FCC Record, Volume 26, No. 19, Pages 14991 to 15893, October 24 - November 10, 2011 Page: 15,041

20. With respect to Time Warner's claim that WISN supports its arguments regarding the
Petitioners failure to use an acceptable sample size, we agree with Petitioners that we can differentiate
WISN from the situation herein. In WISN, the Commission rejected the petitioner's showing because
there was conflicting evidence submitted by the opposition that led us to question the initial data and
whether it actually supported the contention that the station was no longer significantly viewed.
Moreover, we found that, when the required individual sweep period data were submitted, there were
inconsistencies among the survey periods and noted the sample sizes used to produce the survey results
in that context.98 Contrary to Time Warner's assertion, we did not deny WISN based on the sample sizes
used for its showing. Moreover, WISN did not say that we found 7 in-tab households barely sufficient,
but rather noted that 7 is a small sample, but a usable sample. In the context of examining the separate
survey results in WISN, we expressed concern about the single in-tab household, especially in light of the
conflicting results, and noted the fact that the reported audience statistic was based on the viewing of one
household and not the average of a sample of households. In this case, where there is one in-tab
household, it is combined with other in-tab households to determine an average audience statistic,
consistent with the Commission's rules. Thus, the use of one in-tab household in this case is different
from that used in WISN and it follows established procedures.
21. Additionally, with respect to Petitioners' reliance on the Commission's decision in
WTVG, we agree with Time Warner that the factual issues raised therein does not comport with the issues
presented in the present case. In WTVG, the cable system involved sought a stay of the Commission's
earlier decisions granting waivers of the network nonduplication protection and syndicated exclusivity
rules in conjunction with the filing of applications for review attempting to overturn the orders by
challenging the validity of the significantly viewed methodology accepted by the Commission in the
original requests.99 Time Warner states that it is not seeking to challenge already accepted methodology
in this instance, but rather the way in which Petitioners have utilized such methodology. Therefore, we
find that WTVG has little relevance to the situation here.
22. Finally, we agree with Petitioners that they have standing to include KCBS-TV in their
request for waiver. Petitioners have stated that both KESQ-TV and KMIR-TV have exclusive rights to
certain syndicated programming carried by KCBS-TV. The fact that KCBS-TV is not currently carried
does not preclude Petitioners from seeking to protect their programming rights, particularly in light of the
possibility that KCBS-TV may be carried in the future.
23. Accordingly, we find that the Petitioners have followed established procedures to
demonstrate that KNBC and KCBS-TV are no longer significantly viewed in the communities of Palm
Springs, Indio, Cathedral City, Coachella, and Desert Hot Springs, California, and we grant Petitioners'
request.
98While the Petitioners in this case were not required to submit the individual survey results, they not only
submitted the individual survey data used to calculate the reported averages, but also submitted the audience data for
all four sweep periods in 2007 and 2008. In each case, the reported audience is zero, demonstrating consistency
from one survey period to another. See Petition at Appendix A.
99See WTVG, Inc., 25 FCC Red 2665 (2010); WUPWBroadcasting, LLC, 25 FCC Red 2678 (2010).

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Federal Communications Commission

DA 11-1768