with regard to
these communities.
7.
The showings for WREG-TV in Charleston, and WJTV in Indianola and Greenville,
however, do not meet the methodological requirements for demonstrating that a station is no longer
significantly viewed, despite the fact that that reported results show no audience in each case. For
WREG-TV, the reported audience in Charleston for the second year (February 2011/May 2011) is based
on one in-tab household as is the audience for WJTV in Indianola for the first year (February 2010/May
2010). In each case, there were no in-tab households in one of the survey periods claimed to be used to
calculate the average audience. The Commission has previously stated 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.”25 The Commission has also emphasized that “the rules for a community-specific
survey only require that each community be represented in each survey . . . .”26 We allow petitioners to
combine two survey periods – combining in-tab households and audience levels – and provide average
audience statistics over the two periods to increase the sample size and the reliability of the estimates.
Because we allow petitioners to combine surveys, the fact that an average cannot be calculated for an
individual survey period (i.e., one four-week sweep period) since its results are based on only one in-tab
household does not invalidate a submission. However, if there are no in-tab households for one of the


24See 47 C.F.R. § 76.5(i).
25See Gulf-California Broadcasting Company, 23 FCC Rcd 7406, 7411 ¶ 9 (MB 2008).
26Id.
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survey periods, then the process of combining surveys is contrary to our intent because the individual
survey adds nothing, and the claimed average is solely the result of one survey period.27 Accordingly, the
data reported by WXVT for WREG-TV in Charleston and WJTV in Indianola is not acceptable for a
showing of significantly viewed status.
8.
With regard to the showing for WJTV in Greenville, the audience reported in the petition
is improperly derived from the results shown in the exhibit providing the Nielsen data. As shown in
Exhibit 1, Nielsen separately reports audience for two zip codes, which appear to be the correct ones for
designating Greenville.28 For instance, for zip code 38701, Nielsen shows 2 in-tab households for the
first year and 5 in-tab households for the second year. For zip code 38703, Nielsen also reports 2 in-tab
households in the first year and 5 in-tab households for the second year. Nielsen reports no audience for
either zip code or survey year.29 In its petition, WXVT provides one set of data for Greenville, and it
appears to have done so by combining the separate results for the two zip codes to create its chart
showing 4 in-tab households for first year and 10 for the second year in Greenville with no reported
audience.30 Because all of the audience statistics in this case are zero, what WXVT presents in the
petition is likely to be statistically accurate, but it is not appropriate for a petitioner to simply combine
data provided by Nielsen. Had there been any audience reported, the petitioner could not accurately
combine the data from two defined areas in this manner to produce a statistically reliable result since
Nielsen’s re-tabulations are based on sampling and weighting procedures that are not readily apparent
from their reports. Accordingly, the data reported by WXVT for WJTV in Greenville is not acceptable
for a showing of significantly viewed status.
9.
We note further, that it is also not appropriate to accept the showing for Greenville,
based on the fact that Nielsen provided separate results for the two zip codes that make up Greenville,
when it should have provided data for one cable community comprised of both zip codes.31 Zip codes
may be used by petitioners to identify cable communities for Nielsen to use to retrieve in-tab households
from its databases to re-tabulate audience statistics for this purpose. We expect that the zip codes used
for identifying communities for Nielsen match the area served by the cable community, or CUID, where
a petitioner seeks significantly viewed status or a station is seeking a waiver of the significantly viewed
exception. In many cases, this is simply another way of identifying an incorporated city, town, or other
political jurisdiction in lieu of or in addition to stating its name. In some cases, however, the cable
community may not have a standard community name, such as the case of unincorporated areas or


27See MMK License LLC, 20 FCC Rcd 11704, 11707. ¶ 7 (MB 2005) (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 also Virginia Broadcasting Corporation, 22 FCC Rcd 18109, 18117-18 ¶ 12 (MB 2007)
(denying a request for waiver of the significantly viewed exception to the exclusivity rules in communities for which
the reported data for one survey year was based on one in-tab household, and thus could not be the average of the
reported audience for two survey periods).
28See http://zip4.usps.com/zip4/citytown.jsp Of the five zip codes listed by the USPS for Greenville, it appears that
the two zip codes used by Nielsen are the correct ones for this community. This website indicates that two others,
38702 and 38704, are post office boxes or other special cases. A fifth zip code – 38731, was identified with
Chatham or Greenville, so it is reasonable to conclude that it may not coincide with the cable community at issue.
29See Petition at Exhibit 1.
30See id. at 7.
31If the two zip codes represented different CUIDs, separate reporting would be accurate. But, since WXVT
combined the results, it appears to have sought consideration of Greenville as one community. In WXVT’s Section
76.54(c) notice attached as Exh. 2 to its petition, Greenville is also listed as one community with two zip codes.
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multiple CUIDs in a political jurisdiction. As we have stated in other cases, it is not necessary that there
be in-tab households from each and every zip code used to identify the community (i.e., not all zip codes
assigned to a community must be included in the sample), once the list of relevant zip codes have been
enumerated by the petitioner in its request for a re-tabulation of Nielsen’s data. Therefore, in this
situation, WXVT should have asked Nielsen to provide audience data for Greenville, Mississippi, which
is comprised of zip codes 38701 and 38703. Nielsen then would have provided WXVT with one result
for Greenville that would have been appropriate for this showing and one likely to show the same
audience viewing levels. However, because the procedures followed herein are not consistent with the
approach we have approved previously, it is not acceptable in this instance.
10.
For the above reasons, we find that a partial grant of a waiver of the significantly viewed
exception from the network nonduplication and syndicated exclusivity rules with regard to the
community-specific surveys for Cleveland, Grenada and Greenwood, Mississippi, will serve the public
interest. With regard to the communities of Indianola, Charleston and Greenville, Mississippi, however,
WXVT’s waiver petition is denied.

IV.

ORDERING CLAUSES

11.
Accordingly,

IT IS ORDERED

, that the Petition filed by Saga Broadcasting, LLC

IS

GRANTED

to the extent indicated above, and otherwise

DENIED

.
12.
This action is taken pursuant to authority delegated under Section 0.283 of the
Commission’s rules.32
FEDERAL COMMUNICATIONS COMMISSION
Steven A. Broeckaert
Deputy Chief, Policy Division
Media Bureau


3247 C.F.R. §0.283.
8

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