FCC Record, Volume 26, No. 19, Pages 14991 to 15893, October 24 - November 10, 2011 Page: 15,034
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NBC affiliate, and neither station has established that it airs any CBS Network programming that would
be entitled to network nonduplication rights or duplicative syndicated programming vis-a-vis KCBS-
TV.33 In any event, Time Warner states, even if the Petitioners could demonstrate that either of their
stations carries such programming, it would be immaterial since KCBS-TV has not been carried in the
subject communities since 2008.34 While it is possible that it might resume carriage of KCBS-TV at
some point, Time Warner maintains that a waiver request now is not relevant and should be dismissed
8. Time Warner argues further that the statistical methodology relied on by the Petitioners
is flawed and the petition should therefore be denied.36 Time Warner asserts that an independent expert
in statistical sampling techniques has concluded that "the survey reported in the Petition is not sufficient
to draw a conclusion about the viewership of KCBS-TV or KNBC in the Palm Springs DMA.""37 First,
Time Warner maintains, the survey is fatally flawed due to the exceedingly small samples upon which it
relies.38 Time Warner points out that the largest number of in-tab households presented in any given
sweep period for a single community is five and, on more than one occasion, relies solely on one in-tab
household for an entire community." Time Warner argues that such small sample sizes cannot support
the conclusions that the Petitioners claim with respect to KNBC's and KCBS-TV's viewing patterns in
the communities at issue.40 Time Warner contends that, while Section 76.54(b) of the Commission's
rules and Commission precedent require waiver applicants to use multiple sweeps periods to support
their conclusions, the Petitioners should not be permitted to aggregate multiple statistically insignificant
data points in an attempt to reach a statistically significant conclusion." In addition, while the
Commission's rules seek to address the statistical reliability of audience survey sample sizes by requiring
results to be within at least one standard error of the required viewing level, Time Warner argues that
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suffering some cognizable injury, which will be remedied by grant of the waiver. See Applications of Hispanic
Information and Telecommunications Network, Inc., 18 FCC Rcd 23872, 23879 (WTB 2003); see also Duke Power
Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 73-74 (1978).
341d. at Appendix A. Time Warner states that it is also the only cable franchisee serving the subject
351d. at 2-3.
36Id. at 4.
37Id. at Appendix B.
381d. at 5.
391d. Time Warner notes, for instance, that for the February 2008 sweeps period, Nielsen reports only one
diary for the community of Cathedral City, which according to the 2000 Census data had a population of 43,129.
See id. at n.17. Time Warner calculates that, with approximately 20,000 television households in Cathedral City,
one diary represents only 0.005 percent of those households.
4old. at 6. Time Warner states that, according to its expert, "[t]his miniscule sample size, coupled with
survey results that on their face do not follow a normal distribution, renders the Nielsen survey data inherently
unreliable in this unique case." See id. at Appendix B.
4Id. For instance, if the three diaries collected in February 2007 for Cathedral City are not statistically
representative, the Petitioners cannot cure this deficiency by adding the two diaries from November 2007, which are
not statistically representative in their own right to conclude that KNBC and KCBS-TV were not significantly
viewed in the community in 2007.
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/m1/58/: accessed March 25, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.