Federal Communications Commission
DA 12-1275
Before the
Federal Communications Commission
Washington, D.C. 20554
In the matter of
)
)
WMGM-TV, Wildwood, NJ
)
(Facility ID No. 61111)
)
)
Request for Waiver of Section 73.1943 of the
)
MB Docket No. 12-218
Commission’s Rules
)
)
Standardized and Enhanced Disclosure
)
Requirements for Television Broadcast Licensee
)
Public Interest Obligations
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MEMORANDUM OPINION AND ORDER
Adopted: August 6, 2012
Released: August 6, 2012
By the Chief, Media Bureau:
I.
INTRODUCTION
1. Access.1 New Jersey License Company, LLC (“Access.1”), the licensee of television station
WMGM-TV, Wildwood, NJ (“WMGM” Facility ID No. 61111), has filed with the Media Bureau the
above-captioned request for a waiver1 of the August 2, 2012 deadline for posting its political file online
according to newly adopted Section 73.1943(d) of the Commission’s rules.2 Pursuant to Section
73.1943(d), as supplemented by Section 73.3526(b)(3), the top four network affiliates in the top 50
markets must commence posting their political file documents online on the Commission’s website by the
effective date of the
Enhanced Disclosure Report and Order.3 For the reasons stated below, we grant
Petitioner a waiver pursuant to Section 1.3 of the Commission’s rules, and allow it to refrain from posting
its political file online until July 1, 2014.
II.
BACKGROUND
A.
Enhanced Disclosure Requirement With Respect to the Online Political File
2. On April 27, 2012, the Commission adopted new enhanced disclosure rules requiring
television broadcast stations to post their public file information online to both facilitate dialogue between
broadcast stations and the communities they serve and increase public participation in licensing.4 The
Commission also found that making the political file component of the public file available online will
1 Letter Waiver Request from James L. Winston, Counsel, Access.1, to Marlene H. Dortch, Secretary, FCC (July 31,
2012) (“Waiver Request”).
2
See Standardized and Enhanced Disclosure Requirements for Television Broadcast Licensee Public Interest
Obligations, MB Docket No. 00-168, Report and Order, 27 FCC Rcd 4535, 4589, Appendix A, Section 73.1943(d)
(2012) (“
Enhanced Disclosure Report and Order”).
3
See Enhanced Disclosure Report and Order, 27 FCC Rcd at 4589-90, Appendix A, Sections 73.1943(d) &
73.3526(b)(3).
4
See Enhanced Disclosure Report and Order, 27 FCC Rcd at 4542, ¶ 12.
Federal Communications Commission
DA 12-1275
enable candidates, the public, journalists, educators and the research community to identify the sponsors
of political advertisements, and that this transparency would enable the electorate to make informed
decisions and hold elected officials accountable.5 Newly adopted Section 73.1943(d) of the
Commission’s rules requires television station licensees or applicants to begin posting the contents of
their political files on the Commission’s website by the effective date of the rule, August 2, 2012.6
However, the Commission chose to exempt “all stations not in the top 50 DMAs, and all stations in the
top 50 DMAs that are not affiliated with the top four national television broadcast networks” from having
to post their political file documents online until July 1, 2014.7 Hence, smaller market stations and
stations unaffiliated with the top four networks are permitted to keep their political files at the station in
the traditional manner until July 1, 2014, at which time they too must commence posting any new
political material on the Commission’s website.
3. In adopting an exemption for small market and non-affiliated stations that allows them to
delay posting their political files online, the Commission’s stated purpose was to ease implementation for
broadcasters during the initial transition to the online public file, while also giving the Commission time
to ensure that the online public file system is implemented effectively.8 The Commission noted that,
because the contents of the political file are time-sensitive, stations must place records in the political file
“immediately absent unusual circumstances.”9 The Commission stated that it was appropriate to require
stations with greater market reach to undertake this time-sensitive transition first, as they will be more
likely to have dedicated resources to address any implementation issues that arise, if necessary.10
Moreover, the Commission stated that limiting initial compliance to network affiliates in the largest
markets, while easing initial implementation for broadcasters, will at the same time provide the public
with online access to the political files of stations garnering the vast majority of political advertising time
and money.11
B.
Petitioner’s Waiver Request
4. WMGM is an NBC-affiliate licensed to Wildwood, New Jersey and assigned to the
Philadelphia DMA (the “Philadelphia DMA”), one of the top 50 DMAs.12 As an affiliate of a top four
network in one of the top 50 DMAs, absent a waiver, it would have to comply with the August 2, 2012
implementation deadline by which licensees must commence posting their political files on the
Commission’s website. On July 31, 2012, WMGM filed a waiver request letter arguing that it should be
treated as a
de facto small market station and be required to start posting its political file online on July 1,
2014, like other smaller market network affiliates. WMGM makes several arguments in support of this
waiver request.
5. First, WMGM asserts that it is not the primary NBC affiliate serving the Philadelphia DMA.
It states that WCAU, licensed to Philadelphia, PA (Facility ID No. 63153), is the primary NBC affiliate
5
Id. at 4543, ¶ 16.
6
See Enhanced Disclosure Report and Order, 27 FCC Rcd at 4589, Appendix A, Section 73.1943(d).
7
Enhanced Disclosure Report and Order, 27 FCC Rcd at 4551;
see also
id. at 4590, Appendix A, Section
73.3526(b)(3).
8
Id. at 4558, ¶ 46.
9
Id. at 4558, ¶ 46 & n.142 (citing
infra at 4562-64, ¶¶ 55-58; 47 C.F.R. § 73.1943(c)).
10
Id. at 4558, ¶ 46 & n.143 (citing the Named State Broadcasters Association Comments at 7 (“Undoubtedly, these
costs would fall even more heavily on smaller television stations.”)).
11
Id. at 4558-59, ¶ 48.
12 Waiver Request at 1.
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DA 12-1275
and that the digital service contours of these two stations cover different areas, overlapping only
slightly.13
6. Second, WMGM argues that its location in the Philadelphia DMA – currently the fourth
ranked DMA in the country14 – does not reflect market realities.15 WMGM states that its service area has
always been the Atlantic City market, but because Nielsen’s market rankings do not rank Atlantic City as
a separate market, WMGM is instead included as part of the Philadelphia DMA.16 However, WMGM
argues that it remains a small market station and only competes in the Atlantic City portion of the
Philadelphia DMA.17 WMGM also argues that as a small market station, it has limited staff to fulfill
online political filing obligations and to address any implementation issues.18
7. Finally, WMGM asserts the Commission recognized it as a small market station when in
1995 it granted WMGM’s request that it be permitted to pay regulatory fees in accordance with those
assessed upon “remaining market stations” –
i.e., stations not in the top 100 television markets as
determined by Nielsen – as opposed to the fees applicable to stations assigned to the Philadelphia DMA.19
WMGM states the Commission has continued to grant this waiver every year up to the present.20
Furthermore, in granting WMGM’s regulatory fee waiver request in 1995, the Commission had stated
that “WMGM-TV’s predicted Grade B contour does not reach Philadelphia or any other major
metropolitan area within the Philadelphia Market,” and WMGM argues its current predicted digital signal
contour continues not to reach Philadelphia or any other major metropolitan area within the Philadelphia
market.21
8. For all the reasons stated above, WMGM asks for additional time to begin uploading its
online political file in accordance with the implementation schedule established for small market and non-
affiliate stations.22
III.
DISCUSSION
9. Pursuant to section 1.3 of the Commission's rules, the Commission may waive any provision
of its rules if it determines that good cause has been shown.23 We conclude that Petitioner has
13
Id. at 2.
14
See Television & Cable Factbook 2012 at A-1.
15 Waiver Request at 2. Each county in the United States is allocated to a market. Section 614(h)(1)(C) of the
Communications Act, as amended by the Telecommunications Act of 1996, provides that a station’s market shall be
determined by the Commission by regulation or order using, where available, commercial publications which
delineate television markets based on viewing patterns.
See 47 U.S.C. §534(h)(1)(C). As described in Section
76.55(e)(2) of the Commission’s Rules, as of January 1, 2000, commercial broadcast television stations’ markets are
defined by Nielsen Media Research’s Designated Market Areas (“DMAs”).
See 47 C.F.R. § 76.55(e)(2).
16 Waiver Request at 2.
17
Id.
18
Id.
19
Id. at 2 & n.3 (citing Letter from Marilyn J. McDermett, Associate Managing Director for Operations, FCC, to
Dennis J. Kelly, Counsel, WMGM, (Aug. 9, 1995) (“WMGM 1995 Waiver Letter”)).
20
Id. at 2.
21
Id. at 2 & n.4 (citing WMGM 1995 Waiver Letter).
22
Id. at 2.
23
See 47 C.F.R. § 1.3. The Commission may exercise its discretion to waive a rule where the particular facts make
strict compliance inconsistent with the public interest.
Northeast Cellular Telephone Co. v. FCC, 897 F.2d 1164,
(continued....)
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DA 12-1275
demonstrated good cause for a waiver. WMGM has shown that it serves – and has served – a smaller
market, Atlantic City, New Jersey,24 and that it is not the primary network-affiliate in the Philadelphia
DMA.25 In 1995, the Commission granted WMGM’s request that it be treated as a “remaining market
station” (a station falling outside the top 100 markets as ranked by Nielsen) for purposes of paying its
regulatory fees, and WMGM continues to be treated like a small market station for regulatory fee
purposes today.26 Accordingly, requiring it to meet the same implementation deadline as the top affiliates
in the top 50 markets would run counter to the rationale underlying the exemption for smaller market
stations and would be inconsistent with the public interest.27 Petitioner has therefore shown that good
cause exists for grant of the instant waiver request. We will therefore waive compliance with the
requirement that WMGM post its political file documents online, pursuant to Section 73.1943(d) of the
Commission’s rules, until July 1, 2014.28 We stress that WMGM remains subject to the other
requirements of the
Enhanced Disclosure Report and Order, including the requirement to begin posting
other public file documents online on August 2, 2012.
IV.
ORDERING CLAUSES
10. Accordingly, IT IS ORDERED that, pursuant to Section 1.3 of the Commission’s rules, 47
C.F.R. §§ 1.3, the request for waiver filed by Access.1 New Jersey License Company, LLC, the licensee
of television station WMGM-TV, Wildwood, NJ (Facility ID No. 61111), IS GRANTED to the extent
described above.
11. This action is taken pursuant to authority delegated by Section 0.283 of the Commission’s
rules, 47 C.F.R. § 0.283.
FEDERAL COMMUNICATIONS COMMISSION
William T. Lake
Chief, Media Bureau
(...continued from previous page)
1166 (D.C. Cir. 1990)(
Northeast Cellular). In addition, the Commission may take into account considerations of
hardship, equity, or more effective implementation of overall policy on an individual basis.
WAIT Radio v. FCC,
418 F.2d 1153, 1159 (D.C. Cir. 1969),
cert. denied 409 U.S. 1027 (1972);
Northeast Cellular, 897 F.2d at 1166.
Waiver of the Commission's rules is therefore appropriate only if special circumstances warrant a deviation from the
general rule, and such deviation will serve the public interest.
Northeast Cellular, 897 F.2d at 1166.
24
See supra ¶¶ 6-7.
25
See supra ¶ 5.
26
See supra ¶ 7 & note 19.
27
See supra ¶ 3.
28 We recently granted a waiver of the same provision for a television station in very similar circumstances.
See
WHAG-TV, Hagerstown, MD,
(Facility Id No. 25045), Request for Waiver of Section 73.1943 of the Commission's
Rules, MB Docket No. 12-216, Memorandum Opinion and Order, DA 12-1216, 2012 WL 3108672 (MB rel. Jul. 30,
2012).
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