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A. 1. a.(1)(a) i) a) 1. 1. 1. a.(1)(a) i) a)"5^*8]SS.88S_*8*.SSSSSSSSSS88___SxoxxofASoxfx]oxxxxo8.8aS8S]J]J8S].8].]S]]JA8]SxSSJB%BW*8888C8S]xSxSxSxSxSxxJoJoJoJoJA.A.A.A.x]SSSSx]x]x]x]xSxSx]SSxSxSf]xSxSxSxJxJoJoJoJSSS]]C]A]A8A]SSx]AN:*ZS8SSSSSS27}}S2||S}288SSS88SS8S82N8\\_C`_SS`*8]SS.88S_*8*.SSSSSSSSSS88___SxoxxofASoxfx]oxxxxo8.8aS8S]J]J8S].8].]S]]JA8]SxSSJB%BWv8SSSS8]888SS:S8A8xx*8SSSS%S8|2S_8|SC\228`Z*827S}}}SxxxxxxxooooAAAAxx_xxxxxf]SSSSSSxJJJJJ....S]SSSSS\S]]]]S]"5^2CRdd$CCdq2C28dddddddddd88qqqYzoCNzoozzC8C^dCYdYdYCdd88d8ddddCN8ddddY`(`l2CCCCPCddYYYYYYzYzYzYzYC8C8C8C8ddddddddddYdddddoddYYYYzYzYzYdddddPdCdCCCdNdoNNF2ZdCYddddd7>d<d<CCYYdCCddCYCdYzzzzCCCCqodYYYYYYYYYYY8888dddddddnddddddd2~"5^2Coddȧ8CCdr2C28ddddddddddCCrrrdzNdzoȐC8CtdCdoYoYCdo8Co8odooYNCodddYO,Oh2CCCCPCdodddddȐYYYYYN8N8N8N8oddddooooddoddddzodddYYYYYdddooPoNoNCNoddȐoNNF2ldCdddddd%7777777777>>>1eOIIOC=OO%+OCbOO=OI=COOhOOC%%47%17171%777V7777%+77O77155<%%%%,%77O1O1O1O1O1bII1C1C1C1C1%%%%O7O7O7O7O7O7O7O7O7O7O1O7O7O7O7O7=7O7O1O1I1I1C1C1C1O7O7O7O7O7,7%7%%%7+O7bO=+N&27%177777"RR7!TT7R!%%117n%%77ln%1n%!N%<<>,?>77?%-77\V%%7>%7777777777>>>1eOIIOC=OO%+OCbOO=OI=COOhOOC%%47%17171%777V7777%+77O77155%T7,OOOOOO=7111111I111117777777<7777777"5^.=M\\'==\|.=.3\\\\\\\\\\==|||\ppzpp=Qzfzpp\fppffG3GM\=\\Q\Q3\\33Q3\\\\GG3\QzQQGI2Ic.====I=\\p\p\p\p\p\zzQpQpQpQpQ=3=3=3=3z\\\\\\\\\fQp\\\\fQ\p\p\p\p\zQzQpQpQpQ\\\\\I\=\===\Q\z\GN@.`\G\\\\\\39\7\7==ff\==\\=f=7N=ee|Ij|\\j.=M\\'==\|.=.3\\\\\\\\\\==|||\ppzpp=Qzfzpp\fppffG3GM\=\\Q\Q3\\33Q3\\\\GG3\QzQQGI2Ic=\f\\=\===ff@\=G=zf.G\\\\2\=3\|=\Ie77=j`.=79\\ppppppzpppp====z|fp\\\\\\\zQQQQQ3333\\\\\\\e\\\\\Q\2^&R+.y.C8*X?C\  P6QPly.G8*X%G4  pQ.7PC2XXP\  P6QXPl7UC2XXU4  pQX.2J=.Xw&J\  P6Q&P .W!0(Xh0\  P6QhP.I(!X,(\  P6Q,P{,C8*X3FC*f9 xQXl2N=.X&N4  pQ&.P,%XJ,\  P6QJP0J=.X3U&J*f9 xQ&X3.y.C8*X?C\  P6QPly.G8*X%G4  pQ S' X   PT S' #Xj\  P6G;XP##&J\  P6Qw&P#Federal Communications Commission`~(#cDA 991279 ă   yxdddy P#X\  P6G;?P#Qb #&J\  P6Qw&P#Before the Federal Communications Commission  S'&2Washington, D.C. 20554 ă  S`'#&a\  P6G;w&P##Xj\  P6G;XP##&J\  P6Qw&P#In the Matter of:) )  S'Delmarva Broadcast Service)ppCSR5354N General Partnership) ) For Waiver of 76.92(f) and 76.156(a)) of the Commission's Rules)  S '  MEMORANDUM OPINION AND ORDER \  S 'X` hp x (#%'0*,.8135@8:ZD  yO>'ԍ103 FCC 2d 407 (1986).> For each year, the data must be obtained as a result of  xindependent professional surveys taken during two oneweek periods which are separated by at least thirty  xQdays, the viewing samples must be distributed proportionately among the relevant cable communities, and  S'not more than one of the surveys may be taken between April and September of each year.I  {OV'ԍSee 47 C.F.R. 76.54(b).I  S' III. THE PLEADINGS  SB' e 5. ` ` In support of its petition, WMDT states that it is an ABC network affiliate, licensed to  xSalisbury, Maryland, and operates as part of the Salisbury ADI/DMA. WMDT points out that the cable  xtsystems involved herein are both located within the same market and all of the communities served are  xtlocated within WMDT's 35mile specified zone and Grade A contour. WMDT states that WMARTV,  xpon the other hand, is licensed to Baltimore, Maryland, which is approximately 7090 miles from the  xcommunities, and does not place either a Grade A or Grade B contour over the communities. Despite this,  x*WMDT maintains that it is precluded from asserting its legitimate network nonduplication and syndicated  x exclusivity rights against WMARTV due to the fact that WMARTV is considered to be significantly  xviewed in the counties in which Comcast's cable communities are located. WMDT asserts that WMAR xNTV no longer meets the significantly viewed standard in the cable communities herein and it  xcommissioned VideoProbeIndex, Inc. ("VPI") to conduct combined surveys in the respective communities"f ,p(p(88"  S' xQto determine WMARTV's actual significantly viewed status.A  yOh'ԍPetition at Attachment A.A WMDT states that VPI conducted surveys  x!of two oneweek periods for each of two consecutive years, which is fully consistent with the requirements  xset forth in Section 76.54(b) of the Commission's rules. The first year's surveys were conducted during  xgthe weeks of July 2329 and October 20November 4, 1997, and the second year's surveys during the  xxweeks of July 2228, and October 28November 3, 1998. According to VPI, WMDT states that WMAR xZTV's share of total viewing hours in noncable homes in the cable communities falls below the required 3% minimum, within one standard error, as shown in the table below:  S'Survey` ` HouseholdsSharehhCqStandardppNet  *Standard  S'Year` ` StudiedViewingqErrorppWeekly  *Error  Sp'` `  HourshhCqppCirculation  S '1997` ` 199 1.0hhCq0.5pp9.9  *2.8  S '1998 ` ` 185 0.6hhCq0.3pp8.5  *2.6  xpAs a result, WMDT requests that the Commission grant its petition so that it can assert its network nonduplication and syndicated exclusivity rights in the subject communities.  S0' e 6. ` ` In opposition, WMARTV argues that the surveys relied on by WMDT to demonstrate  xthat WMARTV is no longer significantly viewed were not conducted in accordance with the  xCommission's procedural rules and are substantively flawed. As a result, WMARTV contends that they  xcannot be relied upon as a basis for removing WMARTV's significantly viewed status in the instant  xcommunities. WMARTV points out that Commission rules mandate that notice of a proposed audience  xsurvey be served on all licensees or permittees of television stations within whose predicted Grade B  x*contour the cable communities are located, as well as all other system community units, franchisees, and  S' x}franchise applicants in each of the cable communities at least 30 days prior to initial survey period.? X  yO'ԍ47 C.F.R. 76.54(c).?  xWMARTV states that WMDT has given no indication that it complied with this requirement. Failure  xto provide the required notice, argues WMARTV, prevents any interested parties from objecting to survey  xZprocedures and any petition for special relief based entirely upon such a resulting survey is necessarily flawed.  S(' e 7. ` ` WMARTV states that in VPI's explanation of its methodology, it indicated that a diary  S' xprovided to each survey participant "allows the keeper to list all viewing  by the quarter hour " and that  x/it calculated WMARTV's share of viewing hours and net weekly circulation based on information  xprovided by survey respondents in "a 7day viewing diary with 560 possible quarterhour viewing  S' x&entries."V   yO#'ԍSurvey Summary at 2 and 4 (emphasis supplied).V Further, WMARTV states, VPI defines "share" as a "station's percentage of total sample's  xweekly viewing hours" and "net weekly circulation" as "[t]he number of homes in which each station is  xviewed during the week. At least one quarterhour must be entered with a minimum of five minutes of"8x ,p(p(88D"  S' x7viewing time for the household to qualify."   yOh' x" ԍSurvey Summary at 2. WMARTV states that the sample segment of a survey form provided by VPI encourages a survey participant to enter information on any program viewed in increments of 15 minutes. WMARTV maintains that the Commission's rules state that  S' x"[share of viewing hours] means  the total hours that noncable television households viewed the subject  S' xstation during the week, expressed as a percentage of  the total hours these households viewed all stations  xduring the period, and [net weekly circulation] means the number of noncable television households that  S`' x viewed the station for  5 minutes or more  during the entire week expressed as a percentage of the total  S8'noncable television households in the survey area."R 8   yO'ԍ47 C.F.R. 76.5(i) (emphasis supplied).R  S' e i8. ` ` WMARTV argues that it is evident that there are significant flaws in VPI's stated  xkmethodology. First, WMARTV states that the survey encouraged the collection of information in at least  x315minute increments rather than in the five minute increments contemplated under the Commission's  xrules. WMARTV contends that this may have been understood by the survey respondents not to seek  xMinformation regarding briefer 5minute viewing periods. Second, WMARTV states that there are 672  xgquarterhour periods in seven days and VPI's survey relied only on "560 possible quarterhour viewing  S ' xentries" in a sevenday period.<   yOH'ԍSurvey Summary at 4.< WMARTV asserts that VPI does not account for the remaining 112  x quarterhour periods (or 336 fiveminute periods) which could substantially alter the study's resultant  xshares of viewing hours and net weekly circulation. Moreover, WMARTV states, VPI bases its  xconclusions on the "total sample's viewing hours" rather than on the Commission's mandate that the survey  SX'include an assessment of "total week hours" and monitor viewing "during the entire week.">X@  yO8'ԍ47 C.F.R. 76.5(i).>  S' e  9. ` ` Further, WMARTV points out that WMDT failed to provide the penetration rate of the  xcable system in any of the communities surveyed. WMARTV argues that the cable penetration rate has  xbeen recognized as a factor that may impact the determination of significantly viewed status and is a  S' xZpotential concern of the Commission in evaluating offair viewing data submitted.  {O' x ԍSee KCSTTV, Inc. v. FCC, 699 F. 2d 1185, 1199 (D.C. Cir. 1983) (Scalia, J., dissenting); KCSTTV, Inc., 103 FCC 2d at 412. WMARTV states  Sh' x*that the cable penetration rate in the Salisbury market is 74 percent.Oh*  yO2'ԍBroadcast & Cable Yearbook, 1997.O It maintains that any survey absent  xVcable penetration rate information is flawed because it may be based on information collected from  xnoncable households in a community with a high cable penetration rate and could not then reliably  x3establish the significantly viewed status of a television station in that community. Finally, WMARTV  xstates that deletion of WMARTV from the cable system communities herein would discontinue service  xthat residents have received since 1947 since it is likely that if WMDT's request is granted, Comcast will  xIdelete WMARTV from its lineup. WMARTV concludes that WMDT has failed to meet the high  x7burden of proof necessary to demonstrate that WMARTV is no longer significantly viewed in Wicomico and Sussex Counties and its petition should be denied. " ,p(p(88u"Ԍ S' e Ԋ 10. ` ` In reply, WMDT argues that none of the arguments raised by WMARTV have merit.  S' xFirst, WMDT states that it served the required presurvey notice, in timely fashion, on February 5, 1997.B yO@'ԍSee Reply at Attachment 1.B  xSecondly, WMDT points out that the diaries used by VPI expressly instructed participants, in bold type,  S' xto record all viewing " for each quarter hour that your set is turned on five minutes or longer. "UX yO'ԍReply at Attachment 2 (emphasis in original).U  xWMDT states that VPI's diaries break down each day into quarterhour increments because that is standard  x@practice in the televison ratings industry. WMDT indicates that this is done today by Nielsen and was  xdone by Arbitron at the time the Commission's original list of significantly viewed stations was compiled  S' xin 1972.1 {Op 'ԍId.1 Third, WMDT states that VPI's survey conforms to standard industry practice in that it, like  xQNielsen and Arbitron, ask survey participants to record their viewing on diary pages that list each quarter S' xhour beginning at 6 a.m. and ending at 2 a.m. (for a total of 560 quarterhour listings per week).1z {O'ԍId.1 Fourth,  xcWMDT argues that cable penetration rates well above 74 percent are no impediment to a survey of  SH ' xsignificantly viewed status.H  {O' x} ԍSee Cypress Broadcasting Corp., 11 FCC Rcd 21073, 21075, 21077 (1996) (significantly viewed survey approved and waiver granted despite 92.6% cable penetration rate in survey area). Finally, WMDT asserts that WMARTV's contention that a grant of the  xQrequested waiver would disrupt established viewing habits and harm the public interest is both generalized  xMand unsubstantiated. In any event, WMDT points out that alleged "viewer disruption" is simply not an  S 'available defense to a proper demonstration that a station is no longer significantly viewed. f  {O' x  ԍSee KCSTTV, Inc. v. FCC, 699 F. 2d 1185, 1194 (D.C. Cir. 1983); on remand, KCSTTV, Inc., 103 FCC wd 407 (1986).  S ' IV. DISCUSSION  S0' e # 11. ` ` We do not agree with the arguments raised by WMARTV and find that VPI conducted  xits surveys according to approved and reasonable statistical methodology and that they fully comply with  xthe requirements of Section 76.54(b) of the Commission's rules. Initially, we note that the collection  xinformation contained in VPI's diaries tracks industry standard methodology. While WMARTV argues  xthat VPI's wording encourages the collection of information in 15minute segments rather than the required  xfiveminutes increments, we find that the actual language used in the diary instructions is sufficiently clear  xthat survey participants would easily understand that a quarterhour was to be marked when the station  xwas viewed for at least five minutes within that quarterhour. Further, with regard to quarterhour viewing  xentries, standard audience survey practice is to consider each broadcast day from 6 a.m. to 2 a.m. (and  xsometimes 7 a.m. to 1 a.m.). This policy was adopted due to the fact that for many years this was the  xperiod between the signon and signoff for a significant number of stations. Survey firms, such as  xNielsen and Arbitron, continue to only measure this period as the full day due to extremely low viewing  x@levels during the night. Moreover, the original Commission significantly viewed surveys conducted in  x1972 also were defined in this way. Therefore, the use of a 20hour day, with 560 quarterhours per week is acceptable for this purpose. " ,p(p(88+"Ԍ S' e S 12. ` ` With regard to WMDT's presurvey notification, we find that WMARTV misapplies  x Section 76.54(c) of the rules. The service list set forth in Section 76.54(c) applies in those instances  xwhere a station is seeking to obtain significantly viewed status on a communityspecific or systemspecific  xZbasis pursuant to Section 76.54(b). Such a change in status would naturally affect all of the television  xstations, cable operators and franchising authorities that serve the affected communities and for that reason  xthey are required to be served. In situations, such as here, where a station is seeking to prove that a  xZcompetitor is no longer significantly viewed with respect to a specific cable system, only those parties  xdirectly affected need be notified since in all other respects the competing station's significantly viewed  xstatus would be unchanged. In addition, we disagree with WMARTV's conclusions that WMDT erred  xin not providing cable penetration data and that information collected from noncable households in a  xkcommunity with a high cable penetration rate would not reliably establish significantly viewed status. The  xonly relevance of cable penetration data is whether or not a statistically valid sample of noncable homes  xcan be derived and the 74 percent penetration level claimed by WMARTV in this instance is not  xsufficiently high to render the survey invalid. For example, only when cable penetration exceeds 90  xpercent have rating services failed to report separate cable and noncable data in their routinely published  xreports. In any event, since significantly viewed status is a measure of the viewing patterns of noncable  xxhomes, the required calculation of standard error and its use along with the sample results assures that the  x survey results are representative of actual viewing levels in noncable homes and are not unreasonably  x@skewed by any small sample size. Moreover, there is nothing in the Commission's rules to require the petitioner to provide cable penetration data.   S' e  13. ` ` In KCSTTV, Inc., the Commission determined that Section 76.92(f) of the rules could be  xwaived if it could be shown that a station has not met the standards for significantly viewed status for two  x7consecutive years based on community or systemspecific data, to one standard error. WMDT submits  xthe results of systemspecific surveys conducted by VPI over four separate, consecutive fourweek periods  xfor the two year periods of July and October/November 1997 and July and October/November 1998.  S' xThese survey dates meet the criteria set forth in the rules and KCSTTV, Inc. that the two oneweek  xsurveys be separated by at least 30 days and that both surveys may not occur between April and  xSeptember. In addition, since combined community surveys were conducted, the rules require that each  xcommunity be proportionately represented on the basis of its relative population in the sample. We find that the sample distribution herein is proportional to the population, as required.  S' e  14. ` ` For the above reasons, we find that a grant of the waiver of the signficantly viewed  xexception from the network nonduplication and syndicated exclusivity rules with regard to the system x*specific survey for the communities of Salisbury, Delmar, Fruitland, Hebron and unincorporated areas of  xMWicomico County, Maryland, and Delmar and unincorporated areas of Sussex County, Delaware, will serve the public interest. "<,p(p(88"  S' V. ORDERING CLAUSES  S' e J15. ` ` Accordingly, IT IS ORDERED , that the petition filed by Delmarva Broadcast Service  S'General Partnership IS GRANTED.  S8' e 16.` ` This action is taken pursuant to authority delegated under Section 0.321 of the  S'Commission's rules.< yOx'ԍ47 C.F.R. 0.321.< ` `  hhCqFEDERAL COMMUNICATIONS COMMISSION ` `  hhCqWilliam H. Johnson ` ` hhCqDeputy Chief, Cable Services Bureau