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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 Applications of ) ) WVIT INC. ) (Assignor) ) ) and ) File No. BALCT-970807KJ ) OUTLET BROADCASTING, INC. ) (Assignee) ) ) For Consent to the Assignment of the ) License for Television Station ) WVIT(TV), New Britain, Connecticut ) ) and ) ) WVIT INC. ) ) For Modification of Facilities ) File No. BPCT-970612KE of WVIT(TV), New Britain, Connecticut) MEMORANDUM OPINION AND ORDER Adopted: November 6, 1997 Released: November 7, 1997 By the Chief, Mass Media Bureau: 1. The Commission, by the Chief, Mass Media Bureau, acting pursuant to delegated authority, has before it for consideration the above-captioned, uncontested application seeking consent to the assignment of station WVIT(TV), Channel 30, New Britain, Connecticut, from WVIT Inc. (Assignor), an indirect, wholly-owned subsidiary of Viacom, Inc., to Outlet Broadcasting, Inc. (Assignee), an indirect, wholly-owned subsidiary of NBC. The Assignee is also the licensee of WJAR(TV), Channel 10, Providence, Rhode Island, and NBC is the licensee of WNBC(TV), Channel 4, New York, New York. Because the predicted Grade B contours of WJAR(TV) and WNBC(TV) overlap that of WVIT(TV), the Assignee has requested waivers of the Commission's duopoly rule, 47 C.F.R. Section 73.3555(b), conditioned upon the outcome of the pending broadcast television ownership rulemaking concerning the duopoly and other multiple ownership rules. See Review of the Commission's Regulations Governing Television Broadcasting, Second Further Notice of Proposed Rule Making, FCC 96-438 (released Nov. 7, 1996) (Television Ownership Second Further Notice). The Assignee asserts that grant of the requested duopoly waivers would be consistent with Commission precedent and would serve the public interest. 2. WVIT(TV)'s Pending Modification Application. Before addressing the Assignee's request for a waiver of the duopoly rule to allow the common ownership of WVIT(TV), WJAR(TV) and WNBC(TV), we must first consider the pending application to modify WVIT(TV)'s facilities. That modification application proposes to increase WVIT(TV)'s maximum peak visual effective radiated power from 3,090 KW to 5,000 KW, to replace the station's current directional antenna and to increase the antenna radiation center HAAT by two meters to 453 meters. Operation of WVIT(TV) as proposed, the parties maintain, would result in the loss of WVIT(TV) service to 126,874 people, 23,921 of whom would lose NBC network service. The Assignor contends, however, that "the 23,921 persons predicted to lose their only over-the-air NBC network service do not actually receive that service today." In support, on October 6, 1997, the Assignor supplemented its modification application with a terrain-adjusted Grade B contour study which concludes that, due to the hilly terrain of the loss area, the WVIT(TV) signal does not actually reach those 23,921 people predicted to lose its service. 3. Notwithstanding this loss of service, the parties contend that the modification of WVIT(TV)'s facilities would result in a predicted net gain of service to people in Long Island, New York. According to the parties, operating as proposed, WVIT(TV) would provide a new service to 144,836 people, 61,397 of whom would receive their first NBC network service. In addition, the Assignee asserts, at least six and as many as 24 other television stations would continue to provide Grade B service to the areas predicted to lose WVIT(TV) service. Those areas, moreover have approximately 86 percent cable penetration, and all of the cable systems which serve the people predicted to lose WVIT(TV) service carry another NBC-affiliated station. Finally, the proposed modification would reduce the size of the Grade B overlap and eliminate a small Grade A overlap between WJAR(TV) and WVIT(TV)'s currently authorized facilities. 4. Recently, in Stockholders of Renaissance Communications Corp., FCC 97-98, 7 CR 623, 629 (released March 21, 1997), the Commission reiterated its concern regarding proposed modifications designed solely to avoid overlap problems under the multiple ownership rules. A modification which, if granted, would result in less than maximum use of the facilities or the loss of service to the presently served population heightens this concern. Id.; Huron Shores Broadcasting Corp., 53 FCC 2d 216, 217 (1975); see also Jones T. Sudbury, 4 RR 2d 679, 680 (1965). 5. Here, the proposed modification would increase WVIT(TV)'s coverage and would provide new Grade B service to 144,836 additional people. Of those people, 61,397 will receive their first NBC network service. Our independent engineering analysis, moreover, confirms that, due to the terrain, the signal from WVIT(TV)'s currently authorized facilities fails to reach the 23,921 people predicted to lose that station's service. Because they presently receive no service from WVIT(TV), those 23,921 people would experience no loss of service if the modification of the facilities is granted. Therefore, this proposed provision of a new television service and a new network service to additional viewers, without the loss of such service to existing viewers, constitutes a significant public interest benefit. We conclude, on balance, that grant of WVIT(TV)'s minor change application serves the public interest, convenience and necessity. Therefore, we will grant the modification application. 6. Waiver Requests. In support of its duopoly waiver requests, the Assignee has submitted an engineering exhibit which shows that no Grade A overlap exists between WNBC(TV) and WVIT(TV), as licensed and as proposed, and that grant of WVIT(TV)'s pending modification application will eliminate the existing Grade A overlap between that station and WJAR(TV). Regarding the Grade B contours of these stations, the Assignee states that the Grade B overlap of WNBC(TV) and WVIT(TV), as modified pursuant to the pending modification application discussed supra, encompasses 2,090 square kilometers and 829,952 people, representing 9.6 percent of the area and 4.5 percent of the population within the WNBC(TV) Grade B contour, and 9.8 percent of the area and 19.8 percent of the population within the WVIT(TV) Grade B contour. The Grade B overlap of WJAR(TV) and WVIT(TV), as modified, encompasses 2,580 square kilometers and 465,793 people, representing 14.3 percent of the area and 7.5 percent of the population of the WJAR(TV) Grade B contour, and 12.1 percent of the area and 11.1 percent of the population within the WVIT(TV) Grade B contour. The Assignee contends that these degrees of overlap fall well within the range of previous duopoly waiver cases approved by the Commission. 7. Next, the Assignee states that the stations serve separate and distinct markets. WVIT(TV) is located in the Hartford-New Haven, Connecticut Designated Market Area (DMA), ranked 12th, WJAR(TV) is located in the Providence, Rhode Island DMA, ranked 47th, and WNBC(TV) is located in the number one ranked DMA, New York, New York. The Assignee avers, moreover, that WVIT(TV), WJAR(TV) and WNBC(TV) will be operated separately and independently. To wit, each of the stations will have its own general manager, as well as its own news, promotion, technical and sales staffs. 8. As for the number of media voices in the overlap areas, the Assignee claims that, in addition to WNBC(TV) and WVIT(TV), 20 commercial television stations and eight noncommercial television stations provide service to part or all of the Grade B overlap area. Of these 28 television stations, the Assignee asserts that nine provide Grade B coverage to the entire WNBC(TV)/WVIT(TV) overlap area, and at least 15 "other visual services" are received in any portion of the overlap area. The Assignee further states that 22 commercial television stations and six noncommercial television stations provide service to all or part of the WJAR(TV)/WVIT(TV) overlap area. The entire WJAR(TV)/WVIT(TV) overlap area receives service from two of these television stations, and at least nine "other visual services" are received in any portion of the overlap area. In addition, the Assignee maintains that the respective markets served by WNBC(TV), WJAR(TV) and WVIT(TV) contain a multitude of other media voices. According to the Assignee, at least 156 radio stations serve the New York DMA, which is also served by 33 daily newspapers and has a cable penetration rate of 71 percent. The Providence DMA is served by 57 radio stations, six daily newspapers, and has a cable penetration rate of 77 percent, while the Hartford-New Haven DMA is served by 43 radio stations, 10 daily newspapers, and has an 86 percent cable penetration rate. 9. Lastly, the Assignee contends that the proposed common ownership of WVIT(TV), WJAR(TV) and WNBC(TV) fully complies with the Commission's two-pronged interim duopoly policy and, therefore, concludes that grant of the requested waiver is appropriate and justified. 10. Discussion. The television duopoly rule, 47 C.F.R.  73.3555(b), generally prohibits the common ownership of television stations whose Grade B contours overlap. The objective of the duopoly rule is to promote diversity in programming sources and viewpoints and to prevent an undue concentration of economic power by fostering economic competition in broadcasting. Multiple Ownership Rules, 22 FCC 2d 306, 307 (1970), recon. granted in part, 28 FCC 2d 662 (1971). In adopting the duopoly rule's fixed standard of a prohibited overlap of Grade B service contours, the Commission expressly acknowledged the need for "flexibility" in that rule's application, noting that waivers should be granted where rigid conformance to the rule would be "inappropriate." Multiple Ownership of Standard, FM and Television Broadcast Stations, 45 FCC 2d 1476, 1479 n.12, recon. granted in part, 3 RR 2d 1554 (1964). To that end, the Commission has developed a set of factors to be considered when evaluating an applicant's request for waiver of the duopoly rule, including the extent of the overlap, the number of media voices available in the overlap area, the distinctness of the respective markets, the independence of the stations' operations, and the concentration of economic power resulting from the combination. See Iowa State University Broadcasting Corporation, 9 FCC Rcd 481, 487-88 (1993), aff'd sub nom. Iowans for WOI-TV, Inc. v. FCC, 50 F.3d 1096 (D.C. Cir. 1995); H&C Communications, Inc., 9 FCC Rcd 144, 146 (1993). After weighing the factors, the Commission considers any public interest benefits proposed by the applicant to determine whether, in light of the overlap, the benefits outweigh any detriment which may occur from grant of the waiver. See, e.g., Iowa State University, 9 FCC Rcd at 487088. As with any waiver, it will only be granted if the Commission concludes that the waiver is in the public interest. 11. Currently, the Commission is reexamining its broadcast television ownership policies, including the duopoly rule. In January 1995, the Commission proposed a new analytical framework within which to evaluate our broadcast television ownership rules. See Review of the Commission's Regulations Governing Television Broadcasting, Further Notice of Proposed Rule Making, 10 FCC Rcd 3524 (1995) (Television Ownership Further Notice). Subsequent to the release of that Television Ownership Further Notice, Congress directed the Commission to conduct a rulemaking proceeding to determine whether to retain, modify or eliminate existing limitations on the number of television stations that an entity may control within the same television market. See Section 202(c) of the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (Feb. 8, 1996) (Telecomm Act). In response to this Congressional directive in the Telecomm Act and to update the record, the Commission released the Review of the Commission's Regulations Governing Television Broadcasting, Second Further Notice of Proposed Rule Making, FCC 96-438 (released November 7, 1996) (Television Ownership Second Further Notice). In that Second Further Notice, the Commission tentatively concluded to authorize common ownership of television stations that are in separate DMAs and whose Grade A contours do not overlap. Television Ownership Second Further Notice at 57. 12. The Commission stated in the Television Ownership Second Further Notice that it will be inclined during the pendency of the television ownership proceeding to grant duopoly waivers involving stations in different DMAs with no overlapping Grade A contours, conditioned on coming into compliance with the outcome of the proceeding within six months of its conclusion. It also noted its tentative conclusion that the record in that proceeding "supports relaxation of the geographic scope of the duopoly rule from its current Grade B overlap standard to a standard based on DMAs supplemented with a Grade A overlap criterion." Id. at 57. The Commission further stated that "we do not believe granting waivers satisfying the proposed standard, and conditioning them on the outcome of this proceeding, will adversely affect our competition and diversity goals in the interim." Id. Additionally, the Commission gave the staff delegated authority to act on applications seeking waivers consistent with this interim policy. Id. 13. Based on the Commission's interim ownership policy outlined in the Television Ownership Second Further Notice, we believe grant of conditional waivers of the duopoly rule, subject to the outcome of the pending ownership rulemaking, is justified. Because the three stations are in separate DMAs and the stations' Grade A contours do not overlap, the temporary common ownership of WVIT(TV), WJAR(TV) and WNBC(TV) would be consistent with the interim policy set forth in the Television Ownership Second Further Notice. Moreover, our examination of the record presented here reveals nothing suggesting that we should not follow the established interim policy in this case. Accordingly, we conclude that grant of temporary waivers, conditioned upon the resolution of the pending broadcast television ownership rulemaking, will serve the public interest, convenience and necessity. Any request to extend the conditional waivers should be filed at least 45 days prior to the end of the six-month period and will be closely scrutinized. In addition, having found the applicants to be qualified in all respects, we conclude that grant of the application for assignment of license would also serve the public interest. 14. Accordingly, IT IS ORDERED, That the application for modification of the facilities of WVIT(TV), File No. BPCT-970612KE, IS GRANTED. 15. IT IS FURTHER ORDERED, That the requests for conditional waiver of the television duopoly rule, Section 73.3555(b) of the Commission's rules, to permit the common ownership by National Broadcasting Company, Inc. of television stations WVIT(TV), New Britain, Connecticut, WJAR(TV), Providence, Rhode Island, and WNBC(TV), New York, New York ARE GRANTED, subject to the outcome of the Commission's pending broadcast ownership rulemaking, (Second Further Notice of Proposed Rulemaking, in MM Docket No. 91- 221 and 87-8). Should divestiture be required as a result of that proceeding, the licensee is directed to file, within six months from the release of the final order in MM Docket No. 91-221 and 87-8, an application for Commission consent to dispose of such station(s) as would be necessary for National Broadcasting Company, Inc. to come into compliance with the rules as provided in the final order. 16. IT IS FURTHER ORDERED, That the application for consent to assignment of license of WVIT(TV), New Britain, Connecticut, from WVIT Inc. to Outlet Broadcasting, Inc., File No. BALCT-970807KJ, IS GRANTED. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau