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File how2ftp (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ***************************************************************** ******** $//MO&O, River City Licnse Partnership (KDNL(TV)), DA 95-2259//$ $/73.658(k) Prime Time Access Rule /$ $/NOT FOR RECORD/$ DA 95-2259 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) ) Request of River City License ) File No. 950921A Partnership, Licensee of Television ) Station KDNL, St. Louis, ) Missouri ) ) For Temporary Waiver of ) 47 CFR Section 73.658(k) ) MEMORANDUM OPINION AND ORDER Adopted: October 30, 1995; Released: October __, 1995 By the Chief, Mass Media Bureau: 1. We now consider a request filed on behalf of River City License Partnership ("River City"), licensee of Television Station KDNL, St. Louis, Missouri, for a waiver of the prime time access rule (PTAR), 47 C.F.R. 73.658(k). The waiver is sought to permit KDNL, which is now affiliated with the ABC Television Network, to air the syndicated off- network program Home Improvement during prime time hours. 2. PTAR generally prohibits television stations in the top 50 markets that are affiliated with ABC, CBS, and NBC, from broadcasting more than three hours of network programs (the "network restriction") or former network programs (the "off-network restriction") during the four prime time viewing hours (i.e., 7 to 11 p.m. Eastern and Pacific Times and 6 to 10 p.m. Central and Mountain times). KDNL is a former affiliate of the Fox television network and was not subject to PTAR at the time River City contracted for the subject syndicated off- network programming. KDNL is now affiliated with ABC and is now subject to PTAR. 3. River City reports that as a result of an agreement between Fox and New World Communications Group, Fox decided to terminate its affiliation with KDNL and to affiliate with another station in that market. According to River City, it first learned of Fox's decision to terminate the affiliation from Fox on May 21, 1994. When it learned of Fox's decision, River City states that it, along with other area stations, pursued an affiliation with ABC. River City and ABC reached an agreement with ABC on September 1, 1994, and KDNL began broadcasting ABC programming on August 7, 1995. 4. To effectuate programming strategies devised while still a Fox affiliate and before it knew of Fox's intent to disaffiliate KDNL, River City secured the rights to broadcast Home Improvement specifically for the prime time access period. River City now seeks permission to air this programming during prime time, despite the PTAR bar. River City points out that in its negotiations with syndicators for access period programming, they paid premium prices based on projections of the likely ratings and revenues for that particular time period. River City asserts that if it is required to broadcast this programming in less profitable time periods, the station will placed at a competitive disadvantage as the revenues projections which supported its program purchase will not be realized if the program cannot be aired as anticipated at the time of that bid. 5. River City also asserts that the equity of its situation requires grant of the waiver request. It emphasizes that KDNL lost its Fox affiliations involuntarily due to network transactions that were beyond River City's control. It further emphasizes that it would be unfair to subject KDNL to PTAR restrictions that it was not subject to at the time it entered into the Home Improvement contract. River City observes that Note 4 which follows the text of 47 C.F.R. Section 73.658(k) allows a so-called "burn-off" period for stations affiliated with an entity that becomes a "network" for purposes of PTAR coverage, and that under analogous circumstances it should be allowed a similar period to "burn off" the programming in question. Discussion 6. Although an applicant for a waiver faces a heavy burden of persuasion, the Commission must give a "hard look" to meritorious waiver requests and may grant such requests where the waiver will not undermine the policy of the general rule and where public interest considerations require the waiver. City of Angels Broadcasting, Inc. v. FCC, 745 F.2d 656 (D.C. Cir. 1984); WAIT Radio v. FCC, 418 F.2d 1153 (D.C. Cir. 1969), aff'd, 459 F.2d 1203 (D.C. Cir (1972), cert. denied, 409 U.S. 1027 (1972). For the reasons stated below, we believe that the requested waiver should be granted. 7. The facts and circumstances of this case are virtually identical to those involving the grant of similar waivers requested by ACT III Broadcasting License Corp. and Scripps Howard Broadcasting Company. See Memorandum Opinion and Order, FCC 95-384 (released Sept. 1, 1995) ("ACT III/Scripps"). Therein, we noted the unusual stance of a request to waive this particular rule: the Commission has recently determined that the rule no longer serves the public interest and that it is repealed effective August 30, 1996. The reason we adopted a one-year transition to repeal of the rule was to minimize whatever disruptive effects might occur as the market adjusted to a more deregulated environment. Thus, the critical consideration in evaluating this type of request is not whether the policy objective of PTAR itself would be undermined by waiving the rule, but whether the policy objectives of the transition period would thereby be undermined. Based upon the limited circumstances of those cases, we concluded that favorable action would be fully consistent with the goals of the one-year transition period by minimizing undue contracting and scheduling disruption that would occur were the rule to be applied to programming already acquired. In this regard, the Commission stated that disruption that would occur in the absence of a waiver, is analogous to that which we sought to avoid by establishing a transition period. 8. There were a number of equities favoring grant of the waiver requests in ACT III/Scripps that are also present in this case. There, as with KDNL, the petitioners lost their affiliation due to affiliation changes beyond their control. While still Fox affiliates, and before knowing that they would lose their Fox affiliation, the petitioners contracted for programming in good faith, paying premium prices for such shows based on the reasonable belief they would be able to air programming at certain times. In addition, River City is likely to experience a reduction in economic return due to the required shifting of the more expensive program fare to a less lucrative time slot. Finally, we note that while River City, like ACT III and Scripps, has attempted to ameliorate the negative impact of the Fox disaffiliations by seeking out an affiliation with one of the major three networks, the voluntary nature of this subsequent affiliation derives directly from the involuntary nature of the initial loss of affiliation. 9. We will therefore grant the requested waiver of the Prime Time Access Rule to allow River City to air the syndicated off-network program Home Improvement during the access period on Station KDNL. This waiver is limited to those episodes of Home Improvement for which River City contracted before it learned of KDNL's disaffiliation from the Fox network. We also note that on August 30, 1996, PTAR expires and this waiver will become moot. 10. Accordingly, IT IS ORDERED that, pursuant to delegated authority, River City's III's request for a waiver of the Prime Time Access Rule filed by IS GRANTED as described above. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau