Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of: ) ) Northeast Kansas Broadcast Service,) CSR-5355-N Inc. ) ) For Waiver of 76.92(f) and 76.156(a)) of the Commission's Rules ) MEMORANDUM OPINION AND ORDER Adopted: July 26, 1999 Released: July 29, 1999 By the Deputy Chief, Cable Services Bureau: I. INTRODUCTION 1. Northeast Kansas Broadcast Service, Inc., licensee of Station KTKA-TV (ABC, Ch. 49), Topeka, Kansas ("KTKA-TV"), filed a petition for special relief seeking a waiver of the Commission's significantly viewed exception to the network nonduplication rules (47 C.F.R. 76.92(f)) and the syndicated program exclusivity rules (47 C.F.R. 76.156(a)). KTKA-TV's petition is unopposed. II. BACKGROUND 2. Upon the request of a local station which has the exclusive rights to distribute a network program, a cable operator generally 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 nonduplication rules if it is considered significantly viewed in a relevant community. Likewise, under the Commission's cable television syndicated programming exclusivity rules, a cable system may not import duplicating syndicated programming which has been purchased by a local station on an exclusive basis. In both situations, the Commission's rules in general provide stations such protection within a station's 35-mile geographic zone. However, a local station may not exercise either right if an otherwise distant station is considered "significantly viewed" within the community served by the cable system The significantly viewed exemption 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. Should this viewership level be met, the station is no longer considered distant for purposes of the application of the Commission's exclusivity rules since it has established that it can be received over-the-air in the subject communities. 3. Station KTKA-TV seeks a waiver of the significantly viewed exception to the Commission's network nonduplication and syndicated exclusivity rules so that it may enforce its rights to network nonduplication protection and syndicated exclusivity against Station KMBC-TV (ABC, Ch. 9), Kansas City, Missouri ("KMBC-TV"), which is currently considered to be significantly viewed in Shawnee County, Kansas, where the cable communities served by Multimedia Cablevision, Inc. are 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, which provides for an exemption to the network nonduplication rules for significantly viewed stations, 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. For each year, the data must be obtained as a result of independent professional surveys taken during two one-week periods which are 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. III. THE PLEADINGS 5. In support of its petition, KTKA-TV states that it is an ABC affiliate licensed to Topeka, Kansas, which is part of the Topeka, Kansas Area of Dominant Influence ("ADI") and Designated Market Area ("DMA"). KTKA-TV points out that the cable communities involved herein are located in the Topeka market and all are well within KTKA-TV's 35-mile "specified zone" as well as the station's Grade A contour. On the other hand, KTKA-TV states that distant ABC affiliate, KMBC-TV, is licensed to Kansas City, Missouri, is part of the Kansas City ADI/DMA and is located anywhere from 40 to 60 miles from the subject cable communities. Despite the fact that KMBC-TV is located in a different market, KTKA-TV argues that it is unable to assert its legitimate network nonduplication and syndicated exclusivity rights against KMBC- TV because that station is considered to be "significantly viewed" in Shawnee County, Kansas. 6. KTKA-TV maintains that KMBC-TV is no longer significantly viewed in the cable communities herein and it commissioned VideoProbeIndex ("VPI"), an independent professional survey organization, to undertake surveys to determine KMBC-TV current significantly viewed status. KTKA-TV states that VPI conducted surveys of two one-week periods for each of two consecutive years consistent with the requirements set forth in Section 76.54(b) of the Commission's rules. The first year's surveys were conducted during the weeks of August 20-26 and October 29-November 4, 1997, and the second year's surveys during the weeks of August 29-25 and October 28-November 3, 1998. According to VPI, KTKA- TV states that KMBC-TV's share of total viewing hours in noncable homes in the cable communities falls below the required 3 percent minimum, within one standard error, as shown in the table below: Survey Households Share Standard Net Standard Year Studied Viewing Error Weekly Error Hours Circulation 1997 208 1.8 0.7 15.9 3.5 1998 191 1.7 0.6 7.0 2.1 As a result, KTKA-TV requests that the Commission grant its petition so that it can assert its network nonduplication and syndicated exclusivity rights in the subject communities. IV. DISCUSSION 7. In KCST-TV, Inc., the Commission determined that Section 76.92(f) of the Commission's rules could be waived if it could be shown that a station has not met the standards for significantly viewed status for two consecutive years based on community-specific or system-specific data, to one standard error. KTKA-TV submits the results of system-specific surveys conducted by VPI over four separate, consecutive four-week periods for the two year periods of August and October/November 1997 and August and October/November 1998. These survey data meet the criteria set forth in the rules and KCST-TV, Inc. that the two one-week surveys be separated by at least 30 days and that both surveys may not occur between April and September. In addition, since combined community surveys were conducted, the rules require that each community 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, and that the surveys demonstrate that KMBC-TV is no longer significantly viewed in the instant communities. 8. For the above reasons, we find that a grant of the waiver of the significantly viewed exception from the network nonduplication and syndicated exclusivity rules with regard to the surveys submitted for the communities of Topeka, Auburn and unincorporated portions of Shawnee County (including the areas known as Berryton and Tecumseh) served by Multimedia, will serve the public interest. V. ORDERING CLAUSES 9. Accordingly, IT IS ORDERED that the petition filed by Northeast Kansas Broadcast Service, Inc. IS GRANTED. 10. This action is taken pursuant to authority delegated under Section 0.321 of the Commission's rules. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau