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Before the

Federal Communications Commission

Washington, D.C. 20554

In re Applications of )

)

HERITAGE MEDIA SERVICES, INC. )

(Transferor) )

)

and ) File No. BTCCT-970519ZF

)

WILLIAM G. EVANS, TRUSTEE )

(Transferee) )

)

For Consent to the Transfer of Control of )

the License for Television Station )

WNNE-TV, Hartford, Vermont )

)

and )

)

WNNE-TV, INC. )

(Assignor) )

)

and ) File No. BALCT-970805KK

)

WNNE LICENSEE, INC. )

(Assignee) )

)

For Consent to the Assignment of Television)

Station WNNE-TV, Hartford, Vermont )

)

and )

)

ROLLINS TELECASTING, INC. )

(Assignor) )

)

and ) File No. BALCT-970805KH

)

WPTZ LICENSEE, INC. )

(Assignee) )

)

For Consent to the Assignment of Television)

Station WPTZ(TV), North Pole, New York)

MEMORANDUM OPINION AND ORDER

Adopted: January 16, 1998 Released: January 23, 1998

By the Commission:

1\. The Commission has before it for consideration an application for
review of the

August 19, 1997 action by the Assistant Chief, Video Services Division,
which denied, and

dismissed in part, the informal objection filed by Mt. Mansfield
Television, Inc. (Mt.

Mansfield) against the transfer of control of WNNE-TV, Hartford, Vermont
(NBC, Channel

31\) from Heritage Media Services, Inc. (Heritage Media), a wholly-owned
subsidiary of

Heritage Media Corporation (Heritage Corp.), to William G. Evans,
Trustee (Trustee). See

Letter to Heritage Media and Trustee from James J. Brown, Assistant
Chief, Video Services

Division (Aug. 19, 1997) (Division Letter). Pursuant to the transfer of
control transactions, the

Trustee controls WNNE-TV, Inc. and Rollins Telecasting, Inc. (Rollins
Telecasting), the

licensees of WNNE-TV and WPTZ(TV), North Pole, New York (NBC, Channel
5),

respectively. An application to assign WNNE-TV to WNNE Licensee, Inc.
has been filed, as

has an application to assign WPTZ(TV) to WPTZ Licensee, Inc. Both of
these assignees are

indirect, wholly-owned subsidiaries of Sinclair Broadcast Group, Inc.
(Sinclair). The WNNE-

TV and WPTZ(TV) assignment applications, Mt. Mansfield\'s informal
objection to the WNNE-

TV assignment and the responsive pleadings filed with respect to the
transfer of control and the

assignment proceedings are also before the Commission. Because Mt.
Mansfield presents

virtually identical issues and arguments in each of its pleadings, we
will consolidate the

application for review and informal objection (collectively, the
\"Pleadings\").

BACKGROUND

2\. The predicted Grade B contour of WNNE-TV overlaps that of
commonly-controlled

WPTZ(TV) in contravention of the duopoly prohibition set forth in
Section 73.3555 of the

Commission\'s rules. 47 C.F.R. § 73.3555(b). Therefore, to effect the
transfer to the Trustee,

Heritage Media requested that WNNE-TV be allowed to continue to operate
as a satellite of

WPTZ(TV) in accordance with the satellite exception to the duopoly
prohibition. Mt.

Mansfield had opposed the request, arguing that: (1) the Trustee failed
to meet its burden of

satisfying the Commission\'s three-prong public-interest test for the
presumption that a station

may continue to operate as a satellite; (2) the Trustee should be
required to demonstrate that,

absent the basis for a presumption, compelling circumstances existed
which warranted a waiver;

and (3) any grant of a satellite waiver for WNNE-TV should be
conditioned on the outcome of

the Commission\'s review of its television broadcast ownership policies
and regulations. In

addition, Mt. Mansfield claimed that Heritage Media\'s time brokerage
agreement with the

permittee of WFFF, Channel 44, Burlington, Vermont, would give it
control of three out of the

five commercial television stations in the \"relatively small\"
Burlington, Vermont-Plattsburgh,

New York market, and that Heritage Media should be required to
demonstrate the extent to

which the informational programming commitments made in its 1990
satellite request, \"which

formed a basis for the Commission\'s public interest finding, remain
applicable today.\" Informal

Objection (July 24, 1997) at 4.

3\. In responding to Mt. Mansfield\'s informal objection to the transfer
application,

Heritage Media substituted for its satellite request a claim, inter
alia, that the small degree of

Grade B overlap between WNNE-TV and WPTZ(TV) qualified the stations for
a de minimis

waiver of the duopoly rule. According to Heritage Media, terrain
features limit the Grade B

contours of WNNE-TV and WPTZ(TV), and thus account for only a small
overlap between the

two stations. In support, Heritage Media submitted a Supplementary
Engineering Statement

containing population counts of the terrain-limited Grade B coverage of
WNNE-TV and

WPTZ(TV) as determined by using the Longley-Rice Irregular Terrain
Model, Version 1.2.2

and 1990 U.S. Census data. Mt. Mansfield challenged Heritage Media\'s
duopoly waiver

request, contending that it failed because the Commission has neither
found an overlap de

minimis on the basis of population estimates alone, without considering
the extent of the overlap

area, nor relied on a terrain-limited analysis to conclude that an
overlap is de minimis.

4\. Upon review of the record and its own independent technical
analysis, the staff

confirmed Heritage Media\'s terrain-limited analysis that the overlap
between WNNE-TV and

WPTZ(TV) is de minimis. The staff granted a waiver of the duopoly rule
on that basis,

concluding that it would serve the public interest, convenience and
necessity, and dismissed as

moot Mt. Mansfield\'s informal objection as it related to the initial
continued satellite request.

In addition, the staff stated that Mt. Mansfield presented no evidence
that the time brokerage

agreement between WFFF\'s permittee and Heritage Media failed to comply
with the

Commission\'s rules and policies, or that WFFF\'s permittee had
surrendered control of its station

to Heritage Media. The staff further noted that time brokerage
agreements are nonattributable

interests for the purposes of the television multiple ownership rules.
Lastly, after reciting the

improvements made to WNNE-TV\'s technical facilities and the overall
increase in local news

programming, the staff concluded that Heritage Media had made good faith
efforts to carry out

its earlier proposals regarding WNNE-TV\'s local news and public affairs
programming.

5\. In the Pleadings under consideration here, Mt. Mansfield reiterates
the issues raised

in the WNNE-TV transfer of control proceeding, see supra µµ2 and 3 and
challenges the staff\'s

grant of the de minimis duopoly waiver request as contrary to Commission
precedent and policy.

Specifically, Mt. Mansfield contends that in granting the original
satellite waiver for WNNE-TV

in 1990, the full Commission rejected Heritage Corp.\'s terrain-based
calculation showing de

minimis overlap. Thus, Mt. Mansfield argues, the staff\'s decision \"to
bypass\" the Commission\'s

three-prong presumptive waiver test, and characterize the overlap
between WNNE-TV and

WPTZ(TV) as de minimis based on a terrain-limited analysis, is
inconsistent with the 1990

ruling. Also inconsistent, Mt. Mansfield claims, are the results of
Heritage Media\'s terrain

limited analysis with those of the staff\'s analysis. Mt. Mansfield
further criticizes the staff\'s

decision as having been based entirely on the staff\'s own terrain
analysis, and for failing to

provide an explanation of the methods and data used in that terrain
analysis. The staff\'s failure

to give the parties an opportunity to review and comment on its
analysis, Mt. Mansfield

maintains, also raises due process concerns.

DISCUSSION

6\. Having reviewed the staff\'s decision, we find that the staff
thoroughly considered

all relevant information and that its decision is adequately supported
and consistent with

Commission precedent and policy. As for the allegations relating to the
programming

commitments made by Heritage Media in 1990, and the potential of the
Trustee or Sinclair to

control or influence a third station in the market by means of a time
brokerage agreement with

WFFF, Mt. Mansfield has presented no new facts or arguments that would
cause us to alter the

staff\'s conclusions on these issues. We take this opportunity to
emphasize that, contrary to Mt.

Mansfield\'s assertion, our grant of the satellite request in 1990 was
not based on the alleged

programming commitments made by Heritage Media. Rather, we considered
Heritage Media\'s

programming proposals as factors reinforcing the appropriateness of that
grant. Taft, 5 FCC Rcd

at 6991. We believe, moreover, that Mt. Mansfield\'s concerns regarding
the number of media

interests held by a licensee in a smaller market are more appropriate
for consideration in a

rulemaking proceeding, such as those underway which deal with various
relationships by

broadcasters in the same market, including television time brokerage
agreements. See Priscilla

A. Schwier, et al., FCC 97-313 (released September 22, 1997); see also
Further Notice of

Proposed Rulemaking, MM Docket No. 94-150, et al., 11 FCC Rcd 19895
(1996); Second

Further Notice of Proposed Rulemaking, MM Docket Nos. 91-222 and 87-7,
FCC 96-438

(released November 7, 1996) (Television Ownership Second Further
Notice). We note, here,

our statement in the Television Ownership Second Further Notice, that we
would \"reserve the

right . . . to invalidate an otherwise grandfathered LMA \[local
marketing agreement\] in

circumstances that raise particular competition and diversity concerns,
such as those that might

be presented in very small markets.\" Id. at µ88.

7\. In addition, we affirm the staff\'s decision granting a duopoly
waiver based on a

terrain-limited analysis which demonstrates that the overlap between
WNNE-TV and WPTZ(TV)

is de minimis, i.e., the overlap represents less than one percent of
both the area and population

of the Grade B contour of each station. See Hubbard Broadcasting, Inc.,
2 FCC Rcd 7374

(1987). As a preliminary matter, we are not swayed by Mt. Mansfield\'s
argument that the

Division Letter is inconsistent with our 1990 decision granting the
original satellite request for

WNNE-TV. According to Mt. Mansfield, the inconsistency lies in the
staff\'s reliance upon the

terrain-limited analysis to grant the duopoly waiver request at issue
here, when, in our 1990

decision, we \"specifically rejected\" such an analysis, and instead
relied on the standard

prediction method and \"applied the full waiver analysis.\" We disagree.
Mt. Mansfield\'s

reliance upon language from our 1990 decision, which it characterizes as
a specific rejection of

the terrain-limited analysis, is misplaced. In that decision, we said:

While \[sic\] it appears that the terrain between WNNE(TV) and WPTZ(TV)

is such that the actual overlap area may be less than that shown
utilizing the

standard prediction method of Section 73.684 of our Rules, we cannot
state

that the overlap area will be as small as that shown by the applicants\'

alternative method.

Taft Broadcasting, 5 FCC Rcd at 6992 n.9. This language merely expressed
our deference to

the standard prediction method in light of the particular
terrain-limited analysis before us at that

time. It had neither the intent, nor effect, of foreclosing our future
consideration of alternative

methodology, such as subsequent terrain-limited analyses, to evaluate
the overlap area between

WNNE-TV and WPTZ(TV), or any other two television stations. In this
regard, the staff acted

appropriately and in a manner consistent with our 1990 decision by
reviewing a different terrain-

limited analysis than the one which we considered in 1990. Here,
Heritage Media presented

the staff with a terrain-limited analysis which reflected updated
population data, refinements in

Longley-Rice terrain-sensitive methodology and improvements in computer
technology, and,

significantly, the Commission\'s own terrain-limited analysis confirmed
the de minimis nature of

the overlap area. For these reasons, we state now what we could not in
1990, that the overlap

area between WNNE-TV and WPTZ(TV) is de minimis. Specifically, the
WNNE-TV predicted

Grade B contour encompasses an area of 26,280 square kilometers, and the
WPTZ(TV)

predicted Grade B contour encompasses an area of 43,180 square
kilometers. The staff

determined that the Grade B overlap between WNNE-TV and WPTZ(TV)
comprises an area of

218 square kilometers, which is 0.83 percent of the area within the
WNNE-TV predicted Grade

B signal contour, and 0.50 percent of the area within the WPTZ(TV)
predicted Grade B signal

contour. In addition, based on 1990 U.S. Census data, the populations
within the predicted

Grade B contours of WNNE-TV and WPTZ(TV) are 639,921 and 568,402,
respectively. The

staff\'s analysis confirmed that the population in the overlap area is
also de minimis, finding that

the overlap area contains approximately 1,500 people which represents
0.23 percent of the

population within WNNE-TV\'s predicted Grade B contour, and 0.26 percent
of the population

within WPTZ(TV)\'s predicted Grade B contour.

8\. We also find that, having confirmed the de minimis nature of the
overlap area, the

staff acted in accordance with Commission precedent and policy by
granting a duopoly waiver

on that basis. Section 73.684(f) of our rules permits the filing of
terrain-limited analyses under

certain circumstances, such as those presented in this case. In fact,
\"under Section 73.684(f),

an applicant may make a supplemental terrain-limited contour showing to
demonstrate that the

duopoly restriction of Section 73.3555 is inapplicable.\" Mad River
Broadcasting Company, 4

FCC Rcd 6456, 6458 n.3 (1989); see also Kathleen Bailey d/b/a Capital
Foothill Broadcasters,

4 FCC Rcd 1429, 1430 n.3 (1989). The Commission has previously used
terrain-limited

analyses to conclude that no actual overlap exists. See, e.g., John H.
Phipps, Inc., 11 FCC Rcd

13053, 13054 n.1 (1996) (Commission\'s engineering analysis confirms
that, due to intervening

terrain, no actual overlap exists). We believe it would be
counterintuitive to interpret Section

73.684(f) as permitting the submission of a terrain-limited analysis to
show that the duopoly rule

is inapplicable, i.e., that no actual overlap exists, but not to show
that an overlap is de minimis.

9\. Once a de minimis overlap has been demonstrated, a duopoly waiver
may be granted

on that ground. To this end, we see no reason to treat a de minimis
duopoly waiver request

based on a terrain-limited analysis differently from one based on the
standard prediction method.

Furthermore, Mt. Mansfield cites no evidence in support of its
proposition that the Commission

must conduct an additional public interest analysis in cases where a de
minimis overlap has been

demonstrated by means of a terrain-limited showing. We presume that,
when the overlap area

between two television stations is de minimis, the common ownership of
the stations will not

result in their serving common areas and populations to any significant
degree and, therefore,

that such common ownership will not undermine the concerns that form the
basis of our duopoly

policy. See, e.g., Hubbard Broadcasting, Inc., 2 FCC Rcd 7374. In
addition, Mt. Mansfield

fails to persuade us that previous cases in which a terrain-limited
analysis showed a greater than

de minimis overlap, and thus required additional analysis, control here,
where a de minimis

overlap has been demonstrated. See, e.g., Sunshine Television, Inc., 8
FCC Rcd 4428 (1993).

Rather, those cases support the staff\'s position that the Commission
has previously considered

terrain-limited analyses to determine the overlap area in evaluating
duopoly waiver requests.

For these reasons, we conclude that the staff properly considered the
terrain-limited analysis in

granting the de minimis duopoly waiver request. Accordingly, the
demonstration of a de

minimis overlap between WNNE-TV and WPTZ(TV) mooted the applicants\'
initial continued

satellite request for those stations. Likewise, it moots Sinclair\'s
similar request, and, based upon

the the de minimis nature of the overlap area between the stations, we
will grant a duopoly

waiver to Sinclair.

10\. With respect to the discrepancy between the numerical results of
the staff\'s analysis

and those reached in the analysis submitted by Heritage Media, we
disagree with Mt.

Mansfield\'s conclusion that this deems the analyses inconsistent. Both
analyses yield a de

minimis overlap, the preeminent consistency for our purposes in
reviewing the staff\'s grant of

a de minimis duopoly waiver. In addition, we are satisfied with the
staff\'s judgment, as stated

in the Division Letter, that Heritage Media provided sufficient
engineering data for the

Commission to conduct its own study of the overlap area. We therefore
reject Mt. Mansfield\'s

assertion that the staff gave no explanation of the data used in its
analysis.

11\. Mt. Mansfield likewise fails to persuade us that the Division
Letter is flawed for not

having explained the methods used in the staff\'s analysis when, as the
expert agency in broadcast

television regulation, the Commission employs sound engineering
principles in conducting its

analyses of all technical matters. As the staff correctly noted,
moreover, the Commission has

routinely conducted its own technical analyses, at times involving use
of the Irregular Terrain

Model (ITM), to evaluate de minimis duopoly waiver requests. Here, the
staff\'s analysis

confirmed the de minimis overlap. Mt. Mansfield\'s dissatisfaction with
this result gives us

neither pause nor reason to revise the staff\'s findings and reach a
different conclusion.

Furthermore, Mt. Mansfield\'s failure to submit its own technical
analysis disputing the de

minimis overlap strengthens our resolve on this matter.

12\. Finally, our decision to affirm the Division Letter remains
unchanged by Mt.

Mansfield\'s contention that the staff\'s reliance on its independent
terrain analysis, without

providing an opportunity for adversarial review and comment, raises due
process concerns. We

recently rejected a similar challenge made by the petitioners in Radio
Ingstad Minnesota, Inc.,

FCC 97-199 (released June 17, 1997) (Radio Ingstad) (Commission did not
act arbitrarily by

relying on its independent terrain analysis, corroborating existing
record evidence, without

incorporating it into the record and allowing for adversarial comment),
and we see no basis for

according Mt. Mansfield different treatment in this case. Like the
petitioners in Radio Ingstad,

Mt. Mansfield cites \"no authority for the proposition that the
Commission cannot resort to its

own expertise under the circumstances presented here without providing
for comment . . . .\"

Id. at µ8. However, in the interest of providing Mt. Mansfield with a
more complete

understanding of the basis for the staff\'s conclusions, we have
appended to this Order an

explanation of how the staff conducted its independent analysis.

13\. Upon review of the staff\'s action, we find that the matters raised
by Mt. Mansfield

were fairly, fully and correctly treated. In addition, having determined
WNNE-TV, Inc.,

Rollins Telecasting, Inc. and Tuscaloosa Broadcasting Licensee, Inc.
qualified in all respects,

we conclude that grant of the above-captioned assignment applications
would serve the public

interest.

14\. Accordingly, IT IS ORDERED, That the application for review and
informal

objection filed by Mt. Mansfield Television, Inc. against File Nos.
BTCCT-970519ZF and

BALCT-970805KK, respectively, ARE DENIED.

15\. IT IS FURTHER ORDERED, That a permanent waiver of the television
duopoly

rule, 47 C.F.R. Section 73.3555(b), to allow the common ownership by
Sinclair Broadcast

Group, Inc. of television stations WNNE-TV, Hartford, Vermont, and
WPTZ(TV), North Pole,

New York, IS GRANTED.

16\. IT IS FURTHER ORDERED, That the application for consent to the
assignment of

license of station WNNE-TV from WNNE-TV, Inc. to WNNE Licensee, Inc.,
File No.

BALCT-970805KK, and the application for consent to the assignment of
license of WPTZ(TV)

from Rollins Telecasting, Inc. to WPTZ Licensee, Inc., File No.
BALCT-970805KH, ARE

GRANTED.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

APPENDIX

Determining Grade B Service Contour Overlap

(WNNE-TV, Hartford, VT and WPTZ-TV, North Pole, NY)

The following analysis concerns an engineering exhibit in the
supplemental showing submitted

by HMI Broadcasting Corporation, licensee of WNNE-TV, Hartford, Vermont.
The purpose

is to determine the actual size of the area overlap by the Grade B
service contours of WNNE-TV

and co-owned WPTZ-TV.

WNNE-TV is located 148 kilometers southeast of WPTZ-TV in the 145 N
azimuth. As

determined by the standard prediction method, the area overlap by the
Grade B contours of the

TV stations is about 2,400 square kilometers.

We have examined the terrain profiles along seven evenly spaced radials
(300 N to 360 N) from

WNNE-TV to a distance of 100 km and eight evenly spaced radials (100 N
to 170 N) from

WPTZ-TV to a distance of 100 km using a 3-arc-second terrain database.
From observations

of the terrain profiles, there are large mountain ridges in the area
between WNNE-TV and

WPTZ-TV. Because a major obstacle is usually the limit of a contour,
standard area prediction

procedures are inaccurate and inappropriate where, as here, the terrain
departs widely from

average elevations (average terrain conditions).

From point-to-point field strength calculations based on the path
clearance, the Grade B service

contours in the area of interest are limited by the obstructing ridges.
When both Grade B

contours stop at the same mountain ridge, there is some minimal overlap
area at the top of the

ridge. It is reasonable to assume that very few TV viewers, if any, are
located at rugged

mountain peaks.

Conclusion

The WNNE-TV predicted Grade B contour encompasses an area of 26,280
square kilometers,

and the WPTZ(TV) predicted Grade B contour encompasses an area of 43,180
square

kilometers. Based on our calculations, the Grade B contours of WNNE-TV
and WPTZ-TV are

as indicated by the dashed line and dotted line on the attached map
respectively. The area

overlap by the predicted Grade B contours is about 218 square
kilometers, which is 0.83 percent

of the area within the WNNE-TV predicted Grade B signal contour, and
0.50 percent of the area

within the WPTZ(TV) predicted Grade B signal contour.

According to 1990 U.S. Census data, the populations within the predicted
Grade B contours of

WNNE-TV and WPTZ(TV) are 639,921 and 568,402, respectively. We have
determined that

the overlap area consists of two population centers, Granville and
Braintree, Vermont.

Granville\'s population of 309 and Braintree\'s population of 1,174
yields a total of 1,483 people

in the overlap area, which we have rounded to 1,500. The overlap area
population of 1,500

represents 0.23 percent and 0.26 percent of the population within the
predicted Grade B

contours of WNNE-TV and WPTZ(TV), respectively.