FCC Record, Volume 26, No. 19, Pages 14991 to 15893, October 24 - November 10, 2011 Page: 15,028
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proceeding with follow-up replies." For the reasons discussed below, we grant Petitioner's waiver
2. Upon the request of a local television station with exclusive rights to distribute a network
or syndicated program, a cable operator generally may not carry a duplicating program broadcast by a
distant station.5 Under Section 76.92(f) of the Commission's rules, however, a signal otherwise subject
to deletion is exempt from application of the network nonduplication rules if it is "significantly viewed"
in a relevant community (the "significantly viewed exception").6 The significantly viewed exception to
the exclusivity rules is based on it being established that an otherwise distant station receives a
"significant" level of over-the-air viewership in a subject community. If this viewership level is met, the
station is no longer considered distant for purposes of the application of the exclusivity rules because it
has established that it is viewed over the air in the subject community. A similar exception is provided in
the syndicated exclusivity rules.7
3. In order to obtain a waiver of Section 76.92(f), the Commission held in KCST-TV, Inc.8
that petitioners would be required to demonstrate for two consecutive years that a station was no longer
significantly viewed, based either on community-specific or system-specific over-the-air viewing data,
following the methodology set forth in Section 76.54(b). Section 76.5(i) of the Commission's rules
requires that for network stations to be considered significantly viewed, the survey results should exceed
a 3 percent share of total viewing hours and a net weekly circulation of 25 percent, by at least one
standard error.' For independent stations (i.e., non-network stations), to be considered significantly
viewed, Section 76.5(i) of the Commission's rules requires that the survey results should exceed a 2
percent share of total viewing hours and a net weekly circulation of 5 percent, by at least one standard
error.'I The Commission has found that this type of test is applicable as well for waivers of the
syndicated exclusivity exemption."
4. Since the Commission's decision in KCST-TV, the methodology required by Section
76.54(b) of the rules for a petitioner seeking a waiver of the significantly viewed exception has evolved,
pursuant to case law and market realities. Section 76.54(b) states in pertinent part that significant
viewing "may be demonstrated by an independent professional audience survey of [over-the-air]
television homes that covers at least two weekly periods separated by at least thirty (30) days but no more
4Time Warner filed its first supplement by letter to which Petitioners responded. Petitioners filed a second
supplement to which Time Warner responded. Finally, Time Warner filed a third supplement to which Petitioners
responded. While we note that all of these supplements and replies are outside of the normal pleading cycle, we will
accept them in the interest of a complete record.
5See 47 C.F.R. 76.92; 47 C.F.R. 76.101.
6 47 C.F.R. 76.92(f); see 47 C.F.R. 76.5(i) and 76.54.
7 47 C.F.R. 76.106(a).
8103 FCC 2d 407 (1986).
947 C.F.R. 76.5(i).
"1See Chambers Cable of Oregon, Inc., 5 FCC Rcd 5640 (1990).
Federal Communications Commission
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United States. Federal Communications Commission. FCC Record, Volume 26, No. 19, Pages 14991 to 15893, October 24 - November 10, 2011, book, November 2011; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc133013/m1/52/: accessed November 22, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.