**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of: )

)

Diversified Communications ) CSR-3817

(WCJB(TV)) )

)

Application for Review )

**MEMORANDUM OPINION AND ORDER**

**Adopted: February 18, 2000 Released: March 1, 2000**

By the Commission:

**I. INTRODUCTION**

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level71. Diversified Communications, licensee of television
broadcast station WCJB (ABC, Ch. 20), Gainesville, Florida (\"WCJB\"),
filed an application for review of a decision of the Cable Services
Bureau (the \"Bureau\") denying WCJB\'s petition for reconsideration of
WCJB\'s request to be considered a \"new\" significantly viewed signal
in certain Florida counties as a result of a technical upgrade of its
facilities.[^1] After examining the record, we affirm the Bureau\'s
decision in *Diversified Communications* and deny the application for
review filed by WCJB.

**II. BACKGROUND**

2\. In 1972, the Commission adopted a comprehensive regulatory scheme
for cable television.[^2] As part of this regulatory scheme, the
Commission limited the number of distant signals a cable system could
import from outside of its market.[^3] An exception to these limits,
however, was made for significantly viewed signals.[^4] In doing so, the
Commission recognized that signals that could be received over-the-air
should have the opportunity to be accorded status as a local station for
must carry purposes. A signal is considered to be significantly viewed
if it meets certain designated minimum viewership levels off-the-air in
noncable households.[^5] When the Commission deleted its distant signal
carriage limitations in 1980, it continued to utilize the significantly
viewed status of signals for various purposes, such as an exception from
the Commission\'s network and syndicated program exclusivity rules.[^6]
The network and syndicated program exclusivity rules protect local
stations\' rights to network and syndicated programming within their
home market areas against identical programming which may be brought
into the market by distant stations carried by a cable operator. The
cable operator is required to blackout any network or syndicated
programming broadcast by a distant station for which the local market
station has prior rights. The only exception to this requirement is in
instances where the distant signal is considered to be significantly
viewed in the community or county in which the cable system operates. In
addition, the Copyright Office, in certain instances, has continued to
utilize the significantly viewed status of television stations in
determining whether a station is considered to be \"local\" or
\"distant\" for determining royalty payment rates.[^7]

3\. In establishing the category of significantly viewed stations, the
Commission published a nationwide list in 1972, county-by-county, of
those stations initially deemed to be significantly viewed in each
county.[^8] A station on this list is deemed significantly viewed
throughout the county and this determination is applicable to all
communities within the county without regard to the station\'s actual
viewership in any specific community in the county. A station that was
on-the-air prior to 1972, but not included on the list, may request to
be added by filing a petition for declaratory ruling with the Commission
and submitting data to demonstrate that it meets the requisite
viewership levels utilizing current community-specific data.[^9] This
relief is not available on a county-wide basis; rather, the broadcaster
must demonstrate that it meets the \"significantly viewed\" criteria on
a community-by-community basis. The initial list accorded stations
\"significantly viewed\" status on a county-by-county basis (as opposed
to community-by-community) as a matter of administrative convenience.
The Commission\'s desire to expedite implementation of its rules led it
to use county-wide data, which were already in existence, rather than
await the creation of community-based data, which would have to be
compiled. By contrast, once the initial list was established, subsequent
changes would only be made on a community basis. A station that went
on-the-air after 1972 may request to be added to the list through a
petition for declaratory ruling utilizing county-wide data, provided
that such data are from the station\'s first three years of
operation.[^10] These stations are permitted to use county-wide data,
and obtain a county-wide determination, to put them on an equal footing
with stations that were on-the-air when the 1972 list was established
(and that were thus entitled to use county-wide data). In instances
where a pre-1972 station has undertaken a technical upgrade and wishes
to be added to the list, it may file a petition for waiver requesting
that it be considered \"new\" as of the date of its upgrade in order
that it may use county-wide data rather than community-specific data for
significantly viewed purposes. For purposes of this rule, the Commission
has extended \"new\" station status to stations shifting from
subscription or noncommercial status to commercial status after the
initial survey period,[^11] as well as stations that have experienced a
major technical upgrade of their facilities.[^12]

4\. WCJB began operation on April 17, 1971 as an ABC affiliate.
Subsequently, on October 13, 1982, WCJB modified its facilities which
resulted in a 36.7% increase in the station\'s predicted Grade B
contour.[^13] In view of this technical upgrade, WCJB requested that it
be considered a \"new\" station for purposes of determining its status
as significantly viewed pursuant to Section 76.54 of the Commission\'s
rules.[^14] This request was denied, not only because WCJB\'s percentage
increase fell short of the 41% minimum increase accepted for Station
WDCA-TV (Ind., Ch. 20), Washington, D.C. in *CALTEC,* but because no
other factors were deemed sufficient to override this failing and
justify a grant.[^15] In its petition for reconsideration, WCJB argued
that the denial of its request was arbitrary and that the Bureau's
reliance on a 41% minimum is clearly against the intent of *CALTEC,*
which maintained that each request would be judged on a case-by-case
basis.[^16] Further, WCJB averred that the Bureau\'s decision failed to
articulate why WCJB\'s technical improvement was not extensive,
particularly in light of other relevant factors such as a 50% increase
in population served.[^17] In its subsequent denial of WCJB\'s petition
for reconsideration, the Bureau stated that while in *CALTEC,* the
Commission declined to establish a formal minimum percentage increase to
establish \"new\" station status, sixteen years of such decisions have
given sufficient guidance in this area to establish reliable parameters.
Moreover, the Bureau\'s order on reconsideration stated that, while it
continues to examine each request individually, and to take note of all
of the factors relevant to a station\'s technical upgrade, the main
factor in such instances was, and continues to be, the increase in the
station\'s Grade B coverage.[^18] Since the relative change between
WCJB\'s increase in Grade B coverage area and that found in the *CALTEC*
case (36.7% v. 41%) constitutes over a 10% smaller increase in coverage,
and no other special factors were found to override this, the Bureau
continued to believe that denial of WCJB\'s request was
appropriate.[^19]

**III. THE PLEADINGS**

5\. In its application for review, WCJB argues that the two Bureau
decisions denying its request were flawed and incorrectly applied
Commission precedent. WCJB argues that while its petition was clear and
adequately supported, it believes that it was not given the \"hard
look\" required by the Commission\'s rules.[^20] WCJB asserts that the
Bureau\'s denial of its original request was devoid of analysis of the
facts and circumstances of its case and was simply \"written off\" as
failing to meet the 41 percent minimum.[^21] In addition, WCJB argues
that the review of its petition for reconsideration merely \"went
through the motions,\" falling far short of the \"hard look\" to which
WCJB\'s request was entitled.[^22] Moreover, neither decision took note
of the 50.6% increase in population served that occurred as a result of
the facilities upgrade, a fact which WCJB states is not only relevant
but crucial.[^23] WCJB avers that the Bureau is applying *CALTEC* and
its progeny as if they were rulemakings, thus elevating the 41 percent
threshold from one waiver criterion to the definition of a \"new\"
station. It maintains that if the Bureau sought a 40 percent minimum, it
should have done so through a rulemaking proceeding, otherwise it cannot
be utilized as an immutable standard.[^24] In addition, WCJB argues that
the Bureau places undue reliance on a station\'s increase in Grade B
coverage area to the exclusion of all the other factors. It maintains
that this reliance runs contrary to the spirit and letter of *CALTEC*
and the \"hard look\" mandate, particularly when the Commission
expressly stated in *CALTEC* that it was not \"attempting to establish
the criteria we would deem determinative in similar cases\" and
emphasized that \"we are not establishing in this case criteria
determining what constitutes the necessary technical improvements to
establish a new station.\"[^25] Further, WCJB notes that in *FCVS
Communications* the Commission stated: \"We have consistently based such
determinations on more than minimal signal coverage increases and
possibilities of improved reception.\"[^26] WCJB argues that a careful
analysis of the technical improvements proffered in such cases must be
made and that while the Commission treats a 40% increase as sufficient
to justify \"new\" station status, it does not consider it an absolute
threshold.[^27] According to WCJB, both *CALTEC* and *FCVS* articulate
that \"new\" status may be accorded where technical improvements and the
surrounding circumstances result in \"more than minimal signal coverage
increases.\"[^28] WCJB concludes that the upgrade of its signal
resulting in a 36.7 percent increase in Grade B coverage and a 50.6
percent increase in population served cannot fail to be characterized as
vast and extensive.[^29]

6\. WJKS, another ABC affiliate in the area, opposes WCJB\'s petition
insofar as it applies to Columbia County, Florida.[^30] It argues that
the Bureau\'s two previous decisions with regard to WCJB\'s upgrade were
fully consistent with *CALTEC* and Commission precedent. *CALTEC\'s*
40.8 percent increase is the coverage area test used in all technical
improvement cases such as this one, according to WJKS. WJKS states that
no precedent exists where \"new\" station status was granted for an
upgrade below 40 percent or where the Commission has given determinative
consideration to a station\'s Grade B population increase.[^31] Further,
WJKS maintains that the Bureau has taken the \"hard look\" WCJB claims
is required. WJKS points out that the Bureau\'s letter specifically
mentions the increase in population in the recitation of the facts and
in conclusion stated that it \"took note of all the factors relative to
WCJB\'s upgrade.\"[^32]

7\. WJKS argues that the population figures which were supplied by WCJB
are irrelevant since they were based on 1990 Census figures and the
station\'s facility changes were made in 1982.[^33] WCJB\'s population
figures cannot be considered reliable, avers WJKS, because changes in
population inevitably occur over time, making this factor an inherently
unstable basis on which to base a decision.[^34] To do as WCJB suggests,
states WJKS, could lead to an anomalous situation in the future should
the population decline. Additionally, WJKS argues that WCJB cites no
authority for its contention that the Bureau erred in adopting \"new\"
station standards by means of *ad hoc* decision rather than
rulemaking.[^35] According to WJKS, the Commission\'s decisions in
establishing the standards for \"new\" stations, pursuant to Section
76.54 of the Commission\'s rules, merely clarify the term \"television
broadcast stations not encompassed by the surveys . . . used in
establishing appendix B of the *Memorandum Opinion and Order on
Reconsideration of Cable Television Report and Order. . .*\"[^36]
Therefore, according to WJKS, the Commission can properly adopt its
standard for \"new\" stations through adjudication rather than
rulemaking.[^37]

8\. In reply, WCJB states that WJKS\' arguments are without merit and
that WJKS misstates the analyses used by the Bureau in these cases.[^38]
WCJB asserts that WJKS\' premise that the Commission\'s intent is to
rely solely upon Grade B increases is contrary to the Commission\'s
*CALTEC* decision. Moreover, WCJB argues that WJKS\' contention that
population data are \"unreliable\" is wholly speculative.[^39] In any
event, states WCJB, neither possible future population changes nor
further facilities changes alters the fact that the Bureau erred in its
initial decision and reconsideration decision when it concluded that
WCJB did not qualify as a \"new\" broadcast station following its 1982
facilities upgrade.[^40] Further, WCJB maintains that WJKS\' argument
that the information supplied on the population coverage increase was
not proper can also be dismissed. The population comparison was
calculated by comparing 1990 data to 1990 data relative to the old and
new Grade B contours; therefore, the magnitude of the improvement is
valid and should be given appropriate consideration.[^41]

**IV. DISCUSSION**

9\. WCJB has alleged that the Bureau did not adequately consider the
facts presented by WCJB in its previous attempt to achieve significantly
viewed status as the result of a technical upgrade of its facilities.
Based on our review of the record, we affirm the Bureau\'s underlying
decisions. Section 76.54(d) of the Commission\'s rules requires that
only stations that went on-the-air after 1972 are eligible to rely on
county-wide viewership data in seeking significantly viewed status.[^42]
Stations, such as WCJB, that seek a waiver of this requirement based on
a technical upgrade of the station\'s facilities, must submit
engineering data to justify such a request. Specifically, a petitioner
is required to submit the station\'s original license, its license as of
the date of the upgrade, and Grade B contour maps detailing the
station\'s current and previous predicted coverage areas. Bureau
engineering staff then reviews the information presented, focusing
primarily on such details as Effective Radiated Power (\"ERP\"), Height
Above Average Terrain (\"HAAT\"), and Grade B coverage. A comparison of
this data will yield the percentage of increase in coverage area.

10\. We disagree with WCJB\'s assumption that the Bureau has established
a formal percentage minimum relative to stations seeking \"new\" status
due to a technical upgrade.[^43] We continue to believe, as we stated in
*CALTEC,* that each petition seeking such waiver should be reviewed on a
case-by-case basis. In this regard, we note that, while the Commission
has an obligation to take a hard look at the evidence submitted for
waiver, petitioners must meet a high burden of proof to obtain a waiver
of our rules.[^44] However, in line with *SEC v. Chenery Corp.,* the
Commission has proceeded in this area by *ad hoc* decisions and, in
reviewing more than 70 such petitions since the decision in *CALTEC,*
has established appropriate criteria for determining \"new\" station
status.[^45]

11\. As a result of these cumulative decisions, the Commission has
determined that the most important factor is the station\'s percentage
of increase in Grade B coverage as a result of technical improvements.
We believe this factor provides the most obvious evidence of the effect
of the technical upgrade on the station. Associated with the percentage
increase is the actual increase in Grade B coverage area which provides
a means to determine the specific area affected by the increase.[^46]
Finally, we consider the increase in the population served. Despite
WCJB\'s arguments to the contrary, this is not a factor which the Bureau
ignores in making this determination. Increase in population covered is,
in general, an inherent part of any technical upgrade resulting in an
increase in Grade B coverage and only in rare instances would a
station\'s increase in Grade B area not result in an accompanying
increase in population served. The fact that population has not been
mentioned separately in previous evaluations is a reflection of its
status as an adjunct in the station\'s overall change. However, the fact
that population can fluctuate within a station\'s Grade B contour, even
where no upgrade has taken place, makes it difficult to rely on
population as a completely separate factor.

12\. We are not persuaded that the Cable Services Bureau erred in its
determination that WCJB\'s technical improvements were not of sufficient
magnitude to warrant treating WCJB as a \"new\" station for purposes of
Section 76.54 of the Commission\'s rules. Nor do we believe, as WCJB
alleges, that the Bureau failed to give WCJB\'s petition a \"hard
look.\"[^47] To the contrary, the initial decision specifically
references WCJB\'s power increase, its increase in HAAT, and its 50.6
percent increase in population. All of these factors, in combination,
were carefully scrutinized by the Bureau\'s engineering staff and found
insufficient to merit \"new\" station status. For instance, in its
original decision, the Bureau found that the increase in WCJB\'s HAAT
from 208 meters to 287 meters and the station\'s increase in ERP from
500 kw to 2820 kw resulted in a 36.7 percent increase in WCJB\'s
predicted Grade B contour. As a basis for comparison, the Bureau
identified the corresponding increase of WDCA-TV in *CALTEC* where that
station\'s ERP went from 1.1 million watts to 4 million watts, resulting
in a 41 percent increase in Grade B contour. In its reconsideration, the
Bureau noted that the relative change between these two stations\' Grade
B coverage areas constituted a 10 percent smaller change for WCJB.[^48]
We note that in reviewing cases involving technical upgrades, the
Bureau\'s analysis compares the differential between the additional
coverage area a station obtains as a result of an upgrade to the same
coverage area achieved in other similar decisions rather than total
overall coverage area. This gives a true picture of the actual amount of
increase.

13\. In the interests of accuracy, we have calculated the difference in
actual increase in Grade B coverage area between WDCA-TV and WCJB by
comparing the actual square mileage involved. WDCA-TV\'s Grade B
coverage area in *CALTEC* increased from 9,160 square miles to 12,900
square miles \-- a difference of 3,740 square miles.[^49] The figures
for WCJB\'s Grade B coverage area increase were given in square
kilometers and ranged from 10,685 to 14,611 \-- a difference of 3926
square kilometers. This converts to a 1,509 square mile increase in
Grade B coverage area for WCJB. The increase in WDCA-TV\'s Grade B
coverage area is nearly two and one-half times greater than that
experienced by WCJB. Indeed, we note that despite the increase in square
miles achieved, WCJB lost considerable Grade B coverage in Columbia
County due to the relocation of its transmitter site.[^50]

14\. With regard to the population increases experienced by WCJB,
several factors make it difficult for us to rely on this element or to
give it preeminence over the technical parameters discussed above.
First, the population estimates cited by WCJB were based on 1990 Census
figures, some eight years after WCJB\'s technical upgrade took place.
Given the fluctuating nature of populations, it would have been more
appropriate for WCJB to use population data compiled closer to the time
of the actual event. In this instance, 1980 Census data would appear to
be a more appropriate population statistic resource.[^51] Secondly, WCJB
provides no information for us to determine how much of its increase in
population can be attributed purely to its technical upgrade, normal
population growth, or the relocation of its transmitter tower 20 miles
to the south. Technical upgrades of stations usually do not include both
an increase in power and HAAT coupled with a transmitter relocation.
Therefore, in this instance, it is impossible to determine how much of
an impact WCJB\'s transmitter relocation had on population levels
without such an analysis. In this regard, WCJB simply failed to carry
its burden of proof. In *American Valley Broadcasting Company,* the
Commission denied a request for \"new\" status which resulted in a 33%
upgrade. In that decision, the Grade B area increase was 1,951 square
miles and the population increase covered 148,375 people.[^52] The
corresponding figures for WCJB are 1,509 square miles and 173,385
people. In view of the date discrepancies noted in the population
figures presented by WCJB and the questionable reliability of population
data in general, we find that this factor does not overcome the
deficiencies found in the other relevant factors.

15\. Given the importance of a station\'s percentage of increase in
Grade B coverage area, the inconclusive nature of the population
information relied upon by WCJB herein, and the fact the 10 percent
smaller change for WCJB cannot be considered a de minimis amount, we
cannot find WCJB\'s 36.7 percent increase sufficient to overcome the
parameters relied on by the Bureau in *CALTEC* and subsequent decisions.
Therefore, based on the totality of the evidence before us, we do not
believe this is a situation which warrants a waiver.

**V. ORDERING CLAUSES**

16\. Accordingly, **IT IS ORDERED** that the Application for Review
filed by Diversified Communications, **IS DENIED.**

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

[^1]: ^    ^ ^?^*See Diversified Communications,* Cable Television
    Actions Report No. 3516, Mimeo No. 50548 (released November 8,
    1994). The Cable Services Bureau denied Diversified Communications\'
    initial petition for special relief in *Diversified Communications,*
    Cable Television Actions Report No. 3488, Mimeo No. 42227 (released
    March 18, 1994).

[^2]: ^    ^ ^?^*See Cable Television Report and Order,* 36 FCC 2d 143,
    *recon.,* 36 FCC 2d 326 (1972).

[^3]: ^    ^ ^?^*See Cable Television Report and Order,* 36 FCC 2d 143,
    173 (1972). A distant signal was defined, depending on the market,
    as any station a) located more than 35 miles from a cable system; b)
    which does not place a predicted Grade B contour over a cable
    system; or c) which is not considered to be significantly viewed in
    the county in which the cable system is located.

[^4]: ^    ^ ^?^*Id.* at 174.

[^5]: ^    ^ ^?^47 C.F.R. §76.54.

[^6]: ^    ^ ^?^*See Cable Television Syndicated Program Exclusivity
    Rules, Report and Order in Dockets 20988 and 21284,* 79 FCC 2d 663
    (1980). *See also* 47 C.F.R. §§76.92(f), 76.156(a).

[^7]: The Copyright Office does not require royalty payment rates for an
    otherwise 'distant' station with significantly viewed status.

[^8]: ^   ^ ^ ?^*See Cable Television Report, Order on Reconsideration,*
    36 FCC 2d at 378-463 app. B.

[^9]: ^    ^ ^?^47 C.F.R. §76.54(b).

[^10]: ^   ^ ^ ?^47 C.F.R. §76.54(d).

[^11]: ^    ^ ^?^*See, e.g., H.R.Broadcasting of Milwaukee, Inc.
    (WCGV-TV),* Cable Television Actions, Report No. 3212 (released
    April 10, 1989)(STV); *Golden West Broadcasters of Oklahoma, Inc.
    (KAUT),* Cable Television Actions Report No. 3110 (released
    September 8, 1987)(STV); *Blair Broadcasting of Oklahoma, Inc.
    (KOKH-TV),* Cable Television Actions Report No. 2800 (released
    October 14, 1983)(noncommercial).

[^12]: ^    ^ ^?^*See Calvert Telecommunications Corp. d/b/a CALTEC,* 63
    FCC 2d 1022 (1977) (*\"CALTEC\"*); *Alabama Telecasting, Inc.,*Cable
    Television Report No. 3253, Mimeo No. 852 (released December 7,
    1989); and *KVHP TV Partners,* Cable Television Report No. 3315,
    Mimeo No. 11205 (released January 4, 1991).

[^13]: ^    ^ ^?^*See Diversified Communications,* Cable Television
    Report No. 3488, Mimeo No. 42227 (released March 18, 1994) at ¶ 2.

[^14]: ^    ^ ^?^*Id.* at ¶ 1; 47 C.F.R. §76.54.

[^15]: ^    ^ ^?^*See Diversified Communications,* Cable Television
    Actions Report No. 3488, Mimeo No. 42227 (released March 18, 1994).
    *See also CALTEC,* 63 FCC 2d at 1025.

[^16]: ^    ^ ^?^*See Diversified Communications,* Cable Television
    Actions Report No. 3516, Mimeo No. 50548 (released November 8, 1994)
    at ¶ 2.

[^17]: ^    ^ ^?^*Id.*

[^18]: ^   ^ ^ ?^*Id.* Our heavy reliance on Grade B coverage reflects
    the underlying increases in ERP and antenna height, factors which
    are inherent in achieving a larger predicted Grade B contour.

[^19]: ^    ^ ^?^*Id.* at ¶ 5.

[^20]: ^   ^ ^ ?^WCJB Application at 4, citing *WAIT Radio v. FCC,* 418
    F. 2d 1153 (D.C. Cir. 1969).

[^21]: ^   ^ ^ ?^WCJB Application at 5.

[^22]: ^    ^ ^?^*Id.*

[^23]: ^    ^ ^?^*Id.* WCJB points out that as a result of the upgrade,
    173,385 more people were reached by its Grade B. *Id.*

[^24]: ^    ^ ^?^WCJB acknowledges that in *SEC v. Chenery Corp.,* 332
    U.S. 194 (1947), the United States Supreme Court stated that \"The
    choice between proceeding by general rule or by *ad hoc* decisions
    is one that lies primarily in the informed discretion of the
    administrative agency.\" However, it points out that in *Ford Motor
    Co. v. FTC,* 673 F 2d 1008, (9th Cir. 1981), *cert. denied,* 459
    U.S. 999 1982 (9th Cir. 1982) the United States Court of Appeals for
    the Ninth Circuit implied that there may be instances where an
    agency\'s reliance on adjudication could amount to abuse of its
    discretion.

[^25]: ^    ^ ^?^CALTEC , 63 FCC 2d at 1026.

[^26]: ^    ^ ^?^8 FCC Rcd 1279 (1993).

[^27]: ^    ^ ^?^WCJB Application at 7.

[^28]: ^    ^ ^?^WCJB Application, citing *CALTEC*, 63 FCC 2d 1022, 1025
    (1977); *FCVS Communications,* 8 FCC Rcd 1279 (1993).

[^29]: ^    ^ ^?^WCJB Application at 9.

[^30]: ^    ^ ^?^WJKS Opposition at 2. Should the Commission at some
    point grant WCJB\'s request, WJKS opposes grant of \"new\" status
    for WCJB in Columbia County since as a result of WCJB\'s tower
    relocation at the same time as its upgrade, WCJB lost considerable
    Grade B coverage in Columbia County. *Id.* at 3. While WJKS concedes
    that in *WGNO, Inc.,* 5 FCC Rcd 5767 (1990), the Commission
    apparently ruled that lack of Grade B coverage is irrelevant, WJKS
    submits that this case was wrongly decided. Therefore, if the
    Commission reaches the merits of the issue herein, WJKS suggests
    that the decision in *WGNO* should be overturned. *Id*. at 16.

[^31]: ^    ^ ^?^WJKS Opposition at 5.

[^32]: ^    ^ ^?^WJKS Opposition at 7, citing *Diversified
    Communications,* Cable Television Actions Report No. 3516, Mimeo No.
    50548 (released November 8, 1994) at 1.

[^33]: ^   ^ ^ ?^WJKS Opposition at 9. According to the engineering
    report of Donald G. Everist of Cohen, Dippell & Everist, submitted
    with WCJB\'s original petition, the population figures were
    determined \"by employing a computer program using the 1990 Census.
    To accomplish this population count, the program overlaid the Grade
    B contours over the land area in Florida and population was
    determined within the Grade B contour of overlap area by including
    the populated centroids for pertinent contour or overlap area.\"
    *Id.* at Attachment 1.

[^34]: ^    ^ ^?^WJKS Opposition at 7.

[^35]: ^   ^ ^ ?^WJKS Opposition at 11.

[^36]: ^    ^ ^?^36 FCC 2d 326 (1972).

[^37]: ^   ^ ^ ?^WJKS Opposition at 12, citing *British Caldonian
    Airways, Limited v. Civil Aeronautics Board,* 584 F. 2d 982 (D.C.
    Cir. 1978) (an agency\'s decision to act via *ad hoc* adjudication
    rather than rulemaking is entitled to wide latitude and courts will
    not \"second-guess\" an agency\'s decision unless it finds that the
    agency has abused its discretion);. *see also NLRB v. Bell Aerospace
    Co.,* 416 U.S. 267, 94 S. Ct. 1957 (1974). WJKS also asserts that
    WCJB\'s reliance on *Ford v. FTC* is misplaced because that case
    involved an industry-wide range of regulations. while the issue of
    \"new\" station status is relevant only to a discrete number of TV
    broadcasters.

[^38]: ^    ^ ^?^WCJB Reply at 1.

[^39]: ^    ^ ^?^WCJB Reply at 6.

[^40]: ^    ^ ^?^*Id.*

[^41]: ^   ^ ^ ?^WCJB Reply at 7.

[^42]: ^    ^ ^?^47 C.F.R. §76.54(d).

[^43]: ^    ^ ^?^Indeed, we have granted a waiver for a station whose
    upgrade was determined to be 40 percent, 1 percent below the 41
    percent in *CALTEC. See, WDSI Limited Partnership,* Cable Television
    Actions Report No. 3408, Mimeo No. 24270 (released August 5, 1992).

[^44]: ^    ^ ^?^*See, e.g., Notice of Proposed Rulemaking in Docket No.
    20371,* 51 FCC 2d 445 (1975); *Report and Order in Docket No.
    20371,* 56 FCC 2d 265, 268 (1975).

[^45]: ^    ^ ^?^*See SEC v. Chenery Corp.,* 332 U.S. 194 (1947).

[^46]: ^    ^ ^?^Increase in Grade B coverage refers to the increase in
    the predicted signal strength contour of a station as defined by
    Part 73 of the Commission\'s rules. Increase in Grade B coverage
    area refers to the actual increase in mileage of a station\'s
    service area.

[^47]: *WAIT Radio v. FCC,* 418 F. 2d 1153 (D.C. Cir. 1969) requires us
    to take a "hard look" at all the factors raised by the parties in a
    proceeding to determine whether a waiver is appropriate. We believe
    that the petitioner herein has failed to carry its burden in this
    regard.

[^48]: ^    ^ ^?^*See Diversified Communications,* Cable Television
    Actions Report No. 3516, Mimeo No. 50548 (released November 8, 1994)
    at 2.

[^49]: ^    ^ ^?^*See CALTEC,* 63 FCC 2d 1022, 1026 (1977).

[^50]: ^    ^ ^?^*See Diversified Communications,* Cable Television
    Actions Report No. 3488, Mimeo No. 42227 (released March 18, 1994)
    at 2.

[^51]: ^    ^ ^?^We deem the 1980 data more relevant than the more
    current data submitted by the petitioner because, consistent with
    our rules and precedent, we base our decision in cases such as this
    one on the import of the technical upgrade at or about the time it
    was completed. This \"snapshot\" approach applies only where the
    broadcasters seek to be newly-designated as \"significantly viewed\"
    on a [county-wide]{.underline} basis. *See* para. 3, *supra.* More
    current data would be appropriate where the broadcaster is seeking
    that designation on a [community-wide]{.underline} basis. *Id.*

[^52]: ^    ^ ^?^Cable Television Actions Report No. 3253, Mimeo No. 852
    (released December 7, 1989).