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A list of significantly viewed stations entitled to such exemption is published  {O2- xin Appendix A to the Commission's Memorandum Opinion and Order on Reconsideration (FCC 72530) in Cable  {O-Report and Order (Docket 18397 et al.), 36 F.C.C. 2nd 143 (1972).  xThe Commission considers both KSWBTV and KUSI(TV) to be independent stations for significantly viewed  xpurposes, and it mandates that, in order to be considered to be significantly viewed in a particular geographic area,  xisuch stations must demonstrate at least a 2% share of noncable viewing hours (total week hours), and at least 5%  x<net weekly circulation. 47 C.F.R. s76.5(i). In this context, "share of viewing hours" means the total hours that  xnon-cable television households viewed the subject station during the week (expressed as a percentage of the total  xhours these households viewed all stations during the period), and "net weekly circulation" means the number of  xnon-cable television households that viewed the station for 5 minutes or more during the entire week (expressed as a percentage of the total non-cable television households in the survey area). The  xsignificantly viewed exemption to the Commission's exclusivity rules is based on an otherwise distant  xstation establishing that it gets a "significant" level of overtheair viewership in a subject community.  xShould this viewership level be met, the station is no longer considered distant for purposes of the  xjapplication of the Commission exclusivity rule since it has established that it can be received overtheair  xin the subject communities. Stations KSWB and Channel 51 seek a waiver to remove station KCOP's  xsignificantly viewed status in San Diego County where the subject communities and cable systems are  xlocated. The result of this would be that KCOP no longer would be exempt from the application of the  xCommision's exclusivity rules because of its loss of significantly viewed status in the subject communities  xSan Diego County. Thus, stations KSWB and Channel 51, which have purchased exclusive right to  xdistribute certain syndicated programming would be able to request that local cable systems blackout such  SH -programming carried by KCOP.qH  {O-ԍ#X\  P6G;ɒP#See 47 C.F.R. 76.151 (1997).q  S - ` x3.` ` In KCSTTV, Inc., 103 FCC 2d 407 (1986) ("KCSTTV"), the Commission held that a  xwaiver of the Section 76.92(f) exemption from the network program nonduplication rules may be obtained,  xprovided it could be demonstrated that for two consecutive years a station was no longer significantly  xviewed in the communities served by the cable system. The Commission indicated that it must be shown  SZ- xthat the station's viewing level in the communities falls short of the appropriate standardsPZ  {O-ԍSee 47 C.F.R.  76.5(i) (1997).P based either  xon community, or system specific, noncable viewing data, by at least one standard sampling error. For  xeach year, the data must be obtained by means of an independent professional survey with the data  xdistributed proportionately among the relevant cable communities. The surveys must be taken during two  xLoneweek periods that are also separated by at least thirty days. Not more than one of the surveys may  S-be taken between April and September of each year.R {OL"-ԍSee, 47 CFR  76.54(b) (1997).. R  SB-T Ã ",O(O(88"Ԍ S-x` `  PETITIONERS' ARGUMENT  S- ` x4.` ` KSWB and Channel 51 seek a waiver of the significantly viewed exemption of the  S- xCommission's syndicated program exclusivity rules@ {O- xKԍThe Commission's syndicated program exclusivity rules, see 47 C.F.R.  76.151, and an exemption to them,  {O-see 47 C.F.R.  76.156, are applied in pari materia with the network nonduplication rules discussed in KCSTTV.@ in order to assert syndicated program exclusivity  xzprotection against against Los Angeles station KCOP, which is currently on the Commission's list of  xstations that are "significantly viewed" in San Diego County, California. The subject cable systems  xoperated by Cox Communications South, Cox Communications North, and Southwestern Cable are located  xin San Diego County and within the geographic zone of protection of stations KSWBTV and KUSI(TV).  x=KSWB and Channel 51 argue that, although KCOP is included in the list of significantly viewed stations  xin San Diego County, the station is no longer significantly viewed in the communities served by these  x>three cable systems. In support of the contention that KCOP is no longer significantly viewed in the  xcommunities at issue, KSWB submitted a study from Nielsen Media Research ("Nielsen Study") based on  x[audience viewing data from the cable communities during the February 1996, May 1996, February 1997,  x[and May 1997 audience survey periods, or "sweeps," of noncable households. According to the Nielsen Study, KCOP's average weekly circulation was as shown on the following tables:  S -Cox Communications North1X $ yOD- xhԍCox Communications North serves, in whole or in part, Bonsall, Camp Pendelton, Cardiff by the Sea, Encinitas,  xEscondido, Oceanside, Romona, Rancho Sants Fe, San Luis Rey, San Marcos, Solana Beach, Valley Center, and Vista, California1փ  S0-x` `  Share TotalhhStandardhppAverage Weekly xxStandard  S-Survey Period` `  Viewing %hhError @hppCirculation %xxError  S-February 1996` `  0.00hh0.00@hpp0.00  xx0.00  S-May 1996` `  0.26hh0.14@hpp6.68  xx3.77  Sh-February 1997` `  0.09hh0.06@hpp5.77  xx3.41  S@-May 1997` `  0.59hh0.65@hpp1.88  xx1.90 0 x "D,O(O(88"  S-Cox Communications South< X yOh- xԍCox Communications South serves, in whole or in part, Alpine, Bonita, Chula Vista, El Cajon, Inperial Beach,  xKJamul, La Mesa, Lakeside, Lemon Grove, National City, Pine Valley, Poway, San Diego, San Ysidro, Santee, and Spring Valley, California.<փ  S-x` `  Share TotalhhStandardhppAverage Weekly xxStandard  S-Survey Period` `  Viewing % hhError@hppCirculation %xxError  S8-February 1996` `  0.00hh0.00@hpp0.00  xx0.00  S-May 1996` `  0.01hh0.01@hpp0.83  xx0.84  S-February 1997` `  0.00hh0.00@hpp0.00  xx0.00  S-May 1997` `  0.03hh0.03@hpp0.97  xx0.96 0  Sp-x Southwestern Cable p yO -ԍSouthwestern Cable serves, in whole or in part, Del Mar, La Jolla, Poway, and San Diego, California.փ  S -x` `  Share TotalhhStandardhppAverage Weekly xxStandard  S -Survey Period` `  Viewing % hhError@hppCirculation %xxError  S -February 1996` `  0.00hh0.00@hpp0.00  xx0.00  S -May 1996` `  0.00hh0.00@hpp0.00  xx0.00  SX-February 1997` `  0.61hh0.49@hpp3.36  xx3.40  S0-May 1997` `  0.29hh0.25@hpp3.57  xx3.57 0  x.Based on these data, KSWB and Channel 51 argue that KCOP failed to meet the Commission's standard  xfor a significantly viewed independent station in the communities noted during the indicated survey  S- xKperiods.  x yO- xԍKSWB asserts that the communities identified as served by the three cable systems are within KSWB's 35mile  {Op-geographic area for syndicated programming. See 47 C.F.R.  73.658(m) (1997).  It is contended that this viewing data clearly demonstrates that during the past two years, KCOP  xhas been unable to attract the proportion of noncable viewers within the identified communities necessary to be regarded by the Commission as significantly viewed.  S- ` x5.` ` In opposition, KCOP contends that petitioners have failed to satisfy their burden of  xmeeting the audience survey requirements for the rule waiver being sought. KCOP argues that the waiver  xyrequest should be denied in any event to preclude a substantial disruption of viewing of station KCOP in  xSan Diego County established for more that 25 years. KCOP attacks the survey submitted by KSWB first  xby arguing that it is not an independent professional survey as required, because KSWB station employees  xperformed critical sampling and diary analysis tasks in connection with the surveys. KCOP also faults  xthe survey as being based on audience data from past Nielsen sweeps and not based on any special  S- x\community specific survey, resulting in the kind of survey rejected in Perry Radio, Inc., 11 FCC Rcd  xk10564 (CSB 1996). It is also argued that sample data necessary to verify the standard sampling error  xcalculations or to assess the reliability of the sample have not been provided. In this connection KCOP  xcontends that the survey's use of county wide ratings information makes the survey highly speculative for  xcommunityspecific purposes, and that the use of zip codes as proxies for communities makes the survey": ,O(O(88 "  xyunreliable because of the possibility of zip codes including more than one community. KCOP also faults  xthe survey because it departs from the methodology used by an affiliate of KSWB in 1990 to establish Los Angeles station KTLA as being significantly viewed in San Diego County.  S`- ` x6. ` ` KCOP urges the Commission to adhere strictly to the established standards for waiver of  x the exception to the syndicated program exclusivity rules, because those rules draw the line between  x{stations entitled to carriage and those that are not. KCOP argues that a waiver would result in the  xelimination of KCOP programming that has been an integral part of the San Diego cable system lineups  xfor over 25 years, a result that would not be in the public interest. KCOP points out that Nielsen data  xfrom the sweeps periods used in KSWB's survey indicate that KCOP consistently registers a 2% 3%  xkshare in the San Diego market across all day parts, and a 28% net weekly circulation. Finally, KCOP  xnotes that cable penetration in this market has reached approximately 82%, making reliance on surveys  xLof noncable households for purposes of determining significantly viewed stations inappropriate. KCOP  xasserts that since petitioners have failed to establish that KCOP is no less local to the communities involved than it ever was, grant of the waiver requests would not serve the public interest.  S - ` x7.` ` In reply, KSWB defends its survey by asserting that level of station personnel involvement  x.in survey preparation did not destroy its independent professional character. KSWB states that station  x[personnel merely provided Nielsen with zip codes for purpose of identifying the particular communities  xkserved by each of the three cable systems involved, which Nielsen alone utilized in its study. KSWB  xasserts that while KCOP objects to use of a station employee to determine the proportionality of the survey  S- x.data used, no inaccuracies in the calculation of the proportionalities have been noted._ X yO - xԍSection 76.54(b) states that "[i]f a cable television systems serves more than one community, a single survey  xmay be taken, provided that the sample includes noncable television homes from each community that are proportional to the population." 47 C.F.R.  76.54(b) (1997)._ KSWB contends  x[that reliance on historical audience data is consistent with existing precedent, and that such commercially  xjaccepted audience data in this context demonstrates that KCOP failed to achieve the required levels to be  x[considered significantly viewed. KSWB argues also that use of zip codes as proxies for the communities  xserved by the cable systems satisfies the requirement that such surveys be proportionately community  xLspecific, that sufficient information is presented to demonstrate that the reported data represented those  xjcommunities located within the cable system service areas, and that Nielsen had sufficient information to  xconclude that the data is representative of viewing patterns of noncable households of the geographic areas surveyed.  S(- ` Cx8.` ` Channel 51 filed comments generally supporting KSWB's request for waiver of the  x[syndicated program exclusivity rules and requesting a waiver of the syndicated program exclusivity rules  S- xexemption for station KUSITV vis a vis KCOP. Channel 51 subsequently filed a separate petition, now  x.consolidated herein, requesting waiver of the syndicated program exclusivity rules exemption for station  S- x.KUSITV.  yO#- x=ԍIn view of Channel 51's petition, no need exists to consider Channel 51's waiver request submitted in its  yO#- xcomments on KSWB's petition. Channel 51 amended its petition to delete an initially included request for waiver  xof the network program nonduplication rules exemption, because relations with the network in which such request depended had been terminated. Channel 51 submitted no audience viewing survey either with its comments or its petition;  xit relies instead on the survey submitted by KSWB. It contends that if KCOP is no longer significantly  x viewed in the identified cable communities for purposes of KSWB's program exclusivity rights, then": ,O(O(88 "  xKCOP must be deemed no longer significantly viewed in those same communities for purposes of KUSI's  xprogram exclusivity rights. In opposition to Channel 51's petition, KCOP relies on the points and  S-authorities submitted in its opposition to KSWB's petition.X yO- xZԍWe reject KCOP's additional argument that Channel 51's petition should be dismissed for lack of supporting  xaffidavit. The factual information on which Channel 51's petition relies for its waiver request is fully supported by affidavits submitted with KSWB's petition and reply in which such information appears.  S`-x DISCUSSION AND ANALYSIS ă  S- ` x9.` ` We have carefully reviewed the study submitted by KSWB in light of KCOP's contentions  xthat the study fails to meet Commission requirements for demonstrating significant viewing of a television  xstation in connection with requests for waiver of syndicated program exclusivity rules exemption at issue  xhere. Section 76.54(b) states, in part, that significantly viewed status "may be demonstrated by an  x=independent professional audience survey of noncable television homes that covers at least two weekly  SH - xperiods separated by at least thirty (30) days ...."GH  yO-ԍ47 C.F.R.  76.54(b) (1997).G Our review reveals that the study was prepared by  x{Nielsen Media Research, which under our rules and precedents qualifies as an independent survey  xLorganization. Nielsen prepared three separate special tabulations, for the noncable homes in each of the  xthree groups of communities served by the three cable systems. KSWB provided Nielsen with the zip  xcodes that correspond to the communities served by each cable system based on information provided by  S - x=the cable operators.M x {O-ԍSee Declaration of Tanya LaBar.M KSWB represented that the cable operators provided this zip code information to  xKSWB, and the correctness of this information is not challenged by KCOP. We find that procedure does  xnot contravene the intent of the rules to have an independent survey, since the petitioner and affected cable  x>operators simply identified the communities that Nielsen was asked to include in the study. Nielsen  xutilized the zip codes in the Special Study for its recalculations of audience viewing data from the cable  xcommunities during the February 1996, May 1996, February 1997, and May 1997 audience survey  x[periods, or "sweeps," of noncable households. The purpose of this part of the rule is to preclude bias in  xthe preparation and analysis of underlying data that may be introduced in a survey prepared by an affected  xtelevision station or cable system using inhouse personnel. The record does not show that the minimal  xinvolvement of KSWB personnel in providing to Nielsen the zip codes for the communities served by the  xthree cable systems and in calculating community sample proportionalities introduced any element of bias into the survey results developed and provided by Nielsen.  Sx- ` x10.` ` As noted earlier, the audience data utilized in Nielsen's study is from the February 1996,  xLMay 1996, February 1997 and May 1997 fourweek sweep periods. The data was tabulated to include  S(- xonly noncable households from the communities of interest,  i.e., those served by the three cable systems.  S- xzThese data sufficiently meet the requirements set forth in KCSTTV that the survey data demonstrate  xviewing levels in two years and the requirement of Section 76.54(b) that, at a minimum, surveys must  xprovide two weeks of audience measurement in each year. In this case, the surveys include eight weeks of data for each year, which exceeds the minimum and is acceptable for this type of survey.  S<- ` x11.` ` Section 76.54(b) provides that where a cable television system serves more than one  x=community, a single survey may be taken, provided that the sample includes noncable television homes"  ,O(O(88!"  S- xthat are proportional to community populations.G yOh-ԍ47 C.F.R.  76.54(b) (1997).G The relative proportion of sample diaries for the  xcommunities at issue here differs from the relative proportion of community populations both separately  xfor 1996 and 1997 or when averaged over the two years. However, we find the differences not  xksufficiently significant to result in rejection of this audience showing. The greatest disparity between  xpopulation distribution and sample distribution is 9.4% in tabulations for the Cox Communications North  x.system, 3.9% in the tabulations for the Cox Communications South system, and 3.1% in tabulations for  S- x-the Southwestern Cable system.KX {O -ԍSee KSWB petition, exhibit 3.K Each of these figures is comparable to or better than disparities accepted  S-by the Commission in other instances. {Or -ԍSee Cypress Broadcasting Corp., 11 FCC Rcd 21073, 2107778 (CSB 1989), and cases cited thierin.  S- ` x12.` ` Next we analyze these data to see if petitioners have demonstrated that KCOP failed to  xmeet the standard for significantly viewed status in two consecutive years. In order for KCOP, an  xindependent station, to be declared significantly viewed under   Section 76.54(b), it would need to attain  xa viewing share at least one standard sampling error above a 2 share of total weekly viewing hours and  S - xat least one standard error above a 5 net weekly circulation | yO- xԍThe Commission's rules use Arbitron's terminology. Nielsen refers to this as the net weekly cume or average weekly circulation. share in noncable homes pursuant to Section  x76.5(i). To demonstrate the converse, the petitioner must show that the reported audience shares are at  xleast one standard sampling error below such requirements. The purpose of applying the standard  x sampling error to the reported audience statistics is to ensure that there is a high probability that the  xsample results reflect the actual viewing level and not sampling error. In this case, rather than averaging  xeach year's audience, Nielsen and the petitioner present the data for each of the fourweek survey periods  xseparately. For both the February and May 1996 surveys, KCOP's share of total weekly audience is zero  S- xas is its net weekly circulation share./X yOT- x,ԍThe computation of standard error takes into account the reported viewing share. When the share is zero, the  xmathematics of the formula automatically lead to a result of zero, with no computed sample error, as in these instances../ Therefore, KCOP was not significantly viewed in these cable communities in 1996.  Sh- ` %x13.` ` The reported average share of total weekly viewing hours was at best 0.59 for Cox  S@- xCommunications North; 0.03 for Cox Communications South; and 0.61 for Southwestern Cable.G@  {O -ԍSee KSWB petition, p.79.G The  S- xstandard errors about these estimates are 0.65, 0.03, and 0.49, respectively.1  {O>#-ԍId.1 When the standard errors  xare added to the reported results (0.59+0.65=1.24, 0.03+0.03=0.06, and 0.61+.49=1.10), none of these  xaudiences share values exceeds the 2 criterion specified in the rules. For a station to be significantly  x=viewed both its total share of weekly viewing hours and its net weekly circulation share must exceed the  xLcriteria set forth in Section 76.5(i). If one of the two audience statistics does not exceed these criteria by  xyat least one standard error, then the station is not significantly viewed. In this case, the criterion for total"P,O(O(88"  xweekly viewing hours is not met so the station would not be considered significantly viewed during these  xymeasurement periods regardless of KCOP's net weekly circulation share. Accordingly, the petitioner has  xdemonstrated that KCOP no longer satisfies the criteria for significantly viewed status in the noncable homes served by Cox Communications North, Cox Communications South and Southwestern Cable.  S8- ` x 14.` ` To summarize, KCOP failed to achieve the Commission's minimum standard of a 2%  x]share in the communities served by Cox Communications North, Cox Communications South and  x=Southwestern Cable to qualify as significantly viewed in those communities, pursuant to  76.5(i) of the  xRules. Because the reported total weekly viewing shares noted above do not reach the required two  xpercent viewing level, we find that KCOP is not significantly viewed in the communities served by Cox  xjCommunications North, Cox Communications South and Southwestern Cable. We need not consider the net weekly circulation calculations in this instance.  S - ` x15.` ` The Commission approved the use of a retabulation of countywide audience data by zip  xcodes within cable system service areas substantially like that utilized by Nielsen in the instant case, in  S - xKCSTTV, Inc., 103 FCC 2nd 407 (1986). Accordingly, KCOP's criticism that the survey improperly  x.relied on data from past Nielsen sweeps and on identification of the communities served by zip codes is  xrejected. More fundamentally, the specialized survey conducted by Nielsen shows that viewing of KCOP  xin the communities served by Cox Communications North, Cox Communications South and Southwestern  xCable to be significantly less than viewing of the station in San Diego County overall. For that reason,  xwe find that a grant of a waiver of the exemption from the syndicated program exclusivity rules will serve  x.the public interest, because the waiver will allow stations KSWBTV and KUSI(TV) the benefit of their  xcontracts granting syndicated program exclusivity against like programming of station KCOPTV on cable  xlsystems in communities where KCOPTV is not significantly viewed. Finally, we reject KCOP's  xjargument that because of cable's high penetration of San Deigo County, a survey of only noncable homes  xis inappropriate for determining significant viewing in the communities at issue here. The Commission  xhas accepted other survey results based on viewers in noncable home where comparable penetration levels  S-obtain. See Cypress Broadcasting Corp., 11 FCC Rcd 21073 (1996).  S-  S|-1 ORDERING CLAUSES ă  S,- ` x16.` ` Accordingly, IT IS ORDERED that the petitions of KSWBTV, Inc. and Channel 51 of  S- xLSan Diego, Inc. in File Nos. CSR 5106N and CSR5189N ARE GRANTED and the provisions of 47  S- xC.F.R.  76.156(a) ARE WAIVED with respect to programming of television broadcast stations KSWBTV and KUSI(TV) that is subject to syndicated program exclusivity contracts.  Sd-x17.` ` This action is taken pursuant to authority delegated by 47 C.F.R.  0.321. x` `  hhFEDERAL COMMUNICATIONS COMMISSION x` `  hhWilliam H. Johnson x` `  hhDeputy Chief, Cable Services Bureau