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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the matter of: ) ) Cypress Broadcasting Corporation ) CSR-4463 ) Petition for Reconsideration ) MEMORANDUM OPINION AND ORDER Adopted: October 7, 1998 Released: October 15, 1998 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. KTVU Partnership, licensee of television broadcast station KTVU, Oakland, California, filed a petition for reconsideration of the Memorandum Opinion and Order, DA 95-1696, released August 11, 1995 in the captioned proceeding. Ackerley Communications Group, Inc. ("Ackerley") filed a motion to dismiss or, in the alternative, an opposition to the petition for reconsideration, and KTVU filed a reply. BACKGROUND 2. Upon the request of a local commercial television station which has the exclusive rights to distribute a network program, a cable operator may not carry a duplicating network program broadcast by a distant station. However, an otherwise distant station is exempt from the application of the network non- duplication rules if it is considered significantly viewed in a relevant community. In Cypress, we granted KCBA a waiver of the significantly viewed exemption of the Commission's network non-duplication rules so that it could assert any network non-duplication protection rights it may have against any duplicating network programming of television broadcast station KTVU (Fox, Channel 2), Oakland, California, which previously had been considered significantly viewed in the communities served by TCI Cablevision (TCI) surrounding Santa Cruz, California. 3. In KCST-TV, Inc., 103 FCC 2d 407 (1986) ("KCST-TV"), the Commission held that a waiver of the Section 76.92(f) exemption from the network program non-duplication rules may be obtained, provided it could be demonstrated that for two consecutive years a station was no longer significantly viewed in the communities served by the cable system. The Commission indicated that it must be shown that the station's viewing level in the communities falls short of the appropriate standards based either on community, or system specific, noncable viewing data, by at least one standard sampling error. For each year, the data must be obtained by means of an independent professional survey with the data distributed proportionately among the relevant cable communities. The surveys must be taken during two one-week periods that are also separated by at least thirty days. Not more than one of the surveys may be taken between April and September of each year. 4. We considered, in Cypress, viewing data from the cable communities during four one-week surveys of noncable households conducted by VideoProbe Index during the weeks of June 23-29 and September 15-21, 1993, and June 22-28 and September 14-20, 1994. The surveys showed that in 1993 KTVU's net weekly circulation was 5.9% (with a standard error of +/- 2.6%), and its share was 1.0% (with a standard error of +/- 0.8%); in 1994, KTVU's net weekly circulation was 6.3% (with a standard error of +/- 3.5%) and its share was 0.4%. Based on these data, adjusted by the standard error, we concluded that KTVU failed to meet the Commission's standard for a significantly viewed independent station in the relevant communities either in 1993 or in 1994 and that KTVU has been unable to attract the proportion of noncable viewers necessary to be regarded by the Commission as significantly viewed in the relevant communities, pursuant to Section 76.5(i) of the rules. ARGUMENT OF THE PARTIES 5. KTVU seeks reconsideration of the waiver granted in Cypress on the grounds that cable penetration in the communities served by TCI should have been considered and that Cypress erred in considering viewing data taken solely from noncable households. KTVU asserts that in any event Cypress should be clarified as having no impact on the respective rights of KTVU and KCBA with respect to network non-duplication protection. KTVU argues that, because the cable communities are located within the 35-mile zones of both the Salinas-Monterey and the San Francisco-Oakland-San Jose television markets, both stations have the same network non-duplication priority under Section 76.92(b)(1) of the Commission's rules. 6. Ackerley requests dismissal of the petition for reconsideration on the grounds that KTVU failed to satisfy Section 1.106(b) of the rules, which requires that a person not a party to the proceeding must show with particularity why it was not possible to participate in the earlier stage of the proceeding. Ackerley asserts that, although a copy of the initial petition for special relief was served on KTVU, KTVU not only failed to participate in the earlier stage of the proceeding, it also failed to show why it did not participate earlier. Ackerley argues that failure to consider the level of cable penetration in the cable communities is not grounds for reconsidering Cypress, because the Commission typically bases decisions concerning significant viewing on data derived only from noncable households. Finally, KTVU contends the decision in Cypress requires no clarification. In reply, KTVU reasserts its argument that cable penetration in the cable communities should be considered as well as its request for clarification of Cypress. KTVU asserts that the petition should not be dismissed under Section 1.106(b), because Section 1.3 of the rules reserves to the Commission authority to considers substantive issues affecting the public interest despite technical flaws contained in pleadings. DISCUSSION AND ANALYSIS 7. KTVU's petition for reconsideration is denied. First, KTVU did not participate in the earlier phase of this proceeding that resulted our decision in Cypress. In such circumstances, Section 1.106(b) of the rules requires a showing of good cause of why it was not possible for KTVU to participate in that earlier stage. KTVU failed to make such a showing. Indeed, it did not even address that matter. 8. In any event we would find that the petition lacks merit. A significantly viewed signal for purposes of the rules here in question is defined as one that is "[v]iewed in other than cable television households...." The underlying rationale of the significantly viewed exemption is that stations which are available off the air should not be blacked out on cable systems. The test for significantly viewed status is based on over-the-air viewing. To base significantly viewed status on cable reception would turn the rule on its head. In any event, this adjudicatory proceeding is not an appropriate venue for a seeking an amendment of that definition. 9. Finally, we reject the notion that the relief granted in Cypress requires clarification. Cypress granted a petition for waiver of Section 76.92(f) of the Commission's Rules, which essentially removed KTVU's significantly viewed status in the relevant communities. The network non-duplication protection rights of the parties, absent significantly viewed status, are fully defined under Section 76.92 of the Commission's rules. ORDERING CLAUSES 10. Accordingly, IT IS ORDERED that the petition of KTVU Partnership for reconsideration of the Memorandum Opinion and Order, DA 95-1696, released August 11, 1995 in Cypress Broadcasting Corporation, 10 FCC Rcd 8621 (CSB 1995), IS DENIED. 11. This action is taken pursuant to authority delegated by 47 C.F.R.  0.321. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau