FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,192
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stations in the same market because of a concomitant increase in market power, the Commission has
commenced its 2010 Quadrennial Ownership Review and such issues are properly raised in that
proceeding. " Issues of broad applicability, such as the complaints raised by TWC regarding the
retransmission consent process, are more suited to a rulemaking than to adjudication, and the Commission
has long refused to develop broad new rules in an adjudicatory context.'6 By denying TWC's request to
impose transaction-specific conditions, we take no position with respect to whether the Commission
should alter its policies with regards to the retransmission consent process.
Under Section 73.3555(bX2) of the Commission's Rules,'7 two full-power television stations licensed in
the same DMA whose Grade B contours overlap' may be commonly owned if: (1) at least one of the
two stations is not ranked among the top four stations in the DMA; and (2) at least eight independently
owned and operating, full-power commercial and noncommercial television stations would remain in the
DMA after the merger. Although WCWF(DT) is not among the top-four ranked stations in the market,
the Green Bay-Appleton DMA would not have eight independently owned-and-operating full power
television stations after the proposed merger. Therefore, the applicants have requested a waiver of the
rule under Note 7(2) to Section 73.3555, the "failing station" standard.'9
The Commission's Local Ownership Order,20 set forth the criteria for a waiver of the television duopoly
rule for a "failing station," defined as one which has been struggling for an "extended period of time both
in terms of its audience share and financial performance."2' These criteria are:
i. One of the merging stations has a low all-day audience share, (i.e. 4 percent of lower);
2. The financial condition of one of the merging stations is poor. For example, that the station has
had a negative cash flow for the previous three years;22
' In the Matter of the 2010 Quadrennial Review - Review of the Commission's Media Ownership Rule and Other
Rules Adopted Pursuant to Section 202 of the Telecommunications Act of 1996, Notice of Inquiry, 25 FCC Rcd 6086
(2010)("2010 Quadrennial Ownership Review")..
"6 See. e.g., Pine Bluff Radio, Inc., Memorandum Opinion and Order, 14 FCC Red 6594, 6599 (1999); Application of
Great Empire Broadcasting, Inc. and Journal Broadcasting Corp., Memorandum Opinion and Order, 14 FCC Red
11145, 11148 (1999). See also Community Television of Southern California v. Gotfried, 459 U.S. 499, 511 (1983)
("[A] rulemaking is generally a better, fairer, and more effective method of implementing a new industry wide
policy than uneven application of conditions in isolated [adjudicatory] proceedings.")
" 47 C.F.R. 73.3555(b)(2).
'g Although the ndle refers to Grade B contours, DTV stations do not have Grade B contours and the Commission
treats noise-limited contours as their functional equivalent. See, e.g. Estes Broadcasting, bic., Letter, 25 FCC Rcd
"9 47 C.F.R. 73.3555 Note 7.
2014 FCC Red 12903.
21 Id at 12939.
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United States. Federal Communications Commission. FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011, book, April 2011; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc52169/m1/364/: accessed February 28, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.