FCC Record, Volume 28, No. 4, Pages 2764 to 3699, March 18 - March 29, 2013 Page: 2,844
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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.6 Under Sections 76.92(f) and 76.106(a) of the Commission's rules, however, a signal
otherwise subject to deletion is exempt from application of both the network nonduplication and
syndicated exclusivity rules if it is "significantly viewed" in a relevant community (the "significantly
viewed exception").7 The significantly viewed exception to the exclusivity rules is based on a
demonstration 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 network nonduplication rules because it has established that it is
viewed over the air in the subject community. A similar exception is provided in the syndicated
3. In order to obtain a waiver of Section 76.92(f), the Commission held in KCST-TV, Inc.9 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.'" 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 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 than one of which shall be a week between the months of April and September.12 Over
time, The Nielsen Company ("Nielsen") became the primary surveying organization through which a
petitioner could obtain television surveys. Nielsen, which routinely surveys television markets to obtain
television stations' viewership, conducts four-week audience surveys four times a year (i.e., February,
May, July and November "sweep periods"). The Bureau has found that replacing each week required
under KCST-TV with a sweep period is acceptable and, if anything, adds to the accuracy of the audience
statistics because of the increased sample size.'3 Accordingly, a petitioner may submit the results from
6 See 47 C.F.R. 76.92; 47 C.F.R. 76.101.
7 47 C.F.R. 76.92(f); see 47 C.F.R. 76.5(i) and 76.54.
8 47 C.F.R. 76.106(a).
9 103 FCC 2d 407 (1986).
1o 47 C.F.R. 76.5(i).
" See Chambers Cable of Oregon, Inc., 5 FCC Red 5640 (1990).
12 47 C.F.R. 76.54(b). The criteria set forth in KCST-TVrequire that two separate surveys be performed pursuant
to Section 76.54(b) in consecutive years. The provisions of Section 76.54(b) therefore apply to each year's survey.
These types of surveys cannot be done by the affected television station, cable system or satellite operator.
SAlthough, in general, petitioners are prohibited from using two surveys between April and September (i.e., May or
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United States. Federal Communications Commission. FCC Record, Volume 28, No. 4, Pages 2764 to 3699, March 18 - March 29, 2013, book, March 2013; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc177414/m1/97/: accessed June 21, 2018), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.