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Waiver Of The Network Nonduplication Rules

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Released: November 8, 2013

Federal Communications Commission

DA 13-2150

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

TVL Broadcasting of Rhode Island, LLC
)
)

CSR-8373-N
Petition For Waiver of Section 76.92(f)
)
of the Commission’s Rules
)

MEMORANDUM OPINION AND ORDER

Adopted: November 8, 2013

Released: November 8, 2013

By the Senior Deputy Chief, Policy Division Media Bureau:

I.

INTRODUCTION

1.
TVL Broadcasting of Rhode Island, LLC, licensee of station WPRI-TV (CBS),
Providence, Rhode Island (“WPRI-TV”), 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 rules (“exclusivity rules”).1 Specifically, WPRI-TV seeks a waiver of
the significantly viewed exception so that it may enforce its exclusivity rights against WBZ-TV (CBS),
Boston, Massachusetts (“WBZ-TV”) in the communities of South Easton and Fall River, Massachusetts.2
Oppositions to this petition have been filed on behalf of CBS Corporation, licensee of WBZ-TV, the
Town of Easton, Massachusetts (“Easton”), and the Massachusetts Department of Telecommunications
and Cable (“MDTC”), to all of which WPRI-TV replied.3 For the reasons discussed below, we grant, in
part, WPRI-TV’s waiver request.


1See 47 C.F.R. § 76.92(f). Although not expressly requested in WPRI-TV’s petition for waiver of Section 76.92(f)
(significantly viewed exception to cable network nonduplication), a waiver of Sections 76.122(j) (significantly
viewed exception to satellite network nonduplication) 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) & 76.122(j).
2Petition at 1.
3We note that WBZ-TV filed a “Motion to Accept Late Filing” with regard to the filing of its opposition which was
filed after the required 20-day response period required pursuant to Section 76.7 of the Commission’s rules.
Although WPRI-TV filed a reply to this opposition, it also requested that the Commission strike the late-filed
opposition. In the interests of a complete record, we will accept WBZ-TV’s opposition and deny WPRI-TV’s
motion to strike.

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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 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.6
3.
In order to obtain a waiver of Section 76.92(f), the Commission held in KCST-TV, Inc.7
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.8 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.9 The Commission has found that this type of test is applicable as well for waivers of the
syndicated exclusivity exemption.10
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.11 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


4See 47 C.F.R. §76.92; 47 C.F.R. §76.101.
5 47 C.F.R. §76.92(f); see 47 C.F.R. §§76.5(i) and 76.54.
6 47 C.F.R. §76.106(a).
7 KCST-TV, Inc., 103 FCC 2d 407, 413 ¶ 11 (1986).
847 C.F.R. §76.5(i).
9 Id.
10 See Chambers Cable of Oregon, Inc., 5 FCC Rcd 5640, 5640-41 ¶ 6 (1990).
1147 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.
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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
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 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. 14 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.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


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 ¶ 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).
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 obtained from Nielsen. 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). 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
(continued…)
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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
results data are not skewed by the choice of sweep periods.

III.

DISCUSSION

5.
WPRI-TV seeks a waiver of the significantly viewed exception so that it may enforce its
network nonduplication rights against station WBZ-TV for the communities of South Easton and Fall
River, Massachusetts.19 WBZ-TV is considered to be significantly viewed in Bristol County,
Massachusetts, where the communities at issue are located.20
6.
WPRI-TV states that it is licensed to a community in the Providence, Rhode Island-New
Bedford, Massachusetts designated market area (“DMA”), while WBZ-TV is licensed to the Boston,
Massachusetts DMA.21 WPRI-TV argues that it would normally be entitled to assert network
nonduplication protection against WBZ-TV in the subject communities, but it cannot because WBZ-TV
is considered significantly viewed in Bristol County, Massachusetts.22 WPRI-TV maintains, however,
that WBZ-TV no longer meets the significantly viewed standard in South Easton and Fall River and, as
proof, it submits the results of special community-specific surveys conducted by Nielsen.23 WPRI-TV
states that Nielsen conducted a special tabulation of over-the-air viewing using audience data from
noncable/non-ADS homes for specified zip codes comprising the communities.24 The submitted data are
averages of two four-week audience sweep periods in each of two years. For South Easton, the first
year’s audience estimates were derived from May 2007 and November 2007 audience sweep data,
combined, and the second year’s estimates from the May 2008 and November 2008 audience sweep data,
combined.25 For Fall River, the first year’s audience estimates were derived from July 2008 and
November 2008 audience sweep data, combined, and the second year’s from July 2009 and November
2009 audience sweep data, combined.26 These survey dates and the method used to combine audience


(…continued from previous page)
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.”
19Petition at 1.
20Id.
21Id. at 2.
22Id. WPRI-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. See 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).
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 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.
25Id.
26Id.
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surveys are consistent with the requirements set forth in Section 76.54(b) of the Commission’s rules.27
WPRI-TV maintains that for WBZ-TV, the share of total viewing hours in over-the-air homes in South
Easton and Fall River is far short of the required significantly viewed minimums, within one standard
error, as shown in the tables below:

TABLE 1 – WBZ-TV VIEWING IN SOUTH EASTON, MA

Survey
Households
Share
Standard
Net
Standard
Periods
Studied
Viewing
Error
Weekly
Error
Hours
Circulation
May 2007/
2
0.00
0.00
0.00
0.00
Nov. 2007
May 2008/
3
0.00
0.00
0.00
0.00
Nov. 2008

TABLE 2 – WBZ-TV VIEWING IN FALL RIVER, MA

Survey
Households
Share
Standard
Net
Standard
Periods
Studied
Viewing
Error
Weekly
Error
Hours
Circulation
July 2008/
11
1.46
1.26
14.37
10.31
Nov. 2008
July 2009/
8
0.59
0.46
9.31
8.80
Nov. 2009
As a result, WPRI-TV requests that the Commission grant its petition so that it can assert its exclusivity
rights in the subject communities.
7.
In its opposition, Easton argues that the survey submitted with WPRI-TV’s petition is
seriously flawed and should be rejected.28 Easton states that: 1) the survey is based on an exceedingly
small sampling of Easton residents which cannot accurately represent the views of the town’s 23,357
residents; 2) the survey only takes into account the results from one section of the town, not the entire
community; 3) the survey methodology is outdated because it is based on only over-the-air
programming;29 4) the data supplied is statistically invalid because Nielsen failed to explain which
viewers returned surveys or what “usable” means; and 5) the statistical errors inherent in the survey are
so considerable as to render the survey meaningless and unacceptable.30 Easton also argues that granting
WPRI-TV’s petition is not in the public interest because Easton residents look for and receive important


2747 C.F.R. § 76.54(b).
28Easton Opposition at 2.
29Id. Easton points out that Easton residents view television programming from multiple sources – over-the-air,
cable television, personal computers, online, mobile phones, etc.
30Id.
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programming from WBZ-TV much more so than they do from WPRI-TV.31 Finally, Easton asserts that
WPRI-TV’s petition singles out “South Easton” for exclusion, but not the entire town.32
Easton
maintains that such a narrow exclusion is misleading and not in the public interest because there is no
finite municipality called “South Easton.”33 Easton states that it believes the petition was focused on one
zip code in the town (02375) simply because WPRI-TV could not achieve the results it was seeking for
the entire town.34
8.
In reply, WPRI-TV argues that Easton’s objections are procedurally defective and not
legally cognizable because they rely on factual assertions and considerations that Easton does not support
with an affidavit, as required by Section 76.7(b)(1) of the Commission’s rules.35 WPRI-TV maintains
that Easton’s arguments that the Nielsen survey methodology is seriously flawed are misplaced and come
too late.36 WPRI-TV states that, as required by Section 76.54(c) of the Commission’s rules, it gave prior
notice to potentially affected parties of its intention to conduct a survey in support of a waiver of the
significantly viewed exception, one of whom was Easton.37 Easton had twenty days from the receipt of
this notice to respond to the procedures outlined in the notice, but did not do so.38 WPRI-TV maintains
that Easton should, therefore, not be allowed to raise objections for the first time here.39 In any event,
WPRI-TV asserts, Easton’s objections to the survey methodology are simply wrong.40 The Commission
has consistently granted such waivers that relied on two or three Nielsen in-tab households and have been
found to be statistically valid.41 WPRI-TV maintains that Easton’s opinion that the survey may not
reflect the views of all of the town’s residents is not probative.42 Further, WPRI-TV points out that
established Commission precedent requires that surveys to establish significant viewing or to waive such
status must be based exclusively on non-cable/non-ADS households.43 Moreover, while Easton asserts
that the statistical errors in the survey are considerable, it does not explain what these errors are or any


31Id. For instance, Easton notes that in the recent Massachusetts election results on November 2, 2010, only WBZ-
TV carried the results in detail. Further, Easton states that WBZ-TV carries important news, weather, traffic reports,
and topical local programming of interest which are not available from WPRI-TV. See id. at 2-3.
32Id. at 3.
33Id.
34Id.
35Reply to Easton at 2, citing 47 C.F.R. § 76.7(b)(1).
36Id.
37Id. at Exhibit A. WPRI-TV states that Easton received its notice on July 21, 2010.
38Id. at 3.
39Id.
40Id.
41Id. at 3-4, citing WPBF-TV Company, 25 FCC Rcd 9102, 9105 ¶ 6 (MB 2010); Tribune Television Company, 24
FCC Rcd 1622, 1625 ¶ 6 (MB 2009).
42Id. at 4. WPRI-TV states that it is the viewing of the residents, as reflected in a statistically valid survey, not their
supposed views that are important.
43Id., citing 47 C.F.R. § 76.54(b) (“Significant viewing . . . may be demonstrated by an independent audience survey
of over-the-air television homes . . . .”); see also MMK License LLC, 22 FCC Rcd 795, 800 ¶ 12 (MB 2007) (“The
Commission has recently restated its view, based on the original intent of the rules, that significant viewing is to be
based on off-air viewing. . . .”(citation omitted)).
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justification for reversal of long-standing precedent.44 WPRI-TV argues that Easton also misunderstands
the intent of its waiver request in its contention that residents would lose access to “important
programming from WBZ-TV.”45 WPRI-TV states that it is seeking a waiver to require cable systems to
delete CBS network programming carried on WBZ-TV when that programming duplicates CBS network
programming carried on WPRI-TV. WPRI-TV states that it does not seek to block any cable system
from carrying WBZ-TV’s non-network programming and therefore grant of its waiver should have no
effect on the availability of programming of interest to Easton’s residents.46 Finally, WPRI-TV argues
that there is nothing nefarious or improper in its selection of the South Easton zip code for the survey.47
WPRI-TV states that it is simply adhering to the long-standing practice, approved by the Commission, of
relying on the United States Postal Service (“USPS”) Zip Code database to determine which zip codes
apply for each community survey.48 WPRI-TV points out that in KATC Communications, Inc., the
Commission states that “[i]t should be noted that not all zip codes for each community are represented,
but as the rule is written, they need not be.”49 WPRI-TV states that it should also be noted that the USPS
database distinguishes between North Easton and South Easton.50 WPRI-TV argues that, while it would
have been helpful to consolidate ZIP codes from different USPS community designations in order to
aggregate in-tab households for the entire community, the USPS does not allow such flexibility.51

9.
In its opposition, the MDTC agrees with Easton that it is not in the public interest to
grant WPRI-TV’s request because then it would become the sole provider of CBS programming in the
communities.52 MDTC notes that WBZ-TV is included on the Commission’s list of significantly viewed
stations for Bristol County, Massachusetts, where the subject communities are located. MDTC argues
that it does not believe that the Commission should remove a television station from this list in specific
communities simply because those communities may not view the station at levels sufficient for
significantly viewed status.53 Further, MDTC asserts that the residents of Fall River and Easton, many of
whom work in Massachusetts, have a significant interest in receiving Massachusetts-specific local news,
political information, weather, and traffic reports.54 It is, therefore, imperative that cable systems in these
two communities carry television stations, like Boston-based WBZ-TV, that provide such information.55
Finally, MDTC states that, for basic service tier subscribers, excluding carriage of WBZ-TV would
remove a channel from an already extremely limited channel line-up.56 In reply, WPRI-TV argues that,


44Id. at 5.
45Id., citing Easton Opposition at 2.
46Id.
47Id. at 6.
48Id. at 6 & Exhibit B. WPRI-TV notes that this information was also available in the Section 76.54(c) survey
notification to Easton. See id. at 6.
49Id. at 7, citing KATC Communications, Inc.,16 FCC Rcd 6861, 6865 ¶ 13 (CSB 2001).
50Id. at Exhibit B. WPRI-TV notes that the address listed on Easton’s opposition is “North Easton, Massachusetts.”
51Id. at 8.
52MDTC Opposition at 2.
53Id.
54Id.
55Id.
56Id.
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not only is MDTC’s opposition procedurally defective and unsupported by affidavit, but essentially
repeats the same arguments raised by Easton.57 It therefore requests that this opposition be stricken or
denied.58
10.
In its opposition, CBS argues that grant of WPRI-TV’s request would almost certainly
result in the removal of WBZ-TV from the cable systems serving Fall River and South Easton; a loss
which would be a grave disservice to the affected communities.59 CBS states that while WPRI-TV is an
outstanding television station, it is firmly rooted in Rhode Island. In an analysis of the last four issues-
quarterly reports prepared by WPRI-TV, CBS notes that, out of a total of 206 programs or program
segments, only seven could be classified as “Massachusetts Interest.”60 In contrast, CBS states, WBZ-
TV’s reports reflect that 272 out of 584 cited programs or program segments describe “Massachusetts
Interest” rather than “General Interest.”61 CBS points out that WBZ-TV has combined its newsgathering
resources with sister stations WSKB-TV and WBZ (AM) news radio and is now the largest
newsgathering operation in Massachusetts.62 For example, CBS states that WBZ-TV provided extensive
coverage of the 2010 midterm election campaign.63 Moreover, WBZ-TV regularly covers news that is of
particular interest to residents in Bristol County, including viewers in Fall River and South Easton.64
11.
CBS argues further that the Nielsen study submitted by WPRI-TV is flawed and
insufficient to override the public interest considerations in permitting WBZ-TV to remain accessible to
cable subscribers in Fall River and South Easton.65 With respect to Fall River, CBS states that the survey
appears to conform to the letter of the Commission’s rules, although they believe that the choice of a
May rather than July “sweeps” period would be far more representative of over-the-air viewing
patterns.66 With regard to South Easton, however, CBS maintains that WPRI-TV chose to reach back to
2007 and 2008 for survey data because there are simply no more recent over-the-air diarists in the
community’s one zip code.67 CBS argues, however, that reliance on these dated reports is inappropriate
in a community where WBZ-TV’s share of overall audience relative to WPRI-TV has increased both in
2009 and 2010.68 CBS contends that if indeed there have been no over-the-air Nielsen diaries in South
Easton since 2008, the Commission should not accept a “significantly viewed” survey of the community


57Reply to MDTC at 2.
58Id.
59CBS Opposition at 3.
60Id. at Exhibit A.
61Id.
62Id. at 3. CBS states that the coverage WBZ-TV offers Massachusetts residents of the economic, social and
especially political life of their state is unparalleled and is truly indispensible to any resident would wants to be well-
informed.
63Id. at Exhibit B.
64Id. at Exhibit C.
65Id. at 5.
66Id. at 6.
67Id.
68Id.
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based on outdated Nielsen sweeps data.69
CBS maintains that in a significantly viewed study it
commissioned from Nielsen using the same unrepresentative measure of over-the-air viewing submitted
by WPRI-TV, WBZ-TV meets the Commission’s “significantly viewed” test.70 CBS states that for its
study, Nielsen examined Fall River’s in-tab households for the May 2009 and February 2010 sweeps
periods and found that WBZ-TV had a total viewing share of 10.66 percent and a net weekly circulation
of 44.60 percent.71 CBS therefore argues that WPRI-TV’s request should be denied.
12.
In reply, WPRI-TV states that CBS’ only objection appears to relate to the viewership
showing submitted for South Easton because it relies on surveys from 2007 and 2008.72 While WPRI-TV
concedes that CBS is correct in its assertion that there are no more recent over-the-air diaries in the
community’s one ZIP code, CBS does not cite any Commission case which rejected an otherwise
qualifying waiver petition simply because an opponent preferred that the petitioner meet a higher
standard than Commission precedent requires.73 WPRI-TV notes that CBS doesn’t contend that the
petition’s showing is deficient pursuant to Commission precedent, but instead simply does not want
WBZ-TV to lose carriage in two communities that are not in the Boston DMA.74 WPRI-TV states that,
in essence, CBS is asking that the Commission change its longstanding policy regarding waivers of
significant viewed status because it does not like the results in this instance.75 WPRI-TV argues,
however, that the instant order cannot be used to change Commission policy and CBS has presented no
justification for such a policy change.76 Indeed, WPRI-TV states that the only reliable evidence CBS
provides is a significant viewing re-tabulation which clearly shows that WBZ-TV fails to achieve the
level of viewing required for significantly viewed status.77 Moreover, CBS’s contention that WPRI-TV
should have surveyed Bristol County as a whole ignores the fact that, since the Commission’s decision in
KCST-TV, petitions seeking waiver of the significantly viewed exception must adhere to the methodology
set forth in Section 76.54(b) of the Commission’s rules which requires viewership data be based on either
community-specific or system-specific over-the-air viewing.78
13.
Further, WPRI-TV argues that CBS offers no support for its speculative contention that
grant of the instant waiver would not be in the public interest.79 WPRI-TV states that if WBZ-TV’s local
news coverage is truly indispensible, as CBS claims, than there is no reason to expect that a cable
operator will choose to drop WBZ-TV entirely from its lineup just because of a routine network


69Id.
70Id. at Exhibit D.
71Id.
72Reply to CBS at 2-3.
73Id. at 5. WPRI-TV agrees that a lack of diaries conforming to the Commission’s strict requirements poses
challenges to filers of significantly viewed waiver petitions. It was because of the lack of a sufficient number of
diaries which led it to seek waiver only in Fall River and South Easton and not additional communities.
74Id. at 3.
75Id.
76Id.
77Id.
78Id. at 6, citing 47 C.F.R. § 76.54(b).
79Id. at 4.
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nonduplication request.80 In any event, WPRI-TV points out, it has not asked for and is not entitled to
enforce deletion of any of WBZ-TV’s local programming.81 Moreover, despite CBS’ claims, WPRI-TV
states that it provides extensive daily coverage of news, politics and public affairs throughout its
coverage area, including a substantial portion that falls in Massachusetts.82
14.
Initially, with regard to the procedural arguments raised by WPRI-TV regarding Easton’s
and MDTC’s lack of an affidavit, we concur with WPRI-TV that Section 76.7(b)(1) of the Commission’s
rules does require an affidavit to be filed with any opposition to a petition for special relief.83 However,
given that our finding herein would not have been changed had acceptance of the oppositions been
denied, we see no reason to strike the oppositions and will accept them as part of the record.
15.
We find that, for South Easton, the data submitted by WPRI-TV demonstrates that WBZ-
TV is no longer significantly viewed because the station attains zero audience in both years surveyed.
We agree with WPRI-TV that these data are from a properly conducted survey and are consistent with
Commission precedent. As a result, Easton’s assertions regarding the study’s flaws are rejected.
However, Easton separately questioned whether South Easton was properly a community for purposes of
determining significantly viewed status. In this regard, we agree with Easton that South Easton is not a
community, as defined by the Commission’s rules. Section 76.54(b) of the rules sets forth procedures for
determining whether a television station is significantly viewed in a “cable television or satellite
community.”84 Section 76.5(dd) of the rules defines a system community unit as “[a] cable television
system, or portion of a cable television system that operates or will operate within a separate and distinct
community or municipal entity (including unincorporated communities within unincorporated areas and
including single, discrete unincorporated areas).”85 A community in this context would therefore be
assigned a community unit identifier number (“CUID”) when registered with the Commission, pursuant
to Section 76.1801 of the rules.86 According to Commission records, there is no assigned CUID for
South Easton, but only for Easton, an incorporated town.87 As a result, it appears that the Town of
Easton is one cable community and any survey for significantly viewed status should have included the
entire town, using all the zip codes assigned to the town for purposes of identifying the community for
Nielsen’s re-tabulation of its existing data. On this basis, the request for waiver for South Easton is
denied.
16.
We also point out in the interests of clarity that WPRI-TV misinterprets the
Commission’s position on the use of zip codes in these types of waivers. While we have approved the
use of zip codes for identifying the relevant cable community for Nielsen’s database search, we have
never stated that the zip codes used for purposes of significantly viewed status data must match USPS
designations. Rather, we expect that the zip codes used for identifying communities for Nielsen match


80Id.
81Id.
82Id. at Exhibits A and B.
83See 47 C.F.R. § 76.7(b)(1).
84See 47 C.F.R. § 76.54(b).
85See 47 C.F.R. § 76.5(dd).
86See 47 C.F.R. § 76.1801.
87There are two CUID numbers for Easton – MA0233 for cable system operated by Comcast Communications and
MA0472 for a cable system operated by Verizon.
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DA 13-2150

the area served by the cable community where a petitioner seeks significantly viewed status or an
exclusivity waiver for a station.88 In the case herein, WPRI-TV should have requested a Nielsen re-
tabulation of all the zip codes assigned to Easton, Massachusetts.89

17.
With regard to the community of Fall River, WPRI-TV made the requisite showing to
support its petition. As required by the rules, WPRI-TV has provided community-specific survey results
for the subject community for each year surveyed. When the standard errors are added to the reported
audience shares, WBZ-TV does not meet the criteria for significantly viewed status for a network
affiliate in Fall River. For the first year, the results show that WBZ-TV attained a 2.72 percent share of
total viewing hours (1.46 reported share + 1.25 standard error) and a 24.68 percent net weekly circulation
share (14.37 reported share + 10.31 standard error). For the second year, the results indicate that WBZ-
TV attained a 1.05 percent share of total viewing hours (0.59 reported share + 0.46 standard error) and an
18.11 percent net weekly circulation share (9.31 reported share + 8.80 standard error). Accordingly, we
find that the submitted audience surveys are sufficient to show that WBZ-TV no longer attains the
required viewing levels needed to demonstrate significantly viewed status for a network affiliate (i.e., 3
percent share of total weekly viewing hours and a 25 percent net weekly circulation share). Therefore,
we conclude that WBZ-TV is no longer significantly viewed in the community of Fall River,
Massachusetts.
18.
We note that CBS claimed that more recent data demonstrated that WBZ-TV remains
significantly viewed in Fall River and submitted the combined results of two audience survey periods.
While the survey CBS provides for two survey periods and the dates it uses would be permissible for a
showing that a station is significantly viewed, the reported results do not demonstrate that WBZ-TV
remains significantly viewed as CBS has claimed. To ensure that the reported audience statistics reflect
the actual viewing in an area, we examine the reported results in conjunction with the standard error
calculated by Nielsen for its data. By considering the standard error along with the reported audience
statistic, we are creating a confidence interval, or upper and lower bounds, around the reported statistic to
take into account the effect of potential sampling error. Where these bounds are derived using one
standard error, we can be approximately 70 percent confident that the actual viewing level is within the
upper and lower bounds, if all households had been surveyed. Thus, to demonstrate that a station is or
remains significantly viewed, the standard error is subtracted from the reported audience statistics to find
their lower bounds to be reasonably sure that these lower bounds exceed the required criteria. If so, then
the station is shown to be significantly viewed. When the standard errors are subtracted from CBS’s
data, WBZ-TV attains a 2.22 percent share of total viewing hours (6.44 reported share – 4.22 standard
error) and a net weekly circulation share of 11.24 percent (27.92 reported share – 16.68 standard error),
both of which fall below the criteria for significantly viewed status for a network affiliate.
19.
Finally, with regard to the public interest arguments raised by all the parties, regarding
the potential deletion of the valuable local programming provided by WBZ-TV, we point out that a grant
of a waiver of the network nonduplication rules only requires the cable operator to delete the duplicating


88WPRI-TV misinterprets prior Commission precedent. See supra ¶ 8. In prior decisions, it has been stated that
there need not 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 by the USPS must be included in the sample), once they have been enumerated by
the petitioner in its request for a re-tabulation of Nielsen’s data.
89In WPRI-TV’s Reply to Easton’s Opposition at Exhibit B, USPS lists four zip codes for Easton – 02334, 02256,
02357, and 02375 – which should have been identified for Nielsen. It appears from this submission that one zip
code is assigned to one or more PO Boxes and another is a unique zip code. Since it is likely that neither of these
codes contains residences, they would not be represented in the sample, which is acceptable.
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DA 13-2150

network programming carried by the competing station and not the entire station. Therefore, any
programming that WBZ-TV carries that does not infringe on WPRI-TV’s rights in its market may still be
made available to cable system subscribers.

IV.

ORDERING CLAUSES

20.
Accordingly,

IT IS ORDERED

, that the petition filed by TVL Broadcasting of Rhode
Island, LLC

IS GRANTED

for the community of Fall River, Massachusetts, but

IS DENIED

for the
community of South Easton, Massachusetts.
21.
This action is taken pursuant to authority delegated under Section 0.283 of the
Commission’s rules.90
FEDERAL COMMUNICATIONS COMMISSION
Steven A. Broeckaert
Deputy Chief, Policy Division
Media Bureau


9047 C.F.R. §0.283.
12

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