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A. a.(1)(a) i) a)DocumentgPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:1d"Sh5^$(8<><q*"xxxxWWxxxWWkkxxxF"Sh5^;NhddCCCdCCCCddddddddddCCȲdzNdzzozzzCCCddCddYdYFdo88d8odddNN8oYdYNddddCdddddCddddddddd8dddddYYYYYN8N8N8N8oddddoooozYddddzYdzdddddddddddddddddood8ddddNdkdddzdzdzFz8ooddהddoNododzdzdzdooooozdzNCddCCCWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNdddNdYYddddddCddddCCCkkd88ddzzdddsssCkdC"Ȑd~d岲dCCȐzȲxCddodȐȅdCdYdsȐ`ȐȐȮzȐUvŐdȐddCCCCŅzozoYNzYYYN8YooYdYzzdzddzYzYzozzzNdzzzYzzzzCCdddddddzzzzCzdYCx Y-  #Xx P7oXP##Xx6X@DQwX@#  #XP\  P6QoXP#$//MO&O, River City Licnse Partnership (KDNL(TV)), DA 952259//$ $/73.658(k) Prime Time Access Rule /$ $/NOT FOR RECORD/$ x` `  hh@hpp  xxDA 952259  X- /Before the  X-W Federal Communications C ommission Washington, D.C. 20554  YH-  Y1-In the Matter of hh@ )h x` `  hh@ ) x` `  hh@ )  Y -Request of River City Licensehh@ ) hFile No. 950921A  Y -Partnership, Licensee of Television @ ) hpp  Y -Station KDNL, St. Louis, hh@ )hpp  Y -Missouri hh@ ) x` `  hh@ )  Yy-For Temporary Waiver ofhh@ )hpp  Yb-47 CFR Section 73.658(k)hh@ )hpp  X- | MEMORANDUM OPIN I ON AND ORDER ă  Y-x` ` Adopted: October 30, 1995;hReleased: October __, 1995 By the Chief, Mass Media Bureau: x1. 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 Y7-network program Home Improvement during prime time hours. x2. 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 "offnetwork  Y -restriction") during the four prime time viewing hours (i.e., 7 to 11 p.m. Eastern and Pacific  Y!-Times and 6 to 10 p.m. Central and Mountain times).#e!& Y*$-ԍ In a recent rulemaking proceeding, the Commission conducted an extensive review of PTAR and concluded that, in light of the current economic and technological state of the video marketplace, the rule is no longer warranted. The Commission noted, however, that eliminating PTAR immediately may have disruptive effects as the marketplace adjusts to the"&0*(( '" deregulated environment. The Commission further noted that a oneyear transition will give parties time to adjust their business plans and contractual arrangements prior to repeal of the rule and moderate an unnecessarily abrupt impact on affected stations. Accordingly, the  YK-Commission repealed PTAR, effective August 30, 1996. See Review of the Prime Time  Y6-Access Rule, Section 73.658(k) of the Commission's Rules, Report and Order in MM Docket  Y!-No. 94123, ("Report and Order"), FCC 95314 (adopted July 28, 1995, released July 31, 1995). # KDNL is a former affiliate of the"!0*(("" Fox television network and was not subject to PTAR at the time River City contracted for the subject syndicated offnetwork programming. KDNL is now affiliated with ABC and is now subject to PTAR. x x3. 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.  Y -x4. 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  Y -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. x5. River City also asserts that the equity of its situation requires grant of the waiver  Y-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  Y-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 socalled "burnoff" 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  Y;-in question. ;& Y%-ԍ Note 4 which follows 47 C.F.R. Section 73.658(k) states: "&0*((&"ԌXxX` ` For thirtysix (36) months after an entity becomes a network, stations owned by or affiliated with that network are exempt from compliance with the requirements of this paragraph with respect to programming already under contract at the time the entity became a network.(#` In further support of its waiver request, River City points out that in adopting PTAR, the Commission gave network affiliates a 24month period in which to "burn off" their existing  Y-inventories before PTAR took effect. Report and Order, Competition and Responsibility in  Y-Network Television Broadcasting, Docket No. 12782, 23 FCC 2d 382 (1970), modified on recon., Memorandum Opinion and Order, Competition and Responsibility in Network  Y -Television Broadcasting, 25 FCC 2d 318 (1970). "; 0*(("Ԍ Y-ԙ*1 Discussion ă x6. 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  Y-interest considerations require the waiver. City of Angels Broadcasting, Inc. v. FCC, 745  Y|-F.2d 656 (D.C. Cir. 1984); WAIT Radio v. FCC, 418 F.2d 1153 (D.C. Cir. 1969), aff'd,  Yg-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. x7. 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  Y -Howard Broadcasting Company. See Memorandum Opinion and Order, FCC 95384  Y -(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  Y -longer serves the public interest and that it is repealed effective August 30, 1996.r & Y-ԍ See PTAR Report and Order at 115, 131. r The reason we adopted a oneyear 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 oneyear 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.  Y-x8. There were a number of equities favoring grant of the waiver requests in ACT"L 0*((O"  Y-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  Yx-expensive program fare to a less lucrative time slot.9x& Y-ԍ Cf. In the Matter of Request of Station WUHQTV, Battle Creek, Michigan, for Partial  Y-Waiver of the Prime Time Access Rule, 71 FCC 2d 606 (1979) (PTAR waiver denied where "there is certainly not present the degree of economic stringency which could justify  Y -disparate treatment of competitors"); In the Matter of Request of Station WRETTV,  Y -Charlotte, N.C., for Temporary Waiver of Prime Time Access Rule, 68 FCC 2d 749 (1978) (PTAR waiver denied where there was no evidence of significant likelihood of economic hardship or financial stringency, and where the petitioner voluntarily sought to become an NBC affiliate).  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. x9. We will therefore grant the requested waiver of the Prime Time Access Rule to  Y -allow River City to air the syndicated offnetwork program Home Improvement during the  Y -access period on Station KDNL. This waiver is limited to those episodes of Home  Y -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. x10. 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. x` `  hhFEDERAL COMMUNICATIONS COMMISSION  YV- x` `  hhRoy J. Stewart x` `  hhChief, Mass Media Bureau