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Moreover, WPGATV  xKclaims that it is operating at a competitive disadvantage, because it is unable to assert its network  xnonduplication rights against WSBTV, as long as the latter has significantly viewed status.  xiWPGATV notes, however, that Cox does provide network nonduplication protection to the other  X - x=Macon network affiliates against their competitors from Atlanta,.  yO- xԍAccording to WPGATV the following local stations, all of which are licensed to Macon, Georgia, presently  xreceive network nonduplication protection on the Cox cable system: WMAZTV (CBS, Channel 13); WMGT (NBC,  xChannel 41); and WGXA (Fox, Channel 24). The following network affiliates are the Atlanta stations against whom  xCox currently provides this protection: WAGATV (CBS, Channel 5); WXIATV (NBC, Channel 11); and WATL (Fox, Channel 36).. and WPGATV asks that the  xCommission grant its waiver petition so that it also may assert its network nonduplication rights  xjagainst WSBTV. WPGATV adds that Macon is located about eighty miles from Atlanta, and that it is outside the Grade B contour of all the stations licensed to Atlanta. x  X - ` x4. ` ` In support of its contention that WSBTV is no longer significantly viewed in  xMMacon, WPGATV submits viewing data from noncable households in Macon, which were  x obtained by Nielsen Media Research during its usual sweep periods in February, July, and  Xb- xNovember, 1994,b yO- x<ԍBecause the records from the May, 1994 survey were damaged, WPGATV reports that Nielsen was not able to recover its data for that period. and in February, May, July, and November, 1995. According to these surveys,  xWSBTV's share of viewing hours, both in 1994 and in 1995, consistently measured 0.0%, as did  xits net weekly circulation, except for two sweep periods, in November 1994, when it measured  xM5.2%, and in May 1995, when it measured 5.5%. According to WPGATV, the viewing data  xclearly demonstrates that during the past two years, WSBTV has been unable to attract the  xNproportion of noncable viewers necessary to be regarded as significantly viewed by the  xCommission in Macon, pursuant to 76.5(i) of the Rules, and it should no longer be exempt from nonduplication protection in that community.  X- ` x5. ` ` In its opposition, Cox states that it agrees with the contentions raised by WSBTV.  xIn its opposition, WSBTV notes that it has served the Atlanta area since 1948, whereas WPGA xTV commenced operations in 1995, and that both stations can be received offtheair in Bibb  x<County. According to WSBTV, the data submitted by WPGATV is both incomplete and flawed"N ,N(N(ZZ"  X- xjunder the KCSTTV, Inc.> yOy-ԍ103 FCC 2d 407 (1986).> standard adopted by the Commission specifically to govern cases of  xthis type. Initially, WSBTV notes that viewing surveys are either to be community or system x[specific, but that the data submitted by WPGATV includes data for Macon for February 1995,  xas well as for February, July, and November, 1994; whereas the data for May, July, and  x\November 1995 has data both for Bibb County and for Macon. WSBTV also notes that, in  xaddition to Macon, Cox serves the communities of Lake Wildwood, Payne City, and portions of  xBibb County, but that no information has been submitted concerning any of the other  xlcommunities in Bibb County served by Cox. WSBTV adds that WPGATV provides no  xinformation on Nielsen's methodology, or procedures in conducting its survey, and that, pursuant  xto 76.54(c) of the Commission's rules, notice prior to a viewing survey is required on all local  xfranchisees, licensees, and permittees, and that service of special relief requests is also required  xpursuant to 76.7(b) of the Commission's Rules on various local parties, including licensees,  xfranchisees, and other interested partes, but that WPGATV has not indicated if it has met either  xLof these requirements. In addition, WSBTV notes that the Cox system passes 103,127 homes,  xand that 70%, or 70,126, of these homes subscribe to the system, which is extraordinarily high  xand may cause distortions in any offair signal viewing surveys, which may no longer accurately  xreflect either station popularity or offair availability. In this instance, there are 59,100 television  xhouseholds in Bibb County, but the survey submitted by WPGATV utilizes only 17 of them, or  x0.03%, which should be considered to be too small a sample to be used to effectively control the  xviewing options of the remaining 99.97% of the County's television households: a problem noted  X6- xin the dissenting opinion of Judge Scalia in KCSTTV, Inc.46X {O?-ԍSupra.4 WSBTV claims that grant of  xWPGATV's petition would give it an unfair competitive advantage and that it could deprive  xsubscribers of network programming they currently receive. Moreover, since WPGATV sent  xzCox a request for network nonduplication protection on January 2, 1996, but did not sign its  xcontract with the network until February 15, 1996, it failed to meet the requirement to notify its  xlocal cable system within sixty days of signing its network nonduplication contract, pursuant to  xzof 76.94(b) of the Commission's Rules, according to WSBTV. Finally, WSBTV notes that  x=WPGATV has not demonstrated that it has, in fact, suffered any economic harm as a result of  x[the present exception to the network nonduplication rules enjoyed by WSBTV, because of its  xjstatus as a significantly viewed signal, which status also must have been known to WPGATV before it began broadcasting as an ABC affiliate in direct competition with WSBTV.  X$- ` Qx6. ` ` In response, WPGATV notes that WSBTV does not place a Grade B contour  xover Bibb County, and that it has not demonstrated that it can be received offair there. WPGA x TV adds that these issues, as well as WSBTV's contentions about being determined to be  xsignificantly viewed by the Commission in 1972 in Bibb County, are irrelevant herein anyway  xsince the question in this case is whether or not WSBTV currently is significantly viewed in the  x<community of Macon, and the answer is that it is not. However, WPGATV notes in passing that  xNCox has not specified how many homes in Macon its system does not pass and that the"",N(N(ZZ!"  xCommission has previously held that a statistically valid survey of offair viewing in Bibb  X- xPCounty could be made even if cable penetration there rose to 78%. RussellRowe  X- xCommunications, Inc.D  yOM-ԍ7 FCC Rcd 2525, 2526 (1992).D As far as Nielsen's procedures are concerned, WPGATV cites a number  X- x-of cases, including RussellRowe, supra, where the Commission has previously accepted Nielsen  xand Arbitron data, procedures, and methodology and adds that the number of diaries utilized in  xthe instant case (fourteen), exceeds the number of diaries initially utilized in 1971, to establish  x=the significant viewing status of WSBTV and other stations in Bibb County as a whole (five).  xWPGATV adds that the economic detriment from the importation of distant network stations on  xthe viability of smaller local stations, especially UHF signals, has been well recognized for 24  x=years, and that the burden is on WSBTV to rebut this presumption, especially where, as here,  xall the other local Macon stations, unlike WPGATV, are currently entitled to the full protection  xof the network nonduplication rules. Moreover, WPGATV notes that the timing of its initial  xNrequest for network nonduplication protection was the day after the station commenced  xbroadcasting ABC programming on January 1, 1996. The fact that the initial notice may have  xybeen given somewhat early neither prejudices Cox nor WSBTV, and does not conflict with the  xjintent of the rule, which was merely to keep stations from sitting on their rights for two months  xand then demanding protection. WPGATV notes that this issue is also irrelevant to the  x.principle question of whether or not WSBTV is significantly viewed in Macon. Furthermore,  x since both WSBTV and WPGATV carry the same network programs at virtually the same  XQ- xLtime,7 XQX yOZ- xxԍAccording to WPGATV, the one program that WSBTV chooses to delay transmitting thirty minutes each  xweekday night is ABC's "World News Tonight," which WSBTV broadcasts at 7:00 pm, instead of at 6:30 pm, when it is broadcast by WPGATV. 7 cable subscribers will not loose any opportunities to view those programs if WPGATV  xis permitted to exercise its network nonduplication rights, and since there will be no reduction  x]in the availability of network programming as a result of granting its petition, WPGATV  xcontends that there is no reason to serve it on parties other than the cable system and the television broadcast station involved  X- ` $x7. ` ` An additional pleading submitted by WSBTV argues that WPGATV has the  xburden of proof herein, and that WPGATV has confused the Commission's requirements for  xinitially obtaining significantly viewed status, as opposed to those for waiving the significantly  xviewed status of another station. WSBTV also repeats its arguments that grant of WPGATV's  x<petition would cause significant disruption of local subscribers' viewing patterns, that the sample  xsize in the viewing survey submitted by WPGATV is not large enough to be accurate, and that  X=-the sample is premised on unrepresentative households. =x yOf#- xKԍIn support of the latter two arguments, WSBTV submits a "Declaration" from Norman Hecht, President of Norman Hecht Research, Inc. "& ,N(N(ZZz"  X-( DISCUSSION  X- `  x8. ` ` In its decision in KCSTTV, Inc.,4  {OK-ԍSupra.4 the Commission set forth the applicable  xstandards and burdens of proof that should be applied, as well as the policy basis for the adoption  xkof these standards, in resolving requests for waiver such as the present one. Following the  X- xCommission's KCSTTV, Inc. precedent we find that WPGATV has not submitted the  Xz- x information necessary to meet the applicable requirements.  Petitioner's failure to provide a  xsufficient explanation of the submitted data requires that we deny its request for waiver of the rules.  X - ` Px9. ` ` Under KCSTTV, a petitioner seeking to challenge a station's significantly viewed  xstatus must demonstrate that a station has not met the standards for significant viewing to one  xstandard error for two consecutive years on the basis of community or systemspecific surveys,  X - xpursuant to Section 76.54 of the Rules. The petitioner must submit a showing similar to that  X - xrequired under Section 76.54(b), although the survey results must prove that a station is not  xsignificantly viewed, as opposed to the reverse, and must cover two years instead of one. This  xjsection requires two community or systemspecific oneweek surveys separated by at least 30  xdays and only one survey conducted between April and September. To demonstrate significantly  xviewed status under Section 76.54(b), the reported audience statistics must exceed the standards for a station of its type, pursuant to Section 76.5(i), by at least one standard error.  X%- ` x10. ` ` WPGATV submits Nielsen Media Research audience data for Macon from  x[February, July and November 1994, and February, May, July, and November 1995, without any  x\explanation of the methodology used. It would appear that the submitted data are a special  X- x<tabulation of Nielsen's routine audience sweep diaries based on the months selected. "Z yO- xԍAssuming these data are from the routine audience sweep periods, RPI has submitted audience data based on  xsamples collected over 12 weeks in 1994 and 16 weeks in 1995. As the number of weeks exceeds the two one {O{- xweek requirement for each year under KCSTTV, the selected survey periods are acceptable for this purpose and, if anything, should lead to more accurate results from a statistical standpoint.  However,  xRPI provides no information regarding how the selection of diaries was made to ensure that the  xjreported results adequately represent the noncable homes of Macon. Normally, the sample for  xthe sweep period is developed using statistically sound techniques on a county basis, which does  xLnot necessarily ensure a statistically reliable sample for any one community within the county.  xAlthough major cities are often included, it is not clear whether the diaries used come from all  xgeographic areas of the city, and whether they properly represent the city's noncable viewing  xhabits, especially given the small reported sample size for each survey period in this submission.  xThe petitioner, at a minimum, should have described how the routine Nielsen data were used to"D ,N(N(ZZ\"  xprovide a representative sample of the city for the purpose of demonstrating overtheair  X- xviewing.x yOy- xZԍIn general, Section 76.54(b) requires a prior notification to all interested parties under Section 76.54(c) that  xincludes a description of the methodology to be used for a prospective survey. This requirement would place an  xundue burden on a new station, such as WPGATV, and prevent it from making a showing during its first two years  xof operation. Thus, since a description of the methodology used has not been previously disclosed, it is important that the petitioner provide an explanation as part of the petition.x The sample may meet these criteria, but unless the petitioner provides an explanation  xof the Nielsen diaries selected for this tabulation, based upon the record before us, we cannot  xmake such a finding. Specifically, we are unable to determine whether this sample, which is part  xof a larger sample selected for an entirely different purpose (audience data for a county) is reliable and applicable for the intended showing.  X_- ` x11. ` ` KCSTTV, Inc. and Section 76.54(b) of the rules also are very specific that such  xshowings must demonstrate significantly viewed status (or alternatively lack of significantly  xviewed status) to one standard error. WPGATV does not provide the standard errors for the  X - xsubmitted average audience data..X  yO\- xԍIt also should be noted that the petitioner does not actually provide the average audience shares required to  xdemonstrate significantly viewed status, although they can be calculated based on the information provided in Exhibit 2.. As noted by WSBTV in its opposition, the reported results  xare based on a very small sample size. The calculation of the standard error, which takes the  xsample size into account, provides a means to assess the accuracy of any sample, regardless of  xits size. A properly selected representative sample, even if it were small, could be used to  x<demonstrate whether a station is significantly viewed. The rules only require that the sample size  xbe sufficient to demonstrate within a standard error that the criteria are met (or not met in this  xLcase). Again, WPGATV fails to provide the necessary information regarding the accuracy of  xits sample or whether the sample selected is sufficient to demonstrate that WSBTV is no longer  xLsignificantly viewed to one standard error in noncable homes in the City of Macon. In view of  x-the foregoing, the pending petition will be denied, and it is unnecessary to address the remaining issues raised by the parties.  X-  ORDERING CLAUSES ă  X- ` x12. ` ` Accordingly, IT IS ORDERED, That the petition (CSR4719N), filed April 10, 1996, by Radio Perry, Inc. IS DENIED.  X- ` x13. ` ` This action is taken pursuant to authority delegated by 0.321 of the Commission's Rules. x` `  hhFEDERAL COMMUNICATIONS COMMISSION  +!`  x` `  hhWilliam H. Johnson x` `  hhDeputy Chief, Cable Services Bureau