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(Assignor) ) )  Y22and)File No. BALCT970807KJ ) OUTLET BROADCASTING, INC.) (Assignee) ) ) For Consent to the Assignment of the )  Y 2 License for Television Station ) WVIT(TV), New Britain, Connecticut ) ) and ) ) WVIT INC.) )  Y2For Modification of Facilities) File No. BPCT970612KE H of WVIT(TV), New Britain, Connecticut)  X28}  MEMORANDUM OPINION AND ORDER x  Y}2X` hp x (#%'0*,.8135@8:Grade A contours of WJAR(TV) and WVIT(TV), respectively. The size of the Grade B overlap between   WNBC(TV) and WVIT(TV)'s currently authorized facilities represents 9.4 percent and 9.5 percent of the land area"3',-(-(~'"   and 4.5 percent and 19.9 percent of the population within the predicted Grade B contours of WNBC(TV) and   WVIT(TV), respectively. No Grade A overlap exists between WNBC(TV) and WVIT(TV)'s licensed or proposed facilities."Z,-(-(ZZ>"Ԍ Y- ԙ4. Recently, in Stockholders of Renaissance Communications Corp., FCC 9798, 7 CR  Y-  ;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.  Y-  A modification which, if granted, would result in less than maximum use of the facilities or the  Y-  <loss of service to the presently served population heightens this concern. Id.; Huron Shores  Y-  ;Broadcasting Corp., 53 FCC 2d 216, 217 (1975); see also Jones T. Sudbury, 4 RR 2d 679, 680  Y|-(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   xtheir 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   Kthe 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   iservice and a new network service to additional viewers, without the loss of such service to  Y-  existing viewers, constitutes a significant public interest benefit.~{  {O/-  ԍ See John McCutcheon d/b/a MCC Communications, 4 FCC Rcd 2079, 2082 (1989) (applications to modify   ,both existing facilities of station and authorized facilities of unbuilt station granted where nearly 30,000 people not   within predicted Grade B contour of NBC service would for first time be within predicted Grade B contour of NBC  {O-  =affiliate); Citadel Communications Company, Ltd., 10 FCC Rcd 11910, 11921 (1995), aff'd sub nom. Busse  {OS-  Broadcasting Corp. v. FCC, 87 F.3d 1456 (D.C. Cir. 1996) (applications to modify facilities of television station   and to construct new station granted where grant of both would result in total service gain of 217,932, while only 236 people were predicted to lose ABC service). 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.  Y:- !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   X 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  Y-  Kmodification 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),   jas 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"A. ,-(-(ZZ"   12.1 percent of the area and 11.1 percent of the population within the WVIT(TV) Grade B  Y-  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 HartfordNew Haven, Connecticut Designated Market Area (DMA),   iranked 12th, WJAR(TV) is located in the Providence, Rhode Island DMA, ranked 47th, and   YWNBC(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   Znoncommercial 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   Yother 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 HartfordNew Haven DMA is served by 43 radio stations, 10 daily newspapers, and has an 86 percent cable penetration rate.  z9. Lastly, the Assignee contends that the proposed common ownership of WVIT(TV),   WJAR(TV) and WNBC(TV) fully complies with the Commission's twopronged interim duopoly policy and, therefore, concludes that grant of the requested waiver is appropriate and justified.  Y - 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   ito prevent an undue concentration of economic power by fostering economic competition in  Y!-  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  YU%-  wrule would be "inappropriate." Multiple Ownership of Standard, FM and Television Broadcast  Y@&-  xStations, 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"+',-(-(ZZP("   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  Y-  from the combination. See Iowa State University Broadcasting Corporation, 9 FCC Rcd 481,  Y-  48788 (1993), aff'd sub nom. Iowans for WOITV, Inc. v. FCC, 50 F.3d 1096 (D.C. Cir.  Y-  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  YN-  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.  Y -  11. Currently, the Commission is reexamining its broadcast television ownership   policies, including the duopoly rule. In January 1995, the Commission proposed a new  Y -  analytical framework within which to evaluate our broadcast television ownership rules. See   Review of the Commission's Regulations Governing Television Broadcasting, Further Notice of  Y-  Proposed Rule Making, 10 FCC Rcd 3524 (1995) (Television Ownership Further Notice).  Y-  Subsequent to the release of that Television Ownership Further Notice, Congress directed the  Yp-  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  YB-  Ywithin the same television market.  See Section 202(c) of the Telecommunications Act of 1996,  Y--  \Pub. L. No. 104104, 110 Stat. 56 (Feb. 8, 1996) (Telecomm Act). In response to this  Y-  Congressional directive in the Telecomm Act and to update the record, the Commission released  Y-   the Review of the Commission's Regulations Governing Television Broadcasting, Second Further  Y-  Notice of Proposed Rule Making, FCC 96438 (released November 7, 1996) (Television  Y-  hOwnership Second Further Notice). In that Second Further Notice, the Commission tentatively   wconcluded to authorize common ownership of television stations that are in separate DMAs and  Y-  hwhose Grade A contours do not overlap. Television Ownership Second Further Notice at 57.  Y- 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   v 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   iconclusion. 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  Y-  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  Y"-  competition and diversity goals in the interim."  Id. Additionally, the Commission gave the staff  Y#-  delegated authority to act on applications seeking waivers consistent with this interim policy.   Y$-Id.  Yu%-  Y^&- l13. Based on the Commission's interim ownership policy outlined in the Television"^&,-(-(ZZ`'"  Y-  Ownership Second Further Notice, we believe grant of conditional waivers of the duopoly rule,   Zsubject 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  Y-  iinterim policy set forth in the Television Ownership Second Further Notice. Moreover, our   Jexamination 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 sixmonth 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. BPCT970612KE, 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  Y -  ownership rulemaking, (Second Further Notice of Proposed Rulemaking, in MM Docket No. 91  221 and 878). 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. 91221   and 878, 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   Ylicense of WVIT(TV), New Britain, Connecticut, from WVIT Inc. to Outlet Broadcasting, Inc., File No. BALCT970807KJ, IS GRANTED.  h FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau  h        pX` hp x (#%'0*,.8135@8: