Before the

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of:                | * | CSR-5840-N                   |
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| Wyomedia Corporation             | ) |                              |
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| For Waiver of §76.101 of the     | * |                              |
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MEMORANDUM OPINION AND ORDER

**Adopted: October 15, 2002** **Released: October 18, 2002**

By the Deputy Chief, Media Bureau:

# introduction

1.  Wyomedia Corporation, licensee of television broadcast station KLWY
    (Ch. 27), Cheyenne, Wyoming ("KLWY"), has filed a petition for
    special relief seeking a waiver of the Commission's significantly
    viewed exception to the syndicated program exclusivity rules (47
    C.F.R. §76.101. An opposition to this petition was filed on behalf
    of KWGN, Inc., licensee of station KWGN-TV (Ch. 2), Denver, Colorado
    ("KWGN-TV"), to which KLWY has replied. For the reasons discussed
    below, we grant the petition.

# background

2.  Upon the request of a local station, and pursuant to the
    Commission's cable television syndicated programming exclusivity
    rules, a cable system may not import duplicating syndicated
    programming that has been purchased by the local station on an
    exclusive basis.[^1] The Commission's rules in general provide
    stations such protection within a station's 35-mile geographic
    zone.[^2] Under Section 76.92(f) of the Commission's rules, however,
    a local station may not exercise this right if an otherwise distant
    station is considered "significantly viewed" within the community
    served by the cable system.[^3] The significantly viewed exception
    to the Commission's exclusivity rules is based on an otherwise
    distant station establishing that it 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 Commission's exclusivity
    rules because it has established that it can be received over the
    air in the subject communities.

3.  Station KLWY seeks a waiver of the significantly viewed exception to
    the Commission's syndicated exclusivity rules so that it may enforce
    its rights to syndicated exclusivity against KWGN-TV. KWGN-TV is
    currently considered to be significantly viewed in Laramie County,
    Wyoming, where the community of Cheyenne, served by AT&T Cable, is
    located.

4.  In *KCST-TV, Inc.,* the Commission held that in order to obtain a
    waiver of Section 76.92(f) of the Commission's rules, 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 noncable viewing data, to one
    standard error.[^4] For each year, the data must be obtained as a
    result of independent professional surveys taken during two one-week
    periods separated by at least thirty days, the viewing samples must
    be distributed proportionately among the relevant cable communities,
    and not more than one of the surveys may be taken between April and
    September of each year.[^5] The Commission has found that this type
    of test is applicable as well for waivers of the syndicated
    exclusivity exemption.[^6]

# discussion

5.  In support of its petition, KLWY states that it has syndicated
    exclusivity rights in the Cheyenne, Wyoming designated market area
    ("DMA"), but is prevented from asserting those rights against
    KWGN-TV on the Cheyenne cable system operated by AT&T because
    KWGN-TV is considered to be significantly viewed in Laramie County,
    where the cable system is located.[^7] In support of its requested
    waiver, KLWY has submitted the results of independent professional
    surveys conducted by Nielsen Media Research for two cycles in
    February 2000 and two cycles in May 2001, the results of which
    demonstrate that KWGN-TV is no longer significantly viewed in
    Cheyenne, Wyoming.[^8]

6.  In opposition, KWGN-TV argues that KLWY's petition should be
    dismissed because the station has failed to make the required
    evidentiary showing documenting that KWGN-TV is no longer
    significantly viewed in Cheyenne, Wyoming.[^9] KWGN-TV points out
    that, under the Commission's rules and applicable precedent, a
    station seeking waiver must demonstrate for two consecutive years
    that a distant station is no longer significantly viewed, based on
    either community-specific or system-specific noncable viewing data,
    to one standard error, and for each year the data must be the result
    of professional surveys taken during two one-week periods, separated
    by at least thirty days.[^10] KWGN-TV states that although KLWY
    identifies data from "two cycles in February 2000 and two cycles in
    May 2001," the data submitted indicates that there was only one
    cycle in February and one cycle in May 2001.[^11] KWGN-TV argues
    that KLWY's showing contains the following additional errors: i)
    although there are two attachments provided with the Nielsen letter
    submitted by KLWY, only one attachment regarding May 2001 survey
    results actually pertains to KWGN-TV;[^12] ii) KLWY fails to provide
    data from surveys taken during two one-week periods separated by at
    least thirty days for the years 2000 and 2001; iii) it is not clear
    whether KLWY is submitting a community-specific or system-specific
    survey because the audience analysis provided by KLWY, which
    apparently covers the AT&T system serving Cheyenne, identifies nine
    separate zip codes but does not identify the communities associated
    with each zip code or provide any audience data associated with each
    zip code; and iv) if it is submitting a system-specific survey, KLWY
    fails to include evidence that the sample is proportional to the
    population of each of the zip codes served by the cable system.[^13]
    For the foregoing reasons, KWGN-TV asserts that KLWY's petition
    should be denied.

7.  In reply, KLWY concedes that it inadvertently included unrelated
    and/or incomplete survey information in its petition and it submits
    additional ratings herein to correct any discrepancies in its
    showing.[^14] Moreover, KLWY states that KWGN-TV was in error when
    it claimed that KLWY's viewership surveys were not
    community-specific.[^15] KLWY states that the data submitted are the
    results of a community-specific Nielsen tabulation based on noncable
    homes from the nine zip codes that cover the community of
    Cheyenne.[^16] KLWY points out that the Commission recognized the
    validity of the same Cheyenne market analysis in *KWGN-TV*, which
    used the same nine zip codes in its analysis.[^17] KLWY concludes
    that KWGN-TV's share of total viewing hours in noncable homes in
    Cheyenne falls below the required 3 percent minimum, within one
    standard error, as shown in the table below:

    [Survey]{.underline} [Households]{.underline} [Share]{.underline}
    [Standard]{.underline} [Net]{.underline} [Standard]{.underline}

    [Year]{.underline}[^18] [Studied]{.underline} [Viewing]{.underline}
    [Error]{.underline} [Weekly]{.underline} [Error]{.underline}

    [Hours]{.underline} [Circulation]{.underline}

    Feb. 00 32 0.6 0.36 7.3 4.42

    May 00 34 1.1 0.66 7.6 4.39

    Feb. 01 30 0.3 0.13 10.2 4.71

    May 01 26 0.0 0 0 0

    As a result, KLWY requests that the Commission grant its petition so
    that it can assert its syndicated exclusivity rights in the subject
    community.

8.  We find that, as required by the Commission, KLWY has provided two
    sets of community-specific survey results for the community of
    Cheyenne, Wyoming, for each year surveyed. 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.[^19] The February
    2000 reported results for KWGN-TV, with one standard error added,
    are 0.42 percent share of total viewing hours and a 11.72 percent
    net weekly circulation; for May 2000 the shares are 1.76 percent
    share of total viewing hours and a net weekly circulation of 11.99
    percent. For February 2001, the reported results for KWGN-TV with
    the standard errors added are 0.43 percent share of total viewing
    hours and a net weekly circulation of 14.91 percent; for May 2001,
    all the reported shares are 0. For both years, the share of total
    weekly viewing hours and the net weekly circulation both fall below
    the required 3 percent and 25 percent minimums for significantly
    viewed status when the standard errors are considered. Accordingly,
    we find that the submitted audience surveys are sufficient to show
    that KKWGN-TV no longer attains the viewing levels needed to
    demonstrate significantly viewed status in the community of
    Cheyenne, Wyoming.

9.  For the above reasons, we find that a grant of a waiver of the
    significantly viewed exception from the syndicated exclusivity rules
    with regard to the community-specific survey for Cheyenne, Wyoming,
    will serve the public interest.

# ordering clauses

10. Accordingly, **IT IS ORDERED**, that the petition filed by Wyomedia
    Corporation **IS GRANTED.**

11. This action is taken pursuant to authority delegated under Section
    0.283 of the Commission's rules.[^20]

    FEDERAL COMMUNICATIONS COMMISSION

    William H. Johnson

    Deputy Chief, Media Bureau

[^1]: ^?^*See* 47 C.F.R. §76.101.

[^2]: ^?^The 35-mile geographic zone extends from the reference point of
    the community of license of the television station. *See* 47 C.F.R.
    §§73.658 and 76.53.

[^3]: ^?^*See* 47 C.F.R. §76.101.

[^4]: ^?^103 FCC 2d 407 (1986). This waiver criteria pertains to
    syndicated exclusivity protection as well. *See* 47 C.F.R. §76.101.

[^5]: ^?^*See* 47 C.F.R. §76.54(b).

[^6]: ^?^*See Chambers Cable of Oregon, Inc.,* 5 FCC Rcd 5640 (1990).

[^7]: ^?^Petition at 1-2.

[^8]: ^?^*Id.* at Exhibit A.

[^9]: ^?^Reply at 1.

[^10]: ^?^*Id.* at 2, citing *KCST-TV, Inc.,* 103 FCC 2d 407 (1986);
    *Grapevine of Austin License Sub, LLC,* 15 FCC Rcd 7349 (2000).

[^11]: ^?^Petition at 3.

[^12]: ^?^Reply at 2. KWGN-TV states that the second attachment refers
    to station KMGH-TV (Ch. 7), Denver, Colorado.

[^13]: ^?^*Id.* at 3-4.

[^14]: ^?^Reply at 1, n. 1. We note that KWGN-TV filed a response to
    KLWY's reply, objecting to KLWY's submission of corrected data,
    arguing that its inclusion at this stage did not allow it to
    adequately assess the showing and make a reasoned response. KWGN-TV
    maintained that the Bureau should reject the new survey data and
    dismiss KLWY's petition. Should the Bureau accept the additional
    information, however, KWGN-TV requested that it be allowed a 30-day
    period in which to review and respond to the new evidence. Bureau
    staff contacted counsel for KWGN-TV indicating that any further
    response would be considered. To date, however, KWGN-TV has not
    provided any further comments.

[^15]: ^?^*Id.* at 2.

[^16]: ^?^*Id.*

[^17]: ^?^*Id.* at 2-3.

[^18]: ^?^The survey dates of February 2000/May 2000 and February
    2001/May 2001 meet the criteria set forth in the rules and *KCST-TV*
    that the two one-week surveys be separated by at least 30 days and
    that both surveys may not occur between April and September.

[^19]: ^?^47 C.F.R. §76.5(i).

[^20]: ^?^47 C.F.R. §0.283.