******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. 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 re Petition of: ) ) Budd Broadcasting Company, Inc. ) CSR-5321-A ) For Modification of Market of Station) WGFL(TV) ) MEMORANDUM OPINION AND ORDER Adopted: March 18, 1999 Released: March 22, 1999 By the Deputy Chief, Cable Services Bureau: I. INTRODUCTION 1. Budd Broadcasting Company, Inc. ("Budd"), licensee of television station WGFL (Channel 53), High Springs, Florida ("WGFL"), has filed a petition to add certain communities located in Marion County, Florida to the television market of WGFL. Time Warner Entertainment-Advance/Newhouse Partnership, dba Time Warner Communications ("TWC"), Coxcom, Inc., and Comcast Holdings, Inc. (collectively "Coxcom"), operators of cable systems serving certain of the listed communities, and Meredith Corporation ("Meredith"), licensee of television broadcast station WOGX-TV, Ocala, Florida, filed oppositions to the petition. Budd filed a consolidated reply to the oppositions. II. DISCUSSION 2. TWC and Coxcom assert that the petition is repetitious of Budd's earlier petition for relief which was denied by Memorandum Opinion and Order, DA 98-1603, released August 12, 1998, in Budd Broadcasting Company, Inc., 13 FCC Rcd 15462 (CSB 1998) ("Budd Broadcasting"). They argue that reconsideration of the matters determined against Budd in Budd Broadcasting is precluded under the doctrines of res judicata and collateral estoppel. Meredith requests dismissal of the petition on the grounds that it is an unauthorized petition for reconsideration of Budd Broadcasting. Budd argues in response that the common law doctrines of res judicata and collateral estoppel should not be applied in the context of the public interest determinations involved in a market modification proceeding under Section 614(h) of the Communications Act. Budd asserts that even if those doctrines do apply, the petition presents new facts relating to the public interest that justify a decision on the merits. 3. The principles of res judicata and collateral estoppel may be applied to prevent agency re- litigation of factual disputes. For these doctrines to apply, four essential elements must generally be present - (1) an issue essential to the prior decision and identical to the one previously litigated, (2) the prior decision became a final judgment on the merits, (3) the estopped party was party to the prior litigation, and (4) the estopped party had a full and fair opportunity to litigate the issue in the earlier proceeding. Budd in the current petition seeks to litigate the ultimate issue of whether a particular list of communities in Marion County, Florida should be added to the television market of station WGFL. With the exception discussed below, that issue is identical to the ultimate issue determined in Budd Broadcasting. Budd is the petitioner here, and it was the petitioning party in Budd Broadcasting. Budd had a full and fair opportunity to litigate the issues it presented by means of the petition and reply filed in the earlier proceeding as well as an opportunity to file a timely petition for reconsideration of that order. On that record, we find that the four elements necessary for the doctrines of res judicata and colatteral estoppel to apply are present. Although the Commission has considerable procedural discretion in matters of this type, we are pursuaded that the Budd petition here is essentially a late filed reconsideration petition. Indeed in this proceeding Budd already filed an untimely petition for reconsideration, which was subsequently dismissed at Budd's request. Some measure of finality is needed in matters of this type both in terms of the interests of the parties involved and in terms of the efficient use of Commission resources. Budd Broadcasting is thus the Commission's final determination with respect to the issues raised in the current proceeding that were resolved in Budd Broadcasting. 4. A comparison of the lists of communities involved in Budd Broadcasting and presented in the current petition reveals some disparities in the communities involved in the two matters. Specifically, the current petition requests market modification with respect to certain communities that were not involved in Budd Broadcasting. Additionally, Budd Broadcasting denied market modification with respect to other communities that are not included in the current petition. Otherwise, the lists of communities for inclusion in WGFL(TV)'s market presented in this petition and in Budd Broadcasting are identical. Accordingly, we find that Budd Broadcasting constitutes a final Commission determination that the communities listed in Budd's current petition should not be added to WGFL(TV)'s market, with the exception of the communities that were not considered in Budd Broadcasting, as identified in footnote 9. 5. We address next Budd's argument that its current petition presents new evidence which justifies Commission consideration of whether the listed communities should be included in WGFL(TV)'s market. The assertedly new information presented with the petition consists essentially of two elements. One is a presentation of the predicted signal contours of station WGFL(TV) using the Longley-Rice point-to-point model. That presentation is accompanied by maps purporting to show the location of each community in relation to the station's predicted Grade A and B signal contours as established using the Longley-Rice point- to-point model. While the Longley-Rice model and the maps may have been newly assembled for inclusion with the current petition, Budd failed to show that the information presented therein could not have been assembled and presented in Budd Broadcasting. The station's licensed facilities on which the Longley-Rice model was based have not changed from the facilities that existed and were considered in Budd Broadcasting. In other words, a Longley-Rice showing could have been presented in the earlier proceeding based on the station's unchanged facilities. Similarly, maps showing the unchanged locations of each of the communities at issue in relation to the station's contours also could have been presented the first time around. 6. The other category of "new" information consists of a listing of programming which WGFL(TV) commenced carrying after the earlier petition was denied in Budd Broadcasting. Budd claims this new programming is specifically targeted for the communities at issue. WGFL(TV)'s new "local" programming consists only of two half-hour weekly programs that are aired at 6:30 a.m. Sunday mornings and an unspecified number of thirty-second public service announcements. In any event, we deem this minimal amount of new "local" programming insufficient to justify revisiting a television station's market modification request. Accordingly, we will not revisit our conclusion in Budd Broadcasting that WGFL(TV) failed to satisfy the statutory station coverage/local service factor. 7. Budd presented no new evidence touching on the statutory factor concerning carriage of WGFL(TV) and other area stations, other that to claim that WGFL(TV) is now carried on cable systems in three of the communities at issue. Again, the information is not "new." The two letters supporting this claim show that carriage on one cable system had begun in April of 1998 and the other had begun on September 1, 1998 before time expired for filing a petition for reconsideration of Budd Broadcasting. Budd also presented no new evidence relevant to the statutory factor relating to local programming of other stations eligible for carriage or relevant to the statutory factor touching on station viewing patterns. Additionally, the substantial bulk of the other information presented here also was available for consideration in Budd Broadcasting. For example, the exhibits purporting to show economic and social ties between Alachua and Marion Counties are dated 1996 (in the case of the regional airport passenger data) and March 2, 1998 (in the case of the bank's letter). Similarly, there is nothing "new" about the information presented concerning market coverages of WOGX(TV) ( Orlando), WCJB-TV and and WUFT(TV) (Gainsville) that could not have been presented in the earlier petition. Finally, Budd has given no reason why the communities identified in footnote 10 that were not involved in Budd Broadcasting could not have been included in the earlier petition. III. ORDERING CLAUSES 8. Accordingly, IT IS ORDERED, pursuant to Section 614(h) of the Communications Act of 1934, as amended, 47 U.S.C.  534, and Section 76.59 of the Commission's Rules, 47 C.F.R.  76.59, that the captioned petition for special relief filed November 4, 1998 by Budd Broadcasting, Inc. IS DISMISSED. 9. This action is taken pursuant authority delegated under Section 0.321 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau